[ v51 p620 ]
51:0620(55)AR
The decision of the Authority follows:
51 FLRA No. 55
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2280
(Union)
and
U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
IRON MOUNTAIN, MICHIGAN
(Agency)
0-AR-2667
_____
DECISION
December 15, 1995
_____
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Sol M. Elkin filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance seeking environmental differential pay (EDP) for certain bargaining unit employees.
For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Arbitrator's Award
The Union filed a grievance alleging that all Wage Grade (WG) employees exposed to airborne asbestos were entitled to EDP. The grievance was unresolved and was submitted to arbitration, where the Arbitrator framed the issue as follows:
Is the Agency in violation of the collective bargaining agreement for refusing to authorize [EDP] for its wage grade employees? If so, what shall be the remedy?
Award at 2.
The Arbitrator reviewed Articles 24 and 25 of the parties' agreement, which incorporated Federal Personnel Manual (FPM) Supplement 532-1, S8-7(c) and Appendix J.(1) Noting the test for applying category 16, which describes the work situation under which EDP is payable for exposure to asbestos, of Appendix J set forth in Allen Park Veterans Administration, Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091 (1990) (Allen Park), the Arbitrator stated that a critical question to be addressed was what standard should be applied to determine the level of exposure that "'may expose employees to potential illness.'" Id. at 12. The Arbitrator rejected the Union's argument that any exposure to asbestos may have the potential for causing illness and determined that the Occupational Safety and Health Administration (OSHA) standard was the most appropriate standard for defining the permissible level of exposure for asbestos.(2)
Applying the OSHA standard, the Arbitrator found that uncontroverted air sample readings taken on a number of occasions were well below the Agency-adopted limit of 0.1f/cc, which is one-half of the OSHA limit. With respect to air samplings, the Arbitrator considered the Union's assertion that air sample data did not reflect the actual level of exposure in confined spaces. However, the Arbitrator found that the evidence presented by the Union was subjective and there was no "objective evidence" to show that the air in some areas where the grievants worked exceeded the permissible OSHA limit. Id. at 16. The Arbitrator concluded that the Union had failed to show that the grievants were exposed to asbestos levels exceeding the OSHA limits. Accordingly, the Arbitrator denied the grievance.
III. Exceptions
A. Union's Contentions
The Union contends that the award is contrary to the Authority's decisions in Allen Park and U.S. Department of Veterans Affairs Medical Center, Huntington, West Virginia and American Federation of Government Employees, Local 2344, 46 FLRA 1160 (1993) (VA Medical Center, Huntington, WV). The Union asserts that in these cases arbitrators found that there is no quantitative threshold level at which asbestos exposure will have no potential of illness or injury. The Union asserts that the "issue of what specified level of asbestos exposure requires the payment of EDP cannot be made on a case-by-case basis." Exceptions at 11. According to the Union, if the Authority has already determined in Allen Park that an arbitration award was appropriate based upon a finding that there is no permissible exposure level, then that should be the standard applied for each Federal facility in all cases.
The Union also contends that the Arbitrator's finding "that there was no objective evidence of asbestos exposure" was erroneous. Id. at 12. The Union asserts that the Arbitrator failed to consider certain testimonial and documentary evidence that establishes the existence of asbestos which potentially could cause illness or injury to employees.
B. Agency's Opposition
The Agency asserts that the Union's contention that the award is contrary to Authority decisions is erroneous. The Agency contends that Allen Park and VA Medical Center, Huntington, WV stand for one proposition: "the level of exposure to asbestos for which EDP should be paid is a matter for local determination by the arbitrator." Opposition at 13. The Agency further asserts that the Authority has repeatedly held that arbitral awards are not precedential and, therefore, the Arbitrator in this case was not bound by the awards in Allen Park or VA Medical Center, Huntington, WV.
The Agency further asserts that the Union's contentions concerning the record evidence are an attempt to relitigate the case. The Agency contends that the Arbitrator's decision is well-reasoned and based on the record evidence.
IV. Analysis and Conclusions
A. Contrary to Law
The Union has not demonstrated that the award is contrary to Authority decisions. Appendix A, which is substantively identical to former Appendix J, does not set forth any specified level of exposure required for the payment of EDP. Accordingly, as was the case under Appendix J, the specific work situations for which EDP is payable are left to local determination, including arbitration. American Federation of Government Employees, Local 1482 and U.S. Department of the Navy, Marine Corps Logistics Base, Barstow, California, 50 FLRA 572, 574 (1995). Thus, when the parties submit a dispute to arbitration involving exposure to asbestos, the arbitrator has the authority to resolve a dispute over what quantitative level of exposure to airborne concentrations of asbestos exposes employees to potential illness and injury and how that level is derived or calculated. Id.
The Union has not demonstrated that the Arbitrator erred by applying the OSHA standard. Rather, the Union misinterprets the Authority's findings in Allen Park and VA Medical Center, Huntington, WV. Those cases did not establish a specific standard on the level of asbestos exposure for the payment of EDP applicable to all Federal facilities. The standard applied in those cases--that there is no permissible asbestos exposure level for the payment of EDP--was determined by the arbitrators in those cases based on the facts presented. There is nothing in those cases or this case that requires the Arbitrator to apply that standard in the instant case. Moreover, arbitration awards are not precedential, and, therefore, a contention that an award conflicts with other arbitration awards provides no basis for finding an award deficient. See International Federation of Professional and Technical Engineers, Local 28, Lewis Engineers and Scientists Association and National Aeronautics and Space Administration, Lewis Research Center, Cleveland, Ohio, 50 FLRA 533, 536-37 (1995); American Federation of Government Employees, Local 1273 and U.S. Department of Veterans Affairs, Medical Center, Boise, Idaho, 44 FLRA 707, 712 (1992). Consequently, the Union's contention that the Arbitrator's adoption of the OSHA standard is contrary to Authority precedent provides no basis for finding the award deficient.
B. Fair Hearing
The Union's assertion that the Arbitrator erred by finding that there was no objective evidence of asbestos exposure is construed as a contention that the Arbitrator failed to consider evidence and, as such, failed to provide a fair hearing. An award will be found deficient on this ground when it is established that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceedings as a whole. See American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995).
The Union has not established that the Arbitrator refused to hear or consider pertinent or material evidence, or took any actions in conducting the proceeding which prejudiced the Union so as to affect the fairness of the proceedings as a whole. Moreover, the Union misinterprets the Arbitrator's finding. The Arbitrator did not find that there was no objective evidence of asbestos exposure. Rather, the Arbitrator found that there was no objective evidence to show that the air in some areas where the grievants worked exceeded the permissible OSHA limit. Accordingly, this exception provides no basis for finding the award deficient. See U.S. Department of the Navy, Naval Training Center, Great Lakes, Illinois and American Federation of Government Employees, Local 2326, 51 FLRA 198 (1995).
V. Decision
The Union's exceptions are denied.
APPENDIX
Articles 24 and 25 provide, in pertinent part, as follows:
ARTICLE 24 - Health, Safety and Environment
Section 1 - General
It shall be the responsibility of the Agency to establish and maintain an effective and comprehensive occupational safety and health program in accordance with Public Law 91-596, the Occupational Safety and Health Act of 1970, (hereinafter, the Act), Executive Order 12196, dated February 26, 1980, and Department of Labor Regulation 29 CFR 1960, (hereinafter, Part 1960). The Agency agrees to recognize the Union's rights under Title VII of the CSRA (Civil Service Reform Act) in administering the program. The Agency shall furnish to each employee places and conditions of employment which are free of recognized hazards that are causing, or are likely to cause death or serious physical harm to the employee.
. . . .
Section 3 - Standards
The Agency shall comply with the recognized occupational safety and health standards issued under Section 6 of the Act and/or, where the Secretary of Labor has approved compliance with alternate standards in accordance with Part 1960. The Agency will consult with the Union and provide the Union, upon its request, an opportunity to discuss the issues prior to the submission of any alternate standards to the Secretary of Labor.
Section 4 - Abatement of Unsafe and Unhealthful Working Conditions
The Agency agrees to ensure prompt abatement of unhealthful and unsafe working conditions . . . .
ARTICLE 25 -- Hazardous Duty Pay & Environmental Differential
Section 1 - Environmental Differential (Federal Wage System)
A. In accordance with the criteria set forth in FPM Supplement 532-1, the appropriate environmental differential will be paid to an employee who is exposed to unusually severe hazard, physical hardship, or a working condition meeting the standards described under the categories in Appendix J.
B. If at any time an employee and/or the union believe that differential pay is warranted under FPM Supplement 532-1 and Appendix J, the matter may be raised at Step 3 of the negotiated grievance procedure.
Federal Personnel Manual Supplement 532-1
S8-7(c) Payment for environmental differential. An environmental differential is paid to a wage employee who is exposed to a hazard, physical hardship, or working condition of an unusually severe nature listed under the categories in appendix J of this subchapter.
Appendix J
Schedule of Environmental Differentials Paid from Exposure to Various Degrees of Hazards, Physical Hardships, and Working Conditions of an Unusual Nature
. . . .
8% 16. Asbestos. Working in an area where airborne concentrations of asbestos fibers may expose employees to potential illness or injury and protective devices or safety measures have not practically eliminated the potential for such personal illness or injury. Mar. 9, 1975.
5 C.F.R. § 532.511
Appendix A
8% 16. Asbestos. Working in an area where airborne concentrations of asbestos fibers may expose employees to potential illness or injury and protective devices or safety measures have not practically eliminated the potential for such personal illness or injury. Mar. 9, 1975.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The pertinent text of Articles 24 and 25, FPM Supplement 532-1, S8-7, and Appendix J is set forth in the Appendix to this decision. Appendix J lists the categories and environmental differentials authorized for exposure to various degrees of hazards, physical hardships, and working conditions of an unusual nature, including exposure to asbestos, which is listed as category 16. Effective December 31, 1994, the FPM was abolished. Although the Arbitrator addressed provisions of the FPM that were in existence at the time of his award, the same standards and legal requirements for EDP based on working in areas with asbestos fibers were, and continue to be, codified at 5 C.F.R. § 532.511, Appendix A (Appendix A), which is set forth in the Appendix to this decision.
2. The Arbitrator cited the following OSHA standard:
29 C.F.R. § 1926.58
Asbestos
. . . .
(c) Permissible exposure limits (PELS)--
(1) Time-weighted average limit(TWA). The employer shall ensure that no employee is exposed to an airborne concentration of asbestos in excess of 0.2 fiber per cubic centimeter of air as an eight (8)-hour time-weighted average (TWA). . . .
(2) Excursion limit. The employer shall ensure that no employee is exposed to an airborne concentration of asbestos in excess of 1.0 fiber per cubic centimeter of air (1 f/cc) as averaged over a sampling period of thirty (30) minutes.