51:0834(70)AR - - AFGE, Local 2144 and Dept. of the Air Force - - 1996 FLRAdec AR - - v51 p834



[ v51 p834 ]
51:0834(70)AR
The decision of the Authority follows:


51 FLRA No. 70

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2144

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

(Agency)

0-AR-2748

_____

DECISION

February 14, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James R. Cox 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 certain bargaining unit wage grade employees exposed to airborne concentrations of asbestos fibers were entitled to EDP. The grievance was unresolved and was submitted to arbitration.

The Arbitrator reviewed Articles 5 and 24 of the parties' agreement, which incorporated Federal Personnel Manual (FPM) Supplement 532-1 and Appendix J,(1) and also reviewed the Air Force Supplement to FPM Supplement 532-1 and Air Force Regulations implementing Occupational Safety and Health Administration (OSHA) rules. 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 considered the question of what standard should be applied to determine the level of exposure that "may expose employees to potential illness . . . ." Award at 15. He also considered other arbitrators' awards, including the arbitrator's award in American Federation of Government Employees, Local 2280 and U.S. Department of Veterans Affairs Medical Center, Iron Mountain, Michigan (VAMC, Iron Mountain).(2) The Arbitrator rejected the Union's argument that any exposure to asbestos may have the potential for causing illness and determined that the OSHA standard adopted by the Agency was a reasonable standard for defining the permissible level of exposure for asbestos.(3)

After considering the evidence, including the fact that no unit employee had filed a request for EDP prior to the instant grievance or had filed a report of exposure to hazardous materials, pursuant to Air Force Regulations, the Arbitrator found that the grievants did not qualify for EDP because the evidence did not establish, "with the required definitiveness," that employees worked when the threshold limits of compensable exposure set by the OSHA standard had been exceeded. Award at 16. The Arbitrator stated that"[e]xposure in excess of such a standard is a condition of qualification for payment of EDP." Id. 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 EDP cases, including Allen Park. The Union asserts that in Allen Park an arbitrator 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 17. According to the Union, the Authority's determination in Allen Park that an arbitration award was appropriate based upon a finding that there is no permissible exposure level should be the standard applied for each Federal facility in all cases. The Union further contends that the Arbitrator's determination that EDP is payable only when the OSHA quantitative threshold level is exceeded is contrary to FPM Supplement 532-1, Appendix J because there is no threshold level set forth in Appendix J.

The Union also asserts that the Arbitrator erred in relying on the arbitrator's award in VAMC, Iron Mountain because exceptions to that award were pending before the Authority at the time the Arbitrator issued his award in this case and, therefore, the award was not final and binding. Citing certain testimonial and documentary evidence, which it contends establishes the existence of asbestos which potentially could cause illness or injury to employees, the Union claims that it met its burden of proving entitlement to EDP in the positions at issue. Finally, the Union argues that the Arbitrator's ruling that employees failed to file requests for EDP or hazard reports prior to the filing of the grievance has no bearing on their entitlement to EDP.

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 none of the decisions relied on by the Union, including Allen Park, hold that an arbitrator must award EDP whenever the union establishes that any level of asbestos can be found in a facility. Rather, according to the Agency, Allen Park and other cases cited by the Union stand for one proposition: the "level of exposure required for the payment of EDP . . . [is] left to local determination, including arbitration." Opposition at 13. The Agency further asserts that the Arbitrator was not bound by awards in prior Authority decisions, including Allen Park, because the Authority has repeatedly held that arbitration awards are not precedential.

Moreover, the Agency contends that the award is consistent with FPM Supplement 532-1, Appendix J and that the Union's contention that the Arbitrator erroneously relied on VAMC, Iron Mountain is unfounded. The Agency further contends that the Union's claim that it met its burden of proving entitlement with respect to certain positions is an attempt to relitigate factual matters decided by the Arbitrator, and that the Arbitrator's award is based on the record evidence. Also, the Agency contends that the Union's assertion concerning the Arbitrator's ruling with respect to the employees' failure to file requests for EDP or hazard reports constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence.

IV. Analysis and Conclusions

A. The Award Is Not Contrary to Law and Regulation

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. VAMC, 51 FLRA at 623; 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 grievance 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. VAMC, 51 FLRA at 624. Of course, in making local determinations regarding the specific work situations for which EDP is payable, the parties could negotiate, consistent with law and regulation, the quantitative level of asbestos exposure that would be used in assessing employee entitlement to EDP. As there is no evidence in this case that the parties negotiated such a standard, the Arbitrator did not err in finding that the Agency adopted the OSHA standard.

Moreover, in relying on Allen Park as support for its contention that the Arbitrator should not have applied the OSHA standard, the Union misinterprets the Authority's findings in Allen Park. That case did not establish a specific standard for the level of asbestos exposure warranting the payment of EDP which would be applicable to all Federal facilities. The standard applied in Allen Park--that there is no permissible asbestos exposure level for the payment of EDP--was determined by the arbitrator in that case based on the facts presented. There is nothing in Allen Park 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.(4) 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.

We further reject the Union's contention that the award is contrary to FPM Supplement 532-1, Appendix J because it specified a quantitative level of exposure to asbestos for which EDP is payable. Under Appendix A and former Appendix J, 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.

B. The Union Received a Fair Hearing

The Union asserts that: (1) it met its burden of proving that the grievants were entitled to EDP; and (2) the Arbitrator's ruling that employees failed to file requests for EDP or hazard reports prior to filing the grievance has no bearing on employees' entitlement to EDP. We construe these assertions as a contention that the Arbitrator failed to consider evidence presented by the Union 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. Accordingly, the Union's assertions provide 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 5 and 24 provide, in pertinent part, as follows:

ARTICLE 5 -- BASIC PROVISIONS

Section 1 In the administration of all matters covered by the agreement, officials and employees are governed by existing or future laws and the regulations of appropriate authorities, including policies set forth in the Federal Personnel Manual; by published agency policies and regulations in existence at the time the agreement was approved; and by subsequently published agency policies and regulations required by law or by the regulations of appropriate authorities, or authorized by the terms of the controlling agreement at a higher agency level.

ARTICLE 24 -- HEALTH AND SAFETY

Section 1 The Employer will provide a working environment consistent with health and safety standards. It is recognized that employees have the primary responsibility for their own health and safety as well as an obligation to know and observe safety rules and practices.

Section 2 In the event that existing working conditions appear to be unsafe, an employee shall immediately notify the first level supervisor. The employee may forward a "Hazard Report" to the Safety Office for evaluation and resolution.

. . . .

Section 7 The Employer will not allow an employee to work in a hazardous environment or operate any machine until such time as the employee has received adequate instruction on the environmental hazards and/or characteristics and performance of the machine.

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 for 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 5 and 24, FPM Supplement 532-1, 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. Exceptions to the arbitrator's award in VAMC, Iron Mountain were filed with the Authority and the Authority's decision resolving the exceptions was issued on December 15, 1995. See American Federation of Government Employees, Local 2280 and U.S. Department of Veterans Affairs Medical Center, Iron Mountain, Michigan, 51 FLRA 620 (1995) (VAMC).

3. According to the Arbitrator, the following OSHA standard was in effect at the facility herein prior to April 1994:

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.

The Arbitrator also found that, in April 1994, the Agency adopted a more "stringent" OSHA standard set forth in 29 C.F.R. § 1910, Subpart Z. Award at 4. See 29 C.F.R. § 1910.1001(c). Under that standard, an airborne concentration of asbestos of 0.1 fiber per cubic centimeter of air calculated as an 8-hour time-weighted average was the permissible leve