52:0701(68)AR - - FAA, Seatac Airport, Seattle, WA and National Air Traffic Controllers Association - - 1996 FLRAdec AR - - v52 p701
[ v52 p701 ]
The decision of the Authority follows:
52 FLRA No. 68
FEDERAL LABOR RELATIONS AUTHORITY
FEDERAL AVIATION ADMINISTRATION
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
December 13, 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 William L. Corbett 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 alleging that on two occasions employees were exposed to asbestos at levels in excess of federal safety standards and that the Agency violated the parties' collective bargaining agreement by refusing to provide the employees medical surveillance.(1) For the following reasons, we conclude that the Arbitrator's award is not deficient under section 7122(a)(1) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The parties' collective bargaining agreement establishes asbestos abatement procedures and asbestos exposure standards.(2) These procedures and standards are applicable to remodeling construction at SEATAC Airport.(3) All bargaining unit employees who are exposed to levels of asbestos that are equal to or in excess of those in the agreement are eligible under the agreement for medical surveillance programs paid for by the Agency. The agreement incorporates the permissive exposure limits (PELS) that are defined by OSHA in 29 C.F.R. § 1926.1101(c)(1) and (2).(4)
During the course of remodeling construction, a FAA contractor removed a sheetrock wall from the airport's Main Terminal building. Prior to the removal, the wall was tested to determine if asbestos abatement procedures were necessary during its removal.(5) Although tests showed that the joint compound in the wall contained 6 percent asbestos, the Agency analyzed the wall system as a whole, which resulted in a finding that there was less than 1 percent asbestos containing material in the wall.(6) Accordingly, the Agency determined that asbestos abatement procedures were not required.
A second incident of alleged asbestos exposure occurred when part of a hallway wall was cut to create a new doorway. At that time, there was no indication that the wall contained asbestos materials and no asbestos monitoring was in effect. However, 24 hours later, a substance was noticed around the door and a sample was sent to a lab for processing. The sample revealed that 4 percent of the substance was asbestos. As a result, the area was air monitored and evacuated. The air monitoring, which was concluded approximately 36 hours after the doorway was cut, revealed nothing indicating that the level of asbestos exposure exceeded OSHA standards. At that time, the parties agreed to restore operations.
The Union grieved the Agency's failure to grant employees medical surveillance after the two incidents of alleged asbestos exposure. The grievance was unresolved and was submitted to arbitration, where the Arbitrator framed the issue as:
Whether the release of asbestos from the wall removal project and the door cut project was in an amount that violated industry practices, federal/state/local health and safety standards, or other generally recognized standards.
Award at 3.
The Arbitrator found that the wall removal was consistent with EPA regulations. He rejected the Union's contention that the asbestos content of the joint compound alone, and not the wall system as a whole, should have determined whether asbestos abatement procedures were necessary when removing the wall. The Arbitrator relied on an EPA clarification to the final rule requirements of the EPA's National Emission Standard for Asbestos (NESHAP) for asbestos analysis and removal, which states that, when analyzing the level of asbestos in a wall, the wall should be measured as a system.(7) In addition, he rejected the Union's contention that EPA regulations mandated "point counting" of the wall system to verify the asbestos content.(8) The Arbitrator found that because the wall system as a whole was less than 1 percent asbestos, the Agency was not required to "point count" the wall.
With regard to the cutting of the doorway, the Arbitrator determined that the evidence supported a finding that the level of asbestos exposed did not exceed federal, state or local safety environmental standards. The Arbitrator reasoned that the relevant OSHA standards incorporated into the agreement conditioned medical surveillance on not only the level of exposure but also the requirement that the level of exposure occur over specific time periods. Because there was no monitoring in place when the doorway was cut, the Arbitrator relied on the levels of asbestos measured 34 to 36 hours later, which did not exceed OSHA standards. He found it "reasonable to conclude" that those levels were not significantly lower than at the time of the cut given the facts that asbestos particles had not "migrat[ed]" outside the immediate area and that people had been moving around in the hallway so as to "kick up" any particles that had settled. Award at 10-11. The Arbitrator also determined that even if the levels of asbestos exposure had been higher, there was no evidence that employees had been exposed for the time periods required by the regulations.
Based on the foregoing, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union asserts that the Arbitrator's finding that there was no statutory violation during the removal of the wall "disregards applicable statutory law, rule and regulation."(9) Exceptions at 9. The Union claims that the Arbitrator erred in sustaining the Agency's analysis of the wall as a system. According to the Union, the Arbitrator's application of the EPA clarification was inconsistent with the mandates of NESHAP, 40 C.F.R. pt. 61, subpt. M, because the finding that the joint compound was 6 percent asbestos required that the wall be point counted.
The Union also contends that the Arbitrator erred in finding that the level of asbestos exposure from the cutting of the doorway did not exceed OSHA standards. The Union argues that OSHA regulations required that the air be monitored during the cutting of the doorway, and that the failure of the Agency to conduct such monitoring resulted in a lack of evidence as to the actual level of asbestos exposure at the time of the cut. Thus, the Union asserts that it should have been given the "benefit of the doubt" as to whether the asbestos exposure levels had exceeded the OSHA standards.(10) Exceptions at 13.
B. Agency's Opposition
The Agency contends that the Union has failed to show that the award violates EPA regulations and standards. The Agency submits that the Arbitrator properly applied the EPA clarification in determining the level of asbestos in the wall. According to the Agency, when a wall is analyzed for asbestos, it must first be looked at as a wall system, and point counting is required only where the level of asbestos in the wall system is greater than 1 percent but less than 10 percent.
The Agency argues that the Union's contention that the Arbitrator erred in finding that OSHA standards had not been exceeded when the doorway was cut is "mere disagreement with the conclusions of the [A]rbitrator." Opposition at 4. The Agency contends that because the cutting of the door was not part of an asbestos abatement project, air monitoring was not required. According to the Agency, the Arbitrator utilized the proper OSHA standards in determining that employees were not exposed to levels of asbestos that warrant medical surveillance.
IV. Analysis and Conclusions
Where a party's exceptions involve an award's consistency with law, the Authority must review the questions of law raised by the Arbitrator's award and the Union's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). An arbitration award is deficient under section 7122(a)(1) of the Statute only if it is contrary to law, rule or regulation. Disagreements with an arbitrator's findings of fact and evaluation of evidence and testimony will not establish that an award is deficient. American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, Washington, D.C., 51 FLRA 27, 32 (1995).
The Arbitrator's award is based on application of asbestos standards and procedures set forth in OSHA regulations, 29 C.F.R. § 1926.1101, et seq., and EPA regulations, 40 C.F.R. §§ 61.141, 763, et seq., which were incorporated into the parties' agreement. The parties do not dispute the applicability of these regulations. Rather, the Union is alleging that the Arbitrator applied the regulations in a way that is inconsistent with law. The Union's first exception, as to the wall removal, involves the application of an EPA regulation and a clarification of that regulation. The Union's second exception, as to the cutting of the doorway, involves OSHA standards regarding asbestos exposure levels and whether or not those standards were exceeded.
1. The Arbitrator's Application of the EPA Clarification to the Wall Removal is Consistent with Law
EPA regulations require that, where the asbestos content of material is greater than 1 percent but "less than 10 percent as determined by a method other than point counting by polarized light microscopy (PLM), [the Agency must] verify the asbestos content by point counting using PLM." 40 C.F.R. § 61.141. In response to numerous questions concerning the analysis of samples containing multiple layers, the EPA issued a clarification to the NESHAP final rule addressing how to analyze the level of asbestos in a wall. The clarification states that a wall should be measured as a system by taking a composite analysis of the percent of asbestos in the joint compound, tape, and wallboard. 59 Fed. Reg. 542. Where that composite analysis determines the level of asbestos to be in excess of 1 percent, the wall is classified as an asbestos containing material and the wall system must be point counted if the level of asbestos is less than 10 percent. 40 C.F.R. § 61.141.
We reject the Union's contention that the EPA clarification is not applicable in this case because the level of asbestos in the joint compound alone was enough to trigger point counting and asbestos abatement procedures. The clarification clearly states that a wall system should be examined as a whole. Moreover, even absent application of the clarification, there is nothing in the regulations preventing the Agency from analyzing the wall as a system. Therefore, it was appropriate for the Arbitrator to apply the clarification to the wall removal, and the finding that the wall system contained less than 1 percent asbestos eliminated the need to comply with asbestos NESHAP procedures.
Accordingly, we conclude that the award in regard to the wall removal is not deficient as inconsistent with law, rule, and regulation.
2. The Arbitrator's Award as to the Cutting of the Doorway is Consistent with Law
OSHA regulations provide that employers must ensure that employees are not exposed to an airborne concentration of asbestos that is in excess of 0.1 fiber per cubic centimeter of air as averaged over an 8-hour period. 29 C.F.R. § 1926.1101(c)(1). Employers must also ensure that employees are not exposed to an airborne concentration of asbestos in excess of 1.0 fiber per cubic centimeter of air as averaged over 30 minutes. 29 C.F.R. § 1926.1101(c)(2). Exposure that reaches or exceeds these levels violates OSHA standards and, pursuant to the parties' agreement, entitles exposed employees to medical surveillance.
The Union provides no support, and none is apparent, for its argument that, because there was no monitoring in place when the doorway was cut, employees should be given the "benefit of the doubt" in determining the level of exposure prior to the monitoring. Exceptions at 13. In this regard, the Arbitrator made a finding of fact that the level of asbestos exposure at the time of the doorway cut did not exceed the standards provided by OSHA in 29 C.F.R. § 1926.1101(c) and, even if it had, employees were not exposed to asbestos for the time periods required by the regulation. We defer to these findings of fact. See U.S. Department of Commerce, Patent and Trademark Office and National Treasury Employees Union, Chapter 243, 52 FLRA 358, 367 (1996). Consistent with this factual finding, there is nothing in the record to support a conclusion that the award is contrary to law.
Based on the foregoing, we conclude that the Arbitrator's award, finding that during the cutting of the doorway employees were not exposed to levels of asbestos warranting medical surveillance, is consistent with law.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Medical surveillance entitles an employee to medical examinations and consultations for a specific period of time at the expense of the employer. 29 C.F.R. § 1926.1101(m)(2) (1995).
2. Asbestos abatement procedures are the engineering controls and work practices that must be followed to reduce asbestos exposure levels during the construction, alteration, repair, maintenance, or renovation of structures that contain asbestos. See 29 C.F.R. § 1926.1101(a)(3) (1995); § 1926.1101(g). Asbestos exposure refers to the airborne concentration of asbestos to which an employee may be subjected. See 29 C.F.R. § 1926.1101(f)(1).
3. Specifically, Article 53-OCCUPATIONAL SAFETY AND HEALTH, Section 1, and Article 77-ASBESTOS, Sections 4 and 12 of the agreement incorporate standards set by Occupational Safety and Health Administration (OSHA) and Environmental Protection Agency (EPA) regulations. Award at 3-5.
Article 53, Section 1 provides, in relevant part, that:
The Employer shall abide by . . . regulations of the Assistant Secretary of Labor for Occupational Safety and Health and such other regulations as may be promulgated by appropriate authority.
Id. at 3.
Article 77 provides, in pertinent part, that:
Section 4. The Employer . . . must comply with all applicable OSHA, EPA, FAA, local, and state regulations regarding asbestos.
. . . .
Section 12. Bargaining unit employees who have been exposed to levels equal to or greater than OSHA action levels, will be eligible for medical surveillance programs paid for by the Employer, in accordance with OSHA standards/FAA directives.
Id. at 4-5.
4. 29 C.F.R. § 1926.1101(c)(1) and (2), which are incorporated into Article 77, Section 12 of the agreement, provide, in pertinent part, that:
(1) . . . The employer shall ensure that no employee is exposed to an airborne concentration of asbestos in excess of 0.1 fiber per cubic centimeter of air as an eight (8) hour time-weighted average . . . .
(2) . . . 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 . . . .
5. Based on the EPA standard incorporated into the agreement, if the wall contained more than 1 percent asbestos, then it would be classified as asbestos containing material and be removed in accordance with asbestos abatement and removal regulations. See 40 C.F.R. § 61.141 (1995); Award at 3-4.
6. Treating the wall system as a whole involves a composite analysis of the percentage of asbestos in the joint compound, tape, and wallboard. See 59 Fed. Reg. 542 (1994); Award at 7.
7. The EPA clarification, which states that it is intended to provide guidance to the NESHAP final rule codified at 40 C.F.R. pt. 61, subpt. M, states that:
When joint compound and/or tape is applied to wallboard it becomes an integral part of the wallboard and in effect becomes one material forming a wall system. Therefore, where a demolition or renovation impacts such a wall system, a composite analysis of the wall system (percent of asbestos in the joint compound, tape and wallboard) should be conducted. If the analysis shows an asbestos content of greater than one percent . . . then the activities would be subject to asbestos NESHAP.
59 Fed. Reg. 542
8. "Point counting" is a method utilized to determine the specific level of asbestos in a particular material that contains greater than 1 percent asbestos. NESHAP requires that "[i]f the asbestos content [in a material] is [greater than 1 percent but] less than 10 percent as determined by a method other than point counting . . . [the Agency must] verify the asbestos content by point counting . . ." 40 C.F.R. § 61.141 (providing definitions for 40 C.F.R. pt. 61, subpt. M).
9. The Union also advances, without further elaboration, a third incident in which the Agency allegedly violated asbestos removal procedures. In addition, the Union contends that the Agency violated a Memorandum of Understanding (MOU) that was executed by the parties allegedly regarding asbestos safety procedures. The record of this case provides no basis on which to conclude that either the incident or the MOU were raised as issues to the Arbitrator, and they were not addressed by the Arbitrator. Therefore, neither issue can be considered by the Authority. See 5 C.F.R. § 2429.5.
10. The Union also asserts that the Arbitrator's decision is contrary to law, rule or regulation because he did not find that the Agency acted improperly by not conducting air monitoring at the time the doorway was cut. There is nothing in the record to show that this issue was raised to the Arbitrator, and the Arbitrator did not address it in his award. Thus, the Authority cannot consider the issue. See 5 C.F.R. § 2429.5. Moreover, even assum