53:0046(11)AR - - Red River Army Depot, Texarkana, TX and AFGE Local 3961 - - 1997 FLRAdec AR - - v53 p46



[ v53 p46 ]
53:0046(11)AR
The decision of the Authority follows:


53 FLRA No. 11

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE ARMY

RED RIVER ARMY DEPOT

TEXARKANA, TEXAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3961

(Union)

0-AR-2762

_____

DECISION

June 24, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Wallace B. Nelson filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator found that certain employees were entitled to receive environmental differential pay (EDP) and interest for exposure to asbestos. For the following reasons, we modify the portion of the award insofar as it orders EDP for General Schedule (GS) employees. We deny the Agency's remaining exceptions.

II. Background and Arbitrator's Award

In 1964, the walls and doors in a particular building (Building 91S) were sprayed with asbestos and the pipes were insulated with asbestos. In 1981, the Agency enclosed the asbestos with a material called "Hydro-Ban." In 1986, the Agency covered the walls with plywood panels and installed a drop ceiling. In 1990, the Agency sealed cracks in the plywood and, in 1993, an outside company replaced damaged tiles.

Testing at the Agency revealed some airborne asbestos in 1980, 1989, 1990, and 1993, and no airborne asbestos in 1976 and 1986.(1) No testing was performed from 1977 through 1979, 1981 through 1985, 1987, 1988, and 1991.

According to the Union, it became aware that there was a serious asbestos problem in Building 91S after the Agency requested an on-site survey in 1989 from the Occupational Safety and Health Administration (OSHA). Two air samples taken by OSHA found airborne asbestos. As a result, the Union requested the Agency to pay EDP to those employees exposed to asbestos in Building 91S. After the Agency refused, the Union filed a grievance in 1990 requesting backpay and interest for those employees exposed to asbestos. The Arbitrator framed the issue as follows:

Have the employees working in Building 91S . . . been exposed to airborne concentrations of asbestos fibers warranting Environmental Differential Pay? If so, from and to what dates? If the answer to this first question is 'yes,' does it apply also to the other buildings [at the Agency]?

Award at 1.(2)

The Arbitrator addressed whether the Agency had complied with Federal Personnel Manual (FPM) Supplement 532-1, Appendix J, paragraph 16,(3) which describes the work situation under which EDP is payable for exposure to asbestos. Based on the record before him, he concluded that "[t]he scientific evidence is overwhelming [that] there is no asbestos that is not dangerous." Id. at 34. The Arbitrator found that the only way for an agency to ensure that there is no exposure is to do periodic testing and provide protective clothing and equipment. The Arbitrator concluded that the Agency did neither.

The Arbitrator also found that the fact that employees had been exposed to asbestos was demonstrated by air samples taken in 1980, 1989, 1990, and 1993 that revealed airborne asbestos. The Arbitrator stated that "[c]learly, there has been a problem in [Building 91S] from the effective date of FPM 532-1 on March 9, 1975, and it clearly continues to exist as evidenced by the positive [asbestos] test in 1993." Id. at 41. The Arbitrator concluded that "[t]here is simply no question but that every full-time employee working in [Building 91S] has been exposed to dangerously high levels of asbestos." Id.

The Arbitrator determined that the Agency's measures to prevent airborne asbestos in Building 91S did not practically eliminate the potential for illness or injury. In particular, the Arbitrator found that although the Agency sealed cracks in the plywood in Building 91S in 1990, this did not resolve the leakage problem. In this regard, the Arbitrator noted that an Agency witness testified that the Agency sealed the leaks "'for appearances sake, and not to complete the work, that it was not done to prevent asbestos from leaking out[.]'" Id. at 37, citing hearing transcript at 1140. In addition, the Arbitrator found that neither employees doing asbestos repair work nor employees working in Building 91S were provided with protective devices during the repairs.

The Arbitrator concluded that the Agency failed to comply with Appendix J in that every employee regularly assigned to and working in Building 91S has been and still is "'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 illness or injury[.]'" Id. at 42 (quoting Joint Exhibit 1 at 16). He ordered the Agency to pay EDP to all employees who have been and/or currently are working full-time in Building 91S since March 9, 1975. He also found that all of these employees are entitled to interest on the EDP under the Back Pay Act for whatever time period that the Back Pay Act currently specifies.(4)

III. Positions of the Parties

A. Agency's Exceptions

The Agency argues that the award is contrary to law and Government-wide regulation. Citing O'Neall v. United States, 797 F.2d 1576 (Fed. Cir. 1986) (O'Neall) and Allen Park Veterans Administration Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 28 FLRA 1166 (1987), the Agency contends that an arbitrator must find that there is a quantitative level of airborne asbestos fibers present in order to determine that employees are entitled to EDP under Appendix J. The Agency asserts that the Arbitrator did not find "that employee[s] were 'exposed' to any quantitative level of airborne concentrations of asbestos for the majority of the years in which he order[ed] backpay, nor did he find that during those years the level of any airborne concentrations of asbestos [was] at a threshold quantitative level related to potential illness." Exceptions at 2.

Further, the Agency contends that, under O'Neall, "the Arbitrator failed to properly consider whether actions undertaken by the Agency practically eliminated the potential for illness or injury[,] as required by . . . Appendix J[.]" Id. at 6. The Agency asserts that it took actions that diminished the potential for release of asbestos fibers and that the award is deficient as contrary to law, because the Arbitrator failed to properly consider whether safety measures undertaken by the Agency practically eliminated the risk of potential illness or injury.

Additionally, the Agency contends that the award is deficient because it is based on a nonfact. In this regard, the Agency argues that the Arbitrator "ignored the tests that the Agency undertook [that] were negative, and assumed that for those years, as well as the years in which testing was not undertaken, the results [that] would have been manifested would have been positive for asbestos." Id. at 9.

Finally, citing Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 35 FLRA 14 (1990), the Agency argues that the award is contrary to law insofar as it provides hazardous duty pay for GS employees. The Agency contends that before June 8, 1993, when applicable regulations were revised, there was no authority to pay hazardous duty pay to GS employees for asbestos exposure.

B. Union's Opposition

The Union asserts that the award is consistent with law and regulation. In this regard, the Union contends that, in U.S. General Services Administration, Kansas City, Missouri and American Federation of Government Employees, Council 236, 38 FLRA 438 (1990), the Authority denied an agency's exception to an EDP award where the agency claimed that the arbitrator had failed to make a specific finding of a quantitative level of exposure to asbestos related to potential illness or injury. The Union argues that, based on the Authority's denial of the agency's exception in GSA, the Arbitrator was correct in this case that "any exposure would be compensable." Opposition at 6.

The Union also contends that the Arbitrator properly considered whether safety measures practically eliminated the risk for potential illness or injury. The Union relies on the Arbitrator's finding that "'[i]t is undisputed that the Agency never provided the employees with protective devices or safety measures which have practically eliminated the potential for such personal illness or injury.'" Id. at 7 (quoting Award at 34, 37). The Union also asserts that the Arbitrator's award is not based on a nonfact, contending that, contrary to the Agency's assertion, the Arbitrator clearly found, based on the record before him, that the employees in Building 91S were exposed to asbestos during the period in question.

Finally, the Union agrees with the Agency that GS employees were not entitled to receive hazardous duty pay for exposure to asbestos prior to June 8, 1993, the date on which GS employees became eligible for hazardous duty pay based on such exposure. However, the Union contends that, consistent with the award, GS employees are entitled to hazardous duty pay retroactive to June 8, 1993.

IV. Analysis and Conclusions

A. The Award Is Not Contrary to Law or Regulation

In circumstances where a party's exceptions involve an award's consistency with law, we review the question of law raised by the arbitrator's award and the party'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)).

Appendix A, which is 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 2280 and U.S. Department of Veterans Affairs Medical Center, Iron Mountain, Michigan, 51 FLRA 620, 623 (1995); 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).

Parties are free to negotiate, consistent with law and regulation, the quantitative level of asbestos exposure that would be used in assessing employee entitlement to EDP. American Federation of Government Employees, Local 2250 and U.S. Department of Veterans Affairs, Medical Center, Muskogee, Oklahoma, 52 FLRA 320, 323 (1996). However, "[i]n the absence of a mandated quantitative level set by applicable law or regulation or otherwise agreed to by the parties," the arbitrator is free to determine the quantitative level of exposure for the payment of EDP. Allen Park Veterans Administration, Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091, 1101 (1990). An arbitrator's finding "that there is a potential for asbestos-related disease to occur at any level of exposure and that there is no safe threshold level of exposure . . . constitutes an appropriate determination of quantitative levels for purposes of entitlement to EDP . . . ." Id. (emphases added).

There is no evidence in this case that the parties negotiated a quantitative level for assessing employee entitlement to EDP. Accordingly, the Arbitrator was free to determine 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.

In finding that "[t]he scientific evidence is overwhelming [that] there is no asbestos that is not dangerous[,]" Award at 34, the Arbitrator effectively determined that any level of exposure to asbestos satisfied the threshold quantitative level. He further concluded that the employees working in and doing repairs in Building 91S since 1975 were "exposed to dangerously high levels of asbestos." Id. at 41. As there was no quantitative level negotiated by the parties, the Arbitrator was free to determine that the "dangerously high levels" of exposure of asbestos qualified the employees for the payment of EDP. Id. Therefore, this aspect of the award is not contrary to law or regulation.

We also reject the Agency's argument that "the Arbitrator failed to properly consider whether actions undertaken by the Agency practically eliminated the potential for illness or injury[.]" Exceptions at 6. The award demonstrates that the Arbitrator assessed whether safety measures practically eliminated the risk for potential illness or injury. In this regard, the Arbitrator found that: (1) the Agency never provided employees with protective devices or safety measures which would have practically eliminated the potential for personal illness or injury; (2) although the Agency covered the asbestos with plywood and ceiling tiles, asbestos still leaked through cracks and fell from the ceiling, exposing employees to airborne asbestos; and (3) the measures taken by the Agency did not eliminate the potential for personal illness or injury to those employees working in Building 91S or those employees doing asbestos repairs. The Arbitrator determined that safety measures taken by the Agency did not practically eliminate the risk for potential illness or injury. Therefore, the award is not contrary to law, rule, or regulation. Accordingly, we deny the exception.

B. The Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). However, we will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

The Agency asserts that the Arbitrator's findings ignored negative tests that the Agency took and were in error in assuming that asbestos would be positive in the years in which testing was not undertaken. The Agency argues that these findings are nonfacts. However, it is clear that the parties disputed before the Arbitrator the results of the tests and whether employees were exposed to asbestos during the period in question. Consequently, the Agency's assertions provide no basis for finding the award deficient as based on a nonfact. Id. Accordingly, we deny the exception.

C. The Portion of the Award Ordering Hazardous Duty Pay for GS Employees Prior to June 8, 1993, Is Deficient

Hazardous duty pay for GS employees is governed by 5 U.S.C. § 5545(d) and its implementing regulations contained in 5 C.F.R. Part 550, Subpart I, Appendix A, which became effective on June 8, 1993. Prior to June 8, 1993, GS employees had no entitlement to hazardous