American Federation of Government Employees, Local 2635 (Union) and U.S. Department of the Navy, Naval Computer Telecommunications Station, Cutler, Maine (Agency)

[ v56 p114 ]

56 FLRA No. 11

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2635
(Union)

and

U.S. DEPARTMENT OF THE NAVY
NAVAL COMPUTER TELECOMMUNICATIONS
STATION, CUTLER, MAINE
(Agency)

0-AR-3126

_____

DECISION

February 29, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator William Croasdale 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 sustained in part and denied in part a grievance seeking environmental differential pay (EDP) for bargaining unit employees, finding that 14 out of 56 grievants were eligible for EDP as a result of asbestos exposure. For the following reasons, we conclude that the Union has not established that the award is deficient. Accordingly, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The Union requested that the Agency provide EDP to 56 past and present employees, to compensate them for exposure to asbestos. The grievance disputing the denial was submitted to arbitration. The Arbitrator issued a preliminary award, determining that the grievance was timely filed. Subsequently, the Arbitrator set forth the issue as follows:

Are the individual claimants covered by the Union's grievance entitled to [EDP] as prescribed by 5 CFR 550, Subpart 1, Appendix A and 5 CFR 532, Subpart E, Appendix A for their having worked in area(s) where asbestos fibers are in airborne concentration, and if so, what shall the remedy be?

Award at 2.

      The Arbitrator found that some claimants were excluded from the grievance. In particular, he determined that commissary employees were not part of the bargaining unit and were covered by a separate negotiated grievance procedure. He also determined that retirees were excluded because they were not a part of the bargaining unit at the time the grievance was filed and, as a result, their claims were untimely. The Arbitrator also found that firefighters and security personnel were excluded on the ground that they had been provided with hazardous duty pay.

      The Arbitrator concluded that with respect to the remaining General Schedule (GS) and Wage Grade (WG) employees, there was "no disagreement by the parties that there has been some exposure to asbestos." Id. at 29. The Arbitrator also stated that the Agency had "adopted 0.1 fibers/cc. as the standard to be used." Id. at 30. The Arbitrator found that this standard -- the Occupational Safety and Health Act (OSHA) permissible exposure level -- was reasonable and appropriate, in part because, according to the Arbitrator, the Union provided no medical evidence to support its claim that OSHA standards should not be used.

      Applying the OSHA standard, the Arbitrator found that only 14 of the grievants were exposed to asbestos above the OSHA level. According to the Arbitrator, the Agency reviewed work orders, interviewed supervisors, spoke with claimants, and documented hours of exposure concerning the 14 employees. According to the Arbitrator, "evidence to support the claims of other workers was not documented." Id. at 31. In accordance with the Agency's offer to pay employees documented to have had asbestos exposure, the Arbitrator directed the Agency to pay each of the 14 grievants a specific amount of EDP. [ v56 p115 ]

III.     Positions of the Parties

A.     Union's Exceptions

      The Union disputes the Arbitrator's determination that commissary workers and retirees should be excluded from the grievance. The Union argues that the grievance properly included these employees because they were employed by the Agency during the time span covered by the grievance. The Union also asserts that the Arbitrator, who in an earlier decision found that the grievance was timely filed, cannot now exclude grievants on the ground of timeliness.

      The Union also argues that the Arbitrator's award is contrary to an Agency regulation that, according to the Union, restates Appendix A of 5 C.F.R. Part 532.511. The Union contends that, as the regulation provides no acceptable level of asbestos exposure, the Arbitrator erroneously stated that the Agency had adopted a standard of 0.1 fibers/cc. The Union also argues that, as the Arbitrator acknowledged the Union's argument that there was no safe level of asbestos exposure, his statement that the Union offered no medical evidence to support its claim on this point is incorrect.

      The Union contends that the Arbitrator "establish[ed] a level of payment inconsistent with the Back Pay Act." Exceptions at 4. The Union also argues that the Arbitrator failed to address the Union's requested remedy of medical testing for the grievants and their families. Finally, the Union contends that the Arbitrator experienced several "personal, family related hardships" during the hearing and that these matters "drew his attention" away from the proceedings. Id.

B.     Agency's Opposition

      The Agency argues that the Union's objection to the Arbitrator's exclusion of certain claimants does not demonstrate that the award is deficient. The Agency also argues that the Union failed to cite any law, rule, regulation, or FLRA decision in support of its claim that the award is contrary to law. The Agency contends that the Union has not met its burden to demonstrate that the Agency's decision to follow the OSHA permissible exposure level was "erroneous and/or in conflict with existing regulations." Opposition at 4. Finally, the Agency asserts that the Union's allegation that the Arbitrator has "misinterpreted certain 'facts' in the case . . . is not supported by any evidence." Id.

IV.     Analysis and Conclusions

A.     The Arbitrator did not improperly exclude eligible grievants.

      Awards resolving questions of procedural arbitrability are subject to challenge only on grounds other than those that directly challenge the Arbitrator's determination of procedural arbitrability itself. See U.S. Department of the Treasury, United States Mint, Philadelphia, Pennsylvania and Fraternal Order of Police, Lodge F1-PA, 51 FLRA 1683, 1685 (1996). Such grounds include bias on the part of the arbitrator or a showing that the arbitrator exceeded his authority. Id.

      The Union disputes the Arbitrator's findings that commissary workers do not have access to the grievance proceedings, because they are in another bargaining unit, and that the grievance of retirees is untimely, "since they were not a part of the bargaining unit at the time of the submission of the grievance, as specified by the" collective bargaining agreement. Award at 29. The Authority has specifically held that "contentions that the grievance arose when the grievant was still a member of the bargaining unit" are a challenge to the Arbitrator's procedural arbitrability determination under the parties' agreement. American Federation of Government Employees, Local 1931 and U.S. Department of the Navy, Naval Weapons Station, Concord, California, 50 FLRA 279, 281 (1995)(AFGE, Local 1931). As such, we find that the Union'sa rgument does not provide a basis for finding the award deficient. [n2] 

B.     The award is not contrary to law.

      Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it is contrary to any law, rule, or regulation. In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised by an arbitrator's award or a 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)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. [ v56 p116 ]

      The Union argues that the Arbitrator erred in finding that the Agency "adopted" the OSHA standard because, according to the Union, pertinent regulatory wording -- requiring payment where asbestos "may expose employees to potential illness" -- deems all asbestos to be hazardous. Exceptions at 3-4 (quoting 5 C.F.R. Part 532.511, Appendix A). [n3]  However, the regulation cited by the Union "does not set forth any specified level of exposure required for the payment of EDP." American Federation of Government Employees, Local 2004 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region East, New Cumberland, Pennsylvania, 55 FLRA 6, 10 (1998). As such, the Authority has consistently held that parties are free to negotiate, or determine through arbitration, the quantitative level of asbestos exposure to be used for employee entitlement to EDP. See, e.g., U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and American Federation of Government Employees, Local 3961, 53 FLRA 46, 51 (1997); VAMC, 51 FLRA at 623-24. See also U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and American Federation of Government Employees, 53 FLRA 46, 51 (1997) (exceptions denied to award where arbitrator determined that any level of exposure to asbestos satisfied the threshold quantitative level); American Federation of Government Employees, Local 2250 and U.S. Department of Veterans Affairs, Medical Center, Muskogee, Oklahoma, 52 FLRA 320, 321, 323 (1996) (exceptions denied to award where arbitrator determined that exposure to asbestos in excess of 0.1 fibers/cc satisfied the threshold quantitative level).

      Consistent with this precedent, the Arbitrator had the authority, absent the parties' agreement on a level of exposure, to determine the level of exposure for which EDP is payable. The Arbitrator determined, in this connection, that the Agency had both "adopted" and applied the OSHA standard. Award at 29. The Arbitrator recognized that other arbitrators have rejected OSHA standards in decisions where unions have supplied medical evidence to support their position, but found that the Union in this case did not offer any medical evidence to warrant deviating from the OSHA standards.

      Other than its assertion that Appendix A to Part 532 does not specify a minimum exposure level, the Union has not alleged that the parties agreed to such a level. As such, we find that the Union has not demonstrated that the award is contrary to law. [n4] 

C.     The award is not based on a nonfact.

      The Union contends that the Arbitrator disregarded testimony, and instead relied on inaccurate records of the Agency, in determining entitlement to EDP. We construe this argument as a claim that the award is based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying [ v56 p117 ] the award is clearly erroneous, but for which the arbitrator would have reached a different result. See 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, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

      In this case, the Arbitrator found that only 14 grievants had been exposed to asbestos above the OSHA level. The Union disputes this factual determination. However, the record establishes that this matter was disputed before the Arbitrator. Since the Arbitrator's factual finding resolved a matter disputed by the parties, there is no basis on which to find the award deficient as based on a nonfact.

D.     The Arbitrator did not exceed the scope of his authority.

      The Union asserts that the Arbitrator failed to address the Union's requested remedy that full medical testing for the grievants and their families be conducted. We construe this argument as a claim that the Arbitrator exceeded his authority.

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995).

      It is well established that, in the absence of a stipulated issue, an arbitrator's formulation of the issue is accorded substantial deference. See American Federation of Government Employees, Local 916 and Defense Distribution Depot, Oklahoma City, Oklahoma, 50 FLRA 244, 246-47 (1995). In this case, there is no indication in the record that the parties stipulated the issue to be resolved, and the issue as formulated by the Arbitrator did not encompass the subject of medical testing. Moreover, the award is directly responsive to the issue as formulated by the Arbitrator. As such, the Union has failed to establish that the award is deficient because the Arbitrator exceeded his authority.

E.     The Arbitrator did not fail to conduct a fair hearing.

      The Union argues that the Arbitrator experienced several "personal, family related hardships" during the hearing and, therefore, these matters "drew his attention" away from the proceedings. Exceptions at 4. We construe this contention as a claim that the Arbitrator failed to conduct a fair hearing.

      An award will be found deficient on the ground that an arbitrator failed to provide a fair hearing where a party demonstrates that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceeding 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). It is well established that an arbitrator has considerable latitude in conducting the hearing. See U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, Local 127, 53 FLRA 390, 396 (1997).

      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. As such, the exception does not establish that the award is deficient.

V.     Decision

      The Union's exceptions are denied. [ v56 p118 ]


Opinion of Chairman Wasserman, concurring in part and dissenting in part:

      The Award does not establish that the Arbitrator's determination regarding retirees is a matter that concerns procedural arbitrability. The Arbitrator stated that "Retirees are eliminated because of lack of timeliness of their claims since they were not a part of the bargaining unit at the time of the submission of this grievance as specified by the CBA." Award at 29. However, as noted by the Union in its Exceptions, the Arbitrator had previously made a determination that the grievance was timely, and it is clear that the grievance included the retirees. Moreover, the relevant provisions of the collective bargaining agreement quoted by the Arbitrator in the Award make no mention of the grievance procedure and time requirements. Thus, it appears that the reference to "timeliness" may be a misnomer, notwithstanding the Agency's use of the term in its argument on the merits.

      The case relied upon by the majority to support its position with respect to retirees is distinguishable on its facts. In American Federation of Government Employees, Local 1931 and U.S. Department of the Navy, Naval Weapons Station, Concord, California, 50 FLRA 279 (1995), the grievant had transferred from the bargaining unit, to another agency, and then subsequently grieved the failure of his prior agency to hire him back into a vacancy. There was no determination that the grievant was a member of the unit when his claim arose. In contrast, in the instant case, there is no dispute that the retirees were part of the bargaining unit when their claim arose.

      In assessing the definition of "employee" under our Statute, the Federal Circuit Court determined that "federal employees whose claims were grievable when they arose continue to have access to the grievance procedures after the employee leaves the bargaining unit, unless the collective bargaining agreement provides otherwise." Aamodt v. United States, 976 F.2d 691, 692 (Fed. Cir. 1992) (Aamodt), citing Muniz v. United States, 972 F.2d 1304, 1312 (Fed. Cir. 1992) (Muniz). Unlike the majority, I do not find the Federal Circuit's views on a matter of law to be inapplicable here. While it is true that the Federal Circuit does not apply the procedural arbitrability rule to its review of the arbitration appeals uniquely within its jurisdiction, I do not think that its interpretation of the term "employee," as defined in section 5 U.S.C. § 7103(a)(2), should be ignored. Moreover, the holding in Aamodt is made with reference to the Supreme Court's determination that there is a strong presumption in favor of arbitrability. Aamodt, 976 F.2d at 692, citing Muniz and Nolde Brothers., Inc. v. Local 358, Bakery & Confectionery Workers Union, AFL-CIO, 430 U.S. 243, 255 (1977). Accordingly, questions regarding the ability to file a grievance can be raised as either a point of contract interpretation, where we defer to the arbitrator, or as a point of law, where we apply de novo review.

      In light of the Arbitrator's reference to timeliness, in contradiction to his earlier award on that issue, I would remand the case to the parties to submit to the Arbitrator the question of the basis for his determination that the retirees could not have their claims reviewed. If the exclusion of retirees is based only upon their no longer being in the unit as described in the certification, and reiterated in the collective bargaining unit, I would apply the legal concepts of Aamodt and Muniz. In that regard, I note that the collective bargaining agreement calls for its administration to be "governed by existing or future laws . . . ." Award at 4, quoting Article 3. Thus, absent contract language other than a description of the unit and its reference to "employees", I would hesitate to find the disenfranchisement of retirees to be a matter of procedural arbitrability. On the other hand, if the Arbitrator interpreted terms of the collective bargaining agreement pertaining to the grievability of retirees' claims, review of any exception to his interpretation would be done under our precedent on procedural arbitrability, cited above at xxx, or our precedent on "essence". See, e.g., United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).

      With the exception of the foregoing and my view that a remand is appropriate on the status of the retirees, I agree with the majority's analysis and conclusions.



Footnote # 1 for 56 FLRA No. 11

   Chairman Wasserman's dissenting opinion appears at the end of this decision.


Footnote # 2 for 56 FLRA No. 11

   We do not agree with our dissenting colleague that factual differences between AFGE, Local 1931 and this case render inapplicable the Authority's specific holding in that case, or render inapplicable the doctrine of procedural arbitrability. The procedural arbitrability doctrine holds that "[o]nce it is determined . . . that the parties are obligated to submit the subject matter of a dispute to arbitration, `procedural' questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator." John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964); see Bell Atlantic-Pennsylvania v. Communications Workers of America , 164 F.3d 197, 201-02 (3d. Cir. 1999). In this case, the parties submitted their dispute to arbitration and the arbitrator determined that, while the subject matter of the dispute was arbitrable, the particular claims of the retired grievants were not timely under the parties' agreement. We find no basis for concluding that the Judge's finding that these claims were untimely was a "misnomer," Dissent at 1, as the Judge adopted a specific argument raised by the Agency. Award at 6, 29. Further, the dissent's reliance on precedent of the U.S. Court of Appeals for the Federal Circuit for the proposition that the arbitrability of employee claims may be raised as a "point of law" is unavailing. Dissent at 1. The Arbitrator resolved the timeliness issue as a matter of contract interpretation, not as a matter of law. In addition, unlike the Authority, that court is not bound to review arbitration decisions "on other grounds similar to those applied by Federal courts in private sector labor-management relations[,]" 5 U.S.C. § 7122(a)(2), and it has specifically refused to follow the procedural arbitrability doctrine when reviewing federal sector arbitrations. See Gunn v. Veterans Administration Medical Center, Birmingham, Alabama, 892 F.2d 1036, 1037 n.1 (Fed. Cir. 1990). See also U.S. Department of the Army, Fort Monroe, Virginia and National Association of Government Employees, Local R4-11, 35 FLRA 1187, 1192 (1990) (noting that Authority reviews arbitration decisions pursuant to 5 U.S.C. § 7122(a) and not 5 U.S.C. § 7703(c), the standard used by the U.S. Court of Appeals for the Federal Circuit).


Footnote # 3 for 56 FLRA No. 11

   We note that Appendix A of 5 C.F.R. Part 532, Subpart E applies only to WG employees, and that a separate regulation, Appendix A to 5 C.F.R. Part 550, Subpart I, applies to GS employees, including some of the employees covered by the instant grievance. The regulation applicable to GS employees specifically incorporates the OSHA standard. See id. However, as the application of the Part 550 standard to the GS employees included in this grievance has not been raised by the parties and would not affect the disposition of the Union's exceptions, we do not address this issue further in this decision.


Footnote # 4 for 56 FLRA No. 11

   Although the Union asserts that the Arbitrator "establish[ed] a level of payment inconsistent with the Back Pay Act," Exceptions at 4, read in context the substance of this allegation is that the evidence submitted at the hearing supported a grant of back pay greater than that awarded by the Arbitrator. Accordingly, we construe the assertion as raising a nonfact claim. We note that the Arbitrator