International Association of Machinists and Aerospace Workers, District Lodge 725, Local Lodge 726 (Union) and United States, Department of the Navy Naval Air Depot, North Island (Agency)

[ v60 p196 ]

60 FLRA No. 44

INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS
DISTRICT LODGE 725,
LOCAL LODGE 726
(Union)

and

UNITED STATES
DEPARTMENT OF THE NAVY
NAVAL AIR DEPOT, NORTH ISLAND
(Agency)

0-AR-3824

_____

DECISION

August 26, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Joseph F. Gentile filed by the Union under § 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 the Agency violated the parties' collective bargaining agreement (CBA) when it terminated an 8% environmental differential pay (EDP) for unit employees employed in the Agency's Paint Complex. For the following reasons, we deny the exceptions.

II.     Background

      The grievants are painters who work in the Agency's Paint Complex, particularly, Building 466. The painters were receiving an 8% environmental pay differential for poison exposure. Subsequently, an Agency manager requested the Occupational Safety and Health Department (OSHD) for a hazard assessment in Building 466. The request was acted upon by the OSHD's manager who issued a report (OSHD Report) that concluded that "`[p]rotective measures are in place to control exposures and have practically eliminated the hazards that exist.'" Award at 10 (quoting the OSHD Report). The OSHD Report stated that "`[p]eriodic [ v60 p197 ] monitoring of hazardous chemicals indicates controls currently in place are effective in maintaining exposure below the permissible exposure level.'" Id. The report also stated that "[i]n view of the above, and since safety measures can practically eliminate the potential for exposure, the granting of environmental pay for safety and health concerns is not recommended." Id.

      This conclusion was concurred in by an Industrial Hygienist who had conducted surveys at the Agency's facility and who testified that chemical hazards have practically been eliminated by personal protective equipment (PPE).

      Later, an Agency supervisor informed the Union of the Agency's intent to curtail the 8% EDP for the subject employees. Afterwards, the Agency, by memorandum, informed the painters that effective 15 calendar days from receipt of the notice, the 8% environmental pay for poison exposure would be terminated. The memorandum stated that the reason for the "termination is that the hazard has been practically eliminated." Id. at 11-12. Subsequently, the Union filed a grievance over the Agency's decision to discontinue the 8% EDP alleging that the Agency violated Article 13, Sections 17 and 18 of the CBA because "[m]anagement terminated EDP while hazardous conditions still remain[; c]hemical hazards have not been practically eliminated." [n1]  Id. at 12. The matter was submitted to arbitration and the Arbitrator framed the issue as follows:

Did the [Agency] violate the [CBA] when it terminated the 8% environmental differential pay for the affected employees in the Paint Complex, namely Building 466?

Id. at 19-20.

      The Arbitrator found that Section 18 of Article 13 of the CBA allows management to withdraw the authorization for EDP "`[w]hen personal protective devices or engineering controls are later provided or developed which will effectively control a previously authorized pay situation.'" Id. at 20 (quoting Article 13, Section 18). The Arbitrator found that the evidence revealed that there has been an ongoing problem with respect to EDP in the Paint Complex and that this work area had been subject to annual monitoring and other inquiries.

      The Arbitrator noted the testimony of an Agency witness who testified concerning the illustrative examples set forth in the Office of Personnel Management (OPM), Federal Wage System Operating Manual (The OPM Manual), Appendix J, for the payment of EDP for poisons creating a high degree hazard. [n2]  According to the Arbitrator, this witness, whose testimony he credited, testified that she found none of the examples set forth in the Appendix applicable to the work situations typically encountered by the Painters in Building 466. The Arbitrator found that an inquiry was made by the Aircraft Services Manager and a study was conducted by OSHD. The Arbitrator found that OSHD issued a report that was not "controverted," finding that "protective measures are in place to control exposures and have practically eliminated the hazards that exist[.]" Id. at 21, 20. The Arbitrator found that based on the OSHD Report management decided to discontinue the 8% EDP and notified the Union and affected employees consistent with the parties' CBA.

      According to the Arbitrator, testimony of affected employees and the Union revealed that both felt strongly that the discontinuance of EDP was improper under the CBA. However, the Arbitrator found that the record did not support this testimony. The Arbitrator found that the "record as a whole," both testimonial and documentary, supported the Agency's decision to discontinue EDP. Accordingly, the Arbitrator found that the Agency did not violate the CBA when it terminated the 8% EDP for the affected employees. Therefore, he denied the grievance.

III.      Positions of the Parties

A.     Union

      The Union asserts that the award is contrary to law, namely, the OPM Manual, Subchapter S8-7(g)(3) and Appendix J. [n3]  Referring to the testimony of an Agency witness with respect to Appendix J, the Union asserts that the Arbitrator erred in accepting this witness' [ v60 p198 ] testimony that in her "`opinion, she did not find any of the examples [set forth in Appendix J for the payment of EDP as it concerns poisons creating a high degree hazard] that would apply to the work situations typically encountered by the [p]ainters in Building 466.'" Exceptions at 4 (quoting Award at 19). According to the Union, reliance on such evidence is inconsistent with the OPM Manual, S8-7 because this section "permits the use of the collective bargaining process to determine the local coverage of Appendix J[,]" and the award does not leave the determination of local coverage to local determination. Id. at 4. Citing Authority precedent, the Union asserts that it is "well established that the specific work situations for which an environmental differential is payable are left to local determination." Id.

      Referring to other Agency witnesses' testimony concerning the term "practically eliminated," the Union asserts that the Arbitrator considered the witnesses' explanation of this term to be "equivalent to the term `practically eliminated' in Appendix J." Id. at 5. The Union asserts that the Arbitrator erred in his understanding of this term and how it is applied because he failed to recognize that OPM Manual, S8-7(g)(3) and Appendix J permit the use of collective bargaining to determine local coverage of Appendix J. Referring to certain Authority precedent, the Union asserts that the term "practically eliminated" is negotiable. Therefore, the Union argues that the award is inconsistent with the OPM Manual, S8-7(g)(3) and Appendix J.

      The Union further asserts that the Arbitrator failed to recognize that the categories outlined in Appendix J and the term "practically eliminated" were negotiated in August 1997 when the Agency authorized 8% EDP as a negotiated settlement to a grievance. According to the Union, "[i]t must be presumed that the parties agreed . . . through the collective bargaining process, that Personal Protective equipment . . . have not practically eliminated the potential for personal injury . . . ." Id. Therefore, the Union asserts that by failing to recognize that the term "practically eliminated" was negotiated the Arbitrator erred in his understanding and application of the OPM Manual, S8-7 and Appendix J.

      The Union next contends that the award does not draw its essence from the parties' CBA because it does not represent a plausible interpretation of the agreement. The Union references the language in Article 13, section 18 that provides:

[W]hen personal protective devices or engineering controls are later provided or developed which will effectively control a previously authorized pay situation, the authorization for this environmental differential will be withdrawn.

Id. at 6. According to the Union, the Agency never raised the argument that the PPE was "later provided or developed" as required by the wording of Article 13 and the Arbitrator did not ask if the requirement had been met. The Union asserts that it is not plausible for the Arbitrator to interpret the CBA in such a way that EDP, once established, can be withdrawn without the introduction of new or improved protective equipment. The Union also asserts that the Arbitrator's "failure to construct an interpretation of [the wording] `effectively control,' . . . manifest[s] a disregard of the [CBA]." Id. at 7.

B.     Agency

      The Agency contends that the Union's contrary to law assertion fails to contain any legal analysis supporting the claim and therefore, the Authority should dismiss it. [n4]  Alternatively, the Agency asserts that the Union's claim is without merit. The Agency contends that the Arbitrator found that record evidence, including the OSHD Report, supported a conclusion that the hazards associated with the paint operations were "practically eliminated by protective measures in place to control exposures." Opposition at 4. The Agency asserts that the evidence also shows that the work place monitoring, which culminated in these reports, occurred in 2002 some 5 years after the 1997 authorization for the 8% EDP. According to the Agency, the record clearly shows that the circumstances changed between the 1997 authorization and the 2002 termination of EDP. The Agency contends, therefore, that the award is consistent with the pertinent laws and regulations.

      The Agency asserts that the award draws its essence from the CBA and is supported by a plausible interpretation of it. According to the Agency, the CBA provides for withdrawal of EDP when it is not warranted and it followed the terms of the CBA when it terminated EDP. The Agency disagrees with the Union's assertion that the Arbitrator failed to construct any interpretation of the pertinent provisions of the CBA. The Agency contends that the Arbitrator interpreted the CBA and found that the record established that EDP [ v60 p199 ] was no longer warranted "based on protection devices and environmental controls practically eliminating the hazard . . . ." Id. at 5.

IV.     Analysis and Conclusions

A.      The Award Is Not Contrary to Law

      The Union asserts that the award is contrary to law and regulation, namely the OPM Manual, S8-7(g)(3) and Appendix J. When a party's exceptions involve an award's consistency with law, the Authority reviews the question of law raised by the arbitrator's award and the party's exceptions de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. 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. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The OPM Manual, Subchapter S8-7(g)(3) provides, in relevant part, that "[n]othing in this section shall preclude negotiations through the collective bargaining process for . . . determining the coverage of additional local situations under appropriate categories in Appendix J and application of appendix J categories to local work situations." OPM Manual, Subchapter 8 7. The Authority has consistently held that the specific work situations for which EDP is payable under Appendix J are left to local determination, including arbitration. See e.g., AFGE, Local 2250, 52 FLRA at 322; United States Dep't of the Army, Red River Army Depot, Texarkana, Tex., 53 FLRA 46, 51 (1997) (Appendix A, which is identical to former Appendix J, does not set forth any specified level of exposure required for the payment of EDP. Thus, as was the case under Appendix J, the specific work situations for which EDP is payable are left to local determination, including arbitration).

      In this case, the parties negotiated a provision that provided that EDP will be paid for exposure to hazards, physical hardships, and working conditions of an unusual nature in accordance with the OPM Manual, S8-7 and Appendix J. As the Arbitrator's factual findings show, the category in Appendix J pertaining to exposure to high degree hazard poisons" (toxic chemicals) is applicable to the payment of the 8% EDP in this case. Award at 19. Under this category, the payment of EDP is conditioned on findings that: (1) employees work with or in close proximity to toxic chemicals that involve the potential for personal injury; and (2) protective devices and/or safety measures have not practically eliminated the potential for personal injury. Appendix J, Part II, Category 5; 5 C.F.R. Part 532, Subpart E, Appendix A, Part II, Category 4. Both of these requirements must be satisfied to establish an entitlement to EDP.

      In this case, the Arbitrator applied the standards in Appendix J, which he found to be a "pivotal regulation[,]" and concluded, based on the evidence before him, that the Union failed to prove that protective devices and/or safety measures had not practically eliminated the potential for personal injury. Award at 21. The Arbitrator's determination is supported by his factual findings, to which the Authority defers. Accordingly, the award is not inconsistent with the OPM Manual, S8-7(g)(3) and Appendix J.

      Also, to the extent that the Union disputes certain of the Arbitrator's factual findings concerning the testimony of certain Agency witnesses that the examples in category 5 of Appendix J did not apply to the grievants' work situation and that the hazards associated with Building 466 were "practically eliminated," the Union has not demonstrated that the Arbitrator erred in making these findings. Award at 16. As stated above, the Authority defers to the Arbitrator's underlying factual findings. Although the Union disputes these findings, the Union has not alleged a nonfact with respect to these findings and even if it did, the Union has provided no support for such a claim. Accordingly, the Union's assertions provide no basis for finding the award deficient.

B.      The Award Draws Its Essence from the Parties' CBA                    

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See AFGE Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it [i]s the arbitrator's construction of the agreement [ v60 p200 ] for which the parties have bargained[.]" Id. at 576-77.

      The Union refers to Article 13, Section 18 of the parties' CBA and argues that the Arbitrator's interpretation of Section 18 manifests a disregard of the wording in this provision and is not plausible. The Arbitrator interpreted this provision and found that it permits management to withdraw EDP "`[w]hen personal protective devices or engineering controls are later provided or developed which will effectively control a previously authorized pay situation.'" Award at 20 (quoting Article 13, Section 18). In making this finding, the Arbitrator analyzed the language of Article 13, Sections 17, 18 and 26 of the parties' CBA, Appendix J of the OPM Manual and the record evidence, including the OSHD Report, and found that the evidence showed that protective measures were in place to control exposures and had "practically eliminated" the hazards that existed in the painters' work area. Appendix J, No. 4, poisons (toxic chemicals)-high degree). Accordingly, he concluded that the Agency did not violate the CBA when it terminated EDP because the "record as a whole" supported the Agency's decision. Award at 21. Upon review of the relevant provisions in the CBA, and noting that Article 13, Section 17 provides that EDP will be paid in accordance with the OPM Manual, Subchapter S8-7, and Appendix J, the Arbitrator's interpretation of the relevant provisions in the CBA, as described above, including Article 13, Section 18, is not implausible or irrational, or evidences a manifest disregard of the CBA. Accordingly, the Union has not shown that the award fails to draw its essence from the parties' CBA.

C.      The Award Is Not Based on a Nonfact

      To the extent that the Union contends that the Arbitrator erred in his application of OPM Manual, S8-7, because he failed to find that the term "practically eliminated" was previously negotiated by the parties in 1997, this assertion is construed as a nonfact claim.

      To establish that an award is based on nonfacts, the appealing party must demonstrate that the central facts underlying the award are clearly erroneous, but for which a different result would have been reached by the arbitrator. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). An award will not be found deficient based on an arbitrator's determination on any factual matter that the parties disputed below. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      The Union bases its nonfact assertion on the claim that the Arbitrator, in finding that the evidence showed that the Agency did not violate the parties' CBA when it terminated the 8% EDP for employees in the Paint Complex, failed to recognize that the categories outlined in Appendix J and the term "practically eliminated" had already been negotiated in 1997. However, the fact that in 1997 the parties negotiated over and agreed that protective devices had not "practically eliminated" the potential for harm at that time was not a central fact in the Arbitrator's denial of the instant grievance. Rather, the Arbitrator denied the grievance because he found that the record, both testimonial and documentary, showed that at the time of the instant grievance protective measures were in place to control exposures and had practically eliminated the hazards that exist in Building 466. Because the disputed factual finding is not a central fact underlying the award, the Union's argument does not provide a basis for finding the award deficient, and we deny the exception. See, e.g., NAGE, Local R1-109, 58 FLRA 501, 503 (2003).

V.      Decision

      The Union's exceptions are denied.


APPENDIX

Article 13 provides, in relevant part, as follows:

Section 17
Environmental differentials will be paid for exposure to hazards, physical hardships, and working conditions of an unusual nature in accordance with OPM Federal Wage System Operating Manual, Subchapter S8-7, and Appendix J.
Section 18
In those cases where corrective action cannot be taken, or until proper corrective action is taken on those that can, the [Agency] will initiate action to properly compensate employees exposed to these conditions.
. . . .
When personal protective devices or engineering controls are later provided or developed which will effectively control a previously authorized pay situation, the authorization for this environmental differential will be withdrawn. In these instances, the employees impacted will be provided 15 days advance [ v60 p201 ] notice of the abatement action and/or withdrawal of their environmental pay. The notice will contain the reasons for such withdrawal.

Award at 14-15.

OPM FEDERAL WAGE SYSTEM MANUAL provides, in relevant part, as follows:

SUBCHAPTER S8-7. ENVIRONMENTAL DIFFERENTIAL PAID FOR EXPOSURE TO VARIOUS DEGREES OF HAZARDS, PHYSICAL HARDSHIPS, AND WORKING CONDITIONS OF AN UNUSUALLY SEVERE NATURE.

. . . .

      g. Determining local situations when environmental differentials are payable.

      (1) Appendix J defines the categories of exposure for which the hazard, physical hardships, or working conditions are of such an unusual nature as to warrant environmental differentials, and gives examples of situations which are illustrative of the nature and degree of the particular hazard, physical hardship, or working condition involved in performing the category. The examples of the situations are not all inclusive but are intended to be illustrative only.

      (2) Each installation or activity must evaluate its situations against the guidelines in appendix J to determine whether the local situation is covered by one or more of the defined categories.

(a) When the local situation is determined to be covered by one or more of the defined categories (even though not covered by a specific illustrative example), the authorized environmental differential is paid for the appropriate category.
(b) When the local situation is not covered by one of the defined categories but is considered to be unusual in nature so as to warrant payment of an environmental differential, a differential may not be paid, but action is to be initiated to request OPM to consider authorizing the payment of an environmental differential.

      (3) Nothing in this section shall preclude negotiations through the collective bargaining process for:

(a) determining the coverage of additional local situations under appropriate categories in appendix J and application of appendix J categories to local work situations. For example, local negotiations may be used to determine whether a local work situation is covered under an approved category, even though the work situation may not be described under a specific illustrative example.(b) determining additional categories not included in appendix J for which environmentaldifferential is considered to warrant referral to OPM for prior approval as in (2), above. For example, labor and management may negotiate locally whether to submit a joint request for a new environmental differential category or a different percentage differential for an existing category to OPM through either of their respective headquarters.

OPM Federal Wage System Operating Manual, Appendix J, Part II provides, in pertinent part:

Differential Category for which payable Effective date rate

8% 4. Poisons (toxic Nov. 1, 1970

chemicals)--high degree hazard.

Working with or in close proximity to poisons (toxic chemicals), other than tear gas or similar irritants, which involves [sic] potential serious personal injury such as permanent or temporary, partial or complete loss of faculties and/or loss of life including exposure of an unusual degree to toxic chemicals, dust, or fumes of equal toxicity generated in work situations by processes required to perform work assignments wherein protective devices and/or safety measures have been developed but have not practically eliminated the potential for such personnel injury

. . . .

4% 5. Poisons (toxic

chemicals)--low degree hazard. Nov. 1, 1970

a. Working with or in close proximity to poisons (toxic chemicals other than tear gas or similar irritating substances) in situations for which the nature of the work does not require the individual to be in as direct contact with, or exposure to, the more toxic agents as in the case with the work described under high hazard for this class of hazardous agents.

. . . .



Footnote # 1 for 60 FLRA No. 44 - Authority's Decision

   Relevant provisions of the parties' CBA are set forth in the Appendix to this decision.


Footnote # 2 for 60 FLRA No. 44 - Authority's Decision

   5 U.S.C. § 5343 requires the Office of Personnel Management (OPM) to provide for EDP by regulation. To implement this provision the FPM Supplement, Appendix J was promulgated. Effective December 31, 1994, the FPM was abolished. However, the standards and legal requirements identical to those previously contained in the FPM have been codified at 5 C.F.R. § 532.511, Appendix A and are reflected in the OPM Manual. See AFGE, Local 2250, 52 FLRA 320, 321 n.1 (1996). The pertinent text of Appendix J and of Appendix A are the same. Appendix J and A contain lists of categories of work for which EDP is payable, the job activities within each category, the percentag