DEPARTMENT OF VETERANS AFFAIRS VETERANS AFFAIRS MEDICAL CENTER LEBANON, PENNSYLVANIA AND LOCAL 1966, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF VETERANS AFFAIRS
VETERANS AFFAIRS MEDICAL CENTER
LOCAL 1966, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 92 FSIP 182
DECISION AND ORDER
Local 1966, American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Veterans Affairs, Veterans Affairs Medical Center, Lebanon, Pennsylvania (Employer).
After investigation of the request for assistance, the Panel directed the parties to participate in an informal conference with Senior Legal Advisor Jesse Etelson for the purpose of resolving the outstanding issues related to the assignment of return-vent-cleaning duties. The parties were advised that if no settlement were reached, Mr. Etelson would notify the Panel of the status of the dispute, including the final offers of the parties and his recommendations for resolving the issues. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Mr. Etelson met with the parties on September 1, 1992, in Lebanon, Pennsylvania, and toured the site. As a result of that meeting, the parties agreed that additional tests would be requested from the National Institute of Occupational Safety and Health Administration (NIOSH) to determine whether vents at the facility contain hazards that might affect the health of employees assigned to clean them.(1) NIOSH issued a report on March 9, 1993; since the parties were unable to resolve the issues in dispute based on the report, and Mr. Etelson is no longer on the Panel's staff, they spoke with Staff Associate Ellen J. Kolansky by telephone conference, and submitted statements of position and their final offers. Mrs. Kolansky has reported to the Panel, and it has now considered the entire record.
The Employer provides medical care to veterans. The Union represents 1,100 bargaining-unit employees who are part of a nationwide, consolidated unit; they work in professional and non-professional positions at the hospital. The master collective bargaining agreement (MCBA) became effective on August 13, 1982, for a 3-year period, and has been rolled over each year since 1985.
Currently, bargaining-unit employees who work in the Building Management Service as WG-2 housekeeping aides clean fan coil units connected to air-supply ducts and change filters annually. They do not receive environmental differential pay (EDP) for such duties. The additional, quarterly, return-vent-cleaning duties would include removing the vent covers, washing them, and vacuuming as far into the ducts as can be reached. A Union-filed ULP over the Employer's implementation of these new duties was settled on October 26, 1991; the Employer ceased assigning cleaning duties and bargaining resumed. A few weeks earlier, the parties also settled an Occupational Safety and Health Administration (OSHA) complaint relating to possible exposure to asbestos from pipe insulation when removing ceiling vents.
The NIOSH report states that "[t]he concentrations and type of microbiologicals identified should not pose any occupational health concerns to those cleaning the return air vents."(2) It recommends that employees performing such duties wear rubber gloves, safety goggles, and a disposable, high efficiency particulate air (HEPA) filter mask.(3) During the conference call, the Employer was willing to adopt the NIOSH recommendations to resolve the dispute; the Union, however, rejected the offer which has since been withdrawn.
ISSUE AT IMPASSE
The dispute concerns whether employees assigned vent-cleaning duties should receive EDP, and what equipment should be provided and procedures followed by employees when performing such duties.
POSITIONS OF THE PARTIES
1. The Union's Position
The Union proposes that housekeeping employees assigned return-vent-cleaning duties should participate in the Employer's medical surveillance program, be provided with proper respirator protection,(4) and receive 8-percent EDP for exposure to micro-organisms.(5) The NIOSH assessment was inadequate because (1) it did not address exposure to Human Immunodeficiency Virus infections and drug-resistant tuberculosis; (2) it was tacked on as an afterthought to an already scheduled investigation; and (3) NIOSH personnel merely inspected some of the vents and analyzed only three vent-wipe samples. Furthermore, the NIOSH recommendation that employees wear respirators when performing such cleaning duties indicates that the employees' environment is less benign than the report might otherwise indicate. In 1986, the Panel ordered a VA medical center to continue EDP for fiberglass exposure based on a factfinder's recommendation; therefore, the Panel also should order this Employer to provide EDP.(6)
2. The Employer's Position
The Employer's final offer, first presented on April 9, 1992, is: (1) to check for the presence of asbestos including areas identified by the Union; (2) establish procedures to protect employees from foreseeable safety hazards associated with wires and plumbing above the ceiling tiles; and (3) conduct a desk audit to see whether the additional duties warrant a position upgrade. Since it already has completed these tasks, it believes that the dispute should be considered resolved. In this regard, studies performed following the OSHA complaint showed that ceiling tiles and wall plaster do not contain asbestos; an inspection of the facility found that asbestos-containing insulation on pipes, fittings, ducts, and mechanical equipment were in good condition, labeled, and NIOSH reported the insulation was not likely to be disturbed during vent-cleaning activities. Bulk sampling to check for asbestos performed by in-house and outside firms "produced results below the detection limit of 0.005 fibers per cubic centimeter of air (f/cc)." In addition, personal air sampling conducted during various vent-cleaning operations and subjected to Transmission Electron Microscopy verified that fibers collected were not asbestos.
Neither EDP, medical screening, nor respirators are warranted. This conclusion is supported by NIOSH findings that: (1) "bacteria in the wipe samples were low concentrations of species normally found in any natural environment"; (2) vent-cleaning activities would expose employees to nothing that is not already present in the normal ambient air; (3) asbestos is well-contained and not likely to be disturbed by such work. Finally, the equipment and procedures recommended by NIOSH appear to go beyond measures that the findings themselves would justify.
Having considered the evidence and arguments presented, we conclude that the parties should adopt a compromise provision imposing the equipment and procedures recommended in the NIOSH report. We are persuaded that such precautionary measures should ensure that employees are appropriately equipped when they clean the return vents. In this connection, the record shows that the Union's allegations that employees have not always been provided with promised equipment is uncontested.
Regarding EDP, the Union presents insufficient evidence to establish that the new return-vent-cleaning duties would expose employees to unusually severe health hazards to justify such payments. In this regard, testing performed by an in-house industrial hygienist and by NIOSH indicates the opposite: that employees assigned vent-cleaning duties would not be exposed to health hazards when engaging in such activities. The same paucity of evidence also leads us to conclude that medical surveillance of affected employees and more sophisticated respirators proposed by the Union are not needed at the present time. Moreover, in our view, the precautionary measures recommended by NIOSH do not suggest a contrary conclusion, as argued by the Union. We note, however, that the NIOSH report also stated: "periodic sampling to confirm the results of the previous sampling may be appropriate." Should the Union find evidence in the future to substantiate health hazards that would warrant such payments, under the MCBA, Article 25, Section 1B, it can seek EDP by filing a grievance at step 3 of the negotiated grievance procedure.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to the Panel's regulations, 5 C.F.R. § 2471.6 (a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:
Employees assigned to clean return air vents with a chlorine or other chemical solution shall, in accordance with the recommendations contained in the NIOSH report, wear rubber gloves, safety goggles, and a disposable, high efficiency particulate air (HEPA) filter mask. Caution should be exercised in areas that are not well ventilated to prevent chlorine or other chemical vapor build-up due to insufficient dilution air.
By direction of the Panel.
Linda A. Lafferty
July 28, 1993
1.NIOSH was already scheduled to conduct studies in six buildings at the facility related to employees' symptoms and complaint