[ v31 p1250 ]
31:1250(112)AR
The decision of the Authority follows:
31 FLRA NO. 112
THE WASHINGTON PLATE PRINTERS UNION
LOCAL NO. 2, I.P.D.E.U.
Union
and
U.S. DEPARTMENT OF THE TREASURY
BUREAU OF ENGRAVING AND PRINTING
Agency
Case No. 0-AR-1442
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the
award of Arbitrator Millard Cass 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
Rules and Regulations. The Union filed an opposition.
Article VIII, Section 3 of the parties' agreement provides:
"Reasonable time not to exceed 10 minutes will be allowed
employees for cleanup before lunch." The Arbitrator ruled that
this section provided employees with a 10-minute period for
personal cleanup before lunch and that management could not
assign other duties during the 10-minute period.
We find that Article VIII, Section 3 constitutes an
appropriate arrangement within the meaning of section 7106(b) (3)
of the Statute and, as such, is enforceable through grievance
arbitration. Therefore, we conclude that the Agency's exceptions
fail to provide a basis for finding the award deficient.
II. Background
The employees involved in this case are plate printers.
Plate printers are assigned to a variety of press equipment,
including different types of chemical and waterwipe
intaglio presses and a gravure press. While operating the
presses, employees routinely handle toxic substances such as
intaglio ink (containing lead), varsol, caustic soda, and
solvents.
The Agency shuts down all press equipment during the lunch
period on each shift. Press cleanup is performed once on each
shift immediately before lunch. During press cleanup, the
employees come into direct contact with toxic substances, which
get on their clothes, faces, hair, and arms, as well as in or
near their eyes. Following press cleanup, plate printers are
required by management to perform personal cleanup before going
to lunch.
In August 1986, the Agency issued a memorandum regarding
personal cleanup. Before that time, printing presses were shut
down once each shift for 1 hour and 35 minutes. That time was
used for a paid 30-minute lunch period which was combined with
paid 15-minute breaks immediately before and after lunch to allow
employees a 1-hour lunch break. The remaining 35 minutes were
used for a paid 20-minute press cleanup before the pre-lunch
break and a paid 15-minute make-ready period after the post-lunch
break.
Following issuance of the memorandum, the Agency prohibited
the two 15-minute breaks from being combined with the lunch
period and required that the breaks be taken by employees
individually while the presses remain in operation. As a result,
the presses were shut down only during the 20-minute press
cleanup period, the 30-minute lunch period, and the 15-minute
make-ready period after lunch. No specific time was set aside for
employees' personal cleanup before lunch.
The Union filed a grievance on behalf of three employees who
were charged 10 minutes absence without leave when they added 10
minutes to their lunch period for the purpose of personal
cleanup. The grievance was later broadened to include all
affected employees. When the parties were unable to resolve the
grievance, they submitted the dispute to arbitration.
The Union stated the issue to be:
1. Whether the Bureau is required by Article VI, Section 1
and Article VIII, Section 3 of the collective bargaining
agreement to afford to plate printers separate periods
of work time of up to 10 minutes for personal wash-up and 15/20
minutes (depending on the press equipment) for press clean-up
prior to the lunch period shutdown.
2. Whether the continued enforcement of these contractual
provisions is precluded by any management rights reserved by
Article IV of the agreement and/or 5 U.S.C. 7106(a).
Award at 2.
The Agency stated the issue to be:
(W)hether the contract compels the Bureau to provide plate
printers a cleanup period during which management can not assign
other duties to them.
Award at 3.
The Union contended that employees were entitled to up to 10
minutes of time to perform personal cleanup following press
cleanup and prior to the lunch break under Article VIII, Section
3 of the parties' agreement. That section provides: "Reasonable
time not to exceed 10 minutes will be allowed employees for
cleanup before lunch."
The Union maintained that provisions identical to Article
VIII, Section 3 were contained in both the 1975 and the 1980
agreements. The Union claimed that allowing the 10-minute cleanup
period was not contrary to management's right to assign work
under section 7106(a)(2)(A) of the Statute. Rather, it argued
that the Fair Labor Standards Act, 29 U.S.C. 201 et seq., and
the Occupational Safety and Health Act (OSHA), 29 U.S.C. 651 et
seq., require the granting of paid time for personal cleanup for
employees such as plate printers who are exposed to toxic and
harmful substances. The Union also contended that even if the
10-minute cleanup period interferes with the right to assign
work, the provision is an appropriate arrangement for affected
employees because it does not excessively interfere with the
exercise of management's rights.
The Agency acknowledged the need for personal cleanup and
agreed that a "reasonable time" was permitted under the
agreement. However, the Agency denied that the agreement provided
a 10-minute period for cleanup before the lunch period during
which time no other duties could be assigned. The Agency argued
that employees were able to perform cleanup without having
duty-free time set aside for that purpose.
III. The Arbitrator's Award
The Arbitrator noted that because of the requirement to stop
and wash the printing presses for 20 minutes prior to the
30-minute lunch period, the only time available for employees to
perform personal cleanup would be after the press cleanup time
and before the lunch period. Award at 42. He ruled that the
10-minute personal cleanup time was &guaranteed" to employees in
both the 1975 and the 1980 agreements. Award at 42. He denied the
Agency's contentions that the Union's interpretation would
violate management's right to assign work under section
7106(a)(2)(B) because he found that there was no clear
opportunity for employees to perform cleanup at any other time.
He noted that: (1) cleanup before eating was &absolutely required
for minimal protection of the health of these employees"; (2)
Federal health regulations and the Agency's own rules required
cleanup; and (3) "(t)here was even an admission (by the Agency)
that failure to take that precaution could result in discipline
if a disability resulted." Award at 43. The Arbitrator held that
because there was "a clear and direct relationship between a
careful wash-up and the health and safety of the employees,"
Article VIII, Section 3 did not conflict with management's rights
under section 7106(a)(2)(B). Award at 43.
The Arbitrator held that National Association of Government
Employees, SEIU, AFL - CIO and National Guard Bureau, Adjutant
General, 26 FLRA 515 (1987), cited by the Agency, was
distinguishable from the facts in this case. In National Guard
Bureau, the Authority held that Proposal 2, which allowed time
for personal cleanup immediately preceding the lunch period and
end of the workday, was nonnegotiable because it interfered with
management's right to assign work under section 7106(a)(2)(B) of
the Statute. The Arbitrator held that National Guard Bureau did
not apply because in that case, there was latitude for the time
in which the cleanup could have taken place. The Arbitrator found
that in the instant case, the mandatory cleanup "must be squeezed
in between the press clean-up shutdown and the lunch period
shutdown." Award at 44 (emphasis in original). In addition, the Arbitrator held that Article VIII, Section 3 was a
permissible subject of bargaining under section 7106(b)(1)
because the cleanup period was an integral part of the methods
and means of performing the Agency's work. Award at 44.
IV. Exceptions
The Agency contends that the award is contrary to section
7106(a)(2)(B) of the Statute because it requires management to
set aside a specific time during the workday for employee cleanup
and prevents the assignment of any other duties during that time.
The Agency contends that the Arbitrator erred when he declined to
follow National Guard Bureau. The Agency agrees that employees
should be given time for personal cleanup, but argues that
management retains the right to assign other duties while
employees are cleaning up. Exceptions at 14. The Agency maintains
that "(e)ven if it were possible to find that management . . .
had entered into an agreement with the Union spelling out the
time to be devoted exclusively to personal cleanup, as the
Arbitrator has determined, the agreement would be unenforceable
as contrary to law." Exceptions at 21.
V. Opposition
The Union alleges that the Agency's arguments were rejected
by the Arbitrator and constitute an attempt to relitigate the
matter before the Authority. The Union contends that the
Arbitrator correctly ruled that personal cleanup was an integral
part of the methods and means of performing work over which the
Agency had elected to negotiate under section 7106(b)(1) of the
Statute. The Union also contends that the Agency's denial of
personal cleanup time was inconsistent with obligations imposed
by relevant health and safety laws and regulations. The Union
points out that the exercise of management's rights under section
7106(a)(2) must be "in accordance with applicable laws."
Opposition at 13. Therefore, the Union contends that the
Arbitrator correctly found that OSHA and Agency regulations
mandate the provision of cleanup time before lunch. Opposition at
15.
The Union denies that the Arbitrator's award violates
management's right to assign work. The Union contends that no
other duties can meaningfully be assigned during the interval
between the required press cleanup and the lunch period.
Opposition at 16. The Union argues that National Guard Bureau, 26
FLRA 515, is not dispositive because in that case, the Authority
found that the Union failed to identify any specific OSHA
requirement to support its claims for personal cleanup time. In
the instant case, the Union notes that the Arbitrator found that
the cleanup time was clearly required by the circumstances and by
OSHA requirements. Opposition at 21-23.
VI. Discussion
We find that the award is not deficient. The award enforces
a provision of the parties' agreement which mitigates the adverse
effect on employees of the unclean and potentially unhealthful
conditions inherent in their work as printers. We conclude that
Article VIII, Section 3 constitutes an appropriate arrangement
within the meaning of section 7106(b)(3) of the Statute.
Therefore, the Agency's exceptions must be denied.
The Agency correctly states that under the Statute and
Authority precedent, provisions which prescribe time periods for
the performance of specific duties interfere with management's
right to assign work under section 7106(a)(2)(B) of the Statute.
See, for example, Overseas Education Association and U.S.
Department of Defense Dependents Schools, 28 FLRA 700 (1987)
(Proposal 2), petition for review filed sub nom. Overseas
Education Association, Inc. v. FLRA, No. 87-1468 (D.C. Cir.
Sept. 8, 1987). In National Guard Bureau, the Authority found
that a proposal which set aside a time period for personal
cleanup interfered with management's right to assign work because
it precluded the agency from assigning other duties to employees
during that time period. 26 FLRA at 516. In the case now before
us, Article VIII, Section 3 requires the Agency to set aside a
time period of a specified length for the sole purpose of
employee cleanup. Therefore, consistent with the decision in
National Guard Bureau, we find, contrary to the Arbitrator, that
Article VIII, Section 3 interferes with the Agency's right to
assign work.
This finding does not, however, end our inquiry. The Union
claims that Article VIII, Section 3 constitutes an appropriate
arrangement within the meaning of section 7106(b)(3). Under
section 7106(b)(3), a provision which interferes with a
management right may nevertheless be negotiable and enforceable
by an arbitrator as an appropriate arrangement if it does not
excessively interfere with that right. We find that
Article VIII, Section 3 is an appropriate arrangement within the
meaning of section 7106(b)(3) and, thus, was properly enforced by
the Arbitrator. See National Federation of Federal Employees,
Local 284 and Department of the Navy, Naval Air Technical raining
Center, Lakehurst, New Jersey, 29 FLRA 958 (1987) (Provision 1)
(an arbitrator's award which simply enforces a properly
negotiated appropriate arrangement under section 7106(b)(3) is
not contrary to section 7106(a) of the Statute).
Under the test established in National Association of
Government Employees, Local R14-87 and Kansas Army National
Guard, 21 FLRA 24 (1986), in order to determine whether a
provision constitutes a negotiable appropriate arrangement, we
must first determine whether it is intended to be an
"arrangement" for employees who may be adversely affected by the
exercise of management's rights. If we find that the provision is
intended to be an "arrangement," we will then determine whether
it is an "appropriate" arrangement, that is, whether it
excessively interferes with the exercise of management's
rights.
The Arbitrator found, and the Agency agrees, that the nature
of the printers' work involves constant exposure to toxic
substances, particularly during the pre-lunch press shutdown.
Award at 21-23. The exposure to toxic substances is a direct
result of the Agency's assignment of printing duties to the
employees. Article VIII, Section 3 mitigates the adverse effect
on employees of exposure to those substances by providing them an
opportunity to remove the substances from their hands and faces
before eating. We find, therefore, that Article VIII, Section 3
is an "arrangement" within the meaning of section 7106(b)(3) of
the Statute for employees adversely affected by the assignment of
work.
In order to determine whether Article VIII, Section 3 is an
"appropriate" arrangement, we must determine whether it
excessively interferes with management's right to assign work. In
making that determination, we balance the benefit afforded
employees by the provision against its effects on the exercise of
the right. Kansas Army National Guard, 24 FLRA at 31-34.
The burden imposed on management by Article VIII, Section 3
is the loss of up to 10 minutes of worktime prior to the
employees' lunch period. The employees, on the other hand, derive
a health and safety benefit from being provided a period in which
to clean up. The record indicates that employees are routinely
exposed to toxic and hazardous substances. Exposure is
particularly intense during press cleanup. Award at 6; Opposition
at 4-5. As the Arbitrator found, personal cleanup is "absolutely
required for minimal protection of the health of these employees"
because there is "a clear and direct relationship between a
careful wash-up" and prevention of the adverse consequences of
contact with toxic substances. Award at 43.
The Agency agrees that personal cleanup after contact with
toxic substances is "necessary for printers' health and safety,
and is thus an activity which is a legitimate part of the
workday." Exceptions at 14; Award at 43. The Arbitrator found
that the Agency not only requires printers to wash up before
lunch but could discipline them if they fail to perform required
personal cleanup. Award at 6, 43; Opposition at 14. The
Arbitrator also found that Article VIII, Section 3 was consistent
with OSHA regulations regarding employee cleanup after contact
with toxic and hazardous materials. Award at 43. In this
connection, the record indicates that OSHA-mandated material
safety data sheets which are posted in the printers' work area
require thorough washing following skin contact with such
materials. Id.
The findings of the Arbitrator and other evidence in the
record establish that it is essential to the health and safety of
the employees in this case that they be provided with a period of
time in which to clean up prior to their lunch period in order
that they may remove any of the toxic substances with which they
have come in contact during their work. In our view, the record
in this case supports the conclusion that the benefit to
employees of the cleanup period provided by Article VIII, Section
3 outweighs the loss of worktime which would result. We find,
therefore, that Article VIII, Section 3 of the parties' agreement
does not excessively interfere with management's right to assign
work and is an enforceable appropriate arrangement within the
meaning of section 7106(b)(3) of the Statute.
Accordingly, we conclude that the Arbitrator properly
enforced Article VIII, Section 3 of the parties' agreement and
that there is no basis for finding the award deficient
on the grounds that it is inconsistent with section 7106(a)(2)(B)
of the Statute. */
VII. Decision
The Agency's exceptions are denied.
ssued, Washington, D.C., April 27, 1988.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
Footnote */ In light of our conclusion, it is unnecessary to
consider the Arbitrator's finding that Article VIII, Section 3
constituted one of the methods or means by which the Agency
performed its work or the Union's contentions that the provision
incorporates existing legal restrictions on the assignment of
work.