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The decision of the Authority follows:
34 FLRA NO. 20 U.S. DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS MEDITERRANEAN REGION and OVERSEAS FEDERATION OF TEACHERS 0-AR-1575 DECISION December 29, 1989 Before Chairman McKee and Members Talkin and Armendariz. I. Statement of the Case This matter is before the Authority on exceptions to the Award of Arbitrator Roger P. Kaplan filed by the Department of Defense Dependents Schools, Mediterranean Region (DoDDS or 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 Overseas Federation of Teachers (OFT or the Union) filed an opposition to the Agency's exceptions. The grievance alleged that the Agency required teachers to work at a school when conditions were unsafe and unhealthful. The Arbitrator sustained the grievance in part and issued an award which precluded the Agency from requiring teachers to work when the temperature reached 95 degrees if a health officer determined that unhealthful conditions were present. The Agency contends that the award is deficient under section 7122(a) of the Statute because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. We find that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, the exceptions are denied. II. Background and Arbitrator's Award The grievance alleged that the Agency violated the parties' collective bargaining agreement and Agency regulations by requiring teachers at the American Elementary School in Athens, Greece to work in an environment in which noise and heat levels were unsafe and injurious to the teachers' health. In the absence of a stipulation of the issue by the parties, the Arbitrator stated the issue before him as follows: Did management violate Articles 4, 20 and 22 of the Collective Bargaining Agreement, North Central Association Qualitative Standard XI, DS Regulation 4800.1, DOD Instruction 6055.1, AFR 161-35, DS Manual 1200.1 and DSM Manual 1310.1 by requiring teachers to work at the Athens American Elementary School when conditions were allegedly unsafe and unhealthful? If so, what is the appropriate remedy? Arbitrator's Award at 1. The Arbitrator determined that Article 22, Section 2 of the collective bargaining agreement governed the resolution of the issues presented by the grievance. Arbitrator's Award at 10. That section provides that employees will not be required to work under conditions that have been determined to be unhealthful or unsafe, or in emergency conditions determined unhealthful or unsafe by the Employer. It also provides that "(e)mergencies may include extremes of classroom temperature." Id. The Arbitrator noted that problems with heat during most of the school year made it necessary for classroom windows to be left open and, because the school building is located within 35 feet of a heavily travelled roadway, "the noise level is quite high." Arbitrator's Award at 11. The Arbitrator found that although the noise decibel level "exceeded the recommended levels contained in AF Regulation 161-35, it did not exceed the hazardous noise level." Id. He concluded that "the noise level experienced by the teachers was not hazardous to their health," and, consequently, that the Agency had not violated the collective bargaining agreement when it required teachers to work in the noise levels that existed at the school. Id. The Arbitrator recommended that "management take appropriate action to attempt to alleviate the present noise level situation." Arbitrator's Award at 12. With respect to the problem of heat, the Arbitrator noted the testimony of an Air Force health engineer that "when the temperature reaches 95 degrees with 60 degrees humidity, a hazardous condition existed." Arbitrator's Award at 12. The Arbitrator also noted other evidence which supported the conclusion that "teachers should not be required to work without a rest when temperatures reach a level as experienced in August and September 1987." Id. The Arbitrator found that the evidence indicated that during those months the temperature in the school rooms often ranged between 90 and 100 degrees. Arbitrator's Award at 8. Noting testimony that during periods of intense heat individuals could experience nausea, fainting, vomiting, heat stroke, muscle and stomach cramps, the Arbitrator concluded that "when teachers are required to work in 95 degree heat, an unhealthy situation is present." Arbitrator's Award at 12. The Arbitrator noted the Agency's argument that "there is no responsible health or safety officer who determined that the conditions were unhealthy." Arbitrator's Award at 13. The Arbitrator found, however, that although the collective bargaining agreement "provides that unhealthy conditions in an emergency situation are determined unilaterally by management," management's responsibility in that situation is "subject to an arbitrary and capricious standard." Id. He concluded that under the conditions which existed in August and September 1987, "management had an affirmative obligation to notify the appropriate health official." Id. The Arbitrator also found that management could not "surrender its responsibility" by claiming that the principal of the school "had no authority to close the school." Arbitrator's Award at 13. The Arbitrator noted that although the Base Commander had responsibility for closing the school, there was no evidence that he was ever notified of the situation at the school. Id. The Arbitrator also noted that previously management officials had acted "to get the teachers an early dismissal" and that there was no evidence explaining their failure to do so in August and September 1987. Id. The Arbitrator concluded as follows: In summary, I find that by requiring teachers to work a normal school day when temperatures reached 95 degrees, management violated Article 22, Section 2 of the Agreement. Although the Agreement provides for unilateral decision-making by management, that discretion must be exercised in a reasonable and fair manner. Actions or lack thereof in this case indicated that management engaged in an arbitrary and capricious manner. The Agreement was violated because teachers were required to work a normal school day when emergency conditions resulted in an unhealthy condition. Arbitrator's Award at 13-14. The Arbitrator's award stated that: (1) the Agency violated the parties' agreement "by requiring teachers to work in an unhealthful situation because of the extreme heat during the months of August and September 1987"; (2) the Agency did not violate the parties' agreement as to the noise levels at the school; (3) the grievance is sustained in part; (4) the Agency is "precluded from requiring teachers to work a normal school day when temperatures reach 95 degrees without assurances from appropriate health officers" who will be called by the principal of the school, or a designee, to determine if unhealthful conditions exist at the school; (5) if "an appropriate health officer determines that the situation is unhealthful," teachers "will not be required to work under those existing conditions"; and (6) there was no reason for the Arbitrator to retain jurisdiction. Arbitrator's Award at 14-15. III. Positions of the Parties A. Exceptions The Agency contends that parts 4 and 5 of the award--under which teachers would not be required to work if an appropriate health official determines that conditions are unhealthful--are contrary to law because they interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that this portion of the award prevents it from assigning duties to employees when a health official determines that certain adverse conditions exist. The Agency also contends that it does not employ health officials and, "therefore, the official making the determination (that conditions are unhealthful) would not even be an agent of the Employer." Agency's Exceptions at 5. B. Opposition The Union contends that the award does not interfere with management's right to assign work. The Union states that the Agency "erroneously assumes that the arbitrator's award absolutely prohibits any work by teachers once the appropriate health officer determines that the situation is unhealthful." Union's Opposition at 4 (emphasis in original). The Union maintains that the award does not: (1) require that teachers be excused from all work and sent home; or (2) prevent the Agency from assigning other duties and responsibilities to teachers in another work environment where no unhealthy situation exists. According to the Union, "the arbitrator carefully crafted a remedy to cure the agency's undisputed violation" of the agreement. Union's Opposition at 4. The Union notes that the Agency's exceptions do not contest the Arbitrator's finding that the Agency had an affirmative obligation to notify an appropriate health official when temperatures reached high levels. The Union contends that arbitrators have great latitude in fashioning remedies for violations of a collective bargaining agreement. The Union asserts that the Arbitrator's enforcement of Article 22, Section 2 of the parties' agreement did not deny the Agency the authority to exercise its right to assign work. The Union also argues that the Authority has held proposals which provide that employees will not be required to work in circumstances which have been determined by health and safety officials to be dangerous to be negotiable. The Union notes that Occupational Safety and Health Administration regulations--29 C.F.R. 1969.28 and 1960.30--provided "for abating unsafe or unhealthful working conditions 'upon a determination by the appropriate agency official or inspector that such a condition does, in fact, exist.'" Union's Opposition at 7. Finally, the Union disputes the Agency's contention that the Agency does not employ health officials. The Union notes that DoDDS and the military services are subdivisions of the same agency--the Department of Defense--and states that "appropriate health officers already exist and are employed by the Department of the Air Force in Athens, Greece." Union's Opposition at 8. The Union maintains that nothing prevents the Agency from using the services of an Air Force health officer to comply with the award. IV. Discussion We find that the Arbitrator's award does not violate management's right to assign work under section 7106(a)(2)(B) of the Statute. Consequently, we conclude that the Agency has failed to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. The exercise of management's rights under section 7106 of the Statute, including management's right to assign work, is subject to procedures negotiated under section 7106(b)(2). Negotiable procedures are enforceable through grievance arbitration. See, for example, Internal Revenue Service, Cincinnati District Office and The National Treasury Employees Union, Chapter 9, 24 FLRA 288 (1986). In American Federation of Government Employees, AFL - CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105, 1125 (1988) (Provision 6) the Authority held that procedures which require an agency to comply with restrictions on particular employee assignments or duties which are imposed by the agency's own medical authorities are negotiable. The Authority determined that the right to assign work does not entitle one portion of an agency to assign duties to an employee which are inconsistent with those duties which are found by another portion of the agency to constitute a risk to the employee's health and safety. The Authority held, therefore, that an agency can be contractually bound to observe restrictions on the assignment of duties to an employee which are imposed by an agency's own medical authorities. 30 FLRA at 1124-25. In Naval Air Station, Oceana, the Authority stated that proposals requiring an agency to assign--or not to assign--particular duties for health and safety reasons will be examined in order to determine whether the proposals: (1) require the agency to observe restrictions which have been imposed by the agency's own medical authorities; or (2) impose restrictions independent of and/or inconsistent with those of the agency's own medical authorities. Proposals which require the agency to assign work consistent with restrictions imposed by its own medical authorities are negotiable procedures under section 7106(b)(2). Proposals which impose restrictions that are independent of and/or inconsistent with restrictions imposed by the agency's own medical authorities violate the agency's right to assign work under section 7106(a)(2)(B). The Authority noted that an agency's medical authorities may include a "medical authority designated by the agency." 30 FLRA at 1125. Article 22, Section 2 precludes the Agency from requiring employees to work "under conditions that have been determined to be unhealthful or unsafe . . . by the Employer." As interpreted by the Arbitrator, Article 22, Section 2 of the parties' agreement: (1) precludes management from requiring employees to work in emergency conditions which management has determined are unsafe or unhealthful; (2) provides that unhealthy conditions in an emergency situation are determined unilaterally by management; and (3) obligates management to determine whether employees' work environment is unsafe or unhealthy. Consistent with the Arbitrator's interpretation, we find that Article 22, Section 2 obligates management to determine whether employees' work environment is unsafe or unhealthy and to observe safety and health restrictions which have been imposed by the Agency's own officials. The Agency does not contend that the Arbitrator's award imposes restrictions on the right to assign work which are independent of and/or inconsistent with restrictions imposed by the Agency's own officials, and we do not interpret the award in that manner. Based on the Authority's decision in Naval Air Station, Oceana, therefore, we conclude that Article 22, Section 2 is an enforceable procedure under section 7106(b)(2) of the Statute. The Agency's contention that DoDDS does not employ a safety and health official provides no basis for finding the award deficient. Even if DoDDS does not employ a safety and health official, we conclude, consistent with Naval Air Station, Oceana, that DoDDS can designate a safety and health official in the Agency--for example, the health officer employed by the Department of the Air Force in Athens, Greece--to make that determination. In Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 361 (1986), affirmed as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, 827 F.2d 814 (D.C. Cir. 1987), the Authority held that "(t)he fact that Department of Defense organizations other than DoDDS possess control over a matter which is the subject of an otherwise negotiable proposal does not present a basis for finding that proposal nonnegotiable." Since Article 22, Section 2 is "otherwise negotiable" within the meaning of Overseas Education Association, it is enforceable even if its enforcement necessitates action by a DOD component other than DoDDS. We find, therefore, consistent with the Authority's decision in Naval Air Station, Oceana, that the Arbitrator's award does not improperly restrict management's right to assign work under section 7106(a)(2)(B) of the Statute. Consequently, the Agency has failed to demonstrate that the award is deficient under section 7122(a) of the Statute. V. Decision The Agency's exceptions are denied.