34:0626(106)AR - - Navy, Norfolk Naval Shipyard and Tidewater Virginia FEMTC - - 1990 FLRAdec AR - - v34 p626

[ v34 p626 ]
The decision of the Authority follows:

34 FLRA No. 106











January 29, 1990

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 B. R. Skelton filed by the Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO (the Union) 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 Department of the Navy, Norfolk Naval Shipyard (the Agency) did not file an opposition to the Union's exceptions.

The grievance sought environmental differential pay (EDP) for an employee who contended that exposure to toxic fumes from a chemical had made him ill. The grievance was submitted to arbitration. The Arbitrator determined that the grievance was not arbitrable under the parties' agreement and denied the grievance.

We find that the Union's exceptions constitute mere disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement. Therefore, the exceptions provide no basis for finding the award deficient. Accordingly, the exceptions are denied.

II. Background and Arbitrator's Award

The grievant, a welder apprentice, claimed that he became ill from exposure to toxic fumes from a chemical called "Organotin." The grievant asserted that he had not been required to wear protective equipment or clothing and had not been warned of potential harm to his health. A grievance was filed contending that the Agency had violated provisions of the parties' agreement which protect employees from safety hazards and authorize EDP for hazardous work situations.

The Agency contended that the presence of Organotin was not a "work situation" listed in the negotiated agreement for which EDP was authorized and asserted that the EDP aspect of the grievance was not substantively arbitrable. The grievance was submitted to arbitration.

The parties stipulated that the issue before the Arbitrator was whether the grievance was arbitrable. The Agency did not dispute the arbitrability of the safety aspect of the grievance, but contended that the EDP aspect of the grievance must be negotiated rather than arbitrated.

The Arbitrator ruled that he did not have the authority under the parties' agreement to decide whether a welder exposed to Organotin is entitled to EDP. Therefore, the Arbitrator ruled that the grievant's entitlement to EDP was not arbitrable.

The Arbitrator found that: (1) there was a provision governing Organotin in the contract preceding the parties' current agreement; and (2) although the Agency raised the issue of Organotin as a hazardous work situation in negotiations in 1986, the Union rejected the Agency's proposal and, consequently, there is no provision regarding Organotin in the current agreement. The Arbitrator also found that because Article 28.9 of the parties' agreement renders null and void all previous agreements which are not included in the 1986 contract, the previous provision concerning Organotin was not part of the current agreement. The Arbitrator concluded, therefore, that Organotin is not an "authorized work situation" requiring EDP.

The Arbitrator rejected the Union's argument that Article 13.3 supports the contention that the EDP issue is arbitrable. Article 13.3 requires supervisors to notify employees when they will be assigned to authorized work situations described in Article 13.2. The Arbitrator stated that the presence of Organotin is not one of the work situations for which EDP is authorized under Article 13.2.E. of the parties' agreement.

The Arbitrator concluded that Article 37.2.b, which allows the parties to reopen the agreement by mutual consent after it has been in effect for 6 months, controlled the determination of whether a work situation not enumerated in Article 13.2 is to be authorized for EDP. He also concluded that although a note to Article 13.2 implied that other work situations not specified in the contract may arise requiring EDP, the determination as to whether Organotin was one of those situations was to be made through negotiations, not through the grievance and arbitration process. The Arbitrator also found that he was not authorized to modify the agreement's terms in any way. He concluded that establishing a new "authorized work situation" by arbitration rather than by negotiation would violate the agreement. The Arbitrator concluded, therefore, that the grievance was not arbitrable.

III. Union's Exceptions

The Union contends that the Arbitrator exceeded his authority by changing the terms of the agreement "back to the expired 1977 language that specifically required the [p]arties to negotiate new authorized work situations in lieu of grievance or arbitration[.]" Exceptions at 1. According to the Union, the Arbitrator ignored the parties' bargaining history and changes in the terms of the agreement which supported its interpretation of the agreement.

The Union also asserts that the award is inconsistent with another arbitrator's award involving the same parties. In that award, the arbitrator found the issue of whether work with specific kinds of hazardous waste is an authorized work situation under the parties' agreement so as to entitle the grievants to EDP to be arbitrable. The U