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The decision of the Authority follows:
38 FLRA No. 43
FEDERAL LABOR RELATIONS AUTHORITY
U.S. GENERAL SERVICES ADMINISTRATION
KANSAS CITY, MISSOURI
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
November 27, 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 Kent Hutcheson filed by the Agency pursuant to 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 to the Agency's exceptions.
The Arbitrator ruled that maintenance employees in the bargaining unit were entitled to receive environmental differential pay (EDP) for exposure to asbestos. The Arbitrator retained jurisdiction for the purpose of assisting the parties in determining amounts of retroactive pay that individual employees were entitled to receive. The Agency contends in its exceptions that the award is deficient because it is contrary to law and because it is based on a nonfact. We conclude that the Arbitrator has made the findings required for an award of environmental differential pay and the Agency has failed to establish that the award is deficient. The exceptions are denied.
II. Background and Arbitrator's Award
The Union filed a grievance on behalf of bargaining unit employees which was submitted to arbitration on the following issue:
Is the Bargaining unit, or any part thereof, entitled to hazard duty pay as a result of exposure to [asbestos] during the work day or any part thereof?
Award at 1.
The Arbitrator quoted Article 23, "Occupational Safety and Health," of the collective bargaining agreement which provides in section 18A:
When the Union believe[s] that a local work situation warrants coverage under payable categories of Appendix J of FPM (Federal Personnel Manual) Supplement 532-1 Subchapter S-8-7, it will notify the Employer of the title, location and the nature of the hazard to justify payment of environmental differential.
Id. The Arbitrator also quoted Appendix J in his award. He noted that the Agency stipulated that asbestos fibers were present in every building in the bargaining unit and that asbestos was used as insulation for pipes and conduits on which unit employees, particularly those in the maintenance unit, made repairs and renovations. He also noted that more than 50 protective masks were available to maintenance unit employees and that employees and supervisors were given training on the hazards of asbestos fibers.
The Arbitrator found that air samplings made by the Agency and the protective masks used by employees met or exceeded standards set by the Occupational Safety and Health Administration (OSHA). He found that members of the maintenance group wear protective masks as they themselves determine necessary during the workday and that they are given annual physical examinations. The Arbitrator noted that of the medical records of 11 employees submitted as exhibits, 5 of the employees received notations of abnormality demanding further evaluation of their lungs, and all of the remaining employees "received some type of warning that asbestos fibers had been ingested into the lungs." Id. at 3.
The Arbitrator referred to testimony by an Agency industrial hygienist who testified that the Agency was "abiding by or exceeding all the guidelines of OSHA in dealing with the hazards of asbestos fibers in the work place." Id. at 4. The Arbitrator noted, however, that according to the testimony of that witness, "the risk of episodic exposure, particularly to maintenance employees, will be present so long as the asbestos is present in it's [sic] bulk form in the buildings in which these employees must work." Id.
The Arbitrator stated that the issue before him did not concern the Agency's efforts to lessen exposure to asbestos fibers, but "the issue becomes one of occupational or episodic exposure by the employees who are most likely to create asbestos fibers in the work place as a direct result of their duties." Id. at 5. The Arbitrator discussed the "EPA Study of Asbestos-Containing Materials in Public Buildings," February 1988 (EPA Study), issued by the Environmental Protection Agency and submitted by the parties as a joint exhibit. See Exceptions, Attachment 5. He noted that EPA has found that employees who disturb bulk asbestos materials in the course of their duties are likely to inhale the fibers and he stated that "[t]he hazards of such inhalation are readily apparent when one considers that the EPA has established that there is a zero tolerance for such fibers in the lungs." Award at 6 (emphasis deleted).
The Arbitrator found that maintenance employees "are of necessity exposed to the bulk asbestos material[,]" and that "a number of maintenance employees have already manifested lung disease in the form of asbestosis." Id. He stated that the issue was whether "current employees are entitled to hazardous pay in the form of an environmental differential pay for the exposure to asbestos fibers which may potentially expose the employees to a hazard for which safety devices and safety measures have not practically eliminated the hazard." Id. (emphasis deleted). He concluded that "[a]ll maintenance employees are exposed to the very hazard for whom the environmental differential pay regulation was designed to compensate." Id. (emphasis deleted). He concluded that employees other than maintenance employees were not entitled to EDP.
As his award, the Arbitrator ruled that "[t]he grievance is sustained on behalf of that portion of the bargaining unit assigned to the maintenance portion of the work force and further restricted to those to whom a breathing device has been issued . . . and shall not apply to retired employees or to the balance of the work force including the janitorial services." Id. at 7. The Arbitrator retained jurisdiction for the purpose of clarification should a question arise concerning the payment of retroactive EDP.
III. Positions of the Parties
A. The Agency
The Agency contends that the Arbitrator's award is contrary to law. The Agency maintains that the Arbitrator disregarded the action level and permissible exposure standards set by OSHA when he found that maintenance employees are entitled to EDP and that he improperly found that the hazards of working in the vicinity of bulk asbestos material will not be eliminated until the asbestos material has been removed. The Agency contends that the Arbitrator has misinterpreted the requirement in Appendix J for payment of EDP for exposure to asbestos. Appendix J provides:
16. Asbestos. Working in an area where airborne concentrations of asbest[os] fibers may expose employees to potential illness or injury and protective devices or safety measures have not practically eliminated the potential for such personal illness or injury.
Exceptions, Attachment 3. The Agency states that under Appendix J, '[t]he hazard does not have to be eliminated, as the Arbitrator stated, but the potential for illness has to be practically eliminated." Exceptions at 2. The Agency contends that the protective measures which it has taken "have practically eliminated the potential for personal illness or injury." Id. at 2-3.
The Agency contends that air sampling which it has conducted has never shown a concentration of airborne asbestos at the OSHA action level of 0.1 fiber per cubic centimeter (f/cc) or at the permissible exposure limit of 0.2 f/cc and, therefore, "the Agency is not even required to provide the medical surveillance, training, or protective equipment which the Arbitrator found that the Agency provides maintenance employees." Id. at 3-4.
The Agency cites the decision of the U.S. Court of Appeals for the Federal Circuit in O'Neall v. United States, 797 F.2d 1576 (Fed. Cir. 1986) (O'Neall) and the Authority's decision in Allen Park Veterans Administration Medical Center, Allen Park, Michigan and America Federation of Government Employees, Local 933, 28 FLRA 1166, 1168 (1987), as requiring an arbitrator in cases such as this to consider a threshold quantitative level of exposure to asbestos when determining entitlement to EDP under Appendix J. The Agency maintains that "the 0.1 f/cc OSHA standard is the quantitative level of exposure which must be reached before employees are entitled to hazardous duty pay if safety measures have not practically eliminated the potential for illness or injury. That contention is based on the OSHA regulations in 29 CFR [Code of Federal Regulations] 1926." Exceptions at 7. The Agency contends that the Arbitrator failed to discuss in his award "the quantitative level of asbestos to which employees were exposed [or] whether the protective devices have practically eliminated the potential for illness or injury." Id. at 7-8.
The Agency also contends that the award is deficient because it is based on a nonfact. Specifically, the Agency contends that the Arbitrator incorrectly determined, based on the EPA Study, that there is no safe level for exposure to asbestos. The Agency argues that the Arbitrator took that conclusion out of context from the EPA Study and that he failed to recognize that the EPA had only determined that, without extensive and impractical air sampling, it is difficult to determine what is an acceptable exposure level to asbestos. The Agency contends that the Arbitrator's "unwarranted conclusion" that there is no safe level of exposure "is not based on any fact in evidence." Id. at 5.
B. The Union
The Union contends that the Agency's exception that the award is contrary to law is defective because the Agency has failed to state which law is violated. The Union states that "[t]his omission frustrates understanding of the Agency assertion unless we assume an Agency reference to the Occupational Safety and Health Act of December 29, 1970, PL 91-596." Opposition at 1. The Union contends that the award is consistent with the purposes of the Occupational Safety and Health Act and disputes the Agency's assertion that the award is based on a nonfact. The Union asserts that both EPA and OSHA have determined that there is no safe level of exposure to asbestos and that the Arbitrator's award is in accordance with those determinations.
The Union contends that, prior to 1984, the Agency failed to monitor air quality by taking sufficient air samples and providing medical surveillance for signs of asbestos exposure. The Union claims that that failure "made consideration for payment of hazardous duty pay to potentially exposed employees a useless exercise because no air samples or medical records existed and therefore no proof of exposure existed." Id. at 6. The Union states that in the instant case "proof of potential exposure does exist through the 1988 and 1989 medical surveillance for asbestos records." Id.
The Union disputes the Agency's claim that it has practically eliminated the potential for personal illness or injury due to exposure to asbestos and points out that the medical evidence submitted to the Arbitrator shows that the Agency has failed to eliminate the potential for personal illness. The Union contends that accidental exposure cannot be foreseen or prevented and claims that asbestos locations have not been identified and marked. The Union claims that employees have not received sufficient training.
The Union asserts that the Agency is in error when it contends that the 0.1 f/cc OSHA action level is the quantitative level of asbestos which must be present for entitlement to EDP. The Union also disagrees with the Agency's assertion "that exposure below the action level does not require a medical surveillance program, training or protective clothing and equipment[.]" Id. at 2. The Union contends that the Agency did not use the OSHA action level and personal air samples as the basis for conducting medical surveillance of employees but rather used employees' occupational series as a basis for determining potential for exposure to asbestos and for providing medical examinations.
The Union denies that safety measures have practically eliminated the potential for illness due to asbestos and states that if the Agency were correct in that assertion, "the medical surveillance records would not show lungs contaminated with asbestos fibers." Id. at 17. The Union asserts that "[m]edical evidence proves [A]gency safety measures did not practically eliminate the potential for occupational illness[,]" and that this obviates the need for the Arbitrator "to discuss non-existent recordings of the quantitative level of asbestos to which maintenance workers were exposed[.]" Id. at 19-20. The Union states that "a zero tolerance for asbestos fibers in the lungs as opposed to no safe level for asbestos fibers in the lungs is saying the same thing. The quantitative level of exposure in the instant case is not applicable because air monitoring cannot predict the episodic exposure [Agency] employees experience in their day to day functions in the work place." Id. at 20.
The Union also asks the Authority to find the Agency "derelict" for failing to have an occupational safety and health program in force from 1972 to 1982 and "to include all maintenance employees employed in the Kansas City North and South Groups in this back pay claim for hazardous duty pay for potential exposure from March 9, 1975 to the present time." Opposition at 21-22.(*)
IV. Analysis and Conclusions
With respect to the Union's contention that the Agency's exception should not be considered because the Agency failed to state a specific law that the Arbitrator's award violates, we conclude that the Agency's exception should be considered. The Agency alleges that the award is contrary to the provisions governing payment of EDP contained in FPM Supplement 532-1, Subchapter S8-7, Appendix J. Those regulatory provisions implement 5 U.S.C. § 5343(c)(4). Consequently, the Agency's exception that the award is contrary to law states a ground on which an award may be found deficient under section 7122(a) of the Statute. For the following reasons, however, we find that the Agency has failed to establish that the award is contrary to law or that the award is deficient because it is based on a nonfact.
Category 16 of Appendix J conditions the payment of EDP on findings that: (1) employees are working in areas where airborne concentrations of asbestos fibers may expose them to potential illness or injury; and (2) protective devices or safety measures have not practically eliminated the potential for such personal illness or injury. See U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma and American Federation of Government Employees, Local 171, 37 FLRA 559 (1990) (FCI, El Reno). The specific work situations for which an environmental differential is payable under the categories of FPM Supplement 532-1, Appendix J, are left to local determination, including arbitration. Id. at 563.
The thrust of the Agency's exception that the award is contrary to law is that the Arbitrator erred when he "disregarded the OSHA action level and permissible exposure standards." Exceptions at 2. The Agency contends that "the 0.1 f/cc OSHA standard is the quantitative level of exposure which must be reached before employees are entitled to hazardous duty pay if safety measures have not practically eliminated the potential for illness or injury[,]" and maintains that the Arbitrator failed to find a threshold quantitative level of exposure in making his award. Id. at 7. However, there is no requirement in Appendix J which conditions the payment of EDP for exposure to asbestos on OSHA standards. Rather, as noted above, the specific work situations for payment of EDP under Appendix J are matters for local determination. FCI, El Reno, 37 FLRA at 563.
The Arbitrator did not find, and the record does not otherwise show, that the OSHA standard had been adopted by the parties as the threshold quantitative level for payment of EDP under Appendix J. Rather, the Arbitrator, acting within his authority to make such a determination, found that the conditions set forth in Appendix J were met in the case of maintenance employees because, based on the record, maintenance employees who work in the vicinity of bulk asbestos are subject to unpredictable, episodic exposures to asbestos fibers in amounts "which may potentially expose [them] to a hazard for which safety devices and safety measures have not practically eliminated the hazard." Award at 6 (emphasis deleted). We conclude that the Arbitrator's finding satisfies the requirements of Appendix J that there be a finding of potential illness or injury.
In our view, the Arbitrator's award is consistent with the requirements of O'Neall. As the Authority noted in Allen Park Veterans Administration Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091, 1100 (1990) (Allen Park VAMC), although the court in O'Neall required the setting of a quantitative level of exposure reasonably related to potential illness as a condition precedent to entitlement to EDP, the court in O'Neall did not rule that all agencies must adopt the OSHA standard. The Agency has pointed to nothing in its regulations or in the parties' collective bargaining agreement which states that exposure at the OSHA action level or the permissible exposure level is linked to the payment of EDP. There is, therefore, no basis on which to conclude that EDP may not be paid to employees unless their exposure to airborne concentrations of asbestos fibers exceeds 0.1 or 0.2 f/cc.
Moreover, the Government-wide regulation applicable here, Appendix J, conditions the payment of EDP on a finding of "potential illness or injury." Nothing in the record of this case supports a conclusion that there is a potential for illness or injury only if the level of exposure exceeds 0.1 or 0.2 f/cc. Accordingly, as parties are free to determine through negotiations and arbitration the situations in which EDP is payable under Appendix J, we reject the Agency's assertions that in order to award EDP, the Arbitrator was required by law to find that the grievants' exposure to airborne concentrations of asbestos fibers exceeded 0.1 f/cc. See FCI, El Reno. See also Allen Park VAMC, 34 FLRA at 1100 (arbitrator's finding "as a matter of law and fact that there is no quantitative threshold level below which exposure will not have the potential of illness or injury" satisfied requirement of Appendix J).
We also conclude that the Agency has failed to show that the award is deficient because it is based on a nonfact. To show that an arbitrator's award is deficient because it is based on a nonfact, the asserting party must show that the central fact underlying the award is concededly erroneous, a gross mistake of fact, and that but for the arbitrator's reliance upon such fact, a different result would have been reached. See, for example, U.S. Small Business Administration, Atlanta, Georgia and American Federation of Government Employees, Local 3906, 37 FLRA 137, 145 (1990).
The Agency contends that the Arbitrator based his award on the erroneous conclusion "that 'the EPA has established that there is a zero tolerance for asbestos fibers in the lungs'" and argues that "[this unwarranted conclusion] is not based on any fact in evidence." Exceptions at 5, citing Award at 4 (emphasis deleted). The Agency claims that the statement relied on by the Arbitrator was taken out of context and should be interpreted in view of the lack of sufficient information on which to set acceptable exposure levels. However, the Agency has not shown that the Arbitrator's statement regarding zero tolerance is concededly erroneous or that it constitutes a gross mistake of fact. The Arbitrator relied on the EPA Study, which states, among other things, that "[n]o safe threshold has been established for asbestos." EPA Study at 5, found at Exceptions, Attachment 5. The EPA Study also discusses the difficulty of establishing acceptable exposure levels due to the lack of and expense of gathering supporting information and states that "the options for risk reduction in this report do not include the setting of an acceptable level of exposure to asbestos with accompanying air monitoring." Id. at 21. Nothing in the EPA Study establishes that the Arbitrator's statement was concededly erroneous. Therefore, we find that the Agency's exception fails to show that the award is deficient.
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
*/ We view this request as an exception to the award by the Union. The time limit for filing an exception to an arbitration award with the Authority is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). The Arbitrator's award is dated December 27, 1989. The Union's opposition containing the exception was received by the Authority on March 5, 1990. Therefore, we will not consider the Union's exception because it was untimely filed. See Panama Canal Commission and International Organization of Masters, Mates and Pilots, 27 FLRA 907 (1987).