[ v40 p958 ]
The decision of the Authority follows:
40 FLRA No. 80
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Norman Brand filed by 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 Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance over the Agency's failure to provide cold weather protective clothing to four employees when they were required to work outside. For the following reasons, we find that the Union has failed to establish that the award is deficient. We will, therefore, deny the exceptions.
II. Background and Arbitrator's Award
The Agency's facility is located in an area of the country that experiences extremely cold weather during the winter. Certain employees who work on the flightline are permitted to request from the Agency safety boots that are specifically designed for cold weather. Employees who work in the facility's air freight terminal receive certain foul weather gear in accordance with an arbitration award issued in 1975. In addition, fuelers who work on the flightline are provided with special clothing. Generally, maintenance employees work inside hangars repairing and maintaining engines. However, certain large aircraft cannot fit into hangars and, on occasion, there is a lack of hangar space for even the smaller aircraft. When these situations have arisen, employees have been required to do some work outside.
Four employees who maintain jet engines were required to work outside and requested cold weather protective clothing from the Agency. Their request was denied. The Agency agreed that, in order for the employees to be able to work safely, the existing weather conditions required protective clothing such as parkas and thermal underwear. However, the Agency did not believe that it was authorized to issue cold weather clothing in light of the provisions of AFM 67-1, Vol. II, relating to the issuance of such equipment to employees.(1) Accordingly, the Agency sought guidance from the Air Force Logistics Command Headquarters at Wright-Patterson Air Force Base as to whether it could provide cold weather protective clothing to the grievants.
The Agency was advised that, in the Headquarter's view, the clothing requested was not required to protect employees from exposure to physical hazards, but rather was necessitated by the climatic conditions in Ogden, Utah. Therefore, the Headquarters concluded that, as the pertinent provisions of AFM 67-1 mandated that civilians provide for themselves clothing appropriate to the climatic area in which they live, the Agency was not authorized to issue cold weather clothing to the grievants.
A grievance was filed over the Agency's refusal to provide the protective clothing. The grievance was not resolved and was submitted to arbitration on the following stipulated issue:
Did Ogden AFLC violate Section 25.05 of the MLA by failing to provide cold weather protective clothing to the four individuals who filed grievance 89-02-06, when they were required to work outside? If so, what is the remedy?
Award at 2.
Before the Arbitrator, the Union argued that, as the Agency issues foul weather gear to other civilian employees working outside, the refusal to provide the clothing to the grievants constituted "disparate treatment." Id. at 7. The Union further contended that the Agency's obligation to provide the requested clothing was established in Section 25.05 of the parties' collective bargaining agreement.(2) According to the Union, when the employees' workload changed to include outdoor winter work, the Agency was obliged, in accordance with that section of the agreement, to seek a change in Air Force regulations so that it could issue protective clothing to the grievants.
The Arbitrator concluded that the Agency did not violate the collective bargaining agreement. The Arbitrator found that "Section 25.05 is clear and unambiguous. It provides that the issuance of protective equipment will be strictly governed by the criteria contained in applicable Air Force Regulations and Directives." Id. at 8. The Arbitrator found that "[o]n its face, the relevant Air Force policy requires civilians to provide clothing appropriate to the climatic conditions in which they work." Id. The Arbitrator noted that the Union had cited no rule, directive, or other authority requiring or permitting the Agency to provide civilian employees with clothing to protect them from the winter cold in Ogden, Utah. Although noting that the Agency does provide some equipment to certain employees pursuant to an earlier arbitration award and to other employees in accordance with an agreement, the Arbitrator concluded that neither of such actions "can substitute for the specific regulation or directive required" by the collective bargaining agreement. Id. at 9.
In conclusion, the Arbitrator held that while "the Union may consider it disparate treatment that only certain employees working on the flightline receive 'foul weather' equipment, 'equal treatment' is not the standard . . . to which the Union and Agency have agreed. Rather, in accordance with Section 25.05, they have agreed that issuance of protective equipment will be 'strictly governed by criteria' which are contained in appropriate Air Force policies, regulations, and directives." Id. As the Arbitrator found that those criteria "neither require nor permit the issuance of 'foul weather gear'" to the grievants, the Arbitrator denied the grievance. Id.
III. The Union's Exceptions
The Union contends that the Arbitrator's award is deficient because it "violates law; specifically, 5 U.S.C. 7701(c)(2)(A), harmful error, and the collective bargaining agreement." Exceptions at 1. Specifically, the Union argues that the Arbitrator "erred when he failed to consider that exposure to wind chill, extreme cold temperatures, and frostbite" constitutes a "physical hazard" which would allow for the issuance of protective clothing under Air Force regulations. Id. at 2.
The Union disputes the Arbitrator's conclusion that the Union cited no rule, directive, or other authority which would support the Union's contentions. Rather, the Union asserts that the "record is replete with applicable contractual, regulatory, and binding arbitrator authority" authorizing the issuance of protective clothing. Id. The Union maintains that the applicable provisions of AFM 67-1, Vol. II allow for such issuance. Finally, the Union asserts that the record establishes that some Agency employees do receive cold weather gear and that, as "[e]qual treatment is the mainframe [sic] of American society[,] . . . [t]o deny certain individuals the same treatment . . . that others enjoy, flies in the face of equal treatment and equal opportunity in the work place." Id. at 2-3.
IV. The Agency's Opposition
The Agency argues that applicable Air Force policy requires civilian employees to provide their own clothing appropriate for seasonal climatic conditions and that the Agency's provision of protective clothing is contingent upon a determination that the climate conditions being experienced are not normal for the geographic area in which employees are required to work. Accordingly, the Agency asserts that, as the Union provided no regulatory or other authority for the issuance of foul weather gear to the grievants, the Arbitrator's award is consistent with the collective bargaining agreement and applicable regulations and is, therefore, not deficient.
V. Analysis and Conclusions
We conclude that the Union's exceptions provide no basis for finding that the Arbitrator's award is deficient. We construe the Union's exception that the award violates the collective bargaining agreement as a contention that the award fails to draw its essence from the agreement because the Arbitrator concluded that Section 25.05, and the applicable governing authorities referenced in that section, do not require the Agency to provide protective clothing in the circumstances of this case. For an award to be found deficient because it fails to draw its essence from a collective bargaining agreement, it must be demonstrated that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 35 FLRA 1267, 1270-71 (1990).
The Union has not demonstrated that the Arbitrator's interpretation of the parties' agreement renders the award deficient under any of the tests set forth above. Furthermore, the Union has not demonstrated that the Arbitrator's interpretation of the pertinent provisions of AFM 67-1, Vol. II is incorrect. Both the Agency's Command Headquarters and the Arbitrator determined that AFM 67-1 precluded the Agency's issuance of cold weather clothing to the grievants, and the Union fails to establish otherwise. We find that in disputing the Arbitrator's conclusion, the Union is merely disagreeing with the Arbitrator's interpretation of the parties' agreement and applicable Agency policy and is attempting to relitigate the issue presented before the Arbitrator. Accordingly, the exception provides no basis for finding the award deficient under section 7122(a) of the Statute. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center and American Federation of Government Employees, Local 2206, 38 FLRA 1170, 1177-78 (1990).
To the extent that the Union is contending that the Arbitrator was bound to apply the harmful-error rule as it would have been applied by the Merit Systems Protection Board (MSPB) pursuant to 5 U.S.C. § 7701(c), that contention is also without merit. We have repeatedly held that arbitrators are not bound by the same substantive standards as the MSPB when resolving grievances over actions not covered by 5 U.S.C. §§ 4303 and 7512. For example, U.S. Department of Justice, Immigration and Naturalization Service, Jacksonville, Florida and American Federation of Government Employees, National Border Patrol Council Local 3725, 36 FLRA 928, 932 (1990); Department of the Air Force, Griffiss Air Force Base and American Federation of Government Employees, Local 2612, 34 FLRA 712, 714-15 (1990). As this case involves the provision of protective clothing, it is not covered by 5 U.S.C. §§ 4303 or 7512, and, therefore, no basis is provided for finding the award to be contrary to 5 U.S.C. § 7701(c), as alleged by the Union.
Finally, we note that although the Union claims that the grievants have not received "equal treatment" or "equal opportunity," there is no indication in the record or the Union's exceptions that the Agency unlawfully treated the grievants in a disparate manner or denied them equal opportunity based upon unlawful considerations.
Accordingly, we will deny the Union's exceptions.
The Union's exceptions are denied.
C. It is the Department of the Air Force policy that civilians accepting employment provide the normal work and seasonal clothing required for climatic conditions in the geographical area where they work. This policy also applies to the position for which they are employed. Seasonal clothing which civilians who live in cold weather buy for themselves include items such as parkas, cold weather footwear, thermal underwear, and other seasonal articles whether or not they are listed in appropriate Tables of Allowances (TAs). These items are considered normal clothing requirements for persons residing in the area regardless of employment assignment. The Air Force may provide special purpose clothing shown in TA016 (clothing not normally considered a part of the regular attire for a specific geographical area) to civilian employees under the following conditions:
(1) Contract agreement. When specified in the employment/contract agreement between a particular individual and the Air Force, the Air Force may provide clothing.
(2) Abnormal exposure to biological, chemical, or physical hazards. When special protective clothing or equipment is required for occupational protection against biological, chemical, or physical hazards, the requirement should be specified in safety and health guidance of the AFOSH Standards; Technical Orders; or Air Force, Command, or local regulations. If a requirement is not specific, it is nonexistent for specific operations, the local Safety or Bioenvironmental Engineering Office (whichever is appropriate) will determine and validate the need for protective clothing and equipment.
Section 25.05: PROTECTIVE CLOTHING, EQUIPMENT TOOLS.
The Employer agrees to provide to employees any required tools and safety protective equipment, reasonably fitted safety clothing, and devices necessary to provide protection of employees from hazardous conditions encountered during the performance of official duties. Such equipment will be provided as authorized by applicable Air Force regulations and directives (such as Technical Orders, Table of Allowances, and local supplements thereto, etc.), and issuances shall be strictly governed by criteria contained in those authorities. The Union agrees to assist the Employer in aggressively publicizing the benefits of the use of protective devices and equipment by employees, and their adhering to good safety practices, policies and procedures.
Section 25.09: TEMPERATURE CONDITIONS.
The parties recognize that temperature conditions in and around work areas can have direct bearing on employees' comfort, morale, health, and safety. In determining the stress that temperature extremes may place upon an individual employee, the personal comfort and health of the employee will be taken into consideration as well as related factors such as wind, chill factor, airflow, the work to be performed, and similar considerations. Where the Employer's Bioenvironmental's Office determines that the effective temperature in a particular work area or site exceeds recognized standards for the degree of work being performed, the Employer will take precautionary measures to reduce the risk to employees so exposed. Such measures will include reduction of work being performed, increased frequency or duration of rest periods, etc. This Section shall apply to both heat and cold exposure situations. Protective clothing for such situations will be provided where authorized in accordance with Section 25.05.
(If blank, the decision does not have footnotes.)
1. The relevant portions of AFM 67-1, Vol. II are set forth in Appendix A to this decision.
2. Section 25.05 and Section 25.09, also found relevant by the Arbitrator, are set forth in Appendix B to this decision.