[ v41 p710 ]
41:0710(67)AR
The decision of the Authority follows:
41 FLRA No. 67
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 Kinard Lang 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 to the Agency's exceptions.
The grievance in this case alleged that the Agency violated the parties' collective bargaining agreement by failing to provide employees with a safe and healthful work environment. The Arbitrator sustained the grievance and directed the Agency to: (1) treat employees' absences from work due to the employees' exposure to unsafe conditions as administrative leave; (2) reimburse employees' medical expenses; and (3) pay interest on any reimbursement that is not paid within 90 days.
For the following reasons, we conclude that the portion of the award directing the payment of employees' medical expenses and interest is contrary to law. Accordingly, that portion of the award must be set aside.
II. Background and Arbitrator's Award
On December 13, 1988, between 4:00 p.m. and 5:00 p.m., employees from the Underreporter Branch of the Internal Revenue Service, Philadelphia Service Center complained to managers that odorous fumes were emanating from the mezzanine floor of the Agency's south building. The mezzanine floor is located immediately above the Underreporter Branch. The managers investigated the source of the odor and determined that no further action on the complaints was warranted.
Prior to the complaints of odorous fumes, an Agency contractor's crew had poured approximately 8000 square feet of fresh concrete onto the mezzanine floor. After it was poured, the concrete was treated with a petroleum-based sealant, "Cure Seal." The material safety data sheet for "Cure Seal" states, in part, the following precautions:
Use with adequate ventilation. Avoid skin contact and breathing of vapors for prolonged periods of time in an enclosed area . . . . Inhalation of high vapor may have results ranging from dizziness and headaches to uncon[s]ciousness . . . . If overcome by vapor, remove from exposure immediately: call a physician. If breathing is irregular or stopped, start resuscitation, administer oxygen . . . .
Arbitrator's Award at 1.
Throughout the evening of December 13, 1988, an Agency manager located in the north building visited the south building. During each visit, he noticed that the odor was growing worse. At approximately 11:00 p.m., he entered the south building in response to a telephone call and testified that "his eyes immediately began to burn." Id. Upon arriving in the Underreporter Branch, the manager discovered that a woman had "been seen passed-out on the floor and other personnel were bent over chairs, coughing." Id. at 2. After consulting with the nurse and with other managers, the manager allowed the affected employees to depart at 11:30 p.m.--approximately 1 hour before completing their work shift. Employees received administrative leave for the missed work time.
The second shift assigned to the Underreporter Branch was scheduled to work from midnight to 8:30 a.m. on December 14, 1988. The arriving personnel who testified before the Arbitrator stated that they "experienced the odorous fumes." Id. Although management urged the employees to stay at work, the Underreporter Branch employees who testified all left work within about 1 hour of their arrival because "the odorous fumes did not permit them to stay." Id. None of the employees from the second shift received administrative leave. They were required to use sick, annual, or unpaid leave.
A third group of employees reported for work in the Underreporter Branch at 6:30 a.m. on December 14, 1988. The employees testified that they experienced "nausea, difficulty breathing and dizziness." Id. Some of the employees complained to management and received administrative leave time to see the nurse. Other personnel, including supervisors, took periodic breaks to get fresh air, while still others did not leave their work stations. Management placed fans in the affected area in an attempt to dissipate the fumes.
The employees who saw the nurse were supplied with various medications and went to the cafeteria to await information on the nature of the fumes and on whether employees would be excused from work if the fumes had not abated. Management advised the employees in the cafeteria to return to work, arguing that the fumes were an insufficient basis for disrupting work or granting administrative leave. However, one employee testified that "[m]anagement could not give us any answers as to really what the fumes were, so we weren't going to report back." Id. at 3.
Ultimately, the employees who felt that returning to work could be hazardous to their health were permitted to leave work approximately 4 hours before the end of their shift. None of the employees from the third shift received administrative leave. They were required to use sick, annual, or unpaid leave.
On December 15, 1988, the Union filed a grievance on behalf of 83 employees asserting that the Agency violated the portion of the parties' agreement on health and safety by telling employees to remain in an unsafe work area. As a remedy, the Union requested that employees be made whole and that "[a]ll employees be given Administrative Leave for the time they used on 12/14/88 because of inadequate working conditions." Id. On December 23, 1988, the Union filed another grievance requesting hazard pay because the Agency "did not live up to its contractual obligations to provide employees with a safe and healthful working environment." Id.
On January 30, 1989, the Union sent notes to the Agency requesting that an informal meeting be held on combining the two grievances and reminding the Agency that more than 10 days had passed since the first request for an informal meeting.
Following a fourth step grievance meeting, the Agency denied the grievance over "the payment of four (4) hours administrative leave for employees who went to the health unit on December 14, 1988, then requested leave due to fumes in their work area." Id. at 4. The Union requested that the grievance proceed to the fifth step but mentioned no remedy in its letter to the Agency. In its fifth step reply, the Agency denied the grievance over "the payment of four (4) hours administrative leave for employees who requested sick/annual/leave without pay on December 14, 1988, due to fumes in their work area." Id. Subsequently, the Union took the matter to arbitration.
The parties were unable to agree on a stipulated issue. Therefore, the Arbitrator framed the issue as follows: "Did the Agency violate the parties' Agreement and/or applicable Government-wide rules or regulations on December 13th and/or 14th, 198[8] when a contractor, employed by the Agency, applied an industrial chemical to the concrete floor in the vicinity of the grievant[s'] work area; if so, what shall the remedy be?" Id., Title Page.
The Union argued before the Arbitrator that all employees who missed work due to their exposure to noxious fumes on December 14, 1988 should be granted hazard pay for the hours they worked on that date and administrative leave for any work time missed.
The Agency argued before the Arbitrator that management did not abuse its discretion in granting administrative leave only to employees who were about to complete their shift. The Agency further argued that the issue of hazard pay was not raised in a timely manner and that none of the remedies requested by the Union are authorized under the parties' agreement.
The Arbitrator found that the Union's request for hazard pay was untimely and, therefore, was not properly before the Arbitrator. The Arbitrator sustained the remainder of the grievance.
The Arbitrator noted that "on the morning of December 14th[,] many employees sought the services of the Agency's nurse; two visited hospital emergency rooms, and one placed a call to the Poison Control Center." Id. at 6. These circumstances, the Arbitrator found, "simply do not allow a reasonable person to conclude that all [of] the affected personnel were simply seeking to 'play hooky' and get paid for it." Id. Further, the Arbitrator noted that the varying reactions that people had to the fumes were significant "as positive proof of the importance of clear and open communications regarding the existence of hazardous chemicals in the work place." Id. at 7.
The Arbitrator noted that Article 27 of the parties' agreement provides in part
The Employer will, to the extent of its authority and consistent with the applicable requirements of Title 29 of the Code of Federal Regulations, provide and maintain safe and healthful working conditions for all employees and will provide places of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.
Id. at 8. Examining the provisions of Title 29, Code of Federal Regulations, the Arbitrator determined that employees exposed to "Cure Seal" had been exposed to a hazardous chemical within the meaning of 29 C.F.R. § 1910.1200(c). Further, the Arbitrator noted that employers are required "to provide their personnel with information on the basis of which personnel exposed to, or potentially exposed to hazardous chemicals may make rational decisions regarding their physical health and safety[.]" Id. at 7. Such information includes the "operations in their work area where hazardous chemicals are present" and material safety data sheets describing the "health hazards of the hazardous chemical, including signs and symptoms of exposure, and any medical conditions which are generally recognized as being aggravated by exposure to the chemical[.]" Id., citing 29 C.F.R. § 1910.1200(h).
The Arbitrator found that the Agency was bound by the requirements of 29 C.F.R. § 1910. The Arbitrator further found that none of the personnel in the Underreporter Branch knew in advance, or were told after being exposed to the fumes, what the effects of inhaling "Cure Seal" could be. Based on "[t]he testimony of the Agency manager and the nurse[,]" the Arbitrator concluded that "on the evening of December 13, 1988 the conditions in the area of the Underreporter Branch were in violation of Article 27, Health & Safety, of the Agreement[.]" Id. at 8. The Arbitrator noted that the "fact that no employee died, and that there is no present evidence of permanent serious physical injury to any of the affected personnel does not . . . shield the Agency from the requirement to provide 'healthful working conditions for all employees[.]'" Id. (emphasis in original). The Arbitrator further concluded that the fumes had not sufficiently dissipated on December 14, 1988 and, in view of "the Agency's continued failure to provide the information required by 29 CFR," found no support for the Agency's denial of administrative leave for employees affected by the fumes on December 14. Id.
In fashioning a remedy for the Agency's violation of the parties' agreement, the Arbitrator relied on the decision of another arbitrator in a case involving another Internal Revenue Service District Office which failed to maintain a safe and healthful workplace and was required, in part, to restore annual and sick leave to its employees and to pay for unit employees' medical care costs. Accordingly, to remedy the violation in this case, the Arbitrator required the Agency to take the following action: (1) treat the absences of employees exposed to "Cure Seal" on December 13 or 14, 1988 as administrative leave; (2) within 90 days, reimburse the medical expenses of employees who produce "clear and convincing evidence of experiencing unreimbursed medical expenses, as the result of physical examinations and/or treatment, due to their exposure to 'Cure Seal' odorous fumes, on December 13, or 14, 1988"; and (3) pay interest at a rate of 10 percent per annum on any reimbursement not paid within 90 days. Id. at 9.
III. Positions of the Parties
A. The Agency's Exceptions
The Agency argues that the Arbitrator exceeded his authority in requiring the Agency to grant administrative leave to employees and to reimburse employees' medical expenses. The Agency acknowledges that the provisions of Article 27 of the parties' agreement "clearly impose a duty on the [A]gency to provide a safe and healthy work environment for the employees." Agency's Exceptions at 6. However, the Agency asserts that it "acted to abate the problem as soon as it was discovered" and that, therefore, the Agency "was in compliance with the terms of the [] agreement." Id. at 6-7.
Further, the Agency contends that: (1) the provisions of Article 27 do not provide for administrative leave or payment of medical expenses for a violation of the provisions; (2) the only provision in the parties' agreement addressing administrative leave "does not provide for the granting of administrative leave under the facts presented"; and (3) the portion of the parties' agreement addressing an arbitrator's authority expressly states that "[a]ny award may not include the assessment of expenses against either party other than as agreed to in this Agreement." Id. at 3, 7 (emphasis in original).
As there is no provision of the parties' agreement which authorizes administrative leave or the payment of medical expenses for employees who may have been exposed to fumes in the workplace, the Agency contends that the Arbitrator not only exceeded his authority, but also rendered an award which fails to draw its essence from the parties' agreement.
The Agency further contends that the award is contrary to law and regulation. In this regard, the Agency argues that the award of administrative leave is contrary to provisions of the Federal Personnel Manual (FPM) which state that "the granting of administrative leave is purely a discretionary decision within the control of agency management." Id. at 8, citing FPM, Supplement 990-2, Book 630, Subchapter 11, Excused Absence, Part 11-5. The Agency notes that the FPM provides for administrative leave in certain situations. As "[n]one of the enumerated examples [noted in the FPM] concern the situation in this case[,]" the Agency argues that "this is not a situation where the FPM generally requires that administrative leave be granted." Id. Further, by ordering management to provide employees with administrative leave, the Agency contends that the award violates the portion of the FPM providing that administrative leave is to be granted in management's discretion.
The Agency also argues that the grant of administrative leave is contrary to previous Authority decisions that: (1) reversed an arbitration award providing administrative leave to a union official who was improperly denied official time, Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 3231, 19 FLRA 932 (1985) (AFGE); and (2) found nonnegotiable a union proposal mandating the situations in which administrative leave must be granted, Fort Bragg Association of Educators, NEA and Department of the Army, Fort Bragg Schools, 30 FLRA 508 (1987) (Proposal 23) (Fort Bragg), reversed as to other matters sub nom. Fort Bragg Association of Educators, NEA v. FLRA, 870 F.2d 698 (D.C. Cir. 1989).
Finally, the Agency contends that the portion of the remedy awarding medical expenses is contrary to the Federal Employee's Compensation Act, 5 U.S.C. § 8101, et seq. (FECA).
B. The Union's Opposition
The Union contends that the Agency has failed to show that the award "cannot in any rational way be derived from the agreement or that, on its face, the award does not represent a 'plausible interpretation of the contract.'" Union's Opposition at 7. In this regard, the Union states that Article 27, Section 3 of the parties' agreement "recognizes an employee[']s right to withhold their services, without charge to leave, if unsafe conditions exist." Id. at 10 (emphasis in Union's Opposition). The Union also argues that the award of administrative leave is within the Arbitrator's authority. The Union states that the parties' agreement "bestows further authority on the arbitrator to 'make an aggrieved employee whole to the extent such remedy is not limited by law.'" Id. As the Agency violated the contract and as arbitrators have considerable latitude in fashioning remedies, the Union argues that the Arbitrator in this case "merely fashioned a plausible remedy to make the grievants whole, consistent with his interpretation of the contract." Id. at 12.
The Union further argues that the award of administrative leave is consistent with law and regulation. The Union contends that the Agency's regulations authorize the Agency to grant administrative leave in situations similar to this case. Moreover, the Union rejects the Agency's reliance on previous Authority decisions that reversed arbitration awards providing administrative leave to union officials. The Union distinguishes the cases noted by the Agency because those cases involved arbitration awards that granted administrative leave to union officials who had wrongfully been denied official time. The Union contends that those cases were not modified due to a "blanket prohibition" on awards of administrative leave, but because of "the exclusivity of the particular statutory provisions [on official time] at issue." Id. at 14.
With respect to the portion of the remedy granting reimbursement for employees' medical expenses, the Union argues that the remedy is consistent with the parties' agreement. The Union asserts that the FECA does not apply to this case because the injuries involved were "not of the disabling type contemplated by [the] FECA." Id. at 17. Even if the FECA were applicable, the Union contends that the FECA does not preclude the remedy in this case because the FECA was not intended to exclude remedies available under the negotiated grievance procedure for contractual violations. The Union also cites other laws that provide relief to employees injured in the course of employment. According to the Union, if the FECA were found to be the exclusive forum for employees injured in the course of employment, "employees would be denied full compensation for injuries arising out of contract violations[.]" Id. at 18.
IV. Analysis and Conclusions
For the following reasons, we find that the portion of the award directing the Agency to treat the absences of employees exposed to "Cure Seal" on December 13 or 14, 1988 as administrative leave is not deficient. We further find, however, that the portion of the award requiring the Agency to reimburse employees for medical expenses and to pay interest on those reimbursements is contrary to law.
A. Administrative Leave
The Agency argues that the portion of the remedy requiring the Agency to treat the absences of employees exposed to "Cure Seal" on December 13 or 14, 1988 as administrative leave is deficient because: (1) this portion of the award is contrary to law and regulation; (2) the Arbitrator exceeded his authority; and (3) the award fails to draw its essence from the parties' agreement.
1. The Award Is Not Contrary to Law and Regulation
We reject the Agency's argument that the portion of the remedy requiring the Agency to treat the absences of employees exposed to "Cure Seal" as administrative leave is contrary to law and regulation. The Authority has previously held that the restoration of leave is an appropriate remedy under the Back Pay Act, 5 U.S.C. § 5596, when employees incurred the use of leave as the result of the agency's failure to provide a safe and healthful workplace. National Treasury Employees Union, NTEU Chapter 51 and Internal Revenue Service, Wichita District Office, 40 FLRA 614 (1991) (IRS, Wichita).
In this case, the Arbitrator found that the Agency violated the parties' agreement by failing to provide a safe and healthful workplace when employees were exposed to "Cure Seal" fumes. The Arbitrator further found that employees became ill as a result of their exposure to "Cure Seal" and that the illnesses required some of the employees to use leave. Accordingly, the Arbitrator ordered that the employees' leave be treated as administrative leave.
Administrative leave constitutes an absence without charge to leave. See Military Department of Arkansas, Office of the Adjutant General, Arkansas National Guard and Local 1671, National Federation of Federal Employees, 23 FLRA 114, 115 (1986); SSA. As an agency restoring leave to employees generally must record the absence as administrative leave, we find no meaningful distinction between the Arbitrator's formulation of the remedy in this case and the arbitrator's remedy restoring leave in IRS, Wichita.
Moreover, the Arbitrator in this case found a direct connection between the use of leave and the basis for a contract violation. Therefore, consistent with our decision in IRS, Wichita, we also conclude that the Arbitrator made the requisite findings under the Back Pay Act for an award ordering that employees' leave be treated as administrative leave.
Next, we reject the Agency's contention that this portion of the remedy is contrary to Authority precedent. The Agency argues that the Arbitrator's grant of administrative leave is contrary to AFGE, in which the Authority modified an arbitration award providing administrative leave to a union official who was improperly denied official time. For the following reasons, we find that the Agency's reliance on AFGE is misplaced.
In AFGE, the Authority found that the arbitrator's remedy was inconsistent with section 7131(d) of the Statute because "the Statute effectively provides a remedy when official time under section 7131(d) of the Statute is wrongfully denied[.]" AFGE, 19 FLRA at 933. In this regard, the Authority stated that the arbitrator "should have granted the grievant [union official] compensation for that amount of time spent performing union representation duties in other than a leave status[,]" rather than administrative leave. Id. at 934. Further, the Authority noted that "corrective action for the denial of official time is not indicated [in the FPM] as an appropriate situation for the granting of administrative leave[.]" Id. at 933. See n.*, below.
AFGE concerned only the appropriate remedy for a violation addressed by section 7131(d) of the Statute and not the scope of arbitrators' remedial authority in other situations. As the situation in this case does not concern section 7131(d), we find that this case is distinguishable from AFGE. Accordingly, we reject the Agency's reliance on AFGE.
The Agency further argues that this portion of the remedy is contrary to Fort Bragg, in which the Authority found that a proposal mandating the situations in which administrative leave must be granted interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute. To the extent that the Agency argues that the Arbitrator's enforcement of Article 27 of the parties' agreement interferes with management's right to assign work, we reject that argument for the following reasons.
Even if a contract provision mandating the situation in which administrative leave must be granted would be found, in a negotiability context, to directly or excessively interfere with a management right, that fact would not necessarily preclude the same type of provision from being found to be an enforceable appropriate arrangement in an arbitration context. See Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service). When an agency contends that an arbitrator's award enforcing a provision of the parties' collective bargaining agreement is contrary to section 7106(a), we will examine the provision enforced by the arbitrator to determine: (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights; and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right. Customs Service, 37 FLRA at 313-314.
In this case, Article 27 of the parties' agreement requires the Agency
consistent with the applicable requirements of Title 29 of the Code of Federal Regulations, [to] provide and maintain safe and healthful working conditions for all employees and [to] provide places of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.
Agency's Exceptions at 5-6. Article 27 also requires the Agency to: (1) inform employees when a hazardous condition is present; and (2) recognize the employees' right under 29 C.F.R. § 1960 to be free from reprisal, including charge to leave, when employees decline to perform their assigned tasks due to hazardous conditions.
Article 27 attempts to ameliorate adverse effects on employees of having to work under hazardous conditions by requiring management to inform employees of hazardous conditions and preventing management from charging leave to employees who do not perform assigned tasks due to the hazardous conditions. Therefore, we find that the provision constitutes an arrangement for employees adversely affected by the exercise of management's right to assign work.
The Arbitrator found that the Agency violated Article 27 by exposing employees to "Cure Seal" fumes and failing to inform employees of the "health hazards of the hazardous chemical[.]" Arbitrator's Award at 7. Noting that many employees sought medical treatment for their exposure to the fumes, the Arbitrator found no support for the Agency's denial of administrative leave for those employees. As the Arbitrator found that the employees' absences were directly related to their exposure to a hazardous chemical, we find that the Arbitrator was enforcing Article 27 of the parties' agreement when he ordered the Agency to treat the employees' absences as administrative leave.
Moreover, we find that the Arbitrator's enforcement of Article 27 does not abrogate the Agency's right to assign work. Article 27 affects only certain types of work assignments. Specifically, Article 27 precludes the Agency from charging employees leave when employees decline to perform assigned tasks due to hazardous conditions at the workplace. Article 27 merely requires the Agency to do what is required under 29 C.F.R. § 1960. It does not affect work assignments when hazardous conditions are absent from the workplace, nor does it address situations when employees fail to perform assigned tasks for reasons not encompassed by 29 C.F.R. § 1960.
We also reject the Agency's argument that the Arbitrator's remedy conflicts with the FPM because "[n]one of the enumerated examples [noted in the FPM] concern the situation in this case" and, therefore, "this is not a situation where the FPM generally requires that administrative leave be granted." Agency's Exceptions at 8. The following are the examples noted in the FPM of situations when agencies commonly grant excused absences without charge to leave: (1) blood donation; (2) tardiness and brief absence of less than 1 hour; (3) taking examinations; (4) conferences or conventions; and (5) representing employee organizations. FPM Supplement 990-2, Chapter 630, Subchapter 11, Excused Absence, Part 11-5. The list is not intended to be exhaustive, and, therefore, agencies have the discretion to grant excused absences in other situations. See, for example, National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 612-13 (1988) (Proposal 38.26, Section D), enforced in part as to other matters sub nom. Nuclear Regulatory Commission v. FLRA, 895 F.2d 152 (4th Cir. 1990) (agency required to negotiate over a proposal providing that management will give reassigned employees administrative leave to attend counseling); and National Federation of Federal Employees, Local 1994 and Military Entrance Processing Station, Boston, Massachusetts, 27 FLRA 968 (1987) (Provision 3) (agency must negotiate over a provision requiring management to grant employees excused absences should dangerous conditions arise at the work place). Accordingly, we reject the Agency's assertion that the FPM precludes this remedy because the situation involved in this case is not listed in the FPM.(*)
We further note the Agency's argument that the remedy violates FPM Supplement 990-2, Chapter 630, Subchapter 11, Excused Absence, Part 11-5 because management did not exercise its discretion to order administrative leave for the grievants when they were exposed to "Cure Seal" fumes. While that section of the FPM states that "[a]gencies generally determine the situations in which they will excuse employees from duty[,]" an agency must exercise its discretion in determining these situations consistent with its contractual obligations. Therefore, the FPM does not prevent an arbitrator from requiring an agency to grant excused absences pursuant to the agency's obligation under the contract.
In this case, the Arbitrator interpreted the parties' agreement as prohibiting the Agency from charging leave to employees who declined to perform their assigned tasks due to their exposure to "Cure Seal" fumes. The Arbitrator noted that the Agency had previously exercised its discretion by granting administrative leave to employees on the first shift who were exposed to "Cure Seal" and concluded that, in view of the requirements of Article 27, the Agency had not supported its denial of administrative leave for other employees exposed to the same hazardous condition. As the Arbitrator found that Article 27 required the Agency to treat the absences of employees exposed to "Cure Seal" as administrative leave and as an agency must exercise its discretion consistent with its contractual obligations, we reject the Agency's argument that the Arbitrator's remedy violates law by improperly interfering with the Agency's discretion to determine the situations in which it will excuse employees from duty without charge to leave.
2. The Arbitrator Did Not Exceed His Authority
An arbitrator exceeds his or her authority when the arbitrator resolves an issue not submitted or awards relief to persons who are not encompassed within the grievance. See U.S. Department of the Treasury, Internal Revenue Service, Brookhaven Service Center and National Treasury Employees Union, Chapter 99, 37 FLRA 1176, 1188 (1990) (IRS, Brookhaven); and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local 916, 35 FLRA 700, 703 (1990).
The issue before the Arbitrator was whether the Agency violated the parties' agreement when a contractor employed by the Agency applied the industrial chemical "Cure Seal" in the vicinity of the grievants' work area and, if so, what remedy was applicable. The Arbitrator found that the Agency violated Article 27, Health & Safety, of the parties' agreement by failing to provide "healthful working conditions" for employees exposed to "Cure Seal" fumes on December 13 and 14, 1988. Arbitrator's Award at 8. The Arbitrator noted that, under the parties' agreement, the Agency was required to inform employees when a hazardous chemical was present and of the "health hazards of the hazardous chemical, including signs and symptoms of exposure, and any medical conditions which are generally recognized as being aggravated by exposure to the chemical[.]" Id. at 7. As the grievants were not informed of what the effects of inhaling "Cure Seal" could be and as many employees sought medical treatment for their exposure to the fumes on December 14, 1988, the Arbitrator found no support for the Agency's denial of administrative leave for those employees. Accordingly, as part of the remedy, the Arbitrator required the Agency to treat the grievants' absences as administrative leave.
We find that this portion of the Arbitrator's remedy was within the Arbitrator's authority to award to the grievants. Arbitrators have great latitude in fashioning remedies. U.S. Department of Housing and Urban Development, Los Angeles Area Office, Region IX, Los Angeles, California and American Federation of Government Employees, Local 2403, AFL-CIO, 35 FLRA 1224, 1229 (1990) (HUD). Requiring the Agency to treat the absences of employees exposed to hazardous fumes as administrative leave is directly responsive to the issues framed by the Arbitrator and to his conclusion that the Agency violated Article 27 of the parties' agreement by failing to provide healthful working conditions. The Arbitrator resolved only the issues submitted, and there is no assertion that the Arbitrator awarded relief to employees not encompassed within the grievance. See IRS, Brookhaven.
Accordingly, we reject the Agency's argument that the Arbitrator exceeded his authority by requiring the Agency to treat the grievants' absences as administrative leave.
3. The Award Draws its Essence from the Agreement
Finally, we reject the Agency's assertion that the portion of the award requiring the Agency to treat the grievants' absences as administrative leave fails to draw its essence from the parties' agreement. For an award to be found deficient because it fails to draw its essence from a collective bargaining agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (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; or (3) evidences a manifest disregard for 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 Agency has failed to demonstrate that the portion of the remedy requiring the Agency to treat the absences of employees exposed to "Cure Seal" on December 13 or 14, 1988 as administrative leave is deficient under any of the tests set forth above. Article 27, Section 3 of the parties' agreement provides in part
The Employer recognizes the existence of certain employee rights under 29 CFR Part 1960, among them the right to be free from reprisal, including charge to leave, when employees decline to perform their assigned tasks because of reasonable beliefs that, under the circumstances, the tasks pose an imminent risk of death or serious bodily harm . . . .
Agency's Exceptions at 6 (emphasis added). As the Arbitrator found that the Agency violated Article 27, it is not implausible or irrational for the Arbitrator, in enforcing Article 27, to issue a remedy preventing the Agency from charging the grievants with leave. Further, as we noted above, arbitrators have great latitude in fashioning remedies, HUD, and the Authority has previously permitted an arbitrator to order an Internal Revenue Service District Office bound by the same collective bargaining agreement to restore leave to employees exposed to fumes in the workplace as part of the remedy, IRS, Wichita. Accordingly, we reject the Agency's argument that this portion of the award fails to draw its essence from the parties' agreement.
We note the Agency's argument that it "acted to abate the problem as soon as it was discovered" and that, therefore, the Agency "was in compliance with the terms of the [] agreement." Agency's Exceptions at 6-7. However, we find that the Agency is merely disagreeing with the Arbitrator's finding that the Agency violated Article 27 of the parties' agreement. Such an argument constitutes disagreement with the Arbitrator's interpretation of the contract and with the award and provides no basis for finding the award deficient. See, for example, U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 37 FLRA 362, 378 (1990).
B. Medical Expenses
The Agency argues that: (1) the portion of the remedy awarding medical expenses and interest is contrary to the FECA; (2) the Arbitrator exceeded his authority in ordering the payment of medical expenses and interest; and (3) this portion of the remedy fails to draw its essence from the parties' agreement.
In IRS, Wichita, the Authority found that relief for injuries sustained as the result of exposure to hazardous substances in the workplace, including payment of or reimbursement for medical expenses, is covered by the FECA and its implementing regulations. The Authority noted that the particular illness alleged to have been sustained by the grievants in that case fell within the FECA because, under the implementing regulations, "[o]ccupational disease or illness" includes, among other things, "exposure to hazardous elements such as, but not limited to, toxins, poisons, fumes[.]" 20 C.F.R. § 10.5(a)(16).
Further, the Authority found that the implementing regulations of the FECA "are specifically designed to cover situations where employees believe that they have sustained on-the-job injuries and are seeking payment or reimbursement for expenses connected with such injuries." IRS, Wichita at 631. As reimbursement for the payments directed by the arbitrator in that case--namely, reimbursement for out-of-pocket medical care costs and payment for medical care expenses--was covered exclusively by the FECA, the Authority found that "the [a]rbitrator was not empowered to order remedial relief that falls within the exclusive purview of the FECA and its implementing regulations." IRS, Wichita, 40 FLRA at 633.
Similarly, we find that the particular illness alleged to have been sustained by the grievants in this case--specifically, illness following exposure to "Cure Seal" fumes--falls within the FECA. We also find that reimbursement for medical expenses incurred by employees in this case as a result of their exposure to "Cure Seal" fumes is covered exclusively by the FECA.
We note the Union's arguments that: (1) the FECA does not apply to this case because the injuries involved were "not of the disabling type contemplated by [the] FECA"; and (2) even if the FECA were applicable, the FECA does not preclude the remedy in this case because it was not intended to exclude remedies available under the negotiated grievance procedure for contractual violations. Union's Opposition at 17. However, similar arguments were considered and rejected by the Authority in IRS, Wichita. Accordingly, for the reasons stated more fully in IRS, Wichita, we conclude that the portion of the Arbitrator's remedy requiring the Agency to reimburse employees' medical expenses and pay interest on any reimbursement that is not paid within 90 days is contrary to law.
Having found that this portion of the remedy is contrary to law, we need not consider the Agency's additional arguments on this matter.
V. Decision
The Arbitrator's award is modified to delete the portions of the remedy requiring the Agency to reimburse employees' medical expenses and pay interest on any reimbursement that is not paid within 90 days.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
*/ We note that AFGE states that "corrective action for the denial of official time is not indicated as an appropriate situation for the granting of administrative leave" under FPM Supplement 990-2, Chapter 630, Subchapter 11, Excused Absence, Part 11-5. AFGE, 19 FLRA at 933. As we stated above, the list of situations noted in that section of the FPM is not exhaustive. Therefore, we will not follow the interpretation of the FPM noted in AFGE.