[ v43 p765 ]
The decision of the Authority follows:
43 FLRA No. 62
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
COUNCIL 214 AND LOCAL 916
December 24, 1991
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 Jonas B. Katz 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's opposition was untimely filed and will not be considered in this decision.(1)
A grievance was filed alleging that under the health and safety provisions in the parties' collective bargaining agreement, Executive Order No. 12196 (Executive Order), and applicable law, the Agency had interfered with and denied the Union its rights relating to the investigation of an accident as well as other rights involving safety matters, such as required training for Union safety representatives. The Arbitrator denied the grievance in part and sustained the grievance in part.
For the following reasons, we conclude that the Union's exceptions do not provide a basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
On July 20, 1988, two civilian employees were killed in an industrial accident on the Agency's base. Following the accident, the Union's vice president, the Union safety committee member and a national Union safety representative examined the accident site and discussed safety matters with the chief of the Agency's team investigating the accident. Four months after the accident, the Union replaced its sole representative on the base's safety committee with two new safety representatives. In December 1988, shortly after the appointment of the two new safety representatives, the Union was asked to attend an Occupational Safety and Health Administration (OSHA) settlement conference with OSHA investigators, management and safety personnel in order to comment on the findings resulting from the investigation of the accident. At the conference on December 9, 1988, the two new Union safety representatives stated that they were unable to comment on the findings relating to the accident because they had not been involved in the prior investigation. Consequently, the Union's safety representatives requested permission and official time to conduct an independent inspection of the accident site.
According to the Arbitrator, the grievance in this matter arose when the Agency initially denied the two Union safety representatives permission and official time to inspect the accident site. The Arbitrator noted that, on December 16, the Agency's labor relations office informed the Union that the previous decision to deny the Union access to the accident site had been reversed and that the Union's safety representatives now had permission and official time to tour the accident site with an Agency representative. On the same day the Union, unaware of the Agency's reversal of its decision to deny access, filed a grievance over the denial of access to the accident site and over other health and safety related matters in dispute between the parties. The other disputed matters included whether the Agency was complying with the requirements of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 668 et seq. (the Act), and the Executive Order and 29 C.F.R. §§ 1960.1-1960.90, which pertain to occupational safety and health programs for Federal employees.(2) Specifically, the Arbitrator listed the Union's complaints relating to the Agency's alleged interference with various rights provided to employee representatives under law and regulation, including the Agency's failure to provide adequate safety and health training to the Union's safety representatives or to other representatives of the bargaining unit.
Before the Arbitrator, the Union argued that, under the pertinent sections of the Act, Executive Order, applicable regulations, and the parties' collective bargaining agreement, it was "entitled to substantial deference, personnel and training" regarding occupational safety and health matters. Award at 12. The Union requested that the Arbitrator provide the following remedies:
1. The Commander of the Activity shall promulgate, [sic] in writing for public dissemination to the work force his position o[n] the safety programs at Tinker Air Force Base as required by law. Such writing shall be posted on all bulletin boards, delivered through [ ] base mail to all bargaining unit employees and delivered by mail to the Local Union President.
2. That the designated Union Officials be allowed to communicate un-obstructed by labor relations, employee relations and/or personnel officials with all safety officials on Tinker Air Force Base to include but not limited to: Ground Safety, Bio-Environmental, Flight Safety, Weapons Safety, Fire Safety, and/or Occupational Medicine.
3. The designated Union Officials will be trained in accordance with the formal requirements of the OSHA standards and the statute. Such training to be conducted during duty hours, at no cost to the representatives. The training shall be at least equal to that training given to persons serving in the various safety positions.
4. The designated Union officials shall be allowed to go unencumbered in any way by officials of Labor Relations or any other official, throughout the installation, while in a duty status to check said installation in order to insure safe working conditions and reported violations. The designated Union Officials shall be on 100% Official Time as Union Safety Officials.
5. The Union shall be allowed to designate ten (10) safety representatives, who shall be trained and allowed to function in accordance with items 3 and 4 above. The Union President shall serve upon the Commander a list of the ten designated Union Officials.
Id. at 4.
The Arbitrator made various initial findings. He found that, after the filing of the grievance, the new safety representatives were permitted to attend a supervisors' safety training course on official time and an OSHA safety course. The Arbitrator also found that the safety representatives were granted 60 hours of official time to participate in the annual safety survey of the base's Propulsion Division. Additionally, the Arbitrator found that the current collective bargaining agreement was negotiated after the grievance was filed, and that during the negotiations leading to that agreement "the number of full time [Union] representatives at each Base provided for in the previous agreement was doubled with the understanding that they could perform safety related work . . . ." Id. at 5. He also found that the Union's request during negotiations for ten additional safety representatives had been denied.
In order to determine the respective rights and responsibilities of the parties in safety and health matters, the Arbitrator reviewed the Act, the Executive Order, 29 C.F.R. §§ 1960.1-1960.90, the pertinent Agency regulation, AFR 127-12, and the applicable provisions of the parties' collective bargaining agreement. The Arbitrator found "that the Union's perception of its rights, obligations and involvement in safety matters [was] not as preeminent as asserted." Id. According to the Arbitrator, the Act places the "primary obligation for safety" upon the Agency. Id. Moreover, the Arbitrator concluded that nothing in the Act, Executive Order, or the cited regulations "requires the Agency to grant to the Union more duties or authority in connection with safety and health than is granted by the present collective bargaining agreement." Id. at 15. Thus, he concluded that he had to "look to the collective bargaining agreement" in order to resolve the dispute before him. Id. The Arbitrator then examined provisions of Article 4 (Official Time/Union Representation) and Article 25 (Health and Safety) of the parties' current collective bargaining agreement.
With regard to the Union's claim that the training provided to the Union's representatives on the safety committee and to its fulltime representatives should be equivalent to that of a fulltime safety technician, the Arbitrator concluded that nothing in the Executive Order, the regulations or the parties' current collective bargaining agreement required such intensive training. Rather, the Arbitrator concluded that the training provided to Union representatives was reasonable and consistent with the intent of the parties' agreement, as well as with law and regulation.
The Arbitrator found that the Union was entitled to notification of safety inspections and that, depending on who conducted the inspection, either the Union steward or representative in the area to be inspected or the Union's permanent representative on the safety committee should be notified and permitted to participate. He also found that the Union's representatives should be able to discuss safety matters with employees during such inspections "free of even the appearance of coercion or intimidation." Id. at 22. The Arbitrator concluded, however, that, although the Union is free to conduct a private inspection or investigation "other than the work site inspection," such inspections could not be conducted on official time. Id. Similarly, the Arbitrator concluded that nothing in Article 25 of the parties' agreement permits the Union's safety committee representatives to take official time in order to attend the safety meetings of employees. In this regard, he concluded that Article 4.06(11) of the agreement provides that fulltime representatives may attend such meetings "as they are able to attend . . . ." Consequently, he found that fulltime representatives must attend such meetings "while on off duty status . . . ." Id. at 25.
In regard to accident investigations, the Arbitrator found that it was the intent of Article 25.15 of the parties' agreement to permit fulltime Union representatives and Union safety committee members to confer with management or safety officials in charge of such investigations and to provide recommendations or information relevant to the investigation. The Arbitrator noted that the Union's representatives were given the opportunity to inspect the January 20, 1988, accident site. He also noted that the initial refusal of the Agency to permit the Union's new safety representatives to inspect the accident site "was almost immediately countermanded . . . ." Id. at 23. Thus, he found that the Agency had averted a violation of the parties' agreement. He concluded, however, that to the extent the new safety representatives may have been precluded from speaking with employees in an uncoerced atmosphere, the Agency must correct this inadequacy in future investigations. The Arbitrator also found that the Union was entitled to prompt notice of an injury or illness and directed the Agency to ensure that in the future the Union be promptly notified of injuries or illness in sufficient time for it to join in an investigation.
Finally, the Arbitrator concluded that nothing in law, regulation or the parties' agreement "contemplates additional safety representatives of the Union beyond those specified in the contract." Id. at 25. In reaching this conclusion, the Arbitrator found that in fashioning a remedy he could not change the parties' current collective bargaining agreement to provide additional safety representatives. He found that it was clear from the bargaining history of the parties' current agreement that the parties had agreed to double the number of fulltime Union representatives who could participate in safety matters but that the Union had not won "the right to have any specific 'safety representatives.'" Id. at 26. In addition, the Arbitrator reiterated his conclusion that the Executive Order and the applicable regulations do not contemplate that the Union may participate in safety matters to the extent claimed by the Union. Rather, the Arbitrator stated that "[t]he primary responsibility for safety rests with the Agency[ ]" and "[t]he Union's role is primarily as set forth in Article 25." Id. Consequently, the Arbitrator denied the Union's request for the additional safety representatives.
In sum, the Arbitrator did not sustain the Union's grievance insofar as it requested additional safety training, the provision of official time for Union representatives to make private investigations and attend safety meetings, and the designation of additional safety representatives. The Arbitrator sustained the grievance insofar as it requested the right to be notified of, and to participate in, work site inspections, to speak freely with employees about safety matters, and to be notified promptly of any injuries or illness at the workplace.
As his award, the Arbitrator provided that "[t]he grievance is denied in part and granted in part as set forth above." Id. at 27.
III. The Union's Exceptions
The Union contends that the Arbitrator's award is deficient because it: 1) violates various sections of the Occupational Safety and Health Act of 1970; 2) violates sections 7101(a), 7114(a)(1) and (a)(2)(A) and 7116 of the Statute because the Union has the absolute right to appoint or remove its representatives, including safety representatives, without interference; 3) contravenes Executive Order 12196 and various portions of 29 C.F.R. § 1960; 4) violates Department of Defense (DoD) Instruction 6055.1, Paragraph 6, relating to occupational health and safety training; 5) is unclear and vague; 6) is based on the Arbitrator's confusion of official time in Article 4 with the safety provisions of the parties' agreement; and 7) is erroneously based on the Arbitrator's finding that the Union had negotiated away its requested remedy of ten fulltime safety representatives during negotiations for the parties' 1989 agreement. In this latter regard, the Union argues that the grievance arose under the parties' 1986 agreement and "the requested remedy was sol[e]ly to the grievance and not to the contract." Union's Exceptions at 6.
In support of these exceptions, the Union incorporates by reference its post-hearing brief (Brief) to the Arbitrator. In the Brief, the Union asserts that under Article 25, section 25.01 of the parties' agreement the Agency "agrees to comply fully with all provisions of Executive Order No. 12196 as implemented within [the Department of Defense] . . . ." Brief at 15 (emphasis in original). The Union further argues that DoD 6055.1, paragraph 2 requires the Agency to "comply with the standards promulgated by OSHA under 29 U.S.C. § 651 et seq . . . ." Id., quoting the DoD regulation. The Union also cites Article 25, section 25.04 of the parties' agreement, which states that "applicable Air Force guidance on safety and health are minimal safety standards. In the absence of Air Force guidance, applicable OSHA standards will govern[.]" Id. at 17. The Union asserts that, as neither the agreement nor the Air Force regulations address training of employee representatives or collateral duty safety persons in any detail, the Agency is required to abide by the standards set forth in 29 C.F.R. § 1960, which does address training in detail. Id. at 18.
Specifically, the Union argues that 29 C.F.R. § 1960.58 provides for the training of collateral duty safety persons, who it contends are not the same as safety committee members, and that § 1960.59(b) provides that all Union representatives will be given training that includes "introductory and specialized courses and materials that will enable such groups to function appropriately in ensuring safe and healthful working conditions . . . ." Brief at 28, quoting 29 C.F.R. § 1960.59(b). The Union argues that it is requesting only ten trained safety representatives even though it could require the Agency to give full health and safety training to every Union representative, which "could be as many as 250 representatives at each [facility]." Id. at 30. The Union also contends that the Agency failed to comply with various sections of the Executive Order and the Act with regard to the training of safety representatives and also with regard to the rights of employees to be free from any interference the Agency might impose upon the exercise of their rights relating to occupational safety and health matters.
Moreover, the Union argues that the Arbitrator has the authority to grant the requested remedies and "[t]hat the granting of the remedy to this grievance does not change the terms or conditions of the [parties' agreement], but rather resolves a grievance." Id. at 12. The Union further argues that under Article 7 of the parties' current agreement the Arbitrator was "empowered to form and fashion [his] own remedy." Id. at 31.
IV. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient, as alleged.
A. Exceptions Pertaining to the Executive Order, Law, Regulation, and the Statute
We find that the Union has failed to establish, and it is not otherwise apparent from the record, that the Arbitrator's award is inconsistent with the Statute, law or regulation.
As noted previously, the Arbitrator examined the relevant law and regulations pertaining to occupational health and safety matters in assessing the Union's entitlement to the remedies it sought. Nothing contained in the Union's arguments in support of its exceptions, including the Union's supporting arguments in its Brief to the Arbitrator, demonstrates that the Arbitrator misapplied or misread the relevant authorities when he determined that "nothing in the law, Executive Order, CFR or DoD implementation requires the Agency to grant to the Union more duties or authority in connection with safety and health than is granted by the present collective bargaining agreement." Award at 15. Specifically, we reject the Union's contentions that the Executive Order and 29 C.F.R. §§ 1960.58-1960.59 require the Agency to appoint more safety representatives or to provide more comprehensive safety training than that provided to the Union's safety representatives in this case. We conclude that the regulatory sections cited by the Union, particularly those relating to the training of safety representatives, merely prescribe training for various safety officials, employees and representatives of employees and do not describe or mandate a particular level or degree of training in occupational safety and health matters. In particular, we conclude that the Union has not established that 29 C.F.R. § 1960 mandates such training for every Union representative regardless of whether that representative has been given any duties relating to health and safety.
Thus, the Union has not demonstrated that the Arbitrator failed to provide a remedy for any asserted violation of its rights relating to safety training, the conduct of safety investigations or the Union's safety representatives. Rather, we conclude that the Union's exceptions in this regard merely constitute an attempt to relitigate the merits of the dispute before the Authority. Consequently, we find that the Union's first five exceptions do not provide a basis upon which to find the award deficient. See, for example, U.S. Department of Defense, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 42 FLRA 775, 778-80 (1991) (Union merely attempting to relitigate merits of the dispute in arguing that the Arbitrator misapplied the relevant authorities to determine that the safety representative was not entitled to unlimited amount of official time to accompany safety inspectors).
B. Remaining Exceptions
Finally, we conclude that the Union has failed to establish that the award is deficient based upon its remaining exceptions.
We interpret the Union's contention that the award is deficient because it is unclear and vague as an assertion that the award is so contradictory as to make its implementation impossible. The Authority will find an award deficient when it is incomplete, ambiguous, or contradictory so as to make implementation of the award impossible. U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 41 FLRA 1042, 1050 (1991). The Union has not established that the award is deficient under this standard. The Union offers no basis upon which to conclude that the award cannot be implemented. The Arbitrator agreed with the Union and sustained its grievance in several respects but, as pertinent here, found that the contractual, regulatory and legal provisions cited by the Union did not, for example, mandate a higher level or degree of safety training than that provided by the Agency or require the designation of additional safety representatives. Consequently, the Union's exception in this regard provides no basis for finding the award deficient. See, for example, U.S. Department of Labor, Mine Safety and Health Administration, Southeastern District and American Federation of Government Employees, Local 2519, 40 FLRA 937, 943 (1991).
Next, we interpret the Union's contention that the award is deficient because it is based on the Arbitrator's "confusion" of the official time provisions in the parties' agreement with those pertaining to safety as an argument that the award fails to draw its essence from the parties' collective bargaining agreement. We conclude that the Union has failed to show that the award is deficient on this basis.
In order for the Authority to find that an award is 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 U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 680, 683-84 (1991). The Arbitrator's findings based on pertinent portions of the parties' agreement relating, respectively, to official time and to health and safety is not deficient under any of the above criteria. Contrary to the Union's assertion, the Arbitrator's reliance on both provisions in resolving the dispute before him was not unfounded, unconnected with the wording and purpose of those provisions or implausible. We find, therefore, that in contending that the Arbitrator confused the two provisions in rendering his award, the Union is merely disagreeing with the Arbitrator's interpretation of the parties' agreement and attempting to relitigate the issue presented before the Arbitrator. Such an exception does not provide a basis on which the Authority will find an award deficient under section 7122(a) of the Statute. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036, 1043 (1991).
We conclude that the Union fails to establish that the award is deficient because the Arbitrator erroneously considered the bargaining history of the parties' current agreement in denying the requested remedy of ten additional Union safety representatives. We conclude that the Union, in this exception, is essentially contending that the award is deficient because it is based on a nonfact. The Authority has previously found that an Arbitrator's reliance on a collective bargaining agreement that is not in effect at the time of the grievance can provide a basis for finding an award deficient where it is demonstrated that this was the central fact underlying the award. U.S. Army Missile Command, Redstone Arsenal, Alabama and Local 1858, American Federation of Government Employees, AFL-CIO, 18 FLRA 374 (1985). To establish that an award is deficient because it is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous but for which a different result would have been reached by the arbitrator. See, for example, National Federation of Federal Employees, Local 1781 and U.S. Department of Agriculture, Forest Service, 42 FLRA 703, 707 (1991). We find that the Union fails to establish that the Arbitrator's conclusion that he could not provide the remedy of ten fulltime safety representatives because he would be changing the parties' 1989 agreement was the central fact underlying the award but for which the Arbitrator would have reached a different result.
Initially, we conclude that it is within an arbitrator's discretion to examine the parties' current collective bargaining agreement for guidance in fashioning a prospective remedy in order to determine if that remedy is appropriate. Further, we note that the Arbitrator also clearly relied on his finding that the Executive Order and regulations pertaining to occupational health and safety matters did not contemplate the designation of additional Union safety representatives. Consequently, we conclude that the Union has not demonstrated that the Arbitrator would have directed the requested remedy of ten additional Union safety representatives but for his examination of the parties' current collective bargaining agreement. Accordingly, we will deny this exception.
The Union's exceptions are denied.
EXECUTIVE ORDER NO. 12196
OCCUPATIONAL SAFETY AND HEALTH PROGRAMS
FOR FEDERAL EMPLOYEES
1-2. Heads of Agencies.
1-201. The head of each agency shall:
(a) Furnish to employees places and conditions of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm.
. . . .
(f) Establish procedures to assure that no employee is subject to restraint, interference, coercion, discrimination or reprisal for filing a report of an unsafe or unhealthy working condition, or other participation in agency occupational safety and health program activities.
. . . .
(i) Assure that employee representatives accompany inspections of agency workplaces.
. . . .
(k) Provide safety and health training for supervisory employees, employees responsible for conducting occupational safety and health inspections, all members of occupational safety and health committees where established, and other employees.
1-7. General Provisions.
1-701. Employees shall be authorized official time to participate in the activities provided for by this order.
29 C.F.R. Part 1960
BASIC PROGRAM ELEMENTS FOR FEDERAL
EMPLOYEE OCCUPATIONAL SAFETY AND
HEALTH PROGRAMS AND RELATED MATTERS
§ 1960.1 Purpose and scope.
. . . .
(d) Section 19 of the [Occupational Safety and Health Act] Act and the Executive Order  require specific opportunities for employee participation in the operation of agency safety and health programs. The manner of fulfilling these requirements is set forth in part in these program elements. These requirements are separate from but consistent with the Federal Service Labor Management Relations Statute (5 U.S.C. 71) and regulations dealing with labor-management relations within the Federal Government.
(e) Executive Order 12196 and these basic program elements apply to all agencies of the Executive Branch. They apply to all Federal employees. They apply to all working conditions of Federal employees except those involving uniquely military equipment, systems, and operations.
§ 1960.10 Employee responsibilities and rights.
. . . .
(d) Employees shall be authorized official time to participate in the activities provided for in section 19 of the Act, Executive Order 12196, this part, and the agency occupational safety and health program.
§ 1960.58 Training of collateral duty safety and health personnel and committee members.
Within six months after October 1, 1980, or on appointment of an employee to a collateral duty position or to a committee, each agency shall provide training for collateral duty safety and health personnel and all members of certified occupational safety and health committees commensurate with the scope of their assigned responsibilities. Such training shall include: The agency occupational safety and health program; section 19 of the Act; Executive Order 12196; this part; agency procedures for the reporting, evaluation and abatement of hazards; agency procedures for reporting and investigating allegations of reprisal, the recognition of hazardous conditions and environments; identification and use of occupational safety and health standards, and other appropriate rules and regulations.
§ 1960.59 Training of employees and employee representatives.
(a) Each agency shall provide appropriate safety and health training for employees including specialized job safety and health training appropriate to the work performed by the employee, for example: Clerical; printing; welding; crane operation; chemical analysis, and computer operations. Such training also shall inform employees of the agency occupational safety and health program, with emphasis on their rights and responsibilities.
(b) Occupational safety and health training for employees of the agency who are representatives of employee groups, such as labor organizations which are recognized by the agency, shall include both introductory and specialized courses and materials that will enable such groups to function appropriately in ensuring safe and healthful working conditions and practices in the workplace and enable them to effectively assist in conducting workplace safety and health inspections. Nothing in this paragraph shall be construed to alter training provisions provided by law, Executive Order, or collective bargaining arrangements.
(If blank, the decision does not have footnotes.)
1. In the Authority's Order dated August 24, 1990, the Agency was ordered to show cause why its opposition should be considered. In its response to this order, the Agency concedes that its opposition was not filed until August 14, 1990, but argues that the untimely filing was not the fault of the Agency but of the U.S. Postal Service. Any Agency opposition to the Union's exceptions had to be either postmarked by the U.S. Postal Service or personally delivered to the Authority no later than August 13, 1990, in order to be considered timely. The Agency argues that it delivered its opposition to its mail room well in advance of the required filing date and that it would be unfair to penalize it for the mail system's failure to deliver the opposition in a timely manner. We do not find the Agency's argument persuasive. Rather, we find that the Agency has not established extraordinary circumstances under section 2429.23(b) of our Rules and Regulations that warrant a waiver of the expired time limit for filing its opposition. See, for example, Department of the Army, Aberdeen Proving Ground and I.A.M. and A.W., Aberdeen Lodge No. 2424, 34 FLRA 521 (1990) (delay caused by agency's mailing procedure does not constitute extraordinary circumstances sufficient to toll filing deadline). See also Department of the Treasury, U.S. Customs Service and U.S. Customs Service Region IX, Chicago, Illinois, 34 FLRA 76 (1989). We find, therefore, that the Agency's opposition was untimely. 5 C.F.R. §§ 2425.1(c), 2429.21(b) and 2429.22.
2. The pertinent sections of Executive Order No. 12196 and the Code of Federal Regulations are set forth in the Appendix to this decision.