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44:0157(15)AR - - Air Force, HQ, Ogden Air Logistics Center, Hill AFB, UT and AFGE Local 1592 - - 1992 FLRAdec AR - - v44 p157

[ v44 p157 ]
The decision of the Authority follows:

44 FLRA NO. 15









LOCAL 1592




February 28, 1992

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 Michael D. Rappaport 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 Union filed a grievance alleging that the Agency violated the parties' Master Labor Agreement and applicable laws and regulations by refusing to grant administrative leave to employees who had been charged either sick or annual leave when they left work during a shutdown of the Agency's ventilating system. The Arbitrator sustained the grievance, and, as a remedy, ordered the Agency to give administrative leave to any employee who could demonstrate that he or she was absent from work due to the ventilation problem and was not offered a chance to work elsewhere.

We conclude that the Agency has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

On December 27, 1990, problems in the Agency's ventilating system in Building 507 caused a shutdown of the ventilating system from December 28, 1990, until January 16, 1991. As a result, the removal of chemical fumes from Building 507 "was impaired." Award at 1. After the Agency's industrial hygienists determined that the level of fumes was not hazardous, employees were permitted to return to work. During the period of the shutdown, however, approximately 50 employees visited the Agency's dispensary, complaining of various symptoms caused by their exposure to the fumes. The Agency liberally granted the employees' requests for leave, charging those employees with either sick or annual leave. Apparently, according to the Arbitrator, the Colonel in charge of the operation indicated to his subordinates that "alternative work sites were to be found" for those employees who were unable to perform their regular duties because of sensitivity to the fumes. Id. at 2.

A dispute arose as to whether the Agency should treat the leave charged to the employees during the shutdown as administrative leave. When the Agency claimed that administrative leave was not appropriate, the Union filed a grievance. The grievance was not resolved and was submitted to arbitration on the following stipulated issue:

Did the Agency violate the Master Labor Agreement and Agency regulations and applicable laws by not granting administrative leave for December 28, 31, and January 3, 4, and 5, 1990-1991? If so, what is the appropriate remedy?


The Arbitrator initially found that the Agency had not provided a safe working environment for the employees who had been affected by the poor ventilation, as required by Article 25.01 of the parties' bargaining agreement. In this regard, the Arbitrator found that although the Colonel in charge of the operation made a good faith effort to assure that adversely affected employees would be given the opportunity to work elsewhere, his subordinates had not complied with his orders. Therefore, the Arbitrator concluded that "it was an abuse of the Agency's discretion . . . to compel employees to come to work and subject themselves to the physical hazards which they obviously were feeling, or be forced to rely on their leave in order to avoid subjecting themselves to further illness." Id. at 3.

The Arbitrator also concluded that, under Air Force Regulation 40-630, the Agency could have used administrative dismissal to excuse those employees who were made ill by the ventilation problem and who were not offered alternative work. Accordingly, the Arbitrator ordered the Agency to give administrative leave, in lieu of any leave charged, to any employee who: (1) filed the present grievance; (2) can demonstrate that he or she missed work during the period in question solely as a direct result of the ventilation problem in Building 507; and (3) can demonstrate that he or she actually suffered physical ill effects as a result of exposure in Building 507. The Arbitrator further limited the remedy by finding ineligible any employee who had been offered, but who had refused, alternative work.

III. Positions of the Parties

A. The Agency

The Agency excepts to the award on the ground that it violates Federal Personnel Manual (FPM) chapter 810, subchapter 1-2, which covers claims filed under the Federal Employees' Compensation Act (FECA). The Respondent asserts that the FPM states that "[b]enefits provided under the FECA constitute the sole remedy against the United States for work-related injury or death[,]" and that, therefore, the Arbitrator "clearly did not have the authority to grant a remedy or benefit." Exceptions at 2-3.

B. The Union

Initially, the Union claims that the Agency's exceptions were untimely filed. The Union also asserts that it does not appear that the Agency presented the grounds for its exceptions to the Arbitrator, and argues that the Agency should not be permitted to raise them for the first time before the Authority. On the merits, the Union argues that the authority of an arbitrator to award administrative leave is not affected by the FECA. The Union contends that "[t]aken to its logical conclusion, the Agency's position would bar a whole range of grievances." Opposition at 2.

IV. Analysis and Conclusions

A. The Agency's Exceptions Are Timely

The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). The date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). Absent evidence to the contrary, the date of the arbitration award is presumed to be the date of service of the award. See Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local No. 916, 32 FLRA 165, 167 (1988). If the award is served by mail, 5 days are added to the period for filing exceptions to the award. 5 C.F.R. § 2429.22.

The Arbitrator's award is dated November 29, 1991. Assuming that the award was deposited in the U.S. mail on that date, exceptions to the award had to be either postmarked by the U.S. Postal Service or received in person at the Authority's Docket Room no later than January 3, 1992, in order to be considered timely. 5 C.F.R. §§ 2425.1(b), 2429.21(b) and 2429.22.

The Agency's exceptions to the Arbitrator's award were dated January 2, 1992, and were received in the Authority's Docket Room on that date. Accordingly, the exceptions were timely filed.

B. The Award Is Not Contrary to Law and Regulation

We reject the Agency's argument that the award is deficient because it is contrary to regulations implementing the FECA.

In National Treasury Employees Union, NTEU Chapter 51 and Internal Revenue Service, Wichita District Office, 40 FLRA 614 (1991) (IRS, Wichita), the arbitrator found that the agency had violated the parties' agreement by failing to provide and maintain a safe and healthful working environment for its employees because they had been exposed to toxic fumes. In part, the award ordered the agency to restore annual or sick leave taken by employees for periods of illness associated with exposure to the fumes. The Authority concluded that the portion of the award regarding the restoration of leave was not contrary to the FECA. We relied on an opinion submitted by the Department of Labor (DOL), in which DOL stated that the FECA did not preclude the arbitrator's remedy in that case. We later applied IRS, Wichita to deny exceptions to a portion of an award that required an agency to treat absences of employees exposed to a hazardous chemical as administrative leave. U.S. Department of the Treasury, Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania and National Treasury Employees Union, Chapter 71, 41 FLRA 710, 718-23. In so doing, we stated that there was "no meaningful distinction" between the arbitrator's formulation of the remedy in that case and the remedy in IRS, Wichita. We reach the same result here.

Moreover, as the Arbitrator in this case found a direct connection between the use of leave and the basis for a contract violation, we conclude, consistent with our decisions in IRS, Wichita and IRS, Philadelphia, that the Arbitrator made the requisite findings under the Back Pay Act for an award ordering that employees' leave be treated as administrative leave.

Accordingly, we do not find the award deficient under section 7122(a) of the Statute.

V. Decision

The Agency's exceptions are denied.

(If blank, the decision does not have footnotes.)