[ v46 p1160 ]
The decision of the Authority follows:
46 FLRA No. 107
FEDERAL LABOR RELATIONS AUTHORITY
U.S DEPARTMENT OF VETERANS AFFAIRS
HUNTINGTON, WEST VIRGINIA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
January 12, 1993
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 James C. Duff filed by the Agency pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator found that certain employees were entitled to receive environmental differential pay (EDP) for exposure to asbestos. The Arbitrator also retained jurisdiction for the purpose of assisting the parties in resolving disputes over the amounts payable pursuant to the award. For the following reasons, we conclude that the Arbitrator has made the findings required for an award of environmental differential pay and that the Agency has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievance in this case concerned the Union's claim that "all Wage Grade Employees, who are, maybe [sic], or have been exposed to airborne asbestos[,]" were entitled to EDP for such exposure. Award at 1. The Union sought payment of EDP retroactive to the initial date of exposure or for a period of at least six years. When the grievance was not resolved, it was submitted to arbitration.
As an initial matter, the Arbitrator found that "the grievance cannot reach back more than thirty calendar days and [that] any relief fashioned here must be tailored to meet this contractual mandate." Id. at 8. The Arbitrator observed, in this connection, that the parties' agreement provided that any grievance would have to be filed within 30 days of the date a party becomes aware of a violation and that the parties had not agreed to extend that time limit in this case.
In examining the merits of the grievance, the Arbitrator quoted the following provisions of the parties' agreement:(1)
Article 25 "HAZARDOUS DUTY PAY & ENVIRONMENTAL DIFFERENTIAL"
Section 1 - Environmental Differential (Federal Wage System)
A. In accordance with the criteria set forth in FPM Supplement 532-1, the appropriate environmental differential will be paid to an employee who is exposed to unusually severe hazard, physical hardship, or a working condition meeting the standards described under the categories in Appendix J.
B. If at any time an employee and/or the union believes that differential pay is warranted under FPM Supplement 532-1 and Appendix J, the matter may be raised at Step 3 of the negotiated grievance procedure.
Id. at 5.
The Arbitrator stated that "at the present time there is no reliable medical evidence that any level of exposure to asbestos is health risk free[.]" Id. at 8. In so finding, the Arbitrator rejected the Agency's argument that because its standard of acceptable exposure to asbestos was more limited than that established by the Occupational Safety and Health Administration (OSHA), payment of EDP is not warranted. The Arbitrator found that the OSHA standard was not a pay standard and was not relevant to employees' entitlement to EDP. The Arbitrator also rejected the Agency's argument that the parties' agreement or its bargaining history indicated that the Union sought to bargain over asbestos exposure that exceeded the limits established by OSHA or "adopted language linked rigidly to any fixed quantitative standard." Id. at 9. Rather, the Arbitrator found that the "net effect" of the parties' agreement was to provide compensation for asbestos exposure that satisfied two general conditions--namely, the likelihood of exposure and the actions taken to practically eliminate the risk of illness or injury. Id.
First, the Arbitrator addressed whether certain employees had been required to work in areas in which the airborne concentration of asbestos could expose them to potential injury or illness. The Arbitrator found that employees had been required to work in such areas. The Arbitrator also found that there was nothing in the parties' agreement to indicate an intent to withhold EDP payments "until employees' exposure to asbestos at work amounts to hundreds of times the average environmental exposure, but that is the result that would obtain through acceptance of the [Agency's] . . . standard[.]" Id. at 10. In this connection, the Arbitrator found that the Union was not "required to constantly prove through expensive scientific means what the exact airborne level of asbestos is as a condition precedent to entitlement to EDP." Id. Rather, the Arbitrator found that "it is instead enough [for the Union] to demonstrate that airborne asbestos has been and may again be encountered in the work environment at levels far in excess of average environmental exposure levels." Id. The Arbitrator then determined that the Union had satisfied its burden of proof in this case. The Arbitrator thus found that payment of EDP was appropriate unless the evidence established that protective devices or safety measures had practically eliminated the potential for illness or injury.
As to this second condition, the Arbitrator noted that the Agency had attempted to abate the risk of exposure through its policy of having maintenance employees avoid areas once the presence of asbestos was suspected. However, the Arbitrator found that to "practically eliminate the potential" for illness or injury means that it must be eliminated in every important respect, and that the Agency has failed to achieve that goal. Id. at 11. The Arbitrator found specifically that the Agency's standard for asbestos exposure entailed significant risks to maintenance employees.
Therefore, the Arbitrator concluded that maintenance employees were entitled to EDP, with interest, beginning thirty calendar days prior to the date on which the grievance was filed. The Arbitrator also retained jurisdiction over disputes regarding the amounts owed in the event the parties were unable to resolve those matters.
Subsequent to the issuance of the award, the Agency filed a motion for clarification and reconsideration with the Arbitrator. The Union filed an opposition to the Agency's motion. There is no evidence in the record before the Authority as to the disposition of the motion.(2)
III. Positions of the Parties
A. The Agency's Exceptions
The Agency excepts to the award on three grounds. The Agency also requests a stay of the award.(3) First, the Agency contends that the award is deficient because it fails to specify a threshold quantitative level of exposure to airborne asbestos that is necessary to determine entitlement to EDP. According to the Agency, FPM Supplement 532-1, Appendix J, category 16 requires that a threshold quantitative level be established. The Agency notes, in this regard, that the specific work situation for which EDP is payable under Appendix J is left for local determination and cites, among other cases, O'Neall v. United States, 797 F.2d 1576 (Fed. Cir. 1986) (O'Neall), and Allen Park Veterans Administration Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 28 FLRA 1166 (1987) (VA Medical Center I).
Second, the Agency contends that the award is deficient because the Arbitrator improperly shifted the burden of proving asbestos exposure from the Union to the Agency in this, as well as in future cases. In support, the Agency cites the portion of the Arbitrator's award in which he stated that the Union was not required to constantly prove the level of airborne asbestos in order to establish an entitlement to EDP. To the contrary, and citing O'Neall, 797 F.2d 1576, the Agency claims that the burden of proof must be placed on the Union and/or employees.
Finally, the Agency essentially argues that the award is deficient because it "is incomplete, ambiguous or contradictory." Exceptions at 1. The Agency explains that at the beginning of the arbitration hearing the Union amended its grievance to apply only to "maintenance and boiler plant personnel." Id. The Agency maintains that because the award is not limited to these employees, it must be modified to cover only maintenance and boiler plant personnel.
B. The Union's Opposition
The Union contends that the award specifies a threshold quantitative level of exposure to asbestos for entitlement to EDP and that the award is consistent with O'Neall. The Union also states that the Arbitrator had before him for guidance the decisions in VA Medical Center I and Allen Park Veterans Administration Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091, 1098 (1990) (VA Medical Center II). The Union also maintains that the Arbitrator addressed the issue of whether employees are entitled to EDP under the requirements of category 16 of FPM Supplement 532-1, Appendix J. According to the Union, the Arbitrator found that employees were exposed to potential illness or injury and that protective devices and safety measures had not practically eliminated the potential for personal illness or injury.
Further, the Union disputes the Agency's contention that the award is incomplete, ambiguous or contradictory, asserting that the Agency did not submit evidence in support of its contention. The Union maintains that there was no evidence that it amended the grievance at the hearing. The Union further asserts in this regard that "[t]he award clearly leaves to the parties the responsibility to determine the amount of EDP due an affected employee and provides that if the parties cannot agree, the dispute will be submitted to the Arbitrator for resolution." Opposition at 1.
In sum, the Union asserts that the Agency's exceptions constitute mere disagreement with the Arbitrator's reasoning, conclusions and interpretation of the parties' collective bargaining agreement.
IV. Analysis and Conclusions
We conclude that the Agency has failed to establish that the award is deficient.
A. The Award is not Inconsistent With Category 16 of FPM, Supplement 532-1, Appendix J
We reject the Agency's contention that the award is deficient because it fails to specify a threshold quantitative level of exposure to asbestos for which EDP is payable in accordance with category 16 of FPM Supplement 532-1, Appendix J. We have repeatedly stated that that regulatory authority conditions the payment of an environmental differential for exposure to asbestos on findings that: (1) employees are working in areas where airborne concentrations of asbestos fibers may expose them to potential illness or injury; and (2) protective devices or safety measures have not practically eliminated the potential for such personal illness or injury. See, for example, U.S. Department of the Army, New Cumberland Army Depot, New Cumberland, Pennsylvania and America Federation of Government Employees, Local 2004, 40 FLRA 186, 191 (1991) (New Cumberland Army Depot); VA Medical Center II, 34 FLRA at 1098. Appendix J does not set forth any specified level of exposure required for the payment of EDP. Instead, the specific work situations for which EDP is payable under Appendix J are left to local determination, including arbitration. More particularly, category 16 does not set forth a specified level of exposure to asbestos at, or in excess of, which employees are exposed to potential illness or injury. Thus, when the parties submit a dispute involving exposure to asbestos to arbitration, the arbitrator is free, consistent with the parties' collective bargaining agreement, to determine what quantitative level of asbestos exposes employees to illness or injury and to determine how that level is derived or calculated. See American Federation of Government Employees, Local 1273 and U.S. Department of Veterans Affairs Medical Center, Boise, Idaho, 44 FLRA 707, 711-12 (1992); VA Medical Center II, 34 FLRA at 1098; VA Medical Center I, 28 FLRA at 1170.
Here, the Arbitrator found that there is no known safe level of asbestos exposure, that employees had been required to work in areas where airborne asbestos could expose them to potential injury or illness, that protective devices and safety measures had not practically eliminated the potential for illness or injury, and that the parties had not negotiated a standard or agreed to use the limits specified in OSHA requirements. Such findings satisfy the requirements of Appendix J. See, for example, VA Medical Center II, 34 FLRA at 1100-01 (arbitrator's finding that there was no quantitative threshold level below which exposure to asbestos would not have the potential of illness or injury satisfied the requirement of Appendix J, noting the absence of any mandated quantitative levels set by law, regulation, or the parties' agreement). Such findings are also consistent with O'Neall. As we explained in VA Medical Center II, the court in O'Neall required the setting of a quantitative level of exposure reasonably related to potential illness as a condition precedent to entitlement to EDP. In our view, an arbitrator's finding that there is no safe level of exposure to asbestos is tantamount to the establishment of a quantitative standard and constitutes an appropriate determination of quantitative levels for purposes of entitlement to EDP. Thus, we find, consistent with VA Medical Center II, that the absence of any quantitative level of exposure set forth in Appendix J, coupled with the general principle that arbitrators may determine the specific work situation for which EDP is payable, and the Arbitrator's determination in this case that there was no safe level of asbestos exposure, lead to the conclusion that the award is consistent with applicable legal requirements.
B. The Arbitrator Properly Established the Burden of Proof
We also conclude that the Agency fails to establish that the award is deficient because the Arbitrator improperly shifted the burden of proving asbestos exposure from the Union to the Agency.
In O'Neall, the court placed the burden of establishing entitlement to EDP on the claimants. 797 F.2d at 1582-83. Here, the Union was acting on behalf of the employees for whom it sought entitlement to EDP and, therefore, it was required to prove exposure to asbestos. The Arbitrator found, consistent with the standard in O'Neall, that the Union had satisfied the burden of proof by demonstrating that airborne asbestos has been and may be encountered in the workplace at excessive levels.
The Agency's reliance on the Arbitrator's finding that the Union was not required to prove what the airborne level of asbestos is as a condition precedent to entitlement to EDP is misplaced. That comment was designed to show that the Union was not obligated continually to establish the level of airborne asbestos once it had shown that the airborne concentration was above acceptable levels. The comment does not establish that the burden of proof was placed on the Agency in this, or in future, cases.
C. The Award is Not Otherwise Deficient
We reject the Agency's contentions that the award is deficient because it is incomplete, ambiguous or contradictory and that it must be modified to specify its application to maintenance and boiler plant employees only.
The Authority will find an award deficient when it is incomplete, ambiguous, or contradictory so as to make implementation of the award impossible. 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). The Agency has not established that the award is deficient under this standard or that modification of the award is necessary.
In issuing his award, the Arbitrator found that certain "maintenance employees" worked in areas where the airborne concentration of asbestos could expose them to potential illness or injury and that such employees were entitled to EDP. Award at 9. The Arbitrator also retained jurisdiction to address disputes over the payment of EDP "in the event that the [p]arties are unable to resolve those matters." Id. at 11. Clearly, contrary to the Agency's contention, the Arbitrator specified that the award covered maintenance workers. In addition, the Arbitrator authorized the parties mutually to resolve issues pertaining to EDP entitlement and to seek the Arbitrator's assistance if they were unable to reach agreement. We do not view such an award as incomplete, ambiguous or contradictory so as to make implementation of the award impossible. Moreover, with respect to the Arbitrator's retention of jurisdiction, we note that in arbitration cases that have come before the Authority including those involving entitlement to EDP, it is not uncommon for an arbitrator to have retained jurisdiction to resolve questions or problems that might arise concerning an award. See, for example, New Cumberland Army Depot, 40 FLRA at 189; U.S. General Services Administration, Kansas City, Missouri and American Federation of Government Employees, Council 236, 38 FLRA 438, 441 (1990).
Indeed, the Agency sought clarification of the award to assist it in making determinations regarding EDP payment. Therefore, to the extent that questions may arise concerning which employees are entitled to payment and the amount of such payment, those issues can be resolved by the Arbitrator. For these reasons, we find no basis on which to modify the award.
The Agency's exceptions are denied.
FPM Supplement 532-1 provides, in relevant part, as follows:
S8-7. ENVIRONMENTAL DIFFERENTIALS PAID FOR EXPOSURE TO VARIOUS DEGREES OF HAZARDS, PHYSICAL HARDSHIPS, AND WORKING CONDITIONS OF AN UNUSUALLY SEVERE NATURE
. . . .
c. Payment for environmental differential. An environmental differential is paid to a wage employee who is exposed to a hazard, physical hardship, or working condition of an unusually severe nature listed under the categories in appendix J of this subchapter. Exposure to a hazard, physical hardship, or working condition of an unusually severe nature listed in appendix J is not taken into consideration in the job-grading process, and additional pay for exposure to these conditions is provided only through the environmental differentials authorized by this section.
Schedule of Environmental Differentials Paid for Exposure to Various Degrees of Hazards, Physical Hardships, and Working Conditions of an Unusual Nature
. . . .
PART II. PAYMENT ON BASIS OF HOURS IN PAY STATUS
16. Asbestos. Working in an area where airborne concentrations of asbestos fibers may expose employees to potential illness or injury and protective devices or safety measures have not practically eliminated the potential for such personal illness or injury.
(If blank, the decision does not have footnotes.)
1. The relevant provisions of the Federal Personnel Manual (FPM) appear in the Appendix to this decision.
2. Although not argued by the parties, we note that there was no impediment to the processing of the Agency's exceptions while there was an outstanding request before the Arbitrator. See generally Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, AFL-CIO, 15 FLRA 181, 182 (1984). Similarly, the pendency of exceptions does not preclude an arbitrator from clarifying an award. National Treasury Employees Union, National Treasury Employees Union Chapter 33 and U.S. Internal Revenue Service, Phoenix District, 44 FLRA 252, 279 (1992).
3. With respect to this request, we note that effective December 31, 1986, the Authority's Rules and Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards. 51 Fed. Reg. 45754. Accordingly, no action on the stay request was taken.