[ v50 p572 ]
The decision of the Authority follows:
50 FLRA No. 78
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
MARINE CORPS LOGISTICS BASE
June 29, 1995
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Robert D. Steinberg filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exception.
The Arbitrator denied a grievance seeking environmental differential pay (EDP) for certain bargaining unit employees.
For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exception.
II. Arbitrator's Award
The Union filed a grievance alleging that certain Wage Grade (WG) employees exposed to airborne asbestos were entitled to EDP. The Arbitrator framed the issue as follows:
Are employees entitled to EDP pursuant to the Master Labor Agreement (MLA), laws and regulations for exposure to asbestos on and after June 28, 1992?
Award at 4-5.
The Arbitrator determined that Federal Personnel Manual (FPM) Supplement 532-1, subchapter S8-7, Appendix J, Category 16 (Appendix J)(*) was the "operative regulation" regarding the grievants' entitlement to EDP. Id. at 13. The Arbitrator rejected the Union's claim that any level of exposure to asbestos is sufficient to warrant EDP and concluded that the Occupational Safety and Health Administration (OSHA) action level standard of 0.01 f/cc "should apply in all cases to the general work force . . . ." Id. at 17. Based on air sampling which showed that the grievants' exposure did not exceed this level, the Arbitrator denied the grievance in relevant part.
A. Union's Contentions
The Union contends that the Arbitrator erred as a matter of law by concluding that WG employees' eligibility for EDP and GS employees' eligibility for hazard pay are controlled by the same standard of exposure. The Union points out that the regulatory provision for WG employees (Appendix A) does not refer to the OSHA standard whereas the regulatory provision for GS employees (5 C.F.R. Part 550) does refer to the OSHA standard. The Union also contends that the Arbitrator erred by: (1) referring to Appendix J, rather than Appendix A, as the operative regulation; and (2) failing to conclude that, under Appendix A, any exposure to asbestos entitles the grievants to EDP.
B. Agency's Opposition
The Agency asserts that: (1) the Arbitrator did not base his award on regulations which apply to GS employees rather than to WG employees; (2) Appendix J is identical to Appendix A and the Arbitrator did not err by relying on Appendix J; and (3) the Union has not demonstrated that the Arbitrator was precluded by law or regulation from applying the OSHA standard.
IV. Analysis and Conclusions
The Union has not demonstrated that the award is contrary to law. The Union has failed to show that the Arbitrator erred by applying the OSHA standard. Appendix A, which is substantively identical to former Appendix J, does not set forth any specified level of exposure required for the payment of EDP. Accordingly, as was the case under Appendix J, the specific work situations for which EDP is payable are left to local determination, including arbitration. See, e.g., American Federation of Government Employees, Local 1273 and U.S. Department of Veterans Affairs, Medical Center, Boise, Idaho, 44 FLRA 707, 712 (1992). Thus, when the parties submit a dispute to arbitration involving exposure to asbestos, the arbitrator is free to determine what quantitative level of exposure to airborne concentrations of asbestos exposes employees to potential illness and injury and how that level is derived or calculated. Id. Accordingly, the Union's contention that the Arbitrator applied the wrong standard and measurement level does not provide a basis for finding the award contrary to law.
Consequently, we conclude that the Union's exception provides no basis for finding the award deficient.
The Union's exception is denied.
(If blank, the decision does not have footnotes.)
*/ Effective December 31, 1994, the FPM was abolished. Although the Arbitrator addressed provisions of the FPM that were in existence at the time of his award, the same standards and legal requirements for EDP based on working in areas with asbestos fibers were, and continue to be, codified at 5 C.F.R. § 532.511, Appendix A (Appendix A), which we will apply in this case.