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52 FLRA No. 29

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

Local 2250

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

MUSKOGEE, OKLAHOMA

(Agency)

0-AR-2831

_____

DECISION

September 30, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Harvey A. Nathan 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 Regulations. The Agency did not file an opposition to the Union's exceptions.

The Arbitrator denied, in part, a grievance seeking environmental differential pay (EDP) for certain bargaining unit employees. For the following reasons, we conclude that the Union has provided no basis for finding the award deficient. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance alleging that certain Boiler Room employees exposed to airborne concentrations of asbestos were entitled to EDP. The Agency denied the grievance and the matter was submitted to arbitration. The Arbitrator framed the issue as follows:

1. Did the [Agency] properly deny the Union's request for [EDP] for those employees working in the Boiler Plant?

2. If not, what is the appropriate remedy?

Award at 2.

The Arbitrator reviewed Articles 3, 24, and 25 of the parties' agreement, which incorporated Federal Personnel Manual (FPM) Supplement 532-1 and Appendix J,⁽¹⁾ and also reviewed Department of Veterans Affairs (DVA) Circular 00-88-6, entitled "Management, Abatement, and Removal of Asbestos in VA Facilities."⁽²⁾ The Arbitrator rejected the Union's argument that any measure of asbestos in the workplace entitles employees to EDP. Noting that Article 25 speaks of "'unusually severe hazard, physical hardship or working condition[,]'" the Arbitrator stated that "while the presence of any degree of asbestos poses a potential risk, the burden is on the Union to demonstrate that the amount of asbestos at issue poses an 'unusually severe' situation. Id. at 13 (emphasis in original). The Arbitrator found that the "only reasonable standard for the measurement of Article 25 of the [parties'] agreement is the standard set out in DVA Circular 00-88-6, as amended, which provides that employees shall not be exposed to airborne concentrations of asbestos in excess of OSHA's action limit of 0.1 fibers per cubic centimeter." Id. at 14.

Applying this standard, the Arbitrator found that there was no sustained exposure to asbestos above the stated limit. However, he also found that there were isolated occasions when employees were temporarily exposed to unacceptable limits of asbestos and that the Agency violated its regulations and the parties' agreement by failing to provide EDP for exposure on these occasions. In particular, he determined that the Agency improperly denied EDP for employees working in the Boiler Plant on those days when they worked with boiler gaskets, and on February 3-6, 1995, during and after a general clean-up of the Boiler Room.

III. Union's Exceptions

The Union asserts that the Arbitrator's use of the OSHA standard for awarding EDP is contrary to law and regulation, specifically, 5 U.S.C. § 5545(d)⁽³⁾ and FPM Supplement 532-1, Subchapter S-8, Appendix J, Category 16. According to the Union, any measurable presence of asbestos entitles employees to EDP. The Union relies on previous arbitration awards involving the parties and also asserts that the award is contrary to the Authority's decision in Allen Park Veterans Administration Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091 (1990) (Allen Park).

Additionally, the Union contends that the Arbitrator erred in stating that the Union has the burden to demonstrate that the amount of asbestos at issue poses an unusually severe situation.

IV. Analysis and Conclusions

A. The Award Is Not Contrary to Law and Regulation

In circumstances where a party's exceptions involve an award's consistency with law, we must review the question of law raised by the arbitrator's award and the party's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994).

The Authority has consistently held that the specific work situations for which EDP is payable under the FPM Supplement, Appendix J are left to local determination, including arbitration. E.g., American Federation of Government Employees, Local 2144 and U.S. Department of the Air Force, 51 FLRA 834, 838 (1996). Thus, when the parties submit a grievance to arbitration involving exposure to asbestos, the arbitrator has the authority to resolve a dispute over what quantitative level of exposure to airborne concentrations of asbestos exposes employees to potential illness and injury and how that level is derived. Id. at 838. Of course, in making local determinations regarding the specific work situations for which EDP is payable, the parties could negotiate, consistent with law and regulation, the quantitative level of asbestos exposure that would be used in assessing employee entitlement to EDP. Id.

In this case, as there is no evidence that the parties negotiated such a standard, the Arbitrator did not err in applying the OSHA standard.⁽⁴⁾ In this regard, the Union misinterprets the Authority's findings in Allen Park. Allen Park does not stand for the proposition that unless a threshold level of exposure to airborne asbestos is negotiated between the parties, a quantitative level of exposure cannot be applied. Rather, in Allen Park, the Authority held that in the absence of a mandated quantitative level set by applicable law or regulation or otherwise agreed to by the parties, the arbitrator has the authority to determine the threshold quantitative level of exposure for the payment of EDP. Moreover, the standard applied in Allen Park--that there is no permissible asbestos exposure level for the payment of EDP--was determined by the arbitrator based on the facts presented.

Also, the Union's reliance on other awards provides no basis for finding the award deficient. Arbitration awards are not precedential and, therefore, a contention that an award conflicts with other arbitration awards provides no basis for finding an award deficient. See American Federation of Government Employees, Local 1273 and U.S. Department of Veterans Affairs Medical Center, Boise, Idaho, 44 FLRA 707, 712 (1992).

Consequently, the Union's contention that the Arbitrator's adoption of the OSHA standard is contrary to law and regulation provides no basis for finding the award deficient.

B. The Arbitrator Did Not Erroneously Apply the Burden of Proof

We reject the Union's contention that the award is deficient on the ground that the Arbitrator erred in stating that the Union has the burden to demonstrate that the amount of asbestos at issue poses an unusually severe situation. If a standard of proof is set forth in law, rule, regulation, or a collective bargaining agreement, an arbitrator's failure to apply the prescribed standard will constitute a basis for finding the award deficient as contrary to law, rule, regulation, or as failing to draw its essence from the agreement. U.S. Department of Navy, Navy Public Works Center, San Diego, California and National Association of Government Employees, Local R12-35, 49 FLRA 553, 558 (1994). However, in the absence of a specified standard of proof, arbitrators have the authority to establish whatever standard they consider appropriate, and the Authority will not find an award deficient because a party claims that an incorrect standard was used. Id. Moreover, unless otherwise provided, establishing the standard encompasses specifying which party has the burden of proof under the established standard. Id.

In this case, the Union has failed to demonstrate that the Arbitrator was required to apply a prescribed standard. Therefore, in the absence of any established burden of proof, there is no basis on which to conclude that the Arbitrator erred by stating that the burden was on the Union to demonstrate that the amount of asbestos at issue poses an unusually severe situation. Consequently, the Union's exception provides no basis for finding the award deficient.

V. Decision

The Union's exceptions are denied.

APPENDIX

Articles 3, 24, and 25 provide, in pertinent part, as follows:

Article 3 - GOVERNING LAWS AND REGULATIONS

Section 1 - Relationship to Laws and Regulations

In the administration of all matters covered by this Agreement, officials and employees shall be governed by applicable Federal Statutes. They will also be governed by Government-wide regulations in existence at the time this Agreement was approved and the Civil Service Reform Act [CSRA] of 1978.

Article 24 -- HEALTH, SAFETY AND ENVIRONMENT

Section 1 - General It shall be the responsibility of the Agency to establish and maintain an effective and comprehensive occupational safety and health program in accordance with Public Law 91-596, the [OSHA] of 1970 (hereinafter the Act) . . . . The Agency recognizes the Union's rights under Title VII of the CSRA in administering this program. The Agency shall furnish to each employee places and conditions of employment which are free of recognized hazards that are causing, or are likely to cause death or serious physical harm to the employee.

Section 3 - Standards The Agency shall comply with the recognized occupational safety and health standards issued under Section 6 of the Act and/or, where the Secretary of Labor has approved compliance with alternate standards in accordance with part 1960. The Agency will consult with the Union and provide the Union, upon its request, an opportunity to discuss the issues prior to the submission of any alternate standards to the Secretary of Labor.

. . . .

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 employees 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 [U]nion 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.

Federal Personnel Manual Supplement 532-1

S8-7(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.

Appendix J

Schedule of Environmental Differentials Paid for Exposure to Various Degrees of Hazards, Physical Hardships, and Working Conditions of an Unusual Nature

. . . .

8% 16. Asbestos. Working in an area where airborne concentrations of asbestos fibers may expose employees to potential illness of injury and protective devices or safety measures have not practically eliminated the potential for such personal illness or injury. Mar. 9, 1975.

5 C.F.R. § 532.511

Appendix A

8% 16. Asbestos. Working in an area where airborne concentrations of asbestos fibers may expose employees to potential illness of injury and protective devices or safety measures have not practically eliminated the potential for such personal illness or injury. Mar. 9, 1975.

DVA Circular 00-88-6

4. EXPOSURE STANDARDS FOR VA PERSONNEL, PATIENTS AND VISITORS TO VA FACILITIES

A. Exposure Limits at VA Facilities.

VA employees shall not be exposed to airborne concentrations of asbestos fibers, as defined by OSHA, in excess of OSHA's action limit (0.1-f/cc [fibers per cubic centimeter]) utilizing personal sampling for any eight-hour time weighted average (TWA). A 95% lower confidence limit must be followed for the proper determination of the 0.1 f/cc for an eight-hour TWA.

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

1. 5 U.S.C. § 5343 requires the Office of Personnel Management (OPM) to provide for EDP by regulation. To implement this provision the FPM Supplement, Appendix J was promulgated. Effective December 31, 1994, the FPM was abolished. However, the same standards and legal requirements previously contained in the FPM continue to be codified at 5 C.F.R. § 532.511, Appendix A and in the OPM Operating Manual--Federal Wage System. The pertinent text of Articles 3, 24, and 25, FPM Supplement 532-1, Appendix J, and 5 C.F.R. § 532.511, Appendix A, is set forth in the Appendix to this decision.

2. The pertinent text of DVA Circular 00-88-6 is set forth in the Appendix to this decision.

3. 5 U.S.C. § 5545(d) provides for hazardous duty differential for employees employed in general schedule (GS) positions for any period in which employees are subjected to physical hardship or hazard not usually involved in carrying out the duties of the position.

4. The Union's reliance on 5 U.S.C. § 5545(d) is misplaced because that section pertains to GS employees. It is undisputed that the employees here are not GS employees.

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