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55 FLRA No. 2
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2004
U.S. DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE DISTRIBUTION REGION EAST
NEW CUMBERLAND, PENNSYLVANIA
December 17, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Monroe Berkowitz 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 filed an opposition to the Union's exceptions. The Union also filed a supplemental submission.
The Arbitrator concluded that the Agency did not violate the parties' collective bargaining agreement by failing to eliminate unsafe conditions in the work environment. Accordingly, the Arbitrator denied the Union's request that employees be awarded Environmental Differential Pay (EDP).
For the reasons explained below, we conclude that the award is not deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The Union first filed a grievance concerning the presence of asbestos in an Agency building in 1990. In the grievance, the Union requested EDP for employees who worked in the building. In settlement of that grievance, the Agency agreed to make a lump-sum EDP payment to affected employees. Under the terms of the settlement, the Agency would not be responsible for [ v55 p7 ] additional EDP payments as long as the Agency "wet scrubbed" the building and followed "abatement procedures." Arbitrator's Award at 2. The Agency also removed the asbestos from the building in 1990. There is no indication that the Agency's removal of the asbestos was related to the 1990 settlement.
In 1996, responding to a complaint of continued asbestos contamination, the Agency and the Union each took samples from the building. Each test showed the presence of some asbestos. The Agency performed another test which showed that the presence of asbestos was within the levels permitted by the Occupational Safety and Health Administration (OSHA). The Union then requested permission from the Agency to perform its own additional tests. The Agency denied the request. However, an OSHA investigator visited the building at the Union's request to do further testing. He, too, found that the levels of asbestos were within OSHA's permissible levels. When the Agency would not permit the Union to do further testing of the building, the Union filed an unfair labor practice (ULP) charge with the Authority.
The Union also filed a grievance contending that until the Agency were to permit the Union to conduct its own tests, there should be a presumption that asbestos levels in the building exceeded OSHA levels. The Union also claimed that even if tests up to that point showed that samples were within OSHA limits, this would not establish that "there was no violation of the collective bargaining agreement." Id. at 3. The Union argued before the Arbitrator that Article 15 of the collective bargaining agreement, which adopts the OSHA standards, must be read in conjunction with Article 12 of the contract, which "adopts the federal pay regulations regarding entitlement to EDP." [n1] Id. Finally, the Union asserted that, because the Agency would not permit the Union to test the building for asbestos, the Arbitrator should presume that concentrations of asbestos in the building were unacceptably high.
The Agency argued that the Union failed to demonstrate that the asbestos in the building was airborne or that the concentration of asbestos in the building was sufficient to entitle employees to EDP. Additionally, the Agency asserted that the Arbitrator should not presume that the Agency's unwillingness to allow the Union access to the building for asbestos testing indicated that unacceptably high levels of asbestos exist in the building.4
The Arbitrator framed the issues as follows:
[T]he Union maintains that the Agency violated Articles 12 and 15 of the collective bargaining agreement in that building T-21 contains an unknown amount of asbestos.
[T]he Union asks that the Agency initiate a full and proper clean-up program in building T-21. The Union also requests Environmental Differential Pay for all bargaining unit employees assigned to building T-21 during a six-year period.
Id. at 1. The Arbitrator denied the Union's grievance. Initially, the Arbitrator found that settlement of the earlier grievance did not bar the Union from bringing the instant grievance. The Arbitrator also addressed the contractual requirements of Articles 12 and 15, as well as the EDP and OSHA regulations referenced in those articles. The Arbitrator determined that the Agency's failure to permit the Union to test for asbestos did not create a presumption that dangerously high levels of asbestos were present in the building. The Arbitrator also found that, although the Union had no obligation under the contract and the regulations to prove any actual cases of illness resulting from asbestos exposure, the Union had not demonstrated even a potential for illness or injury. In sum, the Arbitrator concluded that "the Union ha[d] not shown that the conditions prevailing in Building T-21 merited Environmental Differential Pay." Id. at 6.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award is contrary to law and regulation. The Union asserts that under Federal Rule of Civil Procedure 37(b)(2)(A), [n2] the Arbitrator must treat the Agency's failure to grant the Union's request to allow an expert to perform "relevant tests" on the building as an admission that impermissibly high [ v55 p8 ] levels of asbestos exist in the building, warranting the payment of EDP. Exceptions at 5. Additionally, the Union argues that the Arbitrator failed to correctly apply 5 C.F.R. § 532.511(d), Appendix A, Part II, Paragraph 16, which provides for EDP in the event of asbestos exposure. [n3] According to the Union, the Arbitrator incorrectly concluded that in order to grant EDP, he would have to find that there were actually airborne asbestos fibers. The Union maintains that under the cited regulation it is enough to find that asbestos fibers potentially may become airborne.
The Union also asserts that the Arbitrator misapplied the contract provisions incorporating OSHA asbestos exposure standards as well as the standards for granting EDP. The Union argues that in determining whether EDP would be appropriate, the Arbitrator should not have required the Union to demonstrate that asbestos levels in the building were outside the levels permitted by OSHA. The Union asserts that "[t]he standard does not require that any airborne capable fibers be present in the worksite, so long as there is a potential that such fibers might become present." Id. at 9 (emphasis in original). According to the Union, if the levels of asbestos in the building were outside the levels permitted by OSHA, then the Agency would have been violating the law by requiring its employees to work there.
B. Agency's Opposition
The Agency argues, as a preliminary matter, that the Authority should not accept the Union's exceptions because the Union failed to comply with the terms of service set forth in 5 C.F.R. § 2429.27. The Agency maintains that the Authority's Regulations require that the Union serve the exceptions on the Agency by certified mail, which the Union failed to do.
As to the merits of the exceptions, the Agency argues that the Union is not entitled to a legal presumption that the Agency's refusal to allow the Union to test for asbestos indicates impermissibly high levels of asbestos in the building. The Agency also asserts that the Federal Circuit held in O'Neall v. United States, 797 F.2d 1576 (Fed. Cir. 1986), that a union is not entitled to the type of presumption that the Union seeks in this case. Additionally, the Agency argues that the Federal Rule of Civil Procedure cited by the Union is unrelated to the circumstances of this case.
The Agency also argues that the Arbitrator did not err in his interpretation of 5 C.F.R. Part 532. The Agency maintains that the regulation requires a finding that airborne asbestos is present in the worksite in order to grant additional pay and that the Arbitrator found that there was no airborne asbestos at the worksite. With respect to the Union's assertion that the Arbitrator mistakenly applied OSHA standards to the EDP regulation, the Agency contends that the Arbitrator correctly found that the OSHA standards were incorporated into the parties' collective bargaining agreement, and that such standards are appropriately applied in this case.
IV. Analysis and Conclusions
A. Preliminary Matters
1. The Union's Exceptions were Properly Served
We reject the Agency's contention that the Union failed to comply with the requirements for service set forth in 5 C.F.R. § 2429.27 because the exceptions were served on the Agency by first-class mail, rather than certified mail. Section 2429.27(b) provides that service "shall be accomplished by certified mail, first-class mail, commercial delivery, or in person. Where facsimile equipment is available, service by facsimile . . . is permissible." Thus, service by certified mail is not the only permissible means of service under the regulation. The Union complied with the regulation when it served the Agency by first-class mail.
2. The Union's Request for a Remand Is Denied
After filing the grievance in this case, the Union filed a ULP charge contending that the Agency wrongly prevented the Union from testing for asbestos. The Union referred to the administrative law judge's (ALJ) then-pending decision in its exceptions, and requested that the award be held in abeyance. The ALJ subsequently issued a decision, which ordered the Agency to grant the Union access to the building for testing. No exceptions to the ALJ's decision were filed. After that [ v55 p9 ] testing showed the presence of asbestos, the Union filed a supplemental submission with the Authority requesting that the Authority remand the instant case to the Arbitrator for further proceedings in view of the newly acquired evidence.
The Agency does not oppose the filing of the supplemental submission. Although the Authority's Regulations do not provide for the filing of supplemental submissions, the Authority may, pursuant to 5 C.F.R. § 2429.26, grant leave to file documents as the Authority deems appropriate. See, e.g., U.S. Equal Employment Opportunity Commission, 51 FLRA 248 n.1 (1995); U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, 49 FLRA 802 n.1 (1994). We accept the submission and consider the Union's arguments contained therein. However, we deny the Union's requested remand.
The Authority has held that arbitration awards are not subject to review on the basis of evidence that comes into existence after the arbitration. See, e.g., National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Langley Air Force Base, Langley, Virginia, 53 FLRA 517, 519-20 (1997). Even where new evidence or testimony is discovered that would have resulted in a different award if it had been presented at the arbitration hearing, this is not a sufficient ground for "vitiating the required finality of the original award." Id. at 519 (quoting Veterans Administration Regional Office and Service Employees International Union, Local 556, AFL-CIO, 5 FLRA 463, 471 (1981)). The Union seeks to introduce new evidence to affect an award. As this evidence could not be used to alter the Arbitrator's award, there is no basis on which to grant the remand.
B. The Award Does Not Fail to Draw its Essence from the Agreement
The Union asserts that the Arbitrator misapplied the contract provisions incorporating OSHA asbestos exposure standards as well as the standards for granting EDP. According to the Union, the Arbitrator should have found that an award of EDP is warranted if "there is a potential that [airborne asbestos] fibers might become present" in the building. Exceptions at 9 (emphasis in the original). We construe this as an argument that the award fails to draw its essence from the collective bargaining agreement.
In this case, the parties contractually agreed to apply OSHA standards for determining the existence of safe and healthful working conditions and to apply EDP requirements that now exist in Appendix A. [n4] The Arbitrator found that asbestos exposure did not exceed the contractual standard, and that the Union had not demonstrated a potential for illness of injury. Consequently, the Arbitrator determined that there was no requirement to give EDP.
The Union has provided no basis for finding that the Arbitrator's interpretation of the agreement provisions is implausible, irrational, or unconnected to the wording of the agreement. Accordingly, we find that the Union has not demonstrated that the award fails to draw its essence from the collective bargaining agreement.
C. The Award is Not Contrary to Law or Regulation
The Authority reviews the questions of law raised by the award and the Union'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 Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. The Authority also defers to an arbitrator on questions of contract interpretation. See id. at 1709 n.4.
The Union contends that the award is contrary to law because the Arbitrator failed to apply the correct standard for providing EDP. The Union asserts that the Arbitrator incorrectly concluded that granting EDP requires a finding that the building contained a "certain quantity of airborne capable asbestos fibers were actually in the air at the worksite." Exceptions at 6. According to the Union, a finding that asbestos may become airborne is sufficient.
Appendix A does not state that in order to grant EDP it is sufficient to find a potential that asbestos may become airborne; Appendix A refers to "airborne con- [ v55 p10 ] centrations of asbestos fibers" that creates a potential for illness or injury that protective devices or safety measures have not practically eliminated. Appendix A, thus, requires the existence of airborne asbestos at the workplace and the Union's contention to the contrary is incorrect.
Additionally, Appendix A of 5 C.F.R. Part 532 does not set forth any specified level of exposure required for the payment of EDP. The Authority has consistently held that the specific work situations for which EDP is payable are left to local determination, including arbitration. Thus, parties are free to negotiate, consistent with law and regulation, the quantitative level of asbestos exposure that would be used in assessing employee entitlement to EDP. See, e.g., U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and American Federation of Government Employees, Local 3961, 53 FLRA 46, 51 (1997); and American Federation of Government Employees, Local 2280 and U.S. Department of Veterans Affairs Medical Center, Iron Mountain, Michigan, 51 FLRA 620, 623-24 (1995). As we stated above, the parties contractually agreed to use OSHA standards. The Arbitrator applied these standards in finding that the Union failed to establish that employees were entitled to EDP. The Union has not demonstrated that the award is contrary to law.
The Union also asserts that Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure requires that the Arbitrator grant a legal presumption that the Agency's failure to allow the Union access to the building for additional asbestos testing indicates that the building contains unsafe levels of asbestos. The Authority has stated previously that there is no requirement that arbitration proceedings be governed by the Federal Rules of Civil Procedure. The Federal Rules were designed to govern procedures in the United States district courts and do not purport to be applicable in administrative proceedings. See 1 James W. Moore et al., Moore's Federal Practice, ¶ 1.20[e] (3d ed. 1997). See also American Federation of Government Employees, AFL-CIO, Local 3615 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 44 FLRA 806, 816 (1992). Additionally, even if the Federal Rules did apply in this context, the rule which the Union cites concerns failure to comply with an order to permit discovery. The Agency's refusal to allow further testing does not constitute a failure to comply with a discovery order. Accordingly, we find that the Union has not demonstrated that failure to grant the Union a presumption in its favor renders the award contrary to law.
The Union's exceptions are denied.
Footnote # 1for 55 FLRA No. 2
A. The Agency will, to the extent of its authority, provide and maintain safe and healthful working conditions for all employees. Safe and healthful working conditions will be determined in accordance with the definitions and standards contained in Section 19 of the Occupational Safety and Health Act (OSHA), in Executive Order 12196, and in implementing regulations and directives.
Exceptions, Union Exhibit 1 at 45.
Article 12, Section 6 provides that:
Environmental differential pay shall be paid to any employee who is exposed to a hazard, physical hardship or working conditions as authorized by FPM [Federal Personnel Manual] Supplemental 532-1, Subchapter [S]8 and Appendix.
Award at 2.
Footnote # 2 for 55 FLRA No. 2
(b)(2) If a party . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may make such order in regard to the failure as are just, and among others the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order[.]
Footnote # 3 for 55 FLRA No. 2
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.
Footnote # 4 for 55 FLRA No. 2
Article 12, Section 6 adopts the standard set forth in the Federal Personnel Manual (FPM). The Authority has found that the standards and legal requirements governing EDP that were set forth in the FPM are now codified at 5 C.F.R. § 532.511, Appendix A. As such, the Authority applies Appendix A to EDP cases. See, e.g., Red River Army Depot, 53 FLRA at 47-48 n.3.