American Federation of Government Employees, Local 1156 and Laborers' International Union, Local 1170 (Unions) and United States Department of the Navy, Naval Inventory Control Point and Defense Logistics Agency, Mechanicsburg, Pennsylvania (Agencies)

[ v56 p1024 ]

56 FLRA No. 179

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1156

AND

LABORERS' INTERNATIONAL UNION
LOCAL 1170
(Unions)

and

UNITED STATES DEPARTMENT OF THE NAVY
NAVAL INVENTORY CONTROL POINT

AND

DEFENSE LOGISTICS AGENCY
MECHANICSBURG, PENNSYLVANIA
(Agencies)

0-AR-3294

_____

DECISION

December 27, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.

Decision by Member Pope for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Irwin Kaplan filed by the Unions under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agencies filed an opposition to the Unions' exceptions.

      The Arbitrator denied in part and sustained in part a grievance alleging that employees were entitled to environmental differential pay (EDP) for exposure to asbestos. For the following reasons, we dismiss without prejudice the Unions' exception regarding attorney fees, and deny the Unions' remaining exceptions.

II.     Background and Arbitrator's Award

      The Unions filed a grievance seeking EDP for all members of the bargaining unit. The grievance was unresolved and submitted to arbitration. As relevant here, the Arbitrator framed the issue as:

Whether WG Bargaining Unit Employees employed by the Agency at the Mechanicsburg facility are entitled to EDP because they have worked and continue to work "in an area where airborne concentrations of asbestos fibers may expose [such] employees to potential illness or injury and protected devices or safety measures have not practically eliminated the potential for such illness or injury" as contended by the Unions.

Award at 6 (alteration in original) (quoting 5 C.F.R. pt. 532 app. A, Part II, Category 16).

      The Arbitrator sustained the grievance as to four employees and denied it as to the remaining members of the bargaining unit. The Arbitrator found that the parties were not bound by statute, regulation, or contract to a particular threshold level of asbestos exposure entitling employees to EDP under 5 C.F.R. § 532.511. [n1]  See id. at 66-68. Having made this finding, the Arbitrator concluded that he had discretion to determine the appropriate threshold level for EDP. See id. at 68-69.

      The Arbitrator discussed various quantitative standards for EDP entitlement, including the OSHA permissive exposure level (PEL), and determined that the level of exposure entitling employees to EDP should be less than the OSHA PEL of .1 fibers/cc, but greater than .015 fibers/cc -- the mean exposure level at the Agencies. See id. at 66-73. Applying this standard, he awarded the four employees "a full remedy under the Back Pay Act," and "retain[ed] jurisdiction for the purposes of resolving any differences between the Unions and the Agency having to do with the money payments to said employees and for such other relief as provided under the Back Pay Act." Id. at 80-81. The Arbitrator also found that, with the exception of those four employees: (1) the Unions failed to meet their burden of demonstrating that unit employees had encountered airborne asbestos at the necessary quantitative level; and (2) the Agencies have practically eliminated the potential for injury and illness within the meaning of Appendix A, Category 16. See id. at 73-77. [ v56 p1025 ]

III.     Positions of the Parties

A.     Unions' Exceptions

      The Unions contend that the award is based on a nonfact because the Arbitrator's factual findings are erroneous. The Unions also assert that the award is contrary to 5 C.F.R. § 532.511 because evidence regarding the asbestos levels and increased rate of cancer at the Agencies clearly demonstrates that the Agencies have not practically eliminated the potential for asbestos related illness and injury. Finally, the Unions assert that the award is contrary to 5 U.S.C. § 5596(b)(1)(A)(ii), 5 U.S.C. § 7701(g)(1), and 5 C.F.R. § 550.807, because the Arbitrator failed to address or resolve the Unions' application for attorney fees in the award.

B.     Agencies' Opposition

      The Agencies assert that the Unions' nonfact exception does not provide a basis for finding the award deficient because the parties disputed each of the three matters below. With regard to the Unions' claim that the award is contrary to 5 C.F.R. § 532.511, the Agencies assert that the evidence supports a finding that the Agencies have practically eliminated the potential for asbestos related illness and injury. Finally, with regard to the issue of attorney fees, the Agencies assert that the Unions' exception is premature because the Arbitrator has not yet made a determination on the merits of the Unions' fee request. [n2] 

IV.     Analysis and Conclusions

A.     The Award Is Not Based on a Nonfact

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593-94 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that was disputed at arbitratio