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56 FLRA No. 179
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1156
LABORERS' INTERNATIONAL UNION
UNITED STATES DEPARTMENT OF THE NAVY
NAVAL INVENTORY CONTROL POINT
DEFENSE LOGISTICS AGENCY
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 arbitration. Id. at 594 (citing Mailhandlers v. United States Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).
The Unions challenge the Arbitrator's findings that: (1) asbestos exposure under .015 fibers/cc will not cause injury or illness within the meaning of Appendix A; (2) the quantifiable level of exposure to asbestos for entitlement to EDP must be above .015 fibers/cc; and (3) the Agencies have practically eliminated the potential for illness and injury within the meaning of Appendix A. Before the Arbitrator, the parties disputed each of these factual matters. See Award at 43, 47, 49, 51. As the issues disputed before the Arbitrator are the issues challenged by the Unions in their nonfact exception, we find that the exception does not provide a basis for finding the award deficient.
B. The Award Is Not Contrary to 5 C.F.R. § 532.511
In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised by an arbitrator's award or a party's exceptions de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Appendix A of 5 C.F.R. Part 532 provides that EDP shall be paid to employees who work in an area where airborne concentrations of asbestos may expose them to "potential illness or injury" and the potential for such personnel illness or injury has not been "practically eliminated." 5 C.F.R. pt. 532 app. A, Part II, Category 16. Appendix A does not set forth any specified level of exposure required for the payment of EDP. The Authority has consistently held that under Appendix A, the specific work situations for which EDP is payable are left to local determination, including arbitration. See AFGE, Local 2250, 52 FLRA 320, 322-23 (1996). Accordingly, when parties submit a grievance to arbitration involving exposure to asbestos, the arbitrator has 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. See id. Parties may also negotiate, consistent with law and regulation, the quantitative level of asbestos exposure that would be used in assessing employee entitlement to EDP. See AFGE, Local 2004, 55 FLRA 6, 10 (1998).
Consistent with the precedent set forth above, the Arbitrator had the authority to determine the threshold level of exposure for which EDP is payable and to apply that level. See AFGE, Local 2635, 56 FLRA 114, 116 (2000). As such, and as his factual findings -- to which we defer -- support his legal conclusion that EDP was [ v56 p1026 ] not warranted, the Unions' exception does not provide a basis for finding the award deficient. Accordingly, we conclude that the Unions have not demonstrated that the award is contrary to 5 C.F.R. § 532.511.
C. The Award Is Not Deficient Because the Arbitrator Failed to Address the Issue of Attorney Fees
It is well established that under the Back Pay Act, 5 U.S.C. § 5596, parties are not required to request attorney fees, and arbitrators are not required to decide such requests, before an award of backpay becomes final and binding. See United States Dep't of the Treasury, United States Customs Serv., Nogales, Ariz., 48 FLRA 938, 940 (1993); Philadelphia Naval Shipyard, 32 FLRA 417, 421 (1988). Where an arbitrator retains jurisdiction to resolve a fee request or does not make any determination regarding such a request in an award on the merits of a grievance, an exception filed with the Authority regarding attorney fees is premature. See United States Dep't of Veterans Affairs, Medical Center, Coatesville, Pa., 53 FLRA 1426, 1431-32 (1998).
As nothing in the Back Pay Act required the Arbitrator to have issued a fee award at the time he issued an award on the merits of a grievance, the failure of the Arbitrator to address the fee request in that award is not contrary to the Back Pay Act. Moreover, because the Arbitrator has not yet addressed the merits of the fee request, the parties' arguments in that regard are premature. Accordingly, we conclude that the award is not 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, and dismiss the exception without prejudice.
The Unions' exception regarding attorney fees is dismissed without prejudice. The Unions' remaining exceptions are denied.
Footnote # 1 for 56 FLRA No. 179
5 C.F.R. § 532.511 provides that "an employee shall be paid an environmental differential when exposed to a working condition or hazard that falls within one of the categories approved by the Office of Personnel Management." Section 532.511(d) incorporates Appendix A, which sets forth the categories approved by OPM and provides that EDP shall be paid to employees "[w]orking 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[.]" 5 C.F.R. pt. 532 app. A, Part II, Category 16.
Footnote # 2 for 56 FLRA No. 179
The Agencies also assert that the Unions' exceptions should be dismissed under 5 C.F.R. § 2425.2 because the record submitted by the Unions is insufficient. We find that the record is sufficient under § 2425.2, and accordingly, we address the exceptions.