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57 FLRA No. 124
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1494
U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL PRISON CAMP
ALDERSON, WEST VIRGINIA
December 14, 2001
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exception to an award of Arbitrator Sue Ollinger Shaw filed by the Union under § 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 exception.
The Arbitrator granted, in part, and denied, in part, a grievance that alleged that the Agency had violated various regulations and sections of the parties' collective bargaining agreement in connection with the Agency's handling of a sewage spill. As relevant here, the Arbitrator found that the Agency had not violated certain regulations by failing to place employees who had been exposed to asbestos while responding to the spill into a medical surveillance program. For the reasons that follow, we deny the Union's exception.
II. Background and Arbitrator's Award
On November 15, 1999, employees working in one of the Agency's facilities reported a problem with a strong sewer odor and a backed-up toilet. The following day, the Agency sent a group of employees to investigate the odor. Those employees discovered a leak from a PVC (polyvinyl chloride) pipe located in a crawl space in the basement of that facility. As early as 1990, the Agency had identified the crawl space as a hazardous area due to asbestos contamination. At that time, a contractor [ v57 p646 ] had informed the Agency that the crawl space contained 10% Chrysolite type asbestos, friable, due to contamination by debris from the disintegration of thermal coating insulation (TCI) on the pipes located therein. Nonetheless, the Agency did not conduct an assessment to determine if the employees entering the crawl space would be exposed to asbestos at a level in excess of the permissible exposure limit (PEL).
After repairing the pipe, the employees subsequently poured a large amount of liquid cleaner and sprinkled lime onto the soil beneath the pipe in an attempt to mask the odor emanating from the soil contaminated by the sewage leaking from the pipe. The following day, November 17, an employee returned to the crawl space to add more crushed lime to the soil.
On November 18, after the odor persisted, the County Health Department recommended that the Agency remove the sewage-contaminated soil. That day, employees entered the crawl space and removed ten to twelve inches of damp sewage-contaminated soil from the crawl space. Later that day, employees returned to the crawl space to remove an additional two to six inches of sewage-contaminated soil. The Agency did not subsequently place any of the employees who had entered the crawl space into a medical surveillance program to determine if they were suffering any ill effects from their exposure to asbestos.
The Union then filed a grievance over the Agency's handling of the situation. This grievance alleged that the Agency took a number of actions in violation of the parties' agreement and the Code of Federal Regulations. As relevant here, the Union alleged that the Agency improperly failed to place the employees who had entered the crawl space into a medical surveillance program. In this connection, 29 C.F.R. § 1910.1001, Appendix H, Section 4 requires employers to "institute a medical surveillance program for all employees who are or will be exposed to asbestos at or above the permissible exposure limit . . ." [n1] Furthermore, 29 C.F.R. § 1926.1101(f)(2)(ii) requires employers to assume that employees engaged in Class I asbestos work [n2] are exposed to asbestos in excess of the time weighted average limit (TWA), which is one of the PEL's, when the employer does not conduct tests to ensure that employees are not exposed to asbestos above the PEL's. [n3] In this case, because no such test was conducted, the Union asserted that the Agency was required to assume that the employees who had entered the crawl space were exposed to asbestos at a level in excess of the PEL's and place them into a medical surveillance program.
After the parties could not resolve the matter, they submitted it to arbitration. During the hearing, the Arbitrator toured the crawl space and observed TCI coated pipe in a crumbling state.
The Arbitrator ruled that the Agency did not improperly fail to place the exposed employees into a medical surveillance program. In this regard, the Arbitrator determined that the work at issue in this case was properly defined as Class II asbestos work. She noted that Class II asbestos work is work "involving the removal of ACM which is not thermal system insulation or surfacing material." Award at 36. [n4] Because the relevant language of 29 C.F.R. §1926.1101(f)(2)(ii) requires employers to assume that employees were exposed to asbestos at a level in excess of the PEL's only if they are performing Class I asbestos work, she found that there was no basis to assume, or find, that the employees who had entered the crawl space were [ v57 p647 ] exposed to asbestos at a level in excess of the PEL's. Therefore, because employees must be placed in medical surveillance programs only if they are exposed to asbestos at a level in excess of the PEL's, the Arbitrator determined that the Agency had not improperly failed to place the exposed employees in a medical surveillance program.
III. Positions of the Parties
A. Union's Exception
The Union argues that the Arbitrator improperly classified the asbestos work at issue as Class II asbestos work. The Union contends that the employees in the crawl space were performing Class I asbestos work. In this regard, the Union notes that the Arbitrator found that the soil in the crawl space was contaminated by debris from the disintegration of TCI on the pipes. The Union maintains that TCI and TSI are two different terms used to describe the same thing, i.e., thermal pipe insulation. Therefore, the Union argues that the work involved here should have been classified as Class I asbestos work, as it involved the removal of TSI. According to the Union, the Arbitrator's misclassification of the asbestos work led her to misapply 29 C.F.R. § 1926.1101(f)(2)(ii), which requires employers to assume that employees who have engaged in Class I asbestos work have been exposed to asbestos in excess of the PEL's. [n5]
B. Agency's Opposition
The Agency argues that the Arbitrator properly classified the work as Class II asbestos work. In this regard, the Agency maintains that the Arbitrator found that the material removed from the crawl space was sewage-contaminated soil and that the employees did not remove any insulation from the pipe in the crawl space. The Agency also asserts that the soil that was removed did not constitute surfacing material. Finally, the Agency contends that the Union is asking the Authority to improperly conclude that the removal of soil containing ACM from the ground is equivalent to removing TSI from a pipe or plaster from a ceiling.
The Agency asserts, instead, that the work was properly classified as Class II asbestos work. In support of this position, the Agency points to the testimony of a Union representative, who testified that the Class II asbestos work is the removal of TCI "plus anything else like dirt." Opposition at 9.
The Agency also asserts that, to the extent that the Union's exception can be construed as asserting that the Arbitrator's award is based on a non-fact, the exception should be denied. In this connection, it maintains that the classification of the asbestos work was disputed at the hearing and, therefore, cannot be disputed now. [n6]
IV. Analysis and Conclusions
The Authority reviews questions of law raised by a party's exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995), citing United States Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
The Union argues that the Arbitrator should have found that the asbestos work performed here was Class I work as it involved the removal of TCI, which the Union maintains is the same material as TSI. There is nothing in the cited regulation, however, that provides any support for concluding that the award violates that provision. In our view, the Union is merely disagreeing with the Arbitrator's factual determination that the materials removed by the employees constitute the type of materials falling under Class II work. This disagreement with the Arbitrator's evaluation of the evidence and her reasoning and conclusions provides no basis for finding the award deficient. See United States Dep't of Health and Human Services, Soc. Sec. Admin., Baltimore, Md., 49 FLRA 483, 491 (1994) (exception that arbitrator mis-classified employees as non-exempt from the Fair Labor Standards Act was denied because it only constituted disagreement with the arbitrator's evaluation of the evidence). [n7] [ v57 p648 ]
Conducting a de novo review, we conclude that the Arbitrator's determination, that the removal of soil contaminated with the debris of disintegrating pipe insulation constitutes Class II work, is consistent with 29 C.F.R. § 1926.1101(a). In this regard, the Union asserts that because the asbestos work involved the removal of soil containing pipe insulation, it constitutes Class I work, which involves the removal of such insulation. While the Union would be correct if the work involved the removal of the insulation directly from the pipes, it is clear from the regulations that the location of the ACM at the time of removal is the determining factor in classifying the work here. 29 C.F.R. § 1926.1101(b) defines Class IV work as "activities to clean up dust, waste and debris resulting from Class I, II and III activities." If all work involving the removal of ACM that was originally affixed to pipes constituted Class I work, even after the ACM was no longer affixed to the pipes, then removing debris from that work would always also constitute Class I work. The definition of Class IV work makes clear that such is not the case. Therefore, the award is consistent with 29 C.F.R.§ 1926.1101(a), and the classifications of asbestos work contained therein.
We deny the Union's exception.
Footnote # 1 for 57 FLRA No. 124
The Arbitrator and the Union's exception both cite only to language contained in 29 C.F.R. § 1910.1001, Appendix H, Section 4 concerning the placement of employees into medical surveillance programs. 29 C.F.R. § 1910.1001, however, does not apply to the employees who entered the crawl space to remove the asbestos-containing material (ACM). Instead, 29 C.F.R. § 1926.1101 covers workers removing ACM. Nonetheless, neither party objects to the Arbitrator's exclusive use of 29 C.F.R. § 1910.1001. Moreover, 29 C.F.R. § 1926.1101, Appendix I, Section 4 contains language identical to the language from 29 C.F.R. § 1910.1001 quoted above.
Footnote # 2 for 57 FLRA No. 124
Footnote # 3 for 57 FLRA No. 124
For Class I asbestos work, until the employer conducts exposure monitoring and documents that employees on that job will not be exposed in excess of the PELs, or otherwise makes a negative exposure assessment pursuant to paragraph (f)(2)(iii) of this section, the employer shall presume that employees are exposed in excess of the TWA and excursion limit.
Footnote # 4 for 57 FLRA No. 124
Class II asbestos work is defined as "activities involving the removal of ACM which is not thermal system insulation or surfacing material. This includes, but is not limited to, the removal of asbestos-containing wallboard, floor tile and sheeting, roofing and siding shingles, and construction mastics." 29 C.F.R. § 1926.1101(b).
Thermal System Insulation (TSI) is defined as "ACM applied to pipes, fittings, boilers, breeching, tanks, ducts or other structural components to prevent heat loss or gain." Id.
Surfacing material is defined as "material that is sprayed, troweled-on or otherwise applied to surfaces (such as acoustical plaster on ceilings and fire-proofing materials on structural members, or other materials on surfaces for acoustical, fireproofing, and other purposes)." Id.
Footnote # 5 for 57 FLRA No. 124
Footnote # 6 for 57 FLRA No. 124
Additionally, in a footnote, the Agency claims that the Arbitrator erred in finding that the Agency had improperly failed to employ a critical barrier to prevent migration of the asbestos from the crawl space. This contention essentially constitutes an exception to the Arbitrator's award. Because this exception was not filed within the time period applicable to the filing of exceptions, it will be dismissed. See GSA, 45 FLRA 1226, 1231 n.3 (1992).
Footnote # 7 for 57 FLRA No. 124
We also note that, not withstanding the alleged confusion between "TCI" and "TSI," one of the Union's local officials testified at the hearing that the mixture of soil and ACM constituted Class II work.