American Federation of Government Employees, Local 1617 (Union) and United States Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, San Antonio, Texas (Agency)

[ v58 p63 ]

58 FLRA No. 13

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1617
(Union)

and

UNITED STATES
DEPARTMENT OF THE AIR FORCE
SAN ANTONIO AIR LOGISTICS CENTER
KELLY AIR FORCE BASE
SAN ANTONIO, TEXAS
(Agency)

0-AR-3469

_____

DECISION

September 11, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Larry D. Smith filed by both the Agency and 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, and the Union filed an opposition to the Agency's exceptions. In addition, the Agency has requested that the Authority permit the parties to present oral argument in support of their positions.

      The Union filed a grievance over the Agency's failure to pay unit employees environmental differential pay (EDP). The Arbitrator sustained the grievance and awarded employees backpay. We find that the award is deficient, and we set the award aside.

II.     Background and Arbitrator's Award

      The Union filed a grievance over "`the Agency's failure and/or refusal to pay environmental pay (EDP) to the Union's Bargaining Unit employees represented by the Union as a result of asbestos exposure at the Facility [Kelly Air Force Base] since March 9, 1975.'" Award at 97 (quoting the grievance). [n2]  The Arbitrator sustained the grievance and awarded unit employees backpay.

      In sustaining the grievance, the Arbitrator considered the threshold issue of the standard for entitlement to EDP for exposure to asbestos. In particular, the Arbitrator examined whether the parties had agreed to apply the permissible exposure level (PEL) of the Occupational Safety and Health Administration (OSHA) as the standard for entitlement to EDP for exposure to asbestos. He explained the "huge significance" of this issue, as follows:

If the Agency's position that the parties agreed to use the OSHA PEL as the applicable EDP standard is embraced, the Union's grievance is doomed. While there are occasions of OSHA violations in the history of asbestos use at Kelly [Air Force Base], such episodes are rare and isolated. In fact counsel for the Union . . . admitted that if the case was decided in favor of the Agency insofar as the OSHA PEL being the standard for EDP was concerned, then the Union's fate was sealed to the downside.

Id. at 122.

      The Arbitrator first considered whether the parties' collective bargaining agreement provided a standard for the award of EDP for exposure to asbestos. He noted that the agreement's only specific reference to EDP is contained in Article 26, which provides: "In accordance with Federal Law, Government-wide regulation and this Agreement, an environmental differential will be paid to eligible wage-grade employees who are exposed to hazard or physical hardships." Id. at 112 (quoting the agreement). From this reference, the Arbitrator concluded that "[c]learly, there is no specific standard for entitlement to EDP set forth in the contract," id., and that the parties had not "agree[d] to a specific standard for entitlement to EDP," id. at 221.

      In addition, the Arbitrator considered the claim of the Agency that the bargaining history of the agreement evidences that the parties agreed to the OSHA PEL as the standard for entitlement to EDP for exposure to asbestos. After examining the bargaining history, he found the history insufficient to establish that the parties had agreed to the OSHA PEL as the standard for EDP for exposure to asbestos. [ v58 p64 ]

      The Arbitrator also considered the claim of the Agency that the conduct of the parties subsequent to the execution of the initial collective bargaining agreement confirms the existence of an agreement to allow the OSHA PEL to govern entitlement to EDP for exposure to asbestos.

      In considering this claim, the Arbitrator examined the regulation promulgated by the Air Force Logistics Command (AFLC) (now the Air Force Materiel Command (AFMC)) (the headquarters command of the Agency) on November 3, 1987, entitled "AFLC Supplement to AF Supplement to FPM Supplement 532-1." The regulation stated, in pertinent part, as follows:

S8-7a(1). AFLC definition of "practically eliminated." Reduction of exposure to unusually severe hazards, physical hardships or unusually severe working conditions to a level consistent with accepted standards (e.g. AFOSH standards, AF manuals and regulations, OSHA or other recognized national consensus standards).

As noted by the Arbitrator, the regulation was repromulgated on February 11, 1997, primarily to change the command acronym. AFMC Supplement to AF Supplement to FPM Supplement 532-1 provides, in pertinent part, as follows:

S8-7a(1).     AFMC definition of "practically eliminated." Reduction of exposure to unusually severe hazards, physical hardships or unusually severe working conditions to a level consistent with accepted standards AF instructions, Occupational Health and Safety Administration (OSHA) or other recognized national consensus standards.

      The Arbitrator found that the AFLC/AFMC Supplements provide that the OSHA PEL is the standard for entitlement of unit employees to EDP for exposure to asbestos. See Award at 127, 134. However, he ruled that "the manner in which the Agency proceeded insofar as EDP was concerned, is not binding upon the Union, unless the evidence establishes that the Union consented to the standard." Id. at 127. In this respect, the Arbitrator found that the evidence failed to support any agreement or acquiescence by the Union to the Agency's use of the OSHA PEL. Apart from this finding, the Arbitrator did not specifically address the effect of the AFLC/AFMC Supplements in this case.

      In reviewing the parties' Master Labor Agreement (MLA), the Arbitrator found that "there is no specific standard for entitlement to EDP set forth in the contract." Id. at 112. He found that the "words of the MLA were crafted with the apparent intent to incorporate the bargaining objective of the Union to avoid any definition of `practically eliminated.'" Id. at 136-37. As a result of these determinations, the Arbitrator ruled that "there is insufficient evidence to establish that the parties agreed that the OSHA PEL would serve as the trigger point for EDP." Id. at 137.

      Thereafter, on review of FLRA case precedent, the Arbitrator ruled that in view of his determination that "the parties did NOT ever agree to a specific standard for entitlement to EDP," he was "left with the responsibility and authority to determine whether the bargaining unit employees . . . are entitled to EDP." Id. at 221 (emphasis in original). He stated that his "finding that the parties did not voluntarily consent to the use of the OSHA PEL as the standard for entitlement to EDP, does not necessarily mean that the OSHA PEL should not be the standard adopted by the Arbitrator." Id. at 222. However, on review of the record, he rejected the use of the OSHA PEL as the standard. Stating the standard in terms of Appendix A to 5 C.F.R. § 532.511, he found that EDP should be paid to any employee "who works in an area where airborne concentrations of asbestos fibers could possibly result in damage or sickness and safety measures or devices have not essentially removed the possibility of such damage or sickness." Id. at 240.

      Addressing the issue of remedy, the Arbitrator found that the grievance was untimely, but that the Agency contributed to its untimeliness. For purposes of calculating the appropriate amount of backpay, the Arbitrator "apportion[ed] fault on an 80% and 20% basis." Id. at 282. Accordingly, he ruled that "[t]he Union's claim, from 6 years prior to the filing of the grievance until 20 calendar days prior to the filing of the grievance, is discounted to 20%." Id. He also found that there were mitigating factors that required a further reduction in the amount of backpay awarded. For this reason, he ruled that "EDP is to be discounted to 50% from 6 years prior to the filing of the grievance until the present." Id. at 283.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award is deficient on the ground that it is contrary to regulation. In this regard, the Agency contends that "[t]he Arbitrator's conclusion that the OSHA PEL was not the proper level for determining payment of environmental differential pay is contrary to the standard established by a command-wide agency regulation issued at the level of exclusive recognition." Exceptions at 8. The Agency maintains that "[t]he Arbitrator erred . . . when he failed [ v58 p65 ] to recognize the AFMC regulation which defined the level at which asbestos EDP would be paid. Therefore, the Arbitrator's decision is deficient . . . under 5 U.S.C. [§] 7122(a)(1)." Id.

      The Agency notes that under United States Dep't of the Army, Fort Campbell Dist., Third Region, Fort Campbell, Ky., 37 FLRA 186 (1990) (Ft. Campbell), an award is deficient when it conflicts with an agency regulation that governs the matter in dispute. The Agency maintains that the AFLC/AFMC Supplements govern the matter in dispute and specify that the OSHA PEL is the standard for entitlement to EDP for exposure to asbestos. In this regard, the Agency contends that the Authority has "made clear that regulations setting levels of exposure that warrant payment of EDP act as a specific limit on an [a]rbitrator's authority to otherwise independently determine such a level[.]" Id. at 11, citing AFGE Local 2250, 52 FLRA 320, 323 (1996) ("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"). Thus, according the Agency, "it is clear that an AFMC regulation establishing the trigger level of exposure for EDP must be properly recognized and applied by the Arbitrator." Id.

      In arguing that the AFLC/AFMC Supplements govern, the Agency maintains that the Arbitrator found that the Supplements provide that the OSHA PEL is the Agency's standard for entitlement to EDP for exposure to asbestos. The Agency notes that the Union conceded, and the Arbitrator found, that the grievance would have been denied if the OSHA PEL were the standard for entitlement to EDP for exposure to asbestos. The Agency also argues that the Supplements govern because they are not inconsistent with the parties' master labor agreement. In this regard, the Agency notes that the AFMC Supplement sets the standard for payment at the OSHA PEL, and the Arbitrator interpreted the MLA as not setting forth any specific standard for entitlement to EDP. According to the Agency, "[s]etting `no specific standard' does not conflict with setting a standard at the PEL." Id. at 18.

      The Agency also contends that the award is contrary to law and that it is based on nonfacts.

B.     Union's Opposition

      The Union contends that the Agency has failed to establish that the award is deficient.

      The Union asserts that the Agency has failed to establish any controlling regulation which specifies that employees must prove exposure to asbestos in excess of the OSHA PEL to be entitled to EDP. The Union argues for a number of reasons that the Supplements are not controlling.

      First, the Union argues that the Supplements are inconsistent with the terms of other Agency regulations "which do not reference or incorporate the OSHA PEL." Id. at 23. Second, the Union argues that the Supplements are "contrary to the Agency's historical handling and determination of EDP to employees for asbestos exposure which have not entailed any reference to or utilization of the OSHA PEL as the standard for EDP." Id. at 24. Third, the Union argues that the Supplements are "inconsistent with the presentations and explanations of the criteria for EDP which the Agency has historically published to employees at KAFB [Kelly Air Force Base] for at least the past 20 years that did not reference and were, in fact, inconsistent with the utilization of the OSHA PEL as the standard for EDP[.]" Id. at 25. Fourth, the Union argues that the Supplements are "inconsistent with internal Agency memoranda which state that OSHA standards are not applicable to KAFB." Id. at 26.

      Fifth, the Union argues that the Supplements do not govern because they conflict with the master labor agreement. The Union contends that "[t]he Agency contractually agreed through the MLA that 5 C.F.R. [part] 532, not the AFMC Supplement, established the standard and criteria for EDP." Id. at 27 (emphasis in original). The Union maintains that Article 26 of the agreement plainly establishes that EDP is to be paid in accordance with law and Government-wide regulation. The Union claims that 5 C.F.R. § 532.511 is the only Government-wide regulation that establishes standards for the payment of EDP because the AFLC/AFMC Supplements are clearly not Government-wide regulations. In addition, the Union maintains that the Supplements conflict with the agreement because "the arbitrator found and interpreted the contract to mean that the parties agreed through the [MLA] that the OSHA PEL would not be the standard for EDP." Id. at 41.

      Sixth, the Union argues that "[t]he Agency cannot by unilateral and self-serving regulation establish criteria for entitlement to EDP: (a) that [are] different than the criteria established by the Back Pay Act and EDP regulations; [ v58 p66 ] and (b) which the Union does not agree, through contract, to accept and utilize." Id. at 40. Seventh, the Union argues that there are "practical and compelling safety reasons for not tying EDP to the OSHA PEL." Id. at 47. The Union maintains that OSHA has determined that exposure to asbestos at levels below the PEL still presents significant risks. Thus, the Union argues this determination precludes the Agency's position that "only exposure above the PEL entails risk to employees of potential asbestos illness or injury." Id. at 50.

      Finally, the Union contends that the award is consistent with FLRA case precedent. The Union contends that FLRA case precedent holds that because Appendix A of 5 C.F.R. part 532 does not set forth any specified level of exposure to asbestos required for the payment of EDP, an arbitrator is free to determine what exposure to asbestos entitles employees to EDP. See id. at 42-43.

C.     Union's Exception

      The Union contends that the Arbitrator's calculation of the amount of backpay is contrary to law and regulation. The Union argues that the Arbitrator's reduction of backpay below the environmental pay differential of 8% for exposure to asbestos is inconsistent with the Back Pay Act and EDP regulations.

D.     Agency's Opposition

      The Agency contends that in the event that the Authority does not find that the award is deficient on any basis asserted by the Agency in its exceptions, the Arbitrator's calculation of the amount of backpay was within his authority.

IV.     Analysis and Conclusions

A.     Standard of Review

      The Agency contends that consistent with law, the AFLC/AFMC Supplements set the standard for payment of EDP and that the award is inconsistent with that standard. When a party's exception disputes an award's consistency with law and regulation, we review the questions of law and regulation raised by the award and the exception de novo. See, e.g., United States Dep't of Health and Human Services, Centers for Medicare and Medicaid Services, Baltimore, Md., 57 FLRA 704, 706 (2002). Reviewing the questions of law and regulation raised by the award and the Agency's exception de novo, we conclude that the Supplements permissibly set the standard for payment of EDP and that they governed the resolution of the grievance because they are specifically linked to the payment of EDP and because they are not in conflict with the collective bargaining agreement.

B.     The AFLC/AFMC Supplements govern the payment of EDP.

1.     The standard for entitlement to EDP for exposure to asbestos can be prescribed by an agency regulation.

      While the Authority has had many EDP cases, it has not previously been presented with a case where an agency had prescribed the standard for entitlement to EDP by an agency regulation; an arbitrator did not apply the standard prescribed by the regulation in resolving a grievance over EDP; and the agency filed an exception to that award alleging that the award was deficient because it conflicted with the regulation. The first question raised by the Arbitrator's award and the Agency's exception is whether the standard for entitlement to EDP can be prescribed by an agency regulation. We conclude that it can be.

      The Authority has repeatedly and uniformly described the framework for determining entitlement to EDP for exposure to asbestos, as follows:

Appendix A, which is identical to former Appendix J, does not set forth any specified level of exposure required for the payment of EDP. Accordingly, as was the case under Appendix J, the specific work situations for which EDP is payable are left to "local determination, including arbitration."

E.g., United States Dep't of the Army, Red River Army Depot, Texarkana, Tex., 53 FLRA 46, 51 (1997) (Red River Army Depot) (quoting AFGE Local 2280, 51 FLRA 620, 623 (1995); AFGE Local 1482, 50 FLRA 572, 574 (1995)). As noted by the Union in its opposition, the Authority has specifically held that an "arbitrator is free to determine the quantitative level of exposure for payment of EDP." E.g., Red River Army Depot, 53 FLRA at 51. At the same time, the Authority has expressly limited that freedom by adding that the arbitrator is free to determine the level of exposure only "[i]n the absence of a mandated quantitative level set by applicable law or regulation or otherwise agreed to by the parties." Id. (quoting Allen Park Veterans Admin. Med. Ctr., 34 FLRA 1091, 1101 (1990)).

      We find no basis for not interpreting the reference to "regulation" to include an agency regulation. As the Authority has expressly acknowledged, each Federal agency prescribes rules, regulations, and official declarations of policy to govern and control the resolution of matters to which they apply within the agency. See Ft. Campbell, 37 FLRA at 193-94. Moreover, the Authority has indicated in two asbestos cases that an [ v58 p67 ] agency regulation would have been viewed as permissibly prescribing the standard for entitlement to EDP if the regulation had been sufficiently linked to the payment of EDP. See United States Gen. Services Admin., Kansas City, Mo., 38 FLRA 438, 445 (1990) (GSA); United States Dep't of Justice, Bureau of Prisons, Fed. Corr. Inst., El Reno, Okla., 37 FLRA 559, 563 (1990) (FCI, El Reno).

      The decision in O'Neall v. United States, 797 F.2d 1576 (Fed. Cir. 1986) (O'Neall) provides additional support for an agency being empowered to set, by regulation, the standard for entitlement to EDP for exposure to asbestos. In O'Neall, the court sustained the action of the Department of the Air Force in setting by regulation the standard of exposure to asbestos in order to be entitled to EDP at the same level as the OSHA PEL. In finding that the Department of the Air Force had acted reasonably, the court specifically ruled that deference was due the choice of the Department. See O'Neall, 797 F.2d at 1581 n.7.

      Accordingly, contrary to the Union's arguments, Authority precedent and the court's decision in O'Neall support the conclusion that an agency can prescribe by regulation the standard for entitlement to EDP for exposure to asbestos.

2.     The AFLC/AFMC Supplements sufficiently link exposure at the OSHA PEL to the payment of EDP.

      A critical question raised by the Authority precedent discussed above is whether the AFLC/AFMC Supplements sufficiently link exposure at the OSHA PEL to the payment of EDP. We conclude that they do.

      Both GSA and FCI, El Reno indicate that a critical question in determining whether an agency regulation governs entitlement to EDP is whether the regulation is sufficiently linked to the payment of EDP. In this case, there is no dispute that the AFLC/AFMC Supplements provide that employees must be exposed to asbestos at, or in excess of, the level of the OSHA PEL in order to be entitled to EDP.

      The Agency clearly asserts that the Supplements set the level of exposure for EDP and notes that the Authority defers to an agency's interpretation of its own regulations. In addition, the Arbitrator also viewed the Supplements as setting the level of exposure for EDP. The Arbitrator specifically found that the Supplements provide that the OSHA PEL is the standard for entitlement to EDP for exposure to asbestos. See Award at 127, 134. Moreover, although the Union disputes that the Supplements govern the standard for EDP, the Union does not dispute that the Supplements link exposure at the OSHA PEL to the payment of EDP.

      The Authority has repeatedly held that "[a]n agency's interpretation of its own regulation generally is controlling unless clearly erroneous or inconsistent with the regulation's plain wording." E.g., United States Dep't of Transportation, Fed. Aviation Admin., 55 FLRA 797, 801 (1999) (FAA). We find that the Agency's interpretation of the Supplements is controlling because it is neither clearly erroneous nor inconsistent with the plain wording of the Supplements. Accordingly, we conclude that the AFLC/AFMC Supplements specifically link the payment of EDP to exposure at, or in excess of, the OSHA PEL.

3.     The use of the OSHA PEL is appropriate as a standard for entitlement to EDP for exposure to asbestos.

      A question raised by the Union's opposition is whether use of the OSHA PEL as a standard for entitlement to EDP is appropriate. We conclude that it is.

      In disputing that the Supplements govern the standard for EDP, the Union argues that there are "practical and compelling safety reasons for not tying EDP to the OSHA PEL." Opposition at 47. The Union maintains that OSHA's actual determinations preclude the Agency's position that "only exposure above the PEL entails risk to employees of potential asbestos illness or injury." Id. at 50. The Union's arguments are similar to arguments made by the employees in O'Neall and rejected by the court.

      The court in O'Neall was not persuaded of any material differences in the OSHA and EDP regulatory schemes which made it improper to look to OSHA for guidance in setting a standard for the level of exposure to asbestos in order to be entitled to EDP. In particular, the court rejected the argument that use of the OSHA PEL was inconsistent with the mandate of FPM Supplement 532-1 to compensate for working conditions involving unusually severe hazards. See O'Neall, 797 F.2d at 1582.

      In addition, although the Authority has never been presented with a case just like this one, the Authority has been presented with several cases in which the arbitrator applied the OSHA PEL to determine entitlement to EDP. In none of these cases did the Authority question whether the OSHA PEL was appropriate for use as an EDP standard. See NAGE Local R4-78, 56 FLRA 418 (2000); AFGE Local 2004, 55 FLRA 6 (1998); AFGE Local 2250, 52 FLRA 320 (1996); AFGE Local [ v58 p68 ] 2144, 51 FLRA 834 (1996); AFGE Local 2280, 51 FLRA 620 (1995); AFGE Local 1482, 50 FLRA 572.

4.     The AFLC/AFMC Supplements do not conflict with the collective bargaining agreement.

      Agency rules and regulations "govern the disposition of matters to which they apply . . . when the rules and regulations do not conflict with provisions of an applicable collective bargaining agreement." Ft. Campbell, 37 FLRA at 195. The AFLC/AFMC Supplements clearly apply to the disputed matter of the standard for entitlement to EDP for exposure to asbestos by providing that the standard is the OSHA PEL. On the basis of the Arbitrator's interpretation of the agreement, we find that the Supplements do not conflict with provisions of the agreement.

      The fact that the Supplements set the standard for entitlement to EDP for exposure to asbestos at the OSHA PEL does not conflict with the contractual obligation under Article 26 to pay EDP in accordance with law, Government-wide regulation, and the collective bargaining agreement, none of which prescribes a standard for the payment of EDP for exposure to asbestos. As the Arbitrator expressly ruled, "there is no specific standard for entitlement to EDP set forth in the contract," award at 112, and the parties had not "agree[d] to a specific standard for entitlement to EDP," id. at 221. Therefore, the Arbitrator interpreted the parties' agreement as not setting forth a specific standard for entitlement to EDP.

      Where, as here, an agreement does not set a specific standard and an applicable agency regulation does set a specific standard, the agreement does not conflict with the agency regulation and the agency regulation governs the matter in dispute. See NAGE Local R12-33, 51 FLRA 541, 543 (1995) (an agency regulation governed the matter in dispute because it provided the "dispositive criteria" for determining eligibility, while the agreement did not); United States Dep't of the Army, Army Communications-Electronics Command, Ctr. for Command, Control and Communications Sys., Fort Monmouth, N.J., 46 FLRA 555, 558 n.4 (1992) (an agency regulation governed the matter in dispute because the collective bargaining agreement did "not substantively address" the matter in dispute); United States Dep't of Veterans Affairs, Regional Office, Chicago, Ill., 38 FLRA 356, 358 (1990) (VA Chicago) (an agency regulation that permitted the agency's actions governed the matter in dispute because the collective bargaining agreement was "silent" on the matter). Accordingly, we find that the Supplements do not conflict with the agreement, as interpreted by the Arbitrator, and that they govern the matter in dispute as to what standard applies in this case to EDP for exposure to asbestos.

      In this regard, we note that the Arbitrator erred as matter of law when he held that "the manner in which the Agency proceeded insofar as EDP was concerned, is not binding upon the Union, unless the evidence establishes that the Union consented to the standard." Award at 127. The proper statement of the law is that where an agency regulation sets a specific standard that addresses a matter in dispute, that standard applies unless it conflicts with the parties' collective bargaining agreement. See Ft. Campbell, 37 FLRA at 195. Accordingly, the applicability of the standard set forth in the Supplements does not depend on the Union's consent to the standard; rather, the Supplements govern unless the parties' agreement provides otherwise.

      Here, the Arbitrator, in interpreting the parties' agreement, found only that the parties did not agree to the use of a specific standard. He did not interpret the agreement to find that the parties intended to preclude the Supplements from governing. In fact, as noted above, he stated that his "finding that the parties did not voluntarily consent to the use of the OSHA PEL as the standard for entitlement to EDP, does not necessarily mean that the OSHA PEL should not be the standard adopted by the Arbitrator." Id. at 222.

      After having interpreted the agreement to find that "the parties did NOT ever agree to a specific standard for entitlement to EDP," the Arbitrator concluded that he "is left with the responsibility and authority to determine whether the bargaining unit employees herein are entitled to EDP." Id. at 221 (emphasis in original). However, the Arbitrator erred, as a matter of law, in concluding that where the parties had not agreed on a specific standard, it was his authority to determine the standard. Before concluding that he had such authority, the Arbitrator was required to have considered whether applicable law or regulation set a mandated quantitative level. Consistent with Authority precedent referenced above, where an arbitrator finds that an agreement does not set a specific standard, he or she must examine whether law or regulation, including, as here, an applicable agency regulation, does set a specific standard. See AFGE Local 2250, 52 FLRA at 323 ("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") (emphasis added). In these circumstances, by operation of Fort Campbell, the agency regulation controls. [ v58 p69 ]

      We note that parties may, of course, choose in their collective bargaining agreements to reject or modify the applicability of agency regulations to particular situations. Where they do so, the agency regulation would conflict with the agreement provision and, by operation of Fort Campbell, the agreement provision would control. For example, in this case, had the parties agreed to a different specific standard from that set forth in the Supplements, or agreed that the standard would not be determined by the Supplements, the agreement provision would conflict with the Supplements and, therefore, the agreement provision would control. However, neither of these situations was present in this case.

      As noted above, the Arbitrator found that "the parties did NOT ever agree to a specific standard for entitlement to EDP[.]" Id. at 221 (emphasis in original). The parties' failure to agree to a specific standard is not the same as saying that the parties agreed that entitlement to EDP would be made on a case-by-case basis. Once the Arbitrator found that there was no specific standard agreed to, he was obligated to determine whether a mandated quantitative level was set by, as relevant here, an applicable regulation. He failed to do so. Rather, he erroneously went on to conclude that because the parties had not agreed to a specific standard, he could determine the standard without reference to the Supplements and that he was free to determine the standard to be applied in this case.

      The Union also fails to establish that the Supplements do not govern on the ground that they are inconsistent with other agency regulations, memoranda, or explanations on EDP or because they are inconsistent with the Agency's historical handling of EDP for exposure to EDP. Without addressing the issue of what kind of promulgation or actions would be necessary to override the application of a formal regulation promulgated at the command level of AFMC, none of the documents referenced by the Union establishes a standard for entitlement to EDP for exposure to asbestos that is inconsistent with use of the OSHA PEL or precludes the use of the OSHA PEL as the applicable standard.

      Accordingly, we find that the AFLC/AFMC Supplements do not conflict with the agreement, as interpreted by the Arbitrator, and that the Supplements govern the matter in dispute of what standard applies to EDP for exposure to asbestos.

C.     The award is deficient.

      Under § 7122(a)(1) of the Statute, an arbitration award will be found deficient if it is contrary to any law, rule, or regulation. For purposes of § 7122(a)(1), the Authority has defined "rule or regulation" to include both Government-wide rules and regulations and governing agency rules and regulations. See, e.g., FAA, 55 FLRA at 801 (citing Ft. Campbell, 37 FLRA 186).

      As the Supplements set the OSHA PEL as the governing standard for EDP, the Arbitrator's application of a different standard is deficient as contrary to governing regulation. See, e.g., FAA, 55 FLRA at 802 (because the award was inconsistent with an agency regulation that governed the matter in dispute, the award was deficient under § 7122(a)(1) of the Statute).

D.     Appropriate Action

      As to the question of what action is appropriate, we will set the award aside in its entirety. See, e.g., United States Dep't of the Treasury, United States Customs Serv., Port of New York and Newark, 57 FLRA 718 (2002), petition for review filed sub nom. NTEU Chapter 161 v. FLRA, No. 02-1153 (D.C. Cir. May 17, 2002) (when the FLRA found the basis for an award of backpay was erroneous, the FLRA set aside the backpay award); cf. United States Dep't of Def., Def. Logistics Agency, Def. Distribution Region West, Tinker Air Force Base, Okla., 53 FLRA 460 (1997) (award was set aside because the arbitrator would have reached a different result if he had not misapprehended the status of a union representative). In agreement with the Agency, we view the record as reflecting that the Arbitrator would have denied the grievance had he applied the OSHA PEL as the standard for entitlement to EDP. See Award at 122.

V.     Decision

      The award is set aside. [n3] 


File 1: Authority's Decision in 58 FLRA No. 13
File 2: Opinion of Member Pope


Footnote # 1 for 58 FLRA No. 13 - Authority's Decision

   Member Pope's dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 58 FLRA No. 13 - Authority's Decision

   Kelly Air Force Base was closed on July 13, 2001. See Regional Director's Decision and Order in United States Dep't of the Air Force, Air Force Materiel Command, Kelly Air Force Base, Tex., Case No. DA-RP-01-0005, application for review denied, 57 FLRA 749 (2002).


Footnote # 3 for 58 FLRA No. 13 - Authority's Decision

   In view of this decision, we need not resolve the Union's exception