United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE
Case No. 04 FSIP 18
DECISION AND ORDER
The Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas (Employer) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and Lodge 2049, International Association of Machinists and Aerospace Workers, AFL-CIO (Union or Machinists).
After investigation of the request for assistance, concerning Article 17, Environmental Differential Pay (EDP), which arose during negotiations over a successor collective-bargaining agreement (CBA), the Panel determined that the parties should meet with Panel Member Mark A. Carter to assist them in resolving any outstanding issues. Thereafter, if any issues remained unresolved, the parties were informed that the Panel would take whatever action it deems appropriate to resolve the matter, which could include the issuance of a binding decision.
Pursuant to this procedural determination, Member Carter convened an informal conference with the parties on March 18, 2004, at the Employer’s facility in Corpus Christi, Texas. During the course of that meeting, it was clarified that the parties did not dispute rolling over the wording in Sections 2, 4, and 5, of the current article, so those provisions present no issues for the Panel to resolve. The parties, however, remained deadlocked over two other sections. The Panel has now considered the entire record, including the parties’ final offers and post-conference statements of position.
The Employer’s mission is to overhaul, repair and modify rotary-winged aircraft for the U.S. Armed Forces. The bargaining unit consists of approximately 270 Wage Grade employees (non-professionals), who hold positions such as machinist, toolmaker, electrician and welder; employees work in an industrial setting. The parties’ most recent CBA, which was to have expired on April 15, 2003, was extended until September 2003, to provide additional time to negotiate a successor CBA. The parties disagree over whether their CBA remains in full force and effect or now has expired, inasmuch as they did not negotiate a successor agreement within the specified time frame.
In 1997, the Union and two other labor organizations which represent employees at the Employer’s facility, Local 2142, American Federation of Government Employees (AFGE) and Local 797, National Federation of Federal Employees, filed a grievance in an effort to obtain EDP for Wage Grade employees who worked with hazardous levels of asbestos. The outcome was an arbitration award issued on March 24, 2000, which granted employees back pay, dating to 1991, for having been wrongly denied EDP for asbestos work. On appeal, the Federal Labor Relations Authority (FLRA) upheld the arbitrator’s award, except that portion dealing with the payment of attorney’s fees, which was vacated and remanded to the arbitrator. See Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas and American Federation of Government Employees, Local 2142, et al., 56 FLRA 1057 (2001)./
Within the past year, there has been legislation enacted by Congress involving EDP for exposure to asbestos hazards at Department of Defense (DoD) facilities. In this regard, 5 U.S.C. § 5343(c) requires the Employer to use the Department of Labor, Occupational Safety and Health Administration (OSHA) standards for determining EDP entitlement for asbestos exposure. That law addresses asbestos exposure and does not concern other contaminants. The Congress determined that the Employer would be prohibited from paying out EDP where the asbestos exposure in the workplace did not exceed the OSHA promulgated Permissible Exposure Limit (PEL). The Employer seeks to modify the bargaining agreement to comport with this legislation and its articulation of public policy. The Employer also seeks to institute the same OSHA PEL standards for entitlement to EDP for exposure to other workplace contaminants. The Union argues that the changes are redundant and unnecessary.
The parties disagree over whether the EDP article should include a standard for determining when employees are entitled to receive EDP for working with contaminants within the OSHA permissible exposure limit.
POSITIONS OF THE PARTIES
1. The Union’s Position
The Union proposes the following:
Section 1: Presently, no employee in the bargaining unit is being paid Environmental Differential Pay (EDP).
Section 3: The Union may bring to the attention of the Employer situations which it feels should be investigated for possible Environmental Differential Pay. Following its investigation, the Employer will notify the Union in writing of its findings and determination. Any further consideration of the matter will be accomplished through the negotiations between the President and an additional Union representative and Employer representatives.
Its proposal would preserve contract wording that has served the parties well in the past. It does not establish a standard for assessing whether a workplace hazard justifies the payment of EDP, because there is no need to specifically reference any particular standard. In this regard, in 1997, when the parties disagreed over whether employees should receive backpay for working with hazardous levels of asbestos, the matter was submitted to a grievance arbitrator who determined that the appropriate standard to be used is the Office of Personnel Management’s (OPM) Government-wide standard found in 5 C.F.R.§ 532.511, Subpart E, Appendix A. The arbitrator’s determination to use the OPM standard was not an abuse of discretion as the award has been upheld on appeal. The proposed wording has worked well in the past because, upon receiving the award, the Employer acted in earnest for the first time to monitor and correct the hazardous asbestos condition in the workplace. Under the proposal, the Union would have a right to grieve in the event that the parties disagree over whether EDP should be authorized; utilization of the negotiated grievance/arbitration system has been and continues to be an appropriate mechanism to resolve such matters.
Since a new law determines the standard for granting EDP for asbestos at the Employer’s facilities, there is no need to have contract language that mirrors the law inasmuch as the legislation prevents the use of any standard other than the OSHA Permissible Exposure Limits (PEL), at least with respect to the receipt of EDP for working with asbestos. In the event that subsequent legislation restores EDP rights to employees for asbestos work, employees would be able to avail themselves of the change because they would not be saddled with contract wording that specifies a required standard. The fact that another union that represents a different bargaining unit at the installation has voluntarily agreed to the Employer’s proposed EDP standards is an insufficient basis for rejecting the Union’s proposal. That unit, represented by AFGE, Local 2142, includes General Schedule employees, while the Machinists represent Wage Grade employees who are more likely to be affected by hazardous materials in the workplace. With respect to other workplace hazards, no standard should be referenced in the contract article because resolution of EDP issues belongs in the grievance/arbitration forum.
2. The Employer’s Position
The following is the Employer’s proposal:
Section 1: The Employer will make every effort possible to ensure that employees are not exposed to any hazardous situations while performing their duties. In accordance with section 5343(c)(4) of Title 5, United States Code, employees will be eligible for environmental differential when exposed to a working condition or hazard that falls within one of the categories approved by the Office of Personnel Management (OPM). Payment will only be made when the level of exposure exceeds the standard set by the Occupational Safety and Health Administration (OSHA) and/or the American Conference of Government Industrial Hygienists (ACGIH), whichever standard has the lowest exposure level in accordance with AR 40-5, paragraph 5-3(3). This applies to all workplace hazards.
Section 3: The Union may bring to the attention of the Employer situations which it feels should be investigated for possible Environmental Differential Pay (EDP). Their concern will be addressed in writing and will include the location of the situation, nature of exposure, and other factors necessary for inclusion as a payable category. Following its investigation, the Employer will notify the Union in writing of its findings and determination. Should a situation arise in which a qualifying hazard cannot be practically eliminated and an EDP is authorized by the Employer, payment shall be made in accordance with CFR 532.511, Subpart E, Appendix A. Work situations determined to be in compliance with the OSHA standards and/or the threshold limit values established by the ACGIH, are deemed to have practically eliminated the hazard and are not eligible for EDP. This includes situations where the hazard has been practically eliminated through use of personal protective equipment and engineering guidelines.
This proposal would establish a standard for determining entitlement to EDP for all workplace hazards which are compensable under OPM regulations, including asbestos. The proposed wording would eliminate the ambiguity of the existing contract language that, in the past, has left to the discretion of arbitrators the standard to be used for EDP entitlement on an ad hoc basis. Furthermore, the wording makes reference to, and is consistent with, public policy as established by Congress in the new legislation signed by the President in November 2003, which requires DoD agencies to use OSHA PEL standards in determining when EDP should be paid for asbestos work. The proposal likely would reduce the number of grievances filed by the Union over EDP since there now would be certainty as to which standard is to be used. The language proposed is similar to that voluntarily agreed to by AFGE, another labor organization which represents a much larger bargaining unit of Wage Grade and General Schedule employees at the facility; having uniform standards among the various bargaining units for determining EDP entitlement would eliminate disparities and confusion regarding the practices the Employer is to follow.
After careful consideration of the evidence and arguments presented by the parties on the issues, we conclude that the dispute over the EDP article should be resolved on the basis of the Employer’s final offer in Section 1, and a “hybrid” version of the parties’ proposals in Section 3. With respect to Section 1, we are persuaded that the resolution of the issue should include contract wording specifying the standard to be used for determining when employees are entitled to EDP. The absence of a standard in the parties’ most recent CBA has left the matter to the discretion of arbitrators. In our view, the Union’s proposal ignores the public policy established in the recent legislation that has taken the matter of EDP entitlement at DoD facilities for exposure to asbestos out of the hands of arbitrators by requiring that the OSHA PEL standard be utilized. While we recognize that the Employer’s proposal would apply the OSHA PEL standard to all hazards approved by OPM, we favor this approach because the establishment of a standard for entitlement to EDP, which both parties can empirically measure, will reduce the litigation between the parties and is consistent with public policy. Finally, using the OSHA PEL standards would be consistent with the practice adopted by the Employer and another labor organization at the Employer’s facility that represents a much larger bargaining unit, not to mention its non-bargaining unit employees.
In regard to Section 3, the wording proposed by the Employer is potentially confusing because it appears to suggest that EDP would be authorized when a hazard has not been “practically eliminated,” the standard used by the arbitrator in the previously referenced arbitral proceeding. In our view, the provision should be clarified to reflect more accurately the Employer’s intent that the OSHA PEL and/or ACGIH standards are to be used; clarifying this provision may eliminate grievances over its interpretation. Furthermore, we find the portion of the Employer’s proposal in Section 3 which establishes the criteria for the Union to initiate an investigation of a potentially compensable hazard to be somewhat onerous, and inconsistent with what the Employer appears to require of another labor organization when it desires to initiate an investigation of a working condition that may require the payment of EDP. Accordingly, we shall order the parties to adopt the wording set forth below as Section 3 of their EDP article.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the Employer’s proposal for Section 1. The following wording shall be adopted in Section 3:
The Union may bring to the attention of the Employer situations which it feels should be investigated for possible environmental differential pay (EDP). The Union shall address its concern to the Employer in writing, either electronically or by paper. Following its investigation, the Employer will notify the Union in writing of its findings and determinations. When EDP is authorized by the Employer, payment shall be made in accordance with 5 C.F.R. § 532.511, Subpart E, Appendix A.
By direction of
/ On remand, the arbitrator issued a modified award pursuant to the FLRA’s decision. Subsequently, the modified award was challenged by the Employer and, in United States Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas and AFGE, Local 2142, et al., 58 FLRA 87 (2002), the FLRA ordered yet another remand to the arbitrator, this time concerning the payment of attorney fees to non-attorney staff.