United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF THE ARMY
LOCAL 797, NATIONAL FEDERATION OF
Case No. 04 FSIP 61
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 Local 797, National Federation of Federal Employees (Union or NFFE).
After investigation of the request for assistance concerning Article 18, Environmental Differential Pay (EDP), which arose during negotiations over a successor collective-bargaining agreement (CBA), the Panel determined that the matter should be resolved by directing the parties to respond to an Order to Show Cause why the Panel should not impose the same outcome in this case as in Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas and Lodge 2049, International Association of Machinists and Aerospace Workers, AFL-CIO, Case No. 04 FSIP 18, (September 22, 2004) (Machinists), Panel Release No. 471. The parties were informed that after considering their submissions, the Panel would take whatever action it deems appropriate to resolve the impasse, which may include the issuance of a Decision and Order. Accordingly, the parties submitted statements of position in response to the Order to Show Cause, and the Panel has now considered the entire record in rendering its decision.
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 55 Wage Grade employees (non-professionals), who hold positions such as plastic fabricator, rubber molder, composite worker, and laborer. Employees work in the Composite Shop where they utilize fiberglass, graphite, sheet metal, bonding agents, "car paint" and other materials to repair helicopters. The parties most recent CBA expired on April 13, 2003; although it was not extended formally, the parties continue to follow its terms as past practices until a successor agreement is implemented.
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), AFL-CIO and Lodge 2049, International Association of Machinists and Aerospace Workers, AFL-CIO, filed a grievance in an effort to obtain EDP for Wage Grade employees who worked with 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.1/
On November 24, 2003, legislation was enacted by Congress involving EDP for exposure to asbestos at Department of Defense (DoD) facilities. In this regard, 5 U.S.C. § 5343(c)(4) ("Common Occupational and Health Standards for Differential Payments as a Consequence of Exposure to Asbestos") 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 only addresses asbestos exposure and does not concern other contaminants. The Congress determined that DoD activities would be prohibited from granting employees EDP where the asbestos exposure in the workplace did not exceed the OSHA-promulgated Permissible Exposure Limit (PEL).
The parties essentially disagree over whether their EDP article should include quantitative standards for determining when employees are entitled to receive EDP for working with asbestos and other workplace contaminants.2/
POSITIONS OF THE PARTIES
1. The Employer's Position
The Employer favors the imposition of the same provisions to resolve the parties' dispute in this case as the Panel used in Machinists. Accordingly, it proposes that the following wording be adopted:
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). 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 the Employer authorizes EDP, payment shall be made in accordance with 5 C.F.R. § 532.511, Subpart E, Appendix A.
Its proposal establishes standards for determining entitlement to EDP for all workplace hazards compensable under Office of Personnel Management (OPM) regulations. Among those compensable hazards are asbestos, beryllium and cadmium, the predominate hazards faced by bargaining-unit employees. Including this wording in the parties' successor CBA would apply "equal, consistent, fair and uniform" EDP standards to all of the 3,072 employees at the facility, including those represented by the Employer's three labor unions. It also would "make the contract consistent with the requirements" of 5 U.S.C. § 5343(c)(4), and Army Regulation AR 40-5. The latter mandates the use of the OSHA PEL and/or the ACGIH standards (whichever is lower) when determining compensable exposure levels for all contaminants. The Panel should disregard the Union's references to previous "erroneously and poorly decided" arbitration awards supporting its position, as "there are many other adverse decisions in many other asbestos arbitrations which were conveniently not mentioned by the Union."
2. The Union's Position
The Panel should not impose the same result here as it did in the Machinists case. Rather, it should either: (a) order the parties to submit this issue to binding interest arbitration; or (b) direct the parties to retain the current wording in Article 18 which does not require that any particular exposure levels be met for employees to receive EDP. In the Union's view, the Panel's decision in Machinists "misstates and understates" the union's position in that case, thereby underscoring the need to submit the matter to an interest arbitrator who would "comprehend the complex arguments in the case and resolve vigorously disputed facts." In this regard, the decision was not based on "credible evidence (only base assertions)" that the level of airborne asbestos in the workplace is less now than at the time of the earlier hearing before the grievance arbitrator. Thus, an interest arbitrator "would be better suited to hear the evidence and the legal arguments," and determine the appropriate contract language.
The Panel's statement in the Machinists case that the union "ignores the public policy established in the recent asbestos legislation" is undercut by the fact that the Union supports the public policy of arbitration of disputes, opposes subjecting employees to hazardous levels of airborne asbestos, and favors payment of EDP where hazards have not been practically eliminated. The Union's position is consistent with OSHA's own pronouncements that there is significant health risk where workers are exposed to levels of airborne asbestos below the OSHA PEL. The retention of the current wording in Article 18 would give employees the right to grieve in the event that there is a disagreement over whether EDP should be authorized. Utilization of the negotiated grievance/arbitration system is an appropriate mechanism to resolve such matters, particularly where there is no legislation indicating that the application of OSHA PEL standards to all hazards approved by OPM is a "national policy." Such matters are "properly the subject of case by case arbitration, where an arbitrator can hear all the evidence and circumstances," as the arbitrator did in the earlier decision which was "affirmed by the FLRA."
Since 5 U.S.C. § 5343(c)(4) 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. Retaining the current contract wording, therefore, "would not ignore the recent legislation." Nor does the legislation take the matter of EDP entitlement at DoD facilities for exposure to asbestos "out of the hands of arbitrators." Arbitrators, for example, would still be needed to decide factual disputes "about whether there is exposure above the PEL." If subsequent legislation restores EDP rights to employees for asbestos work they would not be saddled with contract wording that specifies a required standard. Finally, the fact that the Panel's decision in Machinists puts wording in place for one of the facility's three unions that was voluntarily agreed to by another labor organization representing a much larger bargaining unit does not support a similar result in this case. If a much larger unit adopted wording making arbitration unlikely, the need for such wording "with respect to the smaller group is diminished." In addition, "what the other union got in exchange for this concession is unknown and cannot be replicated here."
After careful consideration of the parties' responses to the Panel's Order to Show Cause in this case, we conclude that the dispute over their EDP article should be resolved on the basis of the same wording imposed earlier in the Machinists case. While respecting the Union's right to disagree with the conclusions reached in that case, its response fails to introduce into the record any new arguments or evidence warranting a different outcome. In this regard, objective quantitative standards should reduce litigation between the parties over employees' entitlement to EDP by enabling them to empirically measure whether permissible exposure limits have been exceeded. Through legislation, Congress already has established a public policy mandating that the OSHA PEL standard be utilized to determine EDP entitlement for exposure to asbestos at DoD facilities, and the Union has not persuaded us that OSHA's PEL standards should not also apply to workplace contaminants other than asbestos. Finally, the use of uniform, empirically determinable standards provides a consistent approach for assessing the EDP entitlements of all of the employees at the facility, and would eliminate disparities and confusion regarding the practices the Employer is to follow. Accordingly, we shall order the adoption of the Employer's proposal (i.e., the wording imposed in the Machinists case referred to in the Order to Show Cause) to resolve the parties' dispute.
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 its 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.
By direction of the Panel.
H. Joseph Schimansky
December 23, 2004
/ 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). 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.