U.S. Federal Labor Relations Authority

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United States of America



In the Matter of












Case No. 90 FSIP 9





    Local R4-11, National Association of Government Employees, AFL-CIO (Union), 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 the Department of the Army, Headquarters, U.S. Army Training and Doctrine Command, Big Bethel Water Treatment Plant, Fort Monroe, Virginia (Employer).

    After investigation of the request for assistance, the Panel directed the parties to participate in an informal conference with Staff Associate Ellen J. Kolansky for the purpose of resolving the outstanding issue concerning environmental differential pay (EDP). The parties were advised that if no settlement were reached, Mrs. Kolansky would notify the Panel of the status of the dispute, including the final offers of the parties and her recommendations for resolving the issues. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Mrs. Kolansky met with the parties on February 1, 1990, at Fort Monroe, Virginia, and also toured the Big Bethel Water Treatment Plant. During the conference, the parties agreed that an independent laboratory should conduct a study of the levels of chemicals in the environment at the plant. The case was held in abeyance until the study could be completed. Ultimately, two studies were conducted; the second was agreed to so that testing would occur during hot, humid weather conditions.(1) Since the parties were unable to reach agreement after considering the reports, they submitted statements of positions and comments on the reports. Mrs. Kolansky has reported to the Panel on the dispute, and the Panel has now considered the entire record.


    The Employer operates a small water treatment plant that services military and civilian communities in the area. The Union represents 800 bargaining-unit employees; 8 to 10 of these who work as water treatment plant operators and assistants will be affected by the outcome of the dispute. Their work involves, among other things, adding 50-pound bags of powdery chemicals to tanks and filters, observing the chlorine gas gauges, and generally monitoring the water treatment process. In warm weather, they spread copper sulfate by boat on a small lake adjoining the facility. Year round, a polymer is used to extract water from the sludge left behind by the water treatment process. Bargaining-unit employees are covered by a local agreement originally negotiated in 1980 that is renewed each year.

    Currently, employees receive 4-percent EDP based on exposure to chemical hazards in the course of their work.(2) Negotiations arose when the Employer discontinued such payments because it believed that the protective equipment it provided to employees practically eliminated the hazard.(3) In a predecessor case concerning the identical issue and parties, the Panel declined to assert jurisdiction based on duty-to-bargain questions raised by the Employer. Subsequently, the parties settled a Union-filed ULP over the Employer's unilateral implementation. As part of the settlement, the Employer agreed to make employees whole for the lost EDP and to reinstate the 4-percent EDP; the Union agreed to withdraw the ULP. The parties also agreed to accelerate the case to the Panel for resolution.


    The parties disagree over whether the Employer has practically eliminated the hazards to employees' health from exposure to toxic chemicals in the workplace, and, therefore, may discontinue paying employees 4-percent EDP.


1. The Union's Position

    The Union argues that the hazard has not been practically eliminated, and, therefore, employees should continue to receive 4-percent EDP. At least nine safety and health-related deficiencies uncovered by Lab II remain either unaddressed or in need of further attention despite the Employer's claims that repairs have been made or procedures improved. Such a lengthy list of recommendations for improvements merely confirms the antiquated condition of facility and equipment. As a result, employees who handle at least 11 different chemicals(4) on a daily, and often on an hourly basis, face constant risk of exposure to toxins that can affect health. At Big Bethel, employees must manually open the large paper or plastic bags of chemicals and dump them into hoppers; more modern water treatment plants are equipped with closed dispersal tanks, thereby protecting employees from caustic chemical dust.

    At this facility, chlorine gas is the most deadly chemical used; employees are required to enter a small building containing two 1-ton chlorine gas tanks once every hour to check and adjust flow rates. The chlorine gas alarm system, cited by both laboratories, does not function properly because the drop tube has been disconnected for years, and, therefore, air samples are not taken near the floor where the heavy chlorine gas accumulates. In December and early January, an employee reported two chlorine gas leaks. Such leaks may expose employees to injury, especially if the alarm fails to warn of the leak; similar incidents are expected to recur since the pipes carrying the gas are old and corroded. The Employer is slow to repair such leaks.

    Information provided by the private laboratories indicates that equipment and ventilation are inadequate, and confirms that training and housekeeping procedures are lax. Despite recent fittings, respirators used to protect employees do not seal properly; employees report that they smell chlorine gas while wearing the masks. In other cases, fittings have been scheduled, but not yet performed. Failure of the protective device would mean immediate exposure to the hazard; in the case of chlorine gas, exposure could mean development of lung edema and death. Chlorine gas safety data sheets state that self-contained breathing apparatuses and protective clothing provide only "limited" protection. In any case, the masks weigh at least 40 pounds; considering their weight, employees cannot be expected to wear them throughout the day. In this regard, Part I, section 4c of Appendix J for dirty work permits EDP "[w]hen the use of mechanical equipment, or protective devices, or protective clothing results in an unusual degree of discomfort" [emphasis added]. Furthermore, safety training is infrequent and often consists of handing out written materials without classroom demonstration or explanation. Finally, "[w]hen the exposure to the various chemicals are combined and long term, the adverse effects are unknown." While employees have not made formal complaints, they do complain of eye and skin problems.

2. The Employer's Position

    The Employer proposes to discontinue the 4-percent EDP currently paid to employees. Two sets of air tests conducted by privately-owned laboratories show that employees "are not exposed to hazardous materials in concentrations beyond the permissible exposure limits set by the Occupational Safety and Health Administration (OSHA)." In addition, the second study found no conditions at the plant "involve 'immediate danger' to life and health" [emphasis in the original]. With respect to other findings in the laboratory reports, it denies that ventilation is inadequate. Although Lab I stated that the second-level chemical storage area has a wooden floor that allows the spread of chemical dust, the floor actually is concrete. A dust mat positioned at the top of the stairs traps dust from employees' shoes. Furthermore, it provides personal equipment such as self-contained breathing apparatuses, splash goggles, rubber gloves, laboratory aprons, hard hats, coveralls,(5) etc., to protect employees when they handle chemicals. It also provides a variety of ventilation systems to exhaust chemical dust; the lime hopper, for example, has such a system which pulls the dust down and away from the operator.

    With regard to chlorine gas, small leaks are hard to detect because the automatic ventilating fan exhausts such small amounts each time an employee opens the door of the chlorine gas storage building; quantities sufficient to trigger the detector, therefore, are not accumulated. The supervisor located and repaired what turned out to be a pinhole-sized leak in early January within 2 days of an employee's report. A work order has been placed for installation of a remote chlorine gas alarm as recommended by Lab II. As to skin problems related to contact with chemicals, employees filed no injury compensation claims for skin irritation during the past 4 years. Based on the test results and the availability of protective equipment, the chemical hazards have been practically eliminated; EDP payments, therefore, are no longer justified.

    Although EDP should be discontinued, the health and safety of employees will remain a primary concern. For this reason, as recently as late January, it conducted training on hazard communications and tested the fit of respirator masks for eight employees; fittings are scheduled for three other employees in March. Other training is provided to employees on a self-help basis. Such materials include Army regulations on the breathing apparatus and a safety manual. In addition, data sheets describing the various chemicals used are posted on a centrally located bulletin board for easy access. Finally, employees' pulmonary functioning is tested annually.


    Having considered the evidence and arguments presented, including the two laboratory reports, we are not persuaded that the protective equipment, housekeeping practices, training, and supervisory procedures, when taken together, have practically eliminated the chemical hazards present at the Big Bethel Water Treatment Plant. Therefore, we shall order the parties to adopt the Union's position that employees continue to receive 4-percent EDP. In reaching this conclusion, we are mindful that both laboratories found that "for the monitored tasks, no definable airborne overexposure to any of the chemical compounds evaluated occurs" (Lab II, p. 13). Nor do we ignore the recent improvement in the variety of available equipment which, if properly fitted and worn, might protect employees from hazards. Nevertheless, in our view, the Union's position is supported by evidence in the record which establishes that conditions at the plant warrant continuing the 4-percent EDP.

    In this regard, Lab II confirms observations made 3 years earlier during the site visit that white dust which "is likely to contain most of the solid chemical compounds in use in the plant" (Lab II, p. 6) is present on surfaces throughout the facility, including the breakroom where employees eat their lunches. Chemical data sheets supplied by the Union and statements by Lab II indicate that these chemicals not only irritate the skin and eyes, but also may lead to "systemic exposure . . . through transdermal absorption" (Lab II, p. 14). The report emphasizes that "skin contact exposure is likely to be occurring with respect to most of the chemical compounds which were evaluated" (Lab II, p. 13). Further, summer weather conditions may enhance such absorption (Lab II, p. 13). The report states that "[w]hether permissible airborne exposure limits are being exceeded or not, unnecessary direct skin contact chemical exposure should be eliminated in this plant's operations" [emphasis in original] (Lab II, p. 5). Although the Employer asserts that no employees have filed claims for related illness, such comments are directed to surface skin irritation rather than skin absorption that may lead to systemic illness; the latter ailments may develop over a longer time period than that surveyed by the Employer.

    We note that Lab II finds that lax housekeeping practices combined with supervisory gaps and defective equipment such as leaks in the chemical delivery chutes allow the chemically-laden dust to build up, thereby increasing the opportunity for such exposure. Additional contributing factors include the sporadic and often indifferent nature of training, when refresher training is needed at regular intervals to reinforce proper procedures for handling chemicals (Lab I, p. 8; Lab II, p. 14). In addition, supervisors are not ensuring that employees comply with safety and health policies and regulations that serve to protect their health (Lab II, p. 3-4).

    Finally, other indicators that EDP should be continued include the incidents of chlorine gas leaks, albeit small, and nonuse of procedures like the buddy system during entry into the chlorine building. Defects in the facemask seals, the alarm system, and other precautionary procedures for dealing with chlorine gas also lead us to conclude that the Employer's efforts have not practically eliminated hazards to employees. Moreover, questions the Union raises regarding the need for further or repeated repairs to gear and machinery undermine the reliability of the Employer's reassurances to the contrary. Based on the foregoing discussion, we believe that while there may be "no immediate danger to life and health" at the plant, in the circumstances of this case, employees should continue to receive 4-percent EDP until conditions at the plant are shown to support a different outcome.


    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 pursuant to 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:

    Employees shall continue to receive 4-percent EDP.


By direction of the Panel.

Linda A. Lafferty

Executive Director

April 12, 1993

Washington, D.C.

1.Marine Chemist Service, Inc., Newport News, Virginia (Lab I), conducted tests on January 30 and 31, 1991, and issued a report on February 15, 1991; Interscience Research, Inc. Norfolk, Virginia (Lab II), conducted the second set of tests on August 19, 1992, and issued its report on November 20, 1992.

2.Federal Personnel Manual Supplement 532-1, Appendix J, section 5b, authorizes 4-percent EDP for employees "[w]orking with or in close proximity to poisons (toxic chemicals other than tear gas or similar irritating substances) in situations for which the nature of the work does not require the individual to be in as direct contact with, or exposure to, the more toxic agents as in the case with the work described under high hazard for this class of hazardous agents and wherein protective devices and/or safety measures have not practically eliminated the potential for personal injury." Under the regulations, parties negotiate over whether or not the potential for personal injury has been practically eliminated.

3.An arbitration award issued in 1986 held that the hazard would be practically eliminated when the Employer provided employees with properly fitted face masks. Although the Panel was given a copy of the award, the parties did not restrict the issue before the Panel to the question of proper fit of the face masks.

4.Chemicals used by employees include chlorine gas, HTH particulate, sodium silicafloride (sodium fluorosilicate), hydrated lime (calcium oxide), copper sulfate (in crystalline form), potassium permanganate (in powder form), bromthymol blue, DPD chlorine reagent, aqueous solution of polyquaternary amine (NALCO 3109), aluminum sulfate, and sodium zinc metaphosphate.

5.Most employees were given coveralls in January; the balance have been ordered.