DEPARTMENT OF THE ARMY FORT CARSON FORT CARSON, COLORADO and LOCAL 1345, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF THE ARMY
FORT CARSON, COLORADO
LOCAL 1345, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 93 FSIP 29
DECISION AND ORDER
Local 1345, American Federation 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, Fort Carson, Fort Carson, Colorado (Employer).
After investigation of the request for assistance, the Panel directed the parties to have an informal conference with Panel Member Charles A. Kothe for the purpose of resolving their dispute over environmental differential pay (EDP) for pest controllers. The parties were advised that if no settlement were reached, Mr. Kothe would notify the Panel of the status of the dispute, including the final offers of the parties and his recommendation for resolving the issue. 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.
Mr. Kothe met with the parties on February 26, 1993, in Fort Carson, Colorado, but they were unable to reach agreement. He reported to the Panel based on the record developed by the parties, and it has now considered the entire record in the case.
The Employer's mission is to provide logistic and support services, including housing, morale, welfare and recreation, personnel, medical and dental, and commissary and exchange privileges, among others, to the 4th Infantry Division (Mechanized), for which it serves as home base. The Union represents approximately 1,500 General Schedule (GS) and Wage Grade (WG) employees. Those under the GS system hold positions such as nurse, medical or accounting technician, secretary, clerk (medical, financial, or transportation), controller, contract specialist, firefighter, and paramedic. WG employees work as pest controllers, laborers, plumbers, electricians, painters, carpenters, mechanics, and repairers (artillery, radio, or optical). The parties are covered by a collective-bargaining agreement which expired in April 1988, but remains in effect until negotiations for a successor are complete.
The dispute arose during negotiations over the Employer's proposal to discontinue the payment of 8 percent environmental differential to three pest controllers and one laborer working for the Entomology Section, Directorate of Environmental Compliance and Management (DECM). These employees have been receiving EDP since 1974; 4 percent from 1974 to 1985, and 8 percent thereafter according to the Union.(1)
After presentations by the parties' representatives and witnesses, including the introduction of numerous exhibits, Mr. Kothe conducted an inspection of the chemical storage and mixing facility -- Buildings T-212 and T-204. There, the protective clothing, devices, and equipment worn by pest controllers, including respirators and new disposable coveralls that were on back order, were exhibited. In addition, the day-to-day operations and safety procedures were explained by the parties.
Mr. Kothe reported that (1) protective equipment is state of the art; (2) a supervisor of pest controllers represented that his recommendations to higher level authority concerning improvements in pest control operations have been followed; (3) the Director of DECM indicated that whenever the need for, or availability of, an improved protective device was brought to his attention, he would obtain it. With regards to the storage and mixing facility, Mr. Kothe reported that it was confining and the single shower for a minimum of eight employees was, if not inadequate, most inconvenient. He was convinced, however, by the Director of Health Services' statement in a March 11, 1992, memorandum to the installation commander that the limitations presented by the "small shower and change room" were "not unmanageable (via scheduling) and does not result in significant risk to the applicators." The Employer also indicated that it has plans for a new building for the pest control shop, which will alleviate current problems with limited space. As to the new ventilation system in the storage area, Mr. Kothe indicated that it was described as less than perfect because an employee must enter the area to turn it on. Chemicals, however, are mixed outdoors.
ISSUE AT IMPASSE
Whether the 8 percent environmental differential currently paid to pest controllers exposed to poisons (toxic chemicals) of a high degree hazard should be discontinued because protective devices and/or safety measures have "practically eliminated" the potential for serious personal injury from such exposure.(2)
POSITIONS OF THE PARTIES
1. The Employer's Position
The Employer proposes that EDP be discontinued because the hazards associated with exposure to toxic chemicals have been practically eliminated. Most pest controllers in the Department of the Army do not receive EDP; for some EDP was terminated years ago, for others, a decade ago. The Employer, therefore, is out of the mainstream within the Department of the Army.
In support of its position, it submitted various documents, most importantly, three separate memoranda issued between March and May 1992, from the Chief, Occupational Health Services, the Director of Health Services, U.S. Army Medical Department Activity, and the Safety Director, respectively, and the report of EssTek, Inc., the outside laboratory with which it contracted to conduct an air monitoring survey. The Union has failed to provide similar scientific evidence to support its position that EDP should be continued.
The Chief, Occupational Health Services, reported in her March 6, 1992, memorandum that "[o]verall documented findings of medical surveillance values do not reflect physical impact" on pest controllers. Therefore, she continued, "EDP based on actual medical exposure values appears to be unwarranted." In his March 11, 1992, memorandum, the Director of Health Services related that pest controllers no longer perform fumigation of railroad cars, which was a basis for authorization of EDP. When fumigating boxcars or other confined spaces or entering a confined space when fumigation is in progress, they are required to wear "a highly reliable breathing apparatus, such as a positive pressure-demand self-contained breathing apparatus (SCBA) ... since these environments are most probably Immediately Dangerous to Life and Health (IDLH)."
The Director of Health Services further reported that personal protective equipment (PPE), which includes pesticide resistant hand protection (gloves), half-mask and full-mask respirators, eye protection and protective over-garments, are provided to each pest controller. The PPE (1) has improved in quality over the years, (2) meets all existing OSHA standards, and (3) is state of the art. Respirator fit-testing has been performed on all pest controllers. Also, there are established policies and procedures on the maintenance and use of equipment, as well as pesticide application procedures and personal protective measures (i.e., "immediate removal of contaminated clothing and flushing of contaminated body parts, washing before taking any rest breaks ... showering at the end of each work shift, and leaving all work clothing at the pest control shop") which, if adhered to, minimize potential health risks to pest controllers.
With regard to the most recent cholinesterase testing performed on pest controllers, he reports that "none exceed the standard." Moreover, "[p]eriodic medical surveillance of pest controllers has not indicated any evidence of adverse health implications from their official duties as pest control applicators when they utilize the PPE they are provided." He recommended that the Employer "[r]escind the continuing payment of EDP to pest control applicators on Fort Carson since prescribed protective and environmental control measures practically eliminate any unusual health hazards to pest control personnel."
The Safety Director, in his May 5, 1992, memorandum to the Chief, Position Management and Classification Division, also recommended that the Employer discontinue EDP. He made his recommendation following a review of "current work situations for the Fort Carson pest controllers" after which he concluded that "[p]rotective clothing and equipment are available and used, which reduces the risk of personal injury or illness."
EssTek, Inc., which conducted air monitoring tests on the pest controllers and four areas within the facility (herbicide room, pesticide storage, the storage area in Building T-212, and the supervisor's office), reported that only two compounds were detected above the analytical sensitivity; endrin, on the monitor worn by one of the pest controllers, and gamma-BHC (lindane), in the pesticide storage area. Those concentrations, however, were "well within the permissible exposure levels for manufacturing facilities" set by OSHA.
2. The Union's Position
The Union proposes that the status quo be maintained; that is, that the Employer continue EDP because pest controllers (1) work with toxic chemicals and are exposed to unusual hazards as a result; and (2) are required to work in a facility that is inadequate because of (a) deficient shower, change, and protective clothing laundering areas, and (b) the meager availability of hot water. Workplace conditions have not changed in 20 years; they remain unsafe and continue to pose a health risk to employees.
In support of its position, it submitted numerous exhibits for Panel review and evaluation.(3) Among these exhibits is the Armed Forces Management Board, Technical Information Memorandum No. 14, Personal Protective Equipment for Pest Management Personnel, a 17-page report issued in March 1992, which discusses "specific proprietary products regarding respiratory system protective devices and disposable coveralls." The report notes that "[a] supervisor's past experience and knowledge of local safety policies may become the most important criteria for determining specific equipment requirements." With regard to coveralls, it states that they (1) "must be washed daily in soap and water, and separately from other clothing[,]" and (2) "require frequent inspection to detect holes, tears, and thinning of material." Each pest controller must be provided 6 if there are a washer and dryer located in the pest management shop, and 12 if there are not. Concerning disposable coveralls, which are "made of spunbonded olefin (Dupont TYVEK) fabric," the report indicates that current Army regulations make no specific mention of them.
While over the years there has been some reduction of the health risk associated with exposure to hazardous chemicals, it has not been practically eliminated. In this regard, an August 1977 memorandum to the installation commander from the then Director of Health Services states that while protective equipment is available and worn by pest controllers, it "only serves to reduce the amount of exposure[,]" not "practically eliminate" it. In his August 3, 1989, memorandum to the Civilian Personnel Officer, the Safety and Occupational Health Manager concluded that available protective clothing and equipment "does not completely eliminate the possibility of personal injury." The Administrative Officer, in his April 19, 1990, memorandum to the installation commander stated, among other things, that (1) the Employer's pest control facilities do not "practically eliminate exposure potential;" (2) the pest control shop fails to meet EPA and AEHA criteria;(4) (3) there is no separation of clean and contaminated areas; (4) clean areas are not protected by positive air pressure; and (5) the failure to meet the above criteria is what differentiates the Employer's pest control operations from others in the Army. He also stated that "the chronic and cumulative effects of day-to-day minute exposure to toxic pesticides and various 'inert' ingredients over a period of years" has not been practically eliminated. In comparison, the Safety Director's May 5, 1992, memorandum for the Chief, Position Management and Classification Division, is flawed because it does not indicate that protective equipment and clothing have practically eliminated the health risks.
The medical tests on pest controllers conducted by Occupational Health Services are inconclusive because they were only tested for "organo-phosphates in cholinesterase" and not other contaminants. Finally, contrary to the Employer's position, there is evidence to support the view that there a