OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
DEPARTMENT OF VETERANS AFFAIRS, MEDICAL CENTER, ALLEN PARK, MICHIGAN
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 933, AFL-CIO
Case Nos. CH-CA-20021
Roland L. Bessette
Counsel for the Respondent
Susanne S. Matlin and
Peter A. Sutton
Counsel for the General Counsel, FLRA
Counsel for the Charging Party
Before: GARVIN LEE OLIVER
Administrative Law Judge
Statement of the Case
The unfair labor practice complaint in Case No. CH-CA-20021
and CH-CA-20164 alleges that Respondent (VAMC Allen Park) violated
section 7116(a)(1) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1) and
(8)(1), by failing to comply with an
arbitrator's award dated August 17, 1990 which became final on
April 11, 1991.
The award, among other things, required Respondent to pay
environmental differential pay (EDP) to certain employees since
1978 until asbestos exposure was abated and to identify employees
and produce certain records and documentation within 45 days.
Respondent's answer denied the violations. Respondent
asserted that employees known to be eligible for EDP were paid
through November 13, 1989 and that the process could not be
completed within 45 days.
The complaint in Case No. CH-CA-20821 alleges that
Respondent violated section 7116(a)(1) and (8) of the Statute by
failing to take actions required by an arbitrator's final award
dated June 23, 1992. The award, among other things, required
Respondent to continue payment of EDP to unit employees after April
11, 1991 and to pay attorney fees.
Respondent's answer denied the alleged violations.
Respondent asserted, among other things, that the award is a
nullity and no employee has been exposed to hazardous levels of
asbestos. Respondent claimed that the arbitrator lacked
jurisdiction, including the fact that the Charging Party had filed
unfair labor practice charges concerning the same matters.
A hearing was held in Detroit, Michigan. The Respondent,
Charging Party, and the General Counsel were represented and
afforded full opportunity to be heard, adduce relevant evidence,
examine and cross-examine witnesses, and file post-hearing
briefs.(2) The Respondent, Charging
Party and General Counsel filed helpful briefs. Based on the entire
record, including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of
law, and recommendations.
Findings of Fact
The American Federation of Government Employees (AFGE) is
the certified exclusive representative of a nationwide consolidated
unit of employees appropriate for collective bargaining at the U.S.
Department of Veterans Affairs. The Charging Party (Union) is an
agent of AFGE for the purpose of representing unit employees at
VAMC Allen Park (G.C. Ex. Nos. 1(c) and 1(e)).
The Union filed a grievance in 1986 concerning certain unit
employees' entitlement to EDP. Because the grievance was not
resolved, the parties submitted it to Arbitrator William M. Ellmann
for resolution. (Tr. 35-36).
The Arbitrator issued an arbitration award on April 7, 1987.
(G.C. Ex. 2). The issue before the Arbitrator was whether the
grievants were entitled to EDP for exposure to asbestos under
Federal Personnel Manual (FPM) Supplement 532-1, and, if so, for
what period of time payment was warranted. (G.C. 2 at 6; G.C. 3 at
2). The Union asked for EDP from July 1978, that it continue until
the facility is cleaned up, and that the arbitrator maintain
jurisdiction (G.C. Ex. 2 at 8, 10). The Arbitrator noted that
Respondent "has begun a broadly based cleanup program" and "is
making a conscientious effort to ride [sic] the surroundings of
asbestos" (Ibid at 4). Respondent
acknowledged that it had a duty to pay EDP if the levels of
asbestos exceeded the agency standard and if protective devices
would not relieve the problem. Respondent argued that if
entitlement to EDP was found, it should not go back beyond 30 days
before the grievance was filed. (Id. at 7).
The Arbitrator found "that any exposure subjects the employee to
this difficulty and justifies payment of the pay differential." The
actual award was:
I award the union and its members individually EDP and charge management and the union
with determining the damage since 1978. If any dispute arises over the payment, I will hear
those claims. I further charge management with the completion of its clean up program no
later than six months from the date of this opinion. I maintain jurisdiction to assure myself the
claims have been resolved and that the cleanup program is completed. I also retain the right
to issue a direct order to cleanup the premises should
it become necessary. (Id. at 13).
Respondent filed exceptions to this award with the
Authority. Upon review, the Authority in Allen
Park Veterans Administration Medical Center, Allen Park,
Michigan, 28 FLRA 1166 (1987) (VAMC Allen
Park I) (G.C. Ex. 3; Tr. 36) remanded the award, finding
that Arbitrator Ellmann did not adequately explain his award of
EDP. The Authority stated:
[T]he award is remanded to the parties for the purpose of requesting the Arbitrator to
clarify his award to address fully and in accordance with this decision whether the requirements
for the payment of EDP for exposure to asbestos contained in Category 16 of Appendix J have
been met in this case. Speci-fically, the Arbitrator is to provide a fully articulated, reasoned
discussion based on quanti-tative, objective factors as to whether the amounts of airborne
asbestos present at the Activity during the time period in question were at levels which may have
exposed employees to potential illness or injury and, if so, whether protective devices or safety
measures taken by the Activity did not practically eliminate the potential for such personal illness
or injury. 28 FLRA 1170-71.
Pursuant to the Authority's remand, Arbitrator Ellmann
issued another award on June 18, 1988. (G.C. Ex. 4). The Respondent
argued before the Arbitrator that EDP is only required when air
samples reflect 0.1 asbestos fibers per cubic centimeter (0.1
f/cc). The Arbitrator rejected the Respondent's arguments. In
rejecting Respondent's proposed threshold level of 0.1 f/cc for
EDP, the Arbitrator held ". . . as a matter of law and fact that
there is no quanti-tative threshold level below which exposure will
not have the potential of illness or injury and that asbestos
diseases are dose-responsive." (Ibid at
15); that "EPA finds that there is no safe level of exposure to
asbestos." (Id. at 17); that "The United
States National Institute for Occupational Safety and Health
(NIOSH) agree that asbestos creates a potential for illness and
injury, and further that data available to date provides no
evidence for a threshold level. Virtually all levels of asbestos
demonstrated an excess of asbestos-related diseases." (Id.); and that "While EDP liaability [sic] can be ended
by providing protective devices or instituting safety measures, the
facility has not provided such devices or instituted any
significant safety measures. . . . I, there-fore, find that
protective devices and safety measures have not removed and have
not practically eliminated the potential for illness or injury."
(Id. at 20). As a remedy, he stated that
wage grade employees represented by the Union were entitled to EDP
since 1978, interest on backpay, and attorney fees. He also
maintained jurisdiction over the matter (Id. at 20-21). He referred to his opinion of April 7,
1987, noting that he had set forth that:
. . .
(2) The agency was charged to complete its internal asbestos clean-up program no later
than six months from the date of the award.
(3) Jurisdiction was maintained to resolve disputes over the back EDP awarded and to
reserve the right to directly order an asbestos cleanup
at the activity. (Id. at 14).
Respondent filed exception to this award with the Authority.
Respondent incorporated its exceptions filed in VAMC Allen Park I and requested the Authority to rule
on those exceptions. Respondent did not take exceptions to the
retention of jurisdiction by the Arbitrator. (G.C. Ex. 5 at 1-2,
On February 28, 1990, the Authority in Allen Park Veterans Administration Medical Center, 34
FLRA 1091 (1990) (VAMC Allen Park II)
upheld the June 18, 1988 award of EDP retroactive to 1978 with
interest except for the award of attorney fees. The Authority set
aside the fee award without prejudice to the Arbitrator's
consideration of the issue on a timely union motion. The Authority
found that the Arbitrator's award on remand complied with the
Authority's instructions, as follows:
In summary, the Arbitrator's award on remand complies with the Authority's instructions
to provide a fully reasoned decision on the application of the requirements of Appendix J. The
Arbitrator stated in a fully articulated opinion and award that he was convinced by the evidence
presented that there is a potential for asbestos-related disease to occur at any level of exposure
and that there is no safe threshold level of exposure. In the absence of a mandated quantitative
level set by applicable law or regulation or otherwise agreed to by the parties, that finding
constitutes an appropriate determination of quantitative levels for purposes of entitlement to EDP
under Appendix J.
The Arbitrator found that asbestos was present at the Activity, that the grievants had been
exposed to amounts of airborne asbestos which would expose them to potential illness, and that
protective devices and safety measures had not practically eliminated the potential for illness or
injury. These findings have not been shown to violate law or applicable regulation. Accordingly,
the Agency's exceptions present no basis for finding the award deficient or for modifying the
award in the manner requested by the Agency. (G.C. Ex. 5
On April 2, 1990 the Union requested that Respondent proceed
to implement the award. On May 24, 1990 Respondent disputed the
Union's interpretation of employees covered by the award.
Thereafter, the parties jointly requested the Arbitrator to issue
an award addressing this and other issues related to coverage.
(G.C. Ex. 5(a) at 1; Tr. 37). In an Agency statement submitted to
the Arbitrator on June 29, 1990, one of the four issues presented
by Respondent was:
4. What Is the Duration of the Payment of EDP Under the
Arbitration Award? (G.C. Ex. 5(a) at 2).
As to this issue, Respondent represented to the Arbitrator the
IV. PAYMENT OF EDP TO THE 65 GRIEVANTS
CONTINUES UNTIL ABATEMENT
The original arbitration award directed payment of EDP to the 65 grievants until their
exposure to airborne asbestos is abated. Thus, until such abatement, whether through removal,
encapsulation or protective devices, the VAMC will continue to pay EDP to grievants in
accordance with the FPM Supplement. (Id. at 9).
On August 17, 1990 the Arbitrator issued his supplemental
opinion and award. He noted that "The VA is in agreement [that EDP
continue to accrue until asbestos is abated] but only as to the
65 employees." (G.C. Ex. 6 at 4). He found
"[t]hat EDP continues to accrue to all Local 933 represented
employees until asbestos is abated." (Id.
at 11). The Arbitrator found that more than 65 employees as deemed
entitled to EDP by the Agency should receive EDP from July 26, 1978
to that time. He determined how EDP was payable; when EDP was
payable; the rate for EDP for overtime, holidays and Sunday work;
EDP payments were to be factored into and contri-butions made for
retirement benefits; backpay and interest were to be separately
identified; EDP continued to accrue until asbestos was abated; and
that he was "empowered under contract to award, determine
appropriate remedies including reasonable attorney fees, and to
retain jurisdiction to decide disputes." The August 17, 1990,
award, directed as follows:
 EDP is to be paid to all wage grade employees represented by Local 933 since July 26,
1978, including current Engineering, Warehouse, Building Management, Dietetics-kitchen
and laundry employees. It is also to be paid to those who have quit, retired, become disabled,
promoted, transferred, died, etc. regardless of the nature of their tour (part-time, intermit-tent,
detailed, regular or temporary status.)
2 That EDP is payable based on the total number of hours and pay status on the date of exposure
(rather than on the basis of hours of specific
3 That EDP is to be paid for all annual and sick leave paid for a day on which the employee also
spent some time actually working at VA Medical
4 That EDP is to be paid for premium pay previously issued for overtime, holiday and Sunday work
and also paid presently and in the future for
5 That the VA is directed within 45 days to identify all Local 933-represented wage grade
employees who have worked at the Allen Park Medical Center since July 26, 1978 and that the
VA shall produce records which would indicate the basis for the calculation of each employee's
total number of hours in pay status since July 26, 1978, total number of hours for which overtime,
holiday and Sunday work was paid and total number of hours of paid annual and sick leave days
on which work was also performed and documentation concerning the effect of EDP on each
employee's retirement and pension contributions and
6 I retain jurisdiction. (G.C. Ex. 6 at 12-13).
Respondent filed exceptions to the August 17, 1990, award
with the Authority contending, in part, that the Arbitrator had
exceeded his authority.
While the Respondent's exceptions to the August 17, 1990,
award were pending before the Authority, the Respondent, the Union
and the arbitrator generated several items of correspondence. (G.C.
Ex. 7-15). The Respondent indicated on November 27, 1990, that it
would begin partial compliance with the arbitration award, i.e.
payment of EDP to the 65 employees which Respondent conceded were
under the award. (G.C. Ex. 7). The Union maintained that even the
Respondent's limited actions were not in compliance with the award
(G.C. Ex. 8). On February 28, 1991, the Respondent for the first
time advised the Union that asbestos exposure was abated on
November 13, 1989. (G.C. Ex. 9). Among other questions posed and
documents requested by the Union, the Union sought justification
for the Respondent's assertion. (G.C. Ex. 13).
On April 11, 1991, the Authority ruled on the Respondent's
exceptions to the August 17, 1990 award in VAMC
Allen Park III, 40 FLRA 160. (G.C. Ex. 16; Tr. 38). The
Authority rejected Respondent's principal issue on appeal, namely
the allegation that the Arbitrator's award was confined to 65
employees. The Authority held another issue, the status of
temporary employees, in abeyance pending the outcome of a unit
clarification petition. As to the Arbitrator's authority, the
Authority concluded that Respondent failed to establish that the
Arbitrator had exceeded his authority by issuing his August 17,
1990 Supplemental Award. The Authority stated, in part, "The matter
was placed before the Arbitrator at the joint request of the
parties for a supplemental award to resolve the issue of coverage.
Matters can properly be reopened by an arbitrator at the joint
request of the parties to provide clarification." 40 FLRA at 169.
Furthermore, the Authority acknowledged that the arbitrator had
retained jurisdiction, noting, "The retention of jurisdiction by
arbitrators for the purpose of clarification and interpretation of
an award and the overseeing the implementation of remedies is not
unusual and has been approved by the Authority." 40 FLRA 170.
As noted above, in late 1990 Respondent conceded that at
least 65 engineering employees were entitled to EDP back pay and
interest. (G.C. Ex. 7; Tr. 40, 45). Thus, while its exceptions on
other issues were pending, Respondent did commence implementation
in the fall of 1990 of the Arbitrator's Award at least as to the 65
individuals. The 65 individuals have since become known as "Group
I". (Tr. 45-46). On or about November 26, 1990 the Union received a
package of materials relating to calculation of back pay and
interest for those 65 individuals. (Tr. 39; G.C. Ex. 8). At about
this time, Respondent also commenced issuing back pay checks and
interest checks to these 65 individuals. (Tr. 45; G.C. Ex. 8).
After Respondent's exceptions were rejected on April 11,
1991, it began to implement the Supplemental Award as to employees
and former employees beyond the original 65 employees. (Tr. 46).
Respondent then paid EDP and interest to additional employees and
former employees, who have since been referred to as Groups II, III
and IV, in 1991. (Tr. 46). At the hearing Respondent indicated that
it has since paid some other individuals. (Tr. 49).(3)
Respondent stipulated during the hearing that it did not
identify all employees entitled to EDP and produce records and
documentation within 45 days as ordered in paragraph 5 of the
Arbitrator's award. Respondent contended that the efforts required
made it impossible to do so. (Tr. 44). The identification of former
employees and retirees who had worked at the facility since July
26, 1978 was a lengthy process involving, among other things, the
placing of newspaper notices. (G.C. Ex. 26 at 2; G.C. Ex. 27 at
2-3, G.C. Ex. 28). After names were collected from a variety of
sources, personnel folders had to be secured and reviewed to
determine entitlement to EDP. (G.C. Ex. 28 at 3). The Agency could
not have completed the process within 45 days.
Respondent's refusal to pay EDP for any time after November
13, 1989 and related failures to provide requested information lead
to Charge Nos. CH-CA-20021 on October 10, 1991 and CH-CA-20164 on
January 4, 1992. (G.C. Ex. 1(a) and (b)).
On May 1, 1991 the Arbitrator asked the parties the status
of their negotiations on "cleaning up the facility." He stated that
the "latest decision of the review board also has relevance on that
issue as well as . . . the issue of determining damages unless you
were to agree on all fronts." (G.C. Ex. 18). He later advised them,
"The issue beside EDP is simply that the facility has to be cleaned
up. I have retained jurisdiction throughout this case to assure
myself it has to be done." (G.C. Ex. 19; Tr. 61-62).
By letter dated May 6, 1991 Respondent's Counsel wrote the
Arbitrator, "[H]earings on the issues of abatement and damages will
not be productive until such time as the parties have either
exhausted their attempts at resolution or have identified the areas
of dispute." (G.C. Ex. 20). The Union's Counsel advised the
Arbitrator on October 15, 1991 that the parties were "continuing
their efforts to narrow issues and examine the VA's allegation of
asbestos abatement . . .". (G.C. Ex. 30).
On January 2, 1992 the Arbitrator scheduled a hearing for
February 11, 1992 and asked for a report on the status of the
matter at that time. (G.C. Ex. 32, Tr. 64).
On January 20, 1992 Respondent notified the Arbitrator that
it considered his role to be functus
officio. Respondent rejected his authority
to schedule a hearing "as a collection tactic or for any other
reason." Respondent claimed that "no hearing for clarification of
any aspect of the award is requested or necessary" and that he had
no authority to schedule hearings relating to damages, the removal
of asbestos, or for making additional findings, and no power to
issue subpoenas. Respondent stated that a subpoena the Arbitrator
had issued against the Agency at the request of the Union was
further evidence of his bias against the Agency. Respondent also
questioned the Arbitrator's previous fee invoices. (G.C. Ex.
On February 6, 1992 the Union advised the Arbitrator that it
would attend the hearing prepared to address "questions concerning
interpretation and matters affecting the orderly and expeditious
interpretation of your Award." (G.C. Ex. 38).
On February 10, 1992 Respondent reiterated its basis for
refusing to attend the hearing and, in addition, claimed that the
Union's unfair labor practice charges of October 9, 1991 and
January 9, 1992 constituted a statutory election of remedies in
accordance with section 7121 of the Statute. (G.C. Ex. 39).
Arbitrator Ellmann convened the hearing on February 11,
1992. The Union was represented, but the Respondent was not. (Tr.
65). The Union submitted a post-hearing brief with exhibits. (G.C.
Ex. 42). The Union took the position that Respondent was bound as a
matter of law to pay EDP through April 11, 1991 and that the
enforcement aspect of that issue was pending before the Authority.
(G.C. Ex. 42).
`The Arbitrator scheduled another hearing for May 5, 1992 on the
question of whether asbestos is abated at the facility. (G.C. Ex.
43-46). The Respondent again objected to the arbitrator preceding
to conduct a hearing on the abatement of asbestos for the reasons
previously enumerated. (G.C. Ex. 36 and 47).
The Respondent was informed by the Arbitrator of the date of
the hearing and urged to attend (G.C. Ex. 48) and informed of the
date post-hearing briefs were due (G.C. Ex. 49). Respondent was
given a copy of the Union's post-hearing brief and motion for
attorneys fees. (G.C. Ex. 51).
On June 23, 1992, Arbitrator Ellmann issued another award on
EDP. (G.C. Ex. 52; Tr. 67). He noted that "the VA failed to present
any evidence on the sole issue before the arbitra-tor whether the
airborne asbestos hazard has been abated since April 11, 1991."
(G.C. Ex. 52 at 2). The award provided, in pertinent part, as
I find that my jurisdiction continues, and that the FLRA has by its earlier determination
approved such continuance.
I find that there is no abatement of asbestos at the VA facility to this date, and specifically
during the period from April 12, 1991 to the
I find that the union's counsel is entitled to the sum of $9450 (Ninety-four hundred and fifty
dollars) for services rendered May 6, 1991 through May 20, 1992, and that the government shall
make payment within thirty days.
I find that payment of EDP shall continue
unabated. (Id. at 9).
Respondent took no exceptions to the award pursuant to
section 7122(a) of the Statute. (G.C. Ex. 1(l). On July 2, 1992 the
Union requested that Respondent comply with the award. (G.C. Ex.
53; Tr. 69). Respondent has paid no EDP and no attorney fees
pursuant to the June 23, 1992 Award. (Tr. 69-70).
Respondent's failure to do so lead to the Union's charge in
Case No. CH-CA-20821.
Barbara Watkins, Assistant Medical Center Director, VAMC
Allen Park, testified that she established the November 13, 1989
abatement date. She stated:
At the time I was aware of the arbitral's [sic] decision, we needed to retrospectively go back
and determine a date which we felt the facility had been abated. I chose the date at the time that I
had a new engineer. The former engineer had stepped over to a new position, and I felt comfortable
with the new engineer. He and I discussed how we would manage the asbestos program. We began
to put into place procedures and policies, and locked certain areas and restrict certain areas. And I
felt that at that, from that date on, we had a plan in effect that would insure that people would not
accidently or -- or knowingly be exposed to asbestos in -- in performing their regular duties. And
we quit removing -- well, even before then we had quit, but definitely from that date forward, we did
not use our employees to remove any asbestos in the facility. It was all done by contractor.
Ms. Watkins testified that a team from the VA Designated Agency
Safety and Health Office (VA DASHO) had conducted a survey of VAMC
Allen Park and they had had two visits from the Occupational Safety
and Health Administration. (Tr. 121). The VA DASHO visit in August
1990 determined "that asbestos exposures above the regulatory
acceptable limits (OSHA and VA) are not being exceeded at this
station." (Res. Ex. 2 at 1).
Mr. Anton Karporvich, Jr., an industrial hygienist at VAMC
Allen Park since approximately November 1989, testified that the
facility has abated hazardous exposure to asbestos by following the
procedures recommended by various federal laws, being in compliance
with VA Circulars, and by prohibiting any employees to touch,
manipulate, or handle asbestos in any way. He testified that no
area has been cleared for occupation by employees that exceeded the
clearance level established by VA of .005 f/cc. (Tr. 126-33; Res.
General Counsel and the Union presented Respondent's air
sample reports revealing asbestos in the ambient air after November
13, 1989. (G.C. Ex. 42 and 60(a), (b), and (c)). The Union
contended before the Arbitrator on March 11, 1992 that "[w]here, as
here, the VA's air sampling results continue to yield samples of
.005 f/cc and above, the VA's own final clean-up levels have not
been met. In these circumstances, the VA cannot be deemed to have
abated asbestos within the meaning of Appendix J." (G.C. Ex. 42 at
Positions of the Parties
The General Counsel claims that Respondent has violated
section 7122 and thereby section 7116(a)(1) and (8) of the Statute
by failing to comply with the Arbitrator's awards of August 17,
1990 and June 23, 1992.
The General Counsel asserts that Respondent was obligated by
the August 17, 1990 award to pay EDP from July 26, 1978 until, at a
minimum, August 17, 1990. The General Counsel maintains that
Respondent's claim of abatement retroactive to November 13, 1989 is
a weak, post-hoc ploy to evade further EDP
liability as Respondent never presented that abatement date to
either the Arbitrator or the Authority. Moreover, the General
Counsel asserts that there is no evidence that exposure to asbestos
ceased in accordance with the standard set by the Arbitrator and
upheld by the Authority, and Respondent cannot use this proceeding
to refute that standard.
The General Counsel also claims that Respondent violated the
Statute by failing to supply the Union with certain information
within 45 days as ordered by the Arbitrator. The General Counsel
contends that Respondent's argument about the difficulty of
complying should have been raised in exceptions to the awards.
Counsel claims that there is no evidence of a good faith effort to
comply as Respondent did not agree to provide the documentation
until November 18, 1992.
With respect to the June 23, 1992 award, the General Counsel
argues that as Respondent took no exceptions, the award became
final and binding and Respondent cannot now defend its failure to
comply by asserting that the Arbitrator had no jurisdiction, was
biased, or made erroneous findings.
In also urging that violations be found, the Charging Party
contends that the Respondent conceded to the Arbitrator asbestos
exposure as of June 29, 1990 and, therefore, could not subsequently
pick November 13, 1989 as an abatement date. The Charging Party
asserts that, even more significantly, the Arbitrator found
continuing EDP entitlement until asbestos is abated in his August
17, 1990 award, and Respondent's failure to take exceptions from
those findings and the subsequent Authority decision of April 11,
1991, affirming the supple-mental award, binds Respondent as a
matter of law. The Charging Party argues that Respondent is bound
to pay EDP at least through April 11, 1991, the date on which the
August 17, 1990 award became final, and may not collaterally attack
that date in this proceeding.
The Charging Party contends that Respondent's failure to
comply with the June 23, 1992 supplemental award, which became
final in the absence of exceptions, also constitutes an unfair
labor practice. The Charging Party asserts that the Arbitrator
appropriately retained jurisdiction, the Authority affirmed his
retention of continuing jurisdiction, and Respondent may not
relitigate that issue. In any event, the Charging Party argues that
the Arbitrator's decision to convene implementation hearings in
1992 concerning the issue of abatement, particularly where that
hearing was sought by one of the parties, was well within his
retained jurisdiction since he had ordered EDP payment until
asbestos was abated.
Respondent defends on the basis that hazards due to exposure
to airborne asbestos were abated effective November 13, 1989 and,
therefore, it complied with the award upheld by the Authority on
April 11, 1991. Respondent contends the only substantive hearings
on asbestos exposure in the arbitration case occurred in 1987, and
the Arbitrator's award reflected findings prior to November 13,
1989 not subsequent thereto. Therefore, it could determine that
asbestos was abated in 1989 and was not required to pay EDP until
April 11, 1991, the date the Authority ruled on the Agency's
exceptions. Respondent asserts that if the Union believed exposure
occurred at some point after that date, a new grievance was
Respondent maintains that it made good faith efforts to
calculate, process, and pay EDP to all persons so entitled and,
therefore, it did not fail to comply with the Arbitrator's award
because such efforts required more than the 45 days specified in
Respondent claims that the Arbitrator had no jurisdiction to
issue his June 23, 1992 award concerning implementation because the
Union had made a statutory election under section 7116(d) by filing
unfair labor practice charges on October 10, 1991 and January 14,
1992 concerning lack of implementation of the earlier award.
Respondent also claims that the Arbitrator was functus officio with regard to
all hearings scheduled or threatened during 1991 and 1992.
Discussion and Conclusions
As the Court stated in Department of Health
and Human Services v. FLRA, 976 F.2d
1409, 1413, 141 LRRM 2502, 2505 (D.C. Cir., 1992) (HHS):
With respect to an arbitration reviewable directly by the FLRA under § 7122(a), § 7122(b)
prevents any party from challenging the award in a later unfair labor practice proceeding. See
Department of Health & Human Services, Health Care Financing Administration v.
American Federation of Government Employees, Local 1923, 35 F.L.R.A. 491,
494-95 (1990); see also United States Department of Justice v. FLRA, 792 F.2d
25, 28-29 [122 LRRM 2499] (2d Cir. 1986) (federal courts do not
have jurisdiction to review an underlying arbitration award in
an appeal of an unfair labor practice decision). In such cases,
opportunity knocks but once. Failure to comply with an award after
it is affirmed on appeal to the FLRA or after time for appeal has
run out violates § 7122(b), which mandates compliance with an
award, and thus constitutes an unfair labor practice. See United
States Army, Adjutant General Publications Center v. American Federation of Government
Employees, Local 2761, 22 F.L.R.A. 200, 201-03
(1986). . . .
Once an arbitration award becomes final and binding, the
Authority only reviews matters of compliance with the award in an
unfair labor practice proceeding. Department of
Veterans Affairs, Dwight D. Eisenhower Medical Center, Leavenworth,
Kansas, 44 FLRA 1362, 1369 (1992). The adequacy of
compliance is determined by whether the respondent's construction
of the award is reasonable, which depends on whether the
construction is consistent with the entire award and with
applicable rules and regulations. Oklahoma City
Air Logistics Center, Oklahoma City, Oklahoma, 46 FLRA 862,
868 (1992); Department of the Treasury, Internal
Revenue Service and Department of the Treasury, Internal Revenue
Service, Austin Service Center, Austin, Texas, 25 FLRA 71
(1987). If there is a delay in complying, the Authority looks to
whether the respondent acted promptly in light of all the facts and
circumstances. U.S. Department of the Treasury,
Customs Service, Washington, D.C. and Customs Service, Region IV,
Miami, Florida, 37 FLRA 603, 611 (1990) (Customs Service, Miami).
Compliance With The August 17, 1990 Award As
Upheld By The Authority On April 11, 1991.
As noted, in June 1990 Respondent presented to the
Arbitrator the issue of the duration of payment of EDP under the
original arbitration award. It then represented that, as to 65
employees, "until . . . abatement . . . the VAMC will continue to
pay EDP to grievants in accordance with the FPM Supplement." (G.C.
Ex. 5(a) at 2, 9). Respondent did not assert that, as to the 65
employees or others, abatement had already taken place on November
The Arbitrator's award of August 17, 1990 stated, "EDP is to
be paid to all wage grade employees represented by Local 933 since
July 26, 1978" (G.C. Ex. 6 at 12-13) and that "EDP continues to
acccrue [sic] to all local 933 represented employees until asbestos
is abated." (Id., at 11). Respondent's
exceptions to the Authority did not contest the Arbitrator's
finding concerning the duration of the award, or assert that
abatement had already occurred.
Under these circumstances, Respondent's construction of the
award as enabling it to choose November 13, 1989 as the date when
exposure to potential illness from asbestos had been abated was not
In order for Respondent to have complied with the
Arbitrator's award that, in relevant respects, became final and
binding on April 11, 1991, in VAMC Allen Park
III, Respondent would have had to pay EDP to all wage grade
employees represented by AFGE Local 933 from July 26, 1978 until at
least August 17, 1990, the date of the Arbitrator's award. By
paying EDP only to November 13, 1989 Respondent has failed to fully
comply with the Arbitrator's final award of August 17, 1990
contrary to section 7122(b) of the Statute, and thereby did engage
in unfair labor practices within the meaning of section 7116(a)(1)
and (8) of the Statute.
I conclude that Respondent did not violate the Statute by
not complying with paragraph 5 of the Arbitrator's award. This
provision, among other things, required Respondent to identify,
within 45 days, all unit employees who have worked for Respondent
since July 26, 1978. The record reflects that the identification of
such employees could not be completed within 45 days. It was a
lengthy process involving, among other things, the placing of
newspaper notices and the review of personnel files. Respondent
acted promptly in this respect in light of all the facts and
circumstances. Cf. Customs
Service, Miami, supra, 37 FLRA 603,
As noted, Arbitrator Ellmann's August 17, 1990 award
specifically found "that EDP continues to accrue to all Local
933-represented employees until asbestos is abated." He also
continued to retain jurisdiction. As the Authority stated in
VAMC Allen Park III, "The retention of
jurisdiction by arbitrators for the purpose of clarification and
interpretation of an award and the overseeing of the implementation
of remedies is not unusual and has been approved by the Authority."
40 FLRA at 170.
When the parties could not agree on when or whether exposure
to potential illness from asbestos had been abated for purposes of
determining how long EDP payments should continue under FPM
Supplement 532-1, Appendix J, the dispute was properly one to be
decided by the Arbitrator in accordance with his retention of
jurisdiction. The Union was not required to channel that dispute
through a new re-exhaustion of the entire grievance/arbitration
process. Cf. Local 2222,
2320-2327 v. New England, Etc., 628
F.2d 644 (1st Cir., 1980). Nor, in view of the retention of
jurisdiction by the Arbitrator, is this the appropriate forum for
resolving that dispute. Cf. Department of the Navy, Navy Public Works Center, Norfolk,
Virginia and Tidewater Virginia Federal Employees Metal Trades
Council, AFL-CIO, 92 FSIP 72 (December 15, 1992).
Compliance With The June 23, 1992 Arbitration
Award, As To Which No Exceptions Were Filed.
The June 23, 1992 arbitration award found "no abatement of
asbestos at the VA facility to this date, and specifically during
the period from April 12, 1991 to the present" and that "payment of
EDP shall continue unabated." Respondent did not file exceptions to
that award and has made no payments of EDP pursuant to the
Section 7122(b) of the Statute states:
(b) If no exception to an arbitrator's award is filed under
subsection (a) of this section during the 30-day period
beginning on the date the award is served on the party, the
award shall be final and binding. An agency shall take the
actions required by an arbitrator's final award. The award
may include the payment of backpay (as provided in section
5596 of this title).
As discussed above, the Authority has consistently held that
a party cannot collaterally attack an arbitration award during the
processing of an unfair labor practice brought to enforce the
award. United States Air Force, Air Force
Logistics Command, Wright-Patterson AFB, Ohio, 15 FLRA 151,
153-54 (1984) (Wright-Patterson),
affirmed sub nom., Depart-ment of the Air Force v. FLRA, 775 F.2d 727 (6th
Cir. 1985); HHS, supra.
Respondent's contention that the Arbitrator had no
jurisdiction under section 7116(d) of the Statute because of the
earlier unfair labor practice charges should have been raised as
exceptions to the award.(4)
Association of Machinists and Aerospace Workers, Local 39 and U.S.
Department of the Navy, Naval Aviation Depot, Norfolk,
Virginia, 44 FLRA 1291 (1992) (Authority held on review of
exceptions to award that arbitrator properly refused juris-diction
over a grievance in accordance with section 7116(d) of the Statute
because grievance was precluded by an earlier-filed unfair labor
practice charge). Its argument that the Arbitrator was functus officio and had no
authority to continue his jurisdiction based on his retention of
juris-diction likewise could have been heard on exceptions to the
award. See VAMC Allen Park III,
supra, and U.S. Department
of Veterans Administration Medical Center, Leavenworth, Kansas and
American Federation of Government Employees, Local 85, 38
FLRA 232, 238-39 (1990). The Authority, in reviewing such
exceptions, has applied the principle to find arbitration awards
deficient in some circumstances. For example, General Services Administration and American Federation of
Government Employees, Local 2600, 34 FLRA 1123 (1990)
(arbitrator had no authority to reopen his award to determine the
dispute over allocation of costs of the arbitration proceeding when
he did not retain jurisdiction and both parties stipulated and
agreed that they intended to place the issue before another
arbi-trator); Overseas Federation of Teachers,
AFT, AFL-CIO and Department of Defense Dependents Schools,
Mediterranean Region, 32 FLRA 410 (1988) (arbitrator
exceeded his authority by reopening and reconsidering his original
award, which had become final and binding when he did not retain
jurisdiction over the matter and when there was no joint request by
the parties). The power of an arbitrator to proceed ex parte can be raised in
exceptions to the award. U.S. Department of the
Air Force, Griffiss Air Force Base and American Federation of
Government Employees, Local 2612, 38 FLRA 276 (1990).
Claims that an award is deficient because an arbitrator is
biased and failed to conduct a fair hearing can also be raised in
exceptions to the award. U.S. Department of the
Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades
Council, 41 FLRA 535, 540 (1991); U.S.
Department of the Air Force, Oklahoma City Air Logistics Center,
Tinker AFB and American Federation of Government Employees, Local
916, 35 FLRA 700, 704 (1990).
These issues are not litigable in this unfair labor practice
proceeding, but are matters that go to the substance of the award
that could have been raised within the appeals procedure
established by Congress. U.S. Customs Service,
Washington, D.C., 39 FLRA 749, 758-59 (1991).
By failing to comply with Arbitrator Ellmann's award of June
23, 1992, Respondent has acted contrary to section 7122(b) of the
Statute and has thereby violated section 7116(a)(1) and (8) of the
Statute, as alleged.
The August 17, 1990 award required the payment of EDP from
July 26, 1978 to, at least, August 17, 1990. The June 23, 1992
award required the payment of EDP from April 12, 1991 until such
time as exposure to potential illness from asbestos has been abated
in accordance with the awards. Whether EDP is payable during the
period from August 17, 1990 to April 12, 1991 is a matter for the
parties to resolve or, in case of dispute, the arbitrator pursuant
to his retained jurisdiction.
The Charging Party's request for an opportunity to address
the matter of attorney fees for this proceeding should be initially
addressed to the Authority pursuant to the Back Pay Act, 5 U.S.C. §
5596(b)(1), and 5 C.F.R. § 550.807 in the event the Authority
corrects or directs the correction of an unjustified or unwarranted
personnel action. See U.S.
Customs Service, 46 FLRA 1080 (1992).
Based on the foregoing findings and conclusions, it is
recommended that the Authority issue the following Order:
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
it is hereby ordered that the Department of Veterans Affairs,
Medical Center, Allen Park, Michigan, shall:
1. Cease and desist from:
(a) Failing and refusing to fully comply with the
August 17, 1990 and June 23, 1992 final and binding arbitration
awards of Arbitrator William M. Ellmann.
(b) In any like or related manner interfering with,
restraining or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
Labor-Management Relations Statute:
(a) Fully comply with the August 17, 1990 and June
23, 1992 arbitration awards, including (1) paying environmental
differential pay with interest to affected employees in accordance
with the awards and with law and regulation from November 14, 1989
until August 17, 1990 and from April 12, 1991 until such time as
exposure to potential illness from asbestos has been abated in
accordance with the awards, and (2) paying attorney fees of $9,450.
in accordance with the June 23, 1992 award.
(b) Post at its facilities copies of the attached Notice
on forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by the Director,
and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's
Rules and Regulations, notify the Regional Director of the Chicago
Region, 55 West Monroe, Suite 1150, Chicago, IL 60603, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply herewith.
Issued, Washington, DC, September 22, 1993
GARVIN LEE OLIVER
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to fully comply with the August 17,
1990 and June 23, 1992 final and binding arbi-ration awards of
Arbitrator William M. Ellmann.
WE WILL NOT in any like or related manner interfere with,
restrain or coerce employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations
WE WILL fully comply with the August 17, 1990 and June 23, 1992
arbitration awards, including (1) paying environmental differential
pay with interest to affected employees in accordance with the
awards and with law and regulation from November 14, 1989 until
August 17, 1990 and from April 12, 1991 until such time as exposure
to potential illness from asbestos has been abated in accordance
with the awards, and (2) paying attorney fees of $9,450. in
accordance with the June 23, 1992 award.
Date: _____________________ By: _________________________________
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by any
If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate
directly with the Regional Director of the Federal Labor Relations
Authority, Chicago Region, 55 West Monroe, Suite 1150, Chicago, IL
60603, and whose telephone number is: (312) 353-6306.
1. Allegations that Respondent failed to provide certain information in violation of section 7116(a)(1), (5) and (8) were deleted in view of the parties' resolution of that matter prior to the hearing. (Tr. 11-12).
2. The General Counsel's unopposed motion to correct the transcript is granted; the transcript is corrected as set forth therein. The General Counsel's and the Charging Party's motions to strike Attachments A through N attached to the Respondent's brief are granted in part. Attachment E is received as it is referred to in General Counsel's Exhibit 36. The other attachments are not received. They were not offered at the hearing (see Tr. 5, 66-68), and their possible probative value is substantially outweighed by the undue delay which would be caused by reopening the record for this purpose and to allow the Charging Party an opportunity to respond as requested. See Department of Housing and Urban Development, Region X, Seattle, Washington, 41 FLRA 363 (1991). The requests to strike other portions of Respondent's brief are denied; however, the decision is based only upon facts supported by evidence in the record. See Tr. 5.
3. Respondent's counsel argued that the Agency has paid EDP approximating $12 million and has spent $225,961 in order to process the payments. He claimed that from November 13, 1989 to the date of the hearing another $2.4 million is at stake with an ongoing award of $800,000 yearly. (Tr. 18).
4. If it were deemed necessary to resolve this Statutory issue, I would conclude that section 7116(d) of the Statute did not deprive the Arbitrator of jurisdiction. The unfair labor practice charges filed on October 10, 1991 and January 14, 1992 concerned the issue of Respondent's failure to comply with the August 27, 1990 award, principally by refusing to pay EDP subsequent to November 13, 1989. The June 23, 1992 award involved a matter before the Arbitrator pursuant to his continuing retention of jurisdiction over the grievance filed in 1986. The issues were whether the airborne asbestos hazard has been abated and, if not, the matter of determining damages, that is, the continuing obligation to pay EDP. The issues raised in the ULP are not the same as alleged in the grievance/arbitration procedure and the initial grievance was filed earlier.