[ v34 p82 ]
34:0082(20)AR
The decision of the Authority follows:
34 FLRA NO. 20
U.S. DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS
MEDITERRANEAN REGION
and
OVERSEAS FEDERATION OF TEACHERS
0-AR-1575
DECISION
December 29, 1989
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the
Award of Arbitrator Roger P. Kaplan filed by the Department of
Defense Dependents Schools, Mediterranean Region (DoDDS or the
Agency) under section 7122(a) of the Federal Service Labor -
Management Relations Statute (the Statute) and part 2425 of the
Authority's Rules and Regulations. The Overseas Federation of
Teachers (OFT or the Union) filed an opposition to the Agency's
exceptions.
The grievance alleged that the Agency required teachers to
work at a school when conditions were unsafe and unhealthful. The
Arbitrator sustained the grievance in part and issued an award
which precluded the Agency from requiring teachers to work when
the temperature reached 95 degrees if a health officer determined
that unhealthful conditions were present. The Agency contends
that the award is deficient under section 7122(a) of the Statute
because it interferes with management's right to assign work
under section 7106(a)(2)(B) of the Statute. We find that the
Agency's exceptions provide no basis for finding the award
deficient. Accordingly, the exceptions are denied.
II. Background and Arbitrator's Award
The grievance alleged that the Agency violated the parties'
collective bargaining agreement and Agency regulations by
requiring teachers at the American Elementary School in Athens,
Greece to work in an environment in which noise and heat levels
were unsafe and injurious to the teachers' health. In the absence
of a stipulation of the issue by the parties, the Arbitrator
stated the issue before him as follows:
Did management violate Articles 4, 20 and 22 of the
Collective Bargaining Agreement, North Central Association
Qualitative Standard XI, DS Regulation 4800.1, DOD Instruction
6055.1, AFR 161-35, DS Manual 1200.1 and DSM Manual 1310.1 by
requiring teachers to work at the Athens American Elementary
School when conditions were allegedly unsafe and unhealthful?
If so, what is the appropriate remedy?
Arbitrator's Award at 1.
The Arbitrator determined that Article 22, Section 2 of the
collective bargaining agreement governed the resolution of the
issues presented by the grievance. Arbitrator's Award at 10. That
section provides that employees will not be required to work
under conditions that have been determined to be unhealthful or
unsafe, or in emergency conditions determined unhealthful or
unsafe by the Employer. It also provides that "(e)mergencies may
include extremes of classroom temperature." Id.
The Arbitrator noted that problems with heat during most of
the school year made it necessary for classroom windows to be
left open and, because the school building is located within 35
feet of a heavily travelled roadway, "the noise level is quite
high." Arbitrator's Award at 11. The Arbitrator found that
although the noise decibel level "exceeded the recommended levels
contained in AF Regulation 161-35, it did not exceed the
hazardous noise level." Id. He concluded that "the noise level
experienced by the teachers was not hazardous to their health,"
and, consequently, that the Agency had not violated the
collective bargaining agreement when it required teachers to work in the noise levels that existed at the school. Id.
The Arbitrator recommended that "management take appropriate
action to attempt to alleviate the present noise level
situation." Arbitrator's Award at 12.
With respect to the problem of heat, the Arbitrator noted
the testimony of an Air Force health engineer that "when the
temperature reaches 95 degrees with 60 degrees humidity, a
hazardous condition existed." Arbitrator's Award at 12. The
Arbitrator also noted other evidence which supported the
conclusion that "teachers should not be required to work without
a rest when temperatures reach a level as experienced in August
and September 1987." Id. The Arbitrator found that the evidence
indicated that during those months the temperature in the school
rooms often ranged between 90 and 100 degrees. Arbitrator's Award
at 8. Noting testimony that during periods of intense heat
individuals could experience nausea, fainting, vomiting, heat
stroke, muscle and stomach cramps, the Arbitrator concluded that
"when teachers are required to work in 95 degree heat, an
unhealthy situation is present." Arbitrator's Award at 12.
The Arbitrator noted the Agency's argument that "there is no
responsible health or safety officer who determined that the
conditions were unhealthy." Arbitrator's Award at 13. The
Arbitrator found, however, that although the collective
bargaining agreement "provides that unhealthy conditions in an
emergency situation are determined unilaterally by management,"
management's responsibility in that situation is "subject to an
arbitrary and capricious standard." Id. He concluded that under
the conditions which existed in August and September 1987,
"management had an affirmative obligation to notify the
appropriate health official." Id.
The Arbitrator also found that management could not
"surrender its responsibility" by claiming that the principal of
the school "had no authority to close the school." Arbitrator's
Award at 13. The Arbitrator noted that although the Base
Commander had responsibility for closing the school, there was no
evidence that he was ever notified of the situation at the
school. Id. The Arbitrator also noted that previously management
officials had acted "to get the teachers an early dismissal" and
that there was no evidence explaining their failure to do so in
August and September 1987. Id.
The Arbitrator concluded as follows:
In summary, I find that by requiring teachers to work a
normal school day when temperatures reached 95 degrees,
management violated Article 22, Section 2 of the Agreement.
Although the Agreement provides for unilateral decision-making by
management, that discretion must be exercised in a reasonable and
fair manner. Actions or lack thereof in this case indicated that
management engaged in an arbitrary and capricious manner. The
Agreement was violated because teachers were required to work a
normal school day when emergency conditions resulted in an
unhealthy condition.
Arbitrator's Award at 13-14.
The Arbitrator's award stated that: (1) the Agency violated
the parties' agreement "by requiring teachers to work in an
unhealthful situation because of the extreme heat during the
months of August and September 1987"; (2) the Agency did not
violate the parties' agreement as to the noise levels at the
school; (3) the grievance is sustained in part; (4) the Agency is
"precluded from requiring teachers to work a normal school day
when temperatures reach 95 degrees without assurances from
appropriate health officers" who will be called by the principal
of the school, or a designee, to determine if unhealthful
conditions exist at the school; (5) if "an appropriate health
officer determines that the situation is unhealthful," teachers
"will not be required to work under those existing conditions";
and (6) there was no reason for the Arbitrator to retain
jurisdiction. Arbitrator's Award at 14-15.
III. Positions of the Parties
A. Exceptions
The Agency contends that parts 4 and 5 of the award--under
which teachers would not be required to work if an appropriate
health official determines that conditions are unhealthful--are
contrary to law because they interfere with management's right to
assign work under section 7106(a)(2)(B) of the Statute. The
Agency argues that this portion of the award prevents it from
assigning duties to employees when a health official determines
that certain adverse conditions exist. The Agency also contends
that it does not employ health officials and, "therefore, the
official making the determination (that conditions are
unhealthful) would not even be an agent of the Employer."
Agency's Exceptions at 5.
B. Opposition
The Union contends that the award does not interfere with
management's right to assign work. The Union states that the
Agency "erroneously assumes that the arbitrator's award
absolutely prohibits any work by teachers once the appropriate
health officer determines that the situation is unhealthful."
Union's Opposition at 4 (emphasis in original). The Union
maintains that the award does not: (1) require that teachers be
excused from all work and sent home; or (2) prevent the Agency
from assigning other duties and responsibilities to teachers in
another work environment where no unhealthy situation exists.
According to the Union, "the arbitrator carefully crafted a
remedy to cure the agency's undisputed violation" of the
agreement. Union's Opposition at 4. The Union notes that the
Agency's exceptions do not contest the Arbitrator's finding that
the Agency had an affirmative obligation to notify an appropriate
health official when temperatures reached high levels.
The Union contends that arbitrators have great latitude in
fashioning remedies for violations of a collective bargaining
agreement. The Union asserts that the Arbitrator's enforcement of
Article 22, Section 2 of the parties' agreement did not deny the
Agency the authority to exercise its right to assign work. The
Union also argues that the Authority has held proposals which
provide that employees will not be required to work in
circumstances which have been determined by health and safety
officials to be dangerous to be negotiable. The Union notes that
Occupational Safety and Health Administration regulations--29
C.F.R. 1969.28 and 1960.30--provided "for abating unsafe or
unhealthful working conditions 'upon a determination by the
appropriate agency official or inspector that such a condition
does, in fact, exist.'" Union's Opposition at 7.
Finally, the Union disputes the Agency's contention that the
Agency does not employ health officials. The Union notes that
DoDDS and the military services are subdivisions of the same
agency--the Department of Defense--and states that "appropriate
health officers already exist and are employed by the Department
of the Air Force in Athens, Greece." Union's Opposition at 8. The
Union maintains that nothing prevents the Agency from using the
services of an Air Force health officer to comply with the award.
IV. Discussion
We find that the Arbitrator's award does not violate
management's right to assign work under section 7106(a)(2)(B) of
the Statute. Consequently, we conclude that the Agency has failed
to establish that the Arbitrator's award is deficient under
section 7122(a) of the Statute.
The exercise of management's rights under section 7106 of
the Statute, including management's right to assign work, is
subject to procedures negotiated under section 7106(b)(2).
Negotiable procedures are enforceable through grievance
arbitration. See, for example, Internal Revenue Service,
Cincinnati District Office and The National Treasury Employees
Union, Chapter 9, 24 FLRA 288 (1986).
In American Federation of Government Employees, AFL - CIO,
Local 1625 and Department of the Navy, Naval Air Station, Oceana,
Virginia, 30 FLRA 1105, 1125 (1988) (Provision 6) the Authority
held that procedures which require an agency to comply with
restrictions on particular employee assignments or duties which
are imposed by the agency's own medical authorities are
negotiable. The Authority determined that the right to assign
work does not entitle one portion of an agency to assign duties
to an employee which are inconsistent with those duties which are
found by another portion of the agency to constitute a risk to
the employee's health and safety. The Authority held, therefore,
that an agency can be contractually bound to observe restrictions
on the assignment of duties to an employee which are imposed by
an agency's own medical authorities. 30 FLRA at 1124-25.
In Naval Air Station, Oceana, the Authority stated that
proposals requiring an agency to assign--or not to
assign--particular duties for health and safety reasons will be
examined in order to determine whether the proposals: (1) require
the agency to observe restrictions which have been imposed by the
agency's own medical authorities; or (2) impose restrictions
independent of and/or inconsistent with those of the agency's own
medical authorities. Proposals which require the agency to assign
work consistent with restrictions imposed by its own medical
authorities are negotiable procedures under section 7106(b)(2).
Proposals which impose restrictions that are independent of
and/or inconsistent with restrictions imposed by the agency's own
medical authorities violate the agency's right to assign work
under section 7106(a)(2)(B). The Authority noted that an
agency's medical authorities may include a "medical authority
designated by the agency." 30 FLRA at 1125.
Article 22, Section 2 precludes the Agency from requiring
employees to work "under conditions that have been determined to
be unhealthful or unsafe . . . by the Employer." As interpreted
by the Arbitrator, Article 22, Section 2 of the parties'
agreement: (1) precludes management from requiring employees to
work in emergency conditions which management has determined are
unsafe or unhealthful; (2) provides that unhealthy conditions in
an emergency situation are determined unilaterally by management;
and (3) obligates management to determine whether employees' work
environment is unsafe or unhealthy.
Consistent with the Arbitrator's interpretation, we find
that Article 22, Section 2 obligates management to determine
whether employees' work environment is unsafe or unhealthy and to
observe safety and health restrictions which have been imposed by
the Agency's own officials. The Agency does not contend that the
Arbitrator's award imposes restrictions on the right to assign
work which are independent of and/or inconsistent with
restrictions imposed by the Agency's own officials, and we do not
interpret the award in that manner. Based on the Authority's
decision in Naval Air Station, Oceana, therefore, we conclude
that Article 22, Section 2 is an enforceable procedure under
section 7106(b)(2) of the Statute.
The Agency's contention that DoDDS does not employ a safety
and health official provides no basis for finding the award
deficient. Even if DoDDS does not employ a safety and health
official, we conclude, consistent with Naval Air Station, Oceana,
that DoDDS can designate a safety and health official in the
Agency--for example, the health officer employed by the
Department of the Air Force in Athens, Greece--to make that
determination.
In Overseas Education Association, Inc. and Department of
Defense, Office of Dependents Schools, 22 FLRA 351, 361 (1986),
affirmed as to other matters sub nom. Overseas Education
Association, Inc. v. FLRA, 827 F.2d 814 (D.C. Cir. 1987), the
Authority held that "(t)he fact that Department of Defense
organizations other than DoDDS possess control over a
matter which is the subject of an otherwise negotiable proposal
does not present a basis for finding that proposal
nonnegotiable." Since Article 22, Section 2 is "otherwise
negotiable" within the meaning of Overseas Education Association,
it is enforceable even if its enforcement necessitates action by
a DOD component other than DoDDS.
We find, therefore, consistent with the Authority's decision
in Naval Air Station, Oceana, that the Arbitrator's award does
not improperly restrict management's right to assign work under
section 7106(a)(2)(B) of the Statute. Consequently, the Agency
has failed to demonstrate that the award is deficient under
section 7122(a) of the Statute.
V. Decision
The Agency's exceptions are denied.