[ v55 p797 ]
55 FLRA No. 136
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)
and
NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION
(Union)
0-AR-3073
0-AR-3073-001
_____
DECISION
September 17, 1999
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Cabaniss for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Laurence M. Evans filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition containing cross-exceptions to the Agency's exception, although those cross-exceptions were later withdrawn and are not before the Authority. [n1]
The Arbitrator sustained in part a grievance and awarded asbestos hazardous pay differential (HPD) to certain Air Traffic Control Specialists (ATCS) for the period of time on July 29, 1997, when they worked in the control room of the Boston Air Route Traffic Control Center (Boston ARTCC).
For the following reasons, we conclude that the Agency has established that the award is deficient as contrary to section 7122(a)(1) of the Statute. Accordingly, we sustain the exception that the award is contrary to Agency rule or regulation and set aside the award. As a result of our decision in this case, we note that the supplemental award of attorney fees, to which the Agency also filed exceptions, is now moot. [n2]
II. Background and Arbitrator's Award
A. Background
On March 7, 1994, the Federal Aviation Administration (FAA or Agency) and the National Air Traffic Controllers Association (NATCA or Union) jointly signed an Asbestos Abatement Contingency Plan (Boston CP) in anticipation of future construction projects at the Boston ARTCC. [n3] The Boston CP delineated personnel safety procedures to be activated should release of airborne asbestos fibers occur during an asbestos abatement project. [n4] [ v55 p798 ]
On April 1, 1996, the Agency implemented a new Personnel Management System (PMS) in response to congressional authorization. [n5] With limited exceptions, the Agency carried over previously existing pay processes developed pursuant to Title 5 U.S.C., although adherence to such statutory regulations was no longer mandatory. In particular, the Agency incorporated within its PMS prior regulations governing an 8% asbestos HPD. [n6]
On or about June 9, 1997, the Agency undertook an asbestos abatement project at the Boston ARTCC. On July 29, August 4, and August 5, 1997, air sampling reports reflected elevated fiber counts, including asbestos fibers, in the Air Traffic control room. During this time, the Agency never initiated the Boston CP.
On August 5, 1997, the Agency shut down the project. On August 7, 1997, the Union filed a national grievance against the Agency for a "catastrophic release of asbestos on July 29, 1997 and [a] subsequent conspiratorial cover-up . . . during the succeeding days." Award at 5. The Union's grievance sought redress for ATCS through various remedies, including: baseline medical examinations, career-long medical surveillance, restoration of leave, and hazard pay (HPD). The grievance was not resolved and proceeded to arbitration. Because the parties were unable to agree on a stipulated issue(s), the Arbitrator framed the issues as follows:
Whether, during the first phase of the Boston ARTCC asbestos abatement project -- June 9, 1997, through August 7, 1997 -- FAA violated any national or local agreement with NATCA, any applicable government-wide rule or regulation, any applicable FAA rule or policy, involving the release of and exposure of bargaining unit employees to certain airborne fiber concentrations? If so, what shall the remedy be?
Award at 7.
B. Arbitrator's Award
As relevant to the exception herein, the Arbitrator found that the Agency violated certain provisions of the parties' agreement and the Agency's regulations, including: not adhering to OSHA regulations; not issuing respirators to ATCS; not issuing a timely "stop work" order; and not "mak[ing] every reasonable effort to provide and maintain safe and healthful working conditions." [n7] Award at 17. The Arbitrator denied in part and sustained in part the grievance. [n8]
The Arbitrator was unpersuaded by the Agency's argument that the Agency's regulations, which defined HPD entitlement along parameters established by prior OPM regulations and guidance related thereto, prohibited ATCS from receiving HPD under the circumstances present in this case. Because the HPD entitlement program that the Agency created was based upon mandatory, government-wide law and regulations from which the Agency was now statutorily exempted, the Arbitrator, during the hearing, discussed whether he was, in turn, afforded some greater degree of discretion to determine when HPD might be payable:
The question . . . is whether now that these are not legally binding . . . that they remain in effect as a matter of practice until they're changed, whether that changes the authority of an arbitrator to award this pay. Does it create discretion where none existed before?
In other words . . . whether the administrator would now have the authority to waive these things. If I were to grant award pay, you would appeal on the basis that I had no authority under the regs. The award would be illegal because the hazard pay regs say I can't pay air traffic controllers for asbestos.
Then the argument might end up evolving because of this twist of the reform that the FAA administrator had the power then to waive the obligatory obligations set forth in the hazard pay, and thus conferring that on the arbitrator.
Transcript at 811-12. [ v55 p799 ]
In determining whether to award HPD, the Arbitrator considered the OPM final rule explaining the process by which an agency should determine eligibility for HPD. [n9] Award at 21. The Arbitrator found that based upon calculations presented within the Agency's exhibits, "the OSHA PEL was exceeded on July 29th." [n10] Id. at 19-20. The Arbitrator also found that, under the facts of this case, ATCS did face a significant risk of exposure directly connected with the performance of their assigned duties because the Agency failed to direct ATCS to wear respirators and to remove ATCS from the affected work area as required under the relevant provisions of the Boston CP. [n11] Id. at 21-22. The Arbitrator concluded ATCS continued "out of necessity to perform their assigned (and significant) duties in an environment with a significant risk of exposure to asbestos fibers." Id. at 22.
The Arbitrator further found that because the July 29th risk of exposure to asbestos was for a time weighted average (TWA) of 8 hours, "such exposure cannot reasonably be characterized as `incidental'." Award at 22. The Arbitrator determined "there is no reasonable basis to conclude that this [ATCS] `risk of exposure' was `not directly connected with the performance of [ATCS] assigned duties,' within the contemplation of Appendix A(6)[.]" Id. In reaching this conclusion, the Arbitrator rejected the Agency assertion that "directly connected" under its HPD program did not pertain to asbestos exposure occurring when a private contractor, in the course of removing asbestos, failed to adequately contain the asbestos such that airborne asbestos fibers exceeding OSHA PEL enter the ATCS work area.
The Arbitrator concluded that the Agency committed an unjustified personnel action under the Back Pay Act. Award at 23. The Arbitrator awarded HPD to those ATCS who worked in the control room on July 29, 1997, between 7:40 a.m. and 3:40 p.m. Id. at 22-23.
III. Positions of the Parties
A. Agency's Exception
The Agency asserts that the Arbitrator's award of HPD is deficient under section 7122(a)(1) of the Statute because the Arbitrator's construction of the Agency's HPD regulations contradicts the Agency's interpretation of those regulations, which were modeled after established OPM regulations and guidance pertaining to HPD entitlement government-wide. Exception at 2.
Citing FLRA v. U.S. Department of the Treasury, Financial Management Service, 884 F.2d. 1446, 1454 (D.C. Cir. 1989), the Agency argues that an arbitrator must follow an agency's interpretation of its own rule unless it is erroneous or inconsistent with the plain meaning of the written language. The Agency contends that by incorporating prior existing OPM regulations into the Agency's new PMS, including the related OPM 1995 advisory letter governing HPD, [n12] the Agency clearly intended for those OPM regulations to remain binding until otherwise changed. Exception at 5. According to the Agency, the OPM HPD program, and hence the Agency's HPD program, from the outset, precluded the payment of asbestos HPD to ATCS. Therefore, the Arbitrator's award reflects an incorrect construction of the Agency's HPD regulations. Id. at 6. [ v55 p800 ]
In addition, citing U.S. Department of Justice Federal Bureau of Prisons Medical Facility for Federal Prisons and American Federation of Government Employees, Local 1612, 51 FLRA 1126, 1135-36 (1996)(quoting Nordell v. Heckler, 749 F.2d 47, 48 (D.C. Cir. 1984)), the Agency asserts that its asbestos HPD rule, including its interpretation and application, was a matter of Agency record long before litigation was contemplated. Exception at 4-5. According to the Agency, soon after OPM published its 1993 final rule addressing asbestos HPD, Agency officials sent a memorandum to field personnel advising that HPD should not apply to ATCS. Id. at 5. In 1995, the Agency sought and received a written OPM advisory letter specifically excluding ATCS eligibility for HPD in circumstances similar to what occurred at the Boston ARTCC. Id. And, in 1996, the Agency's newly implemented PMS clearly specified that the prior OPM regulation would be incorporated by reference. Id. Further, although currently operating under its own PMS, the Agency continues to seek interpretative OPM guidance on OPM regulations incorporated within the new system and applies Agency rules according to the guidance received. Id. Consequently, the Agency contends, the Agency interpretations presented at the hearing were not simply a litigation-inspired argument. Id.
B. Union's Opposition
The Union contends the Arbitrator's award of asbestos HPD is proper. Opposition at 4. Citing Social Security Administration, Mid-Atlantic Program Service Center and American Federation of Government Employees, Local 1923, 53 FLRA 956 (1997) (citing U.S. Department of the Air Force Lowry Air Force Base Denver, Colorado and National Federation of Federal Employees Local 1497, 48 FLRA 589, 593 (1993)), the Union asserts the Agency's actual complaint is not with the Arbitrator's interpretation of Agency rule, but rather that the Arbitrator reached the wrong factual conclusion. Opposition at 7.
The Union also cites American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995), and asserts that the Agency's exception challenges arbitral findings, not the Arbitrator's interpretation of a law, rule, or regulation. Opposition at 7. The Union contends the Arbitrator's factual finding was that the release of airborne asbestos fibers at the Boston ARTCC was due to Agency negligence, rather than being "accidental," or "incidental." [n13] Id. at 5. Therefore, according to the Union, the Arbitrator correctly determined that the language of the Agency rule is not applicable to the facts in this case. Id.
In addition, the Union contends the plain language of the Agency memorandum interpreting the 1993 OPM final rule, upon which the Agency relies, supports permissive exclusion of ATCS from receipt of HPD rather than mandatory exclusion. [n14] Opposition at 5. According to the Union, the Arbitrator correctly determined that the OPM regulation in question provided for the award of HPD when the concentration of airborne asbestos fibers was or was likely to exceed OSHA PEL in the work area, thereby subjecting ATCS to a significant risk of exposure. Id. The Union points to the Arbitrator's express findings that (1) ATCS were exposed to asbestos fiber concentrations in excess of OSHA PEL on July 29, 1997; and (2) ATCS were not capable of performing their duties outside the Air Traffic control room, and, as such, were necessarily subject to significant risk of exposure. Id. at 5-6. Therefore, the Union contends that since the Arbitrator's findings were grounded in fact rather than interpretation of law, the Arbitrator reached the proper result in awarding HPD. Id. at 7. [ v55 p801 ]
IV. Analysis
A. The Award of Hazard Pay Differential is Deficient Under Section 7122(a)(1) of the Statute Because it is Contrary to Agency Rule or Regulation
As a preliminary matter, the parties are not challenging the relevancy of OPM's interpretation of the 5 C.F.R. provisions at issue, to the interpretation of the Agency's asbestos HPD program. Thus, in assessing the meaning and interpretation of the Agency's HPD program, in the present case, we may look to OPM's guidance on its own regulations, in ascertaining the parameters of HPD entitlement.
Where an exception involves the award's consistency with law, the Authority reviews the questions of law raised by the Arbitrator's award and the exception de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research Development and Engineering Center, 53 FLRA 1703, 1710 (1998) (U.S. Department of the Army). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Under section 7122(a)(1) of the Statute, an arbitration award will be found deficient if it is contrary to any law, rule or regulation. For purposes of section 7122(a)(1), the Authority has defined "rule or regulation" to include both Government-wide and governing agency rules and regulations. See National Air Traffic Controllers Association and U.S. Department of Transportation, Federal Aviation Administration, 54 FLRA 1354, 1359 (1998) (citing U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 192 (1990)).
When defining the "applicable standard of law" to be applied in a de novo review of an alleged conflict with an agency regulation, it is sometimes necessary to engage in an interpretation of that agency regulation involved. It is well established that arbitrators have authority to interpret and enforce agency regulations. See American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Command, Tinker Air Force Base, Oklahoma, 47 FLRA 735, 740 (1993). An agency's interpretation of its own regulation generally is controlling unless clearly erroneous or inconsistent with the regulation's plain wording. Panama Canal Commission and Maritime Metal Trades Council, 52 FLRA 404, 410 (1996) (citing FLRA v. U.S. Department of the Treasury, Financial Management Service, 884 F.2d 1446, 1454 (D.C. Cir. 1989) cert. denied, 493 U.S. 1055 (1990)). Recognizing that courts do not automatically defer to all agency counsel litigation positions, however, care must be taken to distinguish a long-standing or formally promulgated regulatory interpretation from an interpretation advanced for the first time in litigation. U.S. Department of Justice, Federal Bureau of Prisons, Medical Facility for Federal Prisons, and American Federation of Government Employees, Local 1612, 51 FLRA 1126, 1135-36 (1996)(quoting Nordell v. Heckler, 749 F.2d 47, 48 (D.C. Cir. 1984)).
Part II of the Agency's PMS provides, in relevant part, that: "[a]lthough Section 347(b) exempts the new [PMS] from substantially all of Title 5, FAA has the discretion to adopt the substance of any portion of Title 5 as deemed appropriate." Exception at Attachment 9. Moreover, Chapter II, section 1(b) of the PMS, addressing compensation and benefits, states: "[Except as otherwise noted] from April 1, 1996 until September 30, 1997, the personnel compensation and benefits of all FAA employees shall continue to be determined in accordance with the standards and procedures that were in effect on March 31, 1996." Id. And, Part IV of the PMS provides: "FAA reserves the right to modify, add to, or delete any portion of this [PMS], either in whole or in part, as deemed appropriate by the Administrator." Id.
Here, the Agency explicitly carried over the previous OPM HPD regulations that the Agency had applied since 1993. Rather than being congressionally mandated to follow these OPM regulations, the Agency Administrator bound the Agency through the provisions of the new PMS, in this case, from at least April 1, 1996 to September 30, 1997. Nothing else changed.
There are many prerequisites to HPD entitlement under the OPM regulations that the Agency continued to rely upon for its HPD program. See, e.g., U.S. Department of the Army, Alaska and American Federation of Government Employees, Local 1834, 54 FLRA 1117, 1122 (1998); and 5 C.F.R. Part 550, Subpart I. Here, however, the Agency's exception addresses only the Arbitrator's finding that the ATCS' exposure to asbestos was "directly connected" with the performance of their assigned duties. This direct connection requirement in the Agency's HPD program derives from 5 C.F.R. Part 550, Subpart I, Appendix A(6). The direct connection requirement also was the subject of a 1995 [ v55 p802 ] OPM advisory opinion, which provided that ATCS exposure to asbestos, as a result of contractor problems in removing the asbestos from the workplace, would not fulfill the regulatory direct connection requirement for HPD.
The Arbitrator analyzed his factual findings in light of his interpretation of 5 C.F.R. 550, Part 550, Subpart I, Appendix A(6). Because the ATCS could not perform their duties outside the contaminated control room and the Agency neither issued respirators nor evacuated the control room, the Arbitrator found the ATCS' risk of exposure was directly connected with the performance of their assigned duties. Award at 21-22. As a result, the Arbitrator added a third situation in which ATCS could be determined eligible to receive HPD:
(1) an ATCS would be assigned to work regularly with asbestos as part of his/her assigned duties; (2) an ATCS would be assigned to work with asbestos on an occasional basis, such as assisting somehow in an asbestos removal assignment; and (3) in circumstances like those present in the Boston ARTCC on July 29th where the 8 hour TWA OSHA PEL was exceeded, where the FAA made no attempt to protect the exposed bargaining unit workers with respirators, where the exposed workers were not removed from the "area or circumstances," and where the exposed workers continued out of necessity to perform their assigned (and significant) duties in an environment with a significant risk of exposure to asbestos fibers. [Emphasis added]
Award at 21-22. In reaching this conclusion, the Arbitrator did not explain why he did not address the Agency's express interpretation of its HPD regulation, to the effect that the "directly connected" requirement was not met when ATCS performing their work were exposed to asbestos fibers exceeding OSHA PEL by virtue of a contractor failing to adequately contain asbestos during its removal.
The Arbitrator's rationale, that the congressional exemption from prior mandatory regulations gave the Agency interpretative discretion regarding the regulation's continued application, which could be imputed to the Arbitrator, is not persuasive. The standard of deference due an agency's interpretation of its own regulation is the same whether the agency's regulation is externally mandated or internally selected. Where the interpretation is not clearly erroneous or inconsistent with the regulation, we will defer to the agency.
It is, then, adherence to this standard that leads to our conclusion that, given the facts of this case, there is no basis upon which to conclude that the factual distinction argued by the Union (regarding the application of the Agency's HPD regulation) is relevant in light of the Agency's interpretation of its HPD regulation. Specifically, the direct connection between employees' exposure to asbestos and the performance of their assigned duties, required by the Agency's interpretation of its regulation, is not present. Therefore, the distinction drawn by the Union, between negligent and accidental or incidental releases of asbestos, is not relevant. We note that this is not to say that an agency's interpretation is necessarily always the best or most reasonable interpretation. As is the case with the federal courts, however, "[o]ur task is not to decide which among several competing interpretations best serves the regulatory purpose . . . the agency's interpretation must be given `controlling weight unless it is plainly erroneous or inconsistent with the regulation.'" Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994).
Here, the Agency's interpretation of its regulations is neither plainly erroneous nor inconsistent with the underlying regulation. Moreover, the record does not reflect that the Agency's interpretation of its regulation was promulgated in the context of this litigation. Rather, the interpretation appears to have been public since at least 1993 and, further, appears to reflect the views of the Agency head. Therefore, we defer to the Agency's interpretation of its regulation. Because the Arbitrator's award is inconsistent with the Agency's interpretation of its own regulation, we find the Arbitrator's award deficient under section 7122(a)(1) of the Statute. Accordingly, we sustain the Agency's exception.
B. The Supplemental Award of Attorney Fees is Moot
Based upon our decision that the underlying award is deficient, there is no basis for the supplemental award of attorney fees.
The payment of attorney fees can only be made pursuant to specific statutory authorization. See Laborers' International Union of North America, Local 1376 and U.S. Department of Health and Human Services, Public Health Service, Navajo Area Indian Health Service, 54 FLRA 700, 704 (1998). Attorney fees can be awarded under the Back Pay Act only in conjunction with an award of backpay, allowances, or differentials. See e.g., Health Care Financing Administration, Department of Health and Human Services and American Federation of Government Employees, Local 1923, [ v55 p803 ] 35 FLRA 274, 290 (1990). In this case, because we set aside the Arbitrator's award of hazard pay differentials, there is no basis for consideration of attorney fees under the Back Pay Act. Additionally, as neither the Arbitrator nor the parties offered any statutory authorization to support an award of attorney fees where the underlying merits award has been set aside, we decline to consider further the supplemental award of attorney fees.
V. Decision
The Agency's exception is sustained. The Arbitrator's award, as it relates to Hazard Pay Differential, is set aside. The remainder of the underlying award, ordering medical exams, will remain intact, since the Agency did not except to the Arbitrator's finding and resulting remedy.
Given the decision on the underlying award, there no longer remains a basis for the Arbitrator's supplemental award of attorney fees. Therefore, the supplemental award is set aside.
APPENDIX
Applicable Contract Provisions
Article 53--Occupational Safety and Health
Section 1. The Employer shall abide by P.L. 91-596 and Executive Order 12196, concerning occupational safety and health, the regulations of the Assistant Secretary of Labor for Occupational Safety and Health and such other regulations as may be promulgated by appropriate authority.
Section 2. The Employer shall make every reasonable effort to provide and maintain safe and healthful working conditions. Factors to be considered include, but are not limited to, proper heating, air conditioning, ventilation, air quality, lighting, and water quality.
Section 9. In the event of construction or remodeling within a facility, the Employer shall insure proper safeguards are maintained to prevent injury to bargaining unit employees.
August 27, 1992, Memorandum of Agreement
5. Air monitoring shall be conducted by the Agency around the clock during construction that may cause the release of airborne asbestos fibers. Phase Contract Microscopy (PCM) testing will be conducted by an accredited laboratory after samples are collected. All data and reports from the laboratory will be shared with NATCA as soon as they are received.
6. Powered air purifying respirators will be maintained in serviceable condition at each center . . . . The Agency will make every effort to ensure a safe working environment so as to preclude the need to use this equipment. However, in the event of a sudden release of airborne asbestos fibers, or, if Agency-conducted air monitoring indicates fiber levels can reasonably be expected to meet or exceed the OSHA action level, essential employees in affected occupied spaces will be directed to wear respirators. . . . A determination to evacuate employees will be based on Agency-conducted air monitoring levels that meet or exceed the OSHA action level.
9. The Agency recognizes its obligation to comply with the requirements of 29 C.F.R. 1910 in connection with all facets of asbestos abatement operations at the Centers.
5 U.S.C. § 5545 Night, standby, irregular, and hazardous duty differential, provides, in pertinent part, as follows:
(d) The Office shall establish a schedule or schedulesof pay differentials for duty involving unusual physical hardship or hazard. . . .
(1) does not apply to an employee in a positionthe classification of which takes into account the degree of physical hardship or hazard involved in the [ v55 p804 ] performance of the duties thereof, except in such circumstances as the Office may by regulation prescribe; and
(2) may not exceed an amount equal to 25 percentof the rate of basic pay applicable to the employee.
5 C.F.R. § 550.902 Definitions provides, in pertinent part, as follows:
Duty involving physical hardship means duty that may not in itself be hazardous, but causes extreme physical discomfort or distress and is not adequately alleviated by protective or mechanical devices, such as duty involving exposure to extreme temperatures for a long period of time, arduous physical exertion, or exposure to fumes, dust, or noise that causes nausea, skin, eye, ear, or nose irritation.
. . . .
Hazardous duty means duty performed under circumstances in which an accident could result in serious injury or death[.]
. . . .
Hazard pay differential means additional pay for the performance of hazardous duty . . . .
5 C.F.R. § 550.904 Authorization of hazard pay differential provides, in pertinent part, as follows:
(a) An agency shall pay the [HPD] listed in appendix A . . . to an employee who is assigned to and performs any duty specified in appendix A . . . . However [HPD] may not be paid to an employee when the hazardous duty or physical hardship has been taken into account in the classification of his or her position, without regard to whether the hazardous duty or physical hardship is grade controlling . . . .
5 C.F.R. § 550.905 Payment of hazard pay differential provides, in pertinent part, as follows:
When an employee performs duty for which hazard pay differential is authorized, the agency shall pay the hazard pay differential for the hours in a pay status on the day (a calendar day or a 24-hour period, when designated by the agency) on which the duty is performed. . . .
Footnote # 1 for 55 FLRA No. 136
Exceptions within an opposition are considered only if filed within the time limit (30 days from service of award) for exceptions. American Federation of Government Employees, Local 12 and United States Department of Labor, 32 FLRA 771 (1988). As the Union's cross-exceptions were filed after 30 days after the award, the Authority issued a "Show Cause" order. In response, the Union withdrew its cross-exceptions.
Footnote # 2 for 55 FLRA No. 136
The supplemental award of attorney fees is docketed as 0- AR-3073-001.
Footnote # 3 for 55 FLRA No. 136
The Boston CP cited the parties' August 27, 1992, National Memorandum of Agreement (MOA) establishing acceptable asbestos exposure levels based upon Occupational Safety and Health Administration (OSHA) regulations. Boston CP at 1, Attachment 3 to Union's Cross Exceptions and Opposition. Section 3 of the Boston CP provides:
The [NATCA/FAA MOA] paragraph 6, requires essential employees in affected occupied spaces be directed to wear powered air purifying respirators when agency conducted air monitoring indicates fiber levels can reasonably be expected to meet or exceed the OSHA action level. In addition . . . the MOA requires that nonessential employees be removed from affected occupied spaces. [OSHA] has defined 0.2 f/cc [fibers per cubic centimeter] as the permissible exposure limit; therefore, the action level is one-half of the fiber count to which personnel can be safely exposed.
Boston CP at 1.
Section 4(a)(12) of the Boston CP expressly defines the OSHA action level as "0.1 f/cc per eight hours." Id. at 3. The Arbitrator recognized that in 1994, OSHA eliminated the phrase "action level" from its regulations and lowered the PEL from 0.2 f/cc to 0.1 f/cc. The Arbitrator found that this change had no impact on the Boston CP. Award at 7, n.10.
Footnote # 4 for 55 FLRA No. 136
According to the Boston CP, asbestos abatement work would stop if fiber count measurements reflected 0.01 f/cc Above Baseline Level (ABL) ("Baseline" represents the ambient air conditions prior to beginning a construction project). Boston CP at 2. At 0.035 f/cc ABL the Air Traffic Control Sector Manager would reduce air traffic and revert staff to midnight sector configuration. Non-essential employees would be evacuated and essential employees would be required to wear respirators. Id. at 3. At 0.1 f/cc ABL the control room would be evacuated. Id. at 6. And, personnel would not return to their work area until clean-up actions resulted in a fiber count below 0.035 f/cc ABL. Id. at 7. In addition, "[a]fter any incident where respiratory protection was utilized . . . all potentially exposed individuals [will have] the opportunity for an asbestos related medical exam at no cost." Id.
Footnote # 5 for 55 FLRA No. 136
Footnote # 6 for 55 FLRA No. 136
The regulations implementing 5 U.S.C. § 5545(d) (governing pay differentials for GS employees for duties involving asbestos), are contained in 5 C.F.R. Part 550, Subpart I. 58 Fed. Reg. 32,048, (1993). Appendix A sets forth the following criteria for eligibility for asbestos HPD:
Exposure to Hazardous Agents, work with or in close proximity to:
(6)Asbestos. Significant risk of exposure to airborne concentrations of asbestos fibers in excess of the permissible exposure limits (PELS) in the standard for asbestos provided in title 29, [C.F.R., sections] 1910.1001 or 1926.58, when the risk of exposure is directly connected with the performance of assigned duties. . . . [Emphasis added]
Id. at 32,051.
Footnote # 7 for 55 FLRA No. 136
See Appendix to this memorandum for the specific Boston CP provisions the Arbitrator found the Agency violated.
Footnote # 8 for 55 FLRA No. 136
The Arbitrator found that ATCS who worked in the Boston ARTCC control room on July 29, 1997, and August 4 through August 7, 1997, were entitled to medical exams. Award at 18-19. The Agency did not except to this finding. Exception at 2. In addition, the Arbitrator denied ATCS entitlement to medical surveillance and restoration of leave. Id. at 15, 18, 22.
Footnote # 9 for 55 FLRA No. 136
As stated by the Arbitrator, the OPM explanation, 58 Fed. Reg. at 32,049, provided:
[a]n agency's determination . . . must be a two-part determination. First it must determine that airborne concentrations of asbestos fibers are (or are likely to be) in excess of the OSHA PEL standard in the employee's work environment. Second, it must determine that a given employee is subject to a significant risk of exposure to such concentrations. While the former determination is quantifiable . . . the latter. . . usually is not quantifiable. . . . [A]n agency should take into account the availability of protective devices or safety measures that may reduce or eliminate the risk of exposure. Furthermore . . . [HPD] is payable only "when the risk of exposure is directly connected with the performance of assigned duties". . . . Employees whose assigned work is not directly connected with the risk of exposure and who might be incidentally exposed to the hazard should be removed from the area or circumstances present[ing] the hazard. [Emphasis added]
Award at 21.
Footnote # 10 for 55 FLRA No. 136
As a result of discrepancies between the Agency and Union experts, the Arbitrator discounted the testimony of both and relied upon an Agency memorandum analyzing the air sampling data. The memorandum stated, in pertinent part: "[On July 29, 1997] [t]he TWA calculation . . . is almost exactly .1 f/cc over the 8 hour day." Award at 19-20.
Footnote # 11 for 55 FLRA No. 136
The OPM final rule provides: "If the PEL is exceeded, there is a significant risk of material health impairment." 58 Fed. Reg. at 32,049.
Footnote # 12 for 55 FLRA No. 136
The OPM advisory letter specified, in pertinent part: "[e]mployees who are accidentally exposed to asbestos under circumstances not directly connected with the performance of their normal duties are not eligible to receive a hazard pay differential." The letter further specified: "[exposure] to airborne asbestos fibers as a result of a contractor removing the asbestos . . . without properly containing the area" would not result in ATCS receiving HPD "because the risk of exposure would not be directly connected with the performance of their assigned duties." The letter concluded: "[I]f [ATCS] suffer work-related exposure to asbestos and believe harm has occurred, they may file workers' compensation claims with the Office of Workers' Compensation Programs of the U.S. Department of Labor." Exception at Attachment 8 at 1.
Footnote # 13 for 55 FLRA No. 136
The OPM final rule clarifies that "[e]mployees whose assigned work is not directly connected with the risk of exposure and who might be incidentally exposed . . . should be removed from the area . . . ." [Emphasis added] See supra note 11. The OPM advisory letter to the Agency used the word accidentally to describe employee exposure while performing normal duties, that do not include working with asbestos. [Emphasis added] See supra note 9.
Footnote # 14 for 55 FLRA No. 136
A June 28, 1993, Agency memorandum announcing the OPM final rule on asbestos HPD differential advises Agency compensation managers:
[T]he final rule incorporates . . . "significant risk" of exposure to airborne . . . asbestos fibers. This requires that the risk of exposure be directly connected with the performance of assigned duties.
Employees whose assigned work is not [emphasis in original] directly connected with the risk of exposure and who might be incidentally exposed to the hazard should be removed from the area or circumstances presenting the hazard. This additional requirement should exclude air traffic controllers from receiving hazard pay. [Emphasis added]
Exception at Attachment 6.