[ v40 p160 ]
40:0160(17)AR
The decision of the Authority follows:
40 FLRA No. 17
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the supplemental award of Arbitrator William M. Ellmann 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 Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
In his award, the Arbitrator resolved an issue jointly submitted by the parties concerning the coverage of the remedy granted in two prior awards. The Arbitrator directed the Agency to pay backpay for environmental differential pay (EDP) for exposure to asbestos to all wage grade employees represented by the Union, including temporary employees. The Agency claims in its exceptions that the award of EDP can only apply to 65 employees who were mentioned in the initial award. For the following reasons, we conclude that the Agency has failed to establish that the Arbitrator's supplemental award is deficient on the ground that it grants relief to employees other than the 65 employees mentioned in the initial award. As to the coverage of temporary employees, we find that that is a matter relating to a clarification of unit petition pending in the Authority's Chicago Regional Office. The parties are directed to hold that portion of the grievance in abeyance pending the clarification of unit decision.
II. Background and Arbitrator's Award
On April 7, 1987, the Arbitrator issued an award to resolve a grievance over entitlement of Medical Center employees to EDP for exposure to asbestos. The Arbitrator discussed the positions of the parties and noted management's contention that "[t]he grievance covers some eighty workers (later reduced verbally to 65)." Initial Award at 6. Regarding the Union's contentions, the Arbitrator stated:
The Union has characterized the exposure and hours of each man to be paid in the following manner
Electrical shop 8
Pipe shop 8
Paint shop 5.5
A/C shop 8
Building maintenance 6.5
Misc[.] unit 3
Warehouse 8
General warehouse 8
Delivery personnel (warehouse) 5
Boiler plant 8
Biomedical engineering 8
Id. at 9-9A.
The Arbitrator made the following award:
I award the [U]nion and its members individually EDP and charge management and the [U]nion with determining the damage since 1978. If any dispute arises over the payment, I will hear those claims. I further charge management with 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. [The parties] shall keep me informed of progress.
Id. at 12.
The Agency filed exceptions to the Arbitrator's initial award alleging that the award was contrary to law and that the Arbitrator exceeded his authority by making backpay retroactive to 1978. The Agency stated in its exceptions: "The grievants are sixty-five (65) Engineering Service and warehouse employees who are seeking environmental differential pay (EDP) because of exposure to airborne asbestos fibers." Exceptions to Initial Award at 1. The Agency excepted to the Arbitrator's finding that any exposure at all to asbestos was sufficient to meet the EDP requirements contained in Federal Personnel Manual (FPM) Supplement 532-1, Appendix J. In Allen Park Veterans Administration Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 28 FLRA 1166 (1987), the Authority remanded the case to the parties to request the Arbitrator to clarify his award to address fully whether the requirements for the payment of EDP for exposure to asbestos contained in Category 16 of Appendix J of the FPM were met.
In the award of June 18, 1988, issued following the Authority's remand, the Arbitrator stated that the issue before him was "whether wage grade employees represented by Local 933 are entitled to Environmental Differential Pay because of exposure to asbestos at this Veterans facility." Remand Award at 15. The Arbitrator found that the presence of airborne asbestos at the Medical Center may have exposed employees to potential illness or injury during the period in question. He also found that the Medical Center had not eliminated the potential for illness by use of protective devices and safety measures. The Arbitrator made the following findings and award:
I find that all wage-grade employees represented by Local 933 have been exposed even according to the facility's incomplete documentation. I must take the [U]nion's documents as true in that they have not [been] refuted.
While EDP liability can be ended by providing protective devices or instituting safety measures, the facility has not provided such devices or instituted any significant safety measures.
That the facility has delayed over an extended period to fashion a remedy to this problem. Its compliance was belated. The first air sampling was late. Respirators were not ordered until mid-1982, and I find no record before me that the facility has hired a certified instructor. The record is barren in this respect.
I, therefore, find that protective devices and safety measures have not removed and have not practically eliminated the potential for illness or injury.
AWARD I find for many reasons that the amounts of airborne asbestos present at this facility since July 26, 1978 have been at levels which may have exposed Local 933 represented wage grade employees to potential illness or injury. I find that the members of Local 933 are entitled to EDP since 1978. The government cannot hide its liability in constructive inaction over the years.
I further find that the employees are entitled to interest and attorneys fees pursuant to 5 U.S.C. § 5596, and further the provisions of 5 U.S.C. § 5596 apply to grievants seeking EDP.
Jurisdiction is maintained.
Remand Award at 20-21.
The Agency filed exceptions to the remand award asserting that the award was contrary to law and to the Authority's instructions on remand because the Arbitrator ordered payment of EDP to employees for exposure to asbestos in any amount. The Agency also alleged that the award of attorney fees and interest on backpay was contrary to law. In Allen Park Veterans Administration Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091 (1990), the Authority set aside the award of attorney fees without prejudice to a future request by the Union and denied the Agency's remaining exceptions.
Following denial by the Authority of the Agency's exceptions to the remand award, the parties disagreed over which individual employees were entitled to backpay under the award. The Union asserted to the Agency that the remand award covered all wage grade employees employed at the Medical Center at any time between July 28, 1978 and the present. The Union further stated to the Agency that "the categories of wage grade employees include Engineering, Warehouse, Building Management, Dietetics-Kitchen and Laundry" and "[a]s all wage grade employees are, in essence, assigned to one or the other of these departments, all are covered by this Award." Exceptions, Appendix F at 2 (April 2, 1990 letter from Union to Agency). The Union also asserted that the award covered all former employees and temporary employees. The Agency disagreed with the Union and maintained that the award should apply only to "the 65 Engineering and Warehouse employees identified as grievants in this matter." Exceptions, Appendix G at 2 (May 24, 1990 letter from Agency to Union).
The parties jointly requested the Arbitrator to issue a supplemental opinion on the "fundamental issue [which] remains as to who is covered." Supplemental Award at 1. In addition to the differing claims as to whether the award covered all wage grade employees or only the 65 engineering and warehouse employees claimed by the Agency, the parties also presented other issues related to coverage. The Agency contended that temporary employees were not covered. The Union claimed that in addition to all present wage grade employees, the award covered former wage grade employees, part-time, intermittent, detailed and temporary employees. The Union also claimed that backpay and interest should be identified and paid separately and that EDP would continue to accrue until asbestos is abated. The parties agreed on other points on which they had differed previously.
The Arbitrator agreed with the Union that the award covered all wage grade employees and that the groups covered "would include current engineering, warehouse, building management (including laundry) and dietetics-kitchen employees." Id. at 10. The Arbitrator noted the Union's argument that the Agency did not file exceptions to the Arbitrator's ruling in his previous award that the award covered all Union-represented employees and he stated: "At no point do I recall condoning the VA's 65 person argument." Id. The Arbitrator also found that the grievance covered temporary employees "since they are covered by the master agreement and FPM Supplement 532-1." Id. at 11. The Arbitrator made the following award:
[1.] 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 their tour (part-time, intermittent, 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 exposure).
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 the VA Medical Center.
4. That EDP is to be paid for premium pay previously issued for overtime, holiday and Sunday work and also presently and in the future for premium work.
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 on days on which work was also performed and documentation concerning the effect of EDP on each employee's retirement and pension contributions and accounts.
6. I retain jurisdiction.
Id. at 12-13.
III. First Exception
A. Positions of the Parties
1. The Agency
The Agency asserts that the Arbitrator exceeded his authority by awarding a backpay remedy to persons who were not included in the grievance which led to the supplemental award. The Agency contends that the initial award "established that the employees involved in the grievance were some 65 (originally 80) wage-grade employees in Engineering Service and the Warehouse." Exceptions at 5. The Agency relies on a number of documents filed in connection with the initial arbitration proceeding, including (1) the Union's September 2, 1986 third-step grievance, (2) the Union's post-hearing brief on remand, (3) a third-step grievance dated July 26, 1984 that led to the September 2, 1986 grievance, (4) the Authority decisions in 28 FLRA 1166 and 34 FLRA 1091 which referred to 65 grievants, and (5) the Agency's post hearing briefs and exceptions in the original and the remand proceedings.
The Agency asserts that the Union never challenged the Agency's claim that the grievance covered 65 grievants until the discussions concerning the implementation of the award. The Agency contends that "the [A]rbitrator lacked authority to construe the remand award so as to expand the employees affected by the remedy, or to convert the grievance to a class action." Id. at 7. The Agency cites Robins Air Force Base, Warner Robins Georgia and American Federation of Government Employees, AFL-CIO, Local 987, 18 FLRA 899 (1985) (Robins AFB) and other Authority decisions in support of its contention that the Arbitrator could not expand the scope of the remand award to cover employees other than the 65 alleged original grievants.
The Agency disagrees with the Arbitrator's statement "that the earlier awards did not determine the employees involved in this grievance." Id. at 9. The Agency claims that the initial award covered 65 employees and became final and binding as to scope because the Union failed to file exceptions on that point.
2. The Union
The Union contends that the grievance submitted on September 2, 1986 "sought EDP for all wage grade employees represented by Local 933 who had been exposed to asbestos." Opposition at 1. The Union states that subsequent to the Authority's decision in 34 FLRA 1091, a dispute arose over implementation of the Arbitrator's remand award and, specifically, whether the award "covered all Local 933 represented wage grade employees at the Allen Park Medical Center[,]" or whether the award covered only 65 employees as argued by the Agency. Id. at 7.
The Union maintains that the Agency has failed to establish that the Arbitrator's award is contrary to law, rule or regulation or that the award fails to draw its essence from the collective bargaining agreement. The Union contends that the Agency is asking the Authority to relitigate matters already decided by the Arbitrator. The Union maintains that the Arbitrator correctly granted relief to all employees represented by the Union and that "the record overwhelmingly supports the Arbitrator's fact finding and contract construction on this issue." Id. at 11. The Union contends that the grievance filed on September 2, 1986 "expressly stated the its subject was 'Third Step Grievance on Behalf of Wage Grade Employees Concerning Payment of Environmental Differential Pay for Those Employees Who Have Been Exposed to Asbestos[,]" and asserts that the first paragraph of the grievance states that the grievance was "filed on behalf of all wage grade employees who have been exposed to asbestos or who have been forced to take annual asbestos exams." Id. at 12, emphasis deleted. The Union maintains that its position is supported by additional documents and materials contained in the record.
The Union contends that the Arbitrator properly ruled that the Union could file a grievance in its own name on behalf of employees "without identifying individual grievants" and that the Arbitrator "had full authority to recognize the broad scope of the grievance" and to grant the relief requested. Id. at 13-14. The Union maintains that the Agency has always been on notice of the scope of the grievance and that arguments made during the course of the arbitration concerned all employees represented by Local 933. The Union asserts that the VA had presented documents that "conceded that more than 65 employees had been exposed to asbestos." Id. at 16. The Union maintains that the Arbitrator considered and rejected the Agency's claim that the grievance covered only 65 employees. The Union asserts that it has always considered the grievance to cover all wage grade employees.
The Union denies that the Arbitrator exceeded his authority and contends that the Arbitrator properly acted within his retained jurisdiction to decide the claims of employees covered by the award. The Union further points out that the Agency has accepted the Arbitrator's retained authority by agreeing to submit the implementation dispute to the Arbitrator. The Union contends that the supplemental award confirms that the initial award and the remand award applied to all employees represented by the Union.
The Union asserts that the Agency's exceptions contain materials which were not part of the record before the Arbitrator and should not be considered. The Union also asserts that the Agency's exceptions to the coverage of the award are untimely because those arguments were never raised in connection with the initial and remand awards.
B. Analysis and Conclusions
We conclude that the Agency has failed to establish that the Arbitrator exceeded his authority when he issued a supplemental award in which he held that the award of backpay for EDP in his initial and remand awards applied to all wage grade employees represented by the Union.
An arbitrator exceeds his or her authority when he or she issues an affirmative order that goes beyond the scope of the matter submitted to arbitration or when he or she awards relief to persons who did not file a grievance on their own behalf or who did not have the union file grievances for them. See, for example, U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 38 FLRA 232 (1990) (VAMC Leavenworth), request for reconsideration denied 39 FLRA No. 100 (1991) (arbitrator did not exceed authority by ruling that bargaining unit employees of adjacent activities to a medical center were covered by award). An arbitrator may, in certain circumstances, also exceed his or her authority by failing to confine his or her remedy to unit employees. See General Services Administration, Region VII, Fort Worth, Texas and American Federation of Government Employees, Council 236, 35 FLRA 1259, 1265-66 (1990) (arbitrator exceeded his authority to the extent he directed agency to allow nonunit employees who were smokers access to designated smoking areas on other floors).
The issue before the Arbitrator in the supplemental award concerned the scope of the initial and remand awards, particularly which employees were covered. The Arbitrator addressed that issue and there is no basis for finding that the Arbitrator exceeded his authority by rendering an award which went beyond the scope of the matter submitted to arbitration. See, for example, United States Army, Academy of Health Sciences, Fort Sam Houston, Texas and National Federation of Federal Employees, Local No. 28, 34 FLRA 598, 600 (1990) (arbitrator exceeded authority by directing the agency to rescind a form which applied to all employees and which was not at issue in the arbitration).
The Agency also has failed to show that the Arbitrator exceeded his authority by awarding relief to persons not included in the grievance. Examination of the record in this case discloses that the precise number or identity of the grievants in the original grievance was never specified. The Agency referred to 65 employees in its arguments to the Arbitrator and the Arbitrator mentioned that number in his summary of the Agency's position. See Initial Award at 6. However, there is nothing in the Arbitrator's initial and remand awards to indicate that he considered the grievance to cover only 65 employees. To the contrary, the Arbitrator stated in the supplemental award that he had never condoned the Agency's claim that there were 65 grievants. See Supplemental Award at 10. In the initial award, the Arbitrator clearly granted relief on a broader basis than 65 employees by awarding "the Union and its members individually EDP." Initial Award at 6. Later, in the remand award, the Arbitrator reiterated that he had previously "awarded the Union and its members individually EDP" and stated that his initial award granted EDP to "Local 933 and all Local 933 represented employees exposed to asbestos." Remand Award at 2, 14. The Arbitrator also stated in the remand award that "[t]he issue is whether wage grade employees represented by Local 933 are entitled to Environmental Differential Pay because of exposure to asbestos at this Veterans facility." Id. at 15. Finally, in the remand award, the Arbitrator found that the levels of airborne asbestos present "may have exposed Local 933 represented wage grade employees to potential illness or injury[,]" and he found "that the members of Local 933 are entitled to EDP since 1978." Id. at 20.
Further, the grievance itself does not conclusively identify the grievants. The grievance letter dated September 2, 1986 refers to "all Wage Grade employees who have been exposed to asbestos or have been forced to take 'annual asbestos exams.'" See Exceptions, Exhibit 1 at 1. The grievance also requests that EDP "be paid to all those Wage Grade employees of the named Engineering Units and Warehouse . . . ." Id. Attached to the grievance letter in Agency Exhibit 1 are a number of documents listing names and exposure times of individual employees and of various work units. However, the coverage of the grievance is not explicitly defined in any of these documents and would require a factual analysis to resolve. That was precisely the issue before the Arbitrator in the supplemental proceeding.
The issue of coverage of the award did not arise until the parties attempted to implement the remand award. 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. See Social Security Administration and American Federation of Government Employees, Local 2639, 34 FLRA 866, 870 (1990). Further, the Arbitrator had retained jurisdiction in the matter. See Remand Award at 21. The retention of jurisdiction by arbitrators for the purpose of clarification and interpretation of an award and for overseeing the implementation of remedies is not unusual and has been approved by the Authority. See VAMC Leavenworth (arbitrator properly retained jurisdiction to oversee compliance with his award of EDP to wage grade employees).
It is apparent from the Arbitrator's initial and remand awards that he considered the grievance to cover all wage grade employees represented by the Union. We note also that neither the Agency nor the Union raised the issue of coverage before the Authority. We conclude that the Arbitrator acted within his authority to clarify the matter placed before him.
The Agency has not established that the Arbitrator provided relief to persons not included in the grievance. In that regard, the Agency's reliance on Robins AFB is misplaced. In Robins AFB, the arbitrator knew who the grievants were and clearly and deliberately gave relief to employees who did not file grievances when he included relief to the grievants "along with employees who did not grieve[.]" 18 FLRA at 899. In this case, the dispute as to which employees were covered by the grievance was the issue to be resolved by the Arbitrator in the supplemental award. The Agency has not shown that the Arbitrator exceeded a clear limitation on his authority as to the issue to be resolved or as to persons entitled to relief. Rather, the Agency is merely disagreeing with the Arbitrator's findings on the factual question of which employees were included in the grievance and which employees are entitled to relief under the remand award. In other words, the Agency is attempting to relitigate the matter before the Authority. Disagreement with an arbitrator's findings of fact and attempting to relitigate a matter decided by an arbitrator provide no basis for finding an award deficient. See, for example, National Treasury Employees Union, Chapter 243 and United States Department of Commerce, United States Patent and Trademark Office, Arlington, Virginia, 37 FLRA 470, 475 (1990); U.S. Department of the Air Force, Air Logistics Center, Tinker Air Force Base, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 916, 36 FLRA 248, 251 (1990). Accordingly, the Agency's exception will be denied.
IV. Second Exception
A. Positions of the Parties
1. The Agency
The Agency contends that the Arbitrator's award is deficient because it grants relief to temporary employees who are not in the bargaining unit. The Agency maintains that the remand award applies only to bargaining unit employees and "the original 1987 award identifies the 65 grievants as bargaining unit employees." Exceptions at 10.
The Agency disputes the Arbitrator's finding that temporary employees are in the bargaining unit because they are covered by the parties' master agreement and because temporary employees are entitled to EDP under FPM provisions. The Agency asserts that only proper representation proceedings can determine an appropriate bargaining unit and states that the Allen Park Medical Center bargaining unit was recognized in 1966 and that the unit excluded temporary employees, even after the unit was consolidated into a national unit. The Agency submits a letter dated August 8, 1966, from the Hospital Director to the Union, which grants recognition to the Union and states that temporary employees are excluded. Id., Appendix N. The Agency also submits various letters in which the Agency informs the Union that temporary employees are not included in the bargaining unit. Id., Appendix O. The Agency maintains that it has consistently advised the Union that temporary employees are excluded from the bargaining unit. The Agency states that the Union filed a clarification of unit petition seeking to include temporary employees with the Authority on August 3, 1990. Id., Appendix P.
2. The Union
The Union contends that the Agency is barred from raising the issue of temporary employees because it did not raise that matter before the Arbitrator. The Union asserts that Agency Appendices N and O should not be considered for that reason. Further, the Union contends that the documents in Appendices N and O are not authenticated and are incomplete. The Union maintains that until the Authority decides the pending clarification petition, there is no reason to exclude temporary employees from coverage of the award.
B. Analysis and Conclusions
The Arbitrator held in the supplemental award that temporary employees are entitled to coverage under the remand award because "the master agreement provides for coverage of temporary employees[.]" Supplemental Award at 12. The Arbitrator then ruled that EDP was "to be paid to all wage grade employees represented by Local 933 since July 26, 1978, . . . regardless of the nature of their tour (part-time, intermittent, detailed, regular or temporary status)." Id. at 12-13. As pertinent to the exceptions in this case, there is a dispute over whether temporary employees are covered by the award because there is a dispute over whether those employees are included in the bargaining unit. Because the Arbitrator's award as to temporary employees resolves a dispute with regard to the bargaining unit status of those employees, the award is contrary to sections 7105(a)(2)(A) and 7112(a)(1) of the Statute and must be modified.
It is well established that arbitrators have no authority to resolve questions concerning the unit status of employees. Rather, that is a matter which must be resolved by the filing of a clarification of unit petition with the Authority. See U.S. Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847, 852 (1988) (an arbitrator is not empowered to decide a question of a grievant's bargaining unit status even if that question is raised as a collateral issue in a grievance otherwise properly brought under the collective bargaining agreement). If a grievability question arises regarding the bargaining unit status of a grievant, the parties can place the grievance in abeyance pending the filing of a clarification-of-unit petition with the Authority. See U.S. Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 34 FLRA 860 (1990) (setting aside award because arbitrator was precluded from addressing merits of grievance which depended on the resolution of the issue of the grievant's unit status).
Further, once the Authority has issued a decision on a clarification of unit petition, an arbitrator's award must conform to the clarified unit description contained in that decision. See U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas and American Federation of Government Employees, 37 FLRA 71 (1990) (award deficient because arbitrator failed to comply with clarification-of-unit determination by Authority's regional director that temporary employees were in bargaining unit).
In the instant case, the Arbitrator decided that temporary employees were within the bargaining unit and, therefore, entitled to coverage under the remand award. However, under sections 7105(a)(2)(A) and 7112(a)(1) of the Statute and under the Authority precedent discussed above, only the Authority is empowered to make appropriate unit determinations. The appropriate vehicle for resolving the bargaining unit status of the temporary employees involved in this case is a clarification of unit petition. We note, in this regard, that this principle has been communicated to the parties in this case. In American Federation of Government Employees, Local 933 and Veterans Administration Medical Center, Allen Park, Michigan, 34 FLRA 645 (1990) we set aside an arbitrator's award in which the arbitrator ruled that temporary employees were not included in the bargaining unit represented by Local 933. Since the date of that decision, a clarification of unit petition (Docket No. 5-CU-00012) has been filed by the Union and is pending with the Chicago Regional Office of the Authority. Consequently, just as in 34 FLRA 645, that portion of the Arbitrator's award which constitutes a unit determination as to temporary employees is contrary to sections 7105(a)(2)(A) and 7112(a)(1) of the Statute. The award as to temporary employees must be placed in abeyance pending the Regional Director's clarification of unit determination.
V. Decision
The Agency's first exception is denied. The portion of the award that grants relief to temporary employees is dependent on the clarification of unit petition pending in the Chicago Regional Office and must be modified by placing the issue of temporary employees in abeyance until a decision is issued in the clarification of unit case. If it is determined that temporary employees are included in the bargaining unit, those employees will be covered by the Arbitrator's supplemental award and the Agency's second exception will be denied. The parties are directed to place that portion of the grievance relating to temporary employees in abeyance pending the outcome of the clarification of unit petition.
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