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40:0186(19)AR
The decision of the Authority follows:
40 FLRA No. 19
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 Perry A. Zirkel. The Arbitrator determined that the grievants were entitled to receive Environmental Differential Pay (EDP) for exposure to asbestos and that medical examinations should be made available to the grievants. The Arbitrator declined, however, to award interest on any retroactive payments of EDP.
The Agency filed exceptions to the award 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. The Union also filed exceptions with respect to the period of time for which backpay was awarded and to the Arbitrator's failure to award interest on the backpay.
For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. We also conclude that the Union's exception to the length of the period of retroactive EDP payments is without merit. However, we will modify the award to provide for the payment of interest.
II. Background and Arbitrator's Award
The Union filed a grievance alleging that employees were being exposed to unhealthy levels of asbestos in violation of the parties' collective bargaining agreement. When the grievance was not resolved, it was submitted to arbitration on the following issue:
Whether the Employer violated Articles 29 and 36 of the collective bargaining agreement with respect to the presence of asbestos? If so, what shall the remedy be?
Award at 8.(*)
The Arbitrator found that the parties incorporated in their collective bargaining agreement the Occupational Safety and Health Administration (OSHA) standards concerning permissible levels of exposure to asbestos. The Arbitrator also found that those standards were contained in an applicable Agency regulation. However, the Arbitrator concluded that the Agency's compliance with those standards was not "sufficient" because the parties had not agreed that the standards were exclusive for determining entitlement to EDP. Id. at 8. Accordingly, interpreting Articles 29 and 36 of the parties' agreement, the Arbitrator specifically rejected the Agency's contention that the payment of EDP was not required unless the concentrations of airborne asbestos exceeded OSHA requirements. Id. at 9.
The Arbitrator stated that "[e]xtensive evidence" showed that "employees in various locations have been exposed to a significant risk of asbestos-related disease." Id. at 8 (footnote omitted). The Arbitrator also stated that the Agency "had a contractual duty of systematically finding and abating the asbestos hazard to the point of making some reasonable effort to remove asbestos-containing dust." Id. at 11. (footnote omitted). The Arbitrator concluded that employees were entitled to EDP under Article 36 of the parties' agreement because, except in one area of a single building, the Agency "did not reach this contractually based level . . . ." Id. (footnote omitted).
The Arbitrator concluded that affected employees were entitled to EDP retroactive to April 7, 1988, the date on which the grievance was filed. Id. at 13. The Arbitrator rejected, in this regard, the Union's contention that EDP should be retroactive to October 5, 1978. The Arbitrator concluded that any "earlier entitlement [to] back pay was forfeited by not bringing a grievance" before April 7, 1988. Id.
The Arbitrator noted that the Agency had initiated an abatement program to minimize asbestos exposure in its buildings. As his award, the Arbitrator provided "retroactive EDP to employees who worked at least two hours in an asbestos-containing building prior to its abatement and to employees who worked at least six hours of their regular day in a building after abatement." Id. at 14 (footnote omitted). The Arbitrator declined, however, to award interest on the retroactive payments of EDP. Attachment to award at 20. The Arbitrator ruled that EDP would continue "prospectively" until a "reasonable effort" had been made to remove the asbestos hazard. Id. at 14. The Arbitrator also stated that "medical examinations . . . shall be made available upon request at least once per year for all employees found to be entitled to EDP under [the] award." Id. (footnote omitted). Finally, the Arbitrator retained jurisdiction "for the limited purpose of implementation of the remedy." Id.
III. The Agency's Exceptions
The Agency contends that the award violates law, rule, and regulation. The Agency argues, in this regard, that the Arbitrator did not make the findings necessary to award EDP under category 16 of FPM Supplement 532-1, appendix J, as recognized by the Authority in Allen Park Veterans Administration Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 28 FLRA 1166 (1987) (Allen Park VAMC I). The Agency asserts that the Arbitrator "has not shown that asbestos exposure by the employees was above any quantitative level which would be a potential for illness or injury, nor did he find that protective devices or safety measures had not practically eliminated the potential for illness or injury." Agency's Exceptions at 5.
The Agency notes that Article 29 of the parties' collective bargaining agreement requires the Agency to "comply with applicable OSHA laws and regulations . . . ." Id. at 2 (emphasis in original). The Agency contends that, with one exception, none of the asbestos measurements cited by the Arbitrator "are above the [OSHA] level requiring action." Id. Moreover, the Agency asserts that by awarding EDP prospectively until a reasonable effort has been made to remove the asbestos hazard, the Arbitrator did not award EDP "based on a specific quantitative level of exposure but, rather, a level of effort produced by the [Agency] in cleaning a work area." Id. at 4.
The Agency also argues that the Arbitrator "failed to fully discuss whether protective devices or safety measures had practically eliminated the potential for illness or injury." Id. Although the Agency "does not believe that there ever was asbestos exposure above the level set by OSHA which would require precautionary measures, except for . . . one high reading," it asserts that "the safety devices made available by management practically eliminate any potential for illness or injury." Id.
Finally, the Agency contends that the Arbitrator "added to" the parties' collective bargaining agreement. Id. at 3. The Agency excepts to the Arbitrator's finding that the parties incorporated "'other recognized rules or criteria'" into their collective bargaining agreement and, thereby, "supplemented" the OSHA standards already in the agreement. Id.
IV. The Union's Opposition
The Union contends that Article 29 of the parties' agreement requires that the Agency "conform[] to OSHA standards and provide[] a safe and healthful workplace." Opposition at 1 (emphasis in original). The Union argues that, "contrary to the Agency's exception, the agreement does not necessarily require a finding of a violation of an OSHA regulation as a prerequisite to a finding of unhealthful, unsafe or hazardous working conditions in violation of Article 29[.]" Id. The Union also contends that nothing in appendix J to FPM Supplement 532-1 requires a finding that an OSHA standard has been violated to award an employee EDP because of asbestos exposure. The Union cites the Authority's decision in Allen Park VAMC I, for the proposition that the specific work situations for which EDP is payable under appendix J are subject to local determination, including arbitration.
V. The Union's Exceptions
The Union objects to the failure of the Arbitrator to award backpay retroactive to October 5, 1978. The Union asserts that there was no basis in law, rule, regulation, or the parties' collective bargaining agreement for the Arbitrator to limit his award of retroactive EDP to April 7, 1988, the filing date of the grievance. The Union argues that, although some of the employees may have been concerned about an asbestos hazard before April 7, 1988, no showing or argument was made that the employees forfeited any right to backpay before such date because of their failure to file a grievance earlier.
The Union contends that the Arbitrator's denial of retroactive EDP for the years before April 7, 1988, violates 5 U.S.C. § 5343(c)(4), 5 C.F.R. § 532.511(a)(1), and 5 U.S.C. § 5596(b). The Union argues that, "once it has been determined, as was done here, that the grievants' work involved unusually severe hazards," the grievants are entitled to EDP for the time that their work involved such hazards. Union's Exceptions at 5. The Union contends that the Arbitrator "appears to [have] [chosen] the April 7, 1988 cut off as an 'equitable' or compromise date[,]" rather than ensuring that the grievants receive all of the EDP to which they are entitled. Id. (emphasis in original).
The Union also contends that the Arbitrator should have awarded interest on retroactive EDP and that his failure to do so violates law, rule, regulation, and the parties' collective bargaining agreement.
VI. Analysis and Conclusions
A. The Agency's Exceptions
Under category 16 of appendix J, the payment of EDP is conditioned on findings that: (1) employees are working in areas where airborne concentrations of asbestos fibers may expose them to potential illness or injury; and (2) protective devices or safety measures have not practically eliminated the potential for such personal illness or injury. See, for example, Allen Park Veterans Administration Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091, 1098 (1990) (Allen Park VAMC II).
Appendix J does not set forth any specified quantitative level of asbestos exposure required for the payment of EDP. Rather, the specific work situations for which EDP is payable under appendix J are left to local determination, including arbitration. Here, the Arbitrator specifically rejected the Agency's argument that the payment of EDP was required under the parties' agreement only when the OSHA requirements were exceeded and awarded EDP based on his findings that Article 29 of the agreement required a safe and healthful workplace and "employees in various locations ha[d] been exposed to a significant risk of asbestos-related disease." Award at 8. As the work situations for which EDP is payable are subject to the parties' agreement, and as the Arbitrator based his award of EDP on his interpretation of such an agreement, we conclude that the award satisfies the first requirement of category 16 of appendix J. See Allen Park VAMC II, 34 FLRA at 1100 (arbitrator's finding "'as a matter of law and fact that there is no quantitative threshold level below which exposure will not have the potential of illness or injury'" satisfied the requirement of appendix J).
With regard to the second requirement of category 16 of appendix J, the Arbitrator noted that the Agency provided safety clothing and equipment to its employees. The Arbitrator found, however, that the Agency had not made an "optimum effort to abate asbestos risks" and that the risks had not been practically eliminated. Award at 8. The Arbitrator also found that the Agency did not satisfy its contractual duty to "systematically find[] and abat[e] the asbestos hazard to the point of making some reasonable effort to remove asbestos-containing dust." Id. at 11 (footnote omitted). We conclude, therefore, that the Arbitrator's findings satisfy the second requirement of category 16 of appendix J.
Finally, we reject the Agency's contention that the award is deficient because the Arbitrator "added to" the parties' collective bargaining agreement. Agency's Exceptions at 3. We construe this contention as an exception that the award does not draw its essence from the agreement. To establish that an award is deficient because it does not draw its essence from a collective bargaining agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of Transportation, Maritime Administration, James River Reserve Fleet and National Association of Government Employees, Local R4-47, 35 FLRA 1213, 1216 (1990).
The Arbitrator awarded EDP after finding that Article 29 of the agreement required the Agency not only to comply with applicable OSHA standards but also to "provide a safe and healthful work place for all employees . . . ." Award at 6. Nothing in the Arbitrator's interpretation of the parties' agreement is irrational, implausible, or evidences a manifest disregard for the agreement. We conclude, therefore, that the Agency has failed to establish that the award fails to draw its essence from the agreement.
B. The Union's Exceptions
We reject the Union's contention that the Arbitrator's award of EDP retroactive to April 7, 1988, rather than October 5, 1978, violates 5 U.S.C. § 5343(c)(4), 5 C.F.R. § 532.511(a)(1), and 5 U.S.C. § 5596(b).
Pursuant to 5 U.S.C. § 5343(c)(4), the Office of Personnel Management (OPM) is authorized to issue regulations providing "for proper differentials, . . . for duty involving unusually severe working conditions or unusually severe hazards[.]" Under 5 C.F.R. § 532.511(a)(1), and in accordance with 5 U.S.C. § 5343(c)(4), an employee is paid an environmental differential when the employee is exposed to a working condition or hazard that falls within one of the categories approved by OPM, such as category 16 of FPM Supplement 532-1, appendix J. In order for an award of backpay to be authorized under the Back Pay Act, 5 U.S.C. § 5596, the arbitrator must determine that the aggrieved employee was affected by an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials.
Nothing in the Back Pay Act, 5 U.S.C. § 5343(c)(4), 5 C.F.R. § 532.511(a)(1), or appendix J of FPM Supplement 532-1 specifies the appropriate period of time for which an EDP payment is due. Moreover, the Union has not demonstrated that any other statute or regulation required that EDP be made retroactive to October 5, 1978. Consequently, the Union has not demonstrated that the grievants were entitled by law or regulation to EDP retroactive to October 5, 1978.
We reject also the Union's contention that the Arbitrator's failure to provide EDP retroactive to October 5, 1978, does not "draw its essence from the contract . . . ." Union's Exceptions at 1. Nothing in Article 29 or Article 36 of the parties' collective bargaining agreement requires retroactive EDP for a specified period. Consequently, the Union has failed to establish that the Arbitrator's determination with respect to the length of the retroactive EDP period evidences a manifest disregard for the agreement, or is irrational, unfounded, or implausible. Accordingly, the Union's contention provides no basis for finding the award deficient.
Finally, in agreement with the Union, we find that the Arbitrator's denial of interest on the retroactive EDP is contrary to law. Under the Back Pay Act, 5 U.S.C. § 5596(b)(2)(A), as amended, Pub. L. No. 100-202 (1987), an employee who is found to have been subjected to an unjustified or unwarranted personnel action which has resulted in a withdrawal or reduction in compensation is entitled to interest on any backpay due the employee. See, for example, U.S. Department of Defense, Marine Corps Logistics Base, Barstow, California and American Federation of Government Employees, Local 1492, 37 FLRA 796, 797 (1990) (Marine Corps Logistics Base).
As we held in Marine Corps Logistics Base, "interest must be paid" on backpay awards such as the one in this case. 37 FLRA at 797. Accordingly, to the extent that the award denied interest on EDP payable retroactively to April 7, 1988, the award is deficient. Therefore, we will modify the award to include interest on the EDP award.
VII. Decision
With the exception of the Union's exception regarding the Arbitrator's failure to require the payment of interest on the EDP award, the parties' exceptions are denied. The Arbitrator's award is modified to include the payment of interest on the EDP award.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
*/ Articles 29 and 36 provide, in pertinent part:
ARTICLE 29 - SAFETY AND HEALTH
Section 1. The Employer shall provide a safe and healthful work place for all employees and will comply with applicable OSHA laws and regulations relating to the health and safety of its employees.
ARTICLE 36 - ENVIRONMENTAL DIFFERENTIAL PAY
Section 1. The Employer and the Union . . . ha[ve] a responsibility to eliminate danger and risk which contributes to or causes a hazard, physical hardship or working condition of an unusual nature . . . . When action taken does not overcome . . . [such conditions], and environmental pay is warranted, the employee will be paid immediately and pay will continue until such time as the hazard is practically eliminated.
Award at 6-7.