File 2: Opinion of Member Pope

[ v58 p70 ]


Member Pope, dissenting:

      I agree with the majority that, in the absence of a conflicting collective bargaining agreement provision, an agency regulation may establish a quantitative standard constituting the level of exposure to asbestos sufficient to trigger environmental differential pay (EDP). In my view, this is a straightforward application of the holding in Allen Park Veterans Admin. Med. Ctr. that an arbitrator may set a quantitative level triggering EDP "[i]n the absence of a mandated quantitative level set by applicable law or regulation or otherwise agreed to by the parties." 34 FLRA 1091, 1101 (1990).

      I do not agree with the majority, however, that the Agency regulation controls in this case. In my view, the majority misapplies the basic principle that "collective bargaining agreements, and not agency rules and regulations, govern the disposition of matters to which they both apply when there is a conflict between the agreement and the rule or regulations." United Stated Dept. of Agriculture, 51 FLRA 1210, 1216 (1996) (quoting United States Dept. of the Army, Ft. Campbell Dist., 37 FLRA 186, 194 (1990) (Fort Campbell)).

      The parties' agreement provides that EDP will be paid "[i]n accordance with Federal Law, Government-wide regulations and this Agreement." Award at 112 (quoting Article 26.01). As interpreted by the Arbitrator, this provision contemplates case-by-case standards for EDP entitlement to be established in arbitration -- not a predetermined quantitative standard established by Agency regulation. Thus, under Fort Campbell, the agreement conflicts with, and therefore takes precedence over, the predetermined quantitative standard established in the Agency's regulation. In my view, this simple analysis dictates rejection of the Agency's exception that the award conflicts with the Agency regulations.

      The majority strains to find that the Agency regulation controls because it does not conflict with the agreement. In so doing, the majority ignores the record in this case. In particular, the Arbitrator made extensive, specific findings regarding the parties' intent in agreeing to Article 26.01. According to the Arbitrator's uncontested finding, the parties "entered negotiations . . . with very different objectives insofar as the issue of EDP was concerned." Award at 114. In particular, the Agency wanted "an exact trigger point for when EDP entitlement would be activated" and the Union wanted this to "be determined on a case-by-case method by arbitrators." Id. The Arbitrator specifically rejected -- as "patently unbelievable" -- Agency witness testimony that the Union agreed that Article 26.01 incorporated the permissible exposure limit (PEL) set by OSHA as the trigger for EDP. Id. at 126. He concluded that the agreement was "crafted with the apparent intent to incorporate the bargaining objective of the Union to avoid any definition of" the EDP trigger level. Id. at 137. These arbitral findings compel a conclusion that the parties' agreement establishes a case-by-case trigger for EDP entitlement and, as a result, conflicts with the Agency regulation. [n*] 

      The majority distorts the award by relying on the Arbitrator's statements that Article 26.01 contains "no specific standard" to trigger EDP and that the parties had not "`agree[d] to a specific standard.'" Majority at 13 (quoting Award at 112, 221). It is clear, in this regard, that in finding the parties did not agree to a specific standard, the Arbitrator found that they did not agree to a specific predetermined, quantitative standard. As noted above, the Arbitrator undeniably rejected the Agency's argument that the Union had agreed to adopt the OSHA standard and found, as a matter of contract interpretation, that the agreement incorporated the Union's position that the standard would be determined case-by-case in arbitration. Thus, the majority is permitting the Agency to accomplish precisely what Fort Campbell prohibits: trumping a collective bargaining agreement with a conflicting Agency regulation.

      The majority adds insult to injury by concluding that the Arbitrator "erred, as a matter of law" in concluding that the Agency regulation was not binding unless the Union consented to it. Majority Opinion at 15. The majority concedes, in this regard, that the Union's consent would be required if the regulation "conflict[ed] with the parties' collective bargaining agreement." Id. at 14. As the Arbitrator found that the contract article incorporated the Union's objective to have a case-by-case standard, and rejected the Agency's objective that the standard contained in the regulation be [ v58 p71 ] incorporated, there can be no doubt that such a conflict exists.

      The Authority has consistently held that the specific work situations for which EDP is payable are left to local determination, including arbitration. AFGE, Local 2250, 52 FLRA 320, 322 (1996). The Arbitrator's conclusion that the parties negotiated over this issue and determined that no quantitative level would be set is fully consistent with this precedent and the statutory scheme for collective bargaining. Accordingly, the award is not deficient as inconsistent with the Agency regulations.

      In sum, I believe the majority errs in setting aside the award as inconsistent with the Agency regulations and in failing to analyze the remaining exceptions.


File 1: Authority's Decision in 58 FLRA No. 13
File 2: Opinion of Member Pope


Footnote # * for 58 FLRA No. 13 - Opinion of Member Pope

   I am at a complete loss to understand the majority's bald assertion that the Arbitrator's findings are not the "same as" a conclusion that "the parties agreed that entitlement to EDP would be made on a case-by-case basis." Majority Opinion at 16. As set forth above, the Arbitrator clearly and specifically found that: (1) the Union's bargaining objective was to avoid agreeing to "any trigger point" and, instead, to "allow[] the definition of `practically eliminated' to be determined on a case-by-case method by arbitrators," and (2) "the words of [the parties' agreement] were crafted with the apparent intent to incorporate the bargaining objective of the Union to avoid any definition of `practically eliminated.'" Award at 114, 136-37. The majority's unfortunate refusal to acknowledge these facts -- or otherwise explain its reasoning -- creates the impression that it is reviewing a much different award than the one actually before us and can only cause confus