Employees who are required to perform duties that may expose them to unsafe or hazardous conditions will be provided with necessary approved safety equipment and personal protective clothing. Necessary
cold[-]weather[-]protective clothing will also be provided to [e]mployees who are routinely required to be exposed to cold stress while performing work.^[1] 

 

 

As relevant here, the issue before the Arbitrator was whether “Article 28[-2], [s]entence [two],         [which states that] ‘[n]ecessary cold[-]weather                 [-]protective clothing will also be provided to employees who are routinely required to be exposed to               cold[-]weather stress while performing work,’ [is] contrary to law or government-wide rule? If not, what is the appropriate remedy?”^[2] 

 

The Arbitrator sustained the grievance. The Arbitrator directed the Agency to rescind its decision to stop purchasing cold-weather clothing, and to resume “the purchase of cold[-]weather[-]protective clothing” “as it has in the past.”^[3] The Arbitrator found two legal bases for the Agency to comply with its contractual obligation in Article 28-2 to make such purchases. 

 

First, the Arbitrator found that such purchases “are consistent with . . . 5 U.S.C. § 7903.”^[4] Section 7903 provides that appropriated funds may be used “for the purchase and maintenance of special clothing . . . for the protection of personnel in the performance of their assigned tasks.”^[5] 

 

The Arbitrator found that the Agency met the requirements of § 7903 because (1) “over the years[,] both sides have recognized the special nature of the Agency’s mission at [the Air Force base] and the special nature of the cold[-]weather[-]protective purchases”;     (2) the purchase of this clothing was “in furtherance of the Agency’s mission and necessary to the accomplishment of recognized bargaining[-]unit work”; and (3) “the outside work involved was, and still is, properly characterized as hazardous duty under extreme cold[-]weather conditions.”^[6] The Arbitrator further elaborated that “the agreed-upon language of                [the parties’ agreement], the parties’ pre-[memorandum] course of dealing[,] and the realities of the working environment at [the Agency] all combine to meet the requirements of . . . § 7903.”^[7] And the Arbitrator added: “the parties’ [pre-memorandum] practice recognized the Agency’s responsibility to provide cold[-]weather           [-]protective clothing.”^[8] 

 

Second, the Arbitrator found that such purchases are authorized by 29 U.S.C. § 668, which provides, in relevant part, that agencies “shall . . . acquire . . . personal protective equipment . . . reasonably necessary to protect employees.”^[9] The Arbitrator found that “the language of [Article 28-2] and the parties[’] past treatment of the issue clearly and unambiguously obligate the Agency to use [appropriated funds] to provide necessary            cold[-]weather[-]protective clothing as it has in the past.”^[10] The Arbitrator also distinguished the case before him from Comptroller General precedent upon which the Agency relied.

 

 

 

 

 

 

                The Authority’s Regulations enumerate the grounds upon which the Authority will review arbitration awards.^[12]  In addition, the Regulations provide that if exceptions argue that an arbitration award is deficient based on private-sector grounds not currently recognized by the Authority, then the excepting party “must provide sufficient citation to legal authority that establishes the grounds upon which the party filed its exceptions.”^[13] Furthermore, § 2425.6(e)(1) of the Authority’s Regulations provides that an exception “may be subject to dismissal or denial if . . . [t]he excepting party fails to raise and support” the grounds listed in § 2425.6(a)-(c) of the Authority’s Regulations, or “otherwise fails to demonstrate a legally recognized basis for setting aside the award.”^[14] Thus, an exception that does not raise a recognized ground is subject to dismissal.^[15]

 

                The Agency argues that the award is “contrary to the [parties’ agreement] itself.”^[16]  This argument does not raise a ground for review currently recognized by the Authority, and the Agency does not cite any legal authority that supports a conclusion that the argument raises a private-sector ground not currently recognized by the Authority.^[17] As such, we dismiss this exception.

 

 

 

                The Agency claims that the award is based on a nonfact.^[18] To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result.^[19] The Authority has long held that disagreement with an arbitrator’s evaluation of evidence, including the determination of the weight to be accorded such evidence, provides no basis for finding an award deficient as based on a nonfact.^[20]

 

In its nonfact exception, the Agency argues that “the Arbitrator . . . assumed the existence of facts not in evidence”^[21] when he found that one of the Comptroller General decisions on which the Agency relied, Purchase of Cold Weather Clothing, Rock Island District,           U.S. Army Corps of Engineers (Rock Island),^[22] did not support the Agency’s position. According to the Agency, the Arbitrator improperly discounted the Agency’s statement in its post-hearing brief that, as in Rock Island, the Agency had provided employees with                 “wind-protected hang[a]rs and heated shelters.”^[23] Instead, the Agency claims, the Arbitrator improperly “credited”^[24] the Union’s statement in its post-hearing brief that the Agency had not taken those actions.

 

The Agency’s nonfact exception does not provide a basis for finding the award deficient. The Arbitrator relied on the record, not on the parties’ statements in their post-hearing briefs, when he distinguished Rock Island. Citing the record, the Arbitrator found that unlike Rock Island, “[i]n the present case, there was no testimony as to any warm-up or     cold-reducing efforts available to the rank and file.”^[25] The Arbitrator then acknowledged both the Agency’s “allu[sion] to wind-protected hang[a]rs and heated shelters in its brief,” and the Union’s statement “that the Agency made a conscious decision [not to] expend[] funds on heated enclosures.”^[26] Referring to the parties’ assertions in their post-hearing briefs, the Arbitrator concluded: “At best, the competing arguments on this point result in a stalemate.”^[27] 

 

 

 

                The Agency claims that the Arbitrator’s award violates federal appropriations law because the Agency’s use of appropriated funds to purchase cold-weather clothing does not meet the requirements of                       5 U.S.C. § 7903 and 29 U.S.C. § 668(a).^[29] In support, the Agency relies on, among other things, decisions of the Comptroller General.^[30]

 

                When an exception involves an award’s consistency with law, the Authority reviews any question of law raised by the exception and award de novo.^[31] In applying the standard of de novo review, the Authority assesses whether an arbitrator’s legal conclusions are consistent with the applicable standard of law.^[32] In making that assessment, the Authority defers to the arbitrator’s underlying factual findings,^[33] unless a party demonstrates that the findings are nonfacts.^[34] Absent a nonfact, challenges to an arbitrator’s factual findings cannot demonstrate that an award is contrary to law.^[35]

We note that decisions of the Comptroller General are not binding on the Authority.^[36] In that regard, “‍[‍a‍]‍lthough a Comptroller General opinion serves as an expert opinion that should be prudently considered,” it is not one to which the Authority must defer.^[37] Nevertheless, in cases where the parties and the arbitrator have examined Comptroller General precedent to address legal questions raised by a grievance, the Authority has assumed the applicability of that precedent when assessing contrary-to-law exceptions to the resulting arbitral award.^[38] 

 

Here, the parties cited Comptroller General precedent to the Arbitrator,^[39] who relied upon that precedent in his award.^[40] Similarly, in the Agency’s exceptions to that award, the Agency relies on Comptroller General precedent,^[41] and the Union’s opposition does not argue that the Authority should not apply Comptroller General precedent. Therefore, consistent with the principles set forth above, we assume the applicability of Comptroller General precedent here. 

 

One of the statutes that the Arbitrator relied on is 5 U.S.C. § 7903. Section 7903 provides, in pertinent part, that “[a]ppropriations available for the procurement of supplies and material or equipment are available for the purchase and maintenance of special clothing and equipment for the protection of personnel in the performance of their assigned tasks.”^[42] The Comptroller General has found that in order for an item to be authorized by § 7903, it must satisfy three requirements:  “(1) the item must be ‘special’ and not part of the ordinary and usual furnishings an employee may reasonably be expected to provide for himself; (2) the item must be for the benefit of the government, that is, essential to the safe and successful accomplishment of the work, and not solely for the protection of the employee, and (3) the employee must be engaged in hazardous duty.”^[43] 

 

 

 

 

As relevant here, the Comptroller General has generally been unwilling to hold that cold-weather clothing is compensable under § 7903.^[45] This is based on the notion that employees generally are required to present themselves for duty properly attired according to the requirements of their positions.^[46] The Comptroller General has recognized an exception when employees have been assigned to temporary duty in a region for which they could not be expected to own clothing for extreme conditions.^[47] But the Comptroller General has limited an exception to those “unique circumstances.”^[48] In this case, although the Arbitrator adverted to the special nature of the cold‑weather‑ protective clothing purchased in the past, and “extreme cold[-]weather conditions,”^[49] it is not clear that the Arbitrator found that the circumstances required by Comptroller General precedent are present. Therefore, on the record that is currently before us, we cannot determine whether § 7903 supports the Arbitrator’s conclusion that the Agency may be required to spend appropriated funds on the cold-weather clothing at issue here.

The Arbitrator also found that                           29 U.S.C. § 668(a) supported his award. The Agency argues that this finding is contrary to law because the Arbitrator erred in determining that                              cold-weather-clothing purchases at the Agency meet § 668’s requirement that an item be “necessary.”^[50] 

 

Under § 668, an agency may furnish protective clothing if the agency determines that it is necessary under the Occupational Safety and Health Act (OSHA)^[51] and its implementing regulations.^[52] An authorized official of an agency may make a determination that certain clothing is required pursuant to OSHA regulations.^[53] Absent such a designation, parties cannot reach an enforceable agreement to provide such clothing.^[54] 

 

 

                But our discussion of §§ 7903 and 668 does not end the matter. As noted previously, before the Arbitrator, the Union argued that non-appropriated funds could be used to pay for the clothing.^[55] Because the Arbitrator found that appropriated funds were available, he did not resolve the Union’s claim regarding            non-appropriated funds.^[56] In our view, additional findings from the Arbitrator on this point are needed before we can determine whether the Agency can be required to pay for the clothing at issue. Accordingly, we remand the award to the parties for resubmission to the Arbitrator, absent settlement, for further findings on the non-appropriated-funds issue. On remand, the Arbitrator also may make findings that clarify his reasoning regarding the §§ 7903 and 668 issues, under the legal standards set forth above.

 

                Finally, the Agency argues that the Arbitrator exceeded his authority when he ordered the Agency to continue purchasing cold-weather clothing with appropriated funds, because such a remedy is contrary to federal appropriations law.^[57] If the award is not authorized by § 7903 or § 668, then it would be unnecessary to separately assess whether the Arbitrator exceeded his authority in this regard. Conversely, if the award is authorized by § 7903 or § 668, then the premise of the Agency’s exceeded-authority exception is incorrect. Moreover, if the Arbitrator finds on remand that non-appropriated funds are available to purchase the clothing, then the Agency’s exceeded-authority argument is without consequence. Because we are remanding to the Arbitrator for further findings regarding                 non-appropriated funds, and he may also make further findings regarding § 7903 or § 668 on remand, we find that it would be premature, at this time, to separately resolve the Agency’s exceeded-authority exception.^[58]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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