Veterans Administration Medical Center, Kansas City, Missouri and American Federation of Government Employees, Local 2663 (Authority decision, March 4, 1987)

Final FLRA decision. The Authority resolves an exception to an arbitral award under 5 U.S.C. § 7122(a). Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award generally is excluded from judicial review unless it involves an unfair labor practice under § 7116. This decision does not state that it involves an unfair labor practice.

Plain-English summary

Employees at the Kansas City VA Medical Center sought extra pay and safety measures for work involving airborne asbestos. An arbitrator ordered an abatement plan, marked asbestos locations, environmental differential pay for eligible employees, and further protective equipment if it became available or was recommended. The VA challenged only the protective equipment requirement, arguing that it interfered with management's right to choose the technology used for work. The Authority found that the award did not require any particular equipment, including respirators, and did not prevent management from deciding whether future equipment would become part of its work methods. It denied the VA's exception, leaving that requirement in place.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a) and management's technology of performing work under § 7106(b)(1).
• Outcome: Agency exception denied; the protective equipment portion of the award stands.
• Key point: A general order for future protective equipment did not dictate a specific technical method for asbestos work.

Full text (FLRA public release)

[ v26 p3 ]

26:0003(1)AR

The decision of the Authority follows:

26 FLRA No. 1

VETERANS ADMINISTRATION MEDICAL
CENTER, KANSAS CITY, MISSOURI
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2663
Union

Case No. 0-AR-1238

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator Preston J. Moore 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.

II. BACKGROUND AND ARBITRATOR'S AWARD

The group grievance in this case was filed on behalf of all bargaining unit employees "who have made a valid request for and/or it has been determined, they have been exposed to airborne asbestos while employed by the VAMC and in a duty status." The grievance concerned claimed violations of the parties' collective bargaining agreements and Federal Personnel Manual Supplement 532-1. The grievance sought environmental differential pay (EDP) retroactive to a particular time and until such time as the asbestos hazard has been practically eliminated by protective devices or safety measures. The Arbitrator essentially sustained the grievance. He ordered the Agency to: (1) prepare a written asbestos abatement plan and present it to the Union; (2) comply with Agency Circulars that require all asbestos locations to be marked; (3) provide further protective equipment if it becomes available or is recommended; (4) provide EDP to various employees, up to the time that the last protective equipment was available and was provided to the employees; and (5) make the EDP retroactive to thirty days immediately prior to the filing of the grievance.

III. EXCEPTION

The Agency excepted only to that portion of the award which requires the Agency to provide further protective equipment if it becomes available or is recommended. The Agency alleges that this portion of the award violates management's right under section 7106(b)(1) of the Statute to determine the technology of performing work. In support of this allegation, the Agency argues that the Arbitrator referred to respirators and that the Authority found in Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 22 FLRA No. 53 (1986), that respirators are encompassed within the technology of performing work. The Agency also argues that the award's broad reference to safety and protective equipment will encompass items "which, like respirators, are suitable to be a part of the technical method utilized by the medical center in removing asbestos."

IV. ANALYSIS

The Agency's exception fails to establish that the award is inconsistent with section 7106(b)(1) of the Statute. The Agency's reliance on the Authority's decision in Wright-Patterson Air Force Base, to support its position that respirators are encompassed within the technology of performing work is misplaced. In that case, the finding that respirators concerned the technology of performing work was predicated on the fact the employees were required to use respirators in their work and the union's proposal would have prescribed the particular type of respirator to be used. /*/ Here, the award does not require that respirators, or any other type of specific safety equipment, be used. As to the Agency's argument that the award's broad reference to safety and protective equipment will encompass other equipment which will be considered as part of the technical method for removing asbestos, we find such assertion to be merely speculative. Moreover, we do not interpret the arbitrator's award as precluding the Agency from exercising its right under section 7106(b)(1) to determine whether particular items of protective equipment should be adopted as part of its technology of performing work if and when such items become available or are recommended. Accordingly, we conclude that the Agency has failed to establish that the award is deficient as alleged.

V. DECISION

For the above reasons, the Agency's exception is denied.

Issued, Washington, D.C., March 4, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

(*) See also American Federation of Government Employees, Local 644, AFL-CIO and U.S. Department of Labor, Mine Health and Safety Administration, Morgantown, West Virginia, 15 FLRA 902 (1984) and National Federation of Federal Employees, Council of Consolidated Social Security Administration Locals and Social Security Administration, 13 FLRA 422 (1983), in which the Authority found that union proposals which expressly required the agencies involved to provide equipment which was part of the technical method of performing the agencies' work interfered with the right under section 7106(b)(1) of the Statute to determine the technology of performing work.