New Cumberland Army Depot and AFGE Local 2004 (Authority decision, April 11, 1991)

Final FLRA decision. This is a final order concerning an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally excludes an order involving an arbitral award unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not resolve an unfair labor practice.

Plain-English summary

An arbitrator awarded environmental differential pay and medical examinations to employees exposed to asbestos at an Army depot. Both sides challenged parts of the award. The Authority rejected the agency’s exceptions and the union’s challenge to the backpay period. It modified the award to add interest on the retroactive differential payments.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Differential pay award upheld and modified to provide interest.
• Key point: Retroactive environmental differential pay carried interest under the applicable backpay rule.

Full text (FLRA public release)

[ v40 p186 ]

40:0186(19)AR

The decision of the Authority follows:

40 FLRA No. 19

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE ARMY

NEW CUMBERLAND ARMY DEPOT

NEW CUMBERLAND, PENNSYLVANIA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2004

(Union)

0-AR-1992

DECISION

April 11, 1991

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.