[ v15 p296 ]
15:0296(66)CA
The decision of the Authority follows:
15 FLRA No. 66
NAVY PUBLIC WORKS CENTER
NORFOLK, VIRGINIA
Respondent
and
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
Charging Party
Case No. 3-CA-2071
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action.
Thereafter the Respondent filed exceptions to the Judge's Decision and
the Charging Party filed an opposition thereto.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions /1/ and recommended Order, as modified
herein. /2/
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority hereby orders that the
Navy Public Works Center, Norfolk, Virginia, shall:
1. Cease and desist from:
(a) Failing or refusing to comply with the final and binding arbitral
award in Decision No. F-FMCS-8, dated August 11, 1980.
(b) In any like or related manner interfering with, restraining or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Implement the August 11, 1980, award of the Arbitrator in
Decision No. F-FMCS-8 by paying the affected Power House employees
covered by the grievance the eight percent environmental differential
retroactive to March 9, 1975.
(b) Post at its facilities copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms they shall be signed by an authorized representative and
shall be posted and maintained in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that said
Notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director, Region III, Federal Labor Relations
Authority, in writing, within 30 days from the date of this Order, as to
what steps have been taken to comply herewith.
Issued, Washington, D.C., July 18, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to comply with the final and binding
arbitral award in Decision No. F-FMCS-8, dated August 11, 1980.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL implement the August 11, 1980, award of the Arbitrator in
Decision No. F-FMCS-8 by paying affected Power House employees covered
by the grievance the eight percent environmental differential
retroactive to March 9, 1975.
(Agency or Activity)
By: (Signature)
Dated: . . .
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced or covered by any other
material.
If employees have any question concerning this Notice, or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Region III, Federal Labor Relations Authority, whose
address is: 1111 18th Street, NW, Room 700, P.O. Box 33758, Washington,
D.C. 20033-0758 and whose telephone number is: (202) 653-8507.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Dennis K. Reischl
For the Respondent
Sally M. Armstrong, Esq.
For the Charging Party
Heather Briggs, Esq.
For the General Counsel
Before: ALAN W. HEIFETZ
Administrative Law Judge
DECISION
Statement of the Case
This proceeding arose pursuant to the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result
of an unfair labor practice charge filed March 9, 1981, with the Federal
Labor Relations Authority. Consequently, on July 9, 1981, the Regional
Director issued a complaint alleging that the Navy Public Works Center,
Norfolk, Virginia, has failed and refused to comply with an arbitrator's
award and, by such conduct, has violated Sections 7116(a)(1), (5) and
(8) of the Statute. Respondent denies that allegation.
A hearing was held on September 23, 1981, in Norfolk, Virginia, at
which opening statement were made and documentary evidence and a
stipulation of facts were entered into the record. Post hearing briefs
have been filed by all parties. Upon the entire record, I make the
following findings, conclusions and recommended order:
Findings of Fact
On January 21, 1980, the employees working in Building P-1, the Navy
Public Works Center Power House, filed a grievance contending that they
work with and are exposed to airborne asbestos fibers. Accordingly,
they sought retroactive hazardous duty pay and an order that appropriate
protective measures be taken.
The applicable Collective Bargaining Agreement obligates Respondent
for environmental differential pay under conditions described in
Appendix J of the Federal Personnel Manual Supplement 532-1. That
Appendix provides that a retroactive environmental differential of eight
percent is to be paid to employees:
working in an area where airborne concentrations of asbestos
fibers may expose employees to potential illness or injury and
protective devices or safety measures have not practically
eliminated the potential for such personal illness or injury.
The matter was submitted to binding arbitration at which evidence was
adduced, argument presented, and an on-site inspection made by the
Arbitrator. On August 11, 1980, the Arbitrator issued an award
sustaining the grievance "to the extent indicated in the findings." The
Arbitrator devised a remedy which gave Respondent two alternatives. The
first was to negotiate a settlement, compromising on the total
retroactive amount due. The Arbitrator stated, in this regard:
The Arbitrator is aware that employees in other Craft units of
the Public Works Center that work with asbestos are paid the
environmental differential as a result of negotiations with the
Union. These resolutions apparently take into account the fact
that employee exposure to the hazard varies from time to time.
This award should encourage, rather than discourage, a negotiated
settlement for the Power House employees.
Failing a negotiated settlement, the Arbitrator ordered that within
30 days a scientific sampling of the air be taken in the Power House "so
as to determine whether concentrations of airborne fibers are present in
the Power House atmosphere." Further, he ordered that if "such
concentrations are found to be present, affected Power House employees
will be paid the eight percent environmental differential retroactive to
March 9, 1975."
By letter dated August 22, 1980, Respondent notified the Union that
in regard to the arbitration award, it was Respondent's position that it
would not negotiate a settlement but, rather, it would elect to conduct
a study of the ambient air in Building P-1. Respondent conducted the
tests on August 25-28 and September 4 and 5, 1980. The results of the
tests were then analyzed by Respondent and incorporated into a report.
On September 11, 1980, Respondent advised the Union in writing that
it would not pay the environmental differential on grounds that:
. . . the exposure levels (as found by the report) are well
below the OSHA standard, and generally are of the same order or
magnitude as the background samples. Therefore, there is no legal
basis or obligation for payment of environmental differential pay
to the employees of P-1 who were involved in the grievance . . .
No exceptions to the Arbitrator's award were filed by either party.
Respondent has continued to refuse to pay the eight percent retroactive
environmental differential.
The Arbitrator's Decision and Award
The threshold question to be determined in this case is the nature
and extent of Respondent's obligation under the Arbitrator's decision
and award. To resolve that question requires a limited examination of
the decision and award. That inquiry must be limited because, as noted
previously, no exceptions to the award were filed by either party and,
in as much as this is an unfair labor practice proceeding, that award is
not before me for substantive review. /3/
At the outset of his decision, the Arbitrator noted that the
grievance contends that the employees are "exposed to airborne asbestos"
and that they desire to be compensated for "their exposure to Asbestos".
The grievance did not mention any levels of exposure.
In the "Background" section of his decision, the Arbitrator noted the
cumulative and carcinogenic effects of asbestos exposure. He then
referenced the mandate of the Occupational Safety and Health Act of 1970
for a national consensus standard and the 1972 Department of Labor
Asbestos Standard. He then stated:
Each of these items is, to some degree involved in this
grievance. However, it is the exposure to airborne concentrations
of asbestos fibers that is at the base of the complaint here.
The Arbitrator then discussed the Labor Department's 1972 Standard
which provided for a reduction in permissible exposure to take place in
1976. Prior to the 1976 Standard taking effect, the Labor Department
proposed an even lower standard, which, for reasons unknown, never
issued as a final regulation, and the 1976 Standard has, to this time,
remained in effect. In discussing the progress of the state of the art,
the Arbitrator highlighted a study, produced in April 1980, by the
Asbestos Work Group, a joint effort of technicians from the Occupational
Safety and Health Administration (OSHA) and the National Institute for
Occupational Safety and Health (NIOSH). The following is a portion of
his quote of Item 4 of the study:
. . . all levels of asbestos exposure studied to date have
demonstrated asbestos-related disease, and a linear relationship
appears to best describe the shape of the dose-response curve.
These considerations led the committee to conclude that there is
no level of exposure below which clinical effects do not occur . .
. . (T)he absence of a threshold is further indicated by the
dramatic evidence of asbestos-related disease in members of
asbestos-worker households and in persons living near
asbestos-contaminated areas. These household and community
contacts involved low level and/or intermittent casual exposure to
asbestos . . .
The Arbitrator next pointed out that, pursuant to an Executive Order,
the Department of the Navy adopted the prevailing OSHA standard in
regard to permissible levels of airborne asbestos fibers. He noted that
in 1974, the Civil Service Commission found asbestos to be a hazardous
substance and he then referenced the Federal Personnel Manual provision
for the eight percent differential and the parties' collective
bargaining agreement referring to the differential. Finally he cited a
study by Respondent of the ambient air in Building P-1 done shortly
after the grievance had been filed.
Several arguments were made to the Arbitrator and they were set forth
in his decision. Only those pertinent to this case are repeated. The
Union argued that "any concentration of airborne asbestos fibers is
hazardous" and that employees are entitled to the differential "for
exposure" to those fibers. Management, on the other hand, argued that
the Navy was obliged only to meet the OSHA standard and "Because the
fiber count is less than that required by the OSHA standard, . . . it is
not required to pay the eight percent rate differential . . . "
The following findings of the Arbitrator are pertinent to the issues
raised in this proceeding:
Management is not correct when it claims that the
concentrations of airborne asbestos fibers set out in 29 CFR
1910.1001 (the OSHA standard) are to be used to determine whether
the 8% environmental differential should be paid to employees
working in Building P-1. The OSHA standard, at whatever level, is
designed to reduce the hazard. The environmental differential is
to provide compensation for exposure to the hazard. Clearly, FPM
Supplement 532-1, Appendix J does not establish a definite level,
but states that the differential will be paid to employees,
"working in an area where airborne concentrations of asbestos
fibers may expose employees to potential illness or injury . . .
* * * *
The 1980 OSHA-NIOSH study . . . stated that any concentrations
of airborne fibers in the workplace is inherently hazardous to
those employees exposed to that work environment.
* * * *
(The Arbitrator then found specifically that the exposure
standards set by Federal regulation and the intent of Appendix J
to the FPM Supplement are not interdependent.)
* * * *
The issue, then, is whether there are concentrations of
airborne asbestos fibers in the ambient air of the Power House . .
.
The Arbitrator's visit to the Power House was revealing but not
conclusive. Visual inspection could, in no manner, reveal whether
the ambient air contained concentrations of asbestos fibers.
Certainly, the broken insulation, the mysterious grey matter on
the grating and the evidence of a major rip-out all indicate the
possibility of concentrations of airborne asbestos fibers.
However, it is clear that such a determination can only be made on
the basis of air samples obtained through competent and accepted
sampling techniques.
Discussion and Conclusions
Counsel for both the Charging Party and for the General Counsel argue
that the award of the Arbitrator is clear and unambiguous, that
Respondent has failed to comply with the award in that it has failed and
refused to pay employees the environmental differential, and that
Respondent should be ordered to do so.
On the other hand, Respondent argues that based on its interpretation
of the award it has complied with it in good faith, and that the dispute
in this matter arises out of differing but reasonably arguable
interpretations of the terms of the award. According to Respondent the
award requires it to pay only "for exposure to 'concentrations' of
asbestos in the workplace. That is, to pay for exposure to some level
or amount of asbestos which is concentrated-- i.e., elevated,
densified-- above the general atmosphere which normally exists away from
the workplace." Further, Respondent avers that compensation is to be
paid only for exposure at or above the OSHA standard.
While Respondent's argument is intriguing, I do not find it
convincing. First of all, in his decision, the Arbitrator specifically
rejected Respondent's claim that the OSHA standard should be
determinative. By rejecting that argument, the Arbitrator implicitly
accepted the Union's argument that exposure to any concentration of
asbestos would be compensable. He made specific reference in his
findings to the 1980 OSHA-NIOSH study which found "any concentration" to
be inherently hazardous. He quoted a conclusion of the study that
"there is no level of exposure below which clinical effects do not occur
. . . ", and he found that the OSHA standard was designed to reduce the
hazard and not to indicate a level below which the hazard should be
found not to exist. Moreover, the Arbitrator saw the issue to be
"whether there are concentrations of airborne asbestos fibers in the
ambient air of the Power House . . . ", and, refusing to rely on his
layman's-eye-view of the situs, he concluded that a scientific study of
the air would be the only method by which the indicated "possibility" of
concentrations could be confirmed as an actuality. Thus, taking the
decision and award of the Arbitrator as a whole, there is no reasonable
basis for concluding other than that Respondent would be obligated to
pay the differential if the study demonstrated any concentrations of
airborne asbestos fibers.
The second prong of Respondent's argument that the award may be
interpreted in more than one way rests on its definition of the word
"concentrated" as meaning elevated or densified. However, the proper
interpretation of any word depends upon the context in which that word
is used. And given the context of use in this case, it is quite clear
that Respondent has chosen a definition of the word which is not
germane. In the first place, the Arbitrator did not refer to
"concentrated" asbestos; his reference was to "concentrations" of
asbestos. Concentrated asbestos, like concentrated orange juice, would
refer to a product which is strengthened by the removal of diluents or
extraneous materials. Concentrations of matter in a solution, mixture
or dispersion, on the other hand, would refer to the relative content of
a component that may be expressed in percentage by weight or by volume
as, for example, in parts per million or in grams per liter. /4/ The
only reasonable interpretation of the Arbitrator's award is that the
alternative of a test was designed to reveal only whether the ambient
air contained any concentrations of asbestos fibers, regardless of how
concentrated those asbestos fibers might be found to be. To construe
the award otherwise would fly in the face of the Arbitrator's finding
that the OSHA standard should not be determinative, and it would render
meaningless his background discussion of the cumulative and carcinogenic
effects of asbestos exposure.
On brief, Respondent's position was summarized as follows:
Accordingly, when Respondent determined, based upon the test
results, that not a single one of the P-1 employees was being
exposed to any level of airborne asbestos greater than that found
in the general outside atmosphere, it properly declined to pay
differential for a hazardous exposure to asbestos.
Based on the clear reading of the award and the evidence presented by
Respondent's own study, that position cannot be sustained. The only
question presented by the Arbitrator was whether airborne concentrations
of asbestos fibers were present in Building P-1; he did not direct a
study of general background air. Moreover, the study did not portray
the general outside atmosphere; it only measured a background sample
taken atop the Industrial Hygiene Lab at the Norfolk Shipyard. That
background sample took 2.17 hours and measured 260 liters of air. A
concentration /5/ of 0.13 fibers per cubic centimeter was found to be
present. What that sample shows is merely that such concentrations also
exist at that site in particular. Of interest though, is the data on
page 6 of the Sampling Data Sheet which seems to indicate that at least
one sample would indicate a higher exposure inside Building P-1. In
measuring the personal breathing zone of a Mr. Laughlin, a boilermaker
changing valve wheels at all levels of the plant, technicians sampled an
identical 260 liters of air over an identical 2.17 hours and found 0.16
fibers per cubic centimeter. However, in the remarks column, it states,
"Short Sampling Period due to personnel assigned tasks outside of Power
Plant." No such remarks appeared beside the sample taken for the same
period of time at the Industrial Hygiene Lab to explain why that sample
would be valid while the one taken from Mr. Laughlin would not be. The
record also does not explain away the inconsistencies between other
samples showing higher concentrations such as the one on page 1,
involving a boilermaker on top of Boiler #62, taken over 1.58 hours,
measuring 190 liters, finding 0.34 fibers per cubic centimeter, and with
the remark, "Not ideal sample-- sampling too short for 8-hour exposure
evaluation"; and the one on page 3 involving a Boiler Plant Operator on
top of Boiler #59 and that same Boiler #62, taken over 7.42 hours,
measuring 890 liters, finding 0.23 fibers per cubic centimeter, and
noting no remarks on the sample. In short, Respondent's study shows
that airborne concentrations of asbestos fibers are certainly present in
Building P-1 and that, incidentally, those concentrations are, at least
at times, greater than those found in the outside atmosphere at one
particular location at the Shipyard. /6/
I conclude that the award of the Arbitrator is clear and unambiguous
in its direction that if the study demonstrates that any concentrations
of airborne fibers are present in the Power House, then affected Power
House employees are to be paid the eight percent environmental
differential retroactive to March 9, 1975. Further, I conclude that the
study did in fact demonstrate the existence of such concentrations;
that, nevertheless, Respondent has failed and refused to pay that
differential; and that having so failed and refused to pay, Respondent
has failed and refused to comply with an arbitrator's award and has
thereby violated Sections 7116(a)(1), (5) and (8) of the Statute. /7/
Accordingly, I recommend that the Authority adopt the following:
ORDER
ORDERED, that the Navy Public Works Center, Norfolk, Virginia shall:
1. Cease and desist from:
(a) Failing and refusing to comply with a final and binding
arbitral award in Decision No. F-FMCS-8, dated August 11, 1980.
(b) In any like or related manner, interfering with,
restraining or coercing employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Implement the August 11, 1980, award of the Arbitrator in
Decision No. F-FMCS-8 by paying affected Power House employees the
eight percent environmental differential retroactive to March 9,
1975, and make whole the Union and affected employees for any
other losses suffered as a result of Respondent's failure and
refusal to implement that award.
(b) Post at its facilities copies of the attached notice marked
"Appendix" on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by an
authorized representative and shall be posted and maintained in
conspicuous places, including all bulletin boards and other places
where notices are customarily posted. Reasonable steps shall be
taken to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Federal Labor Relations Authority in writing
within 30 days from the date of this Order as to what steps have
been taken to comply with the Order.
ALAN W. HEIFETZ
Administrative Law Judge
Dated: November 13, 1981
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT
WE WILL NOT fail or refuse to comply with the final and binding
arbitral award in Decision No. F-FMCS-8, dated August 11, 1980.
WE WILL NOT in any like or related manner, interfere with, restrain
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL implement the August 11, 1980, award of the Arbitrator in
Decision No. F-FMCS-8 by paying affected Power House employees the eight
percent environmental differential retroactive to March 9, 1975, and
make whole the Union and affected employees for any other losses
suffered as a result of our failure and refusal to implement that award.
(Agency or Activity)
By: (Signature)
Dated: . . .
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any question concerning this Notice, or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Region III, whose
address is: 1111 18th Street, NW, Suite 700, Washington, DC 20036 and
whose telephone number is (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ See U.S. Army Health Clinic, Fort Ritchie, Maryland, 9 FLRA 935
(1982). In so concluding, the Authority finds it unnecessary to pass
upon the Judge's further finding that the Respondent also failed to
bargain in good faith in violation of section 7116(a)(1) and (5) of the
Statute.
/2/ While the Judge recommended that the Respondent also "make whole
the Union and affected employees for any other losses suffered as a
result of Respondent's failure and refusal to implement that award," the
Authority shall order only that the Respondent be ordered to pay the
environmental differential in accordance with the arbitrator's award, as
neither the evidence nor the Judge's decision establish a basis to
support any additional remedy.
/3/ Cf. Section 7122 of the Statute entitled, "Exceptions to arbitral
awards".
/4/ See, Webster's Third New International Dictionary, (unabridged
ed. 1971).
/5/ The term "concentration" is employed as a heading on the Sampling
Data Sheet complied at Respondent's instance. Its use in this manner is
consistent with the conclusion, reached above, as to the meaning of that
word as it was used in the Arbitrator's award.
/6/ This conclusion does not take into account samples, taken during
the study of insulators, wearing special protective equipment and
conducting asbestos ripouts, which showed exposure to concentrations of
from 1.5 to 4.3 fibers cubic centimeter.
/7/ Having reached this conclusion, I need not address the issue
whether, if the award is indeed ambiguous, the proper remedy is to
return the matter to the Arbitrator for clarification.