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49 FLRA No. 35

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

ALLEN PARK, MICHIGAN

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 933

(Charging Party)

CH-CA-20021

CH-CA-20164

CH-CA-20821

_____

DECISION AND ORDER

March 7, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceedings, finding that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with two arbitration awards which directed the Respondent to pay Environmental Differential Pay (EDP), with interest, to affected employees for certain time periods. No exceptions were filed to the Judge's conclusion that the Respondent violated section 7116(a)(1) and (8) of the Statute. The General Counsel and the Charging Party filed exceptions to the Judge's conclusion regarding the time period for which the Respondent must pay EDP and to portions of the Judge's recommended Order.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. Accordingly, we affirm the rulings. Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings and conclusions that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to comply fully with the two arbitration awards. We will, however, modify the Judge's recommended Order.

The Judge concluded that the Respondent was required to provide affected employees with EDP for the time periods from November 14, 1989 to August 17, 1990, and from April 12, 1991 until such time as exposure to potential illness from asbestos has been abated. The General Counsel and the Charging Party contend that the Respondent also should be required to provide EDP for the period from August 18, 1990 to April 11, 1991.

In the first arbitration award involved in this case (the August 17, 1990 award), the arbitrator determined that the Respondent was obligated to provide EDP to affected employees from November 4, 1989 "'until asbestos [was] abated.'" Judge's Decision at 6 (citing General Counsel Exhibit 6 at 4). In the second award involved in this case (the June 23, 1992 award), the arbitrator found that there was "no abatement of asbestos at the VA facility to this date, and specifically during the period from April 12, 1991 to the present[]" and that "payment of EDP shall continue unabated." Id. at 11 (citing General Counsel Exhibit 52 at 9).

As noted, the arbitrator specifically found in the second award that no abatement of exposure to potential illness from asbestos occurred from April 12, 1991 to the date of the second award.⁽¹⁾ However, nothing in that award, or the record as a whole, provides a basis for concluding that the arbitrator intended to exclude any period of time after November 4, 1989 from the period for which payment of EDP was required. Indeed, the arbitrator stated clearly that, as of the date of the second award, no abatement of exposure to potential illness from asbestos had occurred. As the first award required EDP until such abatement, and as the second award confirmed that no abatement had occurred, we conclude that the awards were intended to require payment of EDP for a continuous period of time from November 4, 1989. We will modify the Judge's recommended Order accordingly.⁽²⁾

II. Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of Veterans Affairs, Medical Center, Allen Park, Michigan, shall:

1. Cease and desist from:

(a) Failing and refusing to comply with the August 17, 1990 and June 23, 1992 arbitration awards of Arbitrator William M. Ellmann.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Comply fully with the August 17, 1990 and June 23, 1992 arbitration awards by paying (1) environmental differential pay, with interest, to affected employees from November 14, 1989 until such time as exposure to potential illness from asbestos has been abated; and (2) attorney fees of $9,450.00 in accordance with the June 23, 1992 award.

(b) Post at its facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 933 are located, 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 the Director, and shall be posted and maintained for

60 consecutive days thereafter, 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 such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Chicago Region, 55 West Monroe, Suite 1150, Chicago, IL 60603 in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to fully comply with the August 17, 1990 and June 23, 1992 arbitration awards of Arbitrator William E. Ellmann.

WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL comply with the August 17, 1990 and June 23, 1992 arbitration awards by paying (1) environmental differential pay, with interest, to affected employees from November 14, 1989 until such time as exposure to potential illness from asbestos has been abated in accordance with the awards; and (2) attorney fees of $9,450.00 in accordance with the June 23, 1992 award.

________________________________

(Activity)

Dated:_______________ By: __________________

(Signature) (Title)

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 questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Chicago Region, whose address is: 55 West Monroe, Suite 1150, Chicago, IL 60603, and whose telephone number is:

(312) 353-6306.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Respondent's exceptions to the first award were denied by the Authority on April 11, 1991 in U.S. Department of Veterans Affairs, Allen Park Veterans Administration Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 40 FLRA 160 (1991).

2. Consistent with the Judge's statement that a request for attorney fees in connection with an unfair labor practice proceeding must be addressed to the Authority, the Charging Party "requests that it be permitted to present a motion reciting the fees it has incurred" in connection with the unfair labor practice proceedings. Exceptions at 18. We grant the Charging Party's request and note that an application for attorney fees under the Back Pay Act, 5 U.S.C. § 5596, should be filed within 30 days of the date of this Decision and Order, in accordance with the Authority's proposed regulations concerning attorney fees under the Back Pay Act issued for comment in the Federal Register. 53 Fed. Reg. 10,885 (April 4, 1988).

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