[ v56 p1057 ]

56 FLRA No. 189

U.S. DEPARTMENT OF THE ARMY
CORPUS CHRISTI ARMY DEPOT
CORPUS CHRISTI, TEXAS
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2142

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 797

and

INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, LODGE 2049
(Unions)

0-AR-3309

_____

DECISION

January 31, 2001

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1] 

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to both the original and supplemental award of Arbitrator John B. Barnard filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator found that employees were entitled to receive environmental differential pay (EDP) for exposure to asbestos. He ordered the Agency to pay eligible employees differential pay, with interest, for 6 years prior to the time that the Unions filed the grievance. In addition, the Arbitrator ordered contractual attorney fees to be segregated and paid to the Unions' attorneys at the time of the payment of the award. The Arbitrator retained jurisdiction for the purposes of resolving any differences that may arise over the determination and implementation of payment of the award and contractual attorney fees. Thereafter, on request of the Unions, the Arbitrator issued a supplemental award, which clarified the employees eligible for the award of EDP and clarified the process by which contractual attorney fees would be distributed.

      For the reasons fully explained below, we find that the Agency has failed to establish that the Arbitrator's original award is deficient. With respect to the supplemental award, we find that the Arbitrator was authorized to issue the supplemental award and that the Agency's exceptions to the supplemental award were timely filed. We find that the supplemental award is deficient to the extent that it directs the agency head to permit and make deductions from EDP to pay the contractual attorney fees, and we modify the supplemental award accordingly.

II.     Background

      On February 12, 1998, the American Federation of Government Employees, Local 2142 ("AFGE"), the National Federation of Federal Employees, Local 797 ("NFFE"), and the International Association of Machinists and Aerospace Workers, Lodge 2049 ("IAMAW"), (collectively "the Unions"), filed a consolidated grievance with the Agency. The grievance concerned:

[T]he Agency's failure and/or refusal to pay environmental differential pay (EDP) . . . to all Bargaining Unit employees represented by the Union as a result of asbestos exposure at the [Agency's] Facility . . . since March 9, 1975.

Award at 2. The specific remedy sought was the following:

[T]he award of EDP . . . to all bargaining unit employees for each day of exposure since March 9, 1975 (for WG employees), . . . continuing until the exposure no longer exists.

Id. at 3. The matter was not resolved and was submitted to arbitration. The Arbitrator sustained the grievance. He ordered the Agency to pay eligible employees differential pay, with interest, for 6 years prior to the time that the Unions filed the grievance. In addition, the Arbitrator ordered contractual attorney fees to be segregated and paid to the Unions' attorneys at the time of the payment of the award. The Arbitrator retained jurisdiction for the purposes of resolving any differences that may arise over the determination and implementation of payment of the award and contractual attorney fees. [ v56 p1058 ]

      After the Arbitrator issued the award, the Unions sent the Arbitrator a letter, dated May 11, 2000, requesting that he clarify the meaning of the term "eligible employees," as part of his order for payment of EDP. The Unions also requested that the Arbitrator clearly define the process by which the Agency is to permit and make deductions from the EDP award for distribution of contractual attorney fees. The Arbitrator issued a supplemental award on May 12, 2000. He clarified that "eligible employees," for purposes of the award, means "all wage grade Bargaining Unit employees . . . employed at [the Agency] during the period of the EDP award." Supplemental Award at 1. With regard to the distribution of attorney's fees, the Arbitrator ordered as follows:

[T]he orders pertaining to the segregation and payment of the Unions' contractual attorney's fees at the time of distribution and payment of the award means that the Arbitrator finds that the Unions have, pursuant to their authority to represent the Bargaining Units, contractually agreed on behalf of the individual employees that 33 1/3% of the EDP award shall be paid to the Unions' attorneys in accordance with the contractual attorney's fees agreement . . . . The CCAD [Corpus Christi Army Depot] "Agency head" is, therefore, directed, pursuant to 5 C.F.R. § 550.311(c) to permit and make deductions from the EDP to be paid to the eligible employees pursuant to this award in the amount of 33 1/3% which shall be paid to [the Unions' attorneys] . . . . In the alternative, if necessary, the Agency is directed to take and effectuate whatever actions or procedures are necessary at the time of the distribution of the award hereunder to provide for and ensure that 33 1/3% of the award is paid to [the Unions' attorneys].

Id. at 1.

III.     Preliminary Issues: The Arbitrator Was Authorized to Issue the Supplemental Award and the Agency's Supplemental Exceptions Were Timely Filed

A.     Positions of the Parties

      In its supplemental exceptions, the Agency disputes the Arbitrator's authority to issue the supplemental award. In addition, the Agency "incorporates, reiterates and resubmits each of the arguments, enclosures and attachments (including transcript copies) filed as the Agency's exceptions to the initial award." Supplemental Exceptions at 3-4. The Agency maintains that it never agreed to the Unions' May 11 request for clarification and that the Arbitrator issued the supplemental award before it could file any submissions and without conducting further hearings or consulting the Agency in any way. The Agency also maintains that the supplemental award "parrots" the language of the letter to the Arbitrator from the Unions' attorneys. Id. at 2. The Agency contends that the Arbitrator exceeded his authority by issuing the supplemental award. The Agency argues that the Arbitrator was functus officio and was not empowered to issue the supplemental award solely on the request of the Unions.

      The Unions first argue that the Agency's supplemental exceptions are untimely because the supplemental award did nothing more than clarify the Arbitrator's original findings and determinations. In addition, the Unions maintain that the Agency should not be permitted to present evidence and exhibits as part of its reiterated exceptions that the Agency failed to include with its original exceptions. The Unions assert that "the Agency has improperly utilized its purported Supplemental Exceptions as a devious means of supplementing `after the fact' the exhibits and transcript citations which the Agency failed to include within the Agency's First Exceptions." Response to Supplemental Exceptions at 5. The Unions allege that the Agency's supplemental exceptions amount to additional and supplemental argument in support of its original exceptions that are untimely.

      As to the Arbitrator's authority to issue a supplemental award, the Unions argue that the Arbitrator was authorized to issue the supplemental award because it did not substantively change or revise the original award in any respect. The Unions also maintain that there was no need for the Arbitrator to conduct further hearings or consult with the Agency because there was no evidence to submit or consider in the preparation and rendition of the supplemental award.

B.     Analysis and Conclusions

      The Authority has consistently held that without specific retention of jurisdiction by the arbitrator, any further action by the arbitrator may only be taken at the joint request of the parties. See United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 56 FLRA 249, 253 (2000) (Seymour Johnson AFB). However, where an arbitrator expressly retains jurisdiction in the original award for purposes of resolving any dispute regarding interpretation or implementation, the arbitrator does not act improperly by issuing an award resolving any dispute over implementation of the original award. Moreover, the Authority will address and resolve any exceptions to the substance of the supplemental [ v56 p1059 ] award. See id.; United States Dep't of Veterans Admin., Med. Ctr, Leavenworth, Kan., 38 FLRA 232, 238-39 (1990) (VAMC, Leavenworth).

      In the original award, the Arbitrator expressly retained jurisdiction to resolve any disputes regarding interpretation or implementation. Therefore, the Arbitrator had jurisdiction to take subsequent action regarding the clarification of the employees eligible for the award of EDP and the process by which the Agency was to permit and make deductions from the EDP award for payment of contractual attorney fees. Moreover, it was the Arbitrator's clarification that was requested. The Agency fails to establish that an arbitrator cannot explain his or her own award without input from the parties. [n2] 

      Accordingly, we deny the Agency's exception that the Arbitrator exceeded his authority by issuing the supplemental award. However, we will address and resolve the Agency's exceptions that pertain to the terms of the supplemental award. See Seymour Johnson AFB, 56 FLRA at 253; VAMC, Leavenworth, 38 FLRA at 238-39. Thus, contrary to the argument of the Unions, we will address and resolve whether the award is deficient because the Arbitrator awarded EDP to all wage-grade, bargaining unit employees or because the Arbitrator ordered that the Agency head permit and make deductions from the EDP award for payment of contractual attorney fees. Both of these exceptions pertain to the substance of the supplemental award.

      With respect to the Unions' motion to strike the Agency's supplementation of its original exceptions on aspects of the initial award that were not addressed in the supplemental award, in agreement with the Unions, we strike the supplemented exceptions and resolve the exceptions as originally argued. Because the deficiencies addressed in those exceptions arose as a result of the original award and are not addressed in the supplemental award, the supplemental award did not operate to renew the time period for filing exceptions as to those matters under § 7122 of the Statute. Accordingly, the attempted supplementation is untimely. See NTEU Chapter 33, 44 FLRA 252, 268 (1992). We will resolve the exceptions to the original award on the basis of the arguments as presented in the exceptions filed by the Agency on April 26, 2000.          

IV.     The Agency Fails to Establish that the Award Does Not Draw its Essence from the Collective Bargaining Agreements

A.     Arbitrator's Award

      The Agency argued before the Arbitrator that NFFE and IAMAW's consolidated grievance must be excluded from the grievance proceeding because Article 22 of the NFFE agreement, and Article 24 of the IAMAW agreement, respectively, state that the grievance procedure shall not include grievances that concern application of the payment of EDP. Award at 86. [n3]  In responding to that argument, the Arbitrator found that the effect of NFFE Article 22 and IAMAW Article 24 is to exclude from the grievance procedure matters that are determined in accordance with NFFE Article 18 and IAMAW Article 31, respectively. [n4]  Accordingly, in order to determine the meaning of Article 22 and Article 24, the Arbitrator stated that "[t]he next step . . . is to analyze the language in Articles 18 (NFFE) and [Article] 31 (IAMAW)." Id. at 88.

      After reviewing the language of the agreements and the testimony before him, the Arbitrator determined that the effect of NFFE Article 18 and IAMAW Article 31 is to "spell out a procedure which is open to the Unions to pursue the question of EDP with the Agency . . . [t]his procedure allows the Union to enter into discussions with the Agency concerning EDP . . . [but] does not mandate that these discussions take place." Award at 88. In explaining his reasoning, the Arbitrator found that the "key wording" in NFFE Article 18 and IAMAW Article 31 is that the Unions "may bring" to the attention of the Agency the issue of EDP. Award at 89 (citing Article 18, section 3 and Article 31, section 3, respectively, of the NFFE and IAMAW agreements). The Arbitrator explained that the word "may" "gives the Unions the option of pursuing EDP[,]" and if either article [ v56 p1060 ] "was [meant] to be a mandatory means of pursuing EDP, the word may would be replaced with the word must." Id. The Arbitrator concluded that the effect of Articles 22 and 24 is to preclude use of the grievance procedure when the parties have already elected to negotiate over EDP pursuant to Article 18 or Article 31. Because NFFE and IAMAW "correctly elected to utilize the grievance procedure" to settle whether or not EDP payment was due, "rather than the alternative of Article 31 of the IAMAW agreement [or] Article 18 of the NFFE agreement[,]" the Arbitrator held that "the Agency argument on this subject is without merit." Id. at 91.

B.     Agency's Exception

      The Agency claims that the award fails to draw its essence from the NFFE and IAMAW agreements because the language contained in those agreements "explicitly excludes grievances pertaining to EDP." Exceptions at 8. In this regard, the Agency quotes Article 24, section 1 of the IAMAW agreement, which states: "the formal Grievance Procedure 'shall not include grievances concerning: . . . (f) The application of the payment of Environmental Differential Pay (EDP) to certain work situations which is determined in accordance with Article 31 of this Agreement._ (emphasis added)." Id. at 9. The Agency concludes that "the Differential Pay articles" set forth in the NFFE and IAMAW agreements establish an "exclusive three-step procedure which details the steps the union must take to raise questions of EDP entitlement for its bargaining unit members" and that those articles establish that the parties agreed that a "bi-lateral agreement" would be the only means to resolve any dispute over EDP. Id. at 10-11.

      In addition, the Agency disagrees with the Arbitrator's interpretation of the word "may" as it is found in Article 18, section 3 of the NFFE agreement, and Article 31, section 3 of the IAMAW agreement, which both state that "[t]he Union may bring to the attention of the Employer any situations which it feels should be investigated for possible Environmental Differential Pay." Exceptions at 9-10 (citing the Unions' agreement language). The Agency claims that the effect of those negotiated provisions is to establish "the exclusive mechanism for the [U]nion to seek entitlement to EDP." Id. at 11-12.

      In sum, the Agency claims that, by allowing the issue of EDP to be arbitrated, the Arbitrator "effectively deleted" provisions of the parties' agreements. In doing so, the Agency claims that the Arbitrator violated NFFE Article 9, section 5, and IAMAW Article 25, section 5, which state that "the arbitrator shall not change, modify, alter, delete or add to the provisions of this agreement." [n5]  Id. at 13. Accordingly, citing 24th Combat Support Group, Howard Air Force Base, Republic of Pan., 55 FLRA 273 (1999), the Agency argues that the award should be set aside.

      The Agency does not claim that AFGE's grievance should not have been considered by the Arbitrator.

C.     Unions' Opposition

      The Unions claim that the Arbitrator's finding that the NFFE and IAMAW agreements do "not categorically exclude . . . EDP from the grievance and arbitration procedures of the contracts" is a reasonable interpretation of the contract provisions. Opposition at 68. The Unions base their reasoning upon two arguments. First, the Unions refer to the testimony of an Agency witness that the language of Article 31 of the IAMAW agreement "would not have used the word `may' if the requirement of `shall' was meant . . . [and] that Article 31 does not say the Union must bring EDP to the employer's attention only through means of the Article 31 process." Id. at 70 (citing Tr. Vol. III at 226-27, 237). Second, the Unions claim that the language of Article 18 of the NFFE agreement and Article 31 of the IAMAW agreement set forth only "a right to meet and discuss EDP issues and, therefore, the opportunity to negotiate a resolution through mutual agreement" and have "nothing whatever to do with the right of the Unions to utilize the grievance procedure in the manner specifically provided in the grievance procedure [A]rticles (NFFE [ ] Art. 22 and IAMAW Art. 24)." Id. at 72. In support, the Unions point out that the language of Article 18 and Article 31 does not exclude the issue of EDP from the grievance procedure set forth in Article 22 and Article 24. The Unions conclude that the language of the Unions' agreements, coupled with "the unrebutted testimony of all witnesses . . . that these grievances were not grievances concerning or arising out of a determination pursuant to discussions as set forth in Article 31 of the IAMAW agreement or Article 18 of the NFFE agreement," demonstrates that the Arbitrator's interpretation of the parties' agreements was not implausible. Id. at 73. [n6]  [ v56 p1061 ]

D.     Analysis and Conclusions

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See AFGE Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      The Authority has held that an award will not be found to fail to draw its essence from an agreement merely because a party believes that the arbitrator misinterpreted the agreement. See id. Here, the Arbitrator found that the Unions chose the option of utilizing the negotiated grievance procedure to settle the question of whether employees are entitled to EDP. In making this finding, the Arbitrator analyzed the language of Article 18, section 3 of the NFFE agreement, and Article 31, section 3 of the IAMAW agreement, both of which state that the union "may bring to the attention of the Employer any situations which it feels should be investigated for possible [EDP]." See Appendix (quoting relevant parts of the parties' agreements). In doing so, the Arbitrator found that the word "may" in the parties' agreements does not mandate that NFFE and IAMAW seek EDP only by negotiating with the Agency. Rather, the Arbitrator found that, if the parties' agreements were intended to exclude the issue of EDP from the grievance procedure, then "the word may would be replaced with the word must." Award at 89. Accordingly, the Arbitrator found that "[t]he Unions correctly elected to utilize the grievance procedure rather than the alternative of Article 31 of the IAMAW agreement [or] Article 18 of the NFFE agreement," and concluded that the Agency's argument that the grievances are nonarbitrable is without merit. Id. at 91. Upon review of the relevant provisions, we find that, considering the manner in which the word "may" was interpreted, and the wording of the Unions' agreements as a whole, the Arbitrator's interpretation of the agreements, while not the only possible interpretation, is not implausible or irrational. Accordingly, the Agency has not shown that the award fails to draw its essence from the agreement.

V.     The Agency Fails to Establish that the Arbitrator Exceeded his Authority

A.     Arbitrator's Award

      As detailed above, the Arbitrator found that the NFFE and IAMAW agreements did not exclude the issue of EDP from grievance arbitration in this case.

      With regard to whether IAMAW was properly included in the grievance, the Arbitrator noted merely that the parties filed a supplemental and consolidated grievance with the Agency on February 12, 1998. See Award at 2.

B.     Agency's Exception

      The Agency claims that the Arbitrator exceeded his authority "when he disregarded" the language of the NFFE and IAMAW contracts which "specifically exclude the Union or its members from filing grievances for the Agency failure to apply EDP to certain work situations." Exceptions at 14. Accordingly, citing, among other cases, AFGE Local 547, 19 FLRA 725, 727 (1985), the Agency claims that the award is deficient because the Arbitrator was barred from considering the Unions' grievances.

      In addition, the Agency argues that, because IAMAW never filed a grievance independent of AFGE and NFFE, the Arbitrator exceeded his authority by awarding backpay to IAMAW employees. In this connection, the Agency states that AFGE and NFFE filed separate, independent, grievances on behalf of their employees, which were later consolidated, and that "[w]hen the consolidated grievance was filed, IAMAW . . . was included." Exceptions at 15. The Agency points out that it has "consistently maintained a jurisdictional challenge to the IAMAW inclusion," and claims that IAMAW does not have a right to recovery because it did not "go . . . through the steps of the negotiated grievance procedure." Id. at 16. Citing Robins Air Force Base, Warner Robins, Ga., 18 FLRA 899 (1985) (Robins AFB), and AFGE, Nat'l Immigration and Naturalization Serv. Council, 15 FLRA 355 (1984) (INS Council), the Agency asserts that the award should be set aside.

C.     Unions' Opposition

      The Unions claim that arbitrators have absolute discretion to determine whether grievances are procedurally arbitrable. In support, the Unions cite, among other cases, John Wiley & Sons, Inc. v. Livingston, 376 [ v56 p1062 ] U.S. 543 (1964), and EPA, Region IV, Atlanta, Ga., 5 FLRA 277 (1981). As such, the Unions claim that the Agency's argument that the Arbitrator exceeded his authority by deciding a question of procedural arbitrability is without merit.

      In addition, the Unions dispute the Agency's claim that IAMAW did not follow the proper grievance procedure. Instead, the Unions argue that the grievance itself demonstrates that IAMAW's grievance was properly filed. In support, the Unions quote their February 12, 1998 consolidated grievance as follows: "[t]o the extent necessary, this grievance represents IAMAW's initial asbestos back pay grievance . . . . " Opposition at 80 (quoting the grievance, attached to Unions' Opposition as Exh. 202).

D.     Analysis and Conclusions

      Arbitrators exceeds their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to persons who are not encompassed within the grievance. See United States Dep't of Def., Army and Air Force Exchange Serv., 51 FLRA 1371, 1378 (1996).

      The Agency argues that the Arbitrator disregarded a specific limitation on his authority when he found that Article 22 of the NFFE agreement, and Article 24 of the IAMAW agreement, respectively, do not operate to exclude the Unions' grievances in this case. We find that, consistent with our discussion above concerning essence, the Agency has provided no basis for concluding that the Arbitrator's interpretation of the Unions' agreements is deficient. As such, the Agency has not demonstrated that the Arbitrator disregarded a specific limitation on his authority by finding that the NFFE and IAMAW grievances were arbitrable.

      With regard to the Agency's argument that IAMAW filed its grievance in a manner that was procedurally defective, we find that there is no merit to that claim. Here, the record demonstrates that on February 12, 1998, AFGE, IAMAW, and NFFE filed a consolidated grievance with the Agency. Award at 2. Accordingly, the record demonstrates that IAMAW was included in the Unions' grievance. [n7]  In addition, the Agency cites no provision of the IAMAW agreement that demonstrates that the method in which IAMAW filed its grievance renders the award deficient. As the Agency has submitted no evidence indicating that the Arbitrator resolved an issue not submitted to arbitration, disregarded specific limitations on his authority, or awarded relief to persons who were not encompassed within the grievance, we find that the Agency has not demonstrated that the Arbitrator exceeded his authority.

VI.     The Agency Fails to Establish that the Award is Contrary to Law or Regulation

A.     Arbitrator's Award

      The Arbitrator specifically addressed the issue of what standard should be applied to determine the level of exposure for which EDP can be paid. Based on his reading of the parties' agreements and applicable regulations, the Arbitrator determined that 5 C.F.R. part 532, subpart E, Appendix A, category 16 is the standard that should be used to determine EDP in this case. [n8] 

      The Arbitrator then addressed the two requirements for EDP pay that are set forth in Appendix A, category 16. With regard to the first requirement of category 16, the Arbitrator found that employees at the Agency were working in an area where airborne concentrations of asbestos fibers may expose them to illness or injury. In particular, the Arbitrator held that "the considerations of both the Agency's historical air sampling records for the facility and the documented medical reports lead me to conclude that the requirements for EDP payment have been met." Id. at 60. The Arbitrator based his conclusion upon the following findings: (1) "Based upon the Agency's historical air sampling records, the average baseline air sample level (.00817 f/cc) and the average airborne asbestos clearance level (.0093 f/cc) represent levels far and above the levels found in the ambient air," and, as such, "the .0093 f/cc level is 10 to 100 times higher than the ambient airborne asbestos level," id. at 62; [n9]  (2) "Asbestos fiber conditions [ v56 p1063 ] move and circulate throughout the facility, through normal air currents, fans, air conditioning and people walking through the area . . . [a]s such, asbestos fibers are carried and circulated throughout and beyond the work areas," id.; (3) "[T]he typical employee has worked on average at least 17 years at the facility," id. at 63; (4) "[T]he Agency theoretical risk assessment to process employees from 1975-2004 is .39 to .95 per 1,000 employees, meaning that out of 100,000 employees, anywhere from at least 34 to 95 employees will die from cancer caused by asbestos exposure at the facility," id. at 68 (emphasis in original); [n10]  and (5) "[T]he medical records produced by the Union . . . amply demonstrate health problems experienced by the employees at the facility," id.

      In finding that the employees were working in areas where the airborne concentrations of asbestos fibers may expose them to potential illness or injury, the Arbitrator rejected the Agency's claim that the parties' contracts require application of the OSHA (Occupational Safety and Health Administration) TWA (Time Weighted Average) PEL (Permissible Exposure Level) standard for determining whether employees are entitled to EDP. [n11]  The Arbitrator explained that "[n]owhere in the collective bargaining agreements between the parties is there a reference that the OSHA PEL is the standard for EDP based on asbestos exposure," while Article 31 of AFGE's agreement, and Article 18 of NFFE's agreement, both reference 5 C.F.R. part 532, subpart E, Appendix A as the standard to be applied for determining entitlement to EDP. Award at 10. The Arbitrator also explained that the "specific language" of Appendix A, category 16 "takes precedence over general language" contained in 5 U.S.C. § 5343(c)(4). Id. at 13.

      With regard to the second requirement of category 16, the Arbitrator held that protective devices or safety measures had not practically eliminated the potential for personal illness or injury. Id. at 77. The Arbitrator based his conclusion upon the following findings: (1) "The Agency policy of simply making respirators available on demand does not satisfy OSHA and Army regulations requiring the use of respirators," id. at 71; "[T]he employees are not provided with and do not use protective (disposable) clothing and decontamination rooms," id.; (3) "employees continue . . . even today to scrape and remove asbestos from components and parts containing asbestos without any protection," id. at 72; and (4) Based upon a 1998 report, "[t]he average indoor asbestos fiber measurement was almost 47 times higher than the average outdoor asbestos fiber measurement," id. at 76.

      Finally, the Arbitrator rejected the Agency's argument that "[t]he period of time addressable by the Union grievance can only extend back twelve days prior to the filing of the grievance." Id. at 80 (quoting the Agency's post-hearing brief). In this regard, the Arbitrator held that the Agency "actively concealed its violation of the EDP regulation," and that "[t]he grievances were filed when the Union finally and (reasonably) suspected [the Agency] of a cover-up and of an EDP violation." Id. As such, the Arbitrator held that "[t]he evidence clearly establishes that the limitations period never began to run." Id. at 79. The Arbitrator found that, pursuant to 5 U.S.C. § 5596(b)(4), the Unions' claims were subject to a 6-year statute of limitations.

      In terms of a remedy, the Arbitrator held that "eligible employees" covered by the NFFE, IAMAW, and AFGE agreements were entitled to EDP for 6 years prior to the date that the grievance was filed. In doing so, the Arbitrator stated that he made his legal conclusions pursuant to the parties' collective bargaining agreements, "especially" Article 3 of the NFFE agreement, Article 3 of the IAMAW agreement, and Article 2 of AFGE's agreement; the Back Pay Act; 5 C.F.R. part 532, subpart E, Appendix A; and "all other applicable law." Id. at 96.

B.     The Agency Fails to Establish that the Award is Contrary to § 7121 of the Statute

1.     Positions of the Parties

      The Agency contends that the award is contrary to § 7121 of the Statute because it "violate[s] the right afforded both [the Agency] and the Unions . . . to exclude any matter from the grievance procedure." Exceptions at 18. In support, the Agency cites Indian Educators Fed'n, N.M. Fed'n of Teachers, 53 FLRA 352 (1997) (Indian Educators). The Agency again argues that the IAMAW and the NFFE collective bargaining agreements clearly exclude the matter of whether environmental differential pay is warranted for certain work situations. Thus, the Agency claims that because the award ignores the right of the parties to exclude the matter of payment of an environmental differential, the award conflicts with § 7121.

      The Unions contend that the award is not contrary to § 7121 because the Authority defers to an arbitrator's [ v56 p1064 ] interpretation of the scope of the negotiated grievance procedure. The Unions maintain that the Arbitrator interpreted the collective bargaining agreements as covering the grievances and that consequently, no basis is provided for finding the award contrary to § 7121.

2.     Analysis and Conclusions

      In Indian Educators, 53 FLRA 352, cited by the Agency to support its exception, the Authority addressed whether an arbitrator's substantive arbitrability determination was consistent with § 7121 of the Statute. The Authority concluded that an arbitrator's substantive arbitrability determination that relies on an interpretation of various provisions of the collective bargaining agreement is not contrary to § 7121 of the Statute. See id. at 359. Consequently, the Arbitrator's determination in this case that the grievances were arbitrable on the basis of his interpretation of both the grievance procedure article and the EDP article is clearly consistent with § 7121 of the Statute. Accordingly, we deny this exception.

C.      The Agency's Argument that EDP Cannot be Paid on the Basis of a Theory that There is no Safe Level of Exposure to Asbestos Provides no Basis for Finding the Award Deficient

1.     Positions of the Parties

      The Agency argues that an award of an environmental differential for exposure to asbestos based on a theory that there is no safe level of exposure to asbestos is contrary to law and that the time has come for the Authority to acknowledge that such an approach flagrantly disregards the statutory requirements. Exceptions at 18-22.

      The Unions argue that the Arbitrator did not utilize or rely on a standard that there is no safe level of exposure to asbestos. Instead, the Unions note that the Arbitrator specifically found that the exposure levels had been and continued to be 10 to 100 times higher than ambient asbestos levels. Opposition at 82-83.

2.     Analysis and Conclusions

      It is clear that the Arbitrator did not award the payment of an environmental differential on the basis that there is no safe level of exposure to asbestos. Consequently, we do not address whether an environmental differential can be paid on such a basis. The Agency's exception on this issue fails to establish that the award is deficient. Accordingly, we deny this exception.

D.     The Language of 5 C.F.R. Part 532 Provides no Basis for Finding the Award Deficient

1.     Positions of the Parties

      The Agency argues that the award is contrary to law because it uses the "vague and ambiguous qualifying language of [Appendix A]." Exceptions at 21. The Agency claims that the lack of a clear standard that can be applied consistently renders Appendix A contrary to law. The Agency maintains that under 5 U.S.C. § 5343(c)(4), an environmental differential can be paid for exposure to asbestos only if the hazard is unusually severe. The Agency asserts that because Appendix A does not require that the exposure to asbestos be unusually severe, payment of an environmental differential pursuant to Appendix A "may not fulfill the purpose of the statute as authorized by Congress." Id. at 20. The Agency alleges that as a result of the vague language of Appendix A, payments under Appendix A may violate the Appropriations Clause of the U.S. Constitution and the Anti-Deficiency Act, 31 U.S.C. § 1341. The Agency further alleges that because of the vague language of Appendix A, its terms cannot constitute the necessary waiver of sovereign immunity for awards of backpay. Finally, the Agency contends that the award is deficient because the Arbitrator failed to apply the provisions of § 5343(c)(4) and because the conditions of exposure found by the Arbitrator fail to satisfy the requirement of § 5343(c)(4) that the hazard be unusually severe.

      The Unions contend that the exception provides no basis for finding the award deficient. Opposition at 89-110. They argue that there is no merit to the Agency's arguments that to warrant a differential the hazard of exposure to asbestos must be unusually severe. The Unions note that 5 C.F.R. § 532.511 provides that a differential shall be paid when an employee is exposed to a hazard that falls within one of the categories approved by the Office of Personnel Management (OPM). The Unions alternatively argue that the Arbitrator's findings satisfy a requirement of an unusually severe hazard. In addition, the Unions maintain that the Authority has consistently held that specific work situations for which a differential is payable is left to local determination, including arbitration. The Unions further argue that the Back Pay Act constitutes the necessary waiver of sovereign immunity. The Unions also dispute that § 532.511 and Appendix A are impermissibly vague and that the payment of an environmental differential under Appendix A could violate the Anti-Deficiency Act. Finally, the Unions contend that the Agency lacks standing to challenge the enforceability of § 532.511 and Appendix A. [ v56 p1065 ]

2.     Analysis and Conclusions

      The Agency does not argue in this exception that the award is inconsistent with Appendix A. Instead, the substance of the Agency's exception is that the Arbitrator failed to apply the provisions of § 5343(c)(4) and that OPM's regulations for environmental differential pay, particularly for exposure to asbestos, are inconsistent with § 5343(c)(4) and raise constitutional and legal concerns. Such an exception provides no basis for finding an arbitration award deficient under § 7122 of the Statute. As to the claim that the award is contrary to § 5343(c)(4), we note that the language of that provision delegates to OPM the responsibility to determine proper differentials for duty involving unusually severe working conditions or unusually severe hazards. See 5 U.S.C. § 5343(c)(4) (set forth in the appendix to the decision). Given this express delegation, we conclude that there is no violation of § 5343(c)(4) in this case. Simply stated, the Authority will not find an award contrary to § 5343(c)(4) if it is consistent with 5 C.F.R. part 532, subpart E and Appendix A. The award will not be found deficient because 5 C.F.R. part 532, subpart E implements § 5343(c)(4). The Agency cannot challenge in this proceeding under § 7122 of the Statute the consistency of subpart E and Appendix A with § 5343(c)(4).

      The Authority has specifically held that it is not the proper forum for agency challenges to OPM regulations. See AFGE Local 4052, 56 FLRA 414, 416-17 (2000); United States Dep't of Def. Dependents Sch., Bulzbach Elementary Sch., Bulzbach, F.R.G., 56 FLRA 208, 212 (2000) (DODDS). Section 7105 of the Statute enumerates the powers and duties of the Authority, none of which relate to passing judgment on rules or regulations that OPM or any other Federal agency has enacted. Consequently, the Authority will resolve claims that an award is contrary to regulation, but will not resolve whether regulations are unconstitutional or contrary to law. See AFGE Local 4052, 56 FLRA at 416-17 (citing United States Dep't of the Air Force v. FLRA, 952 F.2d 446 (D.C. Cir. 1991)); DODDS, 56 FLRA at 212 (citing AFGE v. FLRA, 794 F.2d 1013, 1015 (5^th Cir. 1986); NTEU v. Devine, 577 F. Supp. 738 (D.D.C. 1983), aff'd 733 F.2d 114 (D.C. Cir. 1984)). In other words, unless subpart E and Appendix A are properly determined to be inconsistent with § 5343(c)(4), an award that is consistent with subpart E and Appendix A will be viewed as consistent with § 5343. As the Arbitrator applied Appendix A in determining that EDP was warranted and the Agency does not argue in this exception that the award is inconsistent with Appendix A, no basis is provided for finding the award deficient. See id. Accordingly, we deny this exception.

E.     The Agency Fails to Establish that the Award is Contrary to the Back Pay Act

1.     Positions of the Parties

      The Agency notes that Public Law 105-261, § 1104, 112 Stat. 2141 (1998), amended the Back Pay Act by inserting the following language at 5 U.S.C. § 5596(b):

(4) The pay, allowances, or differentials granted under this section for the period for which an unjustified or unwarranted personnel action was in effect shall not exceed that authorized by the applicable law, rule, regulations, or collective bargaining agreement under which the unjustified or unwarranted personnel action is found, except that in no case may pay, allowances, or differentials be granted under this section for a period beginning more than 6 years before the date of the filing of a timely appeal or, absent such filing, the date of the administrative determination.

The Agency argues that the contractual time limits for filing grievances must be viewed as a contractual backpay recovery period that applies under the Back Pay Act, instead of the specified 6-year period. Exceptions at 22-25. Consequently, the Agency asserts that the Arbitrator's failure to limit the backpay recovery period to the 8 working days and 12 working days specified in the collective bargaining agreements conflicts with the Back Pay Act, as amended.

      The Unions contend that the exception provides no basis for finding the award deficient. Opposition at 110-119. They argue that § 5596(b)(4) was not intended to alter an arbitrator's discretion to determine as a factual matter and as a matter of contract interpretation the time period for which a retroactive environmental differential should be paid. The Unions maintain that § 5596(b)(4) simply provides that in no event shall the recovery period extend beyond 6 years. The Unions also assert that the Arbitrator was justified in refusing to limit the recovery period to the contractual period for filing grievances because he found that the Agency's failure to pay an environmental differential was an ongoing and continuous violation.

2.     Analysis and Conclusions

      The Authority has specifically distinguished between contractual backpay recovery periods and contractual time periods for filing grievances. See United [ v56 p1066 ] States Dep't of Commerce, Nat'l Oceanic and Atmospheric Admin., 55 FLRA 816, 822 n.9 (1999). A contractual backpay recovery period specifies a time limit on recovery of backpay for timely filed grievances while a contractual filing period specifies the time limit for filing grievances. See id. The Arbitrator refused to interpret the contractual time limits for filing grievances as contractual backpay recovery periods. As the Authority defers to an arbitrator's interpretation and application of a collective bargaining agreement, the Agency's reliance on the contractual filing period for grievances is misplaced. The Agency fails to establish that notwithstanding such deference, the contractual filing period for grievances must apply as a matter of law to the backpay recovery period. Accordingly, we deny this exception.

F.     The Agency Fails to Establish that the Award is Deficient Because it Fails to Defer to the Agency's Denial of EDP

1.     Positions of the Parties

      The Agency claims that its decision to deny EDP should be granted deference under Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (Chevron). Exceptions at 25-28. The Agency notes that Congress delegated to OPM the authority to establish environmental differentials. The Agency asserts that under 5 C.F.R. § 532.511, OPM has deferred to local agencies by delegating to each installation the determination of whether any local work situations are covered by any of the defined categories. Consequently, the Agency argues that it has the sole authority to decide whether a local work situation warrants payment of EDP. In addition, the Agency asserts that OPM policy in reviewing an agency's determination of whether a local work situation warrants payment of an environmental differential is to apply OSHA standards. The Agency claims that because this is the policy of OPM, the Arbitrator was required to grant Chevron deference to the Agency's denial of EDP on the basis of OSHA standards.

      The Unions argue that the Agency's denial of EDP is not entitled to any deference. Opposition at 119-121. They assert that the OPM decision letter that the Agency relies on to support its deference argument expressly states that OPM's claim adjudication authority does not extend to matters subject to a negotiated grievance procedure. The Unions claim that when matters are subject to arbitration, the required deference is to an arbitrator's resolution of whether EDP is warranted. The Unions also dispute that OPM policy is to deny claims for an environmental differential for exposure to asbestos whenever the OSHA standards have not been exceeded.

2.     Analysis and Conclusions

      The Agency's reliance on Chevron deference is misplaced. In Chevron, the Supreme Court addressed a challenge to certain regulations issued by the Environmental Protection Agency implementing the Clean Air Act Amendments of 1977. The Court held that in deciding cases involving the interpretation of an unclear statutory term, a court must decide whether the responsible agency's regulation "is based on a permissible construction of the statute." 467 U.S. at 843. The Court further held that "[s]uch legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Id. at 844 (footnote omitted). We find that the Agency's attempt to cloak itself in Chevron deference is unavailing.

      Under Chevron, deference is granted to the agency to which Congress has delegated administration of a congressionally created program. Consequently, Chevron deference is due OPM, not the Agency. It is OPM that Congress has charged with the establishment of a wage system that provides for environmental differentials. The requirement of 5 C.F.R. § 532.511 for local installations to evaluate its local work situations is not a delegation implicated by Chevron. This exception does not concern the validity of OPM's regulations, but, rather, the Agency's application of those regulations. As the Authority has specifically held, such applications are not entitled to Chevron deference. See United States Dep't of the Treasury, Internal Revenue Serv., Washington, D.C., 46 FLRA 1063, 1071 (1992) (Chevron deference inapplicable to a grievance over whether an agency properly applied OPM regulations), United States Dep't of Health and Human Services, Social Sec. Admin., Baltimore, Md., 44 FLRA 773, 796-97 (1992) (same).

      The Agency's reliance on an OPM decision letter is also misplaced. As the letter states, OPM will not serve as an appellate source when a claim is subject to a negotiated grievance procedure. Consequently, by its own terms, the letter cannot support a mandated application of OSHA standards in an arbitration under a negotiated grievance procedure of an EDP grievance. This is consistent with the uniform approach of OPM and its predecessor agency the Civil Service Commission to the resolution of grievances over whether a local work situation warrants the payment of an environmental differential. See United States Dep't of the Army, Lexington-Blue Grass Army Depot, Lexington, Ky., 43 FLRA 1074, 1083 (1992) (Lexington-Blue Grass Army Depot). OPM has consistently refrained from acting as [ v56 p1067 ] an appellate source in disputes between agencies and their employees in specific cases because this matter has been left to the agencies and collective bargaining. See id. at 1083-84.

      Rejection of the Agency's demand for deference to its denial of the grievance is also warranted under the OPM regulatory scheme for the payment of environmental differentials. As the Authority has repeatedly explained, OPM's EDP regulations do not enumerate specific work situations for which an environmental differential is payable. Instead, the regulations only define in the appendix categories of work situations, each of an unusual nature, for which payment of an environmental differential is authorized. See Lexington-Blue Grass Army Depot, 43 FLRA at 1082-83.

      Until 1994, environmental differentials were payable under FPM Supplement 532-1 and Appendix J. FPM Supplement 532-1 provided that an agency shall pay a federal wage system employee an environmental differential when the employee is exposed to a hazard, physical hardship, or working condition listed in Appendix J. In terms of asbestos, Appendix J conditioned the payment of an environmental differential for exposure to asbestos on findings that: (1) employees were working in areas where airborne concentrations of asbestos fibers may expose them to potential illness or injury; and (2) protective devices or safety measures did not practically eliminate the potential for such personal illness or injury. When an arbitrator found the necessary exposure and found that the potential for illness or injury had not been practically eliminated, the Authority deferred to the arbitrator's findings and resolution and denied exceptions that contended that the award was contrary to FPM Supplement 532-1. See, e.g., United States Dep't of Veterans Affairs Med. Ctr., Huntington, W. Va., 46 FLRA 1160 (1993); United States Dep't of the Army, New Cumberland Army Depot, New Cumberland, Pa., 40 FLRA 186 (1991).

      After the FPM was abolished, 5 C.F.R. § 532.511 and Appendix A replaced FPM Supplement 532-1 and Appendix J. Accordingly, the Authority now applies § 532.511 and Appendix A in EDP cases. See United States Dep't of the Army, Red River Army Depot, Texarkana, Tex., 53 FLRA 46, 47 n.3 (1997) (Red River Army Depot). The Authority has determined that the standards and legal requirements, including category 16 pertaining to asbestos, of § 532.511 and Appendix A are identical to FPM Supplement 532-1 and Appendix J. See United States Dep't of Veterans Affairs Med. Ctr., Ann Arbor, Mich., 56 FLRA 216, 217 n.1 (2000) (VAMC, Ann Arbor); Red River Army Depot, 53 FLRA at 47 n.3. The Authority continues to defer to an arbitrator's resolution of whether a disputed work situation warrants payment of a differential when the arbitrator has made the required findings. See, e.g., Red River Army Depot, 53 FLRA at 51; AFGE Local 2250, 52 FLRA 320, 322 (1996); AFGE Local 1482, 50 FLRA 572, 574 (1995).

      In this case, the Arbitrator specifically found that the employees worked in areas of airborne asbestos, resulting in the potential for illness or injury that had not been practically eliminated. As the Authority has explained, category 16 of Appendix A does not set forth any specified level of exposure required for the payment of EDP. See VAMC, Ann Arbor, 56 FLRA at 222. Instead, the determination is left to local determination, including arbitration. Thus, the Arbitrator was free to determine what quantitative level of asbestos exposes employees to illness or injury and to determine how that level is derived or calculated. The Arbitrator's determinations in this regard are not contrary to law. See id.

      Accordingly, we defer to the Arbitrator's findings and deny this exception.

G.     The Exception Concerning Expert Witness Fees is Premature

1.     Positions of the Parties

      The Agency contends that the Unions' application for payment of expert witness fees is contrary to law. Exceptions at 30.

      The Unions argue that the Agency's exception is premature and moot because the Arbitrator has not ordered the Agency to pay the Unions for the cost of any expert witnesses. Opposition at 124.

2.     Analysis and Conclusions

      In their application for statutory attorney fees and expenses, the Unions have requested reimbursement of expert witness fees. See Unions' Opposition, Enclosure 3, Tab 15. In the initial and supplemental awards, the Arbitrator has not ordered the Agency to pay the Unions for the cost of any expert witnesses. The Agency's exception only contends that the Unions' application, rather than the Arbitrator's award, is deficient. Consequently, we dismiss the exception without prejudice, as premature. See United States Dep't of Veterans Affairs Med. Ctr., Coatesville, Pa., 53 FLRA 1426, 1432 (1998). [ v56 p1068 ]

VII.     The Agency Fails to Establish that the Award is Based on a Nonfact

A.     Agency's Exception

      The Agency maintains that the Arbitrator's award of EDP was based on three findings of fact: (1) historical air monitoring data; (2) the Agency's risk assessment; and (3) medical reports of certain employees submitted by the Unions. The Agency contends that as to each finding, the Arbitrator based his conclusions on gross miscalculations or misrepresentations of facts. Exceptions at 31.

      First, the Agency contends that the award is deficient because the Arbitrator based his decision on an average airborne asbestos level that was a gross misrepresentation of the actual levels for the pertinent period of time. [n12]  Id. at 31-35. The Agency notes that Arbitrator stated that the average baseline air sample at the facility has been at least 0.00817 f/cc and that the average airborne clearance level has been 0.0093 f/cc. The Agency asserts that "[i]n fact, the `averages' calculated by the Union are incorrect." Exceptions at 31. The Agency claims that the Unions biased the calculated average upward and purposely misrepresented the true exposure potential of Agency employees. The Agency also claims that the Arbitrator's reliance on the Unions' averages is a gross miscalculation because the Unions used data collected before 1991, which is beyond the period defined by the Arbitrator for backpay. In addition, the Agency argues that the relevant time period for assessing asbestos levels was not disputed at the hearing and that therefore, the time period can constitute a nonfact under Authority precedent.

      The Agency further notes that the Arbitrator acknowledged the Agency's agreement that ambient asbestos levels in the United States are in the range of 0.0001 to 0.0007 s/cc. However, the Agency contends that the Arbitrator overlooked that this range of ambient air levels was based on measurement by transmission electron microscopy (TEM). The Agency maintains that when measured by phase contrast microscopy (PCM), the range is 0.001 to 0.008 f/cc, or ten times higher. The Agency asserts that in attempting to support its case that the airborne fiber level inside agency buildings was 10 to 100 times higher than ambient levels, the Unions compared the average baseline measurement of 0.00817 f/cc with ambient levels of 0.0003 s/cc or less. The Agency alleges that this is a gross misrepresentation of fact. The Agency reiterates that 0.00817 f/cc is inaccurate. In addition, the Agency argues that all agency baseline measurements used PCM and cannot be compared with ambient levels measured by TEM. The Agency claims that the Arbitrator failed to apprehend the distinction and this failure caused him to determine that there was a risk of asbestos exposure where none existed.

      Second, the Agency contends that the award is deficient because the Arbitrator based his decision on miscalculated settled dust levels and a misapprehension of the potential for resuspension. Id. at 35-37. The Agency notes that the Unions contended in their post-hearing brief that the average indoor asbestos fiber measurement was almost 47 times higher than the average outdoor asbestos fiber measurement and notes that the Arbitrator quoted this portion of the brief. The Agency claims that this assertion by the Unions is a gross misrepresentation of fact. [n13]  The Agency also claims that the Arbitrator's finding that asbestos fibers can be transported between buildings represents mere speculation and is contrary to scientific data.

      Third, the Agency notes that the Arbitrator stated that the Unions' expert testified that the associated lifetime risk of exposure to ambient levels of asbestos is 3 deaths per 100,000 people and stated that the Agency's own risk estimates showed the risk at the Agency to be 40-90 deaths per 100,000 employees, a cancer risk that is 34 to 90 times the risk compared to normal ambient exposure risks. The Agency contends that the award is deficient because the Arbitrator erred in his use of risk assessment. Id. at 37-39. The Agency argues that the risk assessment comparison was a gross misrepresentation of the actual value and was based on the wrong time [ v56 p1069 ] period. The Agency also argues that the risk assessment for process employees was improperly applied to all employees.

      The Agency claims that the Arbitrator's conclusion that the cancer risk at the Agency was 34 to 90 times greater than the risk compared to normal ambient levels is "an apples-to-oranges comparison." Exceptions at 38. The Agency maintains that the ambient exposure risk was measured by TEM while the risk assessment was based on PCM. The Agency asserts that properly compared the ambient exposure risk is 10 to 20 deaths rather than 3 deaths per 100,000 people. The Agency further argues that the Arbitrator's use of its risk assessments are a gross misrepresentation because they include data from 1975 to 1991, a period for which the Arbitrator ruled that employees were not entitled to EDP. The Agency maintains that its risk assessment for process workers for the period of 1991-2020 is 11.5 deaths per 100,000 process employees. The Agency also argues that the Arbitrator's use of its risk assessments are a gross misrepresentation because the Arbitrator took the risk assessments that were calculated for process workers and attributed the same risks to the rest of the bargaining unit employees.

      Fourth, the Agency maintains that the Arbitrator based his decision on the list of 50 individuals, submitted as Union Exhibit E, when he concluded that the medical records produced by the Unions "amply demonstrate health problems experienced by the employees at the facility." Award at 68. The Agency contends that "the list of 50 individuals with asbestos disease is a nonfact." Exceptions at 39. The Agency argues that at the hearing before the Arbitrator the list of 50 individuals was narrowed to 15 individuals and that consequently, the Arbitrator's "adoption of Union Exhibit E, listing 50 people with alleged disease from [the Agency], is nonfact and erroneous." Exceptions at 42. As to the remaining 15 cases, the Agency argues that "the application of sound medical science to the remaining 15 cases of alleged illness reveals that not a single one of them was ill as the result of asbestos exposure." Id. at 44.

      Fifth, the Agency maintains that "[t]he Arbitrator cited four individuals, upon which he specifically relied, as having asbestos disease `confirmed' by [the Agency]." Id. at 46 (quoting Award at 67). The Agency contends that this is a nonfact. Id. at 46-51. The Agency argues that doctors at the Agency's clinic did not diagnose any of the four individuals with disease and did not state that any of their x-rays showed asbestos exposure from working at the Agency. Thus, the Agency asserts that the Arbitrator's conclusion that the Agency found asbestos disease from exposure at the Agency is a nonfact.

      Sixth, the Agency contends that the supplemental award is deficient by awarding EDP to all bargaining-unit employees for all days during the 6-year period. The Agency claims that there was no evidence presented that every employee, during every working day, entered an area that had processes ongoing, entered a building or an area that at one time contained asbestos, or was exposed to any amount of airborne asbestos greater than that found in the ambient air. To the Agency "[i]t is a nonfact or a gross misrepresentation of fact to state that an employee, working in an open air hanger a quarter mile away has been exposed to a certain level of airborne asbestos for everyday of a six year period, when that level is based on samples from a limited number of buildings or process areas." Supplemental Exceptions at 16.

      In sum, the Agency alleges that the record was directly contrary to all of these findings by the Arbitrator.

B.     Unions' Opposition

      The Unions contend that the exception provides no basis for finding the award deficient. Opposition at 125-70. In general, the Unions contend that the Agency's nonfact assertions should be denied because they constitute nothing more than disagreement with the Arbitrator on disputed factual matters and because they amount to an attempt to relitigate before the Authority the issue of whether there had been the necessary exposure to asbestos to warrant payment of an environmental differential.

      Specifically, the Unions dispute the asserted misrepresentations of fact. They assert that they correctly established that the average baseline air sample level [ v56 p1070 ] has been at least 0.00817 f/cc and that according to the Agency's air sampling records, the average airborne asbestos clearance level has been 0.0093 f/cc. They assert that there was no evidence or testimony that ambient levels were analyzed using TEM. They assert that they correctly calculated the average indoor asbestos fiber measurement. They assert that substantial evidence supported the Arbitrator's finding that asbestos fibers can be transported between buildings and that such finding has scientific support. They assert that there is no support for the Agency's claim that properly compared the ambient exposure risk is 10 to 20 deaths rather than 3 deaths per 100,000 people and that the Agency is simply attempting to relitigate the merits of this case.

      They assert that in arguing that the Arbitrator erred in considering air sampling data prior to September 1991, the Agency incorrectly assumes that the asbestos conditions that resulted in levels of airborne asbestos in employee work areas prior to 1991 did not exist after 1991. The Unions argue that the record supports the Arbitrator's findings that such conditions existed and continued from 1991 to the present. They maintain that there is no merit to the Agency's argument that air sampling and risk assessments for years prior to 1991 are not probative of exposure levels and risk assessments for years after 1991.

      They assert that the evidence substantiates and the Arbitrator correctly determined that the Agency's own exposure risk assessment establishes that Agency employees have at least a 34 to 90 times greater excess cancer risk compared to normal ambient exposure risks. They further assert that the lower end of the range encompasses nonprocess workers and that consequently, the risk assessment was not calculated for only process workers and applied to the rest of the bargaining unit employees.

      They assert that the Unions' medical evidence supported asbestos exposure at the Agency and that even if the medical evidence is disregarded, other evidence is ample to support the Arbitrator's ultimate finding and determination that Agency employees had been exposed to airborne asbestos levels, which entailed potential risk and that the risk had not been practically eliminated.

      They assert that they presented evidence that all employees throughout the Agency have been and continue to be exposed to asbestos. They maintain that the evidence established that bargaining unit employees work and move throughout the Agency's facility on a regular basis and that asbestos fibers are transported and circulate throughout the facility. They further maintain that the Agency's own air sampling data and risk estimate establish excessive airborne asbestos levels throughout the facility and significant cancer risk to all employees. The Unions claim that the Agency presented no evidence to support that not all employees have been exposed to the excess asbestos levels represented by the Agency's air sampling data.

C.     Analysis and Conclusions

      To establish that an award is deficient as based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry AFB). However, this ground for finding an award deficient does not permit the appealing party to dispute the arbitrator's findings of fact. In Lowry AFB, 48 FLRA at 594, the Authority strongly endorsed the limitations recognized by the Federal courts in reviewing arbitration awards in the private sector and the principles of the Supreme Court. Applying these limitations and principles, the Authority has generally refused to disturb the factual findings and determinations of arbitrators in the Federal sector. The Authority advises that exceptions constituting disagreement with the arbitrator's factual findings and determinations on disputed or ambiguous evidence will not be found deficient as based on a nonfact and will be summarily denied. See id.

      In this case, the Agency's assertions of nonfacts are extensive. However, the Agency fails to establish that the award is deficient. From the reply of the Unions, every asserted nonfact is claimed to have been either a matter of dispute before the Arbitrator or based on ambiguous evidence. Moreover, the Authority has broadly construed the matter in dispute in EDP cases when determining whether a nonfact exception should be denied because it challenges a finding that was disputed at arbitration. To the Authority, the primary matter in dispute in EDP cases is whether employees were exposed to a hazard, physical hardship, or working condition of an unusual nature. Consequently, an arbitrator's finding that employees were exposed to a hazard, physical hardship, or working condition of an unusual nature is not subject to challenge as a nonfact. See NAGE Local R4-78, 56 FLRA 418, 419 (2000); VAMC, Ann Arbor, 56 FLRA at 220. Clearly, the Agency's exception disputes the finding that the employees were exposed to asbestos in an amount sufficient to warrant payment of an environmental differential. [ v56 p1071 ]

      It is also clear that deferral to an arbitrator's determination of whether a disputed local work situation warrants the payment of an environmental differential should preclude challenges to an arbitrator's evaluation of the evidence and an arbitrator's reasoning and conclusions in making the determination. The Authority is not available as a forum to relitigate the local determination. See AFGE Local 2754 of Council 236, 45 FLRA 980, 986-87 (1992). Accordingly, we deny this exception.

VIII.     The Agency Fails to Establish that the Arbitrator Denied a Fair Hearing

A.     Arbitrator's Award

      During the hearing, the Unions and the Agency excepted to the opposing party's presentation of evidence and testimony. First, during the Agency's opening statement, the Unions excepted to the Agency's stated intention to have one of its witnesses, a doctor, testify as to "newly-discovered" x-ray film which had been forwarded to the Agency within a week before the hearing by its medical clinic. See Tr. Vol. I at 99, 106. The Unions argued that "had we been provided with copies of the x-rays, our opportunity to have been provided with that copy would have allowed us to rebut any evidence that's flowing from the surprise testimony." Tr. Vol. I at 109. In response to the Unions, the Arbitrator noted that the Unions had "mentioned [that] sanctions and contempt considerations [should] be applied here," but refused to address whether that should be done. Tr. Vol. IV at 511. Instead, the Arbitrator decided to admit the "newly discovered evidence" offered by the Agency, but cautioned that he would draw "a very adverse interest" against it. Tr. Vol. IV at 511-12; see also Award at 24, 37-38, 65-66, 95.

      Second, the Agency excepted to the Unions' stated intention to have one of its witnesses, a doctor, testify as to reports on x-ray film that had been compiled by other doctors, when the Unions had not sent a copy of that film to the Agency. In this regard, the Agency argued that Texas law prohibits the Unions from "using X-rays and testifying about them without [making the X-ray film available]" to the Agency (Tr. Vol. III at 386), because "otherwise you'll have somebody commenting on a photograph that no one else looked at." Tr. Vol. III at 389. In response, the Unions stated that they had written a letter to the Agency stating that they had certain x-ray film, and that if the Agency had requested a subpoena for the film, the Unions would have complied with that request. Tr. Vol. I at 113, 111. With regard to this matter, the Arbitrator ruled that the Unions were under no obligation to furnish the x-ray film. Tr. Vol. III at 388. In doing so, the Arbitrator noted that "in arbitration proceedings the rule of thumb is to allow evidence to be presented and an arbitrator then decides as to what weight is to be made as to the evidence presented." Tr. Vol. IV at 511.

      The Agency also excepted to the reliance of the Unions' witness upon the results of a questionnaire entitled, "Medical History and Symptom Questionnaire," when the Agency had not received copies of those results. See Tr. Vol. V at 932. The questionnaire asked employees whether they had been exposed to asbestos prior to working at the Agency. Tr. Vol. V at 849. In rebuttal, the Unions argued that they were under no obligation to turn over the responses because the parties had agreed to exchange evidence only when it was intended to be used as an exhibit. Tr. Vol. V at 848, 933. In this regard, as there was no disagreement that the responses had not been marked as an exhibit, the Arbitrator ruled that "I cannot force submission [of the responses] at this point." Tr. Vol. V at 933.

      The Arbitrator's award summarizes his rulings concerning the parties' evidentiary arguments. The award says the following on the issue of the "adverse inference" drawn by the Arbitrator against the newly discovered evidence offered by the Agency:

I don't believe it would serve any purpose to detail the evidence and testimony that led to this adverse inference on a number of medical records submitted by the Agency. My reasoning for this ruling is contained in Volume IV, pp. 509-12. Suffice it to say, there was an agreed upon date by both the parties and myself that then precluded submission of additional evidence. The Union had subsequently requested the admission of additional evidence, which I denied. What the Agency did was to deny the Union the opportunity to examine and prepare their response to the evidence as offered by the Agency. All the Agency had to do was to request a conference call with both myself and the Union counsel to discuss the evidence and probable testimony and to obtain a ruling by myself. That request for [a] conference call did not happen. I consider the Agency's actions in this regard to be an affront to the other participants to this hearing and to the process itself. As such, there is an adverse inference in place as to the testimony and evidence in question.

Award at 65-66. In conclusion, the Arbitrator stated that, "[a]s I've expressed to the parties on numerous occasions both prior to and during the hearing itself, it was my aim to give both parties full expression concerning their evidence [ v56 p1072 ] and testimony . . . [g]ranted, there were a few times when I subjected such to an adverse inference, but in any event, such testimony and evidence was allowed to be presented, and I made a determination as to what weight, if any, was to be considered." Id. at 95.

B.     Agency's Exception

      First, the Agency points out that the testimony of one of the Unions' witnesses, a doctor, referred to reports on x-ray film which had been prepared by other doctors, and that the Arbitrator denied the Agency's "repeated requests" for access to the original x-ray film. Exceptions at 51. In this regard, citing Community Chapel Funeral Home v. Allen, 499 S.W.2d 215 (Tex. App. 1973), and United States v. Cuong, 18 F.3d 1132, 1143-1144 (4^th Cir. 1994) (Cuong), the Agency claims that it was denied "fundamental fairness" because the Unions were allowed to rely on x-ray evidence which was never produced before or at trial. Again citing Cuong, the Agency claims that it should not have been denied the "opportunity to cross-examine" the doctor who had prepared the reports that were relied upon by the Union's witness. Exceptions at 51-52.

      Second, the Agency points out that the doctor's testimony relied upon the results of a questionnaire that had been distributed to the Unions' membership, and that the Arbitrator denied the Agency's request to examine those results. Citing as authority AFGE Local 1869, 50 FLRA 172, 174 (1995), the Agency argues that it was denied "fundamental fairness" when it was denied access to the results of the questionnaire. Exceptions at 54 n.66. The Agency also cites Boswell v. Brazos Elec. Power Coop., 910 S.W.2d 593, 603 (Tex. App. 1995), for the proposition that a "`trial court has no discretion in requiring the disclosure of underlying evidence and permitting cross-examination based on such evidence.'" Exceptions at 54.

      Third, the Agency claims that the "adverse inference" drawn by the Arbitrator against the Agency's evidence was "unreasonable and capricious." Id. at 63. [n14]  In this regard, the Agency argues that the Arbitrator "never identifies what evidence he is referring to" when he stated that he was drawing an adverse inference against the Agency's evidence. Id. at 63 n.68. Also, the Agency argues that the arbitrator "seem[ed] to ignore the fact that the Union also produced new evidence at the last minute." Id. at 63. Consequently, the Agency argues that the award is deficient because the Arbitrator "fail[ed] to hold the Union[s] to the same standard of disclosures" as the Agency, and that the Agency was "den[ied] . . . a full and fair opportunity to defend itself." Id. at 64, (citing, among other cases, OPM, Central Office, 44 FLRA 287 (1992) (OPM), and Health Care Financing Admin., 26 FLRA 860 (1987) (HCFA)).

C.     Unions' Opposition

      First, the Unions point out the "expert testimony and opinions [of its witness] which the Agency now argues were based in part on . . . x-ray films . . . [were] simply based on the x-ray reports from other radiologists which were disclosed to the Agency." Opposition at 174. The Unions argue that there is no basis for the Agency's claim that it was denied fundamental fairness because it did not view the x-ray originals because, among other things: (1) the reports upon which the Unions' witness relied were admitted, without objection, into evidence as exhibits; (2) when, prior to the hearing, the Unions' counsel notified the Agency and the Arbitrator that it had come into possession of the x-ray film, the Agency never asked the Arbitrator to issue a subpoena to the Unions that would have compelled them to produce the film; (3) "the Agency acknowledged during the arbitration hearing that it could have, but purposely did not, seek a subpoena . . . to turn over the x-ray films . . . [because] doing so would compromise the Agency argument that medical records were not relevant," Opposition at 173 (citing Tr. Vol. III at 345-46); and (4) the Agency did not object to the witness' testimony and "[t]here can be no complaint on appeal as to testimony presented without objection," Opposition at 174 (citing Fed. R. Evid. 703). In addition, the Unions cite AFGE Local 2004, 55 FLRA 6 (1998), for the proposition that the failure of an arbitrator to abide by the rules of evidence is not a basis upon which to review or set aside an award. In sum, the Unions claim that the Agency has failed to demonstrate that the Arbitrator refused to hear or consider pertinent or material evidence, or engaged in other actions which prejudiced the Agency so as to affect the fairness of the proceeding. In support, the Unions cite, among other cases, AFGE Local 1668, 50 FLRA 124, 126 (1995).

      Second, the Unions claim that "the Agency has not shown (and cannot show) that the Agency suffered any prejudice or disadvantage as a result of not having access to" the questionnaire. Opposition at 178. In this regard, the Unions argue that, as the Agency had access to the health files "pertaining to all of the employees [ v56 p1073 ] who were the subject of the Unions' medical evidence," there is no evidence that the questionnaires contained any information that was not already known or available to the Agency. Id. at 179.

      Third, the Unions claim that the Agency's argument against "the Arbitrator's adverse inference . . . for concealing and failing to produce records" is without merit. In support, the Unions state that the Agency was required to furnish the Unions with the records and information that the Agency intended to use at the arbitration, but failed to do so. In this regard, the Unions point out that: (1) the parties agreed in a pre-hearing conference telephone call that they would "exchange all exhibits which the parties intended to utilize at the arbitration hearing 30 days before the hearing date," id. at 180-181; (2) AFGE Article 20 § 14, NFFE Article 22 § 12, and IAMAW Article 24 § 12, required the Agency to "furnish upon request and to the extent not prohibited by law, all information which is reasonably available and necessary and relevant to the employee's representation," (id. at 181 (quoting collective bargaining agreements); and (3) the Agency was required to produce records and information pursuant to 5 U.S.C. § 7114(b). The Unions also argue there is no merit to the Agency's claim that the Union was held to a different standard than the Agency. Specifically, the Unions state that "among other things, the Arbitrator refused to allow the Unions to present two witnesses not disclosed 30 days prior to the hearing." Id. at 189 (citing Tr. Vol. IV at 510).

D.     Analysis and Conclusions

      We construe the Agency's arguments that the Arbitrator's award violated the Agency's right to "fundamental fairness" as assertions that the Arbitrator failed to provide the Agency a fair hearing.

      The Authority will find an award deficient on the ground that the Arbitrator failed to provide a fair hearing when it determines that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party and affected the fairness of the proceeding as a whole. See United States Dep't of Def. Dependents Sch., 55 FLRA 1108, 1110 (1999). It is well established that an arbitrator has considerable latitude in conducting the hearing. See United States Dep't of the Navy, Mare Island Naval Shipyard, Vallejo, Cal., 53 FLRA 390, 396 (1997).

      The Agency argues that the Arbitrator improperly refused the Agency's requests to view certain x-ray film and responses to a questionnaire, both of which were referred to by the testimony of the Unions' witness. The Agency also argues that the Arbitrator should have permitted it to "cross-examine" the persons who prepared the x-ray film. With regard to whether the Agency should have had access to the x-ray film and questionnaire responses, nothing in the Agency's exception convinces us that those documents were material to the outcome of the case or prejudiced the Agency's ability to completely present its position before the Arbitrator. [n15]  See, e.g., AFGE Local 3947, 47 FLRA 1364, 1374-75 (1993) (union failed to demonstrate that grievant was denied due process as a result of agency's failure to disclose certain evidence). With regard to whether the Agency should have had the opportunity to question those persons who prepared the x-ray film that was relied upon by the Unions' witness, the Agency does not describe the information that it would have hoped to elicit, its relevance, or how its omission prejudiced the hearing. As such, the Agency has not demonstrated that not questioning those persons resulted in an unfair hearing. See, e.g., AFGE Council 215, 52 FLRA 85, 87 (1996) (union failed to establish how arbitrator's denial of its request to present rebuttal testimony resulted in an unfair hearing). We also note that the Agency does not challenge the Arbitrator's statement that it was his aim to give both parties full expression concerning their evidence and testimony, and that he allowed such evidence to be presented. See Award at 95. Based upon the record, we find that the Agency's arguments do not demonstrate that the award is deficient.

      Additionally, there is no merit in the Agency's argument that the adverse inference drawn by the Arbitrator against the Agency deprived it of a fair hearing. Disagreement with an arbitrator's evaluation of the evidence and testimony, including the determination of the weight to be accorded such evidence, provides no basis for finding an award deficient. See AFGE Local 3295, 51 FLRA 27, 32 (1995). [n16]  Accordingly, we deny this exception. [ v56 p1074 ]

IX.     The Agency Fails to Establish that the Award is Incomplete, Ambiguous, or Contradictory, so as to Make Implementation Impossible

A.     Positions of the Parties

      The Agency contends that the award is deficient because it is incomplete and ambiguous. The Agency argues that the award is deficient because the Arbitrator mentions several ranges for concentrations of asbestos in the ambient air, but failed to explicitly adopt a single range for the Agency and because he mentions several ranges, but fails to specify the method of analysis by which the ranges were calculated. [n17]  Exceptions at 66-67.

      The Unions argue that the award is not deficient because there is no requirement that the award include any specific finding as to the concentrations of asbestos in the ambient air. Opposition at 191-92. The Unions maintain that it is sufficient that the Arbitrator found that the actual exposure levels exposed employees to potential illness and injury and the risk had not been practically eliminated.

B.     Analysis and Conclusions

      An award that is incomplete, ambiguous, or contradictory so as to make implementation impossible is deficient under the Statute. See, e.g., NATCA, 55 FLRA 1025, 1027 (1999). In order for an award to be found deficient on this ground, the appealing party must show that implementation of the award is impossible because the meaning and effect of the award is too unclear or uncertain. The Arbitrator sustained the grievance and awarded all wage-grade, bargaining unit employees EDP. The Agency fails to show that implementation of this award is impossible. See id. Accordingly, we deny this exception.

X.     The Supplemental Award is Deficient to the Extent that it Directs the Agency Head to Permit and Make Deductions from EDP to Pay the Contractual Attorney Fees

A.     Positions of the Parties

      The Agency contends that the award of contractual attorney fees is contrary to law and regulation. The Agency argues that the order to segregate and pay directly to the Unions' attorneys their contractual attorney fee is contrary to 5 C.F.R. § 550.311, which pertains to allotments and assignments of pay from Federal employees. The Agency claims that payment of contractual attorney fees is not an allowable allotment and that the head of the Corpus Christi Army Depot is not a "head of an agency" within the meaning of § 550.311, who can permit allotments not specified in § 550.311(a) or otherwise act to distribute a portion of the EDP award to the Unions' attorneys. In addition, the Agency argues that the order is contrary to law because there has been no waiver of sovereign immunity. The Agency asserts that there is no applicable waiver of sovereign immunity that would allow diversion of the EDP funds to the Unions' attorneys.

      The Agency also contends that the award is deficient because the Arbitrator exceeded his authority. The Agency argues that the matter of contractual attorney fees was not an issue submitted to the Arbitrator and that the ordered payment to the Unions' attorneys awards relief to persons not encompassed by the grievance. The Agency further claims that the ordered payment is in excess of the Arbitrator's authority because there is no privity of contract. The Agency maintains that it is not a party to the contract for attorney fees and cannot be responsible for fulfilling any obligations under that contract.

      The Unions contend that the Arbitrator's order is not deficient. The Unions maintain that the award does not order the Agency to pay any fees; it simply directs that the contractual attorney fees to be paid by employees be paid through the means of the Agency deducting the contractual attorney fees from the pay to be paid employees pursuant to the award. The Unions dispute that Corpus Christi Army Depot does not have an agency head for purposes of § 550.311. The Unions further maintain that because the contractual attorney fees are being paid out of employee money, no waiver of sovereign immunity is required. Alternatively, the Unions assert that the Back Pay Act would satisfy any required waiver. The Unions argue that the money now belongs to the employees and the Agency has no authority [ v56 p1075 ] to refuse to disburse the money in accordance with the employees' express authorizations.

      The Unions claim that the payment of the contractual attorney fees and the means of payment were clearly an issue in dispute between the parties. In addition, the Unions assert that the Authority should defer to the award because there was no stipulation of the issues to be resolved by the Arbitrator.

      Finally, the Unions assert that there is privity of contract between the Agency, the Unions, individual employees, and the Unions' attorneys. The Unions claim that the award does nothing more than honor the employees' preexisting authorization that contractual attorney fees be deducted from their portion of the EDP award.

B.     Analysis and Conclusions

      The Authority was presented with a similar issue in VAMC, Ann Arbor, 56 FLRA 216, which involved one of the same law firms that represented the Unions in this case. In VAMC, Ann Arbor, the arbitrator also awarded EDP for exposure to asbestos. In addition, he awarded attorney fees under the Back Pay Act and noted that the Union's attorneys had an employment contract with the Union that provided for the payment of 33 1/3 percent of whatever backpay is ultimately awarded. To honor the attorney fee contract, the arbitrator ordered the agency to issue three checks: (1) for statutory attorney fees; (2) for 33 1/3 percent of the sum total of backpay due; and (3) for the balance of backpay to be distributed to employees. The Authority found that the award was deficient under 5 U.S.C. § 7701(g) because the ordered distribution of the contractual attorney fee along with the statutory attorney fees exceeded the reasonable amount limitation of § 7701(g).

      In addition, the Authority noted that "the payment of one third of the back pay awarded appears to be prohibited by 5 C.F.R. § 550.311(a)." 56 FLRA at 226. The Authority further noted that the Federal Circuit has viewed § 550.311(a) as permitting pay deductions for only very limited purposes and has specifically found deductions for the benefit of attorneys or creditors to be unauthorized. See id. (citing Knight v. United States, 982 F.2d 1573, 1579 (Fed. Cir. 1993)). The Authority also noted that authorization to permit other pay deductions is vested in the head of the agency under § 550.311(c). However, as the issue of § 550.311 had not been raised, the Authority did not determine whether the award was contrary to § 550.311.

      Both VAMC, Ann Arbor and Knight v. United States seem instructive in that they indicate that allotments and assignments of pay of Federal employees are primarily governed by 5 C.F.R. part 550, subpart C, which includes § 550.311. In terms of this case, part 550, subpart C would appear to govern. We are unaware of any other law or regulation that would authorize the disbursement of federal funds as ordered by the Arbitrator. As the court in Knight advised, no federal funds can be disbursed except for purposes authorized by federal law. See 982 F.2d at 1577. A review of the structure of subpart C suggests that the Arbitrator's order is not consistent with the requirements of subpart C.

      Section 550.311(a) permits pay deductions for very limited purposes, none of which include deductions for the benefit of attorneys. See VAMC, Ann Arbor, 56 FLRA at 226. In addition, § 550.311(c) permits the "head of an agency" to permit allotments for other purposes. See id. The Arbitrator invoked the authority of § 550.311(c) when he ordered that the head of the Corpus Christi Army Depot is to permit and make deductions from the EDP award pursuant to § 550.311(c) in the amount of contractual attorney fees. The Agency objects to the Arbitrator's use of the authority of § 550.311(c) and maintains that the head of Corpus Christi Army Depot is not a "head of an agency" within the meaning of § 550.311(c). The Agency's objection is justified.

      For purposes of § 550.311(c), "Agency" means "an Executive agency as defined by § 105 of Title 5, United States Code." 5 C.F.R. § 550.301. Section 105 defines "Executive agency" to mean "an Executive department, a Government corporation, and an independent establishment." The Agency maintains that the relevant Executive department is the Department of Defense, although the Agency concedes that Department of the Army might possibly constitute an Executive department within the meaning of § 105. But in any event, the Agency asserts that Corpus Christi Army Depot is clearly not an Executive department and is without authority to act under § 550.311(c) to permit the ordered allotments of pay. We agree with the Agency. Cf. Honeycutt v. Long, 861 F.2d 1346, 1349 (5^th Cir. 1988) (commander of the Army Air Force Exchange Service is not the head of an Executive department). We conclude that the Arbitrator's order that identifies the head of the Corpus Christi Army Depot as the person to permit and make deductions from the EDP award for the contractual attorney fees is contrary to § 550.311(c). Accordingly, we vacate that portion of the award. [ v56 p1076 ]

      What remains is the Arbitrator's alternative order that the Agency take and effectuate whatever actions or procedures are necessary at the time of distribution of the award to provide for and ensure the payment of the contractual attorney fees. What actions or procedures are available to the Agency seem limited by the restrictions of sovereign immunity and the allotment procedures of part 550, subpart C. Before an allotment for the payment of contractual attorney fees can be authorized, the head of the Agency must permit the deduction, and the head of the agency has full discretion to make that determination. In addition, before the allotment can be executed under § 550.312(a), each bargaining unit employee must specifically designate the amount and that the allotment is to be paid to the Unions' attorneys. See NAGE Local R7-51, 56 FLRA 941, 942 (2000).

      To give effect, in accordance with law and regulation, to the Arbitrator's order to take and effectuate actions and procedures necessary to ensure payment of the contractual attorney fees, we modify the award to direct that the Corpus Christi Army Depot submit a request to the "head of the agency," within the meaning of § 550.311, to consider authorizing an allotment for the payment of the contractual attorney fees. The agency head may rule on the request as he or she deems appropriate, and nothing in this decision is intended to limit the agency's head's discretion. If the head of the agency, i.e., the Secretary of the Department of Defense (DOD) or the Secretary of the Department of the Army (Army), authorizes the allotment, the Agency must publicize the authorization and permit bargaining-unit employees to designate the Unions' attorneys for payment of an allotment in satisfaction of the contractual attorney fee agreement between the Unions and their attorneys. Of course, bargaining unit employees must be free from coercion in determining whether to establish such allotments. In addition, as specified in § 550.312(e), any disputes over an allotment are a matter between the employee and the Unions' attorneys. [n18] 

      In modifying the award, we deny the Agency's exception that the Arbitrator exceeded his authority. See United States Dep't of the Air Force, Air Force Logistics Command, Oklahoma City Air Logistics Ctr., Tinker Air Force Base, Okla., 37 FLRA 1049, 1053 (1990) (arbitrator's remedy determination was not in excess of his authority because of the great latitude arbitrators have in fashioning remedies).

XI.     Decision

      The Arbitrator's order in his supplemental award that identifies the head of the Corpus Christi Army Depot as the person to permit and make deductions from the EDP award for the contractual attorney fees is deficient and is vacated. The Arbitrator's alternative order that the Agency take action to ensure the payment of the contractual attorney fees is modified in accordance with this decision. Otherwise, the Agency's exceptions are denied or dismissed.

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APPENDIX

NFFE Agreement

ARTICLE 3
RESTRICTIONS OF LAW AND REGULATIONS

SECTION 1. It is agreed and understood by the Employer and the Union that in the administration of all matters covered by the Agreement, officials and employees are subject to all existing or future laws and the regulations of appropriate authorities of the Federal Government, including but not restricted to those policies set forth in the Federal Personnel Manual; by published agency policies and regulations in existence and issued at a higher level than the Employer at the time the Agreement is approved for which there is a compelling need; and by subsequently published policies and regulations required by law or by the regulations of appropriate authorities. The implementation procedures for regulations for which a compelling need is established, shall be negotiable.

SECTION 2. This Article of the Agreement shall apply to all supplemental, implementing and/or subsidiary agreements between the Employer and the Union. Ground rules for negotiation of any such supplemental, implementing and/or subsidiary agreements will be the same as used in basic Agreement negotiation as a continuation of basic negotiations. [ v56 p1077 ]

. . . .

ARTICLE 9
ARBITRATION

. . . .

SECTION 5. The arbitrator will be requested to render his binding decision involving the interpretation or application of this Agreement as quickly as possible but in any event, no later than thirty (30) calendar days after close of hearing unless the parties otherwise agree. It is agreed that the arbitrator shall not change, modify, alter, delete, or add to the provisions of this Agreement as such right is reserved to the contracting parties only. It is further agreed that interpretations of published agency policies or regulations, provisions of law, or regulations of appropriate authorities outside the agency which are received from Department of the Army, subsequent to request, will be made available to the arbitrator for consideration in rendering his award.

. . . .

ARTICLE 22
GRIEVANCE PROCEDURE

SECTION 1. This Article is intended to serve as the sole procedure available for the orderly processing of grievances concerning alleged violations of this Agreement or any claimed violation of law or regulation affecting conditions of employment. This procedure shall not include grievances concerning:

a.     Alleged violations concerning prohibited political activities.

b.     Retirement, life insurance or health insurance.

c.     A suspension or removal for national security reasons.

d.     Any examination, certification, or appointment.

e.     The classification of any position which does not result in the reduction in grade or pay of any employee.

f.     The application of the payment of Environmental Differential Pay (EDP) to certain work situations which is determined in accordance with Article 31 [Article 18] of this Agreement.

g.     Employees serving a probationary or trial period.

h.     Suspension or letters of reprimand regarding employees serving on a temporary appointment, during the first six (6) months of employment.

i.     Non-selection from a group of properly ranked candidates.

j.     Suspension or revocation of driving privileges processed under DOD Directive 1010.7 and its derivatives.

SECTION 2. This negotiated procedure shall be the exclusive procedure available to employees of the units and parties to the Agreement for resolving grievances . . . .

. . . .

ARTICLE 18
ENVIRONMENTAL DIFFERENTIAL PAY

SECTION 1. Presently, none of the units of recognition are being paid Environmental Differential Pay (EDP).

SECTION 2. The Employer agrees to meet and confer with the Union prior to deleting or adding to the above situations concerning the payment of Environmental Differential Pay. These discussions shall take place prior to the Employer implementing any such proposed changes or modifications.

SECTION 3. Should a situation arise in which a qualifying hazard cannot be practically eliminated and an Environmental Differential is authorized by the EMPLOYER, payment shall be in accordance with CFR 532.511 Subpart E, Appendix J. The UNION may bring to the attention of the EMPLOYER any situations which it feels should be investigated for possible Environmental Differential pay. Following an investigation, the EMPLOYER and the UNION will evaluate the finding and discuss a resolution.

SECTION 4. Upon request to the office of record and in accordance with the governing laws and regulations the Union will be afforded access to records such as but not limited to Industrial Hygienist monitoring results, monthly inspections of the radioactive areas, or where any employee is exposed to a hazard, physical hardship or working conditions of an unusually severe nature as listed in pertinent regulations. The Union will be provided these records in a reasonable time, bu no later than thirty (30) calendar days unless a record is not available.

SECTION 5. The employee shall have the right to be represented by the Shop Steward or their designee when discussing the matter of EDP in connection with their work assignment. [ v56 p1078 ]

IAMAW Agreement

ARTICLE 3
RESTRICTIONS OF LAW AND REGULATIONS

SECTION 1. It is agreed and understood by the Employer and the Union that in the administration of all matters covered by the Agreement, officials and employees are subject to all existing or future laws and the regulations of appropriate authorities of the Federal Government, including but not restricted to those policies set forth in the Federal Personnel Manual; by published agency policies and regulations in existence and issued at a higher level than the Employer at the time the Agreement is approved for which there is a compelling need; and by subsequently published policies and regulations required by law or by the regulations of appropriate authorities. The implementation procedures for regulations for which a compelling need is established, shall be negotiable.

SECTION 2. This Article of the Agreement shall apply to all supplemental, implementing and/or subsidiary agreements between the Employer and the Union. Ground rules for negotiation of any such supplemental, implementing and/or subsidiary agreements will be the same as used in basic Agreement negotiation as a continuation of basic negotiations.

. . . .

ARTICLE 24
GRIEVANCE PROCEDURE

SECTION 1. This Article is intended to serve as the sole procedure available for the orderly processing of grievances concerning alleged violations of this Agreement or any claimed violation of law or regulation affecting conditions of employment. This procedure shall not include grievances concerning:

a.     Alleged violations concerning prohibited political activities.

b.     Retirement, life insurance or health insurance.

c.     A suspension or removal for national security reasons.

d.     Any examination, certification, or appointment.

e.     The classification of any position which does not result in the reduction in grade or pay of any employee.

f.     The application of the payment of Environmental Differential Pay (EDP) to certain work situations which is determined in accordance with Article 31 of this Agreement.

g.     Employees serving a probationary or trial period.

h.     Suspension or letters of reprimand regarding employees serving on a temporary appointment, during the first six (6) months of employment.

i.     Non-selection from a group of properly ranked candidates.

j.     Suspension or revocation of driving privileges processed under DOD Directive 1010.7 and its derivatives.

SECTION 2. This negotiated procedure shall be the exclusive procedure available to employees of the units and parties to the Agreement for resolving grievances . . . .

. . . .

ARTICLE 25
ARBITRATION

. . . .

SECTION 5. The arbitrator will be requested to render his binding decision involving the interpretation or application of this Agreement as quickly as possible but in any event, no later than thirty (30) calendar days after close of hearing unless the parties otherwise agree. It is agreed that the arbitrator shall not change, modify, alter, delete, or add to the provisions of this Agreement as such right is reserved to the contracting parties only. It is further agreed that interpretations of published agency policies or regulations, provisions of law, or regulations of appropriate authorities outside the agency which are received from the Department of the Army, subsequent to request, will be made available to the arbitrator for consideration in rendering his award.

. . . .

ARTICLE 31
DIFFERENTIAL PAY

SECTION 1. Presently, none of the units of recognition are being paid Environmental Differential Pay (EDP).

SECTION 2. During the term of this Agreement, the Employer agrees to meet and confer with the Union prior to deleting or adding to situations concerning the payment of Environmental Differential Pay. Such discussions [ v56 p1079 ] shall take place prior to the Employer implementing any such proposed changes or modifications.

SECTION 3. The Union may bring to the attention of the Employer situations which it feels should be investigated for possible Environmental Differential Pay. Following its investigation, the Employer will notify the Union in writing of its findings and determination. Any further consideration of the matter will be accomplished through the negotiations between the President and an additional Union Representative and Employer representatives.

SECTION 4. Upon request to the office of record and in accordance with the governing laws and regulations the Union will be afforded access to records such as but not limited to Industrial Hygienist monitoring results, monthly inspections of the radioactive areas, or where any employee is exposed to a hazard, physical hardship or working conditions of an unusually severe nature as listed in pertinent regulations. The Union will be provided these records in a reasonable time, but no later than thirty (30) calendar days unless a record is not available.

SECTION 5. The employee shall have the right to be represented by the Shop Steward or their designee when discussing the matter of EDP in connection with their work assignment.

AFGE Agreement

ARTICLE 2
RESTRICTIONS OF LAW, REGULATIONS
AND EXECUTIVE ORDERS

It is agreed and understood by the Employer and the Union that, in the administration of all matters covered by the Agreement, officials and employees are governed by existing or future laws and the regulations of appropriate authorities, by published agency policies and regulations in existence at the time the Agreement was approved; and by subsequently published agency policies and regulations required by law or by the regulations of the appropriate authorities, or authorized by the terms of a controlling agreement at the higher agency level.

ARTICLE 20
GRIEVANCE PROCEDURE

. . . .

SECTION 11. Union Grievances. The Union has the right to file a grievance under this procedure in its own name. A non-employee grievance submitted by the Union will be submitted in writing to the Commander or his designated representative within twelve (12) working days of the event giving rise to the grievance to attempt resolution. The Commander or his designated representative will meet with the Union President within eight (8) working days after receipt of the grievance to attempt resolution of the grievance. A written decision from the Commander or his designated representative will be provided to the Union President within eight (8) working days of the meeting.

Applicable Law and Regulation

5 U.S.C. § 5343(c)(4) states as follows:

(c) The Office of Personnel Management, by regulation, shall prescribe practices and procedures for conducting wage surveys, analyzing wage survey data, developing and establishing wage schedules and rates, and administering the prevailing rate system. The regulations shall provide--

(4) for proper differentials, as determined by the Office, for duty involving unusually severe working conditions or unusually severe hazards.

5 U.S.C. § 5596(b)(4) states as follows:

The pay, allowances, or differentials granted under this section for the period for which an unjustified or unwarranted personnel action was in effect shall not exceed that authorized by the applicable law, rule, regulations, or collective bargaining agreement under which the unjustified or unwarranted personnel action is found, except that in no case may pay, allowances, or differentials be granted under this section for a period beginning more than 6 years before the date of the filing of a timely appeal or, absent such filing, the date of the administrative determination.

5 C.F.R. § 532.511 pertinently provides:

(a)     Entitlements to environmental differential pay.

(1)     In accordance with section 5343(c)(4) . . . , an employee shall be paid an environmental differential [ v56 p1080 ] when exposed to a working condition or hazard that falls within one of the categories approved by [OPM].

(2)     Each installation or activity must evaluate its situations against the guidelines issued by [OPM] to determine whether the local situation is covered by one or more of the defined categories.

Appendix A to subpart E of part 532 pertinently provides:

16. Asbestos.     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.

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Footnote # 1 for 56 FLRA No. 189

   Member Pope did not participate in this decision.

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Footnote # 2 for 56 FLRA No. 189

   The Agency's claims could be viewed as suggesting that the Union somehow was improperly involved in the clarification of the award. However, we find that the claims are not sufficiently specific to be viewed as contending that the award was procured by undue means or that the Agency was denied a fair hearing. The Authority does not consider such claims unless they are made directly and specifically with supporting evidence. See NTEU Chapter 33, 44 FLRA 252, 265 (1992).

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Footnote # 3 for 56 FLRA No. 189

   The Arbitrator listed the following agreement provisions as central to resolving the matter: Articles 3, 22, and 18 of the NFFE agreement, and Articles 3, 24 and 31 of the IAMAW agreement. The full text of these articles is set forth in the Appendix to this decision.

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Footnote # 4 for 56 FLRA No. 189

   The Arbitrator noted that Article 22, section 1(f) of the NFFE agreement contains identical language to Article 24, section 1(f) of the IAMAW agreement. The Arbitrator also noted that Article 22 section 1(f) of the NFFE agreement contains a misprint that refers to Article 31 of the NFFE agreement, rather than the proper reference Article 18. The Agency also recognizes that this is a misprint. See Exceptions at 10. Accordingly, we also recognize that Article 22, section 1(f) refers to Article 18.

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Footnote # 5 for 56 FLRA No. 189

   These articles are set forth in the Appendix to this decision.

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Footnote # 6 for 56 FLRA No. 189

   The Unions also claim that, because the Agency sent letters to the Unions that "invited" them to file grievances pertaining to EDP, the Agency "waived formal and strict compliance with the grievance procedure." See Opposition at 73 (citing Exh. 253, 254, 206).

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Footnote # 7 for 56 FLRA No. 189

   The cases cited by the Agency, Robins AFB, 18 FLRA 899, and INS Council, 15 FLRA 355, are not on point. In those cases, the Authority found the award deficient when the arbitrator awarded relief on behalf of employees who did not file a grievance. Here, the grievance was filed on behalf of all bargaining-unit employees who may have been exposed to asbestos at the Agency. Because the award does not go beyond the group of employees within the scope of the grievances identified by the Arbitrator, the award is not deficient in the manner alleged by the Agency.

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Footnote # 8 for 56 FLRA No. 189

   Category 16 conditions the payment of an environmental differential for exposure to asbestos 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 5 C.F.R. part 532, subpart E, Appendix A (set forth in the appendix to this decision).

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Footnote # 9 for 56 FLRA No. 189

   "Baseline," or "background," air samples were obtained prior to the start of efforts to remove asbestos from the Agency's facility. Award at 15. "Clearance" air samples were obtained upon completion of efforts to remove asbestos from the facility. Agency's Post-Hearing Brief at 60.

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Footnote # 10 for 56 FLRA No. 189

   "Process" employees are those who routinely handle some asbestos containing material as part of their job duties. Agency's Post-Hearing Brief at 74.

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Footnote # 11 for 56 FLRA No. 189

   The Agency defines the OSHA PEL as being 0.1 f/cc. Exceptions at 66; see also United States Dep't of Transp., Fed. Aviation Admin., 55 FLRA 797, 797 n.3 (1999).

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Footnote # 12 for 56 FLRA No. 189

   In support of this contention, the Agency has attached the affidavit of William L. Dyson, which states that he reviewed industrial hygiene aspects of the award and concluded that in at least three areas, the data and information relied on by the Arbitrator were not scientifically valid and misrepresented the potential risk from asbestos exposure for Agency employees. The Unions have filed a motion under § 2429.5 of the Authority's Regulations to strike the affidavit and the arguments for which it is used as support.

      We grant the Union's motion, in part, and strike the affidavit. Arbitration awards are generally not subject to review on the basis of evidence that comes into existence after the issuance of the arbitration award. See, e.g., Pan. Canal Comm'n, 54 FLRA 1161, 1171 (1998). Even new evidence that would have resulted in a different award if it had been presented at the arbitration hearing is not a basis for "`vitiating the required finality of the original award'." See id. (quoting Veterans Admin. Reg'l Office, 5 FLRA 463, 471 (1981)). Moreover, this approach is consistent with § 2429.5 of the Authority's Regulations, which provides that the Authority will not consider any evidence that was not presented to the arbitrator. However, nothing, including § 2429.5, prevents the Agency from arguing that the award is based on a nonfact. Consequently, we deny the remainder of the Union's motion to strike regarding the Agency's arguments.

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Footnote # 13 for 56 FLRA No. 189

   In support of this contention, the Agency has attached the affidavits of Charles F. Gawenis and Charles D. Bird, which state that they reviewed the Arbitrator's award and concluded that key assertions of the Unions adopted by the Arbitrator misrepresented facts. The Unions have filed a motion under § 2429.5 to strike the affidavits and the arguments for which they are used as support. In accordance with our decision above, we strike these affidavits, but will consider the Agency's arguments.

      The Agency also cited to a publication on the sampling of asbestos dust and noted that it was included in an agency exhibit submitted to the Arbitrator. The Unions have also filed a motion to strike the argument for which the publication is cited as procedurally deficient under § 2425.2 because neither the publication nor the agency exhibit containing it was served on the Unions as part of the Agency's exceptions. We find that the citation to the publication by the Agency is procedurally sufficient and deny the Unions' motion to strike the argument for which the publication is cited as support. See, e.g., AFGE Council 163, 54 FLRA 880, 885 (1998).

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Footnote # 14 for 56 FLRA No. 189

   This argument refers to the "adverse inference" that the Unions' counsel had demanded at the hearing "as to medical records which supposedly had not been turned over to them." Exceptions at 59. On this subject, the Agency points out that the week before the hearing, the Agency "discovered that the Navy health center at the base did have some x-rays," whereupon the Agency made that material available to the Unions. Exceptions at 55.

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Footnote # 15 for 56 FLRA No. 189

   Indeed, the Agency stated at the hearing that it decided not to ask for a subpoena for the x-ray film because it was "not relevant" to the issue of "exposure on a daily basis to asbestos [or] the airborne concentrations of asbestos." See Tr. Vol. III at 346.

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Footnote # 16 for 56 FLRA No. 189

   The cases cited by the Agency, OPM, 44 FLRA 287, and HCFA, 26 FLRA 860, fail to support the Agency's claim that it was denied a full and fair opportunity to defend itself. In OPM, the Authority found that the union had not demonstrated that the arbitrator improperly refused to hear pertinent additional testimony from the grievant, or that any such refusal affected the fairness of the overall arbitration. In HCFA, the Authority found that the agency had not substantiated in what way the arbitrator's grant of a directed verdict to union, and subsequent exclusion of scheduled testimony, resulted in an unfair hearing. Similarly, we find that the Agency has not substantiated how the Arbitrator's decision to draw an adverse inference against the Agency's submission of "newly discovered evidence" denied the Agency an opportunity to adequately present its case.

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Footnote # 17 for 56 FLRA No. 189

   The Agency also argued that the award is incomplete because the Arbitrator failed to adequately define the employees covered by the EDP award. In view of the Arbitrator's supplemental award, this exception is now moot. Accordingly, we dismiss this exception as moot.

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Footnote # 18 for 56 FLRA No. 189

   In VAMC, Ann Arbor, we indicated that the contingency fee arrangement between employees and the attorneys is separate and independent from statutory attorney fees under the Back Pay Act, which incorporates the requirements of 5 U.S.C. § 7701(g). In other words, the Unions' and/or the employees' agreement to pay fees to the attorneys does not affect the attorneys' eligibility for fees paid by the Agency under the Back Pay Act. Accordingly, as a motion for attorney fees under the Back Pay Act may be pending before the Arbitrator, we note that contractual fees from employees are separate from statutory fees from the Agency. As a result, if the Arbitrator has not yet ruled on the Unions' application for statutory attorney fees and expenses, he may do so, in accordance with the requirements of the Back Pay Act and § 7701(g).