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)

In the Matter of )

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DEPARTMENT OF THE AIR FORCE )

SCOTT AIR FORCE BASE )

SCOTT AIR FORCE BASE, ILLINOIS )

)

and ) Case No. 92 FSIP 165

LOCAL R7-23, NATIONAL ASSOCIATION OF )

GOVERNMENT EMPLOYEES, SEIU, AFL-CIO )

)

_______________________________________)

Following a Notice of Hearing in the above-referenced case, Chief Legal Advisor Donna M. DiTullio conducted a factfinding hearing on September 29, 1992, on the issue of whether environmental differential pay (EDP) for employees assigned to asbestos abatement projects should be continued. At the hearing a stenographic record was made, testimony and argument were presented, and documentary evidence was submitted. The parties filed posthearing briefs. The Factfinder's Report, without recommendations, was submitted to the Panel, which has now considered the entire record developed by the parties in the case.

The proposals and positions of the parties regarding the above-stated issue at impasse are set forth in the attached Factfinder's Report.

We shall turn first to the Employer's argument that the Panel should relinquish jurisdiction and direct the parties to submit the matter to grievance arbitration because an applicable provision in the parties' collective-bargaining agreement demonstrates that the Union clearly and unmistakably waived its right to negotiate over EDP matters. In such circumstances, the Panel is guided by the Federal Labor Relations Authority's decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) (Carswell), where the FLRA determined that the Panel may apply existing case law to resolve an impasse where a duty-to-bargain issue arises. In this regard, the FLRA rejected the same argument raised by this Employer in connection with the identical contract provision in question in Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, 42 FLRA 266 (1991), and found that the Union did not waive its right to bargain over EDP matters when it agreed to the applicable provision. Consistent with the FLRA's ruling in that case, we conclude the Employer's argument is without merit, and that the dispute is properly before the Panel.

As to the merits of whether EDP should continue, having considered the evidence and arguments submitted by the parties, we conclude that the Union's proposal should be adopted. We find, essentially, that the current equipment and safety practices used to prevent employees from being exposed to asbestos have not practically eliminated the hazard. In this regard, we find the testimony of the members of the asbestos abatement team, as stated in the transcript of the hearing and summarized in the Factfinder's Report, to be compelling. While we are mindful of the difficulty of determining what constitutes the "practical elimination" of the hazards of asbestos in the workplace, we believe that, on the basis of the evidence presented, the issue should be resolved in favor of the employees whose health may be jeopardized. We note that our decision does not foreclose the Employer from negotiating to eliminate EDP in the future should additional changes in equipment and safety procedures be made that practically eliminate the hazard to employees from exposure to asbestos.

Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of the proceeding instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

The parties shall adopt the Union's proposal.

By direction of the Panel.

Linda A. Lafferty

Executive Director

December 15, 1992

Washington, D.C.

Attachment