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Arbitration Digest Series

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55 FLRA No. 2

AFGE, Local 2004 and U.S. Dept. of Defense, Defense Logistics Agency, Defense Distribution Region East, New Cumberland, Pennsylvania 0-AR-3024 (Berkowitz, Arbitrator), 0-AR-3024 (Decided December 17, 1998)


      The Arbitrator concluded that the Agency did not violate the parties' collective bargaining agreement by failing to eliminate unsafe conditions in the work environment. Accordingly, the Arbitrator denied the Union's request that employees be awarded Environmental Differential Pay (EDP). The Authority concluded that the award was not deficient under section 7122(a) of the Statute and denied the exceptions.

      Preliminarily, the Authority concluded that the Union's exceptions were properly served. The Authority rejected the Agency's contention that the Union failed to comply with the requirements for service set forth in 5 C.F.R. § 2429.27 because the exceptions were served on the Agency by first-class mail, rather than certified mail. The Authority noted that service by certified mail is not the only permissible means of service under the regulation and that the Union complied with the regulation when it served the Agency by first-class mail.

      The Authority rejected the Union's supplemental submission requesting that the Authority remand the instant case to the Arbitrator for further proceedings in view of newly acquired evidence. The Authority noted that arbitration awards are not subject to review on the basis of evidence that comes into existence after the arbitration. The Authority also rejected the allegation that the award failed to draw its essence from the agreement. Lastly, the Authority concluded that the award was not contrary to law or regulation.

      The Union argued that the award was contrary to law because the Arbitrator failed to apply the correct standard for providing EDP. The Authority noted that Appendix A of 5 C.F.R. Part 532 does not set forth any specified level of exposure required for the payment of EDP. It further stated that it has consistently held that the specific work situations for which EDP is payable are left to local determination, including arbitration. Thus, parties are free to negotiate, consistent with law and regulation, the quantitative level of asbestos exposure that would be used in assessing employee entitlement to EDP. The Authority found that the parties contractually agreed to use OSHA standards. The Arbitrator applied these standards in finding that the Union failed to establish that employees were entitled to EDP. Therefore, the Union failed to demonstrate that the award was contrary to law.

      The Authority also rejected the Union's assertion that Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure requires that the Arbitrator grant a legal presumption that the Agency's failure to allow the Union access to the building for additional asbestos testing indicates that the building contains unsafe levels of asbestos. The Authority noted that it has previously stated that there is no requirement that arbitration proceedings be governed by the Federal Rules of Civil Procedure. The Authority added that even if the Federal Rules did apply in this context, the rule which the Union cites concerned failure to comply with an order to permit discovery. The Agency's refusal to allow further testing did not constitute a failure to comply with a discovery order. Accordingly, the Authority found that the Union did not demonstrate that failure to grant the Union a presumption in its favor rendered the award contrary to law.



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