Army stiffs staff over asbestos threat
- By Bureaucratus
- Nov 30, 1997
If you fear that the building in which you work is contaminated by airborne asbestos, you may be entitled to environmental differential pay. But some Army employees recently discovered that collecting EDP can be difficult.
In 1964, the walls and doors of a building at an Army facility in Texas were sprayed with asbestos, which also was used to insulate pipes there. Although the Army took steps to control the threat, tests in 1980, 1989, 1990 and 1993 revealed some airborne asbestos. Tests in 1976 and 1986 turned up no airborne asbestos.
The union representing employees at this facility was not happy with the Army for its apparent disregard for the health of its employees.
According to the union, it became aware that there was a serious asbestos problem in the building after the Army requested an on-site survey in 1989 from the Occupational Safety and Health Administration. Two air samples taken by OSHA found airborne asbestos.
As a result, the union asked the Army to pay EDP to employees exposed to the asbestos. After the agency refused, the union filed a grievance in 1990 requesting back pay and interest for affected employees. The dispute was turned over to an independent arbitrator.
The arbitrator viewed the issue as a question of whether the employees working in the building had been exposed to airborne concentrations of asbestos fibers sufficient to warrant EDP. He also questioned when and for how long the exposure occurred and whether it occurred at other Army buildings as well.
Based on the record before him, the arbitrator concluded that "the scientific evidence is overwhelming [that] there is no asbestos that is not dangerous." He found that the only way for an agency to ensure that there is no exposure to a hazardous substance is to perform periodic testing and to provide protective clothing and equipment. He concluded that the Army did neither.
"There is simply no question but that every full-time employee working in [the building] has been exposed to dangerously high levels of asbestos," the arbitrator wrote.
Although in 1990 the Army sealed cracks in the plywood it installed four years earlier to encase the asbestos-sprayed walls, leakage problems persisted, according to the arbitrator, who noted that an Army witness had testified that the agency had sealed the leaks "for appearances' sake.... It was not done to prevent asbestos from leaking out."
As if that weren't bad enough, the arbitrator found that neither the employees doing asbestos repair work nor the employees working in the building were given protective devices during the repairs. He concluded that the Army had failed to comply with the law and that every employee regularly working in the building had been and still is "working in an area where airborne concentrations of asbestos fibers may expose employees to potential illness or injury."
He ordered the agency to pay EDP to all employees who had worked in the building full-time since March 9, 1975. He also found that all employees were entitled to interest on the EDP under the Back Pay Act.
Adding Insult to Injury
The Army took the low road. It argued that the law requires an arbitrator to find a quantitative level of airborne asbestos fibers present to determine that employees are entitled to EDP. In addition, the agency argued that it had taken actions that diminished the potential for release of asbestos fibers and that the arbitrator failed to properly consider whether those safety measures "practically" eliminated the risk of potential illness or injury.
To add insult to injury, the Army said the award was contrary to law because it provided hazardous-duty pay for General Schedule employees. The agency contended that before June 1993, when applicable regulations were revised, there was no authority to award hazardous-duty pay to GS employees for asbestos exposure. In other words, the Army believes federal employees are not entitled to compensation for exposure to airborne contaminants before June 1993, regardless of the facts.
The dispute was then brought before the Federal Labor Relations Authority, which ruled that the arbitrator may determine the quantitative level of exposure for the payment of EDP "in the absence of a mandated quantitative level set by applicable law or regulation or otherwise agreed to by the parties." Because there was no evidence that the concerned parties negotiated a quantitative level for assessing employee entitlement to EDP, the FLRA said the arbitrator could determine what level of exposure to airborne asbestos could cause potential illness and injury. Chalk one up for the good guys.
Unfortunately, the FLRA did agree that federal employees were not entitled to hazardous-duty pay for exposure to asbestos before June 1993. You might want to write your members of Congress and find out why you were not protected until 1993, even though private-sector employees were.
—Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.