Headquarters, U.S. Army Communications Command, Et Al., Fort Huachuca, Arizona (Activity) and American Federation of Government Employees, Local 1662 (Union) 



[ v03 p705 ]
03:0705(113)AR
The decision of the Authority follows:


 3 FLRA No. 113
 
 HEADQUARTERS, U.S. ARMY
 COMMUNICATIONS COMMAND,
 ET AL., FORT HUACHUCA,
 ARIZONA
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 1662
 Union
 
                                            Case no.0-AR-27
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
 AWARD OF ARBITRATOR JULIUS N. DRAZNIN FILED BY THE UNION UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
 U.S.C. 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
 THE ACTIVITY ISSUED A NOTICE CHANGING THE "QUALIFICATION FOR PERSONS
 RECEIVING ENVIRONMENTAL DIFFERENTIAL PAY WHILE ENGAGED IN THE WATER AND
 SEWAGE PLANT OPERATIONS." THE NOTICE APPARENTLY RESULTED IN A REDUCTION
 IN THE NUMBER OF PERSONS WHO QUALIFIED FOR DIFFERENTIAL PAY AND THE
 CIRCUMSTANCES UNDER WHICH SUCH PAY WOULD BE GIVEN.  THE UNION,
 DISAGREEING WITH THIS REDUCTION, FILED A GRIEVANCE.  THE PARTIES WERE
 UNABLE TO RESOLVE THE QUESTION AND IT WAS SUBMITTED TO ARBITRATION.
 
    ALTHOUGH A SUBMISSION STATEMENT WAS GIVEN TO THE ARBITRATOR, THE
 PARTIES WERE IN DISAGREEMENT AS TO THE LANGUAGE FRAMING THE ISSUE.
 THEREFORE, THE PARTIES AGREED TO ALLOW THE ARBITRATOR TO FORMULATE IT.
 THE ARBITRATOR FOUND THAT THERE WERE TWO ISSUES.  THE FIRST WAS THE ONE
 SUBMITTED BY THE PARTIES:
 
    HAVE THE SAFETY HAZARDS PERTAINING TO POISONS (TOXIC CHEMICALS) IN
 THE SEWER AND WATER
 
    TREATMENT PLANTS BEEN 'PRACTICALLY ELIMINATED BY SAFETY DEVICES AND
 PROCEDURES' AS PROVIDED IN
 
    ARTICLE 21 OF THE NEGOTIATED AGREEMENT SO AS TO ELIMINATE
 ENVIRONMENTAL DIFFERENTIAL PAY
 
    EXCEPT IN THOSE INSTANCES SET FORTH IN (THE AGENCY NOTICE), ATTACHED
 HERETO.
 
    THE SECOND ISSUE WAS WHETHER THE TERM "POISONS (TOXIC CHEMICALS)"
 USED IN THE FIRST ISSUE "INCLUDE BY DEFINITION OF THE TERMS THEMSELVES
 AND THE EVIDENCE PRESENTED AT THIS HEARING, HYDROGEN SULFIDE GAS AND
 METHANE GAS, EACH OF WHICH IS THE RESULT OF BIOLOGICAL AND
 BACTERIOLOGICAL ACTIVITY IN THE SEWAGE AND WASTE MATERIALS AREAS OF THE
 FORT?"
 
    IN ADDRESSING THE SECOND ISSUE FIRST, THE ARBITRATOR CONCLUDED THAT
 BOTH METHANE AND HYDROGEN SULFIDE WERE TOXIC AND POISONOUS.  HOWEVER, HE
 FOUND NO EVIDENCE THAT THE PARTIES HAD AGREED "IN ANY WAY AT ANY TIME
 THAT THE LANGUAGE OF THE (SUBMISSION) AND OF ARTICLE 21 OF THE CONTRACT
 WAS MEANT TO INCLUDE THESE TWO DANGEROUS GASES." HE, THEREFORE, FOUND NO
 BASIS FOR THE UNION'S CONTENTION THAT THE GASES SHOULD BE INCLUDED IN
 THE SCOPE OF THE TERMS THEY USED.
 
    WITH REGARD TO THE FIRST ISSUE, THE ARBITRATOR HELD THAT THE SAFETY
 HAZARDS HAD BEEN "PRACTICALLY ELIMINATED." FINDING NO PROBATIVE EVIDENCE
 TO SUSTAIN THE UNION'S CONTENTION, THE ARBITRATOR DISMISSED THE
 GRIEVANCE, STATING THAT "(N)O ENVIRONMENTAL HAZARD PAY IS CALLED FOR
 BEYOND THAT WHICH EMPLOYEES ARE NOW BEING COMPENSATED FOR BY THE
 EMPLOYER IN ACCORDANCE WITH THE LABOR-MANAGEMENT AGREEMENT."
 
    THE UNION FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
 PURSUANT TO THE RULES OF PROCEDURE SET FORTH IN 5 C.F.R. PART 2411
 (1978), WHICH, TO THE EXTENT CONSISTENT WITH THE PROVISIONS OF SECTION
 7122(A) OF THE STATUTE (5 U.S.C. 7122(A)) AND AS AMENDED BY SECTION
 2400.5 OF THE TRANSITION RULES AND REGULATIONS OF THE FEDERAL LABOR
 RELATIONS AUTHORITY, 44 F.R. 44741, REMAIN OPERATIVE WITH RESPECT TO
 THIS CASE.  THE UNION SEEKS AUTHORITY ACCEPTANCE OF ITS PETITION ON THE
 BASIS OF THE EXCEPTIONS DISCUSSED BELOW.  THE AGENCY DID NOT FILE AN
 OPPOSITION.
 
    PURSUANT TO SECTION 2411.32 OF THE AMENDED RULES AND SECTION 7122(A)
 OF THE STATUTE, THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
 ARBITRATOR'S AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND
 CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE AWARD IS DEFICIENT
 BECAUSE IT IS CONTRARY TO LAW OR REGULATION, OR ON OTHER GROUNDS SIMILAR
 TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    IN ITS FIRST EXCEPTION, THE UNION CONTENDS THE ARBITRATOR'S FINDINGS
 OF FACT ARE TOTALLY UNSUPPORTED BY THE EVIDENCE.  IN SUPPORT OF ITS
 CONTENTION THE UNION ARGUES THAT THE SAFETY HAZARDS HAVE NOT BEEN
 ELIMINATED.  RATHER, THE UNION ASSERTS, THE ACTIVITY IS FURNISHING ITS
 EMPLOYEES WITH INADEQUATE EQUIPMENT, AND STORING THE POISONS IN
 HAZARDOUS LOCATIONS.  THE UNION STATES THAT IT PRESENTED EVIDENCE TO
 THIS EFFECT AT THE ARBITRATION HEARING, AND THEREFORE CONTENDS THAT ANY
 FINDING OF THE ARBITRATOR TO THE CONTRARY IS UNSUPPORTED.
 
    THE UNION'S FIRST EXCEPTION CONSTITUTES MERE DISAGREEMENT WITH THE
 ARBITRATOR'S FINDINGS OF FACT, WHICH DOES NOT CONSTITUTE A BASIS FOR
 REVIEWING ARBITRATION AWARDS.  UNITED STATES ARMY MISSILE MATERIEL
 READINESS COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1858, AFL-CIO, CASE NO. 0-AR-7, 2 FLRA NO. 60 (JAN. 17,
 1980).  THEREFORE, THIS EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF
 THE UNION'S PETITION FOR REVIEW UNDER SECTION 2411.32 OF THE AMENDED
 RULES.
 
    IN ITS SECOND EXCEPTION THE UNION CONTENDS THE ARBITRATOR INCORRECTLY
 INTERPRETED THE CONTRACT AS EXCLUDING METHANE GAS AND HYDROGEN SULFIDE
 FROM ITS COVERAGE. TO SUPPORT ITS EXCEPTION, THE UNION ASSERTS THAT
 UNDER THE CONTRACT, THE ACTIVITY AND THE UNION ARE GOVERNED BY "EXISTING
 OR FUTURE LAWS AND REGULATIONS OF APPROP