Veterans Administration Medical Center, Fort Howard (Activity) and American Federation of Government Employees, Local 2146, AFL-CIO (Union) 



[ v05 p250 ]
05:0250(31)AR
The decision of the Authority follows:


 5 FLRA No. 31
 
 VETERANS ADMINISTRATION
 MEDICAL CENTER, FORT
 HOWARD
 Activity
 
 and
 
 AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 2146
 Union
 
                                            Case No. 0-AR-43
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR ROBERT J. ABLES FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7112(A)).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER INVOLVED THE
 GRIEVANT'S ELIGIBILITY FOR 4 PERCENT ENVIRONMENTAL DIFFERENTIAL PAY
 (EDP).  THE PARTIES WERE UNABLE TO RESOLVE THE GRIEVANT'S ELIGIBILITY
 FOR THE DIFFERENTIAL AND SUBMITTED THE FOLLOWING STIPULATED ISSUE TO
 ARBITRATION:
 
    HAS THE GRIEVANT BEEN EXPOSED TO THE SITUATIONS SET FORTH IN CATEGORY
 5 OF PART II OF
 
    APPENDIX J OF FPM SUPPLEMENT 532-1 SINCE 1971?  IF SO, WHAT SHALL THE
 REMEDY BE?
 
    IN ADDRESSING THE ISSUE, THE ARBITRATOR FIRST OBSERVED THAT THE
 GRIEVANT WAS A PEST CONTROLLER WHO USED PESTICIDES AND RODENTICIDES IN
 THE PERFORMANCE OF HIS DUTIES.  HE FURTHER OBSERVED THAT THE GRIEVANT
 CLAIMED ENTITLEMENT TO AN ENVIRONMENTAL DIFFERENTIAL ON THE BASIS OF HIS
 CLAIMED EXPOSURE TO THE WORK SITUATION SET FORTH IN CATEGORY 5 OF PART
 II OF APPENDIX U OF FEDERAL PERSONNEL MANUAL SUPPLEMENT 532-1.  CATEGORY
 5 OF PART II, APPENDIX J (SCHEDULE OF ENVIRONMENTAL DIFFERENTIALS PAID
 FOR EXPOSURE TO VARIOUS DEGREES OF HAZARDS, PHYSICAL HARDSHIPS, AND
 WORKING CONDITIONS OF AN UNUSUAL NATURE) PROVIDES A 4 PERCENT
 ENVIRONMENTAL DIFFERENTIAL FOR:
 
    POISONS (TOXIC CHEMICALS) - LOW DEGREE HAZARD.
 
    A.  WORKING WITH OR IN CLOSE PROXIMITY TO POISONS (TOXIC CHEMICALS
 OTHER THAN TEAR GAS OR
 
    SIMILAR IRRITATING SUBSTANCES) IN SITUATIONS FOR WHICH THE NATURE OF
 THE WORK DOES NOT REQUIRE
 
    THE INDIVIDUAL TO BE IN AS DIRECT CONTACT WITH, OR EXPOSURE TO, THE
 MORE TOXIC AGENTS AS IN
 
    THE CASE WITH THE WORK DESCRIBED UNDER HIGH HAZARD FOR THIS CLASS OF
 HAZARDOUS AGENTS.
 
    B.  WORKING WITH OR IN CLOSE PROXIMITY TO POISONS (TOXIC CHEMICALS
 OTHER THAN TEAR GAS OR
 
    SIMILAR IRRITATING SUBSTANCES) IN SITUATIONS FOR WHICH THE NATURE OF
 THE WORK DOES NOT REQUIRE
 
    THE INDIVIDUAL TO BE IN AS DIRECT CONTACT WITH, OR EXPOSURE TO, THE
 MORE TOXIC AGENTS AS IN
 
    THE CASE WITH THE WORK DESCRIBED UNDER HIGH HAZARD FOR THIS CLASS OF
 HAZARDOUS AGENTS AND
 
    WHEREIN PROTECTIVE DEVICES AND/OR SAFETY MEASURES HAVE NOT
 PRACTICALLY ELIMINATED THE
 
    POTENTIAL FOR PERSONAL INJURY.
 
    EXAMPLE
 
    HANDLING FOR SHIPPING, MARKING, LABELING, HAULING AND STORING LOADED
 CONTAINERS OF TOXIC
 
    CHEMICAL AGENTS THAT HAVE BEEN MONITORED.
 
    IN RESOLVING THE ISSUE OF WHETHER THE GRIEVANT WAS EXPOSED TO THE
 WORK SITUATION SET FORTH IN CATEGORY 5 SO AS TO ENTITLE HIM TO AN
 ENVIRONMENTAL DIFFERENTIAL, THE ARBITRATOR FOUND THAT FROM 1971-1974 THE
 GRIEVANT HAD PROTECTION ONLY FOR HIS HANDS.  THE ARBITRATOR'S
 ACKNOWLEDGED THAT IN 1975 THE GRIEVANT WAS TREATED FOR "CHRONIC CONTACT
 DERMATITIS SECONDARY TO EXPOSURE TO CHEMICALS," AND HE FOUND THAT
 THEREAFTER THE GRIEVANT BEGAN USING ADDITIONAL PROTECTIVE EQUIPMENT.
 HOWEVER, THE ARBITRATOR FOUND NO EVIDENCE THAT THE GRIEVANT HAD SUFFERED
 ANY DISABILITY SINCE HE BEGAN USING THE ADDITIONAL PROTECTIVE EQUIPMENT
 OR THAT THIS EQUIPMENT HAD NOT PRACTICALLY ELIMINATED THE POTENTIAL FOR
 PERSONAL INJURY.
 
    ON THE BASIS OF THIS RECORD, THE ARBITRATOR RULED THAT "THE GRIEVANT
 IS NOT ENTITLED TO EDP UNDER THE FPM STANDARDS." HE EXPLAINED THAT THE
 ONLY EVIDENCE THAT HAD BEEN PRESENTED TO SUPPORT THE CLAIM FOR AN
 ENVIRONMENTAL DIFFERENTIAL SINCE 1971 WAS THE GRIEVANT'S HOSPITALIZATION
 IN 1975.  HOWEVER, AS TO THIS EVIDENCE, THE ARBITRATOR EXPRESSLY
 OBSERVED THAT "THE GRIEVANT MADE NO CLAIM FOR COMPENSATION IN CONNECTION
 WITH CONTRACTING A WORK-RELATED HEALTH PROBLEM." THEREFORE, THE
 ARBITRATOR DETERMINED THAT "THE UNION HAS NOT CARRIED ITS BURDEN OF
 SHOWING WHY (THE GRIEVANT) SHOULD HAVE RECEIVED EDP AT ANY TIME SINCE
 1971." ACCORDINGLY, AS HIS AWARD, THE ARBITRATOR RULED THAT "(T)HE
 GRIEVANT HAS NOT BEEN EXPOSED TO THE STIPULATED CONDITIONS SINCE 1971.
 THE GRIEVANCE IS DENIED."
 
    THE UNION FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
  /2/ THE AGENCY DID NOT FILE AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S EXCEPTION, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO ANY LAW, RULE, OR REGULATION, OR IS DEFICIENT ON OTHER
 GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS CASES.
 
    IN ITS EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT THE AWARD
 VIOLATES FEDERAL PERSONNEL MANUAL SUPPLEMENT 532-1.  IN SUPPORT OF ITS
 EXCEPTION, THE UNION REFERS TO A QUESTION THE ARBITRATOR POSED IN HIS
 OPINION REGARDING WHETHER THE LEVEL OF EXPOSURE THE GRIEVANT HAS TO
 CHEMICALS IS TAKEN INTO ACCOUNT IN GRADING HIS JOB.  THE UNION MAINTAINS
 THAT THE ARBITRATOR'S AFFIRMATIVE ANSWER TO THIS QUESTION CONSTITUTED
 THE BASIS ON WHICH HE DENIED THE GRIEVANT AN ENVIRONMENTAL DIFFERENTIAL
 AND THAT THEREFORE THE AWARD IS NOT IN ACCORDANCE WITH FPM SUPPLEMENT
 532-1.  SPECIFICALLY, THE UNION CLAIMS THAT THE AWARD IS CONTRARY TO THE
 PROVISIONS OF SUBCHAPTER S8-7(C) OF FPM SUPPLEMENT 532-1 WHICH
 RELEVANTLY PROVIDES:
 
    EXPOSURE TO A . . . WORKING CONDITION . . . LISTED IN APPENDIX J IS
 NOT TAKEN INTO
 
    CONSIDERATION IN THE JOB-GRADING PROCESS, AND ADDITIONAL PAY FOR
 EXPOSURE TO THESE CONDITIONS
 
    IS PROVIDED ONLY THROUGH THE ENVIRONMENTAL DIFFERENTIALS AUTHORIZED
 BY THIS SECTION.
 
    IN CONCLUSION THE UNION ASSERTS THAT THE AUTHORITY SHOULD SET ASIDE
 THE AWARD AND FIND THAT THE GRIEVANT WAS ENTITLED TO AN ENVIRONMENTAL
 DIFFERENTIAL.
 
    THE UNION'S EXCEPTION THAT THE AWARD IS CONTRARY TO FPM SUPPLEMENT
 532-1 STATES A GROUND ON WHICH THE AUTHORITY WILL FIND AN ARBITRATION
 AWARD DEFICIENT UNDER SECTION 7122(A)(2) OF THE STATUTE.  IN THIS CASE,
 HOWEVER, THE UNION HAS NOT DEMONSTRATED IN WHAT MANNER THE ARBITRATOR'S
 AWARD DENYING THE GRIEVANT ENTITLEMENT TO AN ENVIRONMENTAL DIFFERENTIAL
 IS CONTRARY TO FPM SUPPLEMENT 532-1.  THE UNION'S ARGUMENT IS
 ESSENTIALLY THAT THE GRIEVANT IS ENTITLED TO AN ENVIRONMENTAL
 DIFFERENTIAL AND THAT THE ARBITRATOR DENIED THAT DIFFERENTIAL TO THE
 GRIEVANT SOLELY BECAUSE THE ARBITRATOR DETERMINED THAT THE GRIEVANT'S
 EXPOSURE TO THE WORKING CONDITIONS OF CATEGORY 5 WAS TAKEN INTO ACCOUNT
 IN THE JOB GRADING OF HIS POSITION.  HOWEVER, AS NOTED, THE ARBITRATOR
 IN HIS AWARD SUCCINCTLY RULED:
 
    THE GRIEVANT HAS NOT BEEN EXPOSED TO THE STIPULATED CONDITIONS SINCE
 1971.  THE GRIEVANCE
 
    IS DENIED.
 
    IN REACHING THIS AWARD, THE ARBITRATOR CAREFULLY EVALUATED THE
 EVIDENCE AND CONCLUDED THAT EXCEPT FOR THE GRIEVANT'S HOSPITALIZATION
 WHICH, AS NOTED, HE OTHERWISE REJECTED, "(T)HE UNION PRESENTED NO
 EVIDENCE TO SUPPORT A CLAIM FOR EDP AS FAR BACK AS 1971." ACCORDINGLY,
 THE ARBITRATOR SPECIFICALLY FOUND THAT "THE UNION HAS NOT CARRIED ITS
 BURDEN OF SHOWING WHY (THE GRIEVANT) SHOULD HAVE RECEIVED EDP AT ANY
 TIME SINCE 1971," AND HE EXPRESSLY DETERMINED THAT "THE GRIEVANT IS NOT
 ENTITLED TO EDP UNDER THE FPM STANDARDS."
 
    IN THESE CIRCUMSTANCES, THE UNION HAS NOT SHOWN THAT THE ARBITRATOR
 DETERMINED THAT THE GRIEVANT WAS EXPOSED TO THE WORKING CONDITIONS SET
 FORTH IN CATEGORY 5 BUT THEREAFTER ERRONEOUSLY FAILED TO FIND THE
 GRIEVANT ENTITLED TO AN ENVIRONMENTAL DIFFERENTIAL SO AS TO PROVIDE A
 BASIS FOR FINDING THE AWARD CONTRARY TO FPM SUPPLEMENT 532-1.  IN THIS
 RESPECT, FPM SUPPLEMENT 532-1 PROVIDES AT SUBCHAPTER S8-7(F) 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 CONDITIONS LISTED IN APPENDIX J.  HOWEVER, IT IS
 WELL ESTABLISHED THAT THE SPECIFIC WORK SITUATIONS FOR WHICH AN
 ENVIRONMENTAL DIFFERENTIAL IS PAYABLE ARE LEFT TO LOCAL DETERMINATION.
 MOREOVER, SUBCHAPTER S8-7(G)(3) /3/ PROVIDES FOR THE COLLECTIVE
 BARGAINING PROCESS AS ONE SPECIFIC MEANS OF LOCALLY DETERMINING WHETHER
 A PARTICULAR DISPUTED WORK SITUATION WARRANTS THE PAYMENT OF AN
 ENVIRONMENTAL DIFFERENTIAL.  IN THIS CASE, WHETHER THE GRIEVANT WAS
 BEING EXPOSED TO A WORKING CONDITION SET FORTH IN CATEGORY 5 WAS
 PRECISELY THE ISSUE STIPULATED AND SUBMITTED TO THE ARBITRATOR FOR HIS
 RESOLUTION.  THE ARBITRATOR DETERMINED AS TO THE DISPUTED LOCAL WORK
 SITUATION OF THE GRIEVANT THAT HE HAD NOT BEEN EXPOSED TO A WORKING
 CONDITION SET FORTH IN CATEGORY 5 AND THEREFORE DENIED THE GRIEVANCE.
 WITH THE FPM EXPRESSLY DELEGATING FOR LOCAL DETERMINATION THE SPECIFIC
 WORK SITUATIONS FOR WHICH AN ENVIRONMENTAL DIFFERENTIAL WILL BE PAYABLE
 AND WITH THE ARBITRATOR REJECTING THE PAYMENT IN THIS CASE, THE UNION'S
 EXCEPTION PRESENTS NO BASIS FOR FINDING THE AWARD CONTRARY TO FPM
 SUPPLEMENT 532-1.  SEE, E.G., NORFOLK NAVAL SHIPYARD AND TIDEWATER
 VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, 1 FLRA NO.
 105(1979).  THEREFORE, THE UNION'S EXCEPTION DOES NOT PROVIDE A BASIS
 FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION
 2425.3 OF THE AUTHORITY'S RULES.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES, WE HEREBY SUSTAIN THE ARBITRATOR'S AWARD.
 
    ISSUED, WASHINGTON, D.C., MARCH 9, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /2/ ALTHOUGH THE UNION'S EXCEPTION WAS FILED AT THE TIME THE
 AUTHORITY'S INTERIM RULES AND REGULATIONS WERE IN EFFECT, THE FINAL
 RULES AND REGULATIONS, 5 CFR PART 2425 (1980), ARE IDENTICAL TO THE
 INTERIM REGULATIONS.
 
    /3/ FPM SUPPLEME