15:0213(42)AR - Air Force, Griffiss AFB and AFGE Local 2612 -- 1984 FLRAdec AR
[ v15 p213 ]
The decision of the Authority follows:
15 FLRA No. 42 DEPARTMENT OF THE AIR FORCE, GRIFFISS AIR FORCE BASE Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2612 Union Case No. O-AR-246 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Dale S. Beach filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. /1/ The Union filed an opposition. The dispute in this matter concerns the Activity's termination in 1979 of the payment of a 4% environmental differential to pest controllers for exposure to poisons (toxic chemicals). The termination was on the advice of the Activity's environmental engineering office which concluded that environmental differential pay was not warranted or authorized under FPM Supp. 532-1 and Appendix J. A grievance was filed and submitted to arbitration on the issues of whether payment of an environmental differential was warranted and whether the Activity had violated the parties' collective bargaining agreement and personnel policy by failing to consult with the Union regarding the termination of environmental differential pay. The Arbitrator determined as to payment of the differential that there was no exposure to any unusually severe hazard within the meaning of FPM Supp. 532-1 and Appendix J and that consequently the pest controllers were not entitled to have had their environmental differential pay continued. However, the Arbitrator did find that the Activity violated the agreement and personnel policy when it failed to consult with the Union, and as his award in this respect the Arbitrator ordered as follows: As redress for this violation Griffiss Air Force Base shall pay each Pest Controller a sum of money equal to 4% of his pay for the period from the date of discontinuance in October-November 1979 to February 24, 1981, the date of this arbitration hearing. In its exceptions the Agency essentially contends that by ordering retroactive payment of an environmental differential to redress a failure to consult with the Union, the award is contrary to the Back Pay Act and FPM Supp. 532-1 and Appendix J. The Authority agrees. FPM Supp. 532-1, subchap. S8-7(f) makes it clear that payment of an environmental differential is only authorized when employees are performing assigned duties which expose them to a hazard, physical hardship, or working condition of an unusually severe nature listed in Appendix J. Consequently, on the basis of the Arbitrator's ruling that the pest controllers were not being exposed to poisons (toxic chemicals) as described in Appendix J, the pest controllers were not entitled to have been paid an environmental differential and payment by the Activity of an environmental differential was not warranted or authorized. See, e.g., Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Metal Trades Council, AFL-CIO, 10 FLRA No. 70 (1982). Likewise, the Back Pay Act makes it clear in terms of this case that an award of backpay by the Arbitrator is only authorized to remedy an unjustified or unwarranted personnel action that has resulted in the withdrawal of a differential that the pest controllers would otherwise have received. 5 U.S.C. 5596(b)(1)(A)(i) (1982); see, e.g., Veterans Administration Hospital and American Federation of Government Employees, Lodge 2201, 4 FLRA 419 (1980). Therefore, with the Arbitrator expressly ruling that the pest controllers were not being exposed to any unusually severe hazard which would entitle them to environmental differential pay, the Activity's failure to consult regarding the termination of environmental differential pay did not and could not result in an unwarranted withdrawal of a differential which the employees were entitled to have otherwise received. Although the Arbitrator had considerable latitude in fashioning a remedy for the Activity's violation of the agreement, the Arbitrator's award of backpay in the amount of a 4% environmental differential as "redress" for the violation is deficient as contrary to FPM Supp. 532-1 and the Back Pay Act. Accordingly, the award is modified by striking the following sentence of the award: As redress for this violation Griffiss Air Force Base shall pay each Pest Controller a sum of money equal to 4% of his pay for the period from the date of discontinuance in October-November 1979 to February 24, 1981, the date of this arbitration hearing. Issued, Washington, D.C., July 2, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Office of Personnel Management filed a brief as an amicus curiae and the Union filed a response.