18:0899(104)AR - Robins AFB, Warner Robins, GA and AFGE Local 987 -- 1985 FLRAdec AR

[ v18 p899 ]
The decision of the Authority follows:

 18 FLRA No. 104
                                            Case No. 0-AR-784
    This matter is before the Authority on exceptions to the award of
 Arbitrator J. Thomas King filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
    According to the Arbitrator, employees who worked in Building 54 at
 the Activity filed a grievance claiming an entitlement to an
 environmental pay differential under Federal Personnel Manual Supplement
 532-1, subchapter S8-7 and Appendix J.  The grievance was not resolved
 and was submitted to arbitration on the issue of whether the Activity's
 denial of environmental differential pay to the grievants was
 appropriate.  The Arbitrator determined that there was exposure to toxic
 chemicals during the period in dispute and that payment of a
 differential for Poisons (toxic chemicals)-- low degree hazard as set
 forth in Appendix J was warranted.  Accordingly, the Arbitrator awarded
 in pertinent part, as follows:
          The grievance of the employees of Building 54 is sustained.
          Those Grievants, along with employees who did not grieve,
       including but not limited to, supervisors, drivers, maintenance,
       and other personnel, who worked in or about Building 54 during the
       claimed three-year period, embracing 1980-1983, shall be paid a 4%
       environmental differential payment in lump sum.
          Any former employee during such period shall be entitled to the
       EDP for that time exposed to the hazardous chemical.
    In its first exception the Agency contends that by awarding a lump
 sum payment for the entire disputed period, the award is contrary to FPM
 Supplement 532-1.  Specifically, the Agency maintains that FPM
 Supplement 532-1, subchapter S8-7f provides that an environmental
 differential shall be paid when the employee is performing assigned
 duties which expose the employee to an unusually severe hazard, physical
 hardship, or working condition listed in Appendix J.  With respect to
 the differential awarded by the Arbitrator, the Agency further maintains
 that payment is made on the basis of hours in a pay status, that is, the
 differential is payable for all hours the employee is in a pay status on
 a day during which the employee is exposed to toxic chemicals.  In this
 regard the Agency argues that the Arbitrator's blanket award of the
 differential for a period of years without a showing that the employees
 were actually exposed to toxic chemicals on each workday during that
 period is therefore contrary to FPM Supplement 532-1.
    The Authority concludes that this exception fails to establish that
 the award is deficient.  The Authority finds that the Agency has
 accurately and correctly stated the regulatory provisions governing the
 payment of environmental differentials.  In particular, the Authority
 agrees that the environmental differential awarded by the Arbitrator is
 only payable when the employee was exposed to toxic chemicals during the
 employee's workday.  However, contrary to the Agency, the Authority
 finds that the Arbitrator's provision for a lump sum payment and a
 specification of the time period for which the payment of the
 environmental differential was warranted is not inconsistent with the
 governing provisions of FPM Supplement 532-1.  On page 15 of the award,
 the Arbitrator clearly states that the grievants are to be paid the
 differential "for any time during the three-year period of the claim"
 that they were "exposed to hazardous chemicals." Thus, the award is
 fully consistent with the regulatory requirement of payment entitlement
 on the basis of hours in a pay status.  Consequently, this exception
 provides no basis for finding the award deficient in this respect, and
 the exception is accordingly denied.
    In its other exceptions the Agency contends that by awarding relief
 to persons who did not grieve, the Arbitrator decided an issue not
 submitted and consequently exceeded his authority and that to the extent
 environmental differential pay has been awarded to employees not paid
 under a Federal Wage System wage schedule, the award is contrary to FPM
 Supplement 532-1, subchapter S8-7.  The Authority agrees.
    The Authority has clearly indicated that an award may be found
 deficient as in excess of the arbitrator's authority when the arbitrator
 awards relief to persons who did not file grievances on their own behalf
 or who did not have the union file grievances for them.  E.g., American
 Federation of Government Employees, AFL-CIO, National Immigration and
 Naturalization Service Council and U.S. Immigration and Naturalization
 Service, 15 FLRA No. 76 (1984).  In terms of this case, the Authority
 concludes that the award is deficient in this respect.  The Agency has
 substantiated that the grievance and issue submitted to the Arbitrator
 pertained solely to the denial of environmental differential pay to the
 grievants and that there was no basis for "transform(ing) the proceeding
 into a sort of class action," id. at 2 (quoting Hotel Employees Union v.
 Michelson's Food Services, 545 F.2d 1248 (9th Cir. 1976)).  In these
 circumstances, the Authority finds that the Arbitrator decided an issue
 not presented to him when he awarded relief to persons "who did not
 grieve" and that consequently the Arbitrator exceeded his authorit