19:0300(42)AR - Labor and National Council of Field Labor Locals, AFGE -- 1985 FLRAdec AR



[ v19 p300 ]
19:0300(42)AR
The decision of the Authority follows:


 19 FLRA No. 42
 
 U.S. DEPARTMENT OF LABOR
 Agency
 
 and
 
 NATIONAL COUNCIL OF FIELD LABOR
 LOCALS, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. 0-AR-894
 
                                 DECISION
 
    This case is before the Authority on exceptions to the award of
 Arbitrator David Goodman filed by the Agency pursuant to section 7122(a)
 of the Federal Service Labor-Management Relations Statute and Part 2425
 of the Authority's Rules and Regulations.
 
    The grievance in this case alleged that the Agency violated the
 parties' collective bargaining agreement by denying the requests of the
 grievants for hazardous duty pay.  The claims of the grievants arose out
 of their inspection of an explosives plant which manufacturers
 pentaerythrital tetranitrate (PETN), a high explosive, in their capacity
 as industrial hygienists.
 
    In resolving the dispute presented for arbitration, the Arbitrator
 examined the legislative history and the provisions of the Hazardous
 Duty Pay Act, 5 U.S.C. 5545, and the implementing regulations, 5 C.F.R.
 550.901 et seq., Appendix A to 5 CFR 550 (Schedule of Pay Differentials
 Authorized for Irregular to Intermittent Hazardous Duty), and Appendix E
 (Background Information on Appendix A to Part 550) of FPM Supplement
 990-2.  He noted that the Act imposes two requirements that must be met
 for an award of hazard differential pay:  (1) the hazardous duty
 assigned to and performed by the employee must be irregular or
 intermittent duty which is not usually involved in carrying out the
 duties of the employee's position;  and (2) the hazardous duty has not
 been taken into account in establishing the grade classification of the
 employee's position.
 
    As to the first requirement, the Arbitrator found that since this was
 the grievants' first inspection of an explosives plant in several years
 each of employment and since there was no evidence to show any other
 industrial hygienist in the grievants' Region had inspected an
 explosives facility, there was no dispute that inspection of the
 facility was not performed with sufficient regularity to exclude the
 inspection from the coverage of the Act.  The Arbitrator concluded that
 the inspection was, in the words of the Act, "irregular or
 intermittent." The Arbitrator then addressed whether the inspection
 presented an unusual physical hardship or hazard.  The Arbitrator found
 that PETN qualifies as an unstable and highly sensitive explosive under
 Appendix A. Further in that regard, the Arbitrator found, contrary to
 the Agency's argument, that the duties enumerated in Appendix E are not
 exhaustive and that inspection of the facility where PETN is
 manufactured constituted performance of a hazardous duty as defined in 5
 C.F.R. 550.902(d), i.e., "a duty performed under circumstances in which
 an accident could result in serious injury or death. . . . "
 Accordingly, the Arbitrator concluded that the inspection satisfied the
 first requirement for entitlement to hazard differential pay.
 
    In determining whether the inspection satisfied the second
 requirement, the Arbitrator framed the issue as whether the unusual
 hazard present in the inspection of the facility was an element in
 fixing the grade of the grievants' positions.  The Agency argued before
 the Arbitrator that assuming an unusual hazard was present, the
 grievants were not entitled to hazard differential pay because the
 various factors utilized in the classification of the positions included
 sufficient consideration of the hazards faced in the inspection of an
 explosives manufacturing facility.  In resolving this issue, the
 Arbitrator considered the relevant factors in the grievants' position
 description and focused on the work environment factor which was argued
 to encompass the disputed hazard.  In rejecting the Agency's argument
 that the work environment factor encompassed the disputed hazard, the
 Arbitrator concluded that while potential hazards to be faced by an
 industrial hygienist are considered in the classification, at the
 grievants' level the envisioned hazards are those in which protective
 equipment or clothing would prove adequate if a mishap occurred during
 an inspection and not inspections of hazardous situations involving
 explosives and incendiary materials, particularly since an inspection
 involving such materials is specifically enumerated as a factor in the
 classification of the next higher grade industrial hygienist.  The
 Arbitrator concluded that an inspection of this type had not been taken
 into account in establishing the grievants' grade classifications.
 
    Accordingly, the Arbitrator found that the Agency had violated the
 parties' collective bargaining agreement by its refusal to pay the
 grievants hazardous duty pay and, as his award, sustained the grievance
 and ordered the grievants to be paid hazardous duty pay for their
 inspection of the explosives facility.
 
    In its exceptions, the Agency contends that the award is contrary to
 law, rule and regulation.  Specifically, the Agency contends the award
 is contrary to the Hazardous Duty Pay Act and its implementing
 regulations as cited above, and the Classification Act, 5 U.S.C. 5101 et
 seq., and its implementing regulations, 5 C.F.R. 511 et seq.  In support
 of its exceptions, the Agency reiterates many of the arguments made
 before the Arbitrator.  The Agency argues that it appropriately
 considered the degree of hazard involved in performance of the disputed
 duties in classifying the grievants' positions and, therefore, that the
 hazard pay differential does not apply.  The Agency further argues that
 the Arbitrator failed to consider certain classification standards which
 took into account the hazards faced by the grievants and instead found
 only the work environment factor to be relevant.  The Agency also
 asserts that the Arbitrator erred when he did not accept the testimony
 of an expert witness that the grievants' positions were classified with
 full consideration under the Hazardous Duty Pay Act for their potential
 exposure.
 
    Upon careful consideration of the Agency's arguments and the record
 in this case, the Authority concludes that the Agency has failed to
 establish that the award is in any manner contrary to law, rule or
 regulation.  Thus, the Authority finds, contrary to the Agency's
 contention, that the Arbitrator correctly recognized and applied the
 statutory and regulatory requirements for an award of hazard pay
 differential.  In this regard, as previously stated, the Arbitrator
 considered the relevant factors of the grievants' position descriptions
 and found the work environment factor to encompass the degree of
 potential exposure.  Based on his examination of the grievants' position
 descriptions as well as the position description of the next higher
 level, and consideration of the testimony of the witnesses before him,
 the Arbitrator found as a matter of fact that the hazard faced by the
 grievants in their inspection of the explosives facility was not
 considered in classifying the grade of their positions.  Additionally,
 with the Arbitrator articulating the statutory and regulatory
 requirements and their application in the terms of this case, the
 Authority finds that the Arbitrator's award complies with those
 requirements and the Agency's exception and supporting arguments have
 not established otherwise.
 
    The Agency additionally argues that the award is deficient because
 "there was no credible evidence before the Arbitrator to establish that
 the PETN was '. . . unstable and highly sensitive,' a requirement of
 Appendix A," and the Arbitrator failed to give adequate consideration to
 Appendix E.  However, it is clear that the Arbitrator carefully
 considered the requirements of Appendix A that the explosive must be
 "unstable and highly sensitive" and Appendix E.  He also considered the
 external safety precautions taken by the plant to guard against or
 minimize an explosion.  In this regard, he noted the facts that all
 smoking materials must be surrendered before entry;  one of the
 grievants was not allowed to take a camera into the facility because a
 spark from the battery could cause an explosion;  grievants' shoes were
 checked because of the spark potential caused by static electricity;
 the PETN building is isolated and situated on a series of hills creating
 a natural bunker;  the floors of the building are made of lead to avoid
 sparks;  the building is of double-bolted construction as a precaution;
 and only a limited number of employees are allowed in the PETN building
 at any time.  Based on this evidence, the Arbitrator expressly ruled
 that PETN was "unstable and highly sensitive." Additionally, after
 analysis of Appendix E, which enumerates certain qualifying duties for
 hazard differential pay involved with explosive or incendiary materials,
 the Arbitrator concluded, based on the language of the Appendix that it
 is "intended to serve as an aid . . . in determining what situations . .
 . Appendix A . . . covers." Based on this conclusion, the Arbitrator
 expressly found that the grievants' inspection of the explosives
 facility constituted performance of a hazardous duty.
 
    Therefore, the Authority concludes that the Agency has failed to
 establish that the award is deficient as alleged.  /1/ Rather, it is
 clear that the Agency is simply atte