19:0300(42)AR - Labor and National Council of Field Labor Locals, AFGE -- 1985 FLRAdec AR
[ v19 p300 ]
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 attempting to relitigate the merits of the case before the Authority since the Agency's contentions essentially constitute disagreement with the Arbitrator's findings of fact, his reasoning and conclusions based upon the evidence and testimony before him, and generally with his interpretation and application of the parties' agreement. It is well-established that such contentions provide no basis for finding an award deficient. E.g., Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108 (1983). Accordingly, the Agency's exceptions are denied. Issued, Washington, D.C., July 25, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ See also Veterans Administration Medical Center, Fort Howard and American Federation of Government Employees, AFL-CIO, Local 2146, 5 FLRA 250 (1981); American Federation of Government Employees, Local 2943 and Department of the Air Force, Loring Air Force Base, Maine, 10 FLRA 57 (1982).