24:0902(85)AR - VA Medical Center, Leavenworth, KS and AFGE Local 85 -- 1986 FLRAdec AR
[ v24 p902 ]
The decision of the Authority follows:
24 FLRA No. 85 VETERANS ADMINISTRATION MEDICAL CENTER LEAVENWORTH, KANSAS Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 85 Union Case No. 0-AR-1127 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on exceptions to the award of Arbitrator William O. Eisler filed on behalf of the Activity by the Veterans Administration (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. II. BACKGROUND AND ARBITRATOR'S AWARD The issue in this case, as determined by the Arbitrator, was whether bargaining unit employees were entitled to environmental differential or hazardous duty pay for exposure to airborne asbestos fibers while performing their duties and, if so, which employees were entitled to the pay and for what period of time. The Arbitrator found that all bargaining unit employees, Wage Grade as well as General Schedule, with the possible exception of those who worked in two buildings of recent construction, had been working in areas where airborne concentrations of asbestos fibers may have exposed them to potential illness or injury and that they had not been provided with any type of protective devices or safety measures to reduce the risk. With respect to the Wage Grade employees, the Arbitrator found that a provision in the parties' agreement authorized environmental differential pay (EDP) for them in accordance with Office of Personnel Management (OPM) Regulations. He concluded that they had been exposed to the hazards of airborne concentrations of asbestos since April 9, 1984. He awarded EDP for Wage Grade employees from April 9, 1984, until such time as it was established that the employees were no longer working in areas where they were exposed to asbestos or until protective devices or safety measures practically eliminated the potential for illness or injury. As to the General Schedule employees, the Arbitrator found a provision in the parties' argreement authorizing hazardous duty pay (HDP) for them for irregular or intermittent hazardous duty in accordance with OPM Regulations. He concluded that at least on an intermittent basis the General Schedule employees had also been exposed to the hazards of airborne concentrations of asbestos. He awarded hazardous duty pay for the General Schedule employees to the extent allowed by law and regulations. The Arbitrator directed the Activity to request, through its central office, an amendment to OPM's Regulations so that the General Schedule employees properly could receive hazardous duty pay for their exposure to asbestos. III. FIRST EXCEPTION A. Contentions In its first exception the Agency contends that the award of environmental differential pay to the Wage Grade employees is contrary to FPM Supplement 532-1 and Appendix J. In support of its exception, the Agency argues that although asbestos is listed in Appendix J as a category for which EDP is payable pursuant to FPM Supplement 532.1, the Arbitrator did not specifically find that the Wage Grade employees were actually exposed to asbestos. The Agency asserts that the Arbitrator speculated that the employees might have been exposed and required the Activity to pay EDP until it could show that the employees were no longer exposed. B. Analysis and Conclusions We conclude that this exception does not provide a basis for finding the award deficient. It is well established that specific work situations for which environmental differential is payable under the categories of FPM Supplemental 532.1, Appendix J are left to local determination, including arbitration. See Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO, 10 FLRA 413 (1982). In this case the Arbitrator found that all bargaining unit employees, with the possible exception of those working in the two new buildings, worked in areas where they were exposed to airborne asbestos in concentrations which may have subjected them to illness or injury. Consequently, with the Arbitrator expressly finding that payment of an environmental differential to Wage Grade employees was warranted under Appendix J, no basis has been presented for finding the award to be contrary to FPM Supplement 532-1. IV. SECOND EXCEPTION A. Contentions In its second exception the Agency contends that the Arbitrator's award of EDP is contrary to the Back Pay Act, 5 U.S.C. Section 5596. Specifically, the Agency argues that the Arbitrator did not make the necessary finding that the employees had been subjected to an unjustified or unwarranted personnel action. B. Analysis and Conclusions We conclude that this exception does not provide a basis for finding the award deficient. FPM Supplement 532-1, subchapter S8-7f makes it clear that payment of an environmental differential is authorized for Wage Grade employees when they are performing assigned duties which expose them to a hazard, physical hardship, or working condition of a unusually severe nature listed in Appendix J. Consequently, on the basis of the Arbitrator's finding that the Wage Grade employees were exposed to airborne asbestos fibers, these employees were entitled to have been paid an environmental differential under Appendix J. Likewise, the Backpay Act makes it clear that an award of backpay by an arbitrator is authorized to remedy an unjustified or unwarranted personnel action that has resulted in the withdrawal of a differential that the employees would otherwise have received. 5 U.S.C. Section 5596(b)(1)(A)(i) (1982). See Department of the Air Force, Griffis Air Force Base and American Federation of Government Employees, Local 2612, 15 FLRA 213 (1984). The unwarranted personnel action in this case was the Activity's failure to pay the environmental differential for the time in which the Wage Grade employees were exposed to asbestos. Since the Arbitrator expressly determined that the Wage Grade employees were entitled to EDP, the Activity's failure to pay the differential was an unjustified or unwarranted personnel action within the meaning of the Back Pay Act. By directing that these employees be reimbursed for all losses caused by the unwarranted personnel action, the Arbitrator's award constitutes the finding, required by the Back Pay Act and the decisions of the Authority, that but for the unwarranted action, the employees would not have suffered a withdrawal or reduction of their pay, allowances, or differentials. American Federation of Government Employees, Local 1760 and Social Security Administration, Northeastern Program Service Center, 22 FLRA No. 19 (1986). V. THIRD EXCEPTION A. Contentions In its third exception the Agency contends that the award of hazardous duty pay to General Schedule employees is contrary to 5 CFR Section 550.901-907 and Appendix A. In support of its exception, the Agency argues that although these regulations provide for the payment of differentials for irregular or intermittent duty involving unusual physical hardship or hazard to General Schedule employees, Appendix A, which provides a schedule of hazardous duties, does not list asbestos exposure as a hazard for which HDP is payable. Consequently, the Agency argues the Arbitrator's finding that the Agency is obligated to pay HDP to General Schedule employees is contrary to OPM regulations. B. Analysis and Conclusions We find that the Agency has failed to show that the award is contrary to 5 CFR Section 550.901-907 and Appendix A. The Arbitrator did not award an unqualified payment of HDP to General Schedule employees. Rather, the Arbitrator only awarded HDP to the extent allowed by law and regulation. Obviously, if HDP is not authorized by the current regulatory scheme it cannot be paid. If OPM retroactively amends its regulations, in response to the Agency's request as ordered by the Arbitrator, HDP would then be authorized and the Agency would then be obligated to pay the differential to the General Schedule employees consistent with the Arbitrator's award. Also, the Arbitrator's award represents his interpretation of the provision in the parties' agreement which permits HDP for General Schedule employees in accordance with OPM's Regulations. Thus, we conclude that this exception does not provide a basis for finding the award to be deficient. VI. FOURTH EXCEPTION A. Contentions In its fourth exception the Agency contends that the Arbitrator exceeded his authority in directing the Agency to request an amendment to OPM's Regulations. B. Analysis and Conclusions We conclude that this exception does not provide a basis for finding that the Arbitrator's award is deficient as alleged. An arbitrator can properly direct an agency to take an action which is within its authority and which would not violate law, rule or regulation. U.S. Immigration and Naturalization Service and American Federation of Government Employees, AFL-CIO, Local 1917, 20 FLRA No. 41 (1985). In this case, 5 CFR Section 550.903 authorizes any agency to request amendments to Appendix A. Thus, the Arbitrator's award directed the Agency to take an action which was within its authority. VII. DECISION For the above reasons, the Agency's exceptions are denied. Issued, Washington, D.C., December 29, 1986.