24:0902(85)AR - VA Medical Center, Leavenworth, KS and AFGE Local 85 -- 1986 FLRAdec AR



[ v24 p902 ]
24:0902(85)AR
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