35:0014(3)AR - - VA Medical Center, Leavenworth, KS and AFGE Local 85 - - 1990 FLRAdec AR - - v35 p14
[ v35 p14 ]
The decision of the Authority follows:
35 FLRA No. 3
FEDERAL LABOR RELATIONS AUTHORITY
VETERANS ADMINISTRATION MEDICAL CENTER
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
March 7, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Solbert M. Wasserstrom filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Activity did not file an opposition to the Union's exceptions.(*)
The Arbitrator ruled that the grievant, a General Schedule (GS) employee, was not entitled to environmental differential pay (EDP) for exposure to asbestos under Federal Personnel Manual Supplement 532-1, Appendix J, because he was not a Federal Wage System employee. The Arbitrator also ruled that the grievant was not entitled to hazardous duty pay for exposure to asbestos under 5 C.F.R. part 550, subpart I, Appendix A, because exposure to asbestos is not listed under Appendix A as a basis for hazardous duty pay. The Arbitrator found no entitlement to either type of pay under the parties' collective bargaining agreement and denied the grievance.
The Union contends that the Arbitrator misinterpreted the Federal Personnel Manual, the hazardous duty pay regulations, and the parties' agreement. For the following reasons, we deny the Union's exceptions.
II. Background and Arbitrator's Award
In 1984, the Union requested EDP on behalf of all Activity employees because of their exposure to asbestos fiber. That matter was submitted to arbitration. On March 4, 1986, Arbitrator Eisler ordered that EDP for exposure to asbestos be paid to all wage grade employees at the Activity. He also ordered the Activity to make a request to the Office of Personnel Management (OPM) for an amendment to the regulations governing hazardous duty pay for GS employees so that those employees could be paid for exposure to asbestos. The Activity complied with the award.
On April 18, 1987, OPM responded that the request for an amendment to the regulations was under consideration as part of a larger study. That study was still in progress as of the date of the present award. Arbitrator's Award at 1-2.
On October 8, 1987, the Union filed a grievance on behalf of a GS employee at the Activity who claimed entitlement to pay for exposure to asbestos. The grievance was denied and the matter was submitted to arbitration on the following issue:
Is [the grievant], a General Schedule employee, entitled to equal pay for equal exposure equivalent to that paid to Wage System employees for their exposure to asbestos?
The Arbitrator referred to Article 25, "Hazardous Duty Pay & Environmental Differential," of the parties' agreement. That provision states that EDP for wage system employees will be paid in accordance with FPM Supplement 532-1, Appendix J, and that hazardous duty pay will be paid to GS employees in accordance with 5 C.F.R. part 550, subpart I. The Arbitrator noted that Arbitrator Eisler distinguished between the two classes of employees in his award. The Arbitrator ruled that the distinction "merely reflected the distinction which is sharply made by Article 25 of the Collective Bargaining Agreement." Arbitrator's Award at 5-6. The Arbitrator added: "That distinction is vital in the present situation, because Appendix J [of FPM Supp. 532-1] lists asbestos as a compensable hazard whereas Appendix A [of 5 C.F.R. part 550, subpart I] does not." Id. at 6. He concluded that because no amendment to Appendix A has been made, "[t]he Medical Center is no more authorized to make hazard payment to General Schedule employees for asbestos hazard now than it was in 1986." Id.
The Arbitrator rejected the Union's argument that GS employees were entitled to hazard pay for exposure to asbestos under Article 10 of the agreement, which provides that employees will be treated fairly and equitably and without discrimination. He stated that that article was "aimed at preventing discrimination because of political affiliation, union activity, race, etc." and that "[t]he listing of those specified objectives in Article 10 brings into play the legal rule that the enumeration of specific items exclude[s] all other non-listed items." Arbitrator's Award at 6-7. The Arbitrator held that Article 10 must "be deemed to recognize [the] distinction" between wage system and GS employees contained in Article 25. Id. at 7. The Arbitrator stated that "there is no way in which the Medical Center can make such [hazard] payment to grievant or any other General Schedule employee unless and until Appendix A is modified by the OPM." Id.
The Arbitrator rejected the Union's argument that GS employees can be paid for exposure to asbestos under Article 24 of the agreement, which requires the Activity to provide safe and healthful working conditions. He stated: "A violation of Article 24 does not necessarily trigger payment under Article 25." Arbitrator's Award at 8. The Arbitrator observed, however, that there were procedures available under Article 24 by which the Union could request the Activity to remedy the hazard of asbestos by removing it.
The Arbitrator made the following award:
The grievance is denied. However, nothing herein shall be construed to impair the right of grievant and the Union to proceed under the provisions of Article 24.
Arbitrator's Award at 9.
III. The Union's Exceptions
The Union contends that the Arbitrator misapplied and misinterpreted the parties' agreement and the Federal Personnel Manual in making his award. The Union notes that both management and the Union agree that the grievant was exposed to asbestos to the same extent as the wage grade employees who were compensated for exposure. The Union refers to 5 C.F.R. § 550.902(b), which defines "[D]uty involving physical hardship," and contends that such duty includes exposure to dust, including asbestos dust. The Union points out that while asbestos is not specified in the regulation, neither is it excluded.
We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has failed to establish that the award is contrary to any law, rule, or regulation or that the award is deficient on any other ground similar to those applied by Federal courts in private sector labor relations cases.
Hazard pay differentials are authorized by the Hazardous Duty Act, 5 U.S.C. § 5545, and the implementing regulations contained in 5 C.F.R. §§ 550.901 et seq. and Appendix A to 5 C.F.R. Part 550 (Schedule of Pay Differentials Authorized for Irregular or Intermittent Hazardous Duty). Hazard pay differentials apply to employees, such as the grievant, who are covered by chapter 51 of title 5 of the United States Code and who are otherwise known as GS employees. Hazard pay differentials are based on a schedule established by OPM and set forth in Appendix A to 5 C.F.R. Part 550. 5 C.F.R. § 550.903. An agency "shall pay the hazard pay differential listed in Appendix A to an employee who is assigned to and performs any irregular or intermittent duty specified