36:0434(53)AR - - Army, McAlester Army Ammunition Plant, McAlester, OK and AFGE Local 2815 - - 1990 FLRAdec AR - - v36 p434
[ v36 p434 ]
The decision of the Authority follows:
36 FLRA No. 53
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
McALESTER ARMY AMMUNITION PLANT
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
July 25, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Norman Bennett. The Arbitrator found that the grievants, whose work involved the demilitarization of depth charges, were entitled to a high-degree hazard differential pay of 8 percent instead of low-degree hazard differential pay of 4 percent.
The Agency filed an exception 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 Union did not file an opposition to the Agency's exception.
For the reasons discussed below, we remand the award to the parties for the purpose of requesting that the Arbitrator clarify his award to address fully whether the requirements of Federal Personnel Manual Supplement 532-1, Appendix J, have been met.
II. Background and Arbitrator's Award
The grievants work in Building 186, where the Agency demilitarizes depth charges. Demilitarization involves removing 180 pounds of trinitrotoluene (TNT) from each depth charge. Two grievants filed grievances claiming a high-degree hazard differential of 8 percent for their work. The Agency determined that the grievants were entitled to the low-degree hazard differential of 4 percent. When the grievances were not resolved, they were submitted to arbitration.
The parties stipulated that the issue before the Arbitrator was:
Whether or not the grievants are entitled to the high-degree hazard (8%) pay for the job in building 186?
Award at 4.
The Arbitrator noted that the standards for awarding hazard differentials are contained in Federal Personnel Manual (FPM) Supplement 532-1, Appendix J.(*) According to the Arbitrator, Appendix J provides that the difference between a high-degree and low-degree hazard is "the extent, or seriousness, of possible injuries." Id. at 6. The Arbitrator referenced the parties' stipulation that "if one of the depth charges was detonated, devastation would result." Id. at 2. The Arbitrator also referenced the Agency's argument that "detonation is not possible[.]" Id. at 6.
The Arbitrator stated that the first issue to be resolved was "whether a detonation can occur during the [demilitarization] process in Building 186." Id. The Arbitrator noted that Appendix J refers to potential injury. Noting further that "[t]he word 'potential' is defined, in part, in the STANDARD DESK DICTIONARY, Funk and Wagnalls, 1974 Edition, as 'possible, but not actual[,]'" the Arbitrator stated that "[i]n order to deny this grievance, there must be a finding that a detonation is not possible during the [demilitarization] process." Id. Based on the testimony of witnesses at the arbitration hearing, the Arbitrator concluded that "it is possible that a depth charge could be dropped" and that "if one of the depth charges was dropped, it could detonate." Id. at 7.
The second issue, according to the Arbitrator, was "whether the hazard has been practically eliminated." Id. The Arbitrator determined that according to Appendix J, the high-degree differential "is not applicable if the potential for injury has been 'practically eliminated.'" Id. Although the Arbitrator noted that the Agency "has done an admirable job minimizing the hazard[,]" the Arbitrator concluded that:
Considering the state of the TNT after it is taken to the vat and the safety measures in place, it is apparent that the potential for detonation is virtually nonexistent after the depth charge is taken to the steam vat. However, in this opinion, the evidence does not support a finding that a detonation is not possible before the depth charges are taken to the steam vats, even considering the safety measures that are in place. Accordingly, it must be found that the 8% differential is applicable.
Id. Consequently, the Arbitrator awarded the 8 percent high-degree differential to the grievants.
The Agency asserts that Appendix J prohibits the 8 percent high-degree differential pay for working with explosives "if the potential for personal injury is practically eliminated." Exception at 3. The Agency argues that the Arbitrator's award violates Appendix J because the Arbitrator "was looking for an absolute assurance that no explosion could ever occur." Id. The Agency notes the Arbitrator's finding that "'the evidence does not support a finding that a detonation is not possible[.]'" Id. (quoting Award at 7) (emphasis in original). According to the Agency, "by requiring an absolute safeguard against explosions [the Arbitrator] establishes a level of proof that goes well beyond the 'practically eliminated' standard provided for in the FPM." Id. (emphasis in original).
The Agency concedes that "there is a possibility that a depth charge could explode during the demilitarization process." Id. at 4. However, the Agency argues that its past safety record in handling and processing heavy explosives without "an unscheduled explosion at the installation for well over fifteen years . . . demonstrates the practical elimination of the potential for injury." Id. The Agency asserts that although the demilitarization of depth charges has been handled at the installation for only 8 months, similarly processed demilitarizations of heavy explosives have been handled using the same techniques and safety measures. According to the Agency, "[t]he track record of over 15 years of no unscheduled explosions demonstrates that the potential for injury during the demilitarization process has been practically eliminated." Id. at 5. In support of this argument, the Agency cites Bendure v. U.S., 695 F.2d 1383 (Fed. Cir. 1982) (Bendure).
Finally, the Agency asserts that the Arbitrator failed "to fully articulate a reasoned explanation identifying how the agency failed to practically eliminate the potential for personal injury." Exceptions at 5. The Agency notes that this requirement was established by the Authority in Allen Park Veterans Administration Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 28 FLRA 1166 (1987) (Allen Park VAMC).
IV. Analysis and Conclusions
We note at the outset that the Authority has held consistently that the specific work situations for which an environmental differential is payable under the categories of Appendix J are left to local determination, including arbitration. See, for example, Allen Park VAMC, 28 FLRA at 1168. We note, in addition, that in this case there is no indication that the parties' collective bargaining agreement contains any negotiated provisions relating to the payment of the differentials in dispute here. That is, it appears that the basis of the grievance was an asserted entitlement to the 8 percent differential under Appendix J and that the Arbitrator's resolution of the issue before him depended solely on his interpretation of Appendix J.
Appendix J contains two requirements for the payment of the 8 percent high-degree differential: (1) a finding that employees are working with or in close proximity to explosives and incendiary material which involve serious potential personal injury; and (2) a finding that safety measures either do not exist or have been developed but have not practically eliminated the potential for such serious personal injury. Both requirements must be satisfied to establish an entitlement to the differential. See Bendure, 695 F.2d at 1386 ("The high degree categories have, since their inception, contained an explicit limitation precluding a pay differential if protective devices and safety measures have 'practically eliminated' the potential for serious injury."). A finding that the potential for serious injury has not been totally eliminated does not satisfy the second requirement. Id. at 1387 ("Because all life involves some risk, and because a total elimination of all risk may . . . be impractical, stultifying, or impossible, appellants are able to . . . argue, in effect, that some potential for injury is present[.] To stop there, however, is to delete from . . . the regulation the provision touching the practical elimination of the potential for injury.").
The Agency does not contest the Arbitrator's conclusion that there is a potential for serious personal injury in the demilitarization process. We find, therefore, that the first requirement for an award of the 8 percent differential has been satisfied here.
The Agency's exception is to the Arbitrator's alleged failure to furnish a fully reasoned explanation of "how the agency failed to practically eliminate the potential for personal injury." Exception at 5. The Agency points to the Arbitrator's statement that "the evidence does not support a finding that a detonation is not possible[.]" Id. at 3 (quoting Award at 7) (emphasis in original).
We find that the Arbitrator's award is ambiguous as to whether the second requirement for an award of the 8 percent differential has been satisfied in this case. It is clear, in this regard, that the Arbitrator properly recognized that the second issue before him was "whether the hazard [from a detonated depth charge] has been practically eliminated." Award at 7. Further, implicit in the Arbitrator's award of the 8 percent differential is his finding that the Agency had not practically eliminated the potential for serious injury. The Arbitrator's only findings on this point, however, are that although "the potential for detonation is virtually nonexistent" after a certain point in the demilitarization process, "the evidence does not support a finding that a detonation is not possible" before that point. Id.
As the Arbitrator's sole findings concerning the practical elimination of the potential for serious injury are focused on the existence of possibility for harm, it is unclear whether the Arbitrator applied an absolute standard in determining whether the potential for serious injury had been practically eliminated. As noted previously, a finding that the potential for serious injury has not been totally eliminated does not constitute the required finding that the potential has not been practically eliminated. See Bendure. We are, therefore, unable to determine whether the award of the 8 percent differential in this case is inconsistent with Appendix J.
Because of the award's ambiguity, we will remand the award to the parties for the purpose of seeking a fully reasoned decision from the Arbitrator on the issue of whether the potential for serious injury in this case has been practically eliminated. See,