39:0987(84)AR - - Navy, Charleston Naval Shipyard, Charleston, SC and Federal Employees Metal Trades Council - - 1991 FLRAdec AR - - v39 p987

[ v39 p987 ]
The decision of the Authority follows:

39 FLRA No. 84












March 5, 1991

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 Dennis R. Nolan. The Arbitrator determined that the grievants were entitled to Environmental Differential Pay (EDP) pursuant to the terms of the parties' collective bargaining agreement. The Arbitrator retained jurisdiction in order to assist in the resolution of questions concerning the payment of retroactive EDP.

The Agency filed exceptions to the award 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 filed an opposition to the Agency's exceptions.

For the following reasons, we conclude that the Agency has not demonstrated that the award is deficient. Therefore, the Agency's exceptions are denied.

II. Background and Arbitrator's Award

The grievants are painters who sandblast and paint the interior walls of submarine ballast tanks. The basis of the grievance was their "concern . . . [over] the risk of falling" inside those tanks. Award at 3. The ballast tanks contain no lights, scaffolding, railings, or handrails; however, portable lights, lifelines, boards, and other temporary devices provide a measure of protection. The grievance sought 25 percent EDP for all work performed within the ballast tanks. When the grievance was not resolved, the matter was submitted to arbitration on the following issue:

Did Management violate the Agreement by denying painters 25% EDP for high work performed in submarine ballast tanks? If so, what shall the remedy be?

Id. at 4.

The Arbitrator noted that the "Union's claim [of a breach of the parties' collective bargaining agreement] rests squarely on . . . Article 14, Section 2.b[,]" of the agreement. Award at 7. That provision calls for payments of 25 percent EDP to employees working at heights under 100 feet, where the following circumstances are present:

(1) If the footing is unsure or the structure is unstable; or

(2) If safe scaffolding, enclosed ladders or other similar protective facilities are not adequate . . . ; or

(3) If adverse conditions such as darkness . . . or similar environmental factors render working at such height(s) hazardous.

Id. at 5.

The Arbitrator concluded that "[o]nly a skilled time-study engineer following each painter could decide which steps are really unstable, when protective equipment is inadequate, or how often it is too dark to avoid hazards[,]" but indicated that "[n]either party thought it advisable to obtain that sort of information." Id. at 9-10. He said that his estimate of the amount of the painters' work involving unusually severe hazards had to "be rough because the parties' evidence consisted of verbal descriptions, not time studies." Id. at 10. The Arbitrator found that the "longest possible vertical drop . . . [inside the ballast tanks was] about eight feet." Id. at 2. He also found that some of the ballast tank work was "performed with stable footing or in secure places" and that, "[i]n other situations, protective equipment such as harnesses and lifebelts practically eliminate[d] risks." Id. at 8. However, on the basis of documentary and testimonial evidence and an on-site inspection, the Arbitrator concluded "that about half of the painters' work in ballast tanks involve[d] unusually severe hazards within [the meaning of] Article 14." Id. at 10. According to the Arbitrator, "[t]hese hazards come from working at heights with unsure footing, inadequate protective facilities, or adverse conditions such as darkness." Id. The Arbitrator therefore directed "that painters receive EDP for 50% of the hours spent working in ballast tanks" and indicated that the parties were "free to negotiate a different percentage" if his estimate was "too far off the mark[.]" Id.

As his award, the Arbitrator ruled that "[p]ainters are entitled to 25% EDP for 50% of the hours they spend working inside submarine ballast tanks." Id. at 11. The Arbitrator also awarded backpay "at the appropriate EDP rate for 50% of the hours each painter performed such work from 15 March through 24 December 1988, and from 13 April 1990 until [the Agency] implements th[e] award." Id. The Arbitrator retained jurisdiction for the purpose of resolving questions concerning the amount of backpay owed to the grievants.

III. The Agency's Exceptions

The Agency contends that the award is deficient because "[t]he Arbitrator found that EDP was warranted without any finding or conclusion that there existed an 'unusually severe hazard' . . . as . . . contemplated by law and regulation." Exceptions at 4. The Agency argues that the Arbitrator found only that a "hazard to employees was present." Id. Moreover, the Agency asserts that the circumstances leading to an award of environmental differential pay for high work do not exist. In addition, the Agency contends that the Arbitrator found that EDP was appropriate despite the failure of the Union to satisfy its burden of proof "as to the amount of time for which environmental differential pay is warranted . . . ." Id. at 6. The Agency notes that, in O'Neall v. U.S., 797 F.2d 1576 (Fed. Cir. 1986), "the Court of Appeals for the Federal Circuit made clear that in labor disputes generally, and in environmental differential pay cases specifically, the union bears the burden of proof as to the exposure to an unusually severe hazard, the nature of that hazard, and the circumstances under which specific environmental pay differentials should be paid." Id. According to the Agency, the Union "failed to meet its burden" because the Arbitrator was "forced to guess . . . [whether] conditions warrant[ed] environmental differential payments[.]" Id. The Agency asserts that "[t]he relief granted by the Arbitrator has no basis in the record[,]" maintaining that the record contains "not a single word or document which in any way speaks to the portion of time working in ballast tanks . . . so as to warrant environmental differential pay." Id. at 7.

Second, the Agency argues that "the Arbitrator's award is contrary to FPM Supplement 532-1." Id. at 1. The Agency notes that FPM Supplement 532-1, subchapter S8-7, appendix J, requires an EDP payment where an employee is actually exposed to "high work" situations. The Agency points out, however, that the provision is governed by subchapter S8-7f of the FPM Supplement which provides in pertinent part:

When an employee is entitled to an environmental differential which is paid on an actual exposure basis, he/she shall be paid a minimum of one hour's differential pay for the exposure. For exposure beyond one hour, the employee shall be paid in increments of one-quarter hour for each 15 minutes and portion thereof in excess of 15 minutes. . . . When an employee is exposed at intermittent times during the day . . . , each exposure is considered separately and the amount of time exposed is not added together before payment is made for exposure beyond one hour's duration[.]

The Agency contends that the Arbitrator's estimate of the painters' exposure to unusually severe hazards while working in the ballast tanks, "without a showing as to when the employees were actually exposed[,] is contrary to FPM Supplement 532-1." Id. at 2.

Finally, the Agency asserts that "[t]he Arbitrator's award is contrary to the Back Pay Act." Id. at 3. The Agency contends that "the period of time for which the [A]rbitrator awarded backpay was improper because the amount and nature of the award must be the amount payable consistent with . . . FPM Supplement [532-1] . . . ." Id. The Agency asserts that the award lacked the "specificity" required by the FPM Supplement. Id. at 4.

IV. The Union's Opposition

The Union contends that arbitrators are given "great latitude in fashioning remedies[]" and that arbitrators "need not specify the particular items of evidence supporting [their] award[s]." Opposition at 2. The Union also asserts that the award draws its essence from Article 14, section 2(b), of the parties' collective bargaining agreement. Id. In addition, the Union argues that the Agency is merely disagreeing with the Arbitrator's interpretation and application of the agreement, and that an arbitrator's "construction of [a] contract is not subject to review." Id. at 4. Finally, the Union contends that the Arbitrator's award is not contrary to FPM Supplement 532-1 or the Back Pay Act.

V. Analysis and Conclusions

A. There Existed an "Unusually Severe Hazard" Warranting the Payment of EDP, and the Amount of Time for Which EDP Was Payable Had Been Established.

FPM Supplement 532-1, appendix J, is a Government-wide regulation which lists categories of situations, such as "high work" requiring the payment of environmental differentials. However, the specific work situations for which EDP is payable under the categories of appendix J are left to local determination, including arbitration. See U.S. General Services Administration, Kansas City, Missouri and American Federation of Government Employees, Council 236, 38 FLRA 438, 444 (1990). In this case, Article 14, section 2(b), reflects a "high work" category incorporated by the parties into their collective bargaining agreement, and requiring that EDP "[p]ayments . . . be made for actual exposure[.]" Award at 5. Interpreting that provision, the Arbitrator concluded that "about half of the painters' work in ballast tanks involve[d] unusually severe hazards" and therefore directed that the painters "receive EDP for 50% of the hours spent working in ballast tanks." Id. at 10.

There is no assertion, or other basis on which to conclude, that Article 14, section 2(b), is not enforceable. Moreover, the interpretation and application of the collective bargaining agreement is a question solely for the arbitrator in that it is the arbitrator's construction of the agreement for which the parties have bargained. Therefore, the Agency's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement, and, consequently, provides no basis for finding the award deficient. See U.S. Department of the Treasury, Internal Revenue Service, Brookhaven Service Center and National Treasury Employees Union, Chapter 99, 37 FLRA 1176, 1180 (1990).

The Agency also contends that the a