43:1074(89)AR - - Army, Lexington-Blue Grass Army Depot, Lexington, KY and IAM Lodge 859 - - 1992 FLRAdec AR - - v43 p1074



[ v43 p1074 ]
43:1074(89)AR
The decision of the Authority follows:


43 FLRA No. 89

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE ARMY

LEXINGTON-BLUE GRASS ARMY DEPOT

LEXINGTON, KENTUCKY

(Agency)

and

INTERNATIONAL ASSOCIATION OF MACHINISTS

AND

AEROSPACE WORKERS

LODGE 859

(Union)

0-AR-2046

DECISION

January 23, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Frank A. Keenan 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 Agency filed an opposition to the Union's exceptions.

The Union filed a grievance claiming that the Agency violated the parties' collective bargaining agreement by refusing to pay a specified environmental differential as provided in the agreement. The Arbitrator determined that the provision in the agreement for payment of the differential was not enforceable under Federal Personnel Manual (FPM) Supplement 532-1, and he denied the grievance.

We conclude that the award must be vacated and remanded for further proceedings consistent with this decision.

II. Background and Arbitrator's Award

On April 14, 1988, the parties reached agreement on a new collective bargaining agreement. On June 28, 1988, the agreement was submitted for Agency head review pursuant to section 7114(c) of the Statute. On July 28, 1988, the Agency head approved the agreement except for several provisions which were disapproved as inconsistent with law or Government-wide regulation. While the Union insisted that the partial disapproval was untimely under the Statute, the parties renegotiated and reached agreement on all but two of the disapproved provisions. The Agency refused to abide by these two disapproved provisions. One of these provisions pertained to the payment of an environmental differential for operations involving chemical munitions. Based on the Agency head's rationale for disapproving this provision, the Agency also repudiated the following provision of Article 19 of the collective bargaining agreement, which had not been disapproved:

Section 4.a. The Employer and the Union recognize that there are inherent hazards in the handling of ammunitions that cannot be eliminated by protective measure and therefore, a differential is appropriate. In this regard, the Employer agrees that a differential shall be paid to employees who, as a regular part of their assigned duties, are exposed to those hazards within the limits of this Section and the definitions contained in the FPM [Supplement] 532, Appendix J.

. . . . . . .

(3) Low Degree Hazard--Explosives and Incendiary Materials 4%

Entry into the Restricted Area (Gate R-1). A roster shall be maintained by the first line supervisor.

Award at 1 (quoting the collective bargaining agreement).

The Union filed an unfair labor practice charge and a complaint was issued, alleging, among other things, that the Agency had violated the Statute by failing to abide by the collective bargaining agreement as originally negotiated.

In Case No. 4-CA-80876, the administrative law judge found, among other things, that the Agency head's actions were untimely under section 7114(c) of the Statute and that the Agency violated the Statute by refusing to be bound by the new collective bargaining agreement to the extent that the agreement was not inconsistent with law or Government-wide regulation. As a remedy, the judge ordered, among other things, that the Agency immediately effectuate and honor, to the extent consonant with law, the collective bargaining agreement agreed to on April 14, 1988. However, because the judge had not been presented with the issue of whether the disputed provisions were negotiable, the judge found that it would be inappropriate to order the Agency to abide by the entire original collective bargaining agreement or to make employees whole for lost environmental differential pay. No exceptions were filed to the decision of the judge.

In view of the judge's decision, the Union demanded that the Agency retroactively pay all unit employees the environmental differentials that they are entitled to under Article 19, Section 4.a.(3) of the collective bargaining agreement. When the Agency refused, the Union filed a grievance. The grievance was not resolved and was submitted to arbitration.

The parties stipulated at arbitration that they had negotiated a provision that permitted the payment of a 4 percent environmental differential to all employees who as a regular part of their official duties were required to enter restricted area R-1; that the Agency has the authority to negotiate the coverage of the criteria for the payment of an environmental differential to a local situation; and that the Arbitrator is authorized by law and the collective bargaining agreement to award the employees the differential with backpay and interest if payment of the differential is lawful.

Before the Arbitrator, the Agency argued that it was prohibited from paying the differential under the terms of the collective bargaining agreement because the local work situation does not fall within the category of explosives and incendiary material--low degree hazard, as set forth in FPM Supplement 532-1, Appendix J.(*) The Agency maintained that there is no provision for payment of the differential based on the mere entry into an area where explosives are located. The Agency asserted that under the definitions and examples of Appendix J, an employee must be actively involved in a work operation or in close proximity to a work operation involving the explosives or incendiary material. The Agency claimed that because the restricted area is approximately 11,000 acres, all employees entering the area could not be in close proximity to any work operation involving explosives and incendiary material.

Before the Arbitrator, the Union argued that Article 19, Section 4.a.(3) was enforceable because the parties had negotiated the provision consistent with FPM Supplement 532-1, subchapter S8-7(g), which permits the parties to use the collective bargaining process to determine the coverage of local work situations under appropriate categories of Appendix J, and because the Agency head had not disapproved the provision. The Union maintained that the provision was consistent with FPM Supplement 532-1 because the parties appropriately agreed that the category applied to the local work situations found in the restricted area where ammunition is stored and handled. The Union claimed that on a daily basis ammunition is transported and maintained such that all employees in the restricted area are exposed to the specified hazard.

In addition, the Union argued that the Agency was "asking the Arbitrator to decide something in the abstract since no evidence was presented to clearly show that entry into the restricted area does not meet the 'conditions' of FPM [Supplement] 532-1, Appendix J." Award at 25 (quoting the Union's argument; emphasis omitted). The Union claimed that determining whether the entry into the restricted area meets the conditions of Appendix J would require the development of record evidence that the Agency failed to present. The Union maintained that the issue could neither be resolved in the abstract nor on the basis of mere speculation. The Union asserted that, for this reason alone, the Agency's position must be rejected.

The Arbitrator agreed with the Agency that FPM Supplement 532-1, subchapter S8-7 both clearly authorizes and limits the payment of environmental differentials. He noted specifically that subchapter S8-7(e) provides that environmental differentials are authorized only when the exposure is under the circumstances described in a category listed in Appendix J and that under subchapter S8-7(g) a differential may not be paid when the local work situation is not covered by one of the defined categories. Because of these limits, the Arbitrator rejected the Union's argument that the provision must be enforced solely because the parties had agreed to the provision and the Agency head had not disapproved the provision. Instead, he found that "[t]he gravamen of the case . . . lies in a determination as to whether or not the circumstances spelled out in Article 19[,] Section 4.a.(3) of the parties' Contract are 'under the circumstances described in the category listed in Appendix J,' . . . . Put another way and in the terminology of the FPM, the task at hand is to determine whether or not the local situation described in Article 19[,] Section 4.a.(3) of the parties' Contract 'is covered by one of the defined categories,' for, if not, EDP 'may not be paid.'" Id. at 31.

In reviewing the category for explosives and incendiary material--low degree hazard, the Arbitrator determined that the examples serve to clarify the nature and degree of the hazards the category is intended to encompass. Consequently, the Arbitrator rejected the Union's position "that the lack of a 'factual' record hinders a determination of the parties' dispute, or that its resolution 'cannot be decided in the abstract.'" Id. at 33 n.3. In the Arbitrator's view, "[a]s a construction essentially of the language of the FPM, it is inevitably 'in the abstract.'" Id. In addition, the Arbitrator found that certain conditions could be inferred from the nature of a depot's functions.

After scrutinizing the examples in Appendix J, the Arbitrator concluded that the "mere entry" into the restricted area covering 11,000 acres, somewhere within which at any one time the type of activities outlined in the examples for the differential category may be taking place, does not pose the type of hazard outlined in Appendix J. Id. at 32. He found that entry into the restricted area poses less of a hazard both in nature and degree than those hazards outlined in the examples. He explained that even if he were to conclude that the nature of the hazards were essentially the same, he could not conclude, as required by the FPM, that the degree of the hazard is the same. He determined instead that the degree of hazard on mere entry into the restricted area is less than the degree incurred in the physical operations or the close proximity to those operations outlined in Appendix J. He agreed that because munitions are stored at various sites within the restricted area and work with, or transportation of, these munitions takes place virtually daily, a risk of some type and degree exists for all employees within the restricted area. However, he rejected the argument that the differential from explosives and incendiary material--low degree hazard extended to employees exposed to this risk alone. Accordingly, he ruled that Article 19, Section 4.a.(3) of the agreement could not be enforced because the local work situation is not embraced by the specified category set forth in Appendix J.

The Arbitrator found that his determination was supported by the decision in Department of the Navy, Philadelphia Naval Shipyard, 18 FLRA 902 (1985) (Philadelphia Naval Shipyard), in which the Authority adopted the decision of the administrative law judge. As noted by the Arbitrator, the judge held that although the parties are permitted to use the collective bargaining process to determine the coverage of local work situations under appropriate categories of Appendix J, FPM Supplement 532-1, subchapter S8-7(g) precludes negotiations concerning coverage of a local work situation when the situation "is clearly not within the Appendix J category." Award at 37 (quoting Philadelphia Naval Shipyard, 18 FLRA at 914). In sum, the Arbitrator was persuaded that the local work situation described in Article 19, Section 4.a.(3) "is clearly not within the Appendix J category." Id. (quoting Philadelphia Naval Shipyard, 18 FLRA at 914).

As his award, the Arbitrator denied the grievance. However, he added a proviso in the event that the Authority were to find that he erred by concluding that the FPM precluded implementation and enforcement of the disputed provision. In such event, the Arbitrator provided as follows:

[T]his Award is that the grievance is sustained and that all employees who as a regular part of their assigned duties entered into the Restricted Area, i.e., through Gate R-1, from and after April 14, 1988, are to be made whole for the affect [sic] upon them of the [Agency's] unjustified and unwarranted personnel action of withholding or reducing a 4% environmental differential due them, which withholding or reduction would not have occurred but for the [Agency's] unwarranted and unjustified personnel action of withholding or reducing said differential pay by means of not abiding by the contractual provisions mandating same, shown here to have been clearly violated.

Id. at 40.

III. First Exception

A. Positions of the Parties

The Union contends that the award is contrary to the Statute because the Arbitrator resolved a negotiability issue. The Union argues that the Arbitrator exceeded his authority because under section 7105(a)(2)(E) only the Authority may resolve issues relating to the duty to bargain. In support, the Union relies on Federal Correctional Institution, Texarcana, Texas, Federal Prison System and American Federation of Government Employees, Local 2459, Texarcana, Texas, 19 FLRA 238 (1985) (FCI). The Agency contends, to the contrary, that the Arbitrator appropriately considered whether the disputed provision of the agreement was enforceable.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is contrary to the Statute because the Arbitrator resolved a negotiability issue.

The matter submitted to arbitration concerned the grievance over whether the Agency violated the parties' collective bargaining agreement by failing to pay the environmental differential provided for in Article 19, Section 4.a.(3) of the agreement. A dispute over the interpretation and application of a provision of a collective bargaining agreement is properly resolved under the negotiated grievance procedure and does not present a negotiability issue that must be resolved by the Authority as provided by section 7105(a)(2)(E) of the Statute. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 578-79 (1990). Because this case involves only a dispute over the interpretation and application of a provision of the parties' collective bargaining agreement, this case is distinguishable from FCI, relied on by the Union. In FCI the Authority found that the arbitrator had gone beyond the submitted contractual issue of whether the agency's disapproval of certain provisions of the parties' supplemental agreement was proper under the parties' master agreement. Instead, the arbitrator in FCI had rejected the agency's disapproval of certain provisions, thereby "necessarily decid[ing] that the [a]gency had an obligation to bargain over the disputed provisions." 19 FLRA at 241. The Arbitrator in this case addressed no such duty to bargain issues.

Moreover, the Arbitrator in this case properly determined that consideration of FPM Supplement 532-1 was necessary to resolve the grievance in this case. The Statute does not preclude an arbitrator from considering the applicability of Federal law and Government-wide regulations when resolving a grievance under the negotiated grievance procedure. Air Force Logistics Command, AFLC Headquarters, AFLC/DPCE and American Federation of Government Employees, Council 214, AFL-CIO, 32 FLRA 261, 266 (1988); Louis A. Johnson Veterans Administration Medical Center, Clarksburg, West Virginia and American Federation of Government Employees, Local 2384, 15 FLRA 347, 350 (1984) (Louis A. Johnson VA Medical Center). Indeed, to avoid having their awards found deficient by the Authority, arbitrators "must perforce consider any relevant law, rule or regulation when fashioning a grievance arbitration award in the Federal sector." Louis A. Johnson VA Medical Center, 15 FLRA at 350.

Accordingly, we deny this exception.

IV. Second Exception

A. Positions of the Parties

1. The Union

The Union contends that the award is contrary to FPM Supplement 532-1. The Union maintains that the Authority has consistently recognized that the parties to a collective bargaining agreement are free to negotiate the application of Appendix J criteria to local situations. Thus, the Union argues that by refusing to enforce the parties' collective bargaining agreement, the award is inconsistent with FPM Supplement 532-1, subchapter S8-7(g)(3), which permits the use of the collective bargaining process to determine the local coverage of Appendix J. The Union argues that a simple reading of the Appendix J category for explosives and incendiary material--low degree hazard, shows that the local work situation fits within the category and, consequently, the provision establishing the local work situation was negotiable and enforceable.

The Union further argues that the Arbitrator erred in his analysis of FPM Supplement 532-1 because he failed to apply Appendix J to any factual situation. The Union asserts that the Arbitrator inappropriately used inferences and assumptions in concluding that the agreement was unenforceable. In the Union's view, with the parties free to negotiate the local work situations to which the Appendix J categories apply, the Arbitrator could not properly assume that the local work situation was not covered by one of these categories without examining the local work situation that the parties had agreed warranted the payment of a differential.

The Union also argues that because the local work situation fits within the Appendix J category, this matter is distinguishable from Philadelphia Naval Shipyard, and the Arbitrator's reliance on Philadelphia Naval Shipyard was misplaced.

2. The Agency

The Agency contends that the Arbitrator correctly decided that, under FPM Supplement 532-1, the disputed provision of the agreement was not enforceable because the local work situation was not covered by the specified Appendix J category. The Agency argues that the Union's exception constitutes nothing more than disagreement with the Arbitrator's interpretation of the FPM and the collective bargaining agreement and provides no basis for finding the award deficient.

B. Analysis and Conclusions

We conclude that the Arbitrator erred in his application of FPM Supplement 532-1 because he failed to apply the specified Appendix J category to the factual circumstances of the disputed local work situation. We agree with the Union that because the parties negotiated the specified local work situation as warranting the payment of an environmental differential for explosives and incendiary material--low degree hazard, the Arbitrator inappropriately used assumptions and inferences in concluding that the agreement was unenforceable. In our view, the Arbitrator could not properly conclude under FPM Supplement 532-1 that the local work situation was not covered by Appendix J without examining the facts underlying the local work situation.

FPM Supplement 532-1 provides at subchapter S8-7(f) that an agency shall pay a federal wage system employee an environmental differential when the employee is exposed to a hazard, physical hardship, or working condition listed in Appendix J. Veterans Administration Medical Center, Fort Howard and American Federation of Government Employees, AFL-CIO, Local 2146, 5 FLRA 250, 253 (1981) (VA Medical Center, Ft. Howard). However, the FPM does not enumerate specific work situations for which an environmental differential is payable. Rather, the FPM only defines in Appendix J categories of work situations, "each of an unusually severe nature," for which payment of an environmental differential is authorized. Subchapter S8-7(e) points out that the examples listed under the categories in Appendix J "are illustrative only and are not intended to be exclusive of other exposures which may be encountered under the circumstances which describe the listed category." Furthermore, subchapter S8-7(g)(2) provides that each installation or activity must evaluate its situations against the guidelines in Appendix J to determine whether local work situations are covered by the defined work categories. Thus, it is well established that the specific work situations for which an environmental differential is payable are left to local determination. For example, U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina and Federal Employees Metal Trades Council, 39 FLRA 987, 991 (1991); VA Medical Center, Ft. Howard, 5 FLRA at 253. Moreover, subchapter S8-7(g)(3) specifically provides for the collective bargaining process as one of the specific means of locally determining whether a particular work situation warrants the payment of a differential. VA Medical Center, Ft. Howard, 5 FLRA at 253.

The Civil Service Commission, the predecessor agency to the Office of Personnel Management, explained that the system is designed so that it is incumbent on the individual agencies to evaluate their own situations against these broad guidelines. See 56 Comp. Gen. 8, 12-13 (1976). In addition, the Civil Service Commission noted that although it provided guidance on the interpretation of FPM Supplement 532-1, it had consistently refrained from acting as an appellate source in disputes between agencies and their employees in specific cases because that was a matter delegated to the agencies and the collective bargaining process. See id.

In this case, the Union asserts that, through the collective bargaining process, the parties agreed that employees who entered into restricted area R-1 would encounter the exposure to explosives and incendiary material that warranted payment of a low degree hazard environmental differential. As acknowledged by the Arbitrator, the Union has explained that the parties had agreed that Appendix J applied to the local work situations performed within the restricted area because stable and unstable ammunition is moved, transported, stored, and handled within the restricted area daily. In view of the intent of FPM Supplement 532-1 to leave to local determination which specific work situations require payment of an environmental differential, we find that the Arbitrator could not refuse to enforce the parties' agreement based on the Supplement without making a factual determination that the specified local work situation clearly was not embraced by Appendix J. In our view, assumptions and inferences cannot resolve the critical issue of whether the nature and degree of the hazard actually encountered by employees by entering restricted area R-1 are encompassed by the Appendix J category. Such an issue can only be resolved based on a factual determination of the circumstances of the local work situation. We disagree with the Arbitrator that application of the Appendix J criteria "is inevitably 'in the abstract.'" Award at 33 n.3. To the contrary, we find that the Appendix J criteria are circumstantial and that the application of the Appendix J criteria to a local disputed work situation must involve a factual examination.

Consequently, we conclude that in order to deny enforcement to the parties' local determination, through collective bargaining, of the payment of an environmental differential, the Arbitrator must determine on the basis of a factual examination of the disputed situation that the specified local work situation clearly is not embraced by the Appendix J category. The Arbitrator failed to do this. For this reason, we find that the award is deficient, and we will vacate the award. We hold that the Arbitrator must examine the actual circumstances of the local work situation and on that basis determine whether Article 19, Section 4.a.(3) of the parties' collective bargaining agreement is enforceable. Therefore, we will remand this matter to the parties for resubmission to the Arbitrator in order that the Arbitrator may make this determination.

V. Decision

The award is vacated. This matter is remanded to the parties for further proceedings consistent with this decision.

APPENDIX

FPM Supplement 532-1, Appendix J provides, in pertinent part, as follows:

3. Explosives and incendiary material--low degree hazard. a. Working with or in close proximity to explosives and incendiary material which involves potential injury such as laceration of hands, face, or arms of the employee engaged in the operation and possible adjacent employees; minor irritation of the skin; minor burns and the lik