44:1118(91)AR - - Navy, Naval Surface Warfare Center, Dahlgren, Virginia and AFGE Local 2096 - - 1992 FLRAdec AR - - v44 p1118



[ v44 p1118 ]
44:1118(91)AR
The decision of the Authority follows:


44 FLRA No. 91

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE NAVY

NAVAL SURFACE WARFARE CENTER

DAHLGREN, VIRGINIA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2096

(Union)

0-AR-2139

DECISION

May 1, 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 Roger P. Kaplan filed by the Agency 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.

The grievants filed a grievance over the Agency's refusal to pay them a hazard differential for certain work. The Arbitrator determined that the grievants were entitled to have been paid a hazard differential for the disputed work.

We conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievants filed a grievance claiming that they were entitled to have been paid a hazard differential under 5 U.S.C. § 5545(d) for work that they performed on a warhead project and a missile project during the week of March 25-31, 1990. The grievance was not resolved and was submitted to arbitration.

The Arbitrator stated that the issues were whether the grievants were entitled to hazard differential pay for the week of March 25-31, 1990, and, if so, whether the differential was also payable retroactive to October 1989, when the Agency changed its regulations. Before the Arbitrator, the Union contended that the work performed by the grievants met the requirements of 5 U.S.C. § 5545(d) and that, consequently, they were entitled to have been paid a hazard differential. The Agency claimed that the grievants were not entitled to a differential because the hazards of the work that they had performed were not unusual, were not performed on a irregular or intermittent basis, and were taken into account in the classification of their positions.

The Arbitrator determined that the grievants were entitled to have been paid a hazard differential for the work performed during the week of March 25-31, 1990. He first noted that it was undisputed that the grievants generally perform hazardous work. Thus, to the Arbitrator, the case presented the question of whether the requirements of 5 U.S.C. § 5545(d) were met. Specifically, the Arbitrator explained that under section 5545(d), employees are entitled to hazard differential pay for any period during which they perform irregular or intermittent duties that subject them to a hazard, when performance of the duties is usually not involved in the work of their position and was not taken into account in the classification of their position.

The Arbitrator agreed with the Agency that the performance of the hazardous work was not irregular. Based on the testimony presented, he found that the grievants perform the disputed hazardous duties on about 65 percent of their workdays. In the Arbitrator's view, the continuous repetition of the hazardous duties made performance of the duties regular work.

However, contrary to the position of the Agency, the Arbitrator ruled that the performance of the disputed hazardous duties by the grievants was intermittent. He explained that "[b]y definition, intermittent means 'periodic' and 'coming and going at intervals.'" Award at 10. Based on the testimony presented that the disputed duties were not performed daily and, when performed, were "only performed for approximately 3-5% of the actual hours worked by the Grievants[,]" the Arbitrator found that the grievants' performance of the duties was "intermittent." Id. at 11. In so finding, the Arbitrator reviewed the legislative history of section 5545(d) and determined that performance of hazardous duties would not be intermittent if the duties are "performed for a substantial part of the working time." Id. (quoting with emphasis H.R. Rep. No. 31, 89th Cong., 1st Sess. 2 (1965)). In this respect, the Arbitrator found that it was clear that the grievants' performance of the hazardous duties was infrequent and reflected only a small portion of their work time. Therefore, he concluded that the grievants did not perform the disputed hazardous work for a substantial part of their working time.

For these reasons, the Arbitrator determined that the grievants satisfied the requirement of section 5545(d) that performance of the duties be "irregular or intermittent." Id. (quoting section 5545(d); emphasis by the Arbitrator). He explained that in order for employees to be eligible for hazardous duty pay under section 5545(d), performance of the duties had to be only irregular or intermittent and not both.(*)

Contrary to the position of the Agency, the Arbitrator also ruled that the performance of the hazardous duties by the grievants was not used as an element in establishing the grades of their positions prior to March 25, 1990. The Arbitrator noted that under Article 21 of the parties' collective bargaining agreement the Agency bears the burden of proof on any allegation in a hazardous differential pay case that performance of hazardous duties constituted an element in establishing the grade level of the positions involved. After reviewing the evidence, the Arbitrator concluded that the Agency had failed to meet its burden. He found that "[t]he Agency did not submit any evidence to show that prior to the March 25-31, 1990 date, hazardous duties were taken into account in the classification of the Grievants' positions. In fact, a review of the Grievants' position descriptions evidences a void of any indication that hazardous duties were taken into consideration in the classification of their positions." Id. at 13.

The Arbitrator further found that the disputed duties performed by the grievants qualified for a differential because the duties involved work with, or in close proximity to, explosive or incendiary materials, which were unstable and highly sensitive, and because safety precautions had not practically eliminated the hazards. Accordingly, the Arbitrator held that the grievants were entitled to have been paid a hazard differential for the week of March 25-31, 1990. However, the Arbitrator rejected as untimely the Union's request for relief retroactive to October 1989. As his award, the Arbitrator awarded the grievants 25 percent of their basic pay for the week of March 25-31, 1990.

III. First Exception

A. Positions of the Parties

1. The Agency

The Agency contends that the Arbitrator "incorrectly state[d] that the Agency submitted no evidence to show that prior to March 25-30, hazardous duties were taken into consideration in the classification of the grievants' positions[,]" and that, consequently, the award is deficient because it is based on a nonfact. Exception at 11.

The Agency states that in accordance with 5 U.S.C. § 5545(d), a hazard differential "does not apply to an employee in a position the classification of which takes into account the degree of physical hardship or hazard involved in the performance of the duties thereof . . . ." Id. (quoting 5 U.S.C. § 5545(d)(1)). The Agency argues that the award is deficient because, contrary to the finding of the Arbitrator, the Agency "presented ample evidence that the tasks performed by the grievants during the week of 25-30 March 1990 were duties that constituted elements used in establishing the grade of their positions." Id. at 12. The Agency maintains that the grievants' first-line supervisor testified that the disputed tasks performed by the grievants were the type of duties described in the position descriptions as regularly performed and were elements used in establishing the grades of their positions.

The Agency also maintains that classification audit notes submitted at the arbitration for three of the grievants' positions clearly showed that the disputed hazardous duties were considered in the classification of those positions prior to March 1990. The Agency argues that because the disputed duties were considered in the classification of these positions, it is logical to assume that they were considered in the classification of the other positions because all the positions are similar.

The Agency emphasizes that there is no requirement that hazardous duties affect the grade level of the positions; instead, a hazard differential is not payable whenever the duties are taken into account in the classification of a position. The Agency asserts that the disputed duties performed by the grievants were taken into account in the classification of their positions despite the finding that they did not necessarily affect the grade level of each position. Thus, the Agency claims that the Arbitrator's finding that the Agency did not present any evidence to show that the hazardous duties were taken into account in the classification of the grievants' position is clearly erroneous but for which the Arbitrator would have found that the grievants were not entitled to a hazard differential.

2. The Union

The Union contends that the Arbitrator was clearly correct in finding that the Agency did not present any evidence to show that prior to March 1990, the hazardous duties were taken into account in the classification of the grievants' positions.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is deficient because it is based on a nonfact.

We will find an award deficient because it is based on a nonfact when the central fact underlying the award is clearly erroneous but for which a different result would have been reached. For example, U.S. Department of Health and Human Services, Family Support Administration, Washington, D.C. and National Treasury Employees Union, Local 250, 42 FLRA 347, 354 (1991) (Family Support Administration).

In this case, the Arbitrator specifically reviewed the grievants' position descriptions and expressly determined that they "evidence[d] a void of any indication that hazardous duties were taken into consideration in the classification of their positions." Award at 13. We find that the Agency's exception essentially contending to the contrary fails to establish that the award is based on a nonfact. In our view, the Agency is simply attempting to relitigate the merits of the case before the Authority, and its exception constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence and testimony to find as a matter of fact that the disputed hazardous duties were not taken into account in the classification of the grievants' positions. As such, the Agency's exception provides no basis for finding the award deficient. See Family Support Administration, 42 FLRA at 354; U.S. Department of Labor and National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, 19 FLRA 300, 302-03 (1985) (National Council of Field Labor Locals) (the Authority denied the agency's exceptions that contended that the arbitrator erred by failing to find that the disputed hazards had been taken into account in the classification of the grievants' positions, finding that the agency's exceptions constituted an attempt to relitigate the merits of the case and disagreement with the arbitrator's findings of fact and his reasoning and conclusions based on the evidence and testimony before him); see also Paperworkers v. Misco, Inc., 484 U.S. 29, 36-38 (1987) (the Supreme Court reaffirmed the Court's holding in Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596 (1960) that courts are not authorized to reconsider the merits of an award even when a party claims that the award rests on errors of fact; the Court noted that in order to resolve disputes, an arbitrator must find facts and a court may not reject those findings simply because it disagrees with them).

Accordingly, we will deny the Agency's exception.

IV. Second Exception

A. Positions of the Parties

1. The Agency

The Agency contends that the award is contrary to 5 U.S.C. § 5545(d) by finding the performance of the hazardous duties by the grievants to have been intermittent. The Agency asserts that the Arbitrator confused the requirements of section 5545(d). The Agency maintains that "[i]t is clear that Congress intended the terms 'irregular' or 'intermittent' to have parallel meanings dealing with the unusual and infrequent occurrence of payable duties." Exceptions at 5. The Agency argues that, contrary to this clear intent, the Arbitrator determined that these terms are mutually exclusive. The Agency claims that it is clearly inconsistent with section 5545(d) to determine that any duties regularly performed on more than half of the grievants' work days can be intermittent duties for which a hazard differential is payable. The Agency asserts that the Arbitrator improperly concluded that any duty that is not continuous must be intermittent.

The Agency also notes that 5 C.F.R. § 550.904 provides that an agency shall pay a hazard differential to an employee "who is assigned to and performs any irregular or intermittent duty specified in the appendix when that duty is not usually involved in carrying out the duties of his position." The Agency further notes that for purposes of section 550.904, the term "not usually involved in carrying out the duties of his position" means that "even though the hazardous duty may be embraced within the employee's position description it is not performed with sufficient regularity to constitute an element in fixing the grade of the position." 5 C.F.R. § 550.904(b)(1). In this respect, the Agency argues that the disputed duties performed by the grievants were duties usually involved in carrying out the duties of their positions and that, consequently, the grievants were not entitled to have been paid a hazard differential.

The Agency maintains that its position is supported by the decision of the Comptroller General in B-216575, March 26, 1985. The Agency notes that the Comptroller General held that employees are entitled to hazard differential pay only when the hazards are infrequent and involve a small portion of the work time so that such irregular or intermittent duties are not considered in evaluating the position for the proper grade level. The Agency again argues that the performance of the disputed duties by the grievants was taken into account in the classification of their positions and that, therefore, it is improper to compensate them "a second time through hazardous duty pay." Exceptions at 11.

2. The Union

The Union contends that the Arbitrator correctly interpreted section 5545(d) to find that the terms "irregular" and "intermittent" have different meanings and that the use of the word "or" required the terms to be considered separately. The Union further contends that the Arbitrator correctly applied the term "intermittent" in finding that the duties performed by the grievants during the week of March 25-30, 1990, were intermittent duties that warranted the payment of a hazard differential. The Union also contends, contrary to the Agency, that the performance of the disputed duties by the grievants were not taken into account in the classification of their positions.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is contrary to section 5545(d).

At all relevant times in this case, there were three statutory requirements that employees had to meet before they were entitled to hazard differential pay:

(1) The hazard or physical hardship had to be listed in Appendix A to 5 C.F.R. part 550, subpart I;

(2) The performance of the duties involving a hazard or physical hardship had to be irregular or intermittent; and

(3) The hazard or physical hardship must not have been considered in the classification of the position.

See National Treasury Employees Union, NTEU Chapter 51 and Internal Revenue Service, Wichita District Office, 40 FLRA 614, 621 (1991); Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, AFL-CIO, 2 FLRA 958, 960 (1980).

The Arbitrator determined that all the statutory requirements had been met and awarded the grievants hazard differential pay. The Agency contends that the award is contrary to section 5545(d) because the duties were not intermittent and the hazards had been considered in the classification of the grievants' positions. After consideration of the Agency's arguments and the record in this case, we are not persuaded that the Arbitrator's determination that the grievants were entitled to hazard differential pay because the disputed duties were intermittent and had not been taken into account in the classification of the grievants' positions is contrary to section 5545(d). We find, contrary to the Agency's contentions, that the Arbitrator correctly interpreted and applied the term "intermittent dut[ies]" and, as we decided in denying the first exception, that no basis is provided for finding deficient the Arbitrator's determination that the disputed duties had not been taken into account in the classification of the grievants' positions. See National Council of Field Labor Locals, 19 FLRA at 302 (the Authority denied the agency's exceptions that an award of hazard differential pay was contrary to law and regulation, finding, that the arbitrator correctly recognized and applied the statutory and regulatory requirements for an award of hazard differential pay).

In so finding, we note that, in the absence of a statutory or regulatory definition, the Arbitrator defined the term "intermittent" to mean "periodic" and "coming and going at intervals." Award at 10. Based on the testimony presented that the disputed hazardous duties were not performed daily and, when performed, were "only performed for approximately 3-5% of the actual hours worked by the Grievants[,]" the Arbitrator found performance of the duties "to be intermittent." Id. at 11. Furthermore, the Arbitrator found that his determination was consistent with the legislative history to section 5545(d), which indicated that duties are not intermittent when they are "performed for a substantial part of the working time." Id. (quoting with emphasis H.R. Rep. No. 31, 89th Cong., 1st Sess. 2 (1965)). To the Arbitrator, it was "clear beyond doubt that the Grievants do not perform this hazardous work for a substantial part of their working time. The Grievants are exposed to the hazardous duty work approximately 3-5% of their working time. Such percentage is clearly insubstantial." Id. Emphasizing the use of the word "or" in section 5545(d), the Arbitrator further explained that in order for employees to be eligible for hazard differential pay, performance of the duties need only be irregular or intermittent and not both. Accordingly, the Arbitrator ruled that the grievants satisfied the requirement of section 5545(d) that the performance of the duties be "irregular or intermittent." Id. (quoting section 5545(d); emphasis by the Arbitrator).

In our view, the Agency fails to establish otherwise. We reject the Agency's contention that the terms "irregular" and "intermittent" are essentially synonymous. We agree with the Arbitrator that the terms have different meanings and are separate and alternative grounds for eligibility for hazard differential pay based on the statutory use of the term "or." In addition, we agree with the Arbitrator that the legislative history to sectio