51:1688(141)AR - - AFGE, Local Council 141 & DOD, NG Bureau, TX NG - - 1996 FLRAdec AR - - v51 p1688
[ v51 p1688 ]
The decision of the Authority follows:
51 FLRA No. 141
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL COUNCIL 141
U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
TEXAS NATIONAL GUARD
July 31, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Raymond L. Britton 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 Regulations. The Agency did not file an opposition to the Union's exceptions.
The Arbitrator denied a grievance contesting the Agency's failure to pay Environmental Differential Pay (EDP) to certain employees. For the following reasons, we conclude that the Union has provided no basis for finding the award deficient. Accordingly, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievants are Aircraft Survival Equipment Repairers who work with low degree explosives and incendiary devices. The Agency denied EDP to the grievants on the basis that hazards posed by working with these explosives and devices have been "practically eliminated," within the meaning of the regulations found in Federal Personnel Manual Supplement 532-1 (FPM Supplement), Appendix J, codified at 5 C.F.R. § 532.511, Appendix A.(1) The grievants filed a grievance alleging that they were entitled to EDP for their work with these materials.
The grievance was submitted to arbitration and the Arbitrator stated the issue as follows:
Has the low degree hazard associated with working with . . . explosives and incendiary material by [the grievants] been "practically eliminated" for the purpose of [EDP] qualification?
Award at 1. The Arbitrator found that the regulatory phrase "practically eliminated" means "almost" eliminated and that in order for a potential for injury to be practically eliminated, "total elimination of the hazard is not required, nor expected." Id. at 5. Based on his review of the record evidence, the Arbitrator concluded that the low degree hazard associated with working with the explosives and incendiary material by the grievants has been practically eliminated and he denied the grievance.
III. Union's Exceptions
The Union contends that the award is deficient because the Arbitrator's interpretation of the phrase "practically eliminated" is inconsistent with regulation and because the award fails to draw its essence from the parties' collective bargaining agreement.(2)
IV. Analysis and Conclusions
A. The Award Is Consistent with Regulation
To justify the payment of EDP, an arbitrator's award must meet all pertinent regulatory requirements. E.g., National Association of Government Employees, Local R7-36 and U.S. Department of the Army, Savanna Army Depot Activity, Savanna, Illinois, 51 FLRA 720, 723 (1995) (Savanna Army Depot Activity). According to the FPM Supplement, employees exposed to low degree hazards must prove that: (1) they work with or in close proximity to explosives and incendiary devices which involve the potential for personal injury; and (2) protective devices and/or safety measures have not practically eliminated the potential for such injury. FPM Supplement 532-1, Appendix J. In this case, the Union argues that the Arbitrator's definition of "practically eliminated" is erroneous.
The Authority has consistently held that the specific work situations for which EDP is payable under the FPM Supplement are left to local determination, including arbitration. E.g., Savanna Army Depot Activity, 51 FLRA at 723. Of course, in making local determinations regarding the specific work situations for which EDP is payable, the parties could negotiate, consistent with law and regulation, a standard defining the term "practically eliminated" that would be used in assessing employee entitlement to EDP. Cf. American Federation of Government Employees, Local 2144 and U.S. Department of the Air Force, 51 FLRA 834, 838 (1996) (in making local determinations regarding the specific work situations for which EDP is payable for exposure to asbestos, the parties could negotiate, consistent with law and regulation, the quantitative level of asbestos exposure that would be used in assessing employee entitlement to EDP). Absent local determination, the term "practically eliminated" does not require total elimination of a potential for injury. E.g., American Federation of Government Employees, Local 2924 and U.S. Department of the Air Force, Davis-Monthan Air Force Base, Tucson, Arizona, 50 FLRA 275, 277-78 (1995). As there is no evidence in this case that the parties negotiated a standard, the Arbitrator correctly found that in order for a potential for injury to be practically eliminated, "total elimination of the hazard is not required, nor expected." Award at 5. See id. The Union has not demonstrated that the award conflicts with regulatory requirements.(3) E.g., Savanna Army Depot Activity, 51 FLRA at 724.
B. The Award Does Not Fail to Draw Its Essence from the Parties' Agreement
In order for an award to be found deficient on this basis, the party making the allegation must demonstrate that the award: (1) is so unfounded in reason and fact, and so unconnected with the wording and purposes of the collective bargaining agreement, as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990).
The parties' agreement provides that EDP shall be paid in accordance with applicable regulations. The Arbitrator determined, based on the evidence submitted, that the grievants were not entitled to EDP under the applicable regulations. The Union has offered no support to show that the Arbitrator's determination resulted in an interpretation of the agreement that is implausible, irrational, or unconnected to the wording of the agreement. Accordingly, the Union has not demonstrated that the award fails to draw its essence from the agreement. Consequently, we deny the Union's exception.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. 5 U.S.C. § 5343 requires the Office of Personnel Management to provide for EDP by regulation. To implement this provision the FPM Supplement, Appendix J, codified at 5 C.F.R. § 532.511, Appendix A, was promulgated. These provisions state, in Part II of Appendix A:
3. Explosives and incendiary material-low degree hazard.
. . . .
b. 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 like; minimal damage to immediate or adjacent work area or equipment being used and wherein protective device and/or safety measures have not practically eliminated the potential for such injury.
2. The Union relies on Article 30, Sections 1 and 2 of the parties' collective bargaining agreement, which state, in part:
Section 1. When the Employer or Union determine[s] that any local work situations warr[a]nt coverage under payable categories of applicable regulations, it will notify the other party . . . .
Section 2. In accordance with applicable regulations regarding [EDP], the employer will compensate technicians performing covered duties listed in applicable regulations for Federal employees.
Exceptions, Attachment 5.
3. Because the same standards and legal requirements previously contained in the FPM continue to be codified in the C.F.R., the conclusion we reach would be the same whether or not we applied the now-expired FPM Supplement. Consequently, we need not address the question of whether the abolition of the FPM would affect the outcome of this case, and whether that abolition should be retroactively applied. See U.S. Department of the Treasury, Internal Revenue Service and National Treasury Employees Union, 51 FLRA 310, 316 n.7 (1995).