54:0338(41)AR Navy Public Works Center, Norfolk, Virginia and Tidewater Virginia Metal Trades Council 1998 FLRAdec AR



[ v54 p338 ]
54:0338(41)AR
The decision of the Authority follows:


 54 FLRA No. 41
 
              FEDERAL LABOR RELATIONS AUTHORITY
                       WASHINGTON, D.C.
                               
                            _____
                               
                 U.S. DEPARTMENT OF THE NAVY
                   NAVY PUBLIC WORKS CENTER
                      NORFOLK, VIRGINIA
                           (AGENCY)
                               
                             and
                               
             TIDEWATER VIRGINIA FEDERAL EMPLOYEES
                     METAL TRADES COUNCIL
                           (UNION)
                               
                          0-AR-2906
                               
                            _____
                               
                           DECISION
                               
                        June 12, 1998
                               
                            _____
                               
 Before the Authority: Phyllis N. Segal, Chair; Donald S.
                       Wasserman and Dale Cabaniss, Members.
 
 I.   Statement of the Case
 
      This matter is before the Authority on exceptions to an
 award of Arbitrator Edward L. Merrigan 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
 Regulations.  The Union did not file an opposition to the Agency's
 exceptions.
 
      The Arbitrator granted environmental differential pay (EDP),
 based on hazardous weather conditions, to employees working or
 traveling to and from work on a particular date.  For the
 following reasons, we set aside the portions of the award that
 grant EDP:  (1) for time employees spent traveling to and from
 work; and (2) to employees who worked indoors on that date.  As we
 are unable to determine whether the portion of the award granting
 EDP to employees who worked outside on the date in question is
 deficient, we remand it to the parties for resubmission, absent
 settlement, to the Arbitrator for clarification. 
 
 II.  Background and Arbitrator's Award
 
      A weekend storm blanketed the Hampton Roads, Virginia area
 with snow, resulting in severe weather that continued into Monday,
 February 5, 1996.  The storm caused schools and most businesses in
 the Hampton Roads area to close on February 5.   
 
      The Commanding Officer of the Navy Public Works Center
 (Agency) ordered all employees, both essential (ALFA) and
 nonessential (BRAVO), to report to work on time on Monday,
 February 5.  Most of the Agency's employees reported for work. 
 However, 260 employees were late, and 5 employees were injured as
 a result of ice and snow conditions.   
 
           The Union filed a grievance claiming, as relevant here,
 that the Agency violated applicable regulations and past practice
 by requiring BRAVO employees to work and report on time in "unsafe
 extreme weather conditions" on February 5. The Union requested
 that all BRAVO employees who reported to work on that date receive
 "[h]igh work" environmental differential pay at the 25 percent
 rate as authorized by 5 C.F.R.  532.511, Appendix A, Part I.2. 
 When the grievance was not resolved, it was submitted to
 arbitration.  The parties did not stipulate the issues to be
 resolved by the Arbitrator.
 
      The Arbitrator found that Agency employees "who worked, or
 traveled to and from work" on February 5 "were patently exposed to
 dangerous conditions of terrain, temperature and wind velocity." 
 Id. at 20-21.  Based on this finding, the Arbitrator granted
 employees who "traveled to and from their work places and actually
 reported [to] work, either on time or late," on that date EDP at
 the rate of 25 percent, as specified in OPM's EDP Category 9.  Id.
 at 24.  In this regard, the Arbitrator rejected the Union's
 reliance on EDP Category 2, High Work, as the category under which
 EDP was authorized for the grievants, determining instead that the
 appropriate category was Category 9. The Arbitrator stated that
 the amount of EDP was to be computed as prescribed in applicable
 regulations.  
 
 III. Positions of the Parties
 
      A.   Agency
 
      The Agency claims that the award of Category 9 EDP,
 "Exposure to hazardous weather or terrain," is deficient because
 the Union requested the payment of EDP based on Category 2, "High
 [W]ork."  The Agency argues that the Arbitrator "prejudiced" the
 Agency because it was not provided with the opportunity to present
 evidence that dealt with Category 9.  Exceptions at 3.  The Agency
 also contends that the award is contrary to law, asserting that
 "employees cannot be paid [EDP] for traveling to and from work[.]" 
 Id., (citing U.S. Customs Service, Chicago-O'Hare and National
 Treasury Employees Union, Chapter 172, 23 FLRA 366 (1986) and U.S.
 Department of Labor, Mine Safety and Health Administration and
 National Council of Field Labor Locals, American Federation of
 Government Employees, 32 FLRA 930 (1988).  
 
      In addition, the Agency claims that, even if employees are
 entitled to EDP, they are only entitled to payment for actual time
 exposed to the hazardous condition pursuant to 5 C.F.R.
  532.511(b)(2).  According to the Agency, since "[m]ost BRAVO
 category employees who came to work on 5 February 1996 worked
 indoors[,]" they were not exposed to hazardous conditions and,
 thus, are not entitled to EDP.  Id. at 5. 
 
      B.   Union
 
      The Union did not file an opposition.
 
 IV.  Analysis and Conclusions
 
                A.   The Arbitrator did not exceed his authority by awarding
           a different category of environmental differential pay
           than was requested by the Union.
 
      We construe the Agency's claim that the Arbitrator could
 only determine the issue of whether to award EDP from Category 2,
 and not from Category 9, as a contention that the Arbitrator
 exceeded his authority. 
 
      Arbitrators exceed their authority when they fail to resolve
 an issue submitted to arbitration, resolve an issue not submitted
 to arbitration, disregard specific limitations on their authority
 or award relief to those not encompassed within the grievance. 
 American Federation of Government Employees, Local 1617 and U.S.
 Department of the Air Force, San Antonio Air Logistics Center,
 Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996).  It is
 well-established that, in the absence of a stipulated issue, an
 arbitrator's formulation of the issues is accorded substantial
 deference.  See American Federation of Government Employees, Local
 916 and Defense Distribution Depot, Oklahoma City, Oklahoma, 50
 FLRA 244, 246-47 (1995).  
 
      In this case, the parties did not stipulate the issue.
 Accordingly, the Arbitrator was free to formulate one.  See, e.g.,
 U.S. Department of Defense, Army and Air Force Exchange Service
 and American Federation of Government Employees (Worldwide
 Consolidated Bargaining Unit), 51 FLRA 1371, 1378 (1996). 
 Although the Arbitrator did not expressly set forth the issue, it
 is clear from the award as a whole that he determined the issue to
 be whether, and under which category, EDP should be granted to
 employees who worked, or traveled to and from work, on February 5,
 6, and 7, 1996.   The Arbitrator resolved this issue by
 determining that employees were entitled to EDP under Category 9,
 rather than Category 2.  
 
      In these circumstances, the Agency has not demonstrated that
 the Arbitrator exceeded his authority.  Accordingly, we deny this
 exception.
 
                B.   Whether the Arbitrator's award is contrary to law,
           rule, or regulation.               
 
      We review questions of law raised by a party's exceptions to
 an arbitrator's award de novo.  U.S. Department of the Interior,
 Bureau of Indian Affairs, Navajo Area Office and National
 Federation of Federal Employees, BIA Council, 53 FLRA 984, 992
 (1997), citing, National Treasury Employees Union, Chapter 24 and
 U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA
 330, 332 (1995).  See also U.S. Customs Service v. FLRA, 43 F.3d
 682, 686-87 (D.C. Cir. 1994).
 
                1.   The portion of the Arbitrator's award granting EDP for
           employees commuting to and from work during winter
           storm conditions is contrary to 5 C.F.R.  532.511
 
      5 C.F.R.  532.511, Appendix A, Part I, Category 9 provides
 for the payment of EDP for "[e]xposure to dangerous conditions of
 terrain, temperature and/or wind velocity, while working or
 traveling . . . ."  (Emphasis added).
 
      The term "travel" as used in Category 9 is not defined in
 the EDP regulations.  However, home-to-work "travel," or commuting
 is typically considered separate and distinct from "travel" on
 official Government business.  See, e.g., American Federation of
 Government Employees, Local 3006 and U.S. Department of Defense,
 National Guard Bureau, State of Idaho, Office of the Adjutant
 General, 47 FLRA 155, 159-160 (1993) ("normal home-to-work
 commuting is not travel on official business of the Government"). 
 Further, the statutory basis for the payment of EDP does not
 contain an unequivocal expression that compensation for home-to-
 work travel is authorized.  See 5 U.S.C.  5343(c)(4).  Absent an
 unequivocal and unambiguous expression of a waiver of sovereign
 immunity, the payment of Federal money, including any pay
 differential, is not authorized.  See United States v. Testan, 424
 U.S. 392, 402 (1976) and Lane v. Pena, 518 U.S. 187 (1996)
 (June 20, 1996), quoting Irwin v. Veterans Affairs, 498 U.S. 89,
 95 (1990). 
 
      In these circumstances, and in the absence of any argument
 or authority to the contrary, we conclude that the EDP regulations
 do not authorize compensation for the type of traveling for which
 the Arbitrator ordered EDP.  Therefore, this portion of the award
 is deficient as contrary to law, and we set it aside.
 
                2.   The record is insufficient for a determination as to
           whether the portion of the award granting EDP to
           employees engaged in the performance of work is
           deficient under 5 C.F.R. Part 532.
 
      5 C.F.R.  532.511(a)(1) provides that an employee is
 entitled to EDP "when exposed to a working condition or hazard
 that falls within one of the categories approved by the Office of
 Personnel Management."  As relevant here, employees are entitled
 to EDP when they are exposed to:  "dangerous conditions of
 terrain, temperature and/or wind velocity, while working . . .
 when such exposure introduces risk of significant injury or death
 to employees . . . ."  5 C.F.R.  532.511, Appendix A, Part I.9. 
 
      The Arbitrator determined that "employees who worked, or
 travelled to and from work, on Monday, February 5, 1996 were
 patently exposed to dangerous conditions of terrain, temperature
 and wind velocity."  Award at 20.  These are factual findings to
 which the Authority defers.  See Social Security Administration,
 Mid-Atlantic Program Service Center and American Federation of
 Government Employees, Local 1923, 53 FLRA 956, 959 (1997) and
 American Federation of Government Employees, Local 2459 and U.S.
 Department of Justice, Federal Bureau of Prisons, Federal
 Correctional Institution, Texarkana, Texas, 51 FLRA 1602, 1607-08
 (1996).
 
      It appears from the record that the bargaining unit
 encompasses employees working indoors and employees working
 outdoors.  In this regard, the Agency in its exceptions states
 that "[m]ost . . . employees . . . worked indoors[,]" thereby
 conceding that at least some employees worked outdoors. 
 Exceptions at 5.  
 
      With respect to employees who worked indoors on February 5,
 we agree with the Agency that they are not entitled to EDP under
 Category 9 because they were not exposed to hazardous weather or
 terrain while they were working.  Thus, the award as to these
 employees is deficient as contrary to law.
 
      With respect to employees who worked outdoors on February 5,
 the Arbitrator made no factual findings concerning their
 entitlement to EDP.  In particular, the Arbitrator did not
 distinguish between weather conditions relevant to traveling to
 the Agency and the conditions relevant to the performance of work
 outside at the Agency.  In addition, the award contains no
 findings concerning either the job functions of these employees or
 the length of time they were exposed to dangerous weather
 conditions.  Indeed, the award does not even refer to any
 employees working outdoors on February 5.
 
      Without findings on these matters, the Authority is unable
 to determine whether the award is deficient with respect to the
 employees working outdoors on February 5.  In situations such as
 this, where the Authority is unable to determine whether an
 arbitrator's award is deficient, the practice of the Authority is
 to remand the case to the parties for resubmission to the
 arbitrator, absent settlement, for a clarification of the award. 
 See, e.g., U.S. Department of the Air Force, 509th Bombardment
 Wing, Pease Air Force Base, New Hampshire and National Association
 of Government Employees, Local R1-111, 41 FLRA 1035, 1041 (1991).
 
      A remand is appropriate in these circumstances to permit
 impartial resolution of the remaining factual issues in this case. 
 Of course, the parties are free to resolve the matter without
 further arbitration proceedings.  However, absent settlement, the
 parties are directed to submit the matter to the Arbitrator for
 clarification as to whether employees who worked outdoors on
 February 5, 1996 are entitled to EDP and, if they are, why.
 
      V.   Decision
 
      The award of EDP to employees for time spent traveling to
 and from work on February 5, 1996, and to employees who worked
 inside on that date is set aside.  The award of EDP to employees
 who worked outside on that date is remanded to the parties for
 resubmission, absent settlement, to the Arbitrator for a
 clarification. Opinion of Member Wasserman, Concurring in Part and Dissenting in
 Part
 
      I agree with my colleagues regarding three of their
 conclusions:  that the Arbitrator did not exceed his authority by
 awarding a different category of EDP from that which was
 originally requested; that he erred in awarding EDP to employees
 who merely commuted to and from work; and that he erred in
 awarding EDP to employees who worked indoors.  However, I disagree
 with their determination that the Arbitrator failed to establish
 that the outdoor employees were entitled to EDP and dissent as to
 that portion of the decision.   
 
      Testimony regarding the Agency's efforts to improve the
 conditions at its PWC facility revealed that on Sunday, February
 4, the Agency "had a hard time keeping ahead of the snow drifts on
 the runways[,]" because of the cold and the high winds.  Award at
 9.  The Agency's Commanding Officer also stated that the Agency
 "worked hard" on Sunday "to keep the road intersections on the
 bases open and the roads open."  Id.  According to the record, the
 Agency's Disaster Preparedness Officer spoke with the Agency
 transportation personnel, who were removing the snow and sanding
 and salting the roads at the Agency, regarding the outlook of road
 conditions at the Agency for Monday morning.  The Officer
 testified that the crews responded, "it is tough. . . [there] is a
 lot of ice there.  We are not dealing with snow.  We are dealing
 with ice, and we don't know if we can melt it in time . . . I
 didn't think we were going to be ready in time."  Id. at 11. 
      
      It is clear from the record that these dangerous conditions
 still existed on Monday, February 5, 1996.  The evidence showed
 that the temperature in the Hampton Roads area, where the Agency
 was located, ranged from 10øF to 29øF on February 5.  Id. at 9,
 citing, Agency Ex. 2.  The record also indicated that wind
 continued to blow from the northwest at 12 to 18 kts.  Based on
 this evidence, the Arbitrator concluded that on February 5,
 Hampton Roads was still in a "deep freeze."  Appendix A's
 windchill chart describes when persons are in danger from the
 combination of wind speed and local temperature.  5 C.F.R. Part
 532, Appendix A, Exhibit 1.  According to this chart, when local
 temperature ranges from 14øF up to 23øF, with a wind speed ranging
 from 10 - 20 kts., a person exposed to these elements is in
 "considerable danger" from freezing of exposed flesh because of
 the windchill between -4øF to -19øF.  Thus, the local temperature
 and wind velocity on February 5 put the grievants in "considerable
 danger" at least for some portions of the day according to the
 windchill chart in Appendix A.
 
      The record also showed that the roads surrounding the Agency
 were so hazardous and icy on Monday, February 5, that the police
 and local media were directing drivers to stay off the streets. 
 In this connection, the Arbitrator noted that the Norfolk Naval
 Base, which includes most of the Navy's major activities in the
 Hampton Roads area, excused all of its nonessential employees due
 to the weather conditions on February 5.  Award at 10.    
 
      In evaluating the conditions that existed on Monday,
 February 5, the Arbitrator stated that:
 
                     Those who did venture out of their homes to report for
           work as ordered by [the Agency] were confronted with
           frozen bridges; icy and slippery roads; impassible snow
           accumulations in many areas, and "snowed in" parking
           lots at the Agency facility.  Automobile accidents were
           thus commonplace, and even employees who successfully
           reached their Agency work places were subjected to
           serious injuries and/or damage to their vehicles.
 
 Id. at 20 (emphasis added).
 
      Based on these "established conditions," the Arbitrator
 determined that the Agency employees who worked on Monday,
 February 5, 1996, "were patently exposed to dangerous conditions
 of terrain, temperature and wind velocity."  Id.  The Arbitrator
 went on to conclude that "these exposures not only created 'the
 risk of significant injury' within the meaning of OPM Category 9,
 but they actually resulted in serious injuries and other employee
 losses."  Id.  
 
      In this case, I view the Arbitrator's findings as sufficient
 to support the determination that the Agency employees who worked
 outdoors on Monday, February 5 "were patently exposed to dangerous
 conditions of terrain, temperature and wind velocity."  Id.  These
 conditions created an actual and significant risk of serious
 injury to the employees within the meaning of 5 C.F.R. Part 532,
 Appendix A, Category 9.  I have concluded, as the Arbitrator did,
 that the critical requirements under Category 9 for the outdoor
 employees' entitlement to EDP have been met.  Category 9 only
 requires that employees be exposed to dangerous conditions "while
 working," which the Agency has conceded has happened here.  See
 Exceptions at 5 (the Agency's statement that "[m]ost BRAVO
 category employees who came to work on 5 February 1996 worked
 indoors[,]" is tacit recognition that some BRAVO employees worked
 outdoors).  The identification of the specific employees who
 worked outdoors on February 5 is a matter for the parties to
 determine during the implementation phase after the award. 
 Similarly, the actual amount of EDP each individual employee
 should receive for exposure on Monday, February 5, should be left
 to the parties as a compliance matter pursuant to properly
 "applicable regulations."  Award at 24.  Consequently, I dissent.



FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Member Wasserman's partial dissent is set forth at the end of this decision.

2. The Agency's published instruction distinguishes between two categories of employees for the purpose of notification during a snow emergency. Award at 6-7. "Snow Emergency Category ALFA Personnel" are essential employees who are expected to work at their normal time or shift during snow emergency conditions. Id. at 7. "Snow Emergency Category BRAVO Personnel," defined as all Public Works Center employees not designated as ALFA Personnel, are expected to report as instructed by their supervisors or as modified by public announcements over commercial TV and radio. Id.

3. The Union also claimed, and the Arbitrator agreed, that the Agency should have granted administrative leave to certain employees. As the Agency has not excepted to this portion of the award, we do not address it further.

4. The regulations referenced in the Award provide, in pertinent part, as follows: 5 C.F.R. § 532.511, Appendix A, Part I.9: Part I - Payment for Actual Exposure. 25% 9. Exposure to hazardous weather or terrain. Exposure to dangerous conditions of terrain, temperature and/or wind velocity, while working or traveling when such exposure introduces risk of significant injury or death to employees . . . . 5 C.F.R. § 532.511(b): (b) Amount of environmental differential payable. (1) An employee entitled to an environmental differential shall be paid an amount equal to the percentage rate authorized by the Office of Personnel Management for the category in which the working condition or hazard falls . . . . (2) An employee entitled to an environmental differential on an actual exposure basis shall be paid a minimum of one hour's differential pay . . . . (3) An employee entitled to an environmental differential on the basis of hours in a pay status shall be paid for all hours in a pay status on the day on which he/she is exposed to the situation. . . .

5. We note that payment of Category 9 EDP is authorized for actual exposure rather than hours in a pay status. See 5 C.F.R. § 532.511, Appendix A. Therefore, on remand, the Arbitrator should apply 5 C.F.R. § 532.511(b)(2).

6. A "knot" (kts.) is equal to approximately 1.15 miles per hour. Converting the kts. to miles in this case indicates that the wind was blowing from the northwest at 13.8 to 20.7 miles per hour. In his award, the Arbitrator stated that the northwest winds "gust[ed] to 25 kts" on Monday, February 5, or 28.75 miles per hour. Award at 19.




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