54:1117(98)AR - - Army, Alaska and AFGE Local 1834 - - 1998 FLRAdec AR - - v54 p1117



[ v54 p1117 ]
54:1117(98)AR
The decision of the Authority follows:


54 FLRA No. 98

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE ARMY

ALASKA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1834

(Union)

0-AR-2911

_____

DECISION

September 25, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Edwin R. Render 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 sustained a grievance alleging that two employees (the grievants) were entitled to hazardous duty pay for the periods of time from October 1, 1990, through January 12, 1995, that they worked in building 2201 of the Agency's facilities.(1) For the reasons that follow, we remand this case to the parties for resubmission to the Arbitrator, absent settlement, for further proceedings consistent with this decision.

II. Background and Arbitrator's Award

A. Background on the Grievants and the Hazards Present in Building 2201.

The grievants are two general schedule clerks who were assigned to perform administrative services in building 2201, one of a group of storage and processing buildings for explosives at Fort Wainwright, Alaska. The Agency processed ammunition and explosives on one side of a partition in building 2201, and the grievants worked on the other side of the partition in administrative offices. This partition was not designed to, and would not, prevent a serious explosion from injuring or killing someone in the administrative offices. Though the grievants were only assigned to keep a computerized inventory of the explosives, the parties disputed whether they assisted in handling explosives that were returned from the field on a regular basis. It was undisputed, however, that the grievants' job classifications did not take into account any hazardous duties.

The major activity that the Union contended was hazardous, and entitled the grievants to HPD, was their performance of administrative work in connection with the processing and inventory of explosive materials in building 2201. Specifically, the Union claimed that all of one grievant's work from October 1990 until September 1992, and all of the other grievant's work from December 1992 until May 1995, was hazardous under applicable regulations.

Building 2201 was only authorized to process explosives in the 1.3 and 1.4 classifications.(2) However, the Union contended that 1.1 and 1.2 class materials were also regularly stored and processed in building 2201. Among other duties, receiving personnel at building 2201 were required to analyze and classify returned ammunition and explosives, the explosive properties of which were not necessarily known. The parties disputed whether the processing and storage of explosives with unknown classifications, and explosives which were returned partially packaged, significantly increased the level of risk in building 2201. They also disputed whether this increased risk placed these explosives in either the 1.1 or 1.2 category. The parties also disagreed as to whether the materials stored and processed in building 2201 were "unstable and highly sensitive" when the grievants worked there. Award at 18-19.

B. Arbitrator's Award

The Arbitrator framed the issue in this case as whether the Army violated any applicable regulations or statutes when it refused to pay HPD to the grievants, and if so, what would be the appropriate remedy. Based on the provisions of the parties' collective bargaining agreement (parties' agreement) and the testimony at the hearing, the Arbitrator concluded that the grievants' working conditions between 1990 and 1995 constituted hazardous duty within the meaning of 5 C.F.R. § 550.902 and sustained the grievance.(3)

In the discussion section of his award, the Arbitrator stated that a proper interpretation of 5 C.F.R. Part 550 "inevitably leads one back to [A]rticle XIX of the [parties' agreement]." Id. at 36. Specifically, the Arbitrator found that Article XIX, section 1 [(4)] authorizes HPD "only when the unusual[] nature of the hazard . . . has not been practically eliminated."(5) Id. at 36-37. Turning to the regulatory requirements, the Arbitrator stated that the only category of hazards from Appendix A of 5 C.F.R. Part 550 (Appendix A) applicable in this case was "Explosive or incendiary materials which are unstable and highly sensitive."(6) In this connection, the Arbitrator credited testimony which revealed that class 1.1 and 1.2 explosives had been stored in building 2201. Relying on this testimony, the Arbitrator concluded that class 1.1 and 1.2 explosives were "regularly processed" in or near building 2201, notwithstanding the Agency's denial of this fact. Id. at 34. The Arbitrator also found that the hazardous conditions in building 2201 were not eliminated by the Agency, even though the matter was brought to management's attention on several occasions. Accordingly, the Arbitrator concluded that "[w]hen one applies the definition of 'hazardous duty' in the [parties' agreement] and [AR 690-500] to the facts credited by the Arbitrator, it is fairly clear that the grievants were performing hazardous duty." Id. at 37.

Crediting testimony at the hearing, the Arbitrator determined that "there were circumstances under which highly sensitive and unstable material was present in building 2201[,]" as required by the regulations. Id. at 35. The Arbitrator based his findings in part on the testimony of one witness whose response strongly suggested that "under certain circumstances . . . material stored in building 2201 could be classified as highly sensitive or unstable." Id. In the opinion of the Arbitrator, these circumstances, namely poor handling and maintenance of the explosive materials in building 2201, were present in the facts of this case. In this regard, the Arbitrator also found that the testimony established that the grievants handled this "unstable and highly sensitive" explosive material and it was the "kind of thing that happened on a recurring basis." Id. at 35-36. Based on this finding, the Arbitrator determined that death or serious injury could result from an accident in handling such material. Thus, the Arbitrator concluded that grievants performed hazardous duty under 5 C.F.R. § 550.902.

III. Positions of the Parties

A. Agency's Exceptions

The Agency claims that the award is contrary to law and regulation for several reasons.

First, the Agency contends that the Arbitrator sustained the grievance based on the Arbitrator's interpretation that the authorization for HPD may be expanded beyond the duties provided in Appendix A of 5 C.F.R. Part 550. Specifically, the Agency argues that Arbitrator awarded HPD based on an application of the definition of hazardous duty in the parties' agreement and the agency regulation, AR 690-500, rather than the actual duties defined in Appendix A, which violates 5 C.F.R. Part 550.

Second, assuming the Authority finds that the award properly addresses the hazardous duties in relation to Appendix A, the Agency argues that the Arbitrator did not fully address the requirements of 5 C.F.R. § 550.905 in his award. The Agency contends that the C.F.R. requires a "day-to-day" determination as to whether duties were performed which warrant HPD and that a blanket backpay award for the entire period of October 1, 1990 through January 12, 1995 violates 5 C.F.R. § 550.905. Exceptions at 8-9.

Third, the Agency states that, prior to May 4, 1991, in order for an employee to be eligible for the payment of HPD, the performance of the hazardous duty at issue must have been "irregular or intermittent." Id. at 9. The Agency claims that the Arbitrator's award granting HPD for "recurring" duties assigned prior to May 4, 1991, must be set aside as the award is contrary to the old requirements of 5 U.S.C. § 5545(d) and 5 C.F.R. Part 550 that were then in effect. Id. at 8.

Fourth, the Agency contends that the Arbitrator's award of HPD for duties occurring on a regular, recurring basis violates section 2b of AR 690-500, a "valid, current agency regulation." Id. at 11. The Agency argues that the award and the regulation are in conflict because AR 690-500 states that under "no circumstances will regular, recurring hazardous duties" be used as a basis to authorize HPD. Id.

B. Union's Opposition

The Union did not file an opposition to the Agency's exceptions.

IV. Analysis and Conclusions

In circumstances where a party's exceptions involve the award's consistency with law, we review the questions of law raised by the party's exceptions and the 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), petition for review dismissed, Begay v. Department of the Interior, 145 F.3d 1313 (Fed. Cir. 1998) (citing National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998) (Army Research). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. For the following reasons, we find that the grievants were performing hazardous duties under the regulations, but we remand the case to the parties to obtain additional findings regarding the period of time the grievants were exposed to the hazardous agents.

A. The Grievants Performed Hazardous Duty and Were Exposed to Unstable and Highly Sensitive Material as Required by the Applicable Regulations.

The threshold requirements for an employee's entitlement to HPD originate from a statutory mandate, as well as government regulation. As relevant here, there are three requirements the grievants must meet before they are entitled to HPD:

(1) The hazard or physical hardship must not have been considered in the classification of the employee's position pursuant to 5 U.S.C. § 5545(d).(7)

(2) The hazard or physical hardship must be listed in Appendix A to 5 C.F.R. Part 550.

(3) The employee must be performing a hazardous duty within the definition of 5 C.F.R. § 550.902.

See, e.g., U.S. Department of the Navy, Naval Surface Warfare Center, Dahlgren, Virginia and American Federation of Government Employees, Local 2096, 44 FLRA 1118, 1125 (1992).

Here, the Arbitrator found, and it was undisputed, that the grievants' job classifications did not take into account any hazardous duties, as required under 5 U.S.C. § 5545(d). With regard to the requirements of the HPD regulations, the Arbitrator addressed the requirements of 5 C.F.R. § 550.902 and Appendix A without differentiating between the requirements of these subsections. First, the Arbitrator determined that the only relevant Appendix A category was "Exposure to Hazardous Agents, work with or in close proximity to: Explosive or incendiary materials."(8) To award HPD under this category, the Arbitrator must find that the grievants worked with, or in close proximity to, explosive or incendiary materials which were unstable and highly sensitive. In this connection, the Arbitrator, crediting hearing testimony, concluded that class 1.1 and 1.2 materials were "regularly processed" in or near building 2201, where the grievants worked.(9) Award at 34. More pointedly, the Arbitrator found that these explosives were processed on the other side of a partition, which would not prevent a serious explosion from injuring or killing persons, from the grievants' administrative offices. Second, the Arbitrator found that the poor handling and maintenance of explosive material stored in building 2201 created the circumstances under which that explosive material could be classified as unstable and highly sensitive. The Arbitrator also determined that the grievants handled this material on a "recurring basis." Id. at 35-36. Finally, the Arbitrator found that these hazardous conditions present in building 2201 were not eliminated by the Agency. Based on these findings, the Arbitrator concluded that the grievants were performing hazardous duty within the meaning of 5 C.F.R. § 550.902, as the grievants handled unstable and highly sensitive material on a recurring basis, and worked under circumstances in which an accident could result in serious injury or death.

Given the Arbitrator's underlying factual findings, to which we defer, we find that his legal conclusion that the grievants worked with, or in close proximity to, unstable and highly sensitive material, for which they were entitled to HPD, is consistent with the applicable regulations. Thus, as the award complies with the applicable statutory and regulatory requirements, we deny the Agency's first exception.

B. The Arbitrator Did Not Make the Requisite Findings Under 5 C.F.R. § 550.905.(10)

Once it has been established that HPD is authorized, 5 C.F.R. § 550.905 requires the agency to pay the HPD for the hours in a pay status on the day on which the hazardous duty is performed. In this case, the Arbitrator failed to outline in his award, with particularity, the time periods for which the grievants were eligible for HPD to satisfy section 550.905. The Arbitrator's finding that the grievants were exposed on a "regular" and "recurring" basis from October 1990 through January 12, 1995 does not satisfy the regulations. This finding is not satisfactory because it does not provide the Agency with sufficient information to determine how many hours or days it must pay the grievants HPD. Thus, even though the grievants meet the eligibility requirements for HPD, the Arbitrator's findings regarding the period during which the grievants performed the hazardous work are legally insufficient. Furthermore, the record in this case does not permit the Authority to make the necessary findings.

The Authority's ability to review de novo the legal conclusions arrived at in an award is dependent on the sufficiency of the record before it. Army Research, 53 FLRA at 1710. If an award fails to contain the factual findings necessary to assess the arbitrator's legal conclusions, and the findings cannot be derived from the record, the award will be set aside and the case will be remanded to the parties for resubmission to the arbitrator, absent settlement, so that the requisite findings can be made. Id. Here, the Arbitrator failed to outline in his award material findings of fact regarding the time periods for which the grievants were eligible for HPD pursuant to 5 C.F.R. § 550.905. Accordingly, we will remand this case to the parties for resubmission to the Arbitrator, to obtain additional findings regarding the period of time the grievants were exposed to the hazardous agents.

However, we do not mean to suggest, as the Agency does, that the Arbitrator is required to make explicit findings regarding the presence of "unstable and highly sensitive" materials for "every day between October 1, 1990 and January 12, 1995." See Exceptions at 8. The Arbitrator may make findings on a daily or hourly basis if he chooses to do so. Alternatively, he may make findings as to either the percentage of time in a pay status the grievants were exposed to the unstable and highly sensitive material, or findings as to particular periods of time during which the grievants were exposed to said material.(11) If the Arbitrator chooses the latter approach upon remand, it would be up to the parties, in the implementation stage of the award, to calculate each grievant's specific entitlement to HPD.

C. The Record is Insufficient to Determine Whether the Arbitrator's Award of HPD for Duties Performed Before May 4, 1991 is Deficient.

In its third exception, the Agency claimed that prior to May 4, 1991, in order for an employee to be eligible for the payment of HPD, the hazardous duty at issue must have been irregularly or intermittently performed by the grievant. The Agency stated that since the Arbitrator awarded HPD for "recurring" duties assigned prior to May 4, 1991, at least that portion of his award must be set aside as it violates the requirements of the old 5 U.S.C. § 5545(d) and 5 C.F.R. Part 550 that were then in effect.

As previously mentioned, the 1990 pre-amendment version of 5 U.S.C. § 5545(d) provided, in pertinent part, that "[t]he Office [of Personnel Management] shall establish a schedule or schedules of pay differentials for irregular or intermittent duty involving unusual physical hardship or hazard." (emphasis added). See, footnote 7, supra. In 1990, FEPCA amended 5 U.S.C. § 5545 by deleting all references to the "irregular or intermittent" requirements. Thus, section 5545(d) was changed to read, in pertinent part, "[t]he Office [of Personnel Management] shall establish a schedule or schedules of pay differentials for duty involving unusual physical hardship or hazard." Similarly, 5 C.F.R. Part 550 -- the regulation promulgated to implement 5 U.S.C. § 5545(d) --in its pre-amendment version incorporated the "irregular or intermittent" requirements. After FEPCA, all references to the "irregular or intermittent" requirements were also deleted from 5 C.F.R. Part 550, to comply with the statutory change, effective May 4, 1991.

In light of incomplete information regarding the exact periods of the grievants' exposure to unstable and highly sensitive hazardous agents, we are unable to resolve this exception at this time. However, we note that, upon remand, if it were determined that the grievants performed hazardous duties prior to May 4, 1991, then the pre-1990 "irregular or intermittent" requirements of 5 U.S.C. § 5545(d), and 5 C.F.R. Part 550 would apply.

D. The Agency's Contention that AR 690-500 Conflicts with the Arbitrator's Award Does Not Provide a Basis for Finding the Award Deficient.

In its fourth exception, the Agency contended that the Arbitrator's award of HPD violated subsection 2(b) AR 690-500, an agency-wide regulation incorporated into Article XIX, section 1 of the parties' agreement.(12) The Agency argued that the Arbitrator's award and the agency regulation were in conflict, because the Arbitrator found that the grievants performed hazardous duties on a "recurring" basis and AR 690-500 states that "under no circumstances will regular, recurring hazardous duties" be used as a basis to authorize HPD. Since the Agency alleges, and the Arbitrator found, that AR 690-500 was incorporated into the parties' agreement, the resolution of this conflict becomes a matter of contract interpretation. See, e.g., U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine and National Association of Agriculture Employees, 51 FLRA 1210, 1216-17 (1996) (citations omitted).

In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Statute provides that the Authority apply the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector, rather than de novo review. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find an arbitration award deficient if it fails to draw its essence from the parties' agreement. However, since the Agency did not raise an essence argument as one of its exceptions, we do not address it. Thus, the Agency's fourth exception does not provide a basis for finding the award deficient. See, e.g., Equal Employment Opportunity Commission and American Federation of Government Employees, National Council of EEOC Locals No. 216, 53 FLRA 465, 469 (1997), citing Equal Employment Opportunity Commission and American Federation of Government Employees, National Council of EEOC Locals No. 216, 48 FLRA 822, 831 (1993), petition for rehearing denied sub nom. E.E.O.C. v. FLRA, No. 94-1168 (D.C. Cir., November 14, 1995) (unpublished opinion). Accordingly, the Agency's fourth exception is denied.

V. Decision

The award is remanded to the parties for further action consistent with this decision.

APPENDIX

5 C.F.R. § 550.902 provides, in relevant part, as follows:

Hazardous Duty means duty performed under circumstances in which an accident could result in serious injury or death . . . .

5 C.F.R. § 550.905 provides, in relevant part, as follows:

Payment of hazard pay differential. When an employee performs duty for which hazard pay differential is authorized, the agency shall pay the hazard pay differential for the hours in a pay status on the day (calendar day or a 24-hour period, when designated by the agency) on which the duty is performed. . . .

5 C.F.R. Part 550, Appendix A provides, in relevant part, as follows:

Exposure to Hazardous Agents, work with or in close proximity to:

25% (1)Explosive or incendiary materials. Explosive or incendiary materials which are unstable and highly sensitive.

5 U.S.C. § 5545, Night, standby, irregular, and hazardous duty differential, provides, in relevant part, as follows:

(d)The Office shall establish a schedule or schedules of pay differentials for duty involving unusual physical hardship or hazard. . . .

(1)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, except in such circumstances as the Office may by regulation prescribe; and

(2)may not exceed an amount equal to 25 percent of the rate of basic pay applicable to the employee.

As referenced in the award, Article XIX, section 1 of the parties' agreement provides, in relevant part, as follows:

The parties agree that environmental differential pay will be administered in accordance with FPM Supplement 542-1[sic], and 6th Infantry Division (Light) Regulation 690-500.

As referenced in the award, the U.S. Army Garrison, Alaska regulation 690-500 (AR 690-500), also known as the 6th Infantry Division (Light) Regulation 690-500, provides, in relevant part, as follows:

2. Coverage

. . . .

b. General Schedule (GS) employees may be eligible and considered for the additional hazard pay when they perform duties of a severe nature on an irregular or intermittent basis. Payment may not be made to GS employees when the hazardous duties were taken into account in classifying the position[s], in which case the hazardous tasks will be reflected in the job description as specified in FPM 550, Subchapter 9, and FPM Supplement 990-1, Part 500, Subpart I and appendix A. Regular recurring hazardous duties must be reflected in the job description and accounted for the classification process; and in no circumstance will regular, recurring hazardous duties base used as a basis to authorize hazardous duty pay be under the hazardous duty pay program, whether or not the duty has resulted in a change in the grade of the position.




FOOTNOTES:

1. The Arbitrator and the parties use the term "hazardous duty pay" interchangeably with hazard pay differential. The correct term for pay for duty involving physical hardship or hazard is hazard pay differential. We use that term, or its abbreviation HPD, in this decision. See, e.g., Federal Aviation Administration, Washington, D.C., 52 FLRA 548, 549 n.3 (1996).

2. Explosives are classified as 1.1, 1.2, 1.3, and 1.4. 1.1 is the most highly explosive material, 1.2 is highly explosive and contains fragments. Explosive material classified as 1.3 will cause a "mass fire" if ignited. Award at 10. Finally, 1.4 explosive material will cause a moderate fire if ignited.

3. See Appendix to this decision for the text of 5 C.F.R. § 550.902.

4. See Appendix to this decision for the text of Article XIX, section 1 of the parties' agreement.

5. The Arbitrator also notes that the U.S. Army Garrison, Alaska regulation 690-500 (AR 690-500) was incorporated into the parties' agreement at Article XIX, section 1. See the Appendix to this decision for the text of AR 690-500. However, in this connection, the Arbitrator found that AR 690-500 did not limit him from determining that the grievants were performing hazardous duty.

6. See Appendix to this decision for the text of Appendix A.

7. See Appendix to this decision for the text of 5 U.S.C. § 5545(d). We note that an additional requirement under section 5545(d) was that HPD be paid for duty performed on an irregular or intermittent basis. However, the Federal Employee Pay Comparability Act (FEPCA) of 1990, Pub. L. No. 101-509, § 203, 104 Stat. 1427, 1456, amended 5 U.S.C. § 5545 to delete any reference to the "irregular or intermittent" requirements. The regulations that implemented this statutory change, set forth in 5 C.F.R. Part 550, took effect on May 4, 1991. See 56 FR 20,343 (1991).

8. See Appendix to this decision for the text of Appendix A.

9. See footnote 2, supra, for the definitions of class 1.1 and 1.2 material.

10. See Appen