National Air Traffic Controllers Association, AFL-CIO, Local ECE (Union) and United States, Department of Transportation, Federal Aviation Administration (Agency)

[ v61 p803 ]

61 FLRA No. 160

NATIONAL AIR TRAFFIC
CONTROLLERS ASSOCIATION
AFL-CIO, LOCAL ECE
(Union)

and

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

0-AR-4053

_____

DECISION

September 15, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member [n1] 

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator John D. Barnard filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exception.

      The Arbitrator found that the grievant was not entitled to hazardous duty pay for height work and, as relevant here, he denied the grievance. [n2]  For the reasons set forth below, we deny the Union's exception.

II.      Background and Arbitrator's Award

      The grievant inspects communications and radar towers to determine whether they are structurally sound, and inspects "fall arrest" equipment to determine whether it is in compliance with Occupational Safety and Health Administration (OSHA) safety standards. Award at 5. To do this work, the grievant regularly climbs towers that are taller than 50 feet. When doing so, the grievant uses a "fall arrest system" consisting of a body harness and lanyard. [n3]  According to the Arbitrator, both parties agree that the grievant's work entails "some risk" that could result in "serious injury or ultimately, even death." Award at 19.

      The grievant requested hazardous duty pay for this work and, when the Agency did not respond to his request, filed a grievance, which was denied and submitted to arbitration. The parties stipulated that the grievance concerned the following issue:

Did the Agency violate Article 81 of the collective bargaining agreement by not paying the grievant, Allan R. Louiselle hazardous duty premium pay? [n4]  If so, what shall the remedy be?

Award at 2. In resolving the grievance, the Arbitrator applied the criteria for the payment of premium pay for "height work" set out in the regulations that the parties had incorporated into Article 81 of their agreement. [n5] 

      The Arbitrator determined that the grievant does not conduct inspections during adverse weather conditions and that there is no evidence indicating that scaffolding guards are present on any of the towers at issue. Addressing the regulation's proviso that an employee is not entitled to pay where other "suitable protective facilities" are used, the Arbitrator concluded that other suitable protective facilities are furnished to the grievant, including "the use of fall protection equipment and training." Award at 21. In making this finding, the Arbitrator found that the fall arrest equipment used by the Agency "meets or even exceeds OSHA requirements." [ v61 p804 ] Id. at 24. He concluded that "[a]s such, the protective facilities aspect [of the regulation] has been met by the Agency" and the grievant is not entitled to hazard pay. Id.

III.     Positions of the Parties

A.     Union's Exception

      The Union argues that the award is contrary to law because the Arbitrator incorrectly interpreted 5 C.F.R. Part 550. In this regard, the Union claims that the regulation at issue encompasses only "suitable protective facilities" and to be suitable, the facility must be similar to scaffolding. The Union relies on a dictionary definition stating that "scaffolding" is "a temporary platform . . . on which workers sit or stand when performing tasks at heights above the ground." Exception at 7, Attachment F. Based on this definition, the Union claims that the fall arrest system used by the grievant is not a facility because it is not something on which an employee can sit or stand and, instead, constitutes "protective equipment." Exception at 7. The Union relies on an analogous Office of Personnel Management (OPM) hazard pay regulation providing premium pay for wage grade employees working on high structures "if safe scaffolding, enclosed ladders or other similar protective facilities are not adequate (for example, working from a swinging stage, boatswain chair, or similar support." 5 C.F.R. 532, subpart E App. A. Finally, citing 5 C.F.R. § 550.906, the Union argues that the Arbitrator's findings and undisputed evidence in the record indicate that the fall arrest equipment does not reduce the risk to employees to a less than significant level, and that the Arbitrator's "implicit" finding to the contrary was a misapplication of the regulations. [n6]  Exception at 9.

B.     Agency's Opposition

      The Agency argues that the Arbitrator properly relied on the safety standards for fall protection equipment required by OSHA to determine that personal fall arrest systems are suitable protective facilities under the OPM regulation. In this regard, the Agency contends that the OSHA standard is the definitive standard for this issue.

IV.     Analysis and Conclusions

      The Union argues that the award is contrary to government-wide regulations issued by OPM. However, the Agency is governed by an agency-specific personnel system that is exempt from most of the requirements of Title V, including the hazard pay provisions of 5 U.S.C. § 5545(d). See 49 U.S.C. § 40122(g)(2). [n7]  As the hazard pay provisions do not apply to the Agency, the regulations implementing those provisions also do not apply to the Agency. See United States Department of Transportation, Federal Aviation Administration, 61 FLRA No. 151, slip op. at 5 (2006) (Sept. 11, 2006). As the regulations relied on by the Union do not apply, it has not established that the award is not contrary to law. [n8] 

V.     Decision

      The Union's exception is denied.


APPENDIX

49 U.S.C. § 106(l)(1) provides, in pertinent part:

(1) Officers and employees.-- Except as provided in subsections (a) and (g) of section 40122, the Administrator is authorized, in the performance of the functions of the Administrator, to appoint, transfer, and fix the compensation of such officers and employees, including attorneys, as may be necessary to carry out the functions of the Administrator and the Administration. In fixing compensation and benefits of officers and employees, the Administrator shall not engage in any type of bargaining, except to the extent provided for in section 40122(a), nor shall the Administrator be bound by any requirement to establish such compensation or benefits at particular levels.

49 U.S.C. § 40122 provides, in pertinent part:

(a) In general.-- [ v61 p805 ]
(1) Consultation and negotiation.-- In developing and making changes to the personnel management system initially implemented by the Administrator of the Federal Aviation Administration on April 1, 1996, the Administrator shall negotiate with the exclusive bargaining representatives of employees of the Administration certified under section 7111 of title 5 and consult with other employees of the Administration.
...
(g) Personnel management system--
(1) In general.-- In consultation with the employees of the Administration and such non-governmental experts in personnel management systems as he may employ, and notwithstanding the provisions of title 5 and other Federal personnel laws, the Administrator shall develop and implement, not later than January 1, 1996, a personnel management system for the Administration that addresses the unique demands on the agency's workforce. Such a new system shall, at a minimum, provide for greater flexibility in the hiring, training, compensation, and location of personnel.
(2) Applicability of title 5.-- The provisions of title 5 shall not apply to the new personnel management system developed and implemented pursuant to paragraph (1), with the exception of--
(A) section 2302(b), relating to whistleblower protection, including the provisions for investigation and enforcement as provided in chapter 12 of title 5;
(B) sections 3308-3320, relating to veterans' preference;
(C) chapter 71, relating to labor-management relations;
(D) section 7204, relating to antidiscrimination;
(E) chapter 73, relating to suitability, security, and conduct;
(F) chapter 81, relating to compensation for work injury;
(G) chapters 83-85, 87, and 89, relating to retirement, unemployment compensation, and insurance coverage; and
(H) sections 1204, 1211-1218, 1221, and 7701-7703, relating to the Merit Systems Protection Board.

Concurring Opinion of Chairman Cabaniss:

      I write separately to also highlight another aspect of the impact of 49 U.S.C. § 40122(g)(2) upon the parties that will need to be examined in future cases. One portion of title 5 not retained by Congress for applicability to these parties is the Back Pay Act, 5 U.S.C. § 5596. Therefore, I question whether the Authority has jurisdiction over any Back Pay Act claims that may be raised by these agency employees. This issue has already arisen in other contexts. See Eaton v. Dep't of Transportation, 2005 MSPB Lexis 5434 (August 18, 2005) (noting that the Merit Systems Protection Board in another matter was "considering whether it can order the FAA to comply with the Back Pay Act, considering the fact that 49 U.S.C. § 40122(g)(2) states that only select sections of title 5 are applicable to the FAA's new personnel system, and the applicable sections do not include the Back Pay Act ñ section 5596"); Todd v. United States, 56 Fed. Cl. 449, 452 (Ct. Cl. 2003) ("Title 49 U.S.C. § 40122(g)(2) excludes § 5596 [the Back Pay Act] from FAA's Personnel Management System.").

      I am aware that 5 U.S.C. §§ 7118(a)(7) and 7122(b) of the Authority's own implementing legislation reflect that backpay may be ordered in certain instances "as provided in section 5596 of this title." However, as 49 U.S.C. § 40122(g)(2) appears to no longer "provide" FAA employees an entitlement to backpay under the Back Pay Act, I still question whether these statutes are sufficient to override 49 U.S.C. § 40122(g)(2).



Footnote # 1 for 61 FLRA No. 160 - Authority's Decision

   A concurring opinion of Chairman Cabaniss is attached to this decision.


Footnote # 2 for 61 FLRA No. 160 - Authority's Decision

   The award left open for later resolution the issue of whether the grievant was entitled to hazard pay for working on unstable structures. Award at 26. After the exception was filed, the Authority's Case Control Office (CCO) issued a show cause order that the Union demonstrate that the exception was not interlocutory. The Union demonstrated that the parties had resolved the issue of unstable structures and CCO notified the parties that the exception is properly before the Authority. See Order to the Parties, March 9, 2006.


Footnote # 3 for 61 FLRA No. 160 - Authority's Decision

   A "[b]ody harness" is defined as "[s]traps which may be secured about the employee in a manner that will distribute the fall arrest forces over at least the thighs, pelvis, waist, chest and shoulders with a means for attaching it to other components of a personal fall arrest system." CE AF 3900.50, §1002(b). A "[l]anyard" is defined as "[a] flexible line of rope, wire rope, or strap that generally has a connector at each end for connecting the body harness to a deceleration device, lifeline or anchorage." CE AF 3900.50, § 1002(v).


Footnote # 4 for 61 FLRA No. 160 - Authority's Decision

   Article 81 of the parties' collective bargaining agreement provides as follows: "Hazardous duty pay differentials shall be paid by the Employer in accordance with 5 C.F.R. Part 550, Subpart I."


Footnote # 5 for 61 FLRA No. 160 - Authority's Decision

   5 C.F.R. Part 550, subpt. I, Appendix A (Height Work) provides as follows: Working on any structure of at least 15 meters (50 feet) above the base level, ground, deck, floor, roof, etc, under open conditions, if the structure is unstable or if scaffolding guards or other suitable protective facilities are not used, or if performed under adverse conditions such as snow, sleet, ice on walking surfaces, darkness, lightning, steady rain, or high wind velocity.


Footnote # 6 for 61 FLRA No. 160 - Authority's Decision

   5 C.F.R. § 550.906(b), provides that hazard pay will be discontinued when safety precautions have reduced the "hazard to a less than significant level of risk, consistent with generally accepted standards . . . such as those published by the Occupational Safety and Health Administration."


Footnote # 7 for 61 FLRA No. 160 - Authority's Decision

   49 U.S.C. § 40122(g)(2) and other relevant sections of the Air Traffic Management System Performance Improvement Act, Pub. L. No. 104-264, 110 Stat. 3213, are set forth in the Appendix to this decision.


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