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58 FLRA No. 13
AFGE, Local 1617 and U.S. Dept. of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, San Antonio, Texas(Smith, Arbitrator) 0-AR- 3469 (Decided September 11, 2002)
The Union filed a grievance over the Agency's failure to pay unit employees environmental differential pay (EDP). The Arbitrator sustained the grievance and awarded employees backpay. The Authority found the award deficient and set it aside. The Authority noted that this case raised a novel situation where an agency had prescribed the standard for entitlement to EDP by an agency regulation; an arbitrator did not apply the standard prescribed by the regulation in resolving a grievance over EDP; and the agency filed an exception to that award alleging that the award was deficient because it conflicted with the regulation.
The Authority found that AFLC/AFMC Supplements sufficiently linked exposure at the OSHA PEL to the payment of EDP. The Authority also found that the use of the OSHA PEL was appropriate as a standard for entitlement to EDP for exposure to asbestos, and that the AFLC/AFMC Supplements did not conflict with the collective bargaining agreement.
Notwithstanding all of the above, the Authority concluded that the award was deficient because the Arbitrator's applied a different standard other than the governing standard which was the standard prescribed in the Supplements. The Authority noted that under § 7122(a)(1) of the Statute, an arbitration award will be found deficient if it is contrary to any law, rule, or regulation. For purposes of § 7122(a)(1), the Authority has defined "rule or regulation" to include both Government-wide rules and regulations and governing agency rules and regulations.