Norfolk Naval Shipyard and Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO 

 1 FLRA No. 103
                                            AUGUST 23, 1979
 
 MR. ARNOLD H. ABRONS
 SACKS AND ABRONS
 SUITE 220
 5 KOGER EXECUTIVE CENTER
 NORFOLK, VIRGINIA 23502
 
                 RE:  NORFOLK NAVAL SHIPYARD AND TIDEWATER VIRGINIA 
                      FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO 
                      (COBURN, ARBITRATOR), FLRC No. 78A-165
 
 DEAR MR. ABRONS:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF
 THE ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE.
 
    ACCORDING TO THE ARBITRATOR, THE PARTIES SUBMITTED THE FOLLOWING
 ISSUE TO HIM:
 
    WHEN SHALL THE ENVIRONMENTAL DIFFERENTIAL OF FOUR PERCENTUM BE PAID
 TO BOILERMAKERS IN
 
    ACCORDANCE WITH . . . ARTICLE 13 OF THE NEGOTIATED AGREEMENT BETWEEN
 THE PARTIES(.) /1/
 
    IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR NOTED THAT THE
 CRITERIA FOR PAYMENT OF ENVIRONMENTAL DIFFERENTIAL FOR "DIRTY WORK"
 CONTAINED IN THE AGREEMENT /2/ ARE IDENTICAL WITH THE LANGUAGE OF
 APPENDIX J OF THE FEDERAL PERSONNEL MANUAL (FPM).  HE THEN DETERMINED,
 CONTRARY TO THE POSITION OF THE UNION, THAT THE METHOD OF PAY OF
 ENVIRONMENTAL DIFFERENTIAL FOR "DIRTY WORK" UNDER A PRIOR AGREEMENT WAS
 NOT CONTROLLING PAST PRACTICE SINCE THAT AGREEMENT WAS NOT ADMINISTERED
 IN CONFORMANCE WITH THE FPM.  MOREOVER, HE CONCLUDED THAT DURING
 NEGOTIATION OF THE PRESENT AGREEMENT THE ACTIVITY INDICATED TO THE UNION
 THAT IT INTENDED TO ADMINISTER THE AGREEMENT IN CONFORMANCE WITH THE
 CRITERIA FOR "DIRTY WORK" CONTAINED IN THE FPM AND IN FACT THESE
 CRITERIA WERE INCORPORATED INTO THE AGREEMENT WITH NO PROTEST BY THE
 UNION.  HE CONCLUDED THAT "DIRTY WORK" ENVIRONMENTAL DIFFERENTIAL COULD
 ONLY BE PAID IN THE WORK SITUATIONS SPECIFIED IN THE SUBMISSION
 AGREEMENT WHEN THE CRITERIA SET FORTH IN THE NEGOTIATED AGREEMENT ARE
 MET AND THAT THE UNION COULD CHALLENGE A DENIAL OF ENVIRONMENTAL
 DIFFERENTIAL IN A SPECIFIC SITUATION THROUGH EITHER THE GRIEVANCE
 PROCEDURE OR THROUGH NEGOTIATIONS.
 
    THE ARBITRATOR AWARDED AS FOLLOWS:
 
    THE PAYMENT OF THE ENVIRONMENTAL DIFFERENTIAL OF FOUR PERCENT (4%)
 FOR "DIRTY WORK" TO
 
    BOILERMAKERS FOR WORK PERFORMED IN A WORK SITUATION LISTED IN THE
 SUBMISSION AGREEMENT MAY
 
    ONLY BE MADE WHEN THE CRITERIA SET OUT IN THE CONTRACT ARE MET.
 
    THE UNION FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD.  THE
 AGENCY DID NOT FILE AN OPPOSITION.
 
    IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE AUTHORITY (44 FED.REG. 44741) AND SECTION 7135(B) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215),
 THE RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL, 5 C.F.R.
 PART 2411 (1978), REMAIN OPERATIVE WITH RESPECT TO THE PRESENT CASE
 EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE,
 WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.
 
    UNDER SECTION 2411.32 OF THE RULES AS SO AMENDED, REVIEW OF AN
 ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON THE
 FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE EXCEPTIONS
 TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW,
 APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS SIMILAR TO THOSE
 UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE SUSTAINED BY COURTS IN
 PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
 
    IN ITS FIRST EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR'S
 REFUSAL TO ACKNOWLEDGE THE LEGAL SIGNIFICANCE OF PAST PRACTICE IN A
 COLLECTIVE BARGAINING AGREEMENT AND AS A MATTER OF LAW IS ERRONEOUS IN
 LIGHT OF THE FPM REGULATIONS THAT ALLOW THE NEGOTIATION OF AUTHORIZED
 WORK SITUATIONS.
 
    THE UNION'S FIRST EXCEPTION DOES NOT STATE A GROUND UPON WHICH THE
 AUTHORITY WILL GRANT REVIEW OF AN ARBITRATION AWARD UNDER SECTION
 2411.32.  THAT IS, THE EXCEPTION DOES NOT ASSERT A GROUND UPON WHICH
 REVIEW HAS PREVIOUSLY BEEN GRANTED IN THE FEDERAL SECTOR NOR DOES IT
 APPEAR SIMILAR TO THOSE UPON WHICH CHALLENGES TO LABOR ARBITRATION
 AWARDS ARE SUSTAINED BY COURTS IN PRIVATE SECTOR CASES.  THE UNION CITES
 NO PRIVATE SECTOR CASES IN WHICH COURTS HAVE HELD THIS EXCEPTION TO BE A
 GROUND FOR REVIEW OF ARBITRATION AWARDS NOR HAS OUR RESEARCH DISCLOSED
 ANY SUCH CASES.  ACCORDINGLY, THE UNION'S FIRST EXCEPTION PROVIDES NO
 BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32 OF THE RULES
 OF PROCEDURE.
 
    IN ITS SECOND EXCEPTION, THE UNION CONTENDS THAT THE AWARD VIOLATES
 FPM SUPPLEMENT 532.1.  IN SUPPORT OF THIS EXCEPTION THE UNION ASSERTS
 THAT THE ARBITRATOR ERRONEOUSLY CONSTRUED AND APPLIED THE REQUIREMENTS
 AND CRITERIA OF PROVISIONS OF SUBCHAPTER S8 OF FPM SUPPLEMENT 532-1 /3/
 AND "PRIOR RELEVANT DECISIONS OF THE FEDERAL LABOR RELATIONS COUNCIL,"
 REGARDING THE DELEGATION TO LOCAL DETERMINATION SPECIFIC SITUATIONS FOR
 WHICH ENVIRONMENTAL DIFFERENTIAL IS PAYABLE.
 
    THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION
 AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED
 IN THE PETITION, THAT AN AWARD VIOLATES AN APPROPRIATE REGULATION.
 HOWEVER, IN THIS CASE THE UNION'S PETITION DOES NOT CONTAIN A
 DESCRIPTION OF FACTS AND CIRCUMSTANCES TO SUPPORT THIS EXCEPTION.  THUS,
 THE UNION HAS NOT ESTABLISHED A NEXUS BETWEEN THE PROVISIONS OF FPM
 SUPPLEMENT 532-1, SUBCHAPTER 8, AND THE ARBITRATOR'S AWARD IN WHICH HE
 MERELY DIRECTS THAT "PAYMENT OF THE ENVIRONMENTAL DIFFERENTIAL . . . FOR
 'DIRTY WORK' . . . MAY ONLY BE MADE WHEN THE CRITERIA SET OUT IN THE
 CONTRACT ARE MET." FURTHER, IT IS NOTED THAT IN THE OPINION ACCOMPANYING
 HIS AWARD THE ARBITRATOR SPECIFICALLY POINTED OUT, APPARENTLY IN
 REFERENCE TO THE PROVISIONS OF FPM SUPPLEMENT 532-1, SUBCHAPTER S8, THAT
 IN PARTICULAR WORK SITUATIONS THE UNION COULD CHALLENGE AGENCY DENIAL OF
 ENVIRONMENTAL DIFFERENTIAL PAY THROUGH THE GRIEVANCE PROCEDURE, BUT THAT
 "THE ISSUE STIPULATED AND PRESENTED BY THE PARTIES IN THIS CASE INVOLVES
 ONLY THE GENERAL QUESTION OF WHETHER OR NOT THE CRITERIA OF ARTICLE 13
 ARE CONTROLLING AND MUST BE APPLIED IN THE WORK SITUATIONS LISTED IN THE
 SUBMISSION AGREEMENT." THEREFORE, THIS EXCEPTION PROVIDES NO BASIS FOR
 ACCEPTANCE OF THE UNION'S PETITION UNDER THE RULES OF PROCEDURE.
 
    IN ITS THIRD EXCEPTION, THE UNION ALLEGES THAT THE ARBITRATOR
 EXCEEDED HIS AUTHORITY.  IN THIS REGARD, THE UNION ASSERTS THAT THE
 ARBITRATOR "USURP(ED) THE PREROGATIVES OF THE BARGAINING PROCESS" AND
 "FAILED TO REQUIRE (THE ACTIVITY) TO HONOR ITS COLLECTIVE BARGAINING
 AGREEMENT."
 
    AS IS WELL ESTABLISHED UNDER THE ORDER, A PETITION FOR REVIEW OF AN
 ARBITRATION AWARD WILL BE GRANTED WHERE IT APPEARS, BASED UPON THE FACTS
 AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE ARBITRATOR
 EXCEEDED HIS OR HER AUTHORITY.  E.G., CHARLESTON NAVAL SHIPYARD AND
 FEDERAL EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON (WILLIAMS,
 ARBITRATOR), 3 FLRC 415 (FLRC 75A-7 (JUNE 26, 1975), REPORT NO. 76).  IN
 THE INSTANT CASE, HOWEVER, THE UNION'S PETITION DOES NOT DESCRIBE FACTS
 AND CIRCUMSTANCES TO SUPPORT ITS EXCEPTION THAT THE ARBITRATOR EXCEEDED
 HIS AUTHORITY.  THUS THE UNION DOES NOT SHOW HOW THE ARBITRATOR IN ANY
 MANNER EXCEEDED HIS AUTHORITY BY DIRECTING, IN ANSWER TO THE ISSUE
 SUBMITTED TO HIM, THAT PAYMENT FOR "DIRTY WORK" BE MADE IN CONFORMANCE
 WITH THE CRITERIA FOR SUCH PAYMENT SET OUT IN THE PARTIES' AGREEMENT.
 THEREFORE, THE UNION'S THIRD EXCEPTION PROVIDES NO BASIS FOR REVIEW
 UNDER SECTION 2411.32 OF THE RULES OF PROCEDURE.
 
    IN ITS FOURTH EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR ERRED
 IN NOT FINDING A VIOLATION OF SECTION 19()(1) AND (6) OF THE ORDER
 BECAUSE OF THE UNILATERAL RESTRAINT AND COERCIVE EFFECT ON EMPLOYEES OF
 THE AGENCY'S ACTIONS AND ITS REFUSAL TO BARGAIN IN GOOD FAITH.  IT IS
 WELL ESTABLISHED UNDER THE ORDER THAT A CONTENTION THAT AN ARBITRATOR
 HAS FAILED TO DECIDE, DURING THE COURSE OF A GRIEVANCE ARBITRATION
 PROCEEDING, WHETHER AN UNFAIR LABOR PRACTICE HAS BEEN COMMITTED UNDER
 SECTION 19 OF THE ORDER, DOES NOT PRESENT A GROUND UPON WHICH A PETITION
 FOR REVIEW OF AN ARBITRATION AWARD WILL BE ACCEPTED.  E.G., THE NATIONAL
 LABOR RELATIONS BOARD UNION (NLRBU) AND THE NATIONAL LABOR RELATIONS
 BOARD (NLRB) (SINICROPI, ARBITRATOR), 5 FLRC 764 (FLRC 77A-23 (AUG. 25,
 1977), REPORT NO. 135).  CONSEQUENTLY, THE UNION'S FOURTH EXCEPTION
 PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32
 OF THE RULES OF PROCEDURE.
 
    THE UNION'S FIFTH EXCEPTION ASSERTS IN EFFECT THAT THE AWARD IS
 CONTRARY TO THE EVIDENCE.  IN THIS REGARD, THE UNION CONTENDS THAT,
 CONTRARY TO THE ARBITRATOR'S FINDINGS, THE UNION OPPOSED ANY CHANGE IN
 THE EXISTING AGREEMENT LANGUAGE OR IN ITS APPLICATION.  IT IS WELL
 ESTABLISHED UNDER THE ORDER THAT AN ARBITRATOR'S FINDINGS OF FACT ARE
 NOT TO BE QUESTIONED ON APPEAL.  AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2498 AND NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,
 JOHN F. KENNEDY SPACE CENTER (BODE, ARBITRATOR), 5 FLRC 349 (FLRC 76A-70
 (MAY 18, 1977), REPORT NO. 126).  THEREFORE, THE UNION'S FIFTH EXCEPTION
 PROVIDES NO BASIS FOR REVIEW UNDER THE RULES OF PROCEDURE.
 
    ACCORDINGLY, THE UNION'S PETITION FOR REVIEW OF THE ARBITRATOR'S
 AWARD IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF SECTION
 2411.32 OF THE RULES FOR ACCEPTANCE BY THE AUTHORITY OF A PETITION FOR
 REVIEW OF AN ARBITRATOR'S AWARD.  /4/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  A. JONES
 
    NORFOLK NAVAL SHIPYARD
 
    /1/ THE SUBMISSION THEN SET FORTH CERTAIN SPECIFIC WORK SITUATIONS
 WHICH ARE APPARENTLY LISTED IN ARTICLE 13 OF THE PARTIES' NEGOTIATED
 AGREEMENT.
 
    /2/ ACCORDING TO THE ARBITRATOR THE RELEVANT AGREEMENT PROVISION,
 ARTICLE 13, PROVIDES, PERTINENTLY:
 
    SECTION 1.  THE EMPLOYER SHALL MAINTAIN THE OBJECTIVE OF ELIMINATING
 OR REDUCING TO THE
 
    LOWEST POSSIBLE LEVEL ALL HAZARDS, PHYSICAL HARDSHIPS, AND WORKING
 CONDITIONS OF AN UNUSUAL
 
    NATURE.  WHEN SUCH ACTION DOES NOT OVERCOME THE UNUSUAL NATURE OF THE
 HAZARD, PHYSICAL
 
    HARDSHIP OR WORKING CONDITION, AN ENVIRONMENTAL DIFFERENTIAL SHALL BE
 PAID IN ACCORDANCE WITH
 
    THE PROVISIONS OF SECTIONS 2 AND 4 OF THIS ARTICLE.
 
    SECTION 2.  WHERE THE EMPLOYER DETERMINES THAT A WAGE GRADE EMPLOYEE
 IS ASSIGNED TO AND
 
    PERFORMS WITHIN ONE OF THE AUTHORIZED WORK SITUATIONS DESCRIBED IN
 THIS SECTION THE
 
    APPROPRIATE ENVIRONMENTAL PAY DIFFERENTIAL WILL BE PAID.
 
    PART I PAYMENT ON BASIS OF ACTUAL EXPOSURE
 
    B.  DIRTY WORK DIFFERENTIAL 4%
 
    PERFORMING WORK WHICH SUBJECTS THE EMPLOYEE TO SOIL OF BODY OR
 CLOTHING:
 
    (1) BEYOND THAT NORMALLY TO BE EXPECTED IN PERFORMING DUTIES OF THE
 CLASSIFICATION;  AND
 
    (2) WHERE THE CONDITION IS NOT ADEQUATELY ALLEVIATED BY THE
 MECHANICAL EQUIPMENT OR
 
    PROTECTIVE DEVICES BEING USED, OR WHICH ARE READILY AVAILABLE, OR
 WHEN SUCH DEVICES ARE NOT
 
    FEASIBLE FOR USE DUE TO HEALTH CONSIDERATIONS (EXCESSIVE TEMPERATURE,
 ASTHMATIC CONDITIONS,
 
    ETC.);  OR
 
    (3) WHEN THE USE OF MECHANICAL EQUIPMENT, OR PROTECTIVE DEVICES, OR
 PROTECTIVE CLOTHING
 
    RESULTS IN AN UNUSUAL DEGREE OF DISCOMFORT.  WHEN CONDITIONS ARE SUCH
 THAT PROTECTIVE CLOTHING
 
    DOES NOT PREVENT SOIL OF THE BODY AND PERSONAL CLOTHING, DIRTY PAY IS
 CONSIDERED
 
    APPROPRIATE.  WHEN THE CONDITIONS SET FORTH ABOVE ARE SATISFIED THE
 WORK LISTED BELOW SHALL BE
 
    PAID.
 
    CONFINED SPACE IS DEFINED AS AN AREA WITH RESTRICTED OR DIFFICULT
 ACCESS, BOUND BY SOLID WALLS, PARTITIONS OR BARRIERS ON FOUR OR MORE
 SIDES SUCH THAT THE AIR QUALITY IS SIGNIFICANTLY DEGRADED BY EXCESSIVE
 DUST, OR FUMES DUE TO THE APPLICATION OR REMOVAL OF SURFACE COVERING
 SUCH AS PAINT, LIME, CEMENT WASH, CHROME ORE, OR BITUMINOUS COMPOSITION.
 
    CLOSE PROXIMITY IS DEFINED AS WORKING WITHIN A MAXIMUM RADIUS OF 15
 FEET OF AN ASSIGNED WORK OPERATION WHICH CAUSES EXCESSIVE DUST OR DIRT
 AND SUBJECTS THE EMPLOYEE TO SOIL OF BODY AND/OR CLOTHING BEYOND THAT
 NORMALLY TO BE EXPECTED IN PERFORMING THE DUTIES OF HIS TRADE.
 
    /3/ FPM SUPPLEMENT 532-1 PROVIDES, PERTINENTLY:
 
    S8-7.  ENVIRONMENTAL DIFFERENTIALS PAID FOR EXPOSURE TO VARIOUS
 DEGREES OF HAZARDS,
 
    PHYSICAL HARDSHIPS, AND WORKING CONDITIONS OF AN UNUSUALLY SEVERE
 NATURE
 
   .          .          .          .
 
 
    D.  AUTHORIZATION FOR PAY FOR ENVIRONMENTAL DIFFERENTIAL.
 
   .          .          .          .
 
 
    SOME OF THE ENVIRONMENTAL DIFFERENCES LISTED IN APPENDIX J ARE
 PAYABLE WHENEVER THE CRITERIA
 
    IN THE CATEGORY DEFINITION ARE MET.  OTHERS ARE PAYABLE ONLY IF
 PROTECTIVE FACILITIES,
 
    DEVICES, OR CLOTHING HAVE NOT PRACTICALLY ELIMINATED THE HAZARD,
 PHYSICAL HARDSHIP, OR WORKING
 
    CONDITION OF AN UNUSUALLY SEVERE NATURE.  CONSISTENT WITH SECTION
 S8-7G(3) BELOW,
 
    DETERMINATIONS IN THIS REGARD MAY BE MADE THROUGH NEGOTIATIONS AT THE
 LOCAL LEVEL.
 
   .          .          .          .
 
 
    G(3) NOTHING IN THIS SECTION SHALL PRECLUDE NEGOTIATIONS THROUGH THE
 COLLECTIVE BARGAINING
 
    PROCESS FOR:
 
    (A) DETERMINING THE COVERAGE OF ADDITIONAL LOCAL SITUATIONS UNDER
 APPROPRIATE CATEGORIES IN
 
    APPENDIX J AND APPLICATION OF APPENDIX J CATEGORIES TO LOCAL WORK
 SITUATIONS.  FOR EXAMPLE,
 
    LOCAL NEGOTIATIONS MAY BE USED TO DETERMINE WHETHER A LOCAL WORK
 SITUATION IS COVERED UNDER AN
 
    APPROVED CATEGORY, EVEN THOUGH THE WORK SITUATION MAY NOT BE
 DESCRIBED UNDER A SPECIFIC
 
    ILLUSTRATIVE EXAMPLE.
 
    /4/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.