Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma (Activity) and American Federation of Government Employees, Local 916, AFL-CIO (Union)  

 2 FLRA No. 119
 
 OKLAHOMA CITY AIR LOGISTICS CENTER,
 TINKER AIR FORCE BASE, OKLAHOMA
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 916, AFL-CIO
 Union
 
                                            FLRC No. 78A-188
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON THE AGENCY'S PETITION FOR
 REVIEW OF THE AWARD OF ARBITRATOR PRESTON J. MOORE FILED WITH THE
 FEDERAL LABOR RELATIONS COUNCIL.  /1/
 
    ACCORDING TO THE ARBITRATOR, THE GRIEVANCE IN THIS CASE AROSE WHEN
 THE ACTIVITY TERMINATED THE PAYMENT OF AN ENVIRONMENTAL DIFFERENTIAL TO
 ITS EGRESS MECHANICS, WHO ARE WAGE SYSTEM EMPLOYEES, AND TO ITS EGRESS
 INSPECTORS, WHO ARE GENERAL SCHEDULE EMPLOYEES. THE UNION FILED A
 GRIEVANCE THAT WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR DETERMINED THAT PRIOR TO THE ACTIVITY'S ACTION, BOTH
 THE MECHANICS AND THE INSPECTORS WERE BEING PAID DIFFERENTIAL PAY.  HE
 ALSO DETERMINED THAT NO PROCEDURES OR SAFETY DEVICES HAD BEEN
 ESTABLISHED WHICH HAD "PRACTICALLY ELIMINATED" THE POTENTIAL FOR HAZARD
 AND WHICH WOULD THEREBY PRECLUDE PAYMENT OF A DIFFERENTIAL. HE FOUND
 THAT THERE WAS "EVER PRESENT" A POTENTIAL FOR PERSONAL INJURY AND LOSS
 OF LIFE.  THE ARBITRATOR THEREFORE FOUND THAT BOTH THE MECHANICS AND THE
 INSPECTORS WERE ENTITLED TO A 4 PERCENT ENVIRONMENTAL PAY DIFFERENTIAL.
 IN THIS RESPECT THE ARBITRATOR REJECTED THE ACTIVITY'S CONTENTION THAT A
 FINDING ENTITLING THE INSPECTORS, WHO ARE GENERAL SCHEDULE EMPLOYEES, TO
 A DIFFERENTIAL REQUIRED PAYMENT TO THEM OF A 25 PERCENT HAZARD PAY
 DIFFERENTIAL.
 
    AS PREVIOUSLY STATED, THE AGENCY HAD FILED A PETITION FOR REVIEW OF
 THE ARBITRATOR'S AWARD WITH THE FEDERAL LABOR RELATIONS COUNCIL. ON
 DECEMBER 31, 1978, THIS CASE WAS PENDING BEFORE THE COUNCIL. 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 THIS CASE EXCEPT THAT THE WORD
 "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE, WHEREVER THE WORD "COUNCIL"
 APPEARS IN SUCH RULES.
 
    UNDER SECTION 2411.32 OF THESE RULES AS SO AMENDED, THE AUTHORITY
 ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE
 AGENCY'S EXCEPTION THAT THE AWARD VIOLATES THE FEDERAL PERSONNEL MANUAL.
  THE AGENCY'S REQUEST FOR A STAY OF THE AWARD WAS ALSO GRANTED.  SINCE
 THE CIVIL SERVICE COMMISSION WAS RESPONSIBLE FOR PRESCRIBING REGULATIONS
 CONCERNING THE MATTERS IN THIS CASE AND SINCE UNDER SECTION 902(B) THE
 CIVIL SERVICE REFORM ACT OF 1978 (92 STAT. 1224) THIS APPEAL MUST BE
 RESOLVED AS IF THE CIVIL SERVICE REFORM ACT HAD NOT BEEN ENACTED, THE
 AUTHORITY REQUESTED FROM THE OFFICE OF PERSONNEL MANAGEMENT (OPM) (THE
 SUCCESSOR AGENCY TO THE CIVIL SERVICE COMMISSION WITH RESPECT TO THESE
 MATTERS) AN INTERPRETATION OF RELEVANT CIVIL SERVICE REGULATIONS AS THEY
 PERTAIN TO THE ARBITRATOR'S AWARD.
 
    THE OFFICE OF PERSONNEL MANAGEMENT REPLIED IN RELEVANT PART AS
 FOLLOWS:
 
    IN THIS CASE, THE UNION ALLEGED BEFORE THE ARBITRATOR THAT WAGE GRADE
 EGRESS MECHANICS ARE
 
    ENTITLED TO ENVIRONMENTAL DIFFERENTIAL PAY AS PRESCRIBED IN THE
 FEDERAL PERSONNEL MANUAL, FOR
 
    WORK PERFORMED ON EGRESS SYSTEMS IN THE A-7, F-105 AND B-52 AIRCRAFT
 AND, SIMILARLY, THAT
 
    GENERAL SCHEDULE EGRESS INSPECTORS ARE ENTITLED TO HAZARD DUTY PAY,
 ALSO PRESCRIBED IN THE
 
    SAME TYPE OF AIRCRAFT.  THE AGENCY CONTENDED, AMONG OTHER THINGS,
 THAT PROTECTIVE DEVICES
 
    AND/OR SAFETY MEASURES HAVE "PRACTICALLY ELIMINATED" THE POTENTIAL
 FOR HAZARD, THEREBY
 
    PRECLUDING THE PAYMENT OF A DIFFERENTIAL.  THE ARBITRATOR, IN FINDING
 FOR THE UNION, NOTED
 
    THAT PRIOR TO DECEMBER 5, 1977, THE MECHANICS AND INSPECTORS BOTH
 WERE PAID A DIFFERENTIAL FOR
 
    THEIR EXPOSURE TO A HAZARD (THE AIR FORCE STATES THAT ONLY THE
 MECHANICS RECEIVED A
 
    DIFFERENTIAL PRIOR TO 1977) AND THAT, "NO PROCEDURES OR SAFETY
 DEVICES HAVE BEEN ESTABLISHED
 
    WHICH HAVE PRACTICALLY ELIMINATED POTENTIAL FOR PERSONAL INJURY
 AND/OR LOSS OF
 
    LIFE." CONSEQUENTLY HE FOUND THAT THE "MECHANICS AND INSPECTORS ARE
 ENTITLED TO A FOUR PERCENT
 
    ENVIRONMENTAL DIFFERENTIAL PAY." WE HAVE BEEN ASKED WHETHER THE
 ARBITRATOR'S AWARD VIOLATES
 
    APPLICABLE REGULATIONS AND THE FEDERAL PERSONNEL MANUAL ONLY INSOFAR
 AS IT PERTAINS TO THE
 
    GENERAL SCHEDULE EGRESS INSPECTORS.
 
    INITIALLY IT SHOULD BE NOTED THAT A DISTINCTION EXISTS BETWEEN
 "HAZARD PAY" FOR GENERAL
 
    SCHEDULE EMPLOYEES AND "ENVIRONMENTAL PAY" FOR FEDERAL WAGE SYSTEM
 EMPLOYEES.  THERE ARE TWO
 
    SEPARATE AND DISTINCT SECTIONS OF THE FEDERAL PERSONNEL MANUAL WHICH
 CONTROL:  FPM SUPPLEMENT
 
    532-1 FOR FEDERAL WAGE SYSTEM EMPLOYEES AND FPM SUPPLEMENT 990-2 FOR
 GENERAL SCHEDULE
 
    EMPLOYEES.
 
    THERE IS NO CLEAR EVIDENCE IN THE AWARD AS TO WHETHER THE ARBITRATOR
 MADE A FACTUAL
 
    DISTINCTION IN HIS OWN MIND THAT THE MECHANICS AND INSPECTORS WERE
 ENTITLED TO THE
 
    "ENVIRONMENTAL PAY" PURSUANT TO THESE RESPECTIVE SECTIONS OF THE FPM
 OR WHETHER HE AWARDED
 
    THE ENTITLEMENTS RELYING EXCLUSIVELY ON FPM SUPPLEMENT 532-1.
 NONETHELESS, THE ARBITRATOR DID
 
    FIND THAT BOTH THE EGRESS MECHANICS AND EGRESS INSPECTORS ARE EXPOSED
 TO A HAZARD IN THE
 
    PERFORMANCE OF THEIR RESPECTIVE DUTIES;  THAT NO PROCEDURES OR SAFETY
 DEVICES HAVE BEEN
 
    ESTABLISHED WHICH HAVE "PRACTICALLY ELIMINATED" THE HAZARD;  THAT THE
 EXPOSURE TO THIS HAZARD
 
    WARRANTS THE PAYMENT OF A DIFFERENTIAL;  AND, FINALLY, THAT THE
 DIFFERENTIAL SHOULD BE FOUR
 
    PERCENT FOR BOTH THE EGRESS MECHANICS AND THE EGRESS INSPECTORS.
 
    THERE ARE IMPORTANT DIFFERENCES TO BE TAKEN INTO ACCOUNT IN THE
 AWARDING OF "HAZARD
 
    PAY" PURSUANT TO FPM SUPPLEMENT 990-2 AND THE AWARDING OF
 "ENVIRONMENTAL PAY" PURSUANT TO FPM
 
    SUPPLEMENT 532-1. SPECIFICALLY, THE AUTHORIZATIONS CITED IN THE
 RESPECTIVE APPENDICES
 
    (APPENDIX J TO FPM SUPPLEMENT 532-1 AND APPENDICES A AND E TO FPM
 SUPPLEMENT 990-2, BOOK 550)
 
    ARE NOT THE SAME AND THE AMOUNT OF THE DIFFERENTIALS ARE DIFFERENT IN
 EACH INSTANCE.
 
    UNDER THE CIRCUMSTANCES OF THE CASE BEFORE US WE MUST EXAMINE THE
 APPROPRIATENESS OF THE
 
    ARBITRATOR'S AWARD OF "HAZARD PAY" TO THE GENERAL SCHEDULE INSPECTORS
 IN RELATION TO TITLE 5,
 
    UNITED STATES CODE AND THE PROVISIONS OF FPM 990-2, BOOK 550,
 SUBCHAPTER S9-- PAY FOR
 
    IRREGULAR OR INTERMITTENT DUTY INVOLVING PHYSICAL HARDSHIP OR HAZARD.
 
    THERE ARE THREE STATUTORY REQUIREMENTS WHICH MUST BE MET BEFORE A
 DIFFERENTIAL CAN BE
 
    AUTHORIZED FOR A GENERAL SCHEDULE EMPLOYEE:
 
    (1) THE HAZARD OR PHYSICAL HARDSHIP MUST BE UNUSUAL, AS SET FORTH IN
 APPENDIX A AND
 
    EXPLAINED IN APPENDIX E OF FPM SUPPLEMENT 990-2, BOOK 550;
 
    (2) IT MUST BE AN IRREGULAR OR INTERMITTENT DUTY;  AND
 
    (3) THE HAZARD OR PHYSICAL HARDSHIP MUST NOT HAVE BEEN CONSIDERED IN
 THE CLASSIFICATION OF
 
    THE POSITION.
 
    IN REGARD TO THE FIRST REQUIREMENT, THE EGRESS INSPECTION WORK MUST
 BE EXAMINED AGAINST THE
 
    ESTABLISHED CRITERION IN APPENDIX A AND THE EXPLANATORY MATERIAL IN
 APPENDIX E FOR "WORK WITH
 
    OR IN CLOSE PROXIMITY TO EXPLOSIVE OR INCENDIARY MATERIAL WHICH IS
 UNSTABLE AND HIGHLY
 
    SENSITIVE." IN EVALUATING THE APPROPRIATENESS OF THE APPLICATION OF
 THIS APPROVED HAZARD
 
    CATEGORY TO THE EGRESS INSPECTION WORK, IT IS IMPORTANT TO CONSIDER
 TWO SEPARATE, BUT RELATED,
 
    POINTS.  THE FIRST CONCERNS THE ACTUAL PHYSICAL PROPERTIES OF THE
 EXPLOSIVE AND, SPECIFICALLY,
 
    IS THE EXPLOSIVE UNSTABLE AND HIGHLY SENSITIVE.  SECONDLY, DOES THE
 WORK SUBJECT THE MATERIAL
 
    TO THOSE CIRCUMSTANCES WHICH ARE LIKELY TO PRODUCE AN EXPLOSION.  IF
 IT CAN BE DETERMINED THAT
 
    THE EXPLOSIVES CONTAINED IN THE EGRESS SYSTEM ARE UNSTABLE AND HIGHLY
 SENSITIVE AND/OR THE
 
    WORK PERFORMED WITH THE EXPLOSIVE (EVEN IF NORMALLY STABLE AND
 NON-SENSITIVE) ALTERS THE
 
    EXPLOSIVE TO SUCH AN EXTENT THAT IT BECOMES UNSTABLE AND HIGHLY
 SENSITIVE, THEN THE WORK MEETS
 
    THE UNUSUALLY HAZARDOUS DESCRIPTION OF OUR REGULATIONS.  ALTHOUGH THE
 CASE FILE SHOWS THAT THE
 
    ARBITRATOR DETERMINED THAT THE EGRESS INSPECTION WORK WAS HAZARDOUS,
 IT IS NOT CLEAR WHETHER
 
    OR NOT THE THE UNUSUALLY HAZARDOUS CRITERIA ESTABLISHED IN FPM
 SUPPLEMENT 990-2, BOOK 550,
 
    APPENDICES A AND E WERE APPLIED IN ARRIVING AT THIS DECISION.
 
    IN REGARD TO THE SECOND REQUIREMENT, THERE IS NO INDICATION WITHIN
 THE CASE FILE TO REFLECT
 
    IF THIS REQUIREMENT OF THE LAW AND OUR REGULATIONS WAS EXAMINED IN
 THE ARBITRATOR'S
 
    REVIEW.  THE FILE DOES STATE THAT 200-300 SEATS ARE ARMED AND
 DE-ARMED ANNUALLY ON THE F-105
 
    AIRCRAFT, BUT NO MENTION IS MADE OF THE NUMBER ON THE A-7 AND B-52
 AIRCRAFT.  THE FREQUENCY
 
    AND DURATION OF SUCH ASSIGNMENTS ARE ESSENTIAL TO A DETERMINATION
 REGARDING WHETHER THIS
 
    REQUIREMENT HAS BEEN MET.
 
    THE CASE FILE IS ALSO SILENT WITH RESPECT TO WHETHER OR NOT THE
 HAZARD OR PHYSICAL HARDSHIP
 
    WAS CONSIDERED IN THE CLASSIFICATION OF THE POSITION.  THIS MAY BE
 DETERMINED BY THE
 
    EXAMINATION OF COPIES OF THE EMPLOYEE'S OFFICIAL POSITION
 DESCRIPTION, AND POSITION EVALUATION
 
    REPORTS.  IT SHOULD BE NOTED, HOWEVER, THAT THE CONSIDERATION OF
 THESE DUTIES IN THE
 
    CLASSIFICATION OF THE POSITION MAY OR MAY NOT AFFECT THE GRADE OF THE
 POSITION DEPENDING UPON
 
    THE LEVEL OF SKILLS, KNOWLEDGES AND ABILITIES NEEDED TO DEAL WITH THE
 HAZARD IN RELATION TO
 
    THE SKILLS, KNOWLEDGES AND ABILITIES REQUIRED BY THE OTHER DUTIES OF
 THE POSITION.
 
    IF ALL THREE OF THE ABOVE REQUIREMENTS ARE MET, OPM REGULATIONS
 SPECIFY THAT THE EMPLOYEE
 
    MUST BE PAID A 25 PERCENT DIFFERENTIAL, NOT A PORTION THEREOF.
 
    IN SUMMARY, CIVIL SERVICE LAW, REGULATION, AND THE FEDERAL PERSONNEL
 MANUAL AUTHORIZE THE
 
    PAYMENT OF A HAZARD DIFFERENTIAL, WHERE THE EXPOSURE TO THE HAZARD
 IS:  (1) UNUSUAL, IN
 
    ACCORDANCE WITH PRESCRIBED SCHEDULES ESTABLISHED BY THE OFFICE OF
 PERSONNEL MANAGEMENT;  (2)
 
    PERFORMED ON AN IRREGULAR OR INTERMITTENT BASIS;  AND (3) NOT TAKEN
 INTO ACCOUNT IN THE
 
    CLASSIFICATION OF THE POSITION.  THE ARBITRATOR'S DECISION DOES NOT
 SPECIFICALLY ADDRESS THESE
 
    MATTERS NOR DOES THE ACTIVITY'S APPEAL RAISE THEM AS REASONS FOR
 REJECTING THE ARBITRATOR'S
 
    AWARD.  IN OUR VIEW, THE QUESTION OF THE AWARD'S COMPLIANCE WITH
 APPLICABLE LAWS, REGULATIONS
 
    AND THE FEDERAL PERSONNEL MANUAL CANNOT BE RESOLVED UNTIL A
 DETERMINATION IS MADE THAT IT
 
    COMPORTS WITH THE REQUIREMENTS CITED ABOVE.  THE FACT THAT THE
 ARBITRATOR REFERRED TO AN
 
    IMPROPER SECTION OF THE FPM IS NOT VIOLATIVE, SO LONG AS THE FPM
 CRITERIA DISCUSSED ABOVE ARE
 
    MET.
 
    BASED ON THIS INTERPRETATION OF THE OFFICE OF PERSONNEL MANAGEMENT
 AND IN ACCORDANCE WITH SECTION 2411.37(A) OF THE AMENDED RULES, /2/ THE
 ARBITRATOR'S AWARD MUST BE REMANDED TO THE PARTIES TO HAVE THEM OBTAIN A
 CLARIFICATION AND INTERPRETATION OF THE AWARD FROM THE ARBITRATOR.  THE
 RESUBMISSION IS FOR THE PURPOSE OF HAVING THE ARBITRATOR, IN VIEW OF THE
 OPM RESPONSE AND THE SPECIFIC REQUIREMENTS FOR THE PAYMENT OF A HAZARD
 DIFFERENTIAL SET FORTH THEREIN, CLARIFY AND INTERPRET HIS AWARD WITH
 RESPECT TO WHETHER IN THE WORK SITUATION OF THE EGRESS INSPECTORS THAT
 WAS PRESENTED TO HIM, THE REQUIREMENTS FOR THE PAYMENT OF A HAZARD
 DIFFERENTIAL WERE MET. AS NOTED IN THE OPM RESPONSE, IF THE REQUIREMENTS
 WERE MET, OPM REGULATIONS SPECIFY THAT THE EMPLOYEES MUST BE PAID A 25
 PERCENT DIFFERENTIAL, NOT A PORTION THEREOF.
 
    ACCORDINGLY, THE ARBITRATOR'S AWARD IS REMANDED TO THE PARTIES AND
 THE STAY OF THE AWARD PREVIOUSLY GRANTED BY THE AUTHORITY IS VACATED.
 /3/
 
    ISSUED, WASHINGTON, D.C., MARCH 21, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ THE FUNCTIONS OF THE FEDERAL LABOR RELATIONS COUNCIL, IN MATTERS
 SUCH AS HERE INVOLVED, WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION
 304 OF REORGANIZATION PLAN NO. 2 OF 1978 (43 FED. REG. 36040), WHICH
 TRANSFER OF FUNCTIONS IS IMPLEMENTED BY SECTION 2400.5 OF THE
 AUTHORITY'S TRANSITION RULES AND REGULATIONS (44 FED.REG. 44741).  THE
 AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE PERFORMANCE OF THESE
 FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. SEC. 7135(B)).
 
    /2/ SECTION 2411.37(A) OF THE AMENDED RULES PROVIDES:
 
    (A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
 OR IN PART, OR REMANDED
 
    ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
 REGULATION, OR THE ORDER,
 
    OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
 SECTION LABOR-MANAGEMENT
 
    RELATIONS.
 
    /3/ 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, AS 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.
 
            FOR FURTHER INFORMATION, TELEPHONE (202) 653-7078.