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

 



[ v02 p958 ]
02:0958(119)AR
The decision of the Authority follows:


 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 REQUIR