National Federation of Federal Employees, Local 862 (Union) and Tooele Army Depot, Tooele, Utah (Activity) 

 3 FLRA No. 67
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 862
 (Union)
 
 and
 
 TOOELE ARMY DEPOT, TOOELE, UTAH
 (Activity)
 
                                            Case No. 0-NG-44
 
                     DECISION ON NEGOTIABILITY APPEAL
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).
 
    DURING CONTRACT NEGOTIATIONS, THE UNION SUBMITTED THE FOLLOWING
 PROPOSAL WHICH WOULD AUTHORIZE HAZARD PAY DIFFERENTIAL TO CERTAIN
 CATEGORIES OF GENERAL SCHEDULE EMPLOYEES:
 
                              UNION PROPOSAL
 
    SECTION 2:  HAZARDOUS DUTY PAY
 
    A.  IT IS EXPRESSLY RECOGNIZED THAT WHILE THE CRITERIA ESTABLISHED BY
 LAW FOR HAZARD PAY
 
    DETERMINATION (FPM AND CPR) IS NOT A PROPER SUBJECT FOR NEGOTIATION,
 THE APPLICATION OF THAT
 
    CRITERIA TO SPECIFIC FACTUAL SITUATIONS IS A MATTER OF MUTUAL
 CONCERN.  IT IS, THEREFORE,
 
    AGREED AND UNDERSTOOD THAT ENVIRONMENTAL DIFFERENTIAL PAY IS
 AUTHORIZED FOR AND LIMITED TO THE
 
    BELOW LISTED OCCUPATIONAL TASKS WHEN PERFORMANCE IS APPROPRIATELY
 CERTIFIED BY SUPERVISORY
 
    PERSONNEL:  (TABLE OMITTED)
 
    THE AGENCY DECLARED THE PROPOSAL NONNEGOTIABLE ON THE BASIS THAT IT
 WOULD CONFLICT WITH 5 U.S.C. 5545(D), /1/ WHICH AUTHORIZES THE OFFICE OF
 PERSONNEL MANAGEMENT (OPM) TO ESTABLISH A SCHEDULE OF PAY DIFFERENTIALS
 FOR CERTAIN CATEGORIES OF EMPLOYEES PERFORMING HAZARDOUS DUTIES ON AN
 IRREGULAR OR INTERMITTENT BASIS.  IN THIS REGARD, THE AGENCY TOOK THE
 POSITION THAT THE HAZARDOUS DUTIES SPECIFIED IN THE UNION'S PROPOSAL
 WERE REGULAR AND RECURRING AND HAD ALREADY BEEN FACTORED INTO THE
 EVALUATION AND GRADE DETERMINATION OF THE GUARD AND FIREFIGHTER
 POSITIONS IN QUESTION.  THE AGENCY ALSO ARGUED THAT NEGOTIATIONS OVER
 THE PROPOSAL WOULD THWART THE POSITION CLASSIFICATION PROCESS WHICH IS
 SPECIFICALLY EXCLUDED FROM "CONDITIONS OF EMPLOYMENT" AS DEFINED IN
 SECTION 7103(A)(14)(B) OF THE STATUTE /2/ OVER WHICH THERE IS AN
 OBLIGATION TO BARGAIN COLLECTIVELY.  /3/ THE UNION, ON THE OTHER HAND,
 ASSERTED THAT THE HAZARDOUS DUTIES WERE IRREGULAR OR INTERMITTENT AND
 HAD NOT BEEN TAKEN INTO ACCOUNT IN THE CLASSIFICATION PROCESS.
 
    THE AUTHORITY THEREAFTER REQUESTED AN ADVISORY OPINION FROM THE
 OFFICE OF PERSONNEL MANAGEMENT PURSUANT TO 5 U.S.C. 7105(I) (SECTION
 7105(I) OF THE STATUTE) /4/ CONCERNING THE PROPER INTERPRETATION OF
 RULES, REGULATIONS, OR POLICY DIRECTIVES ISSUED BY THE OPM, MORE
 SPECIFICALLY WHETHER THE UNION'S PROPOSAL IN THE INSTANT CASE WOULD
 CONFLICT WITH LAWS, RULES OR REGULATIONS OVER WHICH OPM HAS
 RESPONSIBILITY.
 
    ON MARCH 11, 1980, THE OPM ISSUED ITS ADVISORY OPINION TO WHICH THE
 PARTIES WERE GIVEN AN OPPORTUNITY TO COMMENT PURSUANT TO SECTION
 2429.15(B) OF THE AUTHORITY'S RULES AND REGULATIONS.  /5/ THE AGENCY AND
 THE UNION FILED SUBMISSIONS, WHICH SUBMISSIONS HAVE BEEN DULY CONSIDERED
 BY THE AUTHORITY.
 
    IN ITS ADVISORY OPINION, THE OPM CITED 5 U.S.C. 5545(D)(1)(SEE NOTE
 1, SUPRA) AND THE FOLLOWING SECTIONS OF OPM'S IMPLEMENTING REGULATIONS
 CONTAINED IN SUBPART I OF PART 550 IN THE CODE OF FEDERAL REGULATIONS:
 
    SEC. 550.902 DEFINITIONS.
 
    IN THIS SUBPART:
 
    (D) "HAZARDOUS DUTY" MEANS A DUTY PERFORMED UNDER CIRCUMSTANCES IN
 WHICH AN ACCIDENT COULD
 
    RESULT IN SERIOUS INJURY OR DEATH . . .
 
    (E) "HAZARD PAY DIFFERENTIAL" MEANS ADDITIONAL PAY FOR THE
 PERFORMANCE OF IRREGULAR OR
 
    INTERMITTENT HAZARDOUS DUTY . . .
 
    SEC. 550.904.  AUTHORIZATION OF HAZARD PAY DIFFERENTIAL.
 
    (A) AN AGENCY SHALL PAY THE HAZARD PAY DIFFERENTIAL LISTED IN
 APPENDIX A TO AN EMPLOYEE WHO
 
    IS ASSIGNED TO AND PERFORMS ANY IRREGULAR OR INTERMITTENT DUTY
 SPECIFIED IN THE APPENDIX WHEN THAT
 
    DUTY IS NOT USUALLY INVOLVED IN CARRYING OUT THE DUTIES OF HIS
 POSITION.  HAZARD PAY
 
    DIFFERENTIAL MAY NOT BE PAID AN EMPLOYEE WHEN THE HAZARD DUTY HAS
 BEEN TAKEN INTO ACCOUNT IN
 
    THE CLASSIFICATION OF HIS
 
    (B) FOR THE PURPOSE OF THIS SECTION:
 
    (1) "NOT USUALLY INVOLVED IN CARRYING OUT THE DUTIES OF HIS POSITION"
 MEANS THAT EVEN
 
    THOUGH THE HAZARDOUS DUTY MAY BE EMBRACED WITHIN THE EMPLOYEE'S
 POSITION DESCRIPTION IT IS NOT
 
    PERFORMED WITH SUFFICIENT REGULARITY TO CONSTITUTE AN ELEMENT IN
 FIXING THE GRADE OF THE
 
    POSITION.
 
    (2) "HAS BEEN TAKEN INTO ACCOUNT IN THE CLASSIFICATION OF HIS
 POSITION" MEANS THAT THE DUTY
 
    CONSTITUTES AN ELEMENT USED IN ESTABLISHING THE GRADE OF THE
 POSITION.
 
    APPLYING THESE REGULATIONS IN THE CONTEXT OF THE INSTANT DISPUTE, THE
 OPM THEREAFTER CONCLUDED:
 
    IN OUR VIEW, THE DISPUTE ESSENTIALLY CONCERNS POSITION
 CLASSIFICATION;  I.E., WHETHER
 
    CERTAIN DUTIES ARE TYPICAL TO THE JOB SERIES, OR OTHERWISE CONSIDERED
 IN THE CLASSIFICATION OF
 
    POSITIONS AND/OR GIVEN SUFFICIENT WEIGHT.  THESE MATTERS MAY BE
 RAISED AS INDIVIDUAL OR GROUP
 
    CLASSIFICATION APPEALS.
 
    IF THE USE OF THIS PROCEDURE SHOULD RESULT IN A FINDING THAT THE
 DUTIES REFERRED TO IN THE
 
    UNION PROPOSAL ARE NOT PROPERLY CONSIDERED IN THE CLASSIFICATION
 PROCESS, THERE WOULD BE NO
 
    BAR IN LAW OR REGULATION TO NEGOTIATION ON THE APPLICATION OF OPM'S
 SCHEDULE OF PAY DIFFERENTIALS TO SUCH DUTIES.
 
    SECTION 7103(A)(14) OF THE STATUTE (NOTE 2, SUPRA), PROVIDES THAT
 MATTERS RELATING TO THE CLASSIFICATION OF ANY POSITION ARE EXPRESSLY
 EXCLUDED FROM THE DEFINITION OF "CONDITIONS OF EMPLOYMENT." HENCE, SUCH
 MATTERS ARE NOT WITHIN THE SCOPE OF THE DUTY TO BARGAIN UNDER SECTION
 7117 OF THE STATUTE WHICH IS LIMITED TO "CONDITIONS OF EMPLOYMENT" BY
 SECTION 7103(A)(12) (NOTE 3, SUPRA).  THEREFORE, BASED UPON THE ENTIRE
 RECORD IN THE INSTANT CASE, INCLUDING OPM'S ADVISORY OPINION, IT IS
 CONCLUDED THAT THE SUBJECT DISPUTE INVOLVES ISSUES WHICH WOULD BE
 APPROPRIATE FOR RESOLUTION THROUGH THE CLASSIFICATION APPEALS PROCESS
 RATHER THAN UNDER THE PROCEDURES SET FORTH IN SECTION 7117 OF THE
 STATUTE AND PART 2424 OF THE AUTHORITY'S RULES AND REGULATIONS.  THAT
 IS, AS NOTED ABOVE (SUPRA P. 3-4), THE PARTIES HEREIN ARE ESSENTIALLY IN
 DISAGREEMENT AS TO WHETHER SPECIFIC HAZARDOUS DUTIES ASSOCIATED WITH
 CERTAIN GUARD AND FIREFIGHTER POSITIONS ARE PERFORMED ON AN "IRREGULAR
 OR INTERMITTENT" BASIS AND WHETHER SUCH HAZARDOUS DUTIES HAVE BEEN TAKEN
 INTO ACCOUNT IN THE CLASSIFICATION OF THESE POSITIONS.  UNTIL THE
 FOREGOING QUESTIONS ARE RESOLVED THROUGH THE CLASSIFICATION APPEALS
 PROCESS, THE AUTHORITY HAS INSUFFICIENT INFORMATION TO DECIDE THE
 INSTANT NEGOTIABILITY APPEAL.  ACCORDINGLY, THE AUTHORITY FINDS THAT THE
 UNION'S APPEAL HAS BEEN PREMATURELY FILED AND THEREFORE MUST BE DENIED,
 WITHOUT PREJUDICE TO THE RENEWAL OF ITS CONTENTION THAT THE MATTERS IN
 DISPUTE ARE NEGOTIABLE UNDER THE STATUTE IN A PETITION DULY FILED WITH
 THE AUTHORITY AFTER IT IS RESOLVED, UNDER APPLICABLE PROCEDURES, THAT
 THE HAZARDOUS DUTIES AT ISSUE ARE IRREGULAR OR INTERMITTENT AND HAVE NOT
 BEEN TAKEN INTO ACCOUNT IN CLASSIFYING THE POSITIONS SPECIFIED IN THE
 UNION'S PROPOSAL.
 
    ISSUED, WASHINGTON, D.C., JUNE 25, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ 5 U.S.C. 5545(D) PROVIDES, IN RELEVANT PART, THAT:
 
    THE (OFFICE OF PERSONNEL MANAGEMENT) SHALL ESTABLISH A SCHEDULE OR
 SCHEDULES OF PAY
 
    DIFFERENTIALS FOR IRREGULAR OR INTERMITTENT DUTY INVOLVING UNUSUAL
 PHYSICAL HARDSHIP OR
 
    HAZARD.  UNDER SUCH REGULATIONS AS THE (OFFICE OF PERSONNEL
 MANAGEMENT) MAY PRESCRIBE,
 
    . . . AN EMPLOYEE . . . IS ENTITLED TO BE PAID THE APPROPRIATE
 DIFFERENTIAL FOR ANY PERIOD IN
 
    WHICH HE IS SUBJECTED TO PHYSICAL HARDSHIP OR HAZARD NOT USUALLY
 INVOLVED IN CARRYING OUT THE
 
    DUTIES OF HIS POSITION.  HOWEVER, THE PAY DIFFERENTIAL--
 
    (1) DOES NOT APPLY TO AN EMPLOYEE IN A POSITION THE CLASSIFICATION OF
 WHICH TAKES INTO
 
    ACCOUNT THE DEGREE OF PHYSICAL HARDSHIP OR HAZARD INVOLVED IN THE
 PERFORMANCE OF THE DUTIES
 
    THEREOF;
 
   .          .          .          .
 
 
    /2/ SECTION 7103(A)(14)(B) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
   .          .          .          .
 
 
    (14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
 AND MATTERS, WHETHER
 
    ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
 CONDITIONS, EXCEPT THAT SUCH
 
    TERM DOES NOT INCLUDE POLICIES, PRACTICES, AND MATTERS--
 
   .          .          .          .
 
 
    (B) RELATING TO THE CLASSIFICATION OF ANY POSITION;  . . .
 
    /3/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH
 
    SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
 GOVERNMENT-WIDE RULE OR
 
    REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
 REGULATION ONLY IF THE RULE
 
    OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
 
    THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
 REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
 7103(A)(12) OF THE STATUTE AS SET FORTH BELOW AND "CONDITIONS OF
 EMPLOYMENT" IN SECTION 7103(A)(14), SUPRA NOTE 2:
 
    SEC. 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
   .          .          .          .
 
 
    (12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
 OBLIGATION OF THE
 
    REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
 EMPLOYEES IN AN APPROPRIATE
 
    UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
 BARGAIN IN A GOOD-FAITH
 
    EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
 EMPLOYMENT AFFECTING SUCH
 
    EMPLOYEES . . .
 
    /4/ 5 U.S.C. 7105(I) PROVIDES:
 
    IN THE EXERCISE OF THE FUNCTIONS OF THE AUTHORITY UNDER THIS TITLE,
 THE AUTHORITY MAY
 
    REQUEST FROM THE DIRECTOR OF THE OFFICE OF PERSONNEL MANAGEMENT AN
 ADVISORY OPINION CONCERNING
 
    THE PROPER INTERPRETATION OF RULES, REGULATIONS, OR POLICY DIRECTIVES
 ISSUED BY THE OFFICE OF
 
    PERSONNEL MANAGEMENT IN CONNECTION WITH ANY MATTER BEFORE THE
 AUTHORITY
 
    /5/ 45 F.R. 3518(1980).