Naval Weapons Station, Yorktown, Virginia (Activity) and National Association of Government Employees, Local R4-1 (Union) 

 6 FLRA No. 47
 
 NAVAL WEAPONS STATION,
 YORKTOWN, VIRGINIA
 Activity
 
 and
 
 NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL R4-1
 Union
 
                                            Case No. O-AR-124
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATION WILLIAM M. EDGETT FILED BY THE UNION UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE(5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR'S AWARD THE DISPUTE IN THIS MATTER AROSE
 WHEN THE ACTIVITY DISCONTINUED THE PAYMENT OF HIGH HAZARD ENVIRONMENTAL
 DIFFERENTIAL PAY (EDP) TO EMPLOYEES ENGAGED IN THE ASSEMBLY AND
 DISASSEMBLY OF CERTAIN MISSILES.  INSTEAD, THE EMPLOYEES WERE PAID LOW
 HAZARD EDP.  AS A RESULT OF THE ACTIVITY'S ACTION ONE OF THE AFFECTED
 EMPLOYEES FILED A GRIEVANCE THAT WAS EVENTUALLY SUBMITTED TO
 ARBITRATION.
 
    THE PARTIES STIPULATED THE ISSUE BEFORE THE ARBITRATOR TO BE:
 
    DOES (THE ACTIVITY INSTRUCTION DEALING WITH EDP) ENTITLE (THE
 GRIEVANT) TO AN EIGHT (8%)
 
    PERCENT ENVIRONMENTAL PAY DIFFERENTIAL (EXPLOSIVE AND INCENDIARY
 MATERIALS-- HIGH DEGREE
 
    HAZARD) FOR THE ASSEMBLY AND DISASSEMBLY OF TERRIER, TARTER, AND
 STANDARD MISSILES
 
    CONTAINING WARHEADS AND COMPLETE EXPLOSIVE TRAINS?
 
    IN DENYING THE GRIEVANCE THE ARBITRATOR REJECTED THE UNION'S
 ARGUMENTS THAT HIGH HAZARD EDP WAS REQUIRED IN THE GRIEVANT'S CASE BY
 THE ACTIVITY INSTRUCTION OR BY APPENDIX J OF FPM SUPPLEMENT 532-2.  IN
 CONCLUSION THE AWARD STATED:
 
    . . . THE ARBITRATOR FINDS THAT (THE ACTIVITY INSTRUCTION) DOES NOT
 ENTITLE (THE GRIEVANT)
 
    TO AN EIGHT (8%) PERCENT ENVIRONMENTAL PAY DIFFERENTIAL FOR THE
 ASSEMBLY AND DISASSEMBLY OF
 
    TERRIER, TARTER, AND STANDARD MISSILES CONTAINING WARHEADS AND
 COMPLETE EXPLOSIVE TRAINS.
 
    THE UNION FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
  THE ACTIVITY DID NOT FILE AN OPPOSITION.
 
    IN ITS EXCEPTION THE UNION CONTENDS, IN EFFECT, THAT THE ARBITRATOR'S
 AWARD IS CONTRARY TO REGULATION.  IN SUPPORT THE UNION ASSERTS THAT THE
 ARBITRATOR ERRED IN INTERPRETING THE ACTIVITY INSTRUCTION AND APPENDIX J
 OF FPM SUPPLEMENT 532-2 WHEN HE DETERMINED THAT THE 8 PERCENT HIGH
 HAZARD EDP PROVIDED THEREIN IS LIMITED TO OPERATIONS INVOLVING "OPEN
 HIGH EXPLOSIVES." IN ADDITION, THE UNION CITES THE ARBITRATOR'S
 DETERMINATION THAT THE EXAMPLES OF WORK CATEGORIES FOR WHICH HIGH HAZARD
 EDP IS REQUIRED CONTAINED IN APPENDIX J ALL INVOLVE WORKING WITH ARMED
 WARHEADS OR EXPLOSIVES IN A NON-CONTAINED STATE AS A FURTHER
 MISINTERPRETATION OF APPLICABLE REGULATIONS.  THE UNION CITES TO VARIOUS
 "EVIDENCE" BEFORE THE ARBITRATOR WHICH IT ALLEGES "CLEARLY ESTABLISHES"
 THE RIGHT OF THE GRIEVANT TO HIGH HAZARD EDP.  FINALLY, THE UNION NOTES
 THE ARBITRATOR'S FAILURE TO DISCUSS TWO OF ITS ARGUMENTS AND HIS
 ANALYSIS OF A PARAGRAPH OF THE ACTIVITY INSTRUCTION WHICH IT DID NOT
 RELY UPON AT THE HEARING OR IN ITS POST-HEARING BRIEF AS FURTHER
 EVIDENCE THAT THE AWARD IS DEFICIENT.
 
    THE UNION'S EXCEPTION, THAT THE AWARD IS CONTRARY TO REGULATION,
 STATES A GROUND ON WHICH THE AUTHORITY WILL FIND AN ARBITRATION AWARD
 DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE.  HOWEVER, IN THIS
 CASE THE UNION HAS NOT DEMONSTRATED IN WHAT MANNER THE ARBITRATOR'S
 AWARD DENYING THE GRIEVANT ENTITLEMENT TO HIGH HAZARD EDP IS CONTRARY TO
 THE REGULATIONS IT CITES.
 
    THE QUESTION OF WHETHER THE GRIEVANT WAS BEING EXPOSED TO THE TYPE OF
 WORKPLACE HAZARD CONTEMPLATED BY THE RELEVANT PORTION OF THE ACTIVITY
 INSTRUCTION AND APPENDIX J OF FPM SUPPLEMENT 532-2 WAS PRECISELY THE
 ISSUE STIPULATED AND SUBMITTED BY THE PARTIES TO THE ARBITRATOR FOR HIS
 RESOLUTION.  THE ARBITRATOR DETERMINED THAT THE GRIEVANT WAS NOT BEING
 EXPOSED TO THAT TYPE OF HAZARD AND THUS CONCLUDED THAT HE WAS NOT
 ENTITLED TO THE 8 PERCENT HIGH HAZARD EDP.  THE UNION'S CITATIONS TO
 VARIOUS STATEMENTS MADE BY THE ARBITRATOR IN THE OPINION ACCOMPANYING
 HIS AWARD PROVIDE NO BASIS FOR FINDING THE AWARD CONTRARY TO REGULATION.
  IT IS CLEAR THAT THE ARBITRATOR EVALUATED THE FACTS IN THE CASE AND
 DETERMINED ON THE BASIS OF THE EVIDENCE THAT THE PAYMENT OF HIGH HAZARD
 EDP WAS NOT WARRANTED.  IT IS WELL ESTABLISHED THAT THE SPECIFIC WORK
 SITUATIONS FOR WHICH AN ENVIRONMENTAL DIFFERENTIAL IS PAYABLE ARE LEFT
 TO LOCAL DETERMINATION, INCLUDING ARBITRATION.  VETERANS ADMINISTRATION
 MEDICAL CENTER, FORT HOWARD AND AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2146, 5 FLRA NO. 31(1981).  SINCE THE
 ARBITRATOR CONCLUDED THAT BASED ON THE FACTS HE FOUND IN THIS CASE THE
 LOCAL WORK SITUATION PRESENTED NO BASIS FOR PAYMENT OF HIGH HAZARD EDP
 UNDER THE ACTIVITY INSTRUCTION OR APPENDIX J, THE UNION'S EXCEPTION
 PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A)
 AND SECTION 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
 AWARD.
 
    ISSUED, WASHINGTON, D.C., JULY 15, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION OF THE FLRA IN THE SUBJECT PROCEEDING HAVE
 THIS DAY BEEN MAILED TO THE PARTIES LISTED:
 
    MR. ROBERT M. WHITE
 
    WHITE AND SELKIN
 
    ATTORNEYS AND COUNSELLORS AT LAW
 
    1500 VIRGINIA NATIONAL BANK BUILDING
 
    ONE COMMERCIAL PLACE
 
    NORFOLK, VIRGINIA 23510
 
    MR. JOSEPH S. C. MCCAUGHAN
 
    MANAGEMENT REPRESENTATIVE
 
    NAVAL WEAPONS STATION
 
    YORKTOWN, VIRGINIA 23691
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
 ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
 SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW THE AUTHORITY FINDS THAT
 THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
 APPLICABLE LAWS, RULES, OR REGULATIONS.