10:0057(15)AR - AFGE Local 2943 and Air Force, Loring AFB, ME -- 1982 FLRAdec AR

 10 FLRA No. 15
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 2943
 Union
 
 and
 
 DEPARTMENT OF THE AIR FORCE,
 LORING AIR FORCE BASE,
 MAINE
 Activity
 
                                            Case No. O-AR-272
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR STANLEY M. JACKS FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
 PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS.  THE UNION FILED AN
 OPPOSITION.
 
    THE DISPUTE IN THIS MATTER CONCERNS ENTITLEMENT TO ENVIRONMENTAL
 DIFFERENTIAL PAY.  A GRIEVANCE WAS FILED AND ULTIMATELY SUBMITTED TO
 ARBITRATION WHICH CLAIMED THAT THE GRIEVANT WAS ENTITLED TO A 4 PERCENT
 ENVIRONMENTAL DIFFERENTIAL WHEN SPRAYING HERBICIDES.
 
    THE ARBITRATOR DETERMINED THAT THE GRIEVANT HAD BEEN EXPOSED TO A
 WORKING CONDITION DESCRIBED IN FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT
 532-1, APPENDIX J FOR WHICH THE GRIEVANT WAS ENTITLED TO A 4 PERCENT
 ENVIRONMENTAL DIFFERENTIAL UNLESS PROTECTIVE DEVICES AND SAFETY MEASURES
 HAD PRACTICALLY ELIMINATED THE POTENTIAL FOR PERSONAL INJURY.  IN THIS
 RESPECT THE ARBITRATOR CONCLUDED THAT MANAGEMENT'S PROGRAM OF
 PROTECTIVE
 DEVICES AND SAFETY MEASURES WHEN FULLY IMPLEMENTED PRACTICALLY
 ELIMINATED THE POTENTIAL FOR PERSONAL INJURY.  HOWEVER, ON THE BASIS OF
 THE EVIDENCE PRESENTED, HE FOUND THAT THIS PROGRAM HAD NOT BEEN FULLY
 IMPLEMENTED DURING THE 1980 SPRAYING PERIOD AND THAT CONSEQUENTLY FOR
 THAT PERIOD THE POTENTIAL FOR PERSONAL INJURY TO THE GRIEVANT HAD NOT
 BEEN PRACTICALLY ELIMINATED.  ACCORDINGLY, THE ARBITRATOR AWARDED THE
 GRIEVANT 4 PERCENT ENVIRONMENTAL DIFFERENTIAL PAY FOR THE 1980 PERIOD
 AND RULED THAT THE GRIEVANT WAS ALSO ENTITLED TO THE DIFFERENTIAL FOR
 1981 AND 1982 UNLESS MANAGEMENT'S PROGRAM OF PROTECTIVE DEVICES AND
 SAFETY MEASURES WAS FULLY IMPLEMENTED.
 
    IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY
 TO FPM SUPPLEMENT 532-1.  SPECIFICALLY, THE AGENCY MAINTAINS THAT THE
 ARBITRATOR FOUND THAT THE HAZARDS HAD BEEN PRACTICALLY ELIMINATED, AND
 THE AGENCY THEREFORE ARGUES THAT CONSEQUENTLY THERE IS NO LAWFUL BASIS
 FOR THE PAYMENT OF AN ENVIRONMENTAL DIFFERENTIAL.
 
    THIS EXCEPTION HOWEVER PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.  IT IS WELL ESTABLISHED AND THE AUTHORITY HAS CONSISTENTLY
 RECOGNIZED THAT THE SPECIFIC WORK SITUATIONS FOR WHICH AN ENVIRONMENTAL
 DIFFERENTIAL IS PAYABLE UNDER THE CATEGORIES OF FPM SUPPLEMENT 532-1,
 APPENDIX J ARE LEFT TO LOCAL DETERMINATION INCLUDING ARBITRATION.  E.G.,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1857 AND
 SACRAMENTO AIR LOGISTICS CENTER, MCCLELLAN AIR FORCE BASE, CALIFORNIA, 9
 FLRA NO. 128(1982).  IN THIS CASE, WHETHER THE GRIEVANT WAS BEING
 EXPOSED TO A WORKING CONDITION SET FORTH IN APPENDIX J WAS SUBMITTED TO
 THE ARBITRATOR FOR RESOLUTION.  WITH THE FPM EXPRESSLY DELEGATING FOR
 LOCAL DETERMINATION THE SPECIFIC WORK SITUATIONS FOR WHICH AN
 ENVIRONMENTAL DIFFERENTIAL WILL BE PAYABLE UNDER THE CATEGORIES OF
 APPENDIX J AND, CONTRARY TO THE ASSERTION OF THE AGENCY, WITH THE
 ARBITRATOR EXPRESSLY FINDING AS TO THE DISPUTED LOCAL WORK SITUATION
 THAT PAYMENT OF AN ENVIRONMENTAL DIFFERENTIAL WAS WARRANTED UNDER
 APPENDIX J, NO BASIS HAS BEEN PRESENTED FOR FINDING THE AWARD CONTRARY
 TO FPM SUPPLEMENT 532-1.  SACRAMENTO AIR LOGISTICS CENTER;  NAVAL
 WEAPONS STATION, YORKTOWN, VIRGINIA AND NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES, LOCAL R4-1, 6 FLRA NO. 47(1981);  VETERANS
 ADMINISTRATION MEDICAL CENTER, FORT HOWARD AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2146, 5 FLRA NO. 31(1981).
 
    THE AGENCY'S OTHER EXCEPTIONS ARE MERELY DERIVATIVE OF THE FIRST
 EXCEPTION.  SPECIFICALLY, THE AGENCY CONTENDS THAT BECAUSE THERE IS NO
 LAWFUL BASIS FOR THE PAYMENT OF AN ENVIRONMENTAL DIFFERENTIAL UNDER THE
 FPM, THE AWARD IS CONTRARY TO THE BACK PAY ACT IN THAT THERE HAS NOT
 BEEN AN UNWARRANTED REDUCTION OF THE GRIEVANT'S DIFFERENTIALS AND THE
 AWARD IS CONTRARY TO LAW AS PUNITIVE, RATHER THAN COMPENSATORY, DAMAGES.
  HOWEVER, BECAUSE THE AGENCY FAILED TO ESTABLISH THAT PAYMENT OF AN
 ENVIRONMENTAL DIFFERENTIAL WAS NOT WARRANTED UNDER THE FPM, THESE
 EXCEPTIONS CORRESPONDINGLY PROVIDE NO BASIS FOR FINDING THE AWARD
 CONTRARY TO LAW AS PUNITIVE DAMAGES OR CONTRARY TO THE BACK PAY ACT.
 
    ACCORDINGLY, THE AGENCY'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 15, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY