12:0639(127)AR - Labor and AFGE Local No. 644, NCFLL -- 1983 FLRAdec AR

 12 FLRA No. 127
 
 U.S. DEPARTMENT OF LABOR
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL NO. 644, NCFLL
 Union
 
                                            Case No. O-AR-226
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Lewis R. Amis 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 Office of Personnel Management (OPM) filed a brief as
 amicus curiae and the Union filed a reply.
 
    Grievances were filed in this case and submitted to arbitration
 claiming that the Activity had violated the parties' collective
 bargaining agreement by denying the requests of the grievants for hazard
 differential pay.  The Arbitrator first ruled that the grievances were
 arbitrable.  He expressly determined that under the specific provisions
 of the agreement, the grievances were within the coverage and scope of
 the negotiated grievance procedure and were not otherwise barred by the
 agreement from arbitration.  On the merits of the grievances, the
 Arbitrator found all but one claim not to qualify for hazard
 differential pay.  Accordingly, he granted the one grievance and denied
 the others.
 
    In its first exception the Agency contends that by finding the
 grievances arbitrable, the Arbitrator's award is contrary to law,
 regulation, and the collective bargaining agreement.  Specifically, it
 is maintained that a decision as to whether an employee is entitled to a
 hazard pay differential requires a determination of whether the work
 assertedly involving a hardship or hazard has been taken into account in
 the classification of the employee's position.  Thus, it is argued that
 this question must be resolved at the outset through the classification
 appeal procedures under 5 U.S.C.chapter 51 and 5 CFR part 511 and that
 consequently section 7121(c)(5) of the Statute /1/ and the exclusionary
 clause of the parties' negotiated grievance procedure prohibited the
 Arbitrator from finding the grievances arbitrable.  /2/
 
    The Authority concludes that this exception provides no basis for
 finding the award deficient.  The statutory and regulatory provisions
 pertaining to classification appeals relate, in pertinent part, to an
 employee's right to appeal the class, grade, or pay system of the
 official position of record.  However, in challenging the denial of
 hazard differential pay, the grievants did not request a change in the
 class, grade, or pay system of their officially assigned positions.
 Likewise, in resolving whether the grievants were entitled to hazard
 differential pay, the Arbitrator did not order any change in the class,
 grade, or pay system of the grievants' positions.  Thus, neither the
 grievances nor the award concerned the classification of the grievants'
 positions, and consequently the award is not contrary to section
 7121(c)(5), 5 U.S.C.chapter 51 and 5 CFR part 511, or the parties'
 agreement.  /3/
 
    In its second exception the Agency contends that the award is
 deficient because it was based on an agency regulation which was a draft
 document, but which the Arbitrator erroneously considered to be final
 and governing.  In particular, the Agency argues that the determination
 that the grievances were arbitrable is deficient because it was solely
 based on the Arbitrator's misapprehension that the draft regulation was
 final.  The Agency further argues that the award on the merits of the
 grievances is likewise deficient because the misunderstanding of the
 Arbitrator as to the nature of the regulation was also the basis of the
 award on the merits.
 
    The Agency's exception fails to establish that the award is
 deficient.  The Agency's contention regarding the arbitrability of the
 grievances constitutes nothing more than disagreement with the
 Arbitrator's interpretation and application of the agreement to find the
 grievances arbitrable and provides no basis for finding the award
 deficient.  See, e.g., U.S. Department of Justice, Bureau of Prisons,
 Raybrook, New York and American Federation of Government Employees,
 Council of Prison Locals, 9 FLRA No. 130 (1982).  Similarly, it has not
 been shown that the award on the merits was based on the specified
 regulation.  To the contrary, the award was expressly based on the
 Arbitrator's consideration of "the particular duties in dispute in the
 context of the entire (job of compliance safety and health officer)."
 Award at 21.
 
    In its third exception the Agency contends that the Arbitrator denied
 the Agency the full presentation of its case by refusing to permit an
 expert witness on hazard differential pay from OPM to be fully examined
 by either party.  Although the Agency explains that the Arbitrator
 sustained the objection to the expert testimony because he ruled that it
 was his responsibility to determine whether under applicable regulations
 the grievants were entitled to hazard differential pay, the Agency
 maintains that the Arbitrator's interpretation of those regulations was
 erroneous and may have been avoided if the witness had been allowed to
 testify.
 
    Although the Authority will find an arbitration award deficient if it
 is established that the arbitrator failed to conduct a fair hearing by
 refusing to hear pertinent and material evidence, e.g., National Border
 Patrol Council and National Immigration and Naturalization Service
 Council and United States Department of Justice, Immigration and
 Naturalization Service, 3 FLRA 400 (1980), the Agency does not establish
 that the award is deficient on this basis.  The Authority in these cases
 has recognized that an arbitrator has considerable latitude in the
 conduct of the hearing, see id. at 404, and the Agency otherwise fails
 to substantiate that it was denied a fair hearing by the Arbitrator's
 determination that additional testimony on the regulatory requirements
 of hazard differential pay was unnecessary.  Furthermore, with respect
 to the necessity and relevance of additional testimony, the Authority
 notes that the Agency has not filed an exception contending that in the
 award on the merits the Arbitrator misapplied the regulatory
 requirements for entitlement to hazard differential pay.
 
    Accordingly, the Agency's exceptions are denied.  Issued, Washington,
 D.C., August 25, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 7121(c)(5) provides:
 
          (c) The preceding subsections of this section shall not apply
       with respect to any grievance concerning--
 
                                .  .  .  .
 
       (5) the classification of any position which does not result in
       the reduction in grade or pay of an employee.
 
 
    /2/ OPM in its amicus brief likewise argues that section 7121(c)(5)
 and the parties' agreement precluded the Arbitrator from finding the
 grievances in this case to be arbitrable.
 
 
    /3/ Cf. Federal Aviation Administration, Department of
 Transportation, Tampa, Florida and Federal Aviation Science and
 Technological Association, National Association of Government Employees,
 Tampa, Florida, 8 FLRA No. 103 (1982) (in which the award was found
 deficient as contrary to section 7121(c)(5) because it was clear that
 the essential nature of the grievance necessarily concerned whether the
 grievant's position was properly classified).