[ v12 p639 ]
The decision of the Authority follows:
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).