15:0213(42)AR - Air Force, Griffiss AFB and AFGE Local 2612 -- 1984 FLRAdec AR

 15 FLRA No. 42
 
 DEPARTMENT OF THE AIR FORCE,
 GRIFFISS AIR FORCE BASE
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2612
 Union
 
                                            Case No. O-AR-246
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Dale S. Beach 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.  /1/ The Union filed
 an opposition.
 
    The dispute in this matter concerns the Activity's termination in
 1979 of the payment of a 4% environmental differential to pest
 controllers for exposure to poisons (toxic chemicals).  The termination
 was on the advice of the Activity's environmental engineering office
 which concluded that environmental differential pay was not warranted or
 authorized under FPM Supp. 532-1 and Appendix J.  A grievance was filed
 and submitted to arbitration on the issues of whether payment of an
 environmental differential was warranted and whether the Activity had
 violated the parties' collective bargaining agreement and personnel
 policy by failing to consult with the Union regarding the termination of
 environmental differential pay.
 
    The Arbitrator determined as to payment of the differential that
 there was no exposure to any unusually severe hazard within the meaning
 of FPM Supp. 532-1 and Appendix J and that consequently the pest
 controllers were not entitled to have had their environmental
 differential pay continued.  However, the Arbitrator did find that the
 Activity violated the agreement and personnel policy when it failed to
 consult with the Union, and as his award in this respect the Arbitrator
 ordered as follows:
 
          As redress for this violation Griffiss Air Force Base shall pay
       each Pest Controller a sum of money equal to 4% of his pay for the
       period from the date of discontinuance in October-November 1979 to
       February 24, 1981, the date of this arbitration hearing.
 
    In its exceptions the Agency essentially contends that by ordering
 retroactive payment of an environmental differential to redress a
 failure to consult with the Union, the award is contrary to the Back Pay
 Act and FPM Supp. 532-1 and Appendix J.  The Authority agrees.
 
    FPM Supp. 532-1, subchap. S8-7(f) makes it clear that payment of an
 environmental differential is only authorized when employees are
 performing assigned duties which expose them to a hazard, physical
 hardship, or working condition of an unusually severe nature listed in
 Appendix J.  Consequently, on the basis of the Arbitrator's ruling that
 the pest controllers were not being exposed to poisons (toxic chemicals)
 as described in Appendix J, the pest controllers were not entitled to
 have been paid an environmental differential and payment by the Activity
 of an environmental differential was not warranted or authorized.  See,
 e.g., Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater
 Virginia Metal Trades Council, AFL-CIO, 10 FLRA No. 70 (1982).
 Likewise, the Back Pay Act makes it clear in terms of this case that an
 award of backpay by the Arbitrator is only authorized to remedy an
 unjustified or unwarranted personnel action that has resulted in the
 withdrawal of a differential that the pest controllers would otherwise
 have received.  5 U.S.C. 5596(b)(1)(A)(i) (1982);  see, e.g., Veterans
 Administration Hospital and American Federation of Government Employees,
 Lodge 2201, 4 FLRA 419 (1980).  Therefore, with the Arbitrator expressly
 ruling that the pest controllers were not being exposed to any unusually
 severe hazard which would entitle them to environmental differential
 pay, the Activity's failure to consult regarding the termination of
 environmental differential pay did not and could not result in an
 unwarranted withdrawal of a differential which the employees were
 entitled to have otherwise received.  Although the Arbitrator had
 considerable latitude in fashioning a remedy for the Activity's
 violation of the agreement, the Arbitrator's award of backpay in the
 amount of a 4% environmental differential as "redress" for the violation
 is deficient as contrary to FPM Supp. 532-1 and the Back Pay Act.
 
    Accordingly, the award is modified by striking the following sentence
 of the award:
 
          As redress for this violation Griffiss Air Force Base shall pay
       each Pest Controller a sum of money equal to 4% of his pay for the
       period from the date of discontinuance in October-November 1979 to
       February 24, 1981, the date of this arbitration hearing.
 
    Issued, Washington, D.C., July 2, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Office of Personnel Management filed a brief as an amicus
 curiae and the Union filed a response.