33:0056(7)AR - - Puget Sound Naval Shipyard and Bremerton MTC - - 1988 FLRAdec AR - - v33 p56

[ v33 p56 ]
The decision of the Authority follows:

33 FLRA No. 7








October 13, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Philip Kienast filed by the Department of the Navy (Agency) and by the Union 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 also filed an opposition.

The Arbitrator ruled that although the grievant was not entitled to environmental differential pay for high work under Federal Personnel Manual (FPM) Supplement 532-1, Appendix J, he should receive the differential because employees in another shop received it for performing the same duties. For the reasons which follow, we find that the award is contrary to law, regulation, and FPM provisions governing the payment of environmental differential pay. The award is also contrary to the Back Pay Act. Accordingly, we set aside the award.

II. Background and Arbitrator's Award

The grievant operates a self-propelled aerial platform or manlift known as a JLG. When the JLG is moved from place to place, the grievant is in the basket at an elevation of from 6 to 12 feet and travels at speeds between 2 and 5 miles per hour. The grievant claimed that he was entitled to environmental differential pay (high pay) when the lift was moving in this fashion. He filed a grievance which was submitted to arbitration on the following stipulated issue:

Whether non-payment of high pay for driving manlifts to and from worksites violates the Agreement? If so, what is the appropriate remedy?

The Union contended before the Arbitrator that: (1) employees in other shops receive environmental differential pay when they drive JLGs from place to place; (2) a previous arbitration award requires the payment of a differential when employees perform that work; and (3) the Activity failed to show that it had eliminated the dangers and hazards associated with driving JLGs. The Activity denied that the work was dangerous and maintained that sufficient safety measures were taken to eliminate any hazard. The Activity contended that driving the JLG presented no significant hazard and that the arbitration award relied on by the Union was distinguishable on the facts. The Activity maintained that if employees in other shops were improperly receiving high pay, the proper remedy would be to order that practice to cease.

The Arbitrator agreed with the Activity that the prior arbitration award concerned a different issue and did not control the issue in this case. He found, based on his consideration of the evidence presented and his personal observations as a passenger in the JLG while it was being driven, that the JLG was not unstable and that operation of the JLG was not unusually hazardous. The Arbitrator concluded that "the duty of driving the JLG from point to point in the yard does not qualify for high pay under [FPM Supplement 532-1, Appendix J]." Award at 5.

The Arbitrator also found that there was uncontradicted evidence that employees in another shop (Shop 38) were receiving a high pay premium for driving JLGs from place to place in the yard. He determined that this constituted unequal treatment of the grievant and was a violation of the fair and equitable coverage provision contained in Section 0307 of the parties' collective bargaining agreement. He ruled that the grievant was entitled to the same treatment as the Shop 38 employees. As a remedy, he ordered the Activity to "pay the grievant high pay for all hours he drove manlifts to and from worksites during the period in which it paid other unit employees to do the same duty but beginning no sooner that 15 days prior to his grievance filing on February 24, 1987." Award at 7.

III. Positions of the Parties

The Agency contends that the award is contrary to law and Government-wide regulation, specifically 5 U.S.C. § 5343(c)(4); 5 C.F.R. § 532.511(a)(1) and (2); and FPM Supplement 532-1, Appendix J. The Agency also contends that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596. The Agency maintains that environmental differential pay cannot be awarded unless the conditions set forth in the guidelines contained in Appendix J are met. The Agency contends that the Arbitrator's finding that the grievant is entitled to high pay because other employees are receiving that pay for similar work is not based on a category contained in Appendix J.

The Agency also contends that the award is contrary to the Back Pay Act because there was no entitlement to high pay and, therefore, the grievant was not affected by an unwarranted denial or withdrawal of a differential which he would otherwise have received. In support of its exceptions, the Agency cites Department of the Air Force, Griffiss Air Force Base and American Federation of Government Employees, Local 2612, 15 FLRA 213 (1984), in which the Authority struck that portion of an arbitrator's award granting backpay of a 4 percent environmental differential as "redress" for the agency's violation of another contractual provision.

The Union contends that the Agency is not entitled to file exceptions to the Arbitrator's award under section 7122(a) of the Statute because it was not a party to the proceeding. The Union also asserts that the Arbitrator improperly limited the award of backpay to 15 days prior to the filing of the grievance.

IV. Discussion

As an initial matter, we find that the Agency, the Department of the Navy, has properly filed exceptions on beh