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43:0761(61)AR - - Interior, Bureau of Land Management, Eugene District Office and NFFE Local 1911 - - 1991 FLRAdec AR - - v43 p761

[ v43 p761 ]
The decision of the Authority follows:

43 FLRA No. 61









LOCAL 1911




December 24, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Thomas F. Levak filed 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 Agency filed an opposition to the Union's exceptions.

The Union filed a grievance alleging that the grievant was entitled to hazardous duty pay for performing certain firefighting duties. The Arbitrator denied the grievance.

For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

In order to facilitate the planting of new trees, the Agency planned and ignited a fire in an wooded area. The fire spread to an area of private land and was put out by the grievant, a forester, and four or five other employees. A grievance was filed requesting hazardous duty pay for the grievant's firefighting duties and, when the grievance was not resolved, it was submitted to arbitration on the following stipulated issue:

Whether the Employer is obligated to pay the [g]rievant the hazardous duty differential for work outside the fire control line on the . . . prescribed burn.

Award at 2.

The Arbitrator found, based on his interpretation of Office of Personnel Management (OPM) and Agency regulations, that "only wildfires are covered by the hazardous pay schedule." Id. at 8. The Arbitrator also found that "a wildfire is a fire that is burning without a prescribed plan, while a prescribed fire is one that is operating under controlled conditions and under a plan." Id. at 9. Based on testimony at the arbitration hearing, the Arbitrator concluded that the fire for which the grievant requested hazardous duty pay "never exceeded the bounds of the prescribed fire plan. Hence it never became a wildfire." Id. Accordingly, the Arbitrator determined that the grievant was not entitled to hazardous duty pay and he dismissed the grievance.

III. Positions of the Parties

A. The Union

The Union claims that the Arbitrator's award is contrary to law, rule and regulation. According to the Union, the grievant is entitled to hazardous duty pay for his firefighting duties under 5 U.S.C. § 5545(d),(1) 5 C.F.R.

§ 550.904(a) and Appendix A to that provision,(2) and Bureau of Land Management (BLM) Manual 1400-550.17D.(3). The Union claims that the Arbitrator's conclusion that the grievant was entitled to hazardous duty pay only in connection with a wildfire is unsupported and erroneous. The Union also claims that the Arbitrator based his decision on an Agency policy manual which was not in effect at the time the disputed duties were performed.

B. The Agency

The Agency claims that the Union's exceptions constitute mere disagreement with the Arbitrator's findings and do not demonstrate that the award is deficient.

IV. Analysis and Conclusions

We conclude that the Union's exceptions provide no basis for finding the award deficient under section 7122(a) of the Statute.

First, we reject the Union's contention that the award conflicts with 5 U.S.C. § 5545(d). Although that provision provides for the establishment and payment of differentials for certain duties, it does not address or require the payment of a hazard differential for the firefighting duties involved in this case. See n.1. Accordingly, we have no basis on which to conclude that the Arbitrator's award conflicts with that provision.

Second, we reject the Union's argument that the award conflicts with 5 C.F.R. § 550.904 and Appendix A, and BLM 1400-550.17D. Section 7122(a) of the Statute provides that an award is deficient if it conflicts with a governing rule or regulation. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 195 (1990). It is clear that the Union's interpretation of these regulations differs from the Arbitrator's. The Union has not shown, however, that the Arbitrator's interpretation conflicts with the plain wording of the regulations or is otherwise impermissible. Therefore, the Union has not shown that the award conflicts with the OPM or the Agency regulations. For example, U.S. Department of the Treasury, Internal Revenue Service, Ogden Service Center, Ogden, Utah and National Treasury Employees Union, Chapter 67, 42 FLRA 1034, 1056-57 (1991).

Finally, we reject the Union's contention that the Arbitrator based his award on a policy manual which was not in effect at the time the disputed firefighting duties were performed. The Arbitrator cited and discussed numerous regulatory provisions in determining that the grievant was not improperly denied a hazard pay differential and nothing in the award indicates that the policy manual formed the basis of the award. Moreover, even if the Arbitrator so based his award, the Union has not shown how that fact would render the award deficient under section 7122(a) of the Statute.

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

1. 5 U.S.C. § 5545(d) provides, in pertinent part:

The Office [of Personnel Management] shall establish a schedule . . . of pay differentials for . . . duty involving unusual physical hardship or hazard. Under such regulations as the Office may prescribe, . . . an employee . . . is entitled to be paid the appropriate differential . . . .

2. 5 C.F.R. § 550.904(a) provides, in pertinent part, that an agency "shall pay the hazard pay differential listed in Appendix A to an employee who is assigned to and performs any . . . duty specified in the appendix . . . ." Appendix A provides a hazard pay differential for the following duty:

Forest and range fires. Participating as a member of a firefighting crew in fighting forest and range fires on the fireline.

3. BLM 1400-550.17D provides a hazard pay differential for "firefighting" and defines that term, in pertinent part, as follows:

1. Firefighting. An employee must be a member of a fire crew actively engaged in fighting a forest or range fire on the fireline before the fire is contained. To contain a fire, a control line (all constructed, natural barriers, or treated fire edges used to surround the fire) must be completed. Eligibility terminates once a fire has been contained.

Exceptions at 3; Opposition at 9.