[ v48 p1420 ]
The decision of the Authority follows:
48 FLRA No. 152
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
GLENVIEW NAVAL AIR STATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
January 28, 1994
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 Anne L. Draznin filed by both the Union and 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 to the Agency's exception. The Agency did not file an opposition to the Union's exceptions.
The Arbitrator sustained a grievance alleging that the Agency violated the parties' collective bargaining agreement by failing to provide and maintain a safe and healthful work environment and by failing to make appropriate payments to bargaining unit employees who qualified for environmental differential pay (EDP).(1) Accordingly, the Arbitrator ordered the Agency to pay the applicable differential and to take other remedial actions.
For the following reasons, we conclude that the portion of the award directing payment of the differential is deficient under section 7122(a) of the Statute. Accordingly, we will set that portion of the award aside. We also deny the Union's exceptions for the reasons explained below.
II. Background and Arbitrator's Award
The Union represents a bargaining unit that includes the Agency's firefighters and fire inspectors. On March 10, 1992, the Union filed a grievance claiming that the Agency violated various provisions of the parties' collective bargaining agreement and seeking retroactive EDP for all unit employees who were exposed to asbestos since October 25, 1978. The parties settled the grievance with respect to wage grade schedule (WG) employees. However, the portion of the grievance relating to the payment of a differential for General Schedule (GS) employees was not resolved and was submitted to arbitration.
The Arbitrator framed the issues as follows:
1. Is the grievance procedurally arbitrable?
2. Are bargaining unit members entitled to receive environmental differential pay or hazardous duty pay for exposure to asbestos under the collective bargaining agreement, and if so, which employees, for what periods of time and in what amount?
Award at 2.
With regard to the first issue, the Arbitrator rejected the Agency's claim that the grievance was not procedurally arbitrable because it was not filed within the time limits set forth in the parties' agreement. In this connection, the Agency argued before the Arbitrator that bargaining unit members had known of the asbestos problem since the mid-1980's and yet the Union took no action until the instant grievance was filed. The Arbitrator found that the grievance concerned an ongoing health and safety problem that started well before the effective date of the contract. She further noted that "[i]t was a subject raised during the negotiations" and that the contract includes provisions specifically relating to hazardous working environments. Id. at 13. The Arbitrator concluded that "[t]he grieved event is the [Agency's] failure to comply with the contract, not the existence of the asbestos hazard." Id. at 14 (emphasis omitted). Accordingly, she found that the grievance was arbitrable.
With regard to the second issue, the Arbitrator found that the Agency violated Article 21, Sections 1 and 12 of the parties' agreement.(2) In arriving at this finding, the Arbitrator determined that unit employees were impermissibly exposed to asbestos in the firehouse where the employees worked and slept and also while wearing fire retardant protective clothing. The Arbitrator stated that this exposure "constituted the kind of unsafe working environment identified and anticipated in Article 21 of the collective bargaining agreement." Id. at 30.
The Arbitrator also addressed the question of whether employees were notified of the possibility of asbestos exposure. The Arbitrator rejected the Agency's assertion that if unit employees believed they were exposed to excessive amounts of asbestos, it was incumbent on them to notify the Agency so that the Agency could respond appropriately. The Arbitrator noted that under Agency regulations, the Agency was required to issue individual written notices to all employees who were exposed to excessive levels of asbestos and that the Agency failed to do so. Consequently, the Arbitrator concluded that the Agency violated the agreement "by failing to provide and maintain safe working conditions by allowing to exist and not warning employees about the existence of impermissible levels of asbestos in [their] workplace and equipment." Id. at 35.
Having found that the Agency violated the parties' agreement, the Arbitrator considered the Union's requested remedy that GS employees be paid EDP for the period of time during which they were exposed to impermissible levels of asbestos.(3) In this regard, the Union argued that it "does not dispute the fact that there is no regulatory entitlement to EDP for asbestos exposure for [GS] employees." Id. at 38. Rather, the Union maintained that EDP was available under the parties' agreement and noted that Article 20, Section 8 of the agreement referenced payment of EDP pursuant to Appendix J of Federal Personnel Manual (FPM) Supplement 532-1, subchapter S-8-7.(4) According to the Union, the reference in that section of the agreement "was not to grant pay according to Appendix J but to use the categories for payment listed in Appendix J as the basis for determining when payment should be made." Id. at 36. In the Union's view, such payment was not contrary to any Government-wide rule or regulation.
The Arbitrator found that there was no authority to pay EDP to GS employees under Appendix J. In this regard, the Arbitrator stated that "Appendix J is an appendix to FPM Supplement 532-1, Subchapter S8-7 . . . [that] specifically relates only to [WG] employees." Id. Nevertheless, the Arbitrator found that the Agency had the authority to pay EDP for asbestos exposure under the parties' agreement. In arriving at this finding, the Arbitrator initially determined that "Article 20 purports to cover both [WG] and [GS] employees." Id. at 37. The Arbitrator noted that none of the other sections of Article 20 made any distinction between types of employees and "[t]o read Section 8 as if it referred to only part of the bargaining unit . . . while the rest of the Article referred to all of the [unit] would be to take the section out of context." Id. Therefore, the Arbitrator concluded that "Appendix J must be taken as an example of the kind of pay regulations under which payment could be authorized." Id. at 38.
The Arbitrator additionally addressed "the reach of the contractual provisions." Id. at 41. According to the Arbitrator:
The maxim in contract interpretation is to give full scope to the intent of the parties. The language of the contract is the key in this instance. If there is a way to interpret the words so as to make a given provision workable and enforceable as written, it is preferable to an interpretation which would read into the language limitations, exceptions or conditions which are not explicitly there. This is the rationale I find applicable in interpreting Article 20, Section 8 of the collective bargaining agreement to authorize payment of an environmental differential pay for asbestos exposure to the firefighters. To hold otherwise would be to sanction the [Agency] agreeing to something with which it knew it did not have the power to acquiesce.
Id. at 41-42.
Based on the foregoing, the Arbitrator found that the language of the contract contemplated an environmental pay differential of 8 percent for GS employees because that is the percentage listed in Appendix J. The Arbitrator also found that use of the 8 percent figure was consistent with the percentage listed in a proposed revision to 5 C.F.R. part 550, Appendix A, which would have specifically provided GS employees with an 8 percent pay differential based on exposure to asbestos.(5)
In reaching this result, the Arbitrator specifically addressed and rejected several arguments advanced by the Agency. First, the Arbitrator rejected the Agency's argument that the Back Pay Act, 5 U.S.C. § 5596, precluded the payment of retroactive pay from 1978. The Arbitrator stated that the issue before her was a matter of contract interpretation and that nothing in the Back Pay Act "precludes payment as a remedy to a finding of contractual violation ordered pursuant to a valid arbitral award." Id. at 41.
Next, the Arbitrator addressed the Agency's argument that it lacked the authority to make the requested payments because the 1990 proposed revision to Appendix A of the FPM was not effective. The Arbitrator concluded that because 5 U.S.C. § 5545(d) "allows for hazardous duty pay for [GS] employees, the [A]gency cannot say that it had no authority to enter into an agreement to . . . provide such pay in appropriate circumstances to GS employees."(6) Id. at 39.
The Arbitrator additionally noted that the Agency issued a proposed regulation in 1993, which provided that "[a]ll full[-]time, part[-]time, intermittent and temporary Federal Wage System and [GS] employees, regardless of occupation or grade . . . are entitled to environmental pay when local conditions warrant." Id. at 40. The Arbitrator interpreted this statement "as a recognition by the [Agency] of its obligation to pay differential[s] for hazardous duty." Id. The Arbitrator also found that the Agency's failure to issue final regulations on environmental pay was not a basis on which to deny such pay. The Arbitrator noted that asbestos had been recognized by the Federal Government and by Congress as a workplace hazard and was recognized as such in the parties' agreement. In the Arbitrator's view, "[l]ack of [A]gency initiative to appropriately implement the Congressional intent is evidently the only problem." Id. Therefore, the Arbitrator concluded that there was no impediment in law or regulation to effecting payment of EDP for the GS employees in this case.
As her award, the Arbitrator directed the Agency to pay eligible unit employees EDP for various dates and hours worked between 1987 and 1992. In addition, for those firefighters and inspectors still employed by the Government on the date of the award, the Arbitrator ordered the Agency to note the employees' exposure to asbestos in their medical records and work histories and to place the employees "on medical surveillance monitoring." Id. at 43.
III. Positions of the Parties
A. Agency's Exception
The Agency maintains that the Arbitrator's award "rests upon the dubious premise" that the Agency had a contractual obligation to provide eligible GS employees with a hazardous duty pay differential. Agency's Exception at 3. The Agency points out that the Arbitrator correctly acknowledged that Appendix J is only applicable to WG employees. The Agency further points out that both the Union and the Arbitrator recognized that the employees at issue "have no regulatory entitlement to such pay." Id.
According to the Agency, 5 C.F.R. part 550, Appendix A lists the specific hazards that warrant payment of a salary differential to GS employees and that exposure to asbestos is not among them. The Agency argues that although the Arbitrator found that this regulatory omission did not preclude payment, "OPM . . . has stated quite plainly in an applicable [G]overnment-wide regulation that payment may not be made for unlisted hazards." Id. at 4.
The Agency further maintains that the issue of whether GS employees are entitled to payment of a hazardous duty pay differential based on exposure to asbestos has previously been addressed by the Authority. In this connection, the Agency states that in Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 35 FLRA 14 (1990) (VA, Leavenworth), the Authority ruled that GS employees have no entitlement to hazard differential pay for exposure to asbestos because the regulations permit payment of differentials only for listed hazards and there is no listing for exposure to asbestos in 5 C.F.R. part 550, Appendix A. The Agency also asserts that in National Treasury Employees Union, NTEU Chapter 51 and Internal Revenue Service, Wichita District Office, 40 FLRA 614 (1991) (IRS, Wichita), the Authority concluded that arbitrators cannot order hazard differential pay for GS employees under the terms of a collective bargaining agreement because OPM regulations do not authorize such payment.
Finally, the Agency asserts that if there was any doubt about OPM's intent concerning the entitlement of GS employees to a hazardous duty pay differential for asbestos exposure, it was eliminated with the issuance of the final rule that now provides that entitlement. The Agency notes that OPM elected not to make the regulation retroactive and adds that even if that regulation had been in effect at the time of the events giving rise to this grievance, payment would have been for more restricted periods of time than the Arbitrator ordered.
B. Union's Opposition
The Union contends that the Agency's exception constitutes mere disagreement with the Arbitrator's interpretation of the parties' agreement and, as such, provides no basis for finding the award deficient. In support of this assertion, the Union maintains that the Authority has made clear that "the question of the interpretation of the collective bargaining agreement is a question solely for the [A]rbitrator." Opposition at 10. The Union further asserts that "[i]n the context of [EDP], it is well established that the specific work situations for which EDP is payable is left to local determinations, including arbitration." Id.
Additionally, the Union argues that although the Agency places great emphasis on the fact that GS employees have no regulatory entitlement to EDP for exposure to asbestos, such entitlement is unnecessary in this case because the Arbitrator based her award on an interpretation of the parties' agreement. The Union also claims that under the Authority's holding in 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 (1990) (Fort Campbell), a negotiated entitlement to EDP could take precedence over agency rules and regulations.
The Union further asserts that the cases on which the Agency relies can be readily distinguished. Thus, the Union states that in VA, Leavenworth, the arbitrator denied the grievance of a GS employee seeking EDP for exposure to asbestos because the arbitrator found that there was no entitlement to such payment under the terms of the parties' agreement. In contrast, the Union claims that the agreement here provides an explicit entitlement to differential pay. The Union also asserts that in IRS, Wichita, the Authority set aside an award that involved an interpretation of the regulatory entitlement to a pay differential. The Union emphasizes that the award in this case was not premised on the regulations but, rather, was based on an interpretation of the parties' agreement.
Finally, as described more fully in its exceptions, the Union requests that the award be modified to include interest on the EDP that the Arbitrator ordered. The Union also requests that EDP be awarded to eligible unit employees for the period of January 1, 1990 to October 1, 1991.
C. Union's Exceptions
The Union contends that the Arbitrator's award is deficient because it fails to award interest on the EDP that the Agency was directed to pay and also fails to award EDP from January 1, 1990 to October 9, 1991. In support of its first exception, the Union asserts that under section 5596(b)(2)(A) of the Back Pay Act, an employee who has been subjected to an unwarranted personnel action that has resulted in a reduction of compensation is entitled to interest on any backpay due. The Union also asserts that the Authority has specifically ruled that interest must be paid on backpay awards for exposure to asbestos.
With regard to its second exception, the Union notes that the Arbitrator granted EDP to eligible unit employees for all time actually worked from February 20, 1987, through December 31, 1989. The Union also notes that the Arbitrator granted EDP to eligible unit employees for a portion of the time actually worked between October 10, 1991, through August 20, 1992. The Union maintains that the award fails to draw its essence from the agreement because it does not grant EDP for asbestos exposure from January 1, 1990, to October 10, 1991. In the Union's view, there is no logical explanation for the Arbitrator's failure to award EDP for this time period given the fact that the Arbitrator adopted the Union's calculation of EDP that included this time period. Accordingly, the Union requests the Authority to modify the award to include interest on the backpay that was ordered and to order EDP for the period of January 1, 1990, to October 1, 1991.
IV. Analysis and Conclusions
An arbitration award is deficient under section 7122(a) of the Statute if the award is contrary to any law, rule, or regulation. U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas and American Federation of Government Employees, Local 2142, 48 FLRA 966 (1993). For the following reasons, we find that the portion of the award directing the Agency to pay eligible employees a hazardous duty pay differential is inconsistent with a Government-wide regulation. Accordingly, we will set aside that portion of the award. We also find that there is no basis on which to grant the Union's exceptions. Accordingly, we will deny those exceptions.
At the outset, we note that the OPM regulation authorizing a hazardous duty pay differential for GS employees based on exposure to airborne asbestos was not in effect at the time of the events giving rise to the grievance. Further, we note that when the OPM regulation authorizing hazardous duty pay differentials for GS employees in these cases was enacted, the regulation was not given retroactive application. Therefore, we will address the exceptions based on the statutory and regulatory provisions in effect at the time of the claimed exposure to asbestos.
The Authority previously has found that hazardous duty pay for GS employees is governed by 5 U.S.C. § 5545(d) and its implementing regulations contained in 5 C.F.R. part 550, subpart I and Appendix A. See U.S. Department of the Navy, Naval Surface Warfare Center, Dahlgren, Virginia and American Federation of Government Employees, Local 2096, 44 FLRA 1118, 1125 (1992); IRS, Wichita, 40 FLRA at 621; VA, Leavenworth, 35 FLRA at 17. The Authority has noted that, generally, employees may be compensated for the performance of hazardous duties in one of two ways: classifying the employees' positions so as to take such duties into account; or providing employees with a hazardous duty pay differential.(7) Only OPM can promulgate regulations authorizing the payment of a hazardous duty pay differential. See IRS, Wichita, 40 FLRA at 622. Therefore, in order to warrant a pay differential, certain regulatory requirements must be satisfied. Those requirements provide that the hazard or physical hardship must be listed in Appendix A to 5 C.F.R. part 550, subpart I and that the hazard or hardship must not have been considered in the classification of the position. In addition, for most of the time period covered by the Arbitrator's award, the regulations required that the performance of the duties involving a hazard or physical hardship had to be "irregular or intermittent."(8)
In this case, the Arbitrator did not find that an entitlement was specifically authorized under law and regulation and did not award a hazardous duty pay differential consistent with the applicable regulatory requirements. Specifically, the Arbitrator failed to find that exposure to asbestos was a category listed in Appendix A, that the employees' positions had not been classified to take into account the performance of hazardous duties, and that, at all relevant times, the duties were performed on an irregular or intermittent basis. Such findings would have been necessary in order to sustain an entitlement to a hazardous duty pay differential. Instead, the Arbitrator found that because 5 U.S.C. § 5545(d) allows hazardous duty pay for GS employees, the Agency could enter into a contractual agreement authorizing such a pay differential.
In Fort Campbell, we stated that we will find an award deficient when it is contrary to a controlling Government-wide regulation. We find that the regulations contained in 5 C.F.R. part 550, subpart I, Appendix A governing hazardous duty pay are controlling Government-wide regulations with regard to the entitlement to such pay. In our view, the Arbitrator's award, in part, contravenes those regulations for the following reason. In order to find a contractual entitlement to a hazardous duty pay differential, the contractual entitlement would have to be consistent with the statutory and regulatory requirements governing hazardous duty pay. Because the Arbitrator ordered the payment of a hazardous duty pay differential without satisfying one of the regulatory requirements, namely, the existence of a category covering asbestos exposure in Appendix A, the contractual entitlement found by the Arbitrator was insufficient to establish a legal basis on which to award such a pay differential. Accordingly, the portion of the award ordering the hazardous duty pay differential is deficient and must be set aside. See IRS, Wichita (portion of award directing agency to pay hazardous duty pay found deficient as arbitrator failed to make a finding under 5 C.F.R. part 550, subpart I that was a necessary prerequisite to an award of such pay). See also U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 37 FLRA 1218 (1990) (award enforcing provisions of collective bargaining agreement and agency regulation found deficient as contrary to a controlling Government-wide regulation).
However, the remaining portions of the award directing the Agency to note the employees' exposure to asbestos in their medical records and work histories and to place the employees on medical surveillance monitoring remain intact. In this connection, we note that there were no exceptions filed to those portions of the award. Therefore, in the absence of exceptions or any other apparent basis on which to find those portions of the award deficient, we will not disturb those remedial actions.
Finally, in light of our conclusion that the employees at issue were not entitled to a hazardous duty pay differential, we find that the Union's exceptions seeking interest and pay for an additional period of time, which are predicated on an award of hazardous duty pay, must also be denied.
The portion of the award directing the Agency to pay a hazardous duty pay differential is set aside. The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. The parties used the terms environmental differential pay and hazardous duty pay interchangeably. Environmental differential pay is the term used in connection with Federal Personnel Manual (FPM) Supplement 532-1, Appendix J, which covers WG employees; hazardous duty pay is the term used in connection with 5 U.S.C. § 5545 and the implementing regulations, which cover GS employees. Therefore, although the grievance sought EDP, the correct term for the availability of pay for the performance of hazardous duties by employees in this case is hazardous duty pay and we will use that term, as appropriate, throughout our decision.
2. Article 21, Section 1 provides, in relevant part:
The Employer will make every effort to provide and maintain safe working conditions, to instruct employees in safe working procedures, and to correct reported unsafe conditions to the maximum extent possible . . . .
Article 21, Section 12 provides:
All personnel who work with hazardous materials will be informed of the potential hazards of the material and provided with appropriate training. All instructions will include a listing of precautions for safe handling of the material and the necessity for appropriate personnel protective equipment, clothing, or control devices. When it is determined that a job is sufficiently hazardous, no employee will be permitted to work alone outside of voice contact or observation of other employees.
3. As we stated previously, EDP is the term applied to WG, rather than GS, employees. However, in describing the parties' arguments and the Arbitrator's findings, we will note the usage employed by the parties.
4. Article 20, Section 8 provides:
When either the Union or the Employer determines that a local work situation is such that it should be included in coverage under the payable categories of Appendix J, FPM Supplement 532-1, Subchapter S-8-7, it will notify the other party of the title, location and nature of the hazard warranting payment of environment differential. Within ten (10) calendar days the parties will meet to review and analyze the situation. If it is mutually agreed that an additional category is appropriate, a request will be submitted to appropriate officials.
Although unnecessary to our decision, we note that during the pendency of this case, various provisions of the FPM were abolished and others were provisionally retained through December 31, 1994. See FPM Sunset Document, Summary Table at 8. FPM Supplement 532-1 has been provisionally retained. However, the language of Appendix J would remain viable in any event because it is also contained in the Code of Federal Regulations. See Appendix A to subpart E of 5 C.F.R. part 532.
5. The proposed rule was issued by the Office of Personnel Management (OPM) on August 1, 1990. On June 8, 1993, several days prior to the issuance of the Arbitrator's award, OPM issued its final rule. That rule provides eligible GS employees with a hazardous duty pay differential of 8 percent under Appendix A for exposure to airborne asbestos. In issuing the final rule, OPM specifically rejected requests to provide retroactive coverage and payment. Accordingly, the final rule has prospective effect only.
6. 5 U.S.C. § 5545(d) provides, in relevant part:
(d) The Office shall establish a schedule or schedules of pay differentials for irregular or intermittent duty involving unusual physical hardship or hazard. Under such regulations as the Office may prescribe, and for such minimum periods as it determines appropriate, an employee . . . is entitled to be paid the appropriate differential for any period in which he is subjected to physical hardship or hazard not usually involved in carrying out the duties of his position. . . .
7. Employees whose positions are classified to take into account the performance of hazardous duties are not also eligible to receive the hazardous duty pay differential, unless a waiver is approved by OPM. See 5 C.F.R. § 550.904.
8. On May 4, 1991, the Federal Employees Pay Comparability Act of 1990, Pub. L. No. 101-509, § 203, 104 Stat. 1427, 1456, amended 5 U.S.C. § 5545(d) by deleting the requirement that the hazardous duty must be "irregular or intermittent" in order for an employee to be eligible for payment of a hazard pay differential.