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50:0021(6)AR - - AF, OK City Air Logistics Center, Tinker AFB, OK and AFGE, Local 916 - - 1994 FLRAdec AR - - v50 p21

[ v50 p21 ]
The decision of the Authority follows:

50 FLRA No. 6















November 17, 1994


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Peyton M. Williams 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 did not file an opposition to the Agency's exception.

The Arbitrator denied in part and sustained in part a grievance alleging that the Agency failed to pay an appropriate rate of environmental differential pay ("EDP") to employees who had been exposed to hazardous metal dust. The Arbitrator ordered the Agency to pay the grievants 4 percent EDP retroactive to the first date of their exposure to hazardous metal dust.

For the following reasons, we conclude that the portion of the Arbitrator's award directing the Agency to pay EDP to the grievants for their exposure to hazardous metal dust prior to November 1, 1970, is deficient under section 7122(a)(1) of the Statute, and we modify that portion of the award.

II. Background and Arbitrator's Award

The Union filed grievances, which were consolidated by agreement, on behalf of 17 bargaining unit employees. The consolidated grievance alleged that the Agency violated the parties' collective bargaining agreement by failing, among other things, to pay 8 percent EDP to grievants exposed to hazardous metal dust, and by failing to pay EDP for the grievants' entire period of exposure.(1) When the grievance was not resolved, it was submitted to arbitration on the following issue, as framed by the Arbitrator:

Did the Agency (Employer) violate the terms of the Master Labor Agreement and/or applicable rules, regulations and laws in this instance[?] And if so, what is the appropriate remedy?

Award at 6.

Although the Arbitrator found that the grievants were exposed to "hazardous metal[] dust[,]" and that their first exposure could have been "as early as 1966[,]" the Arbitrator rejected the Union's claim that the exposure resulted in the grievants' entitlement to 8 percent EDP under Federal Personnel Manual (FPM) Supplement 532-1.(2) Id. at 23. In this regard, the Arbitrator noted that, in order for employees to qualify for 8 percent EDP under the FPM Supplement, their exposure to hazardous material must be capable of causing "serious personal injury such as permanent or temporary, partial or complete loss of faculties, and/or loss of life." Id. The Arbitrator found that, although the grievants might "develop significant health problems in the future as a result of their past exposure to the dust in their work environment," he could not award them 8 percent EDP because there was no evidence in the record that the grievants would "temporarily or permanently, partially or completely, ever fall victim to the loss of their faculties, or likely lose their lives because of those exposures." Id. at 24. The Arbitrator concluded instead that each grievant was entitled to 4 percent EDP "retroactive to the date[s] of his or her first exposure to the hazardous metal[] dust . . . ." Id. at 32.

III. Exception

The Agency excepts only to the portion of the award encompassing EDP payment prior to November 1, 1970. In this connection, it contends that there is no legal authority for such payment prior to that date.

IV. Analysis and Conclusions

The Federal government is subject to monetary liability only to the extent it has waived its sovereign immunity and specifically authorized such liability. See, for example, United States v. Testan, 424 U.S. 392, 398-99 (1976). Further, a "waiver of the traditional sovereign immunity 'cannot be implied but must be unequivocally expressed.'" Id. (citations omitted); see also National Labor Relations Board, Office of the General Counsel and National Labor Relations Board Union, 36 FLRA 743, 746-47 (1990).

As relevant here, the statutory basis for EDP claims is 5 U.S.C. § 5343(c)(4)(1988) (originally enacted as Pub. L. No. 92-392, § 1(a), 86 Stat. 564, 566 (1972)), which directs the Office of Personnel Management (OPM) to provide, by regulation, "proper differentials . . . for duty involving unusually severe working conditions or unusually severe hazards[.]" In establishing those regulations, OPM promulgated FPM Supplement 532-1, which states, in pertinent part, that "[a]n agency shall pay the environmental differential in [A]ppendix J to a wage [grade] employee . . . when the employee is performing assigned duties which expose him/her to an unusually severe hazard, physical hardship, or working condition listed in [A]ppendix J, on or after the effective date specified." See FPM Supplement 532-1, subchapter S8-7f.(1) (emphasis added). The effective date specified in Appendix J for the poison/toxic chemical category is November 1, 1970.

In view of this regulation, November 1, 1970, is the earliest date on which EDP could be paid for exposure to hazardous metal dust under the poison/toxic chemical category of FPM Supp. 532-1, Appendix J. In this connection, there is nothing in 5 U.S.C. § 5343(c)(4) or the FPM Supplement 532-1, Appendix J, which expressly authorizes the payment of EDP for exposure to hazardous metal dust prior to November 1, 1970. Moreover, we are aware of no other express authorization for the Arbitrator's award to extend to earlier exposure, and none has been cited to us.

We conclude that, as there is no statutory or regulatory authorization for the payment of EDP for exposure to hazardous metal dust prior to November 1, 1970, any award of EDP prior to that date is deficient. See U.S. Department of the Navy, Glenview Naval Air Station, Glenview, Illinois and American Federation of Government Employees, Local 1641, 48 FLRA 1420, 1429-31 (1994); Bevelheimer v. United States, 4 Cl. Ct. 558, 560 n.1 (1984). Accordingly, we hereby modify the portion of the award directing payment of EDP prior to November 1, 1970 as indicated below.

V. Decision

The award is modified by striking the portion of the award which states:

Their request for EDP retroactive to the date(s) of their first exposure is sustained, but at the rate of 4 [percent] only, with appropriate interest to be paid for the time involved.

and by replacing that portion with:

The grievants exposed to hazardous metal dust are entitled to EDP retroactive to November 1, 1970, at the rate of 4 percent only, with appropriate interest to be paid for the time involved.


FPM Supplement 532-1, Appendix J, Part II provides, in pertinent part:

Differential rate  Category for which payable  Effective date
 8%  4. Poisons (toxic chemicals)--high degree hazard.  Nov. 1, 1970

Working with or in close proximity to poisons (toxic chemicals), other than tear gas or similar irritants, which involve [sic] potential serious personal injury such as permanent or temporary, partial or complete loss of faculties and/or loss of life including exposure of an unusual degree to toxic chemicals, dust, or fumes of equal toxicity generated in work situations by processes required to perform work assignments wherein protective devices and/or safety measures have been developed but have not practically eliminated the potential for such personnel injury.

. . . .

 4%  5. Poisons (toxic chemicals)--low degree hazard.  Nov. 1, 1970

a. Working with or in close proximity to poisons (toxic chemicals other then tear gas or similar irritating substances) in situations for which the nature of the work does not require the individual to be in as direct contact with, or exposure to, the more toxic agents as in the case with the work described under high hazard for this class of hazardous agents.

. . . .


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

1. During the time the grievance was being processed through the parties' negotiated grievance procedure, the Agency approved 4 percent EDP for certain grievants. The remainder of the grievance was the subject of a 4-day hearing after which the Arbitrator issued a decision and award.

2. FPM Supplement 532-1, Appendix J contains a list of categories of work for which EDP is payable, the job activities within each category, the percentage differential for each category, and the effective date for each category. Here, the Arbitrator found, and it is undisputed, that exposure to metal dust falls within the poisons/toxic chemicals category. Under this category, employees are entitled to an 8 percent differential for a high degree exposure to toxic chemicals, or a 4 percent differential for a low degree exposure to toxic chemicals. See Appendix.

Recently, various provisions of the FPM were abolished and others were provisionally retained through December 31, 1994. See FPM Sunset Document at 1. FPM Supplement 532-1 has been provisionally retained, and the relevant provisions are contained in the Appendix to this decision. See id., Chapter Summary Sheet at 68.