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50:0275(47)AR - - AFGE, Local 2924 and Air Force, Davis-Monthan AFB, Tucson, AZ - - 1995 FLRAdec AR - - v50 p275

[ v50 p275 ]
The decision of the Authority follows:

50 FLRA No. 47





LOCAL 2924










March 27, 1995


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 exceptions to an award of Arbitrator David W. Doner 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 Arbitrator denied a grievance seeking restoration of environmental differential pay (EDP) for certain bargaining unit employees.

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 deny the exceptions.

II. Arbitrator's Award

Based on the recommendation of its Environmental Differential Pay Committee (EDPC), the Agency's Civilian Personnel Officer terminated EDP for bargaining unit employees working with explosives. The parties formulated the following issue for arbitration:

Whether according to [F]ederal law and regulations, the Employer's decision to terminate and deny EDP for the employees named in the 3 November 1992 grievance was proper?

Award at 5.

At the arbitration hearing, the parties disagreed as to the precise scope of the issue. In attempting to delineate the issue before him, the Arbitrator addressed "two procedural side issues[]" raised by the Union and decided that neither issue was properly before him. Id. at 6. The Arbitrator concluded that the Union's claim that the Agency terminated EDP during the pendency of a question concerning representation (QCR) raised a new issue and that the Union's assertion that the Agency committed an unfair labor practice (ULP) by violating the parties' agreement was tied to the QCR issue.(1)

The Arbitrator then addressed whether the Agency's conduct violated Federal Personnel Manual (FPM), Supplement 532-1, Appendix J.(2) The Arbitrator examined the standard for determining authorization for EDP based on whether protective devices or safety measures had "practically eliminated" the potential for injury and the manner in which that standard has been defined.(3) The Arbitrator also noted the role of both the Office of Personnel Management and the Agency's EDPC in matters pertaining to EDP. The Arbitrator concluded that the Agency's termination of the grievants' EDP was proper.

III. Exceptions

A. Union's Contentions

The Union argues that the Arbitrator misinterpreted law, rule, and regulation by: (1) refusing to hear and rule on the QCR "as a relevant procedural issue[,]" (Exceptions at 3); (2) refusing to consider the ULP issue; and (3) misinterpreting the FPM and the holding of Bendure v. United States, 695 F.2d 1383 (Fed. Cir. 1982) (Bendure), pertaining to the practical elimination of a hazard. In addition, the Union claims that the Arbitrator erred in deciding that the Agency did not have to establish "practical elimination" in order to justify the termination of EDP.

B. Agency's Opposition

The Agency contends that the QCR and ULP issues were not properly before the Arbitrator because they were not timely raised. The Agency also argues that the Union misrepresented the Arbitrator's decision. The Agency claims that the Arbitrator found that the Agency had demonstrated that the grievants' risk of personal injury had been practically eliminated and that, consistent with Bendure, the Arbitrator examined the evidence presented in so finding.

IV. Analysis and Conclusions

A. QCR and ULP

We construe the Union's contention that the Arbitrator failed to address these issues as an assertion that the Arbitrator exceeded the scope of his authority. An arbitrator exceeds his or her authority when, among other things, the arbitrator fails to resolve an issue submitted to arbitration or issues an award that exceeds the scope of the matter submitted to arbitration. See, for example, U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2693, 50 FLRA 212, 217 (1995). In this case, the Arbitrator was required to determine the precise scope of the issue before him because the parties disputed the inclusion of the QCR and ULP issues. We find that, under these circumstances, the Arbitrator did not exceed his authority in determining that those issues were not before him. Therefore, this exception provides no basis for finding the award deficient.

B. Law

We construe the Union's argument that the Arbitrator misinterpreted the FPM and Bendure as a contention that the award is contrary to law. The Union has not established that the award is deficient on this basis.

The Arbitrator found, citing Bendure, that practical elimination did not "equate to" total elimination. Award at 12. In addition, the Arbitrator found that the Agency's termination of EDP was supported by the testimony of two expert witnesses. Finally, the Arbitrator found that the parties' agreement authorized the EDPC to review work situations to determine whether EDP should be continued.

Based on the award as a whole, we conclude that the Arbitrator applied the proper standard in determining that the Agency had correctly terminated EDP. Consequently, this exception provides no basis for finding the award deficient.

V. Decision

The Union's exceptions are denied.

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

1. The record does not show the disposition of the QCR.

2. Effective December 31, 1994, the FPM was abolished. Although the Arbitrator addressed provisions of the FPM that were in existence at the time of his award, the same standards and legal requirements for EDP based on work with explosives were, and continue to be, codified at 5 C.F.R. § 532.511, Appendix A.

3. Appendix A, Category 3 b, pertinently provides that EDP will be paid to employees "[w]orking with . . . explosives and incendiary material which involves potential injury . . . and wherein protective device[s] and/or safety measures have not practically eliminated the potential for such injury[.]"