U.S. Federal Labor Relations Authority

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51:0720(61)AR - - NAGE, Local R7-36 and Army, Savanna Army Depot Activity, Savanna, IL - - 1995 FLRAdec AR - - v51 p720

[ v51 p720 ]
The decision of the Authority follows:

51 FLRA No. 61















December 29, 1995


Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator David A. Dilts 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 Regulations. The Agency filed an opposition to the Union's exception.

The Arbitrator denied a grievance contesting the Agency's failure to pay environmental differential pay (EDP) for certain shift work. For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a)(1) of the Statute. Accordingly, we deny the exception.

II. Arbitrator's Award

Employees were assigned to work on a renovation and maintenance project for artillery projectiles that involved, as relevant here, unscrewing the nose cone of each projectile, which contained a propellant charge bag and sub-munitions. The Agency scheduled the employees to be paid a 4 percent environmental differential for the work performed on the project. During the course of the project, torn propellant bags were found in some of the projectiles.

Because propellant from the torn bags could theoretically become lodged in the threads of the nose cone, and the friction from unscrewing the nose cone could produce enough heat to cause the propellant to detonate and the sub-munitions to be ejected, the Union filed a grievance claiming that the employees should receive 8 percent EDP. The Agency granted the 8 percent differential for employees working on shifts during which torn propellant bags were found and denied relief for all other shifts. The Union contested the Agency's denial and invoked arbitration. The issue stipulated to the Arbitrator by the parties was whether the 8 percent differential should be paid for work performed on the "project[] for those days when no [propellant] charge bag was found to be torn?" Award at 1.

Initially, the Arbitrator found that there was no dispute that "a torn expulsion charge bag can potentially create a significant hazard[] . . . consistent with that described requiring the eight percent environmental pay differential." Id. at 9. Next, the Arbitrator determined that the provisions of Federal Personnel Manual (FPM) Supplement 532-1, S8-7(i),(1) and Appendix J(2) applied to this case.(3) The Arbitrator stated that both applicable provisions must be read together and in their "entirety." Id. at 11. Applying both provisions, the Arbitrator concluded that FPM Supplement 532-1, S8-7(i) required that employees receive the higher differential only "in cases where 'actual exposure' to the hazard exists." Id. Accordingly, the Arbitrator denied the grievance, concluding that, under the standard of "actual exposure," the 8 percent differential was not payable for those shifts in which no torn bags were found.

III. Positions of the Parties

A. Union

The Union argues that the Arbitrator's award is contrary to law because the Arbitrator did not properly consider the requirement of "actual exposure" under FPM Supplement 532-1, Appendix J. Although the Union agrees that actual exposure to a hazardous condition is required under the FPM before EDP can be paid, it claims that the Arbitrator "wrongly used a standard of 'actual exposure' to torn expulsion bags to decide whether the higher rate should be paid." Exception at 5. The Union claims that the hazardous condition to which the employees were actually exposed was "working on projectiles that had a possibility of detonating . . . ." Id. at 4. The Union claims that because there was no way of knowing, when working on the projectile, whether or not a charge bag was torn until the nose cone was removed, the hazardous condition existed when the work was performed, and the Agency had the obligation to pay the higher level EDP on all shifts of the project.

B. Agency

The Agency states that the Arbitrator correctly applied the standard of "actual exposure" as required by the FPM and properly limited the payment of 8 percent EDP to those shifts in which torn propellant bags were found.

IV. Analysis and Conclusions

The Authority has consistently held that specific work situations for which EDP is payable under the categories codified in 5 C.F.R. § 532.511, Appendix A are left to local determination, including arbitration. E.g., U.S. Department of the Army, McAlester Army Ammunition Plant, McAlester, Oklahoma and American Federation of Government Employees, Local 2815, 36 FLRA 434, 438 (1990). However, to justify the payment of EDP, an arbitrator's award must meet all pertinent regulatory requirements. E.g., U.S. Department of the Navy, Navy Public Works Center, San Diego, California and National Association of Government Employees, Local R12-35, 49 FLRA 553, 559 (1994).

In this case, the Arbitrator correctly determined that there were two applicable FPM provisions: FPM Supplement 532-1, Appendix J, Part II, Category 2, which entitles employees to 8 percent EDP for "work with or in close proximity to explosives and incendiary material which involves potential personal injury . . . and/or loss of life . . . [,]" and FPM Supplement 532-1, S8-7(i),(4) which authorizes EDP when there is "actual exposure to the environmental condition." Applying these provisions, the Arbitrator stated that he "may sustain differential pay only in cases where 'actual exposure' to the hazard exists[,]" a hazard which he determined, in this case, to be the projectiles with torn propellant bags. Award at 10, 11.

There is nothing in the Arbitrator's application of the relevant FPM provisions which indicates that he used or applied an improper standard or requirement. In fact, the Union does not except to the Arbitrator's interpretation of the regulatory requirements, including the standard of "actual exposure," and specifically states that it "does not dispute that actual exposure is required before EDP can be paid." Exception at 4. Instead, the Union disagrees with the Arbitrator's apparent conclusion that the hazard to which actual exposure is required is torn expulsion bags.(5) However, the Union's argument that the Arbitrator "wrongly used a standard of 'actual exposure' to torn expulsion bags[,]" rather than actual exposure to "projectiles that had a possibility of detonating[,]" (Exception at 5 and 4) goes only to the Arbitrator's finding of fact as to what constitutes the necessary hazard. As such, the Union's argument does not demonstrate that the award is contrary to the regulatory requirements of 5 C.F.R. § 532.511.(6) Accordingly, and as there are no other reasons apparent to us for finding the award deficient as contrary to law, the Union's exception is denied. E.g., Davis-Monthan AFB, 50 FLRA at 278.

V. Decision

The Union's exception is denied.

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

1. As relevant here, FPM Supplement 532-1, S8-7(i) states:

An environmental differential is paid under appendix J either on the basis of actual exposure (part I) or on the basis of hours in a pay status (part II). A wage employee who is exposed to a situation for which an environmental differential is authorized under appendix J is entitled to the appropriate differential . . . . However, to receive a differential, either under part I or part II, there must be actual exposure to the environmental condition.

2. FPM Supplement 532-1, Appendix J, Part II, states, in relevant part:

2. Explosives and incendiary material--high degree hazard. Work with or in close proximity to explosives and incendiary material which involves potential personal injury such as permanent or temporary, partial or complete loss of sight or hearing, partial or complete loss of any or all extremities; other partial or total disabilities of equal severity; and/or loss of life resulting from work situations wherein protective devices and/or safety measures either do not exist or have been developed but have not practically eliminated the potential for such personal injury. Normally, such work situations would result in extensive property damage requiring complete replacement of equipment and rebuilding of the damaged area; and could result in personal injury to adjacent employees.

3. 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(a)-(d) and 5 C.F.R. § 532.511, Appendix A. E.g., American Federation of Government Employees, Local 2924 and U.S. Department of the Air Force, Davis-Monthan Air Force Base, Tucson, Arizona, 50 FLRA 275, 276 n.2 (1995) (Davis-Monthan AFB).

4. FPM Supplement 532-1, S8-7(i) states that an employee shall receive EDP, when "actual exposure to the environmental condition[]" occurs, while its 5 C.F.R. § 532.511(a)(1) counterpart states that an employee shall receive EDP when "exposed" to a working condition or hazard. Although there is a slight difference between the wording of the FPM Supplement provision and its parallel provision in the C.F.R., there is no argument that this difference changes the standard and legal requirements for granting EDP.

5. The Arbitrator did not make a specific finding on this point. However, it is apparent from his conclusions that he adopted the view, as stated by the Agency, that "employees must actually be exposed to the hazard, i.e. torn expulsion charge bags[.]" Award at 10. We note that the Union also interprets the award this way. Exception at 5.

6. Because the same standards and legal requirements previously contained in the FPM continue to be codified in the C.F.R., the conclusion we reach would be the same whether or not we applied the now-expired FPM Supplement. Consequently, we need not address the question of whether the abolition of the FPM would affect the outcome of this case, and whether that abolition should be retroactively applied. See U.S. Department of the Treasury, Internal Revenue Service and National Treasury Employees Union, 51 FLRA 310, 316 n.7 (1995).