54:0003(1)AR - - Navy, Naval Underseas Warfare Center Division, Keyport, WA and IAM, Local 282 - - 1998 FLRAdec AR - - v54 p3

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The decision of the Authority follows:

54 FLRA No. 1
















April 10, 1998


Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Roger Buchanan 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator awarded the grievants environmental differential pay (EDP) at a rate of 4 percent for the employees' exposure to toxic chemicals (poisons) in the Agency's facility from September, 1985 through July, 1994. The Arbitrator also awarded the grievants a second environmental differential payment at a rate of 4 percent for "dirty work" during the same period. As the award of two categories of environmental differential pay for the same period of work is contrary to law under 5 C.F.R. § 532.511(b)(4), we will modify the award to vacate the second environmental differential payment. The Agency's remaining exception is denied.

II. Background and Arbitrator's Award

The Union filed a grievance claiming the grievants were entitled to backpay based on an 8 percent environmental differential for exposure to lead dust and lead based paint, as well as chromium-based primers and paints in Building 110 of the Activity's facilities. The Union also claimed that the grievants were exposed to solvents such as Toluene, Methyl Ethyl Ketone, and Xylene without any water facilities, air-fed respirators, safety suits or disposable clothes. The Union alleged that these "unsafe and unclean" working conditions and practices occurred from September, 1985 through July, 1994 in Building 110, "the Paint Shop." Award at 4. The Paint Shop was closed in July, 1994, and the painting operation moved to Buildings 726 and 727.

After hearing testimony regarding the grievants' exposure to hazardous materials in Building 110, the Arbitrator concluded that the working conditions in the Agency's facility were "substantially more severe than those normally found in painting installations." Id. at 18. The Arbitrator also found that inadequate design and engineering of the ventilation system in Building 110 posed a serious threat to the employees which was substantially greater than is normally found in similar installations. Id.

As a result, the Arbitrator determined that the many safety problems and hazardous working conditions in Building 110 provided a basis for the affected employees to be granted EDP for their work time spent in Building 110. Id. at 20. As to the amount of the grievants' exposure, the Arbitrator found that the employees who were assigned to Building 110 worked there on a regular basis, and the majority of their time was spent there. Id. Thus, the Arbitrator awarded EDP to each grievant for exposure to hazards at a rate of 4 percent for the period of September 17, 1985 through July, 1994. Id. at 21. In addition, the Arbitrator awarded the grievants "dirty work pay" at a rate of 4 percent for this period, for a total of 8 percent. Id.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the Arbitrator's award of an 8 percent EDP rate, based upon his combination of 4 percent EDP for exposure to hazardous material and 4 percent EDP for "dirty work," is contrary to law. Exceptions at 2. 5 C.F.R. § 532.511(b)(4) provides that an "employee may not be paid more than one environmental differential for a particular period of work." Id. Therefore, the Agency argues that the Arbitrator's award, requiring the Agency to pay both differentials for the same work period, is inconsistent with 5 C.F.R. Part 532, and thus is deficient and must be modified.

The Agency also claims that the Arbitrator's award of backpay to one of the grievants is inconsistent with 31 U.S.C. § 3702(b)(1) and 4 C.F.R. § 31.5(a), as it orders backpay in excess of the 6-year statute of limitations, and must be modified accordingly.

B. Union's Opposition (1)

The Union does not dispute the Agency's first exception, that the Arbitrator's award of a second EDP for the same period of work is inconsistent with 5 C.F.R. § 532.511.

As to the Agency's second exception, the Union asserts that the 6-year statute of limitations does not apply to grievance/arbitration under 5 U.S.C. § 7121.

IV. Analysis

We review questions of law raised by a party's exceptions to an arbitrator's award de novo. U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area Office and National Federation of Federal Employees, BIA Council, 53 FLRA 984, 992 (1997), citing, National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). See also U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994).

A. The Award Is Contrary to 5 C.F.R. § 532.511(b)(4)

As the Agency states in its exceptions, 5 C.F.R. § 532.511(b)(4) provides in pertinent part, "[a]n employee may not be paid more than one environmental differential for a particular period of work." The Union concedes this point. We agree that a correct interpretation of this regulatory language compels us to vacate and set aside the portion of the Arbitrator's award which grants a second 4 percent EDP. Therefore, the portion of th