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

[ v54 p3 ]
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 the Arbitrator's award which grants a second 4 percent EDP for the grievants is vacated.

B. The Award Is Not Contrary to 31 U.S.C.A. § 3702(b)

We reject the Agency's contention that the Arbitrator was barred from awarding EDP to the grievants for a period longer than 6 years prior to the filing of the grievance because of the statute of limitations contained in 31 U.S.C.A. § 3702(b).

31 U.S.C.A. § 3702, known as the Barring Act, reads in pertinent part:

(a) Except as provided in this chapter or another law, all claims of or against the United States Government shall be settled as follows:

. . . .

(2) The Director of the Office of Personnel Management shall settle claims involving Federal civilian employees' compensation and leave.

. . . .

(b)(1) The claim must be received by the official responsible under subsection (a) for settling the claim or by the agency that conducts the activity from which the claim arises within 6 years after the claim accrues . . . .

31 U.S.C.A. § 3702 (Supp. 1998).(2)

The Office of Personnel Management (OPM) promulgated general procedures for the settlement of these claims in 62 Fed. Reg. 68139 (1997) (to be codified at 5 C.F.R. Part 178). These regulations state that, except for Fair Labor Standards Act and "other possible statutory limitations" that are not listed, all claims filed against the United States Government are subject to the 6-year statute of limitations contained in 31 U.S.C.A. § 3702(b). 62 Fed. Reg. at 68140 (to be codified at 5 C.F.R. § 178.104). However, these regulations do not apply to "claims concerning matters that are subject to negotiated grievance procedures under collective bargaining agreements entered into pursuant to 5 U.S.C. § 7121(a)." 62 Fed. Reg. at 68139 (to be codified at 5 C.F.R. § 178.101(b), "Scope of Subpart").(3)

Here, the Arbitrator issued his award in response to a grievance filed by the Union under the negotiated grievance procedure. Claims that are handled under a negotiated grievance procedure fall into the "Claims not Covered" section of the regulations. Id. Since the resolution of this grievance was not subject to the regulations, which settle claims under 31 U.S.C.A. § 3702, the Arbitrator was not limited by the 6-year statute of limitations.(4)

Consistent with the foregoing, the award is not deficient as contrary to 31 U.S.C.A. § 3702. Accordingly, we deny the exception.

V. Decision

The Agency's exception that the award is contrary to 31 U.S.C. § 3702 is denied. The Arbitrator's award is modified to vacate the second environmental differential payment for "dirty work."

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

1. There was a question in this case as to whether the Union, Bremerton Metal Trades Council ("BMTC" or "the Union"), had standing to file its opposition, since the labor organization on record as the party to the arbitration was International Association of Machinists and Aerospace Workers, Local Lodge 282 ("IAM, Lodge 282"). The response to the show cause order contains a statement that IAM, Lodge 282 was an affiliate of BMTC and was "therefore empowered to represent the BMTC", and an assertion that BMTC is the "holder of exclusive recognition." Response at 1-2. These statements are uncontested and serve as a basis for considering the Union's opposition.

2. Prior the amendment of 31 U.S.C. § 3702 on October 19, 1996, the statute read in pertinent part:

(a) Except as provided in this chapter or another law, the Comptroller General shall settle all claims of or against the United States Government. . . .

(b)(1) The claim must be received by the Comptroller General within 6 years after the claim accrues . . . .

31 U.S.C. § 3702 (1994).

Regulations that implemented 31 U.S.C. § 3702 before the 1996 amendment were found at 4 C.F.R. § 31.5. Contrary to the Agency's exception, these regulations are no longer in effect. The applicable regulations to 31 U.S.C.A. § 3702 are discussed below.

3. Similarly, the Authority consistently held that the 6-year statute of limitations in the pre-amendment version of 31 U.S.C. § 3702(b) was not applicable in grievance/arbitration, as it "only applie[d] to claims brought before the Comptroller General. See International Association of Firefighters, Local 13 and Panama Canal Commission, General Services Bureau, Balboa, Republic of Panama, 43 FLRA 1012, 1027-28 (1992), citing, Acton v. United States, 21 Cl.Ct. 214, 223 (1990), reversed and remanded on other grounds 932 F.2d 1464 (Fed. Cir. 1991).

4. The grievance in this case was filed by the Union in August, 1994. Thus, there may be some question as to whether the 1996 amendment to 31 U.S.C.A. § 3702 applies retroactively. The retroactive application of the amendment to section 3702 in this case is supported by the Supreme Court's acknowledgment that procedural amendments that do not affect substantive rights may be applied retroactively. Landgraf v. USI Film Products, 114 S. Ct. 1483, 1502 (1994), citing, Ex parte Collett, 337 U.S. 55, 71 (1949). However, we note that the outcome of our decision here would not change under an application of the pre-amendment law.  See note 3, above.