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61 FLRA No. 82
OF POLICE OFFICERS, LOCAL 591
DEPARTMENT OF THE NAVY
NAVY REGION MID-ATLANTIC
FOR PUBLIC SAFETY
December 20, 2005
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on an exception to an award of Arbitrator Joshua M. Javits filed by the Union under § 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 Agency's exceptions.
The grievance in this case concerned a claim for hazard pay differential. [n1] The Arbitrator denied the grievance.
For the following reasons, we deny the Union's exception.
II. Background and Arbitrator's Award
The grievant is a Police Officer (Explosive Dog Handler), GS-9, at the Norfolk Naval Base. His typical work environment includes high-crime areas where potentially harmful physical danger is present. His work often involves contact with drug abusers and, thus, he has a high risk of coming into contact with individuals who may have HIV-AIDS.
During the periods of September 27, 2001 to October 29, 2001 and January 23, 2002 to February 20, 2002, the grievant was temporarily assigned to naval facilities in Washington, D.C. His duties, while on temporary assignment, included searching, with his dog, Postal Service vehicles, and packages therein, which had originated from the Brentwood Postal Facility. The Brentwood Facility was determined to have been the source of possible anthrax contamination during this period. When the Agency became aware of this potential anthrax contamination, it directed the grievant to undergo medical examination to determine whether he had been exposed to anthrax.
When the grievant became aware that he might be entitled to HPD for potential exposure to anthrax, he filed a grievance. The Agency denied the grievance and it was submitted to arbitration.
The Arbitrator framed the issue as follows:
Is the [g]rievant . . . entitled to [HPD] for exposure to anthrax for the time frame he was detailed to Naval District Washington . . . ?
Arbitrator's Award (Award) at 2. [n2]
The Arbitrator noted that, under 5 C.F.R. § 550.904(a), an agency must pay the HPD listed in Appendix A of the regulations to an employee who is assigned to and performs any duty specified in Appendix A. [n3] The Arbitrator indicated that, under the Appendix, employees may be entitled to HPD if their duties involve virulent biological material, i.e., materials of micro-organic nature which, when introduced into the body, can cause serious disease or fatality. The Arbitrator also noted that, under 5 C.F.R. § 550.904(a), an employee will not be paid HPD if the hazardous duty or physical hardship is taken into account in the classification of the employee's position.
The Arbitrator found that, under the Police Officer Classification Standard Guidelines (Guidelines), the grievant's position is classified as Level 9-3, the category designated as involving exposure to the highest [ v61 p435 ] type of risks. Specifically, the standards classify such work environments as those which regularly involve high risks with exposure to potentially dangerous situations or unusual environmental stress. He also found that Level 9-2, described as involving moderate risk, was defined as including the possibility of exposure to infectious biological materials. He noted in this regard that the grievant's position description stated that his duties would involve potential exposure to HIV-AIDS, which could be described as infectious biological material. [n4]
The Arbitrator found that, "based on the position description alone, there is insufficient basis" for concluding that "potential anthrax exposure was an occupational hazard that was foreseen in the [g]rievant's position description." Award at 13. Rather, he found the Guidelines "compelling." Id. Referencing the fact that Level 9-2 explicitly mentioned "infectious biological materials," he stated that this classification standard clearly contemplated employees being exposed to anthrax. [n5] He noted further in this regard that the grievant's position was classified at the next higher level and involved a higher level of risk. Noting that higher level of risk, the Arbitrator found that "[w]hile no reference to `infectious biological agents' is made in the Level 9-3 grade classification, it may be assumed that this position would encapsulate all the risks of the Level 9-2 provision; particularly as the Level 9-3 position is considered `high risk' as opposed to the `moderate risk' rating of Level 9-2." Id. at 15.
Based on this analysis, the Arbitrator found that the type of risk involved in potential exposure to anthrax "was incorporated into the [g]rievant's position description." Id. at 15. Consequently, the Arbitrator concluded that the grievant "is not entitled to HPD differential under the O[ffice of] P[ersonnel] M[anagement] regulations." Id. At 16.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the Arbitrator's award is contrary to law. Specifically, the Union maintains that the Arbitrator's finding that "mention of possible exposure to HIV in the [g]rievant's position description is sufficient to disqualify the [g]rievant from [HPD] . . . is contrary to the language and the intent of the law for such payments." Exceptions at 3. According to the Union, "[t]here is no reference to airborne biological agents in the position description and no one anticipated such a risk." Id. at 4.
The Union refers to 5 C.F.R. § 550.904(b)(1), which provides that HPD may be paid when the actual circumstances of the specific hazard or physical hardship have changed from that taken into account and described in the position description. According to the Union, this provision means that for a position description to include a particular hazard that hazard must be referenced in the position description. The Union asserts that use of broad language to describe a type of risk is not sufficient to include a specific hazard in the position description.
B. Agency's Opposition
The Agency contends that the Arbitrator's award is consistent with law because the particular hazard involved in this case, exposure to anthrax, had been factored into his position description. The Agency argues that the grievant's position was classified at the highest risk level and that that level would include exposure to infectious biological material. In this connection, the Agency points out that the grievant's position description references exposure to HIV and that HIV is an infectious biological material.
IV. Analysis and Conclusions
When a party's exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority determines whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See, e.g., AFGE, Local 2635, 56 FLRA 114, 115 (2000). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
Under 5 U.S.C. § 5545(d)(1), the hazard pay differential provided by § 5545(d) "does not apply to an employee in a position the classification of which takes into account the degree of physical hardship or hazard involved in the performance of the duties thereof, except in such circumstances as the Office of Personnel Management may by regulation prescribe." Fraternal Order [ v61 p436 ] of Police, Local 158, 58 FLRA 371, 372 (2003). See also 5 C.F.R. § 550.904(a). The Union argues that the Arbitrator erred in determining that reference to possible exposure to HIV in the grievant's position description is sufficient to constitute exposure to infectious biological materials under the classification standard applied to his position.
The Union's argument is unavailing. The Arbitrator specifically found that such a reference in the position description was not sufficient. However, the Arbitrator based his conclusion, that the classification of the grievant's position encompassed exposure to infectious biological materials, on the fact that his classification at the highest level included hazards referenced in the moderate hazard level. The Union does not challenge whether that conclusion is contrary to law. We note, in this regard, that the Union: (1) does not dispute that the grievant's position is already classified at, and the grievant therefore is being paid commensurate with, the higher level of risk; and (2) does not claim, or demonstrate, that an employee may be classified, and paid, simultaneously with respect to hazards categorized at two levels of risk. Moreover, no other basis is argued to find that the Arbitrator's conclusion is erroneous as a matter of law. Therefore, the Union has not established that the award is contrary to law.
The Union's exception is denied.
1. 5 C.F.R. § 550.904(a) provides, in relevant part, as follows:
§ 550.904 Authorization of hazard pay differential.
(a) An agency shall pay the hazard pay differential listed in Appendix A of this subpart to an employee who is assigned to and performs any duty specified in Appendix A of this subpart. However, hazard pay differential may not be paid to an employee when the hazardous duty or physical hardship has been taken into account in the classification of his or her position, without regard to whether the hazardous duty or physical hardship is grade controlling . . . .
2. Appendix A of Subpart I (Pay for Duty Involving Physical Hardship or Hazard) of Part 550 provides, in relevant part, as follows:
Schedule of Pay Differentials Authorized For Hazardous Duty Under Subpart I
. . . .
Exposure to Hazardous Agents, work with or in close proximity to:
. . . .
(5) Virulent biologicals. Materials of micro-organic nature which when introduced into the body are likely to cause serious disease or fatality and for which protective devices do not afford complete protection.
3. The Guidelines provide, in relevant part, as follows:
FACTOR 9, WORK ENVIRONMENT
. . . .
Level 9-2--20 Points
The work is performed in settings in which there is regular and recurring exposure to moderate discomforts and unpleasantness, such as high levels of noise in industrial settings, high temperatures in confined spaces, or adverse weather conditions during extended periods of traffic and patrol duties. The employee may be required to use protective clothing or gear such as masks, gowns, coats, boots, goggles, or shields. The work involves moderate risk requiring exercise of safety precautions when working around hazardous materials such as toxic gases, explosives, infections biological materials, and others that pose a moderate risk of exposure. The work also involves moderate risk and discomfort when working outdoors without shelter or operating vehicles for extended periods of time over rough terrain.
Level 9-3--50 Points
The work environment regularly involves high risks with exposure to potentially dangerous situations or unusual environmental stress which require a range of safety and other precautions (e.g., subject to possible physical attack or mob conditions, or similar situations where conditions cannot be controlled). This level includes work in a high crime area where the public has easy access and officers must patrol in locations where persons may be armed while attempting auto theft, vandalism, narcotics transactions, and other offenses which can lead to assault with or without a weapon in order to avoid arrest. Also at this level are police and guard operations regularly performed in areas of extremely rough terrain with wide annual variations in climatic conditions such as encountered in very large military installations or Indian reservations.
Footnote # 1 for 61 FLRA No. 82 - Authority's Decision
The Arbitrator and the parties use the term "hazardous duty pay." The correct term for pay involving physical hardship or hazard is "hazard pay differential." We will use the term "hazard pay differential," and its abbreviation, (HPD), instead of the term and abbreviation used by the Arbitrator and the parties. See United States Dep't of the Army, Alaska, 54 FLRA 1117, 1117 n.1 (1998).
Footnote # 2 for 61 FLRA No. 82 - Authority's Decision
The issues as stated by the Arbitrator included a question as to whether the grievance was timely filed. The Arbitrator found that the grievance was timely and no exceptions were filed as to that finding, Thus, it will not be considered further in this decision.
Footnote # 3 for 61 FLRA No. 82 - Authority's Decision
Footnote # 4 for 61 FLRA No. 82 - Authority's Decision
A typical office setting and kennels are used as a base; the incumbent is often required to work in high crime areas and where a certain potentially harmful physical danger is present. Since the contact is with drug abusers, the incumbent has a high risk of coming into contact with an individual who may have AIDS.
Footnote # 5 for 61 FLRA No. 82 - Authority's Decision