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61 FLRA No. 120
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF JUSTICE
BUREAU OF PRISONS
UNITED STATES PENITENTIARY
July 18, 2006
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator John M. Creger 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 Union's exceptions.
The Arbitrator denied the grievance, which alleged that the grievants were entitled to premium pay for exposure to second-hand cigarette smoke. For the reasons set forth below, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievants are employees at a federal correctional facility. The Union filed a grievance alleging that the grievants were entitled to hazard pay differential (HPD) and environmental differential pay (EDP) for exposure to second-hand cigarette smoke. See Award at 2. The Agency denied the grievance, and the parties submitted it to arbitration. As relevant here, the parties stipulated the issues to be: (1) whether the grievants are entitled to HPD or EDP pursuant to 5 C.F.R. parts 550 and 532 [n1] ; and (2) whether the Agency violated the parties' agreement by not providing the grievants with HPD or EDP. [n2] See id. at 3.
The Arbitrator determined that HPD and EDP are "payable only in accordance with applicable laws and regulations." Id. at 20. Specifically, he found that such premium pay is authorized for the performance of duties or exposure to hazards set forth in 5 C.F.R. Part 550, Subpart I, Appendix A (HPD Appendix A) and 5 C.F.R. Part 532, Subpart E, Appendix A (EDP Appendix A). See id. at 21, 20. He also found that, pursuant to 5 C.F.R. § 550.903(b), amendments to the HPD Appendix A may be made by the Office of Personnel Management (OPM) on its own motion or at the request of the head of an agency. [n3] See id. at 20 .
Applying the foregoing law, the Arbitrator found that exposure to second-hand smoke was not a hazard for which premium pay was available. See id. at 21, 20. The Arbitrator further found that, while premium pay could have been available to employees if the Agency had exercised its authority under 5 C.F.R. § 550.903(b), the Agency had "not unilaterally chosen to do so" and the Union had not "requested the Agency to undertake efforts in that regard[.]" Id. at 20-21. Accordingly, the Arbitrator determined that the grievants were not entitled to premium pay for exposure to second-hand smoke. Id. at 22.
With regard to whether the Agency violated Articles 27, 29, and 40 of the parties' agreement, the Arbitrator determined that Articles 29 and 40 were "inapplicable[.]" [n4] Id. at 16. According to the Arbitrator, Article 29 "makes no reference . . . to smoke, smoking, secondhand smoke, or the hazards thereof" and Article 40 is "specifically limited to the subject of asbestos in the workplace[.]" Id. at 16, 17. With regard to Article 27, which concerns the safety and health of employees, the Arbitrator found that there is "no evidence that any bargaining unit member has suffered serious bodily injury or death attributable to secondhand smoke[.]" Id. at 19. As such, the Arbitrator found that [ v61 p626 ] the "record does not contain scientific, technical, or other evidence sufficient to support a finding that the Agency violated any portion of Article 27." Id.
Based on the foregoing, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union claims the award is contrary to 5 C.F.R. Parts 550 and 532 because the Agency had an independent obligation to request OPM to include second hand smoke within the coverage of those C.F.R. provisions, even where the Union has not requested the Agency to do so. See Exceptions at 11-15. Specifically, the Union asserts that, contrary to the Arbitrator's finding, these regulations do not require a union to request that an agency petition OPM to include a particular duty or hazard in the HPD or EDP appendices before that duty or hazard can be included and employees compensated for performance of the duty or exposure to the hazard. See id. at 12, 14-15. Instead, the Union contends that an agency has the authority to petition OPM to include a particular duty or hazard in the relevant appendices without being requested by a union to do so. See id. at 13. As support for its contention, the Union relies on Authority precedent finding that "agencies have discretion to decide whether payment of a hazard pay differential to . . . employees exposed to tobacco smoke is appropriate." Id. at 14 (quoting Nat'l Ass'n of Gov't Employees, 43 FLRA 414, 423 (1991) (NAGE)).
The Union also claims that the award fails to draw its essence from Article 29 of the parties' agreement. In this connection, the Union contends that by requiring it to request that the Agency petition OPM to include second-hand smoke in the HPD and EDP appendices, the Arbitrator added to Article 29 a requirement that the Union have "equal responsibility for providing a safe work environment." Id. at 15-16.
B. Agency's Opposition
The Agency contends that the award is not contrary to law. In this regard, the Agency asserts that HPD and EDP may be paid only to employees exposed to one of the hazards or performing one of the duties listed in the HPD or EDP appendices. According to the Agency, as the relevant appendices do not authorize premium pay for exposure to second-hand smoke, the Arbitrator properly concluded that the grievants were not entitled to such pay. See Opposition at 7-8.
In addition, the Agency disputes the Union's claim that the award fails to draw its essence from Article 29 of the parties' agreement. In this connection, the Agency claims that the Arbitrator did not find that the Agency and the Union have "equal responsibility" for providing a safe work environment. Id. at 11. Instead, the Agency contends that the Arbitrator referenced the requirements of Article 29, but found that the provision made "no reference . . . to smoke, smoking, secondhand smoke, or the hazards thereof." Id. at 12. Moreover, the Agency asserts that the Arbitrator did not find that the Union was required to request that the Agency petition OPM to include second-hand smoke in the HPD and EDP appendices. According to the Agency, the Arbitrator "simply noted that [the Union] chose not to do so[.]" Id.
IV. Analysis and Conclusions
A. The award is not contrary to law.
The Union claims that the award is contrary to 5 C.F.R. Parts 550 and 532. The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 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 de novo standard of review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
Under 5 C.F.R. Parts 550 and 532, an employee is entitled to HPD or EDP as applicable if the employee "is assigned to and performs any duty specified" in the HPD appendix or when the employee is "exposed to a working condition or hazard that falls within" one of the categories set out in the EDP appendix. See 5 C.F.R. § 550.904(a); 5 C.F.R. § 532.511(a)(1). Additionally, unions have the ability to negotiate with agencies to have an agency petition OPM to have OPM include additional matters to the HPD and EDP Appendices. See OPM Manual, Paragraph S8-7g.3.b. (EDP); [ v61 p627 ] 5 C.F.R. § 550.903(b) (HPD); NTEU, NTEU Chapter 51, 40 FLRA 614, 622 (1991) (HPD). [n5] Once OPM decides to include the additional matter in the relevant appendix, employees may be compensated as appropriate for their exposure to that working condition or hazard (EDP)/performance of that duty (HPD).
None of the authorities noted above, however, require an agency to affirmatively seek to have second hand smoke, or any other matter, added to the lists set out in the HPD and EDP Appendices, and the Union's arguments in support of its exception do not establish otherwise. In that regard, the Comptroller General decision discussed in the Authority's NAGE decision addresses an agency's discretion to determine whether a local situation falls within the coverage of a matter already listed in the EDP Appendix, and not with any agency independent obligation to petition OPM to have OPM include additional matters to the HPD and EDP Appendices. And, that decision in any event does not require an agency to always exercise its discretion in such a way so as to always ensure the broadest possible application of the HPD and EDP Appendices to employees.
With regard to the Union's claim that the Arbitrator erred in finding that the Union was required to request the Agency to petition OPM to include exposure to second-hand smoke in the HPD Appendix A, we conclude that the Arbitrator made no such finding. Instead, the Arbitrator merely found that the Agency had not made a request to OPM and the Union had not "requested the Agency to undertake efforts in that regard[.]" Award at 20-21. There is no indication in the award that the Arbitrator required the Union to request that the Agency petition OPM to include exposure to second-hand smoke in the HPD or EDP Appendix A. See Award at 20-21. Accordingly, the Union has not established that the Arbitrator erred in this regard.
As the Union's exception provides no basis for finding the award contrary to law, we deny the exception.
B. The award does not fail to draw its essence from the parties' agreement.
In order for an award to be deficient as failing to draw its essence from the parties' agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
The Union asserts that by requiring it to request that the Agency petition OPM to include second-hand smoke in relevant appendices, the Arbitrator added to Article 29 a requirement that the Union have "equal responsibility for providing a safe work environment." Exceptions at 15-16. As explained above, the Arbitrator did not require the Union to take any action regarding the inclusion of second-hand smoke in the relevant appendices. Instead, the Arbitrator found that, although the Agency had the authority to request OPM to amend the HPD Appendix A to include second-hand smoke, the Agency had "not unilaterally chosen to do so" and the Union had not "requested the Agency to undertake efforts in that regard[.]" Award at 20-21. As there is no indication that the Arbitrator added a requirement to Article 29, or any other provision of the parties' agreement, we find that the Union has failed to demonstrate that the award fails to draw its essence from the parties' agreement. Accordingly, we deny the exception.
The Union's exceptions are denied.
Footnote # 1 for 61 FLRA No. 120 - Authority's Decision
5 C.F.R. Parts 550 and 552 apply to General Schedule employees and Wage Grade employees, respectively. See 5 C.F.R. § 550.902 (employee within the meaning of this subpart is an employee covered by the General Schedule); 5 C.F.R. § 532.103 (provisions of this part shall apply to Wage Grade employees). Based on the Union's claims that the grievants are entitled to both types of pay, we assume, for the purposes of this decision, that the grievance involves both General Schedule and Wage Grade employees.
Footnote # 2 for 61 FLRA No. 120 - Authority's Decision
Footnote # 3 for 61 FLRA No. 120 - Authority's Decision
5 C.F.R. § 550.903(b) states, in pertinent part, that "[a]mendments to appendix A of this subpart may be made by OPM on its own motion or at the request of the head of an agency (or authorized designee)." 5 C.F.R. § 550.903(b).
Footnote # 4 for 61 FLRA No. 120 - Authority's Decision
As pertinent here, Article 27 addresses the safety and health hazards associated with normal Agency operations and states that the Agency "agrees to furnish to employees places and conditions of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm, in accordance with all applicable federal laws, standards, codes, regulations, and executive orders." Award at 3. In addition, as relevant here, Article 29 states that "[t]he Employer agrees to provide, at a minimum, all permanent, active institution towers with the following items . . . heaters/air conditioning . . . ." Opposition, Attachment D; see Award at 4; Exceptions at 5. Further, Article 40 concerns asbestos and provides that "[w]hen all the conditions as specified in applicable laws[,] rules, and regulations are met for hazardous duty pay or environmental differential pay, employees will be compensated as required." Award at 5.
Footnote # 5 for 61 FLRA No. 120 - Authority's Decision
Member Pope notes that, under long-standing Authority precedent, parties may also negotiate over categories of duties/exposure for which employees are contractually entitled to premium pay. See Int'l Ass'n of Machinists & Aerospace Workers, Dist. Lodge 725, Local Lodge 726, 60 FLRA 196, 199 (2004); United States Dep't of the Army, Red River Army Depot, Texarkana, Tex., 53 FLRA 46, 51 (1997); and NAGE, 43 FLRA at 422-25. The Union's reliance on NAGE in this case is, however, misplaced, because that case concerns the scope of bargaining and provides no basis for employees to claim entitlement to premium pay absent contract terms providing for such payment. As the Union does not claim that there is such a contract entitlement in this case, this precedent does not demonstrate that the award is contrary to law.