National Association of Government Employees, Local R5-184 (Union) and United States Department of Veterans Affairs, Veterans Affairs Medical Center, Lexington, Kentucky (Agency)
67 FLRA No. 9
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF VETERANS AFFAIRS
VETERANS AFFAIRS MEDICAL CENTER
November 5, 2012
Before the Authority: Carol Waller Pope, Chairman, and
Ernest DuBester, Member
I.Statement of the Case
Arbitrator C. Forest Guest found that the Union failed to demonstrate any of three factors necessary to establish that the grievants are entitled to environmental-differential pay. The main issue before us is whether the Union has established that the Arbitrator erred. Because the Arbitrator based his award on separate and independent grounds, and the Union has not demonstrated that all of the grounds are deficient, we find that the Union has not established that the Arbitrator erred.
II.Background and Arbitrator’s Award
The grievants are Wage Grade Housekeeping Aides who handle hazardous medical waste. The Union filed a grievance alleging that the Agency improperly denied environmental-differential pay to the grievants. The Arbitrator addressed 5 U.S.C. § 5343(c)(4) (§ 5343(c)(4)), which provides, in pertinent part, that Wage Grade employees are entitled to “proper differentials . . . for duty involving unusually severe working conditions or unusually severe hazards.” The Arbitrator determined that, in order to establish entitlement to environmental-differential pay, the Union was required to demonstrate three factors, specifically, that: (1) the Agency failed to provide training for the grievants; (2) the grievants’ job descriptions fail to specify the hazards associated with performance of their jobs; and (3) the grievants’ personal protective equipment (the protective equipment) does not “practically eliminat[e]” the threat of injury in accordance with Appendix A to 5 C.F.R. Part 532, Subpart E (Appendix A to Part 532), which pertinently provides that Wage Grade employees are entitled to environmental-differential pay for “[w]orking with or in close proximity to micro-organisms which involves potential personal injury [for which] the use of safety devices and equipment . . . have not practically eliminated the potential for such personal injury.”
The Arbitrator concluded that the Union failed to demonstrate any of these three factors. With respect to the third factor, he found that the record evidence supported a conclusion that the protective equipment practically eliminated the threat of injury. And he confirmed that conclusion by conducting his own “private test” of the equipment. Because the Arbitrator found that the Union did not prove any of the three factors, he concluded that the grievants were not entitled to environmental-differential pay, and he denied the grievance.