71 FLRA No. 149                                                                                                                                                              

 

UNITED STATES

DEPARTMENT OF VETERANS AFFAIRS
JOHN J. PERSHING VA MEDICAL CENTER
(Agency)

and

AMERICAN FEDERATION

 OF GOVERNMENT EMPLOYEES
LOCAL 2328

(Union)

 

0-AR-5491

 

_____

 

DECISION

 

May 29, 2020

_____

 

Before the Authority:  Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members

(Member DuBester dissenting)

 

Decision by Member Abbott for the Authority

I.             Statement of the Case

 

                 In this case, we address an arbitrator’s failure to make the necessary factual findings to support an award of hazard pay for certain nursing professionals.

 

The Union filed a grievance contending that Registered Nurses (RNs), Licensed Practical Nurses (LPNs), and other employees are entitled to environmental or hazard pay differential for dealing with certain hazardous materials.  Arbitrator George Deretich determined that the grievance was not arbitrable as to the RNs, but that it was arbitrable as to the LPNs and other employees, and he awarded hazard pay.

 

We deny the Union’s exceptions that challenge the Arbitrator’s conclusion that the grievance was not arbitrable as to the RNs under 38 U.S.C. § 7422 because the Union fails to explain how the Arbitrator erred.  The Agency argues that the Arbitrator’s award of a hazard pay differential for the LPNs is contrary to law, contrary to public policy, and based on a nonfact.  Because we find that the Arbitrator failed to make the necessary findings to award a hazard pay differential, we grant the Agency’s contrary-to-law exception and set aside that portion of the award.

 

II.            Background and Arbitrator’s Award

 

                The Union filed a grievance seeking environmental differential pay or a hazard pay differential (HPD)[1] for RNs, LPNs, and Advanced Medical Support Assistants (AMSAs) at five of its outpatient facilities.  The Union alleged that the grievants handle and transport hazardous material, which is a duty not factored into the function of their job positions.  At any of the facilities, the grievants may have to change out and dispose of biohazardous red waste bags and sharps containers that contain used needles, bodily fluids, and chemicals. 

 

Prior to the hearing, the Agency requested that the Arbitrator temporarily suspend the arbitration because it had requested a determination from the Agency’s Under Secretary for Health (Under Secretary) as to whether the issue of compensation for the RNs was grievable under 38 U.S.C. § 7422.[2]  The Agency argued that the matter was excluded from the grievance process under § 7422(b).[3]  The Arbitrator allowed the hearing to go forward but, in his award, he relied on § 7422(b) to rule that he had no jurisdiction to arbitrate the issue of added compensation for the RNs.

 

The Arbitrator ruled that he had jurisdiction to hear the issue of added compensation as to the LPNs and AMSAs and upheld the Union’s grievance for HPD for both.  With regard to the LPNs, the Arbitrator noted that the functional statement defining the scope of the position provides that “[t]he incumbent may be exposed to infected patients and contaminated materials and may be required to don protective clothing in isolated situations or operative/invasive procedures.”[4]  The Arbitrator determined that because there was “no reference” to the hazards claimed by the Union and the hazards the LPNs encounter were “outside the scope of dealing directly with administering to the patient,” handling the biohazardous bags was not a part of the LPNs’ nursing duties.[5]  In addition, the Arbitrator also found that the AMSAs qualified for HPD.  He ordered compensation be paid to both the LPNs and AMSAs.[6] 

 

                The Agency filed exceptions to the award on April 5, 2019 and the Union filed exceptions to the award on April 8, 2019.  Neither party filed an opposition to the exceptions of the other party.

 

III.          Analysis and Conclusions

 

1. The Union has failed to establish that the Arbitrator’s conclusion that the grievance was not arbitrable as to the RNs is contrary to law.

 

The Union argues that the Arbitrator’s award is contrary to law[7] because the Arbitrator violated the parties’ agreement “when he erroneously made a determination concerning the RNs, based on his perception of a 7422 issue”[8] and because the Agency failed to follow the Office of Labor-Management Relations’ “7422 Resolution Process,” a process internal to the Agency to route requests for such determinations to the Agency’s Under Secretary.[9]   

 

The Arbitrator found that the question of HPD for the RNs is exempt from the grievance process.  He concluded that this issue concerns added compensation and that 38 U.S.C. § 7422(b) excludes matters related to “the establishment, determination, or adjustment of employee compensation” and “professional conduct or competence” for certain employees, including RNs, from collective bargaining.[10]  While the Union plainly disagrees with the Arbitrator, the Union fails to explain why the Arbitrator’s interpretation of 38 U.S.C. § 7422(b) was legal error,[11] and the Union’s contention that the Arbitrator’s “perception” of the issue is “invalid” is not an argument that the Arbitrator’s award is contrary to law.[12]  Furthermore, the Union fails to explain how its unsubstantiated claims that the Agency failed to follow the intra-Agency procedures as established by the Agency’s Office of Labor‑Management Relations’ “7422 Resolution Process” establishes that the Arbitrator’s award is contrary to law.[13]

 

Accordingly, we deny the exception.[14]

 

2. The Arbitrator’s conclusion that the LPNs are entitled to HPD is contrary to law.

 

                The Agency argues that the Arbitrator’s award is contrary to law[15] because under 5 C.F.R. § 550.904, HPD may not be paid where the hazardous duty has been considered in the classification of the position.[16]  The Agency asserts that that the duties of handling biohazardous materials are classified within the LPNs’ functional statement.[17]   

 

The threshold requirements for an employee’s entitlement to a hazard pay differential originate from a statutory mandate, as well as government regulation.[18]  A grievant must satisfy three requirements before he or she is entitled to a hazard pay differential:  (1) the hazard or physical hardship must not have been considered in the classification of his or her position pursuant to 5 U.S.C. § 5545(d); (2) the hazard or physical hardship must be listed in Appendix A to 5 C.F.R. Part 500 (Appendix A); and (3) he[/she] must be performing a hazardous duty within the definition of 5 C.F.R. § 550.902.[19]

 

Here, the Arbitrator failed to make the necessary factual findings for an award of HPD.  He found that the hazards claimed by the Union are not referenced in the LPN functional statement, are “outside the scope of dealing directly with administering to the patient,” and instead “stem from having to deal with and handle materials and wastes that are or may be contaminated, such as needles[ and] broken glass.”[20]  He found that it is possible an LPN may be injured or contaminated while transporting a red bag.  But, these findings are insufficient to support the legal conclusion that the LPNs are entitled to HPD.  It is not clear if the Arbitrator evaluated the classification of the LPN position, as required by 5 C.F.R. § 550.904, because his analysis does not make a finding as to the first requirement for entitlement to HPD.  He only summarily concluded that the hazards are not referenced in the functional statement.[21]  Moreover, the Arbitrator failed to even address the second and third requirements.  For example, although Appendix A requires a determination as to the protection afforded by protective devices[22] the Arbitrator made no findings as to the effectiveness of any available protective equipment.  In fact, he did not cite Appendix A at all or specifically address whether handling contaminated materials and wastes is a hazardous duty under 5 C.F.R. § 550.902, and he made no other factual findings for our de novo review.  

 

                Accordingly, because there are no factual findings to support the Arbitrator’s conclusion that the LPNs are entitled to HPD, we find that he erred as a matter of law.  Thus, we grant the Agency’s exception that the award as to the LPNs is contrary to law.[23]

 

IV.          Decision

 

                We deny the Union’s exceptions regarding the Arbitrator’s finding that the grievance was not arbitrable as to the RNs.  However, we grant the Agency’s      contrary-to-law exception to the Arbitrator’s finding that the LPNs are entitled to HPD, and set aside that portion of the award. 

Member DuBester, dissenting:

 

                Contrary to the majority’s decision, I would find that the Arbitrator erred by concluding that the Registered Nurses’ (RNs) grievance was excluded from the parties’ grievance procedure by operation of 38 U.S.C. § 7422.  Additionally, I would remand the portion of the award addressing the Licensed Practical Nurses’ (LPNs) entitlement to hazard pay differential to allow the Arbitrator to make additional findings necessary to resolve this matter.

 

                The Arbitrator concluded that he lacked jurisdiction over the RN’s claim for compensation by operation of 38 U.S.C. § 7422(b).  This provision states, in relevant part, that “any grievance procedures provided under a collective bargaining agreement” may not “cover, or have any applicability to, any matter or question concerning or arising out of . . . (3) the establishment, determination, or adjustment of employee compensation.”[24]  Section 7422, however, also contains a provision stating that the “issue of whether a question concerns or arises out of” one of the subjects listed in § 7422(b) “shall be decided by the Secretary [of Veterans Affairs] and is not itself subject to collective bargaining and may not be reviewed by any other agency.”[25]

 

                Consistent with this provision, the Authority has held that “the Secretary has ‘exclusive authority’ to make such determinations and that the Secretary’s determination is not reviewable by the Authority.”[26]  And it has applied this principle to preclude an arbitrator from excluding a grievance pursuant to § 7422(b) absent an actual § 7422(d) determination pertaining to the grievance.

 

                Specifically, in AFGE, Local 2145,[27] the arbitrator found that a grievance involving an RN’s reassignment was excluded by § 7422(b) based upon a § 7422(d) determination in a prior case involving the reassignment of an RN.  Addressing the union’s claim that the arbitrator’s conclusion was contrary to § 7422, the Authority found it was not clear from the record whether the determination upon which the arbitrator relied “does, in fact, extend to other similar cases, or whether it was limited to the facts of that case.”[28]  It further noted that there was no indication in the record that the Secretary or his designee had “made a determination in this case that the grievant’s reassignment involved the same ‘matters or questions’ as the RN’s reassignment in the prior case.”[29]

 

                Based upon this record, the Authority concluded that it was unable to determine whether the arbitrator erred in finding that the prior § 7422 determination “applied to subsequent similar cases.”[30]  It therefore remanded the portion of the grievance related to the grievant’s reassignment to the parties for resubmission to the arbitrator “for an explanation of the basis” of his conclusion.[31] 

 

                Significantly, as part of this order, the Authority directed the arbitrator to resolve the merits of the grievance concerning the reassignment if he found on remand that “no determination has been made regarding whether the grievant’s reassignment falls within § 7422(b).”[32]  In other words, the Authority concluded that the arbitrator was not authorized to exclude the grievance under § 7422(b) absent a § 7422(d) determination that pertained to the grievance.

               

                In the case before us, the Arbitrator did not base his conclusion that the RN’s grievance was excluded by § 7422(b) upon any § 7422(d) determination made by the Secretary, but instead made this determination on his own accord.[33]  Applying the plain language of § 7422(d), and the principles set forth in AFGE, Local 2145, I would conclude that the Arbitrator lacked authority to make this determination, and that his conclusion was therefore contrary to law.[34]

 

                Remarkably, the majority – while acknowledging the relevance of the Authority’s decision in AFGE, Local 2145 – summarily decides that this decision will “no longer be followed” because “it failed to provide any legal authority” for its conclusions.[35]  If the majority is indeed searching for “legal authority” to support our decision in that case, and my reliance upon that case to dissent from the majority’s decision, it need look no further than the plain language of § 7422(d).

               

                I also disagree with the majority’s decision to set aside the portion of the award pertaining to the LPNs’ entitlement to a hazard pay differential (HPD).  Instead, I would remand this portion of the award to allow the Arbitrator to make the factual findings necessary to resolve this matter.

 

                A grievant seeking HPD must satisfy a three-part test.[36]  Addressing the first part of this test, the majority finds that it is “not clear if the Arbitrator evaluated the classification of the LPN position,” and faults the Arbitrator for “summarily conclud[ing] that the hazards are not referenced in the [LPNs’] functional statement.”[37]  However, the Arbitrator directly quoted the portion of the functional statement addressing the types of hazards to which the LPNs may be exposed,[38] and found that this excerpt “is the full extent of its references to what could be classified as hazardous.”[39]

 

                The Arbitrator then considered whether the hazards for which the Union was seeking HPD were encompassed by this function statement.  On this point, he found that the hazards depicted by the functional statement are those to which the LPNs would be exposed while “administering medical care to the patient(s),” which are “inherent and part of the job of being an LPN.”[40]  In contrast, he found that the hazards detailed by the Union “come from activities forced upon the LPNs that are outside the scope of . . . administering to the patient.”[41]

 

                On this basis, the Arbitrator concluded that “[t]here is no reference made [in the functional statement] to the hazards being listed and claimed by the employees and the Union.”[42]  Applying the standard governing contrary-to-law exceptions, I would defer to the Arbitrator’s fully substantiated finding that the hazards claimed by the Union are not referenced in the LPN’s functional statement.[43]

 

And while I agree with the majority that the Arbitrator failed to make any findings regarding the second and third parts of the test governing entitlement to HPD, I disagree that the award should be set aside on these grounds.  Rather, under these circumstances, I believe that the award should be remanded to the parties for resubmission to the Arbitrator “to permit [the] impartial resolution of the remaining factual issues in this case.”[44]

 

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