[ v24 p902 ]
24:0902(85)AR
The decision of the Authority follows:
24 FLRA No. 85
VETERANS ADMINISTRATION
MEDICAL CENTER
LEAVENWORTH, KANSAS
Activity
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 85
Union
Case No. 0-AR-1127
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator William O. Eisler filed on behalf of the Activity by the
Veterans Administration (the Agency) pursuant to section 7122(a) of the
Federal Service Labor-Management Relations Statute and part 2425 of the
Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The issue in this case, as determined by the Arbitrator, was whether
bargaining unit employees were entitled to environmental differential or
hazardous duty pay for exposure to airborne asbestos fibers while
performing their duties and, if so, which employees were entitled to the
pay and for what period of time. The Arbitrator found that all
bargaining unit employees, Wage Grade as well as General Schedule, with
the possible exception of those who worked in two buildings of recent
construction, had been working in areas where airborne concentrations of
asbestos fibers may have exposed them to potential illness or injury and
that they had not been provided with any type of protective devices or
safety measures to reduce the risk.
With respect to the Wage Grade employees, the Arbitrator found that a
provision in the parties' agreement authorized environmental
differential pay (EDP) for them in accordance with Office of Personnel
Management (OPM) Regulations. He concluded that they had been exposed
to the hazards of airborne concentrations of asbestos since April 9,
1984. He awarded EDP for Wage Grade employees from April 9, 1984, until
such time as it was established that the employees were no longer
working in areas where they were exposed to asbestos or until protective
devices or safety measures practically eliminated the potential for
illness or injury.
As to the General Schedule employees, the Arbitrator found a
provision in the parties' argreement authorizing hazardous duty pay
(HDP) for them for irregular or intermittent hazardous duty in
accordance with OPM Regulations. He concluded that at least on an
intermittent basis the General Schedule employees had also been exposed
to the hazards of airborne concentrations of asbestos. He awarded
hazardous duty pay for the General Schedule employees to the extent
allowed by law and regulations. The Arbitrator directed the Activity to
request, through its central office, an amendment to OPM's Regulations
so that the General Schedule employees properly could receive hazardous
duty pay for their exposure to asbestos.
III. FIRST EXCEPTION
A. Contentions
In its first exception the Agency contends that the award of
environmental differential pay to the Wage Grade employees is contrary
to FPM Supplement 532-1 and Appendix J. In support of its exception,
the Agency argues that although asbestos is listed in Appendix J as a
category for which EDP is payable pursuant to FPM Supplement 532.1, the
Arbitrator did not specifically find that the Wage Grade employees were
actually exposed to asbestos. The Agency asserts that the Arbitrator
speculated that the employees might have been exposed and required the
Activity to pay EDP until it could show that the employees were no
longer exposed.
B. Analysis and Conclusions
We conclude that this exception does not provide a basis for finding
the award deficient. It is well established that specific work
situations for which environmental differential is payable under the
categories of FPM Supplemental 532.1, Appendix J are left to local
determination, including arbitration. See Norfolk Naval Shipyard,
Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal
Trades Council, AFL-CIO, 10 FLRA 413 (1982).
In this case the Arbitrator found that all bargaining unit employees,
with the possible exception of those working in the two new buildings,
worked in areas where they were exposed to airborne asbestos in
concentrations which may have subjected them to illness or injury.
Consequently, with the Arbitrator expressly finding that payment of an
environmental differential to Wage Grade employees was warranted under
Appendix J, no basis has been presented for finding the award to be
contrary to FPM Supplement 532-1.
IV. SECOND EXCEPTION
A. Contentions
In its second exception the Agency contends that the Arbitrator's
award of EDP is contrary to the Back Pay Act, 5 U.S.C. Section 5596.
Specifically, the Agency argues that the Arbitrator did not make the
necessary finding that the employees had been subjected to an
unjustified or unwarranted personnel action.
B. Analysis and Conclusions
We conclude that this exception does not provide a basis for finding
the award deficient. FPM Supplement 532-1, subchapter S8-7f makes it
clear that payment of an environmental differential is authorized for
Wage Grade employees when they are performing assigned duties which
expose them to a hazard, physical hardship, or working condition of a
unusually severe nature listed in Appendix J. Consequently, on the
basis of the Arbitrator's finding that the Wage Grade employees were
exposed to airborne asbestos fibers, these employees were entitled to
have been paid an environmental differential under Appendix J.
Likewise, the Backpay Act makes it clear that an award of backpay by an
arbitrator is authorized to remedy an unjustified or unwarranted
personnel action that has resulted in the withdrawal of a differential
that the employees would otherwise have received. 5 U.S.C. Section
5596(b)(1)(A)(i) (1982). See Department of the Air Force, Griffis Air
Force Base and American Federation of Government Employees, Local 2612,
15 FLRA 213 (1984).
The unwarranted personnel action in this case was the Activity's
failure to pay the environmental differential for the time in which the
Wage Grade employees were exposed to asbestos. Since the Arbitrator
expressly determined that the Wage Grade employees were entitled to EDP,
the Activity's failure to pay the differential was an unjustified or
unwarranted personnel action within the meaning of the Back Pay Act. By
directing that these employees be reimbursed for all losses caused by
the unwarranted personnel action, the Arbitrator's award constitutes the
finding, required by the Back Pay Act and the decisions of the
Authority, that but for the unwarranted action, the employees would not
have suffered a withdrawal or reduction of their pay, allowances, or
differentials. American Federation of Government Employees, Local 1760
and Social Security Administration, Northeastern Program Service Center,
22 FLRA No. 19 (1986).
V. THIRD EXCEPTION
A. Contentions
In its third exception the Agency contends that the award of
hazardous duty pay to General Schedule employees is contrary to 5 CFR
Section 550.901-907 and Appendix A. In support of its exception, the
Agency argues that although these regulations provide for the payment of
differentials for irregular or intermittent duty involving unusual
physical hardship or hazard to General Schedule employees, Appendix A,
which provides a schedule of hazardous duties, does not list asbestos
exposure as a hazard for which HDP is payable. Consequently, the Agency
argues the Arbitrator's finding that the Agency is obligated to pay HDP
to General Schedule employees is contrary to OPM regulations.
B. Analysis and Conclusions
We find that the Agency has failed to show that the award is contrary
to 5 CFR Section 550.901-907 and Appendix A. The Arbitrator did not
award an unqualified payment of HDP to General Schedule employees.
Rather, the Arbitrator only awarded HDP to the extent allowed by law and
regulation. Obviously, if HDP is not authorized by the current
regulatory scheme it cannot be paid. If OPM retroactively amends its
regulations, in response to the Agency's request as ordered by the
Arbitrator, HDP would then be authorized and the Agency would then be
obligated to pay the differential to the General Schedule employees
consistent with the Arbitrator's award. Also, the Arbitrator's award
represents his interpretation of the provision in the parties' agreement
which permits HDP for General Schedule employees in accordance with
OPM's Regulations. Thus, we conclude that this exception does not
provide a basis for finding the award to be deficient.
VI. FOURTH EXCEPTION
A. Contentions
In its fourth exception the Agency contends that the Arbitrator
exceeded his authority in directing the Agency to request an amendment
to OPM's Regulations.
B. Analysis and Conclusions
We conclude that this exception does not provide a basis for finding
that the Arbitrator's award is deficient as alleged. An arbitrator can
properly direct an agency to take an action which is within its
authority and which would not violate law, rule or regulation. U.S.
Immigration and Naturalization Service and American Federation of
Government Employees, AFL-CIO, Local 1917, 20 FLRA No. 41 (1985). In
this case, 5 CFR Section 550.903 authorizes any agency to request
amendments to Appendix A. Thus, the Arbitrator's award directed the
Agency to take an action which was within its authority.
VII. DECISION
For the above reasons, the Agency's exceptions are denied.
Issued, Washington, D.C., December 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY