United States Department of Veterans Affairs, John J. Pershing VA Medical Center (Agency) and American Federation of Government Employees, Local 2328 (Union) (Authority decision, May 29, 2020)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award. The arbitration exclusion in 5 U.S.C. § 7123(a)(1) generally limits judicial review of Authority orders involving arbitral awards.

Plain-English summary

The union sought hazard pay for registered nurses, licensed practical nurses, and support staff who handled medical waste at VA outpatient facilities. The arbitrator held that the registered nurses' compensation claim could not be arbitrated and awarded hazard pay to the other employees. The Authority rejected the union's challenge concerning the registered nurses. It set aside the licensed practical nurses' award because the arbitrator had not made the factual findings required under the hazard pay rules. Neither party challenged the award for the support staff, so that portion remained in place.

Decision snapshot

• Authority: 38 U.S.C. § 7422(b); 5 U.S.C. § 5545(d); 5 C.F.R. §§ 550.902, 550.904
• Outcome: The registered nurses' claim remained excluded from arbitration, the licensed practical nurses' hazard pay award was set aside, and the support staff award was unchallenged.
• Key point: Hazard pay for licensed practical nurses requires findings on position classification, listed hazards, and the duty actually performed.

Full text (FLRA public release)

71 FLRA No. 149 Decisions of the Federal Labor Relations Authority 769(a)

71 FLRA No. 149 hazardous materials. Arbitrator George Deretich
determined that the grievance was not arbitrable as to the
UNITED STATES
RNs, but that it was arbitrable as to the LPNs and other
DEPARTMENT OF VETERANS AFFAIRS
employees, and he awarded hazard pay.
JOHN J. PERSHING VA MEDICAL CENTER
(Agency)
We deny the Union’s exceptions that challenge
the Arbitrator’s conclusion that the grievance was not
and
arbitrable as to the RNs under 38 U.S.C. § 7422 because
the Union fails to explain how the Arbitrator erred. The
AMERICAN FEDERATION
Agency argues that the Arbitrator’s award of a hazard pay
OF GOVERNMENT EMPLOYEES
differential for the LPNs is contrary to law, contrary to
LOCAL 2328
public policy, and based on a nonfact. Because we find
(Union)
that the Arbitrator failed to make the necessary findings to
award a hazard pay differential, we grant the Agency’s
0-AR-5491
contrary-to-law exception and set aside that portion of the
award.
__
II. Background and Arbitrator’s Award
DECISION
The Union filed a grievance seeking
May 29, 2020
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 Before the Authority: Colleen Duffy Kiko, Chairman, hazardous material, which is a duty not factored into the and Ernest DuBester and James T. Abbott, Members function of their job positions. At any of the facilities, the
(Member DuBester dissenting)
grievants may have to change out and dispose of
biohazardous red waste bags and sharps containers that Decision by Member Abbott for the Authority contain used needles, bodily fluids, and chemicals.

I. Statement of the Case
Prior to the hearing, the Agency requested that
the Arbitrator temporarily suspend the arbitration because In this case, we address an arbitrator’s failure to it had requested a determination from the Agency’s Under
make the necessary factual findings to support an award of Secretary for Health (Under Secretary) as to whether the hazard pay for certain nursing professionals. issue of compensation for the RNs was grievable under
38 U.S.C. § 7422.2 The Agency argued that the matter was The Union filed a grievance contending that excluded from the grievance process under § 7422(b).3
Registered Nurses (RNs), Licensed Practical Nurses The Arbitrator allowed the hearing to go forward but, in (LPNs), and other employees are entitled to environmental his award, he relied on § 7422(b) to rule that he had no or hazard pay differential for dealing with certain

1 The parties use the terms “hazardous duty pay,” “hazard duty agreement) in the case of employees described in pay,” “hazard differential pay,” and “hazard pay differential” section 7421(b) of this title may not cover, or have any interchangeably. As the term “hazard pay differential” is applicability to, any matter or question concerning or consistent with the statutory and regulatory provisions governing arising out of (1) professional conduct or competence, such pay, we use the term “hazard pay differential (HPD)” (2) peer review, or (3) the establishment, throughout this decision. AFGE, Local 1858, 66 FLRA 607, 607 determination, or adjustment of employee
n.1 (2012).
compensation under this title.
2 The statute states, in relevant part, that: ....
(a) Except as otherwise specifically provided in this (d) An issue of whether a matter or question concerns title, the authority of the Secretary to prescribe or arises out of (1) professional conduct or competence, regulations under section 7421 of this title is subject to (2) peer review, or (3) the establishment,
the right of Federal employees to engage in collective determination, or adjustment of employee
bargaining with respect to conditions of employment compensation under this title shall be decided by the through representatives chosen by them in accordance Secretary and is not itself subject to collective with chapter 71 of title 5 (relating to labor-management bargaining and may not be reviewed by any other
relations).
agency.
(b) Such collective bargaining (and any grievance 38 U.S.C. § 7422. Section 7421(b) includes RNs. Id. § 7421(b).
3 Award at 34-35; see also 38 U.S.C. § 7422(b). procedures provided under a collective bargaining
769(b) Decisions of the Federal Labor Relations Authority 71 FLRA No. 149

jurisdiction to arbitrate the issue of added compensation issue”8 and because the Agency failed to follow the Office
for the RNs.
of Labor-Management Relations’ “7422 Resolution
Process,” a process internal to the Agency to route requests The Arbitrator ruled that he had jurisdiction to for such determinations to the Agency’s Under Secretary.9 hear the issue of added compensation as to the LPNs and
AMSAs and upheld the Union’s grievance for HPD for The Arbitrator found that the question of HPD for both. With regard to the LPNs, the Arbitrator noted that the RNs is exempt from the grievance process. He the functional statement defining the scope of the position concluded that this issue concerns added compensation provides that “[t]he incumbent may be exposed to infected and that 38 U.S.C. § 7422(b) excludes matters related to patients and contaminated materials and may be required “the establishment, determination, or adjustment of to don protective clothing in isolated situations or employee compensation” and “professional conduct or operative/invasive procedures.”4 The Arbitrator competence” for certain employees, including RNs, from determined that because there was “no reference” to the collective bargaining.10 While the Union plainly disagrees hazards claimed by the Union and the hazards the LPNs with the Arbitrator, the Union fails to explain why the encounter were “outside the scope of dealing directly with Arbitrator’s interpretation of 38 U.S.C. § 7422(b) was administering to the patient,” handling the biohazardous legal error,11 and the Union’s contention that the bags was not a part of the LPNs’ nursing duties.5 In Arbitrator’s “perception” of the issue is “invalid” is not an 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

A. 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 law7 because the Arbitrator violated the parties’ agreement “when he erroneously made a determination concerning the RNs, based on his perception of a 7422

4 Award at 38.
where the Secretary, or a lawfully appointed
5 Id. designee of the Secretary (currently the
6 We note that neither party excepted to the Arbitrator’s Under-Secretary for Health), determines in conclusions as to the AMSAs, and so, we will not discuss the accordance with 38 U.S.C. [§] 7422 that the
award to those grievants further.
grievance concerns or arises out of one or
7 When an exception involves an award’s consistency with law, more of the three items listed above. the Authority reviews any question of law raised by the exception Award at 8. de novo. AFGE, Local 12, 70 FLRA 348, 349-50 (2017)
9 Union Exceptions at 6-7.

(Member DuBester concurring) (citing Fraternal Order of Police 10 Award at 34-35; see also 38 U.S.C. § 7422(b).

Lodge No. 158, 66 FLRA 420, 423 (2011)). In applying the de 11 See Union Exceptions at 6; 5 C.F.R. § 2425.6(e) (“An

novo standard of review, the Authority assesses whether an exception may be subject to . . . denial if . . . [t]he excepting party arbitrator’s legal conclusions are consistent with the applicable fails to . . . support a ground”); AFGE, Nat’l Immigration and standard of law. Id. at 350 (citing Overseas Private Inv. Corp., Naturalization Serv. Council, 69 FLRA 549, 552 (2016) (AFGE) 68 FLRA 982, 984 (2015)). In making this assessment, the (denying an exception where the grievant failed to explain how Authority defers to the arbitrator’s underlying factual findings. the award was contrary to law and regulation); see also AFGE,
Id. Local 2145, 69 FLRA 563, 566 (2016) (Local 2145) (Dissenting
8 Union Exceptions at 6. Article 43, Section 2(C) of the parties’ Opinion of Member Pizzella) (the union sought a locality pay agreement reiterates 38 U.S.C. § 7422(b) and also provides the adjustment for RNs and LPNs and Member Pizzella stated
following: “[w]ithout any doubt, the [u]nion’s grievance, insofar as it
Note 1: The language in the above paragraph concerns the RNs, is barred by 38 U.S.C. § 7422”). shall only serve to preclude a grievance
71 FLRA No. 149 Decisions of the Federal Labor Relations Authority 769(c)

argument that the Arbitrator’s award is contrary to law.12 B. The Arbitrator’s conclusion that the Furthermore, the Union fails to explain how its LPNs are entitled to HPD is contrary to unsubstantiated claims that the Agency failed to follow the law. intra-Agency procedures as established by the Agency’s Office of Labor-Management Relations’ “7422 Resolution The Agency argues that the Arbitrator’s award is Process” establishes that the Arbitrator’s award is contrary contrary to law15 because under 5 C.F.R. § 550.904, HPD
to law.13
may not be paid where the hazardous duty has been
considered in the classification of the position.16 The
Accordingly, we deny the exception.14
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

12 Our dissenting colleague relies on the Authority’s 2006 13 See 5 C.F.R. § 2425.6(e); AFGE, 69 FLRA at 552.

decision in AFGE, Local 2145, 61 FLRA 571 (2006), to support 14 The Union also argues that the Arbitrator’s conclusion that the

his conclusion that the Arbitrator in this case lacked the authority grievance was not arbitrable as to the RNs fails to draw its to determine that the RN’s grievance was excluded pursuant to essence from the parties’ agreement and that the Arbitrator
§ 7422(b). Although the Authority in AFGE, Local 2145 ordered exceeded his authority by precluding the RN grievance without a the arbitrator to resolve the merits of the grievance absent a § 7422 determination from the Under Secretary. Union specific § 7422(d) determination, it failed to provide any legal Exceptions at 7-10. However, because no provision in the authority for its decision to do so. The dissent does not provide parties’ agreement can render grievable or arbitrable a claim that any such legal authority, and we failed to find any dictating that is expressly barred by statute, those exceptions also fail and we outcome. Consequently, AFGE, Local 2145 will no longer be deny them. See 38 U.S.C. § 7422(b); Local 2145, 69 FLRA followed. And here, contrary to what the dissent suggests, we at 566 (Dissenting Opinion of Member Pizzella).
15 See supra note 7 (discussing the contrary-to-law standard). find the Arbitrator’s determination consistent with § 7422 16 Agency Exceptions at 5-6. because the grievance concerns the “establishment, 17 Id. The functional statement is the LPN job description. determination, or adjustment of employee compensation.”
38 U.S.C. § 7422(b). In this regard, the Arbitrator’s Award at 37. It states “the scope of the position and the determination is consistent with numerous § 7422 determinations responsibilities involved, including the duties involved and published on the Agency’s easily-accessible website and which generally what is expected of the employee and what the found similar compensation matters clearly excluded from employee can expect is required of the position.” Id. collective bargaining or grievance procedures pursuant to Additionally, we note that the Agency also argues that the
§ 7422(b). See U.S. Dep’t of VA, Title 38 Decision Paper- VA Arbitrator failed to properly apply 5 C.F.R. Part 532, Subpart E, Med. Ctr., Asheville, N.C. (March 5, 2001), which concerns environmental differential pay. Agency https://www.va.gov/lmr/docs/38USC7422/2001/01-3- Exceptions at 5-6. However, HPD – which is governed by the 5_Asheville.pdf (finding an award of night differential and Hazardous Duty Act, 5 U.S.C. § 5545, and regulations that apply weekend premium pay for nurses a matter that concerned to general schedule (GS) employees – is distinct from employee compensation and outside the scope of bargaining environmental differential pay – which is governed by under § 7422(d)); see also U.S. Dep’t of VA, Title 38 Decision regulations that apply to wage grade employees. See U.S. DOJ, Paper- Harry S. Truman Mem’l Veterans Hosp., Columbia, Mo. Fed. BOP, Fed. Corr. Complex, Tucson, Ariz., 65 FLRA 267, 269 (April 3, 2015), n.2 (2010) (Fed. BOP). Because the grievants at issue here, the https://www.va.gov/LMR/7422_Columbia_Decision_Paper.pdf LPNs, are GS employees, the Hazardous Duty Act applies to (finding a request for information relating to physician pay them. See id.
18 NAIL, Local 15, 65 FLRA 557, 559 (2011) (NAIL); Fed. BOP, concerned employee compensation under § 7422(b)); U.S. Dep’t
of VA, Title 38 Decision Paper- Cent. Ala. Veterans Health Care 65 FLRA at 270 (citing U.S. Dep’t of the Army, Alaska, 54 FLRA Sys. (September 10, 2013), 1117, 1122 (1998)); see also 5 U.S.C. § 5545; 5 C.F.R. Part 550, https://www.va.gov/LMR/docs/7422_CentralAlabamaVeterans Subpart I. HCS_9_10_13.pdf (finding a grievance arising out of a decision to place nurses on a different specialty pay schedule concerned a matter of employee compensation within the meaning of
§ 7422(b)). The VA’s website specifically states that these
determinations are provided so that parties may “benefit from a
general understanding of the statutory limitations on Title 38
employees[].” VA Office of Labor-Management Relations
(LMR), 38 § 7422 Determinations, (last updated Oct. 30, 2019),
https://www.va.gov/LMR/38USC7422.asp. We fail to find an
error in an arbitration decision cognizant of those clear
limitations.
769(d) Decisions of the Federal Labor Relations Authority 71 FLRA No. 149

grievant must satisfy three requirements before he or she of law. Thus, we grant the Agency’s exception that the is entitled to a hazard pay differential: (1) the hazard or award as to the LPNs is contrary to law.23 physical hardship must not have been considered in the classification of his or her position pursuant to 5 U.S.C. IV. Decision
§ 5545(d); (2) the hazard or physical hardship must be
listed in Appendix A to 5 C.F.R. Part 500 (Appendix A); We deny the Union’s exceptions regarding the and (3) he[/she] must be performing a hazardous duty Arbitrator’s finding that the grievance was not arbitrable within the definition of 5 C.F.R. § 550.902.19 as to the RNs. However, we grant the Agency’s
contrary-to-law exception to the Arbitrator’s finding that Here, the Arbitrator failed to make the necessary the LPNs are entitled to HPD, and set aside that portion of factual findings for an award of HPD. He found that the the award. 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
devices22 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

19 Fed. BOP, 65 FLRA at 270.
22 5 C.F.R. Part 550, Subpart I, App. A.
20 Award at 38.
23 In light of our conclusion that the award as to the LPNs is
21 To this end, we note a glaring inconsistency in the Arbitrator’s contrary to law, we need not need address the Agency’s
factual findings. Although the Arbitrator found that “the hazards remaining contrary to public policy and nonfact exceptions to the LPNs stem from having to deal with and handle materials challenging the vacated portions of the award. See Agency’s and wastes that are or may be contaminated, such as needles Exceptions at 7-9; U.S. Dep’t of the Treasury, IRS, 70 FLRA 792,
[and] broken glass,” which he determined is not referenced in the 794 (2018) (Member DuBester dissenting) (not addressing the functional statement, the functional statement actually provides remaining arguments challenging vacated portions of the award). that “[t]he incumbent may be exposed to . . . contaminated materials.” Award at 38 (emphasis added). Furthermore, Member Abbott would caution that permitting the Arbitrator to decide what activities come within the territory of being an LPN may not be a decision that an arbitrator, who is not a medical professional, should be making. See U.S. DOJ, Fed. BOP, Fed. Med. Ctr. Carswell, Ft. Worth, Tex., 70 FLRA 890, 892, nn.21-22 (2018) (Member DuBester dissenting) (Member Abbott questioning whether arbitrators should be permitted to decide questions of medical competency). 71 FLRA No. 149 Decisions of the Federal Labor Relations Authority 770(a)

Member DuBester, dissenting: arbitrator’s conclusion was contrary to § 7422, the
Authority found it was not clear from the record whether Contrary to the majority’s decision, I would find the determination upon which the arbitrator relied “does,
that the Arbitrator erred by concluding that the Registered in fact, extend to other similar cases, or whether it was Nurses’ (RNs) grievance was excluded from the parties’ limited to the facts of that case.”5 It further noted that there grievance procedure by operation of 38 U.S.C. § 7422. was no indication in the record that the Secretary or his Additionally, I would remand the portion of the award designee had “made a determination in this case that the addressing the Licensed Practical Nurses’ (LPNs) grievant’s reassignment involved the same ‘matters or entitlement to hazard pay differential to allow the questions’ as the RN’s reassignment in the prior case.”6 Arbitrator to make additional findings necessary to resolve
this matter.
Based upon this record, the Authority concluded
that it was unable to determine whether the arbitrator erred
The Arbitrator concluded that he lacked
in finding that the prior § 7422 determination “applied to
jurisdiction over the RN’s claim for compensation by subsequent similar cases.”7 It therefore remanded the operation of 38 U.S.C. § 7422(b). This provision states, in portion of the grievance related to the grievant’s relevant part, that “any grievance procedures provided reassignment to the parties for resubmission to the under a collective bargaining agreement” may not “cover, arbitrator “for an explanation of the basis” of his or have any applicability to, any matter or question conclusion.8 concerning or arising out of . . . (3) the establishment, determination, or adjustment of employee Significantly, as part of this order, the Authority compensation.”1 Section 7422, however, also contains a directed the arbitrator to resolve the merits of the grievance provision stating that the “issue of whether a question concerning the reassignment if he found on remand that concerns or arises out of” one of the subjects listed in “no determination has been made regarding whether the
§ 7422(b) “shall be decided by the Secretary [of Veterans grievant’s reassignment falls within § 7422(b).”9 In other Affairs] and is not itself subject to collective bargaining words, the Authority concluded that the arbitrator was not and may not be reviewed by any other agency.”2 authorized to exclude the grievance under § 7422(b)
absent a § 7422(d) determination that pertained to the Consistent with this provision, the Authority has grievance. held that “the Secretary has ‘exclusive authority’ to make
such determinations and that the Secretary’s determination In the case before us, the Arbitrator did not base is not reviewable by the Authority.”3 And it has applied his conclusion that the RN’s grievance was excluded by this principle to preclude an arbitrator from excluding a § 7422(b) upon any § 7422(d) determination made by the grievance pursuant to § 7422(b) absent an actual § 7422(d) Secretary, but instead made this determination on his own determination pertaining to the grievance. accord.10 Applying the plain language of § 7422(d), and
the principles set forth in AFGE, Local 2145, I would Specifically, in AFGE, Local 2145,4 the arbitrator conclude that the Arbitrator lacked authority to make this 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

1 38 U.S.C. § 7422(b).
5 Id. at 575.
2 Id. § 7422(d).
6 Id. (emphasis added) (noting further that the Agency had “not
3 AFGE, Local 2145, 61 FLRA 571, 575 (2006) (quoting provided the Authority with a copy of the determination that it is Veterans Admin., Long Beach, Cal., 48 FLRA 970, 975 (1993)). relying on or the prior award relied on by the [a]rbitrator”). Federal courts have reached the same conclusion. See, e.g., 7 Id.

AFGE, AFL-CIO, Local 2152 v. Principi, 464 F.3d 1049, 1059 8 Id.

(9th Cir. 2006) (holding that the Secretary has the “sole authority 9 Id. (emphasis added).

to determine whether a § 7422(b) exemption applies to a 10 The Arbitrator noted in his award that the Agency had

grievance”). The parties’ bargaining agreement also incorporates requested that the arbitration be temporarily suspended “until a this principle. Article 43, Section 2(C) of the parties’ agreement [§] 7422 determination could be made by the U.S. Department of reiterates the exclusions listed in § 7422(b), and further states that Health via the Under Secretary for Health.” Award at 35. He its “language . . . shall only serve to preclude a grievance where also noted the Agency’s position that “if the [Under Secretary for the Secretary, or a lawfully appointed designee of the Secretary Health] decides that an issue is subject to one of the [§] 7422
. . . determines in accordance with 38 U.S.C. [§] 7422 that the exemptions, an arbitrator would not have any jurisdiction to grievance concerns or arises out of one or more of the three items resolve the matter.” Id. at 21. There is no indication from the listed [in § 7422(b)].” Award at 8 (quoting Article 43, record, however, that any such determination was ever made or
Section 2(C), Note 1).
issued.
4 61 FLRA 571 (2006).
770(b) Decisions of the Federal Labor Relations Authority 71 FLRA No. 149

determination, and that his conclusion was therefore “inherent and part of the job of being an LPN.”17 In
contrary to law.11
contrast, he found that the hazards detailed by the Union
“come from activities forced upon the LPNs that are Remarkably, the majority – while acknowledging outside the scope of . . . administering to the patient.”18 the relevance of the Authority’s decision in AFGE,
Local 2145 – summarily decides that this decision will “no On this basis, the Arbitrator concluded that longer be followed” because “it failed to provide any legal “[t]here is no reference made [in the functional statement] authority” for its conclusions.12 If the majority is indeed to the hazards being listed and claimed by the employees searching for “legal authority” to support our decision in and the Union.”19 Applying the standard governing that case, and my reliance upon that case to dissent from contrary-to-law exceptions, I would defer to the the majority’s decision, it need look no further than the Arbitrator’s fully substantiated finding that the hazards
plain language of § 7422(d).
claimed by the Union are not referenced in the LPN’s
functional statement.20
I also disagree with the majority’s decision to set
aside the portion of the award pertaining to the LPNs’ And while I agree with the majority that the Arbitrator entitlement to a hazard pay differential (HPD). Instead, I failed to make any findings regarding the second and third would remand this portion of the award to allow the parts of the test governing entitlement to HPD, I disagree Arbitrator to make the factual findings necessary to resolve that the award should be set aside on these grounds.
this matter.
Rather, under these circumstances, I believe that the award
should be remanded to the parties for resubmission to the A grievant seeking HPD must satisfy a three-part Arbitrator “to permit [the] impartial resolution of the test.13 Addressing the first part of this test, the majority remaining factual issues in this case.”21 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.”14 However, the Arbitrator directly quoted the portion of the functional statement addressing the types of hazards to which the LPNs may be exposed,15 and found that this excerpt “is the full extent of its references to what could be classified as hazardous.”16

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

11 I disagree with the majority’s conclusion that the Union “fails protective clothing in isolated situations or operative/invasive to explain why the Arbitrator’s interpretation of 38 U.S.C. procedures.”).
16 Id.
§ 7422(b) was legal error.” Majority at 3-4. In its exceptions,
the Union argues that the arbitrator “should have realized [that] 17 Id.
18 Id. The Arbitrator found that these hazards include “needles, he did not have a [§] 7422 determination from the Under Secretary, and, therefore, he could not deny the grievance for the broken glass[,] and a variety of other materials found in the waste
RNs.” Union Exceptions at 8.
disposal containers” that the LPNs handle and transport to the
12 Majority at 4 n.12.
facility’s biohazardous waste room. Id. at 38-39.
13 U.S. DOJ, Fed. BOP, Fed. Corr. Complex, Tucson, Ariz., 19 Id. at 38.

65 FLRA 267, 270 (2010) (BOP Tucson) (“a grievant must 20 E.g., BOP Tucson, 65 FLRA at 270 (rejecting agency’s

satisfy three requirements before he is entitled to a hazard pay contrary-to-law exception challenging arbitrator’s finding that differential: (1) the hazard or physical hardship must not have the grievants’ positions did not take into account certain been considered in the classification of his position pursuant to hazardous duties). 5 U.S.C. § 5545(d); (2) the hazard or physical hardship must be 21 U.S. Dep’t of the Navy, Navy Pub. Works Ctr., Norfolk, Va.,

listed in Appendix A to 5 C.F.R. Part 500; and (3) he must be 54 FLRA 338, 344 (1998); see also U.S. DOJ, Fed. BOP, Fed. performing a hazardous duty within the definition of 5 C.F.R. Corr. Inst., Jesup, Ga., 69 FLRA 197, 201-02, 205-06 (2016)
§ 550.902”).
(Member Pizzella dissenting in part) (remanding portions of
14 Majority at 5-6.
award because record contained insufficient findings to enable
15 Award at 38 (“The incumbent may be exposed to infected Authority to assess the arbitrator’s legal conclusions). patients and contaminated materials and may be required to don