Robins Air Force Base and AFGE Local 987 (Authority decision, June 28, 1985)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

Employees working in Building 54 sought environmental differential pay for exposure to hazardous chemicals. An arbitrator extended the award beyond the grievants. The Authority limited it to grievants paid under a Federal Wage System schedule who were exposed during the claimed period from 1980 to 1983.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a).
• Outcome: Four percent differential limited to eligible grievants.
• Key point: The arbitrator exceeded his authority by awarding relief to employees who did not grieve.

Full text (FLRA public release)

[ v18 p899 ]

18:0899(104)AR

The decision of the Authority follows:

18 FLRA No. 104

ROBINS AIR FORCE BASE,
WARNER ROBBINS, GEORGIA
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 987
Union

Case No. 0-AR-784

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator J. Thomas King filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

According to the Arbitrator, employees who worked in Building 54 at the Activity filed a grievance claiming an entitlement to an environmental pay differential under Federal Personnel Manual Supplement 532-1, subchapter S8-7 and Appendix J. The grievance was not resolved and was submitted to arbitration on the issue of whether the Activity's denial of environmental differential pay to the grievants was appropriate. The Arbitrator determined that there was exposure to toxic chemicals during the period in dispute and that payment of a differential for Poisons (toxic chemicals)-- low degree hazard as set forth in Appendix J was warranted. Accordingly, the Arbitrator awarded in pertinent part, as follows:

The grievance of the employees of Building 54 is sustained.

Those Grievants, along with employees who did not grieve, including but not limited to, supervisors, drivers, maintenance, and other personnel, who worked in or about Building 54 during the claimed three-year period, embracing 1980-1983, shall be paid a 4% environmental differential payment in lump sum.

Any former employee during such period shall be entitled to the EDP for that time exposed to the hazardous chemical.

In its first exception the Agency contends that by awarding a lump sum payment for the entire disputed period, the award is contrary to FPM Supplement 532-1. Specifically, the Agency maintains that FPM Supplement 532-1, subchapter S8-7f provides that an environmental differential shall be paid when the employee is performing assigned duties which expose the employee to an unusually severe hazard, physical hardship, or working condition listed in Appendix J. With respect to the differential awarded by the Arbitrator, the Agency further maintains that payment is made on the basis of hours in a pay status, that is, the differential is payable for all hours the employee is in a pay status on a day during which the employee is exposed to toxic chemicals. In this regard the Agency argues that the Arbitrator's blanket award of the differential for a period of years without a showing that the employees were actually exposed to toxic chemicals on each workday during that period is therefore contrary to FPM Supplement 532-1.

The Authority concludes that this exception fails to establish that the award is deficient. The Authority finds that the Agency has accurately and correctly stated the regulatory provisions governing the payment of environmental differentials. In particular, the Authority agrees that the environmental differential awarded by the Arbitrator is only payable when the employee was exposed to toxic chemicals during the employee's workday. However, contrary to the Agency, the Authority finds that the Arbitrator's provision for a lump sum payment and a specification of the time period for which the payment of the environmental differential was warranted is not inconsistent with the governing provisions of FPM Supplement 532-1. On page 15 of the award, the Arbitrator clearly states that the grievants are to be paid the differential "for any time during the three-year period of the claim" that they were "exposed to hazardous chemicals." Thus, the award is fully consistent with the regulatory requirement of payment entitlement on the basis of hours in a pay status. Consequently, this exception provides no basis for finding the award deficient in this respect, and the exception is accordingly denied.

In its other exceptions the Agency contends that by awarding relief to persons who did not grieve, the Arbitrator decided an issue not submitted and consequently exceeded his authority and that to the extent environmental differential pay has been awarded to employees not paid under a Federal Wage System wage schedule, the award is contrary to FPM Supplement 532-1, subchapter S8-7. The Authority agrees.

The Authority has clearly indicated that an award may be found deficient as in excess of the arbitrator's authority when the arbitrator awards relief to persons who did not file grievances on their own behalf or who did not have the union file grievances for them. E.g., American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Immigration and Naturalization Service, 15 FLRA No. 76 (1984). In terms of this case, the Authority concludes that the award is deficient in this respect. The Agency has substantiated that the grievance and issue submitted to the Arbitrator pertained solely to the denial of environmental differential pay to the grievants and that there was no basis for "transform(ing) the proceeding into a sort of class action," id. at 2 (quoting Hotel Employees Union v. Michelson's Food Services, 545 F.2d 1248 (9th Cir. 1976)). In these circumstances, the Authority finds that the Arbitrator decided an issue not presented to him when he awarded relief to persons "who did not grieve" and that consequently the Arbitrator exceeded his authority. See id.; U.S. Department of Justice, Federal Prison System, Federal Correctional Facility, Fort Worth, Texas and American Federation of Government Employees, Local 1298, AFL-CIO, 17 FLRA No. 39 (1985); Environmental Protection Agency, Region 9 and Engineers and Scientists of California, MEBA, AFL-CIO, 17 FLRA 56 (1985). Similarly, to the extent the Arbitrator has awarded environmental differential pay to employees not paid under a Federal Wage System wage schedule, the award is contrary to FPM Supplement 532-1, subchapter S8-7 which expressly limits the payment of an environmental differential to a "wage employee paid under a Federal Wage System wage schedule." Accordingly, the award is modified to provide as follows:

The grievance of the grievants who are paid under a Federal Wage System wage schedule is sustained. Those grievants shall be paid a 4% environmental differential payment in lump sum for any time during the claimed three-year period, embracing 1980-1983, that they were exposed to hazardous chemicals in Building 54.

Issued, Washington, D.C., June 28, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY