National Federation of Federal Employees, Local 862 (Union) and Tooele Army Depot, Tooele, Utah (Activity) (Authority decision, June 25, 1980)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

A Tooele Army Depot union sought bargaining over hazardous duty pay for guards and firefighters. The Authority concluded that the parties first needed to resolve whether the duties were irregular and whether they had already been considered in classifying the jobs. It denied the negotiability appeal as premature, without prejudice to a renewed petition after the classification issues were resolved.

Decision snapshot

• Authority: 5 U.S.C. § 7117.
• Outcome: Negotiability appeal denied without prejudice as premature.
• Key point: Classification questions had to be settled before negotiability could be decided.

Full text (FLRA public release)

[ v03 p455 ]

03:0455(67)NG

The decision of the Authority follows:

3 FLRA No. 67

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 862
(Union)

and

TOOELE ARMY DEPOT, TOOELE, UTAH
(Activity)

Case No. 0-NG-44

DECISION ON NEGOTIABILITY APPEAL

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).

DURING CONTRACT NEGOTIATIONS, THE UNION SUBMITTED THE FOLLOWING
PROPOSAL WHICH WOULD AUTHORIZE HAZARD PAY DIFFERENTIAL TO CERTAIN
CATEGORIES OF GENERAL SCHEDULE EMPLOYEES:

UNION PROPOSAL

SECTION 2: HAZARDOUS DUTY PAY

A. IT IS EXPRESSLY RECOGNIZED THAT WHILE THE CRITERIA ESTABLISHED BY
LAW FOR HAZARD PAY

DETERMINATION (FPM AND CPR) IS NOT A PROPER SUBJECT FOR NEGOTIATION,
THE APPLICATION OF THAT

CRITERIA TO SPECIFIC FACTUAL SITUATIONS IS A MATTER OF MUTUAL
CONCERN. IT IS, THEREFORE,

AGREED AND UNDERSTOOD THAT ENVIRONMENTAL DIFFERENTIAL PAY IS
AUTHORIZED FOR AND LIMITED TO THE

BELOW LISTED OCCUPATIONAL TASKS WHEN PERFORMANCE IS APPROPRIATELY
CERTIFIED BY SUPERVISORY

PERSONNEL: (TABLE OMITTED)

THE AGENCY DECLARED THE PROPOSAL NONNEGOTIABLE ON THE BASIS THAT IT
WOULD CONFLICT WITH 5 U.S.C. 5545(D), /1/ WHICH AUTHORIZES THE OFFICE OF
PERSONNEL MANAGEMENT (OPM) TO ESTABLISH A SCHEDULE OF PAY DIFFERENTIALS
FOR CERTAIN CATEGORIES OF EMPLOYEES PERFORMING HAZARDOUS DUTIES ON AN
IRREGULAR OR INTERMITTENT BASIS. IN THIS REGARD, THE AGENCY TOOK THE
POSITION THAT THE HAZARDOUS DUTIES SPECIFIED IN THE UNION'S PROPOSAL
WERE REGULAR AND RECURRING AND HAD ALREADY BEEN FACTORED INTO THE
EVALUATION AND GRADE DETERMINATION OF THE GUARD AND FIREFIGHTER
POSITIONS IN QUESTION. THE AGENCY ALSO ARGUED THAT NEGOTIATIONS OVER
THE PROPOSAL WOULD THWART THE POSITION CLASSIFICATION PROCESS WHICH IS
SPECIFICALLY EXCLUDED FROM "CONDITIONS OF EMPLOYMENT" AS DEFINED IN
SECTION 7103(A)(14)(B) OF THE STATUTE /2/ OVER WHICH THERE IS AN
OBLIGATION TO BARGAIN COLLECTIVELY. /3/ THE UNION, ON THE OTHER HAND,
ASSERTED THAT THE HAZARDOUS DUTIES WERE IRREGULAR OR INTERMITTENT AND
HAD NOT BEEN TAKEN INTO ACCOUNT IN THE CLASSIFICATION PROCESS.

THE AUTHORITY THEREAFTER REQUESTED AN ADVISORY OPINION FROM THE
OFFICE OF PERSONNEL MANAGEMENT PURSUANT TO 5 U.S.C. 7105(I) (SECTION
7105(I) OF THE STATUTE) /4/ CONCERNING THE PROPER INTERPRETATION OF
RULES, REGULATIONS, OR POLICY DIRECTIVES ISSUED BY THE OPM, MORE
SPECIFICALLY WHETHER THE UNION'S PROPOSAL IN THE INSTANT CASE WOULD
CONFLICT WITH LAWS, RULES OR REGULATIONS OVER WHICH OPM HAS
RESPONSIBILITY.

ON MARCH 11, 1980, THE OPM ISSUED ITS ADVISORY OPINION TO WHICH THE
PARTIES WERE GIVEN AN OPPORTUNITY TO COMMENT PURSUANT TO SECTION
2429.15(B) OF THE AUTHORITY'S RULES AND REGULATIONS. /5/ THE AGENCY AND
THE UNION FILED SUBMISSIONS, WHICH SUBMISSIONS HAVE BEEN DULY CONSIDERED
BY THE AUTHORITY.

IN ITS ADVISORY OPINION, THE OPM CITED 5 U.S.C. 5545(D)(1)(SEE NOTE
1, SUPRA) AND THE FOLLOWING SECTIONS OF OPM'S IMPLEMENTING REGULATIONS
CONTAINED IN SUBPART I OF PART 550 IN THE CODE OF FEDERAL REGULATIONS:

SEC. 550.902 DEFINITIONS.

IN THIS SUBPART:

(D) "HAZARDOUS DUTY" MEANS A DUTY PERFORMED UNDER CIRCUMSTANCES IN
WHICH AN ACCIDENT COULD

RESULT IN SERIOUS INJURY OR DEATH . . .

(E) "HAZARD PAY DIFFERENTIAL" MEANS ADDITIONAL PAY FOR THE
PERFORMANCE OF IRREGULAR OR

INTERMITTENT HAZARDOUS DUTY . . .

SEC. 550.904. AUTHORIZATION OF HAZARD PAY DIFFERENTIAL.

(A) AN AGENCY SHALL PAY THE HAZARD PAY DIFFERENTIAL LISTED IN
APPENDIX A TO AN EMPLOYEE WHO

IS ASSIGNED TO AND PERFORMS ANY IRREGULAR OR INTERMITTENT DUTY
SPECIFIED IN THE APPENDIX WHEN THAT

DUTY IS NOT USUALLY INVOLVED IN CARRYING OUT THE DUTIES OF HIS
POSITION. HAZARD PAY

DIFFERENTIAL MAY NOT BE PAID AN EMPLOYEE WHEN THE HAZARD DUTY HAS
BEEN TAKEN INTO ACCOUNT IN

THE CLASSIFICATION OF HIS

(B) FOR THE PURPOSE OF THIS SECTION:

(1) "NOT USUALLY INVOLVED IN CARRYING OUT THE DUTIES OF HIS POSITION"
MEANS THAT EVEN

THOUGH THE HAZARDOUS DUTY MAY BE EMBRACED WITHIN THE EMPLOYEE'S
POSITION DESCRIPTION IT IS NOT

PERFORMED WITH SUFFICIENT REGULARITY TO CONSTITUTE AN ELEMENT IN
FIXING THE GRADE OF THE

POSITION.

(2) "HAS BEEN TAKEN INTO ACCOUNT IN THE CLASSIFICATION OF HIS
POSITION" MEANS THAT THE DUTY

CONSTITUTES AN ELEMENT USED IN ESTABLISHING THE GRADE OF THE
POSITION.

APPLYING THESE REGULATIONS IN THE CONTEXT OF THE INSTANT DISPUTE, THE
OPM THEREAFTER CONCLUDED:

IN OUR VIEW, THE DISPUTE ESSENTIALLY CONCERNS POSITION
CLASSIFICATION; I.E., WHETHER

CERTAIN DUTIES ARE TYPICAL TO THE JOB SERIES, OR OTHERWISE CONSIDERED
IN THE CLASSIFICATION OF

POSITIONS AND/OR GIVEN SUFFICIENT WEIGHT. THESE MATTERS MAY BE
RAISED AS INDIVIDUAL OR GROUP

CLASSIFICATION APPEALS.

IF THE USE OF THIS PROCEDURE SHOULD RESULT IN A FINDING THAT THE
DUTIES REFERRED TO IN THE

UNION PROPOSAL ARE NOT PROPERLY CONSIDERED IN THE CLASSIFICATION
PROCESS, THERE WOULD BE NO

BAR IN LAW OR REGULATION TO NEGOTIATION ON THE APPLICATION OF OPM'S
SCHEDULE OF PAY DIFFERENTIALS TO SUCH DUTIES.

SECTION 7103(A)(14) OF THE STATUTE (NOTE 2, SUPRA), PROVIDES THAT
MATTERS RELATING TO THE CLASSIFICATION OF ANY POSITION ARE EXPRESSLY
EXCLUDED FROM THE DEFINITION OF "CONDITIONS OF EMPLOYMENT." HENCE, SUCH
MATTERS ARE NOT WITHIN THE SCOPE OF THE DUTY TO BARGAIN UNDER SECTION
7117 OF THE STATUTE WHICH IS LIMITED TO "CONDITIONS OF EMPLOYMENT" BY
SECTION 7103(A)(12) (NOTE 3, SUPRA). THEREFORE, BASED UPON THE ENTIRE
RECORD IN THE INSTANT CASE, INCLUDING OPM'S ADVISORY OPINION, IT IS
CONCLUDED THAT THE SUBJECT DISPUTE INVOLVES ISSUES WHICH WOULD BE
APPROPRIATE FOR RESOLUTION THROUGH THE CLASSIFICATION APPEALS PROCESS
RATHER THAN UNDER THE PROCEDURES SET FORTH IN SECTION 7117 OF THE
STATUTE AND PART 2424 OF THE AUTHORITY'S RULES AND REGULATIONS. THAT
IS, AS NOTED ABOVE (SUPRA P. 3-4), THE PARTIES HEREIN ARE ESSENTIALLY IN
DISAGREEMENT AS TO WHETHER SPECIFIC HAZARDOUS DUTIES ASSOCIATED WITH
CERTAIN GUARD AND FIREFIGHTER POSITIONS ARE PERFORMED ON AN "IRREGULAR
OR INTERMITTENT" BASIS AND WHETHER SUCH HAZARDOUS DUTIES HAVE BEEN TAKEN
INTO ACCOUNT IN THE CLASSIFICATION OF THESE POSITIONS. UNTIL THE
FOREGOING QUESTIONS ARE RESOLVED THROUGH THE CLASSIFICATION APPEALS
PROCESS, THE AUTHORITY HAS INSUFFICIENT INFORMATION TO DECIDE THE
INSTANT NEGOTIABILITY APPEAL. ACCORDINGLY, THE AUTHORITY FINDS THAT THE
UNION'S APPEAL HAS BEEN PREMATURELY FILED AND THEREFORE MUST BE DENIED,
WITHOUT PREJUDICE TO THE RENEWAL OF ITS CONTENTION THAT THE MATTERS IN
DISPUTE ARE NEGOTIABLE UNDER THE STATUTE IN A PETITION DULY FILED WITH
THE AUTHORITY AFTER IT IS RESOLVED, UNDER APPLICABLE PROCEDURES, THAT
THE HAZARDOUS DUTIES AT ISSUE ARE IRREGULAR OR INTERMITTENT AND HAVE NOT
BEEN TAKEN INTO ACCOUNT IN CLASSIFYING THE POSITIONS SPECIFIED IN THE
UNION'S PROPOSAL.

ISSUED, WASHINGTON, D.C., JUNE 25, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ 5 U.S.C. 5545(D) PROVIDES, IN RELEVANT PART, THAT:

THE (OFFICE OF PERSONNEL MANAGEMENT) SHALL ESTABLISH A SCHEDULE OR
SCHEDULES OF PAY

DIFFERENTIALS FOR IRREGULAR OR INTERMITTENT DUTY INVOLVING UNUSUAL
PHYSICAL HARDSHIP OR

HAZARD. UNDER SUCH REGULATIONS AS THE (OFFICE OF PERSONNEL
MANAGEMENT) MAY PRESCRIBE,

. . . AN EMPLOYEE . . . IS ENTITLED TO BE PAID THE APPROPRIATE
DIFFERENTIAL FOR ANY PERIOD IN

WHICH HE IS SUBJECTED TO PHYSICAL HARDSHIP OR HAZARD NOT USUALLY
INVOLVED IN CARRYING OUT THE

DUTIES OF HIS POSITION. HOWEVER, THE PAY DIFFERENTIAL--

(1) DOES NOT APPLY TO AN EMPLOYEE IN A POSITION THE CLASSIFICATION OF
WHICH TAKES INTO

ACCOUNT THE DEGREE OF PHYSICAL HARDSHIP OR HAZARD INVOLVED IN THE
PERFORMANCE OF THE DUTIES

THEREOF;

. . . .

/2/ SECTION 7103(A)(14)(B) OF THE STATUTE PROVIDES AS FOLLOWS:

SEC. 7103. DEFINITIONS; APPLICATION

(A) FOR THE PURPOSE OF THIS CHAPTER--

. . . .

(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER

ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS, EXCEPT THAT SUCH

TERM DOES NOT INCLUDE POLICIES, PRACTICES, AND MATTERS--

. . . .

(B) RELATING TO THE CLASSIFICATION OF ANY POSITION; . . .

/3/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES:

SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT

(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH

SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR

REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE

OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.

THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
7103(A)(12) OF THE STATUTE AS SET FORTH BELOW AND "CONDITIONS OF
EMPLOYMENT" IN SECTION 7103(A)(14), SUPRA NOTE 2:

SEC. 7103. DEFINITIONS; APPLICATION

(A) FOR THE PURPOSE OF THIS CHAPTER--

. . . .

(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE

REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE

UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH

EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH

EMPLOYEES . . .

/4/ 5 U.S.C. 7105(I) PROVIDES:

IN THE EXERCISE OF THE FUNCTIONS OF THE AUTHORITY UNDER THIS TITLE,
THE AUTHORITY MAY

REQUEST FROM THE DIRECTOR OF THE OFFICE OF PERSONNEL MANAGEMENT AN
ADVISORY OPINION CONCERNING

THE PROPER INTERPRETATION OF RULES, REGULATIONS, OR POLICY DIRECTIVES
ISSUED BY THE OFFICE OF

PERSONNEL MANAGEMENT IN CONNECTION WITH ANY MATTER BEFORE THE
AUTHORITY

/5/ 45 F.R. 3518(1980).