Oklahoma City Air Logistics Center, Tinker Air Force Base (Activity) and AFGE Local 916 (Union) (Authority decision, March 21, 1980)

FLRA remand decision under Executive Order 11491. The Authority returned the award to the parties for an arbitrator's clarification, so the disputed inspector pay entitlement remained unresolved. The decision says this transferred case was decided solely under the Executive Order and does not determine how the later statute would apply.

Plain-English summary

An arbitrator awarded a four percent environmental pay differential to aircraft egress mechanics and inspectors at Tinker Air Force Base after the base stopped paying it. The agency challenged the award as inconsistent with federal personnel rules. After consulting the Office of Personnel Management, the Authority distinguished the wage system mechanics from the General Schedule inspectors, whose hazard pay depended on separate criteria. It sent the award back for the arbitrator to clarify whether the inspectors met those criteria; if they did, the prescribed differential was 25 percent rather than four percent. The Authority lifted its prior stay without finally deciding the inspectors' entitlement.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); Executive Order 11491 transition rules.
• Outcome: Award remanded for clarification; stay vacated.
• Key point: General Schedule inspector hazard pay required findings under its own personnel rules.

Full text (FLRA public release)

[ v02 p958 ]

02:0958(119)AR

The decision of the Authority follows:

2 FLRA No. 119

OKLAHOMA CITY AIR LOGISTICS CENTER,
TINKER AIR FORCE BASE, OKLAHOMA
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 916, AFL-CIO
Union

FLRC No. 78A-188

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON THE AGENCY'S PETITION FOR
REVIEW OF THE AWARD OF ARBITRATOR PRESTON J. MOORE FILED WITH THE
FEDERAL LABOR RELATIONS COUNCIL. /1/

ACCORDING TO THE ARBITRATOR, THE GRIEVANCE IN THIS CASE AROSE WHEN
THE ACTIVITY TERMINATED THE PAYMENT OF AN ENVIRONMENTAL DIFFERENTIAL TO
ITS EGRESS MECHANICS, WHO ARE WAGE SYSTEM EMPLOYEES, AND TO ITS EGRESS
INSPECTORS, WHO ARE GENERAL SCHEDULE EMPLOYEES. THE UNION FILED A
GRIEVANCE THAT WAS ULTIMATELY SUBMITTED TO ARBITRATION.

THE ARBITRATOR DETERMINED THAT PRIOR TO THE ACTIVITY'S ACTION, BOTH
THE MECHANICS AND THE INSPECTORS WERE BEING PAID DIFFERENTIAL PAY. HE
ALSO DETERMINED THAT NO PROCEDURES OR SAFETY DEVICES HAD BEEN
ESTABLISHED WHICH HAD "PRACTICALLY ELIMINATED" THE POTENTIAL FOR HAZARD
AND WHICH WOULD THEREBY PRECLUDE PAYMENT OF A DIFFERENTIAL. HE FOUND
THAT THERE WAS "EVER PRESENT" A POTENTIAL FOR PERSONAL INJURY AND LOSS
OF LIFE. THE ARBITRATOR THEREFORE FOUND THAT BOTH THE MECHANICS AND THE
INSPECTORS WERE ENTITLED TO A 4 PERCENT ENVIRONMENTAL PAY DIFFERENTIAL.
IN THIS RESPECT THE ARBITRATOR REJECTED THE ACTIVITY'S CONTENTION THAT A
FINDING ENTITLING THE INSPECTORS, WHO ARE GENERAL SCHEDULE EMPLOYEES, TO
A DIFFERENTIAL REQUIRED PAYMENT TO THEM OF A 25 PERCENT HAZARD PAY
DIFFERENTIAL.

AS PREVIOUSLY STATED, THE AGENCY HAD FILED A PETITION FOR REVIEW OF
THE ARBITRATOR'S AWARD WITH THE FEDERAL LABOR RELATIONS COUNCIL. ON
DECEMBER 31, 1978, THIS CASE WAS PENDING BEFORE THE COUNCIL. IN
ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND REGULATIONS
OF THE AUTHORITY (44 FED.REG. 44741) AND SECTION 7135(B) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215), THE RULES OF
PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL, 5 C.F.R. PART 2411
(1978), REMAIN OPERATIVE WITH RESPECT TO THIS CASE EXCEPT THAT THE WORD
"AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE, WHEREVER THE WORD "COUNCIL"
APPEARS IN SUCH RULES.

UNDER SECTION 2411.32 OF THESE RULES AS SO AMENDED, THE AUTHORITY
ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE
AGENCY'S EXCEPTION THAT THE AWARD VIOLATES THE FEDERAL PERSONNEL MANUAL.
THE AGENCY'S REQUEST FOR A STAY OF THE AWARD WAS ALSO GRANTED. SINCE
THE CIVIL SERVICE COMMISSION WAS RESPONSIBLE FOR PRESCRIBING REGULATIONS
CONCERNING THE MATTERS IN THIS CASE AND SINCE UNDER SECTION 902(B) THE
CIVIL SERVICE REFORM ACT OF 1978 (92 STAT. 1224) THIS APPEAL MUST BE
RESOLVED AS IF THE CIVIL SERVICE REFORM ACT HAD NOT BEEN ENACTED, THE
AUTHORITY REQUESTED FROM THE OFFICE OF PERSONNEL MANAGEMENT (OPM) (THE
SUCCESSOR AGENCY TO THE CIVIL SERVICE COMMISSION WITH RESPECT TO THESE
MATTERS) AN INTERPRETATION OF RELEVANT CIVIL SERVICE REGULATIONS AS THEY
PERTAIN TO THE ARBITRATOR'S AWARD.

THE OFFICE OF PERSONNEL MANAGEMENT REPLIED IN RELEVANT PART AS
FOLLOWS:

IN THIS CASE, THE UNION ALLEGED BEFORE THE ARBITRATOR THAT WAGE GRADE
EGRESS MECHANICS ARE

ENTITLED TO ENVIRONMENTAL DIFFERENTIAL PAY AS PRESCRIBED IN THE
FEDERAL PERSONNEL MANUAL, FOR

WORK PERFORMED ON EGRESS SYSTEMS IN THE A-7, F-105 AND B-52 AIRCRAFT
AND, SIMILARLY, THAT

GENERAL SCHEDULE EGRESS INSPECTORS ARE ENTITLED TO HAZARD DUTY PAY,
ALSO PRESCRIBED IN THE

SAME TYPE OF AIRCRAFT. THE AGENCY CONTENDED, AMONG OTHER THINGS,
THAT PROTECTIVE DEVICES

AND/OR SAFETY MEASURES HAVE "PRACTICALLY ELIMINATED" THE POTENTIAL
FOR HAZARD, THEREBY

PRECLUDING THE PAYMENT OF A DIFFERENTIAL. THE ARBITRATOR, IN FINDING
FOR THE UNION, NOTED

THAT PRIOR TO DECEMBER 5, 1977, THE MECHANICS AND INSPECTORS BOTH
WERE PAID A DIFFERENTIAL FOR

THEIR EXPOSURE TO A HAZARD (THE AIR FORCE STATES THAT ONLY THE
MECHANICS RECEIVED A

DIFFERENTIAL PRIOR TO 1977) AND THAT, "NO PROCEDURES OR SAFETY
DEVICES HAVE BEEN ESTABLISHED

WHICH HAVE PRACTICALLY ELIMINATED POTENTIAL FOR PERSONAL INJURY
AND/OR LOSS OF

LIFE." CONSEQUENTLY HE FOUND THAT THE "MECHANICS AND INSPECTORS ARE
ENTITLED TO A FOUR PERCENT

ENVIRONMENTAL DIFFERENTIAL PAY." WE HAVE BEEN ASKED WHETHER THE
ARBITRATOR'S AWARD VIOLATES

APPLICABLE REGULATIONS AND THE FEDERAL PERSONNEL MANUAL ONLY INSOFAR
AS IT PERTAINS TO THE

GENERAL SCHEDULE EGRESS INSPECTORS.

INITIALLY IT SHOULD BE NOTED THAT A DISTINCTION EXISTS BETWEEN
"HAZARD PAY" FOR GENERAL

SCHEDULE EMPLOYEES AND "ENVIRONMENTAL PAY" FOR FEDERAL WAGE SYSTEM
EMPLOYEES. THERE ARE TWO

SEPARATE AND DISTINCT SECTIONS OF THE FEDERAL PERSONNEL MANUAL WHICH
CONTROL: FPM SUPPLEMENT

532-1 FOR FEDERAL WAGE SYSTEM EMPLOYEES AND FPM SUPPLEMENT 990-2 FOR
GENERAL SCHEDULE

EMPLOYEES.

THERE IS NO CLEAR EVIDENCE IN THE AWARD AS TO WHETHER THE ARBITRATOR
MADE A FACTUAL

DISTINCTION IN HIS OWN MIND THAT THE MECHANICS AND INSPECTORS WERE
ENTITLED TO THE

"ENVIRONMENTAL PAY" PURSUANT TO THESE RESPECTIVE SECTIONS OF THE FPM
OR WHETHER HE AWARDED

THE ENTITLEMENTS RELYING EXCLUSIVELY ON FPM SUPPLEMENT 532-1.
NONETHELESS, THE ARBITRATOR DID

FIND THAT BOTH THE EGRESS MECHANICS AND EGRESS INSPECTORS ARE EXPOSED
TO A HAZARD IN THE

PERFORMANCE OF THEIR RESPECTIVE DUTIES; THAT NO PROCEDURES OR SAFETY
DEVICES HAVE BEEN

ESTABLISHED WHICH HAVE "PRACTICALLY ELIMINATED" THE HAZARD; THAT THE
EXPOSURE TO THIS HAZARD

WARRANTS THE PAYMENT OF A DIFFERENTIAL; AND, FINALLY, THAT THE
DIFFERENTIAL SHOULD BE FOUR

PERCENT FOR BOTH THE EGRESS MECHANICS AND THE EGRESS INSPECTORS.

THERE ARE IMPORTANT DIFFERENCES TO BE TAKEN INTO ACCOUNT IN THE
AWARDING OF "HAZARD

PAY" PURSUANT TO FPM SUPPLEMENT 990-2 AND THE AWARDING OF
"ENVIRONMENTAL PAY" PURSUANT TO FPM

SUPPLEMENT 532-1. SPECIFICALLY, THE AUTHORIZATIONS CITED IN THE
RESPECTIVE APPENDICES

(APPENDIX J TO FPM SUPPLEMENT 532-1 AND APPENDICES A AND E TO FPM
SUPPLEMENT 990-2, BOOK 550)

ARE NOT THE SAME AND THE AMOUNT OF THE DIFFERENTIALS ARE DIFFERENT IN
EACH INSTANCE.

UNDER THE CIRCUMSTANCES OF THE CASE BEFORE US WE MUST EXAMINE THE
APPROPRIATENESS OF THE

ARBITRATOR'S AWARD OF "HAZARD PAY" TO THE GENERAL SCHEDULE INSPECTORS
IN RELATION TO TITLE 5,

UNITED STATES CODE AND THE PROVISIONS OF FPM 990-2, BOOK 550,
SUBCHAPTER S9-- PAY FOR

IRREGULAR OR INTERMITTENT DUTY INVOLVING PHYSICAL HARDSHIP OR HAZARD.

THERE ARE THREE STATUTORY REQUIREMENTS WHICH MUST BE MET BEFORE A
DIFFERENTIAL CAN BE

AUTHORIZED FOR A GENERAL SCHEDULE EMPLOYEE:

(1) THE HAZARD OR PHYSICAL HARDSHIP MUST BE UNUSUAL, AS SET FORTH IN
APPENDIX A AND

EXPLAINED IN APPENDIX E OF FPM SUPPLEMENT 990-2, BOOK 550;

(2) IT MUST BE AN IRREGULAR OR INTERMITTENT DUTY; AND

(3) THE HAZARD OR PHYSICAL HARDSHIP MUST NOT HAVE BEEN CONSIDERED IN
THE CLASSIFICATION OF

THE POSITION.

IN REGARD TO THE FIRST REQUIREMENT, THE EGRESS INSPECTION WORK MUST
BE EXAMINED AGAINST THE

ESTABLISHED CRITERION IN APPENDIX A AND THE EXPLANATORY MATERIAL IN
APPENDIX E FOR "WORK WITH

OR IN CLOSE PROXIMITY TO EXPLOSIVE OR INCENDIARY MATERIAL WHICH IS
UNSTABLE AND HIGHLY

SENSITIVE." IN EVALUATING THE APPROPRIATENESS OF THE APPLICATION OF
THIS APPROVED HAZARD

CATEGORY TO THE EGRESS INSPECTION WORK, IT IS IMPORTANT TO CONSIDER
TWO SEPARATE, BUT RELATED,

POINTS. THE FIRST CONCERNS THE ACTUAL PHYSICAL PROPERTIES OF THE
EXPLOSIVE AND, SPECIFICALLY,

IS THE EXPLOSIVE UNSTABLE AND HIGHLY SENSITIVE. SECONDLY, DOES THE
WORK SUBJECT THE MATERIAL

TO THOSE CIRCUMSTANCES WHICH ARE LIKELY TO PRODUCE AN EXPLOSION. IF
IT CAN BE DETERMINED THAT

THE EXPLOSIVES CONTAINED IN THE EGRESS SYSTEM ARE UNSTABLE AND HIGHLY
SENSITIVE AND/OR THE

WORK PERFORMED WITH THE EXPLOSIVE (EVEN IF NORMALLY STABLE AND
NON-SENSITIVE) ALTERS THE

EXPLOSIVE TO SUCH AN EXTENT THAT IT BECOMES UNSTABLE AND HIGHLY
SENSITIVE, THEN THE WORK MEETS

THE UNUSUALLY HAZARDOUS DESCRIPTION OF OUR REGULATIONS. ALTHOUGH THE
CASE FILE SHOWS THAT THE

ARBITRATOR DETERMINED THAT THE EGRESS INSPECTION WORK WAS HAZARDOUS,
IT IS NOT CLEAR WHETHER

OR NOT THE THE UNUSUALLY HAZARDOUS CRITERIA ESTABLISHED IN FPM
SUPPLEMENT 990-2, BOOK 550,

APPENDICES A AND E WERE APPLIED IN ARRIVING AT THIS DECISION.

IN REGARD TO THE SECOND REQUIREMENT, THERE IS NO INDICATION WITHIN
THE CASE FILE TO REFLECT

IF THIS REQUIREMENT OF THE LAW AND OUR REGULATIONS WAS EXAMINED IN
THE ARBITRATOR'S

REVIEW. THE FILE DOES STATE THAT 200-300 SEATS ARE ARMED AND
DE-ARMED ANNUALLY ON THE F-105

AIRCRAFT, BUT NO MENTION IS MADE OF THE NUMBER ON THE A-7 AND B-52
AIRCRAFT. THE FREQUENCY

AND DURATION OF SUCH ASSIGNMENTS ARE ESSENTIAL TO A DETERMINATION
REGARDING WHETHER THIS

REQUIREMENT HAS BEEN MET.

THE CASE FILE IS ALSO SILENT WITH RESPECT TO WHETHER OR NOT THE
HAZARD OR PHYSICAL HARDSHIP

WAS CONSIDERED IN THE CLASSIFICATION OF THE POSITION. THIS MAY BE
DETERMINED BY THE

EXAMINATION OF COPIES OF THE EMPLOYEE'S OFFICIAL POSITION
DESCRIPTION, AND POSITION EVALUATION

REPORTS. IT SHOULD BE NOTED, HOWEVER, THAT THE CONSIDERATION OF
THESE DUTIES IN THE

CLASSIFICATION OF THE POSITION MAY OR MAY NOT AFFECT THE GRADE OF THE
POSITION DEPENDING UPON

THE LEVEL OF SKILLS, KNOWLEDGES AND ABILITIES NEEDED TO DEAL WITH THE
HAZARD IN RELATION TO

THE SKILLS, KNOWLEDGES AND ABILITIES REQUIRED BY THE OTHER DUTIES OF
THE POSITION.

IF ALL THREE OF THE ABOVE REQUIREMENTS ARE MET, OPM REGULATIONS
SPECIFY THAT THE EMPLOYEE

MUST BE PAID A 25 PERCENT DIFFERENTIAL, NOT A PORTION THEREOF.

IN SUMMARY, CIVIL SERVICE LAW, REGULATION, AND THE FEDERAL PERSONNEL
MANUAL AUTHORIZE THE

PAYMENT OF A HAZARD DIFFERENTIAL, WHERE THE EXPOSURE TO THE HAZARD
IS: (1) UNUSUAL, IN

ACCORDANCE WITH PRESCRIBED SCHEDULES ESTABLISHED BY THE OFFICE OF
PERSONNEL MANAGEMENT; (2)

PERFORMED ON AN IRREGULAR OR INTERMITTENT BASIS; AND (3) NOT TAKEN
INTO ACCOUNT IN THE

CLASSIFICATION OF THE POSITION. THE ARBITRATOR'S DECISION DOES NOT
SPECIFICALLY ADDRESS THESE

MATTERS NOR DOES THE ACTIVITY'S APPEAL RAISE THEM AS REASONS FOR
REJECTING THE ARBITRATOR'S

AWARD. IN OUR VIEW, THE QUESTION OF THE AWARD'S COMPLIANCE WITH
APPLICABLE LAWS, REGULATIONS

AND THE FEDERAL PERSONNEL MANUAL CANNOT BE RESOLVED UNTIL A
DETERMINATION IS MADE THAT IT

COMPORTS WITH THE REQUIREMENTS CITED ABOVE. THE FACT THAT THE
ARBITRATOR REFERRED TO AN

IMPROPER SECTION OF THE FPM IS NOT VIOLATIVE, SO LONG AS THE FPM
CRITERIA DISCUSSED ABOVE ARE

MET.

BASED ON THIS INTERPRETATION OF THE OFFICE OF PERSONNEL MANAGEMENT
AND IN ACCORDANCE WITH SECTION 2411.37(A) OF THE AMENDED RULES, /2/ THE
ARBITRATOR'S AWARD MUST BE REMANDED TO THE PARTIES TO HAVE THEM OBTAIN A
CLARIFICATION AND INTERPRETATION OF THE AWARD FROM THE ARBITRATOR. THE
RESUBMISSION IS FOR THE PURPOSE OF HAVING THE ARBITRATOR, IN VIEW OF THE
OPM RESPONSE AND THE SPECIFIC REQUIREMENTS FOR THE PAYMENT OF A HAZARD
DIFFERENTIAL SET FORTH THEREIN, CLARIFY AND INTERPRET HIS AWARD WITH
RESPECT TO WHETHER IN THE WORK SITUATION OF THE EGRESS INSPECTORS THAT
WAS PRESENTED TO HIM, THE REQUIREMENTS FOR THE PAYMENT OF A HAZARD
DIFFERENTIAL WERE MET. AS NOTED IN THE OPM RESPONSE, IF THE REQUIREMENTS
WERE MET, OPM REGULATIONS SPECIFY THAT THE EMPLOYEES MUST BE PAID A 25
PERCENT DIFFERENTIAL, NOT A PORTION THEREOF.

ACCORDINGLY, THE ARBITRATOR'S AWARD IS REMANDED TO THE PARTIES AND
THE STAY OF THE AWARD PREVIOUSLY GRANTED BY THE AUTHORITY IS VACATED.
/3/

ISSUED, WASHINGTON, D.C., MARCH 21, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ THE FUNCTIONS OF THE FEDERAL LABOR RELATIONS COUNCIL, IN MATTERS
SUCH AS HERE INVOLVED, WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION
304 OF REORGANIZATION PLAN NO. 2 OF 1978 (43 FED. REG. 36040), WHICH
TRANSFER OF FUNCTIONS IS IMPLEMENTED BY SECTION 2400.5 OF THE
AUTHORITY'S TRANSITION RULES AND REGULATIONS (44 FED.REG. 44741). THE
AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE PERFORMANCE OF THESE
FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. SEC. 7135(B)).

/2/ SECTION 2411.37(A) OF THE AMENDED RULES PROVIDES:

(A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
OR IN PART, OR REMANDED

ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
REGULATION, OR THE ORDER,

OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
SECTION LABOR-MANAGEMENT

RELATIONS.

/3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AS AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.

FOR FURTHER INFORMATION, TELEPHONE (202) 653-7078.