AFGE Local 2943 and Loring Air Force Base (Authority decision, September 15, 1982)

Final FLRA decision. The Authority resolves exceptions to an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a)(1) generally does not extend to orders involving arbitral awards unless an order involves an unfair labor practice under § 7116. This order does not decide an unfair labor practice.

Plain-English summary

An arbitrator awarded a Loring Air Force Base employee a four-percent environmental differential for spraying herbicides. The Air Force challenged the award under personnel rules and the Back Pay Act. The Authority found that the arbitrator had evaluated the exposure under the governing schedule and that the agency had not shown the award unlawful. It denied the exceptions.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Agency exceptions denied; environmental differential award upheld.
• Key point: The agency did not establish that the arbitrator’s exposure finding conflicted with the pay schedule.

Full text (FLRA public release)

[ v10 p57 ]

10:0057(15)AR

The decision of the Authority follows:

10 FLRA No. 15

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2943
Union

and

DEPARTMENT OF THE AIR FORCE,
LORING AIR FORCE BASE,
MAINE
Activity

Case No. O-AR-272

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR STANLEY M. JACKS FILED BY THE AGENCY UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS. THE UNION FILED AN
OPPOSITION.

THE DISPUTE IN THIS MATTER CONCERNS ENTITLEMENT TO ENVIRONMENTAL
DIFFERENTIAL PAY. A GRIEVANCE WAS FILED AND ULTIMATELY SUBMITTED TO
ARBITRATION WHICH CLAIMED THAT THE GRIEVANT WAS ENTITLED TO A 4 PERCENT
ENVIRONMENTAL DIFFERENTIAL WHEN SPRAYING HERBICIDES.

THE ARBITRATOR DETERMINED THAT THE GRIEVANT HAD BEEN EXPOSED TO A
WORKING CONDITION DESCRIBED IN FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT
532-1, APPENDIX J FOR WHICH THE GRIEVANT WAS ENTITLED TO A 4 PERCENT
ENVIRONMENTAL DIFFERENTIAL UNLESS PROTECTIVE DEVICES AND SAFETY MEASURES
HAD PRACTICALLY ELIMINATED THE POTENTIAL FOR PERSONAL INJURY. IN THIS
RESPECT THE ARBITRATOR CONCLUDED THAT MANAGEMENT'S PROGRAM OF
PROTECTIVE
DEVICES AND SAFETY MEASURES WHEN FULLY IMPLEMENTED PRACTICALLY
ELIMINATED THE POTENTIAL FOR PERSONAL INJURY. HOWEVER, ON THE BASIS OF
THE EVIDENCE PRESENTED, HE FOUND THAT THIS PROGRAM HAD NOT BEEN FULLY
IMPLEMENTED DURING THE 1980 SPRAYING PERIOD AND THAT CONSEQUENTLY FOR
THAT PERIOD THE POTENTIAL FOR PERSONAL INJURY TO THE GRIEVANT HAD NOT
BEEN PRACTICALLY ELIMINATED. ACCORDINGLY, THE ARBITRATOR AWARDED THE
GRIEVANT 4 PERCENT ENVIRONMENTAL DIFFERENTIAL PAY FOR THE 1980 PERIOD
AND RULED THAT THE GRIEVANT WAS ALSO ENTITLED TO THE DIFFERENTIAL FOR
1981 AND 1982 UNLESS MANAGEMENT'S PROGRAM OF PROTECTIVE DEVICES AND
SAFETY MEASURES WAS FULLY IMPLEMENTED.

IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY
TO FPM SUPPLEMENT 532-1. SPECIFICALLY, THE AGENCY MAINTAINS THAT THE
ARBITRATOR FOUND THAT THE HAZARDS HAD BEEN PRACTICALLY ELIMINATED, AND
THE AGENCY THEREFORE ARGUES THAT CONSEQUENTLY THERE IS NO LAWFUL BASIS
FOR THE PAYMENT OF AN ENVIRONMENTAL DIFFERENTIAL.

THIS EXCEPTION HOWEVER PROVIDES NO BASIS FOR FINDING THE AWARD
DEFICIENT. IT IS WELL ESTABLISHED AND THE AUTHORITY HAS CONSISTENTLY
RECOGNIZED THAT THE SPECIFIC WORK SITUATIONS FOR WHICH AN ENVIRONMENTAL
DIFFERENTIAL IS PAYABLE UNDER THE CATEGORIES OF FPM SUPPLEMENT 532-1,
APPENDIX J ARE LEFT TO LOCAL DETERMINATION INCLUDING ARBITRATION. E.G.,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1857 AND
SACRAMENTO AIR LOGISTICS CENTER, MCCLELLAN AIR FORCE BASE, CALIFORNIA, 9
FLRA NO. 128(1982). IN THIS CASE, WHETHER THE GRIEVANT WAS BEING
EXPOSED TO A WORKING CONDITION SET FORTH IN APPENDIX J WAS SUBMITTED TO
THE ARBITRATOR FOR RESOLUTION. WITH THE FPM EXPRESSLY DELEGATING FOR
LOCAL DETERMINATION THE SPECIFIC WORK SITUATIONS FOR WHICH AN
ENVIRONMENTAL DIFFERENTIAL WILL BE PAYABLE UNDER THE CATEGORIES OF
APPENDIX J AND, CONTRARY TO THE ASSERTION OF THE AGENCY, WITH THE
ARBITRATOR EXPRESSLY FINDING AS TO THE DISPUTED LOCAL WORK SITUATION
THAT PAYMENT OF AN ENVIRONMENTAL DIFFERENTIAL WAS WARRANTED UNDER
APPENDIX J, NO BASIS HAS BEEN PRESENTED FOR FINDING THE AWARD CONTRARY
TO FPM SUPPLEMENT 532-1. SACRAMENTO AIR LOGISTICS CENTER; NAVAL
WEAPONS STATION, YORKTOWN, VIRGINIA AND NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R4-1, 6 FLRA NO. 47(1981); VETERANS
ADMINISTRATION MEDICAL CENTER, FORT HOWARD AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2146, 5 FLRA NO. 31(1981).

THE AGENCY'S OTHER EXCEPTIONS ARE MERELY DERIVATIVE OF THE FIRST
EXCEPTION. SPECIFICALLY, THE AGENCY CONTENDS THAT BECAUSE THERE IS NO
LAWFUL BASIS FOR THE PAYMENT OF AN ENVIRONMENTAL DIFFERENTIAL UNDER THE
FPM, THE AWARD IS CONTRARY TO THE BACK PAY ACT IN THAT THERE HAS NOT
BEEN AN UNWARRANTED REDUCTION OF THE GRIEVANT'S DIFFERENTIALS AND THE
AWARD IS CONTRARY TO LAW AS PUNITIVE, RATHER THAN COMPENSATORY, DAMAGES.
HOWEVER, BECAUSE THE AGENCY FAILED TO ESTABLISH THAT PAYMENT OF AN
ENVIRONMENTAL DIFFERENTIAL WAS NOT WARRANTED UNDER THE FPM, THESE
EXCEPTIONS CORRESPONDINGLY PROVIDE NO BASIS FOR FINDING THE AWARD
CONTRARY TO LAW AS PUNITIVE DAMAGES OR CONTRARY TO THE BACK PAY ACT.

ACCORDINGLY, THE AGENCY'S EXCEPTIONS ARE DENIED.

ISSUED, WASHINGTON, D.C., SEPTEMBER 15, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY