[ v54 p338 ]
54:0338(41)AR
The decision of the Authority follows:
54 FLRA No. 41
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
U.S. DEPARTMENT OF THE NAVY
NAVY PUBLIC WORKS CENTER
NORFOLK, VIRGINIA
(AGENCY)
and
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL
(UNION)
0-AR-2906
_____
DECISION
June 12, 1998
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S.
Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an
award of Arbitrator Edward L. Merrigan 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
Regulations. The Union did not file an opposition to the Agency's
exceptions.
The Arbitrator granted environmental differential pay (EDP),
based on hazardous weather conditions, to employees working or
traveling to and from work on a particular date. For the
following reasons, we set aside the portions of the award that
grant EDP: (1) for time employees spent traveling to and from
work; and (2) to employees who worked indoors on that date. As we
are unable to determine whether the portion of the award granting
EDP to employees who worked outside on the date in question is
deficient, we remand it to the parties for resubmission, absent
settlement, to the Arbitrator for clarification.
II. Background and Arbitrator's Award
A weekend storm blanketed the Hampton Roads, Virginia area
with snow, resulting in severe weather that continued into Monday,
February 5, 1996. The storm caused schools and most businesses in
the Hampton Roads area to close on February 5.
The Commanding Officer of the Navy Public Works Center
(Agency) ordered all employees, both essential (ALFA) and
nonessential (BRAVO), to report to work on time on Monday,
February 5. Most of the Agency's employees reported for work.
However, 260 employees were late, and 5 employees were injured as
a result of ice and snow conditions.
The Union filed a grievance claiming, as relevant here,
that the Agency violated applicable regulations and past practice
by requiring BRAVO employees to work and report on time in "unsafe
extreme weather conditions" on February 5. The Union requested
that all BRAVO employees who reported to work on that date receive
"[h]igh work" environmental differential pay at the 25 percent
rate as authorized by 5 C.F.R. 532.511, Appendix A, Part I.2.
When the grievance was not resolved, it was submitted to
arbitration. The parties did not stipulate the issues to be
resolved by the Arbitrator.
The Arbitrator found that Agency employees "who worked, or
traveled to and from work" on February 5 "were patently exposed to
dangerous conditions of terrain, temperature and wind velocity."
Id. at 20-21. Based on this finding, the Arbitrator granted
employees who "traveled to and from their work places and actually
reported [to] work, either on time or late," on that date EDP at
the rate of 25 percent, as specified in OPM's EDP Category 9. Id.
at 24. In this regard, the Arbitrator rejected the Union's
reliance on EDP Category 2, High Work, as the category under which
EDP was authorized for the grievants, determining instead that the
appropriate category was Category 9. The Arbitrator stated that
the amount of EDP was to be computed as prescribed in applicable
regulations.
III. Positions of the Parties
A. Agency
The Agency claims that the award of Category 9 EDP,
"Exposure to hazardous weather or terrain," is deficient because
the Union requested the payment of EDP based on Category 2, "High
[W]ork." The Agency argues that the Arbitrator "prejudiced" the
Agency because it was not provided with the opportunity to present
evidence that dealt with Category 9. Exceptions at 3. The Agency
also contends that the award is contrary to law, asserting that
"employees cannot be paid [EDP] for traveling to and from work[.]"
Id., (citing U.S. Customs Service, Chicago-O'Hare and National
Treasury Employees Union, Chapter 172, 23 FLRA 366 (1986) and U.S.
Department of Labor, Mine Safety and Health Administration and
National Council of Field Labor Locals, American Federation of
Government Employees, 32 FLRA 930 (1988).
In addition, the Agency claims that, even if employees are
entitled to EDP, they are only entitled to payment for actual time
exposed to the hazardous condition pursuant to 5 C.F.R.
532.511(b)(2). According to the Agency, since "[m]ost BRAVO
category employees who came to work on 5 February 1996 worked
indoors[,]" they were not exposed to hazardous conditions and,
thus, are not entitled to EDP. Id. at 5.
B. Union
The Union did not file an opposition.
IV. Analysis and Conclusions
A. The Arbitrator did not exceed his authority by awarding
a different category of environmental differential pay
than was requested by the Union.
We construe the Agency's claim that the Arbitrator could
only determine the issue of whether to award EDP from Category 2,
and not from Category 9, as a contention that the Arbitrator
exceeded his authority.
Arbitrators exceed their authority when they fail to resolve
an issue submitted to arbitration, resolve an issue not submitted
to arbitration, disregard specific limitations on their authority
or award relief to those not encompassed within the grievance.
American Federation of Government Employees, Local 1617 and U.S.
Department of the Air Force, San Antonio Air Logistics Center,
Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996). It is
well-established that, in the absence of a stipulated issue, an
arbitrator's formulation of the issues is accorded substantial
deference. See American Federation of Government Employees, Local
916 and Defense Distribution Depot, Oklahoma City, Oklahoma, 50
FLRA 244, 246-47 (1995).
In this case, the parties did not stipulate the issue.
Accordingly, the Arbitrator was free to formulate one. See, e.g.,
U.S. Department of Defense, Army and Air Force Exchange Service
and American Federation of Government Employees (Worldwide
Consolidated Bargaining Unit), 51 FLRA 1371, 1378 (1996).
Although the Arbitrator did not expressly set forth the issue, it
is clear from the award as a whole that he determined the issue to
be whether, and under which category, EDP should be granted to
employees who worked, or traveled to and from work, on February 5,
6, and 7, 1996. The Arbitrator resolved this issue by
determining that employees were entitled to EDP under Category 9,
rather than Category 2.
In these circumstances, the Agency has not demonstrated that
the Arbitrator exceeded his authority. Accordingly, we deny this
exception.
B. Whether the Arbitrator's award is contrary to law,
rule, or regulation.
We review questions of law raised by a party's exceptions to
an arbitrator's award de novo. U.S. Department of the Interior,
Bureau of Indian Affairs, Navajo Area Office and National
Federation of Federal Employees, BIA Council, 53 FLRA 984, 992
(1997), citing, National Treasury Employees Union, Chapter 24 and
U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA
330, 332 (1995). See also U.S. Customs Service v. FLRA, 43 F.3d
682, 686-87 (D.C. Cir. 1994).
1. The portion of the Arbitrator's award granting EDP for
employees commuting to and from work during winter
storm conditions is contrary to 5 C.F.R. 532.511
5 C.F.R. 532.511, Appendix A, Part I, Category 9 provides
for the payment of EDP for "[e]xposure to dangerous conditions of
terrain, temperature and/or wind velocity, while working or
traveling . . . ." (Emphasis added).
The term "travel" as used in Category 9 is not defined in
the EDP regulations. However, home-to-work "travel," or commuting
is typically considered separate and distinct from "travel" on
official Government business. See, e.g., American Federation of
Government Employees, Local 3006 and U.S. Department of Defense,
National Guard Bureau, State of Idaho, Office of the Adjutant
General, 47 FLRA 155, 159-160 (1993) ("normal home-to-work
commuting is not travel on official business of the Government").
Further, the statutory basis for the payment of EDP does not
contain an unequivocal expression that compensation for home-to-
work travel is authorized. See 5 U.S.C. 5343(c)(4). Absent an
unequivocal and unambiguous expression of a waiver of sovereign
immunity, the payment of Federal money, including any pay
differential, is not authorized. See United States v. Testan, 424
U.S. 392, 402 (1976) and Lane v. Pena, 518 U.S. 187 (1996)
(June 20, 1996), quoting Irwin v. Veterans Affairs, 498 U.S. 89,
95 (1990).
In these circumstances, and in the absence of any argument
or authority to the contrary, we conclude that the EDP regulations
do not authorize compensation for the type of traveling for which
the Arbitrator ordered EDP. Therefore, this portion of the award
is deficient as contrary to law, and we set it aside.
2. The record is insufficient for a determination as to
whether the portion of the award granting EDP to
employees engaged in the performance of work is
deficient under 5 C.F.R. Part 532.
5 C.F.R. 532.511(a)(1) provides that an employee is
entitled to EDP "when exposed to a working condition or hazard
that falls within one of the categories approved by the Office of
Personnel Management." As relevant here, employees are entitled
to EDP when they are exposed to: "dangerous conditions of
terrain, temperature and/or wind velocity, while working . . .
when such exposure introduces risk of significant injury or death
to employees . . . ." 5 C.F.R. 532.511, Appendix A, Part I.9.
The Arbitrator determined that "employees who worked, or
travelled to and from work, on Monday, February 5, 1996 were
patently exposed to dangerous conditions of terrain, temperature
and wind velocity." Award at 20. These are factual findings to
which the Authority defers. See Social Security Administration,
Mid-Atlantic Program Service Center and American Federation of
Government Employees, Local 1923, 53 FLRA 956, 959 (1997) and
American Federation of Government Employees, Local 2459 and U.S.
Department of Justice, Federal Bureau of Prisons, Federal
Correctional Institution, Texarkana, Texas, 51 FLRA 1602, 1607-08
(1996).
It appears from the record that the bargaining unit
encompasses employees working indoors and employees working
outdoors. In this regard, the Agency in its exceptions states
that "[m]ost . . . employees . . . worked indoors[,]" thereby
conceding that at least some employees worked outdoors.
Exceptions at 5.
With respect to employees who worked indoors on February 5,
we agree with the Agency that they are not entitled to EDP under
Category 9 because they were not exposed to hazardous weather or
terrain while they were working. Thus, the award as to these
employees is deficient as contrary to law.
With respect to employees who worked outdoors on February 5,
the Arbitrator made no factual findings concerning their
entitlement to EDP. In particular, the Arbitrator did not
distinguish between weather conditions relevant to traveling to
the Agency and the conditions relevant to the performance of work
outside at the Agency. In addition, the award contains no
findings concerning either the job functions of these employees or
the length of time they were exposed to dangerous weather
conditions. Indeed, the award does not even refer to any
employees working outdoors on February 5.
Without findings on these matters, the Authority is unable
to determine whether the award is deficient with respect to the
employees working outdoors on February 5. In situations such as
this, where the Authority is unable to determine whether an
arbitrator's award is deficient, the practice of the Authority is
to remand the case to the parties for resubmission to the
arbitrator, absent settlement, for a clarification of the award.
See, e.g., U.S. Department of the Air Force, 509th Bombardment
Wing, Pease Air Force Base, New Hampshire and National Association
of Government Employees, Local R1-111, 41 FLRA 1035, 1041 (1991).
A remand is appropriate in these circumstances to permit
impartial resolution of the remaining factual issues in this case.
Of course, the parties are free to resolve the matter without
further arbitration proceedings. However, absent settlement, the
parties are directed to submit the matter to the Arbitrator for
clarification as to whether employees who worked outdoors on
February 5, 1996 are entitled to EDP and, if they are, why.
V. Decision
The award of EDP to employees for time spent traveling to
and from work on February 5, 1996, and to employees who worked
inside on that date is set aside. The award of EDP to employees
who worked outside on that date is remanded to the parties for
resubmission, absent settlement, to the Arbitrator for a
clarification. Opinion of Member Wasserman, Concurring in Part and Dissenting in
Part
I agree with my colleagues regarding three of their
conclusions: that the Arbitrator did not exceed his authority by
awarding a different category of EDP from that which was
originally requested; that he erred in awarding EDP to employees
who merely commuted to and from work; and that he erred in
awarding EDP to employees who worked indoors. However, I disagree
with their determination that the Arbitrator failed to establish
that the outdoor employees were entitled to EDP and dissent as to
that portion of the decision.
Testimony regarding the Agency's efforts to improve the
conditions at its PWC facility revealed that on Sunday, February
4, the Agency "had a hard time keeping ahead of the snow drifts on
the runways[,]" because of the cold and the high winds. Award at
9. The Agency's Commanding Officer also stated that the Agency
"worked hard" on Sunday "to keep the road intersections on the
bases open and the roads open." Id. According to the record, the
Agency's Disaster Preparedness Officer spoke with the Agency
transportation personnel, who were removing the snow and sanding
and salting the roads at the Agency, regarding the outlook of road
conditions at the Agency for Monday morning. The Officer
testified that the crews responded, "it is tough. . . [there] is a
lot of ice there. We are not dealing with snow. We are dealing
with ice, and we don't know if we can melt it in time . . . I
didn't think we were going to be ready in time." Id. at 11.
It is clear from the record that these dangerous conditions
still existed on Monday, February 5, 1996. The evidence showed
that the temperature in the Hampton Roads area, where the Agency
was located, ranged from 10øF to 29øF on February 5. Id. at 9,
citing, Agency Ex. 2. The record also indicated that wind
continued to blow from the northwest at 12 to 18 kts. Based on
this evidence, the Arbitrator concluded that on February 5,
Hampton Roads was still in a "deep freeze." Appendix A's
windchill chart describes when persons are in danger from the
combination of wind speed and local temperature. 5 C.F.R. Part
532, Appendix A, Exhibit 1. According to this chart, when local
temperature ranges from 14øF up to 23øF, with a wind speed ranging
from 10 - 20 kts., a person exposed to these elements is in
"considerable danger" from freezing of exposed flesh because of
the windchill between -4øF to -19øF. Thus, the local temperature
and wind velocity on February 5 put the grievants in "considerable
danger" at least for some portions of the day according to the
windchill chart in Appendix A.
The record also showed that the roads surrounding the Agency
were so hazardous and icy on Monday, February 5, that the police
and local media were directing drivers to stay off the streets.
In this connection, the Arbitrator noted that the Norfolk Naval
Base, which includes most of the Navy's major activities in the
Hampton Roads area, excused all of its nonessential employees due
to the weather conditions on February 5. Award at 10.
In evaluating the conditions that existed on Monday,
February 5, the Arbitrator stated that:
Those who did venture out of their homes to report for
work as ordered by [the Agency] were confronted with
frozen bridges; icy and slippery roads; impassible snow
accumulations in many areas, and "snowed in" parking
lots at the Agency facility. Automobile accidents were
thus commonplace, and even employees who successfully
reached their Agency work places were subjected to
serious injuries and/or damage to their vehicles.
Id. at 20 (emphasis added).
Based on these "established conditions," the Arbitrator
determined that the Agency employees who worked on Monday,
February 5, 1996, "were patently exposed to dangerous conditions
of terrain, temperature and wind velocity." Id. The Arbitrator
went on to conclude that "these exposures not only created 'the
risk of significant injury' within the meaning of OPM Category 9,
but they actually resulted in serious injuries and other employee
losses." Id.
In this case, I view the Arbitrator's findings as sufficient
to support the determination that the Agency employees who worked
outdoors on Monday, February 5 "were patently exposed to dangerous
conditions of terrain, temperature and wind velocity." Id. These
conditions created an actual and significant risk of serious
injury to the employees within the meaning of 5 C.F.R. Part 532,
Appendix A, Category 9. I have concluded, as the Arbitrator did,
that the critical requirements under Category 9 for the outdoor
employees' entitlement to EDP have been met. Category 9 only
requires that employees be exposed to dangerous conditions "while
working," which the Agency has conceded has happened here. See
Exceptions at 5 (the Agency's statement that "[m]ost BRAVO
category employees who came to work on 5 February 1996 worked
indoors[,]" is tacit recognition that some BRAVO employees worked
outdoors). The identification of the specific employees who
worked outdoors on February 5 is a matter for the parties to
determine during the implementation phase after the award.
Similarly, the actual amount of EDP each individual employee
should receive for exposure on Monday, February 5, should be left
to the parties as a compliance matter pursuant to properly
"applicable regulations." Award at 24. Consequently, I dissent.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Member Wasserman's partial dissent is set forth at the end of this decision.
2. The Agency's published instruction distinguishes between two categories of employees for the purpose of notification during a snow emergency. Award at 6-7. "Snow Emergency Category ALFA Personnel" are essential employees who are expected to work at their normal time or shift during snow emergency conditions. Id. at 7. "Snow Emergency Category BRAVO Personnel," defined as all Public Works Center employees not designated as ALFA Personnel, are expected to report as instructed by their supervisors or as modified by public announcements over commercial TV and radio. Id.
3. The Union also claimed, and the Arbitrator agreed, that the Agency should have granted administrative leave to certain employees. As the Agency has not excepted to this portion of the award, we do not address it further.
4. The regulations referenced in the Award provide, in pertinent part, as follows: 5 C.F.R. § 532.511, Appendix A, Part I.9: Part I - Payment for Actual Exposure. 25% 9. Exposure to hazardous weather or terrain. Exposure to dangerous conditions of terrain, temperature and/or wind velocity, while working or traveling when such exposure introduces risk of significant injury or death to employees . . . . 5 C.F.R. § 532.511(b): (b) Amount of environmental differential payable. (1) An employee entitled to an environmental differential shall be paid an amount equal to the percentage rate authorized by the Office of Personnel Management for the category in which the working condition or hazard falls . . . . (2) An employee entitled to an environmental differential on an actual exposure basis shall be paid a minimum of one hour's differential pay . . . . (3) An employee entitled to an environmental differential on the basis of hours in a pay status shall be paid for all hours in a pay status on the day on which he/she is exposed to the situation. . . .
5. We note that payment of Category 9 EDP is authorized for actual exposure rather than hours in a pay status. See 5 C.F.R. § 532.511, Appendix A. Therefore, on remand, the Arbitrator should apply 5 C.F.R. § 532.511(b)(2).
6. A "knot" (kts.) is equal to approximately 1.15 miles per hour. Converting the kts. to miles in this case indicates that the wind was blowing from the northwest at 13.8 to 20.7 miles per hour. In his award, the Arbitrator stated that the northwest winds "gust[ed] to 25 kts" on Monday, February 5, or 28.75 miles per hour. Award at 19.