Norfolk Naval Shipyard, Portsmouth, Virginia (Respondent) and Tidewater Virginia Federal Employees, Metal Trades Council, AFL-CIO (Complainant) 



[ v02 p817 ]
02:0817(104)CA
The decision of the Authority follows:


 2 FLRA No. 104
 
 NORFOLK NAVAL SHIPYARD,
 PORTSMOUTH, VIRGINIA
 Respondent
 
 and
 
 TIDEWATER VIRGINIA FEDERAL EMPLOYEES
 METAL TRADES COUNCIL, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-08539(CA)
 
                            DECISION AND ORDER
 
    ON JUNE 11, 1979, ADMINISTRATIVE LAW JUDGE LOUIS SCALZO ISSUED HIS
 RECOMMENDED DECISION IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE
 ISSUES RAISED IN THE INSTANT COMPLAINT HAD PREVIOUSLY BEEN RAISED IN
 CERTAIN ARBITRATION PROCEEDINGS ARISING OUT OF A GRIEVANCE AND A
 SUBMISSION FILED UNDER THE NEGOTIATED AGREEMENT BETWEEN THE RESPONDENT
 AND THE COMPLAINANT. THUS, HE CONCLUDED THAT SEC. 19(D) OF THE ORDER
 BARRED HIS CONSIDERATION OF THE COMPLAINT HEREIN, AND HE RECOMMENDED
 THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.  THEREAFTER, THE
 COMPLAINANT FILED TIMELY EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 WERE TRANSFERRED TO THE AUTHORITY UNDER SEC.  304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SEC. 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS (45
 F.R. 3482, JANUARY 17, 1980).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE
 FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SEC.  7135(B) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SEC. 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SEC. 7135(B) OF THE STATUTE, THE AUTHORITY HAS REVIEWED
 THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND
 FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY
 AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
 CASE, INCLUDING THE COMPLAINANT'S EXCEPTIONS, THE AUTHORITY HEREBY
 ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND
 RECOMMENDATION.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 22-08539(CA) BE AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C. MARCH 7, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    WALTER B. BAGBY, ESQUIRE
 
    LABOR RELATIONS ADVISOR
 
    NAVAL CIVILIAN PERSONNEL COMMAND
 
    DEPARTMENT OF THE NAVY
 
    BUILDING A-67, NAVAL STATION
 
    NORFOLK, VIRGINIA 23511
 
                            FOR THE RESPONDENT
 
    ARNOLD H. ABRONS, ESQUIRE
 
    LEONARD B. SACHS, ESQUIRE
 
    SACHS AND ABRONS
 
    SUITE 220
 
    5 KOGER EXECUTIVE CENTER
 
    NORFOLK, VIRGINIA 23502
 
                            FOR THE COMPLAINANT
 
    BEFORE:  LOUIS SCALZO
 
    ADMINISTRATIVE LAW JUDGE
 
                           RECOMMENDED DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED (HEREINAFTER
 REFERRED TO AS THE ORDER), AND REGULATIONS OF THE DEPARTMENT OF LABOR,
 OFFICE OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS, TITLE
 29 C.F.R. PART 203, AS RECENTLY ADOPTED AND AMENDED BY REGULATIONS OF
 THE FEDERAL LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES
 PANEL, TITLE 5, C.F.R.PART 2400 (FEDERAL REGISTER, VOL. 44, NO. 1,
 TUESDAY, JANUARY 2, 1979).  IT WAS INITIATED BY THE FILING OF A
 PRE-COMPLAINT CHARGE ON AUGUST 23, 1977 BY THE TIDEWATER VIRGINIA
 FEDERAL METAL TRADES COUNCIL, AFL-CIO, (HEREINAFTER REFERRED TO AS THE
 COMPLAINANT OR COUNCIL) AGAINST THE NORFOLK NAVAL SHIPYARD, PORTSMOUTH,
 VIRGINIA (HEREINAFTER REFERRED TO AS RESPONDENT OR SHIPYARD).  THIS WAS
 FOLLOWED BY THE FILING OF A COMPLAINT ON SEPTEMBER 27, 1977, CHARGING
 VIOLATIONS OF SECTIONS 19(A)(1), (5) AND (6) OF THE ORDER.
 
    ON MARCH 7, 1978 THE COUNCIL FILED A SECOND AMENDED COMPLAINT WHEREIN
 IT WAS ALLEGED THAT RESPONDENT VIOLATED SECTIONS 19(A) (1) AND (6) OF
 THE ORDER BY BARGAINING IN BAD FAITH DURING NEGOTIATIONS LEADING TO
 EXECUTION OF A COLLECTIVE BARGAINING AGREEMENT ON APRIL 21, 1977;  BY
 FAILING TO NEGOTIATE WITH THE COMPLAINANT PRIOR TO INITIATING A
 UNILATERAL CHANGE IN CRITERIA RELATING TO ENTITLEMENT TO "DIRTY PAY," AN
 ENVIRONMENTAL PAY DIFFERENTIAL AUTHORIZED BY THE FEDERAL PERSONNEL
 MANUAL AND ARTICLE 13 OF THE COLLECTIVE BARGAINING AGREEMENT;  AND BY
 FAILING TO NEGOTIATE WITH THE COMPLAINANT PRIOR TO INITIATING A
 UNILATERAL CHANGE IN THE AUTHORITY OF SUPERVISORS TO APPROVE ENTITLEMENT
 TO "DIRTY PAY."
 
    A HEARING WAS HELD AT WHICH BOTH PARTIES WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, AND TO EXAMINE AND
 CROSS-EXAMINE WITNESSES. THEREAFTER, THE PARTIES FILED POST-HEARING
 BRIEFS.  /2/ UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING OBSERVATION
 OF THE WITNESSES AND THERE DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF
 FACT, CONCLUSIONS AND RECOMMENDATION.
 
                             FINDINGS OF FACT
 
    (A) PERTINENT CONTRACTUAL AND FEDERAL PERSONNEL MANUAL PROVISIONS
 
    ARTICLE 13 OF THE AGREEMENT SETS OUT THE VARIOUS WORK CATEGORIES
 WHEREIN ENVIRONMENTAL PAY MAY BE EARNED BY THOSE EMPLOYED BY THE
 RESPONDENT.  /3/ PART I REFLECTS CRITERIA GOVERNING THE PAYMENT OF AN
 ENVIRONMENTAL DIFFERENTIAL FOR WORK INVOLVING "ACTUAL EXPOSURE." /4/
 
    SECTION 2, PART I B OF ARTICLE 13 PROVIDES A FOUR PERCENT
 DIFFERENTIAL TO BE PAID FOR "DIRTY WORK." /5/ GENERAL CRITERIA RELATING
 TO THE PAYMENT OF THE "DIRTY WORK" DIFFERENTIAL ARE SET OUT IN PART I B
 IN THE FOLLOWING TERMS:
 
    PERFORMING WORK WHICH SUBJECTS THE EMPLOYEE TO SOIL OF BODY OR
 CLOTHING:
 
    (1) BEYOND THAT NORMALLY TO BE EXPECTED IN PERFORMING DUTIES OF THE
 CLASSIFICATION;  AND
 
    (2) WHERE THE CONDITION IS NOT ADEQUATELY ALLEVIATED BY THE
 MECHANICAL EQUIPMENT OR
 
    PROTECTIVE DEVICES BEING USED, OR WHICH ARE READILY AVAILABLE, OR
 WHEN SUCH DEVICES ARE NOT
 
    FEASIBLE FOR USE DUE TO HEALTH CONSIDERATIONS (EXCESSIVE TEMPERATURE,
 ASTHMATIC CONDITIONS,
 
    ETC.);  OR
 
    (3) WHEN THE USE OF MECHANICAL EQUIPMENT, OR PROTECTIVE DEVICES, OR
 PROTECTIVE CLOTHING
 
    RESULTS IN AN UNUSUAL DEGREE OF DISCOMFORT.  WHEN CONDITIONS ARE SUCH
 THAT PROTECTIVE CLOTHING
 
    DOES NOT PREVENT SOIL OF THE BODY AND PERSONAL CLOTHING, DIRTY PAY IS
 CONSIDERED
 
    APPROPRIATE.  WHEN THE CONDITIONS SET FORTH ABOVE ARE SATISFIED THE
 WORK LISTED BELOW SHALL BE
 
    PAID
 
    THE SENTENCE LAST QUOTED IS IMMEDIATELY FOLLOWED BY DEFINITIONS OF
 THE TERMS "CONFINED SPACE," AND "CLOSE PROXIMITY," CONCEPTS UTILIZED IN
 SOME OF THE FIFTY ENSUING CATEGORIES OR "AUTHORIZED WORK SITUATIONS,"
 WHEREIN THE FOUR PERCENT "DIRTY WORK" PAY DIFFERENTIAL MAY BE EARNED.
 /6/
 
    THE GENERAL LANGUAGE UTILIZED TO DESCRIBE "DIRTY WORK" IN ARTICLE 13,
 SECTION 2, PART I B(1), (2) AND (3) OF THE COLLECTIVE BARGAINING
 AGREEMENT TRACKS IDENTICAL LANGUAGE IN A PRIOR COLLECTIVE BARGAINING
 AGREEMENT.  /7/ IN TURN, THE RECORD REFLECTS THAT THE OPERATIVE LANGUAGE
 SET OUT ABOVE IS DERIVED FROM APPENDIX J OF SUPPLEMENT 532-1 OF THE
 FEDERAL PERSONNEL MANUAL /8/
 
    FOR THE PURPOSES OF FPM SUPPLEMENT 532-1, SUBCHAPTER S8-7 ENTITLED,
 "ENVIRONMENTAL DIFFERENTIALS PAID FOR EXPOSURE TO VARIOUS DEGREES OF
 HAZARDS, PHYSICAL HARDSHIPS, AND WORKING CONDITIONS OF AN UNUSUALLY
 SEVERE NATURE" THE TERM "ENVIRONMENTAL DIFFERENTIAL" IS DEFINED AS:
 
    (E)NVIRONMENTAL DIFFERENTIAL MEANS ADDITIONAL PAY AUTHORIZED AS
 SPECIFIED IN APPENDIX J FOR
 
    A CATEGORY OF SITUATIONS INVOLVING EXPOSURE TO A HAZARD, A PHYSICAL
 HARDSHIP, OR WORKING
 
    CONDITIONS OF AN UNUSUALLY SEVERE NATURE.  (FPM SUPPLEMENT 532-1,
 SUBCHAPTER S8-7B).
 
    FPM SUPPLEMENT 532-1, SUBCHAPTER S8-7 PROVIDES THE FOLLOWING GUIDANCE
 WITH RESPECT TO THE IMPORTANCE OF APPENDIX J SINCE APPENDIX J COMPRISES
 A BASIS FOR THE PAYMENT OF ALL ENVIRONMENTAL PAY.  /9/
 
    (C) PAYMENT FOR ENVIRONMENTAL DIFFERENTIAL.  AN ENVIRONMENTAL
 DIFFERENTIAL IS PAID TO A
 
    WAGE EMPLOYEE WHO IS EXPOSED TO A HAZARD, PHYSICAL HARDSHIP, OR
 WORKING CONDITION OF AN
 
    UNUSUALLY SEVERE NATURE LISTED UNDER THE CATEGORIES IN APPENDIX J OF
 THIS
 
    SUBCHAPTER.  EXPOSURE TO A HAZARD, PHYSICAL HARDSHIP, OR WORKING
 CONDITION OF AN UNUSUALLY
 
    SEVERE NATURE LISTED IN APPENDIX J IS NOT TAKEN INTO CONSIDERATION IN
 THE JOB GRADING PROCESS,
 
    AND ADDITIONAL PAY FOR EXPOSURE TO THESE CONDITIONS IS PROVIDED ONLY
 THROUGH THE ENVIRONMENTAL
 
    DIFFERENTIALS AUTHORIZED BY THIS SECTION.  . . .
 
   .          .          .          .
 
 
    (D) AUTHORIZATION FOR PAY FOR ENVIRONMENTAL DIFFERENTIAL.
 
   .          .          .          .
 
 
    SOME OF THE ENVIRONMENTAL DIFFERENTIALS LISTED IN APPENDIX J ARE
 PAYABLE WHENEVER THE
 
    CRITERIA IN THE CATEGORY DEFINITION ARE MET.  OTHERS ARE PAYABLE ONLY
 IF PROTECTIVE
 
    FACILITIES, DEVICES, OR CLOTHING HAVE NOT PRACTICALLY ELIMINATED THE
 HAZARD, PHYSICAL
 
    HARDSHIP, OR WORKING CONDITION OF AN UNUSUALLY SEVERE NATURE.
 CONSISTENT WITH SECTION
 
    S8-7G(3) BELOW, DETERMINATIONS IN THIS REGARD MAY BE MADE THROUGH
 NEGOTIATIONS AT THE LOCAL
 
    LEVEL.
 
    CATEGORIES FOR WHICH PAYMENT IS MADE WHEN THE CONDITIONS GIVEN IN THE
 DEFINITION ARE MET
 
    THOSE IN WHICH THERE IS NO REFERENCE TO PRACTICAL ELIMINATION OF THE
 CONDITION THROUGH
 
    PROTECTIVE MEASURES.  CATEGORIES WHICH ARE SUBJECT TO PRACTICAL
 ELIMINATION CONTAIN LANGUAGE
 
    TO THAT EFFECT IN THE DEFINITION.
 
   .          .          .          .
 
 
    (E) ESTABLISHMENT OF ENVIRONMENTAL DIFFERENTIAL . . .  ENVIRONMENTAL
 DIFFERENTIALS ARE
 
    AUTHORIZED ONLY WHEN THE EXPOSURE IS UNDER THE CIRCUMSTANCES
 DESCRIBED IN THE CATEGORY LISTED
 
    IN APPENDIX J . . . WHEN EXAMPLES ARE LISTED UNDER THE CATEGORIES IN
 APPENDIX J, THESE
 
    EXAMPLES ARE ILLUSTRATIVE ONLY AND ARE NOT INTENDED TO BE EXCLUSIVE
 OF OTHER EXPOSURES WHICH
 
    MAY BE ENCOUNTERED UNDER THE CIRCUMSTANCES WHICH DESCRIBE THE LISTED
 CATEGORY.
 
   .          .          .          .
 
 
    (G) DETERMINING LOCAL SITUATIONS WHEN ENVIRONMENTAL DIFFERENTIALS ARE
 PAYABLE.  (1)
 
    APPENDIX J DEFINES THE CATEGORIES OF EXPOSURE FOR WHICH THE HAZARD,
 PHYSICAL HARDSHIPS, OR
 
    WORKING CONDITIONS ARE OF SUCH AN UNUSUAL NATURE AS TO WARRANT
 ENVIRONMENTAL DIFFERENTIALS,
 
    AND GIVES EXAMPLES OF SITUATIONS WHICH ARE ILLUSTRATIVE OF THE NATURE
 AND DEGREE OF THE
 
    PARTICULAR HAZARD, PHYSICAL HARDSHIP OR WORKING CONDITION INVOLVED IN
 PERFORMING THE
 
    CATEGORY.  THE EXAMPLES OF THE SITUATIONS ARE NOT ALL INCLUSIVE BUT
 ARE INTENDED TO BE
 
    ILLUSTRATIVE ONLY.  (2) EACH INSTALLATION OR ACTIVITY MUST EVALUATE
 ITS SITUATIONS AGAINST THE
 
    GUIDELINES IN APPENDIX J TO DETERMINE WHETHER THE LOCAL SITUATION IS
 COVERED BY ONE OR MORE OF
 
    THE DEFINED CATEGORIES.
 
    (A) WHEN THE LOCAL SITUATION IS DETERMINED TO BE COVERED BY ONE OR
 MORE OF THE DEFINED
 
    CATEGORIES (EVEN THOUGH NOT COVERED BY A SPECIFIC ILLUSTRATIVE
 EXAMPLE), THE AUTHORIZED
 
    ENVIRONMENTAL DIFFERENTIAL IS PAID FOR THE APPROPRIATE CATEGORY.
 
   .          .          .          .
 
 
    (3) NOTHING IN THIS SECTION SHALL PRECLUDE NEGOTIATIONS THROUGH THE
 COLLECTIVE BARGAINING
 
    PROCESS FOR:
 
    (A) DETERMING THE COVERAGE OF ADDITIONAL LOCAL SITUATIONS UNDER
 APPROPRIATE CATEGORIES IN
 
    APPENDIX J AND APPLICATION OF APPENDIX J CATEGORIES TO LOCAL WORK
 SITUATIONS.  FOR EXAMPLE,
 
    LOCAL NEGOTIATIONS MAY BE USED TO DETERMINE WHETHER A LOCAL WORK
 SITUATION IS COVERED UNDER AN
 
    APPROVED CATEGORY, EVEN THOUGH THE WORK SITUATION MAY NOT BE
 DESCRIBED UNDER A SPECIFIC
 
    ILLUSTRATIVE EXAMPLE.
 
    (B) POSITIONS OF THE PARTIES
 
    THE COUNCIL TAKES THE POSITION THAT THE FEDERAL PERSONNEL MANUAL
 AUTHORIZES COLLECTIVE BARGAINING CONCERNING SPECIFIC WORK SITUATIONS
 WHEREIN "DIRTY PAY" MAY BE AUTHORIZED, AND THAT SINCE THE PARTIES, HAVE
 AGREED TO SUCH SPECIFIC WORK SITUATIONS, FURTHER REFERENCE TO THE
 GENERAL CRITERIA SET OUT IN THE CONTRACT AND IN APPENDIX J IS
 UNWARRANTED.  IT IS ARGUED THAT IN SUCH CASES THE SHIPYARD SHOULD NOT BE
 PERMITTED TO AVOID THE PAYMENT OF "DIRTY PAY" BY SHOWING THAT THE WORK
 INVOLVED IS EXCLUDED BY REASON OF FAILURE OF THE WORK TO MEET THE
 GENERAL CRITERIA, AND THAT BARGAINING UNIT MEMBERS SHOULD BE ENTITLED TO
 "DIRTY PAY" BY MERELY ESTABLISHING THAT THEY HAVE PERFORMED IN ANY OF
 THE AUTHORIZED "DIRTY PAY" WORK SITUATIONS SET OUT IN THE COLLECTIVE
 BARGAINING AGREEMENT.
 
    IT IS ALLEGED THAT THE SHIPYARD FOLLOWED SUCH AN INTERPRETATION PRIOR
 TO EXECUTION OF THE CURRENT COLLECTIVE BARGAINING AGREEMENT, THAT DURING
 NEGOTIATIONS LEADING TO THE CURRENT AGREEMENT THE COUNCIL UNDERSTOOD
 THAT THE PRACTICE WOULD CONTINUE, THAT THE COUNCIL ENTERED INTO THE
 PRESENT AGREEMENT WITH THIS UNDERSTANDING, THAT THE SHIPYARD NEGOTIATED
 IN BAD FAITH CONCERNING THIS ISSUE, AND THAT AFTER EXECUTION OF THE
 CURRENT COLLECTIVE BARGAINING AGREEMENT, THE SHIPYARD CHANGED THE PAST
 PRACTICE WITH RESPECT TO THE DETERMINIATION OF ENTITLEMENT TO "DIRTY
 PAY" WITHOUT FIRST NEGOTIATING THIS ISSUE WITH THE COUNCIL.
 
    THE SHIPYARD DENIES THESE ALLEGATIONS AND ARGUES THAT THE AMENDED
 COMPLAINT IS BARRED BY SECTION 19(D) OF THE ORDER BECAUSE IT INVOLVED
 ISSUES RAISED BY THE COUNCIL UNDER A NEGOTIATED GRIEVANCE PROCEDURE;
 THAT THE PRACTICE OF COMPENSATING BARGAINING UNIT EMPLOYEES FOR "DIRTY
 PAY" WITHOUT REGARD TO THE GENERAL CRITERIA IS VIOLATIVE OF APPENDIX J
 OF FPM SUPPLEMENT 532-1, AND IS THEREFORE PROHIBITED BY VIRTUE OF
 SECTION 12(A) OF THE ORDER;  THAT THE AMENDED COMPLAINT SHOULD NOT BE
 ENTERTAINED BECAUSE IT INVOLVES ESSENTIALLY DIFFERING INTERPRETATIONS OF
 THE COLLECTIVE BARGAINING AGREEMENT AS DISTINGUISHED FROM ALLEGED
 ACTIONS WHICH WOULD CONSTITUTE CLEAR UNILATERAL BREACHES OF THE
 AGREEMENT;  AND THAT SECTION 13(A) OF THE ORDER PROVIDES THAT THE
 NEGOTIATED GRIEVANCE PROCEDURE SHALL BE THE EXCLUSIVE PROCEDURE
 AVAILABLE TO THE PARTIES FOR RESOLVING SUCH DISPUTES;  THAT DURING
 NEGOTIATIONS THERE WAS FULL DISCLOSURE AND NEGOTIATION OF A SHIPYARD
 PROPOSAL TO MODIFY THE PAST PRACTICE;  AND THAT THE COUNCIL AGREED TO
 THE SHIPYARD PROPOSAL RELATING TO STRICT APPLICATION OF THE GENERAL
 CRITERIA.
 
    THE SHIPYARD ALSO ARGUES THAT THE LAST SENTENCE OF ARTICLE 13,
 SECTION 2, PART I B(3) IS CONTROLLING;  THAT THE SENTENCE, "(W)HEN THE
 CONDITIONS (GENERAL CRITERIA) SET FORTH ARE SATISFIED THE WORK
 (AUTHORIZED WORK SITUATIONS) LISTED BELOW SHALL BE PAID," CLEARLY HAS
 THE EFFECT OF BRINGING THE GENERAL CRITERIA INTO PLAY IN EVERY CLAIM FOR
 "DIRTY PAY." IT IS ARGUED THAT ALTHOUGH SUCH PAY MAY BE APPROVED IF IT
 FALLS WITHIN A SPECIFICALLY IDENTIFIED "DIRTY PAY" WORK SITUATION, SUCH
 WORK SITUATION MUST OTHERWISE MEET THE PROVISIONS OF THE GENERAL
 CRITERIA SET OUT IN SECTION 2, PART I B(1), (2) AND (3), AND IDENTICAL
 LANGUAGE IN APPENDIX J OF FPM SUPPLEMENT 532-1.
 
    THE SHIPYARD ASSERTS THAT ALTHOUGH SOME CATEGORIES OF ENVIRONMENTAL
 PAY DESCRIBED IN THE COLLECTIVE BARGAINING AGREEMENT AND APPENDIX J ARE
 PAYABLE WITHOUT REFERENCE TO GENERAL CRITERIA, "DIRTY WORK" IS NOT ONE
 OF THEM.  /10/ REFERENCE HERE IS MADE TO THE FACT THAT WHAT IS KNOWN AS
 "DIRTY WORK" CHANGES WITH ALTERATIONS MADE IN THE WORK ENVIRONMENT AND
 THAT THE COLLECTIVE BARGAINING AGREEMENT PROVIDES FOR SUCH CHANGES WITH
 RESPECT TO THIS CATEGORY.
 
    (C) PRACTICE PRIOR TO EXECUTION OF CURRENT COLLECTIVE BARGAINING
 AGREEMENT
 
    PRIOR TO THE INITIATION OF NEGOTIATIONS WHICH LED TO THE CURRENT
 COLLECTIVE BARGAINING AGREEMENT, MANAGEMENT REVIEWED THE IMPLEMENTATION
 OF ARTICLE 13 UNDER THE PRIOR COLLECTIVE BARGAINING AGREEMENT, AND MADE
 A DETERMINATION THAT THE "DIRTY PAY" PROVISIONS OF THE AGREEMENT THEN IN
 EFFECT WERE NOT BEING FOLLOWED.  A QUESTIONNAIRE EXECUTED BY LINE
 MANAGERS DISCLOSED "WIDESPREAD MISUSE." (TR. VOL. III, 69-70).  IT WAS
 ESTABLISHED THAT THE SHIPYARD WAS FREQUENTLY PAYING WITHOUT REGARD TO
 THE GENERAL CRITERIA SET OUT IN THE AGREEMENT AND APPENDIX J.  (TR. VOL.
 IV, 19).
 
    UNDER THE PRIOR AGREEMENT A FIRST LINE SUPERVISOR OR FOREMAN MADE THE
 DETERMINATION AS TO WHETHER "DIRTY PAY" SHOULD BE AUTHORIZED.  AS A
 RESULT DETERMINATIONS WERE NOT UNIFORM.  /11/ BOTH THE COUNCIL AND THE
 SHIPYARD EXPRESSED THE DESIRE TO CLEAR UP AMBIGUOUS TERMS IN ARTICLE 13.
  (TR. VOL. II, 259-260, 274-275).  COUNSEL REPRESENTING THE CLAIMANT
 ACKNOWLEDGED SUCH LACK OF UNIFORMITY IN HIS OPENING STATEMENT WHEREIN HE
 STATED, "(T)HERE MAY HAVE BEEN AN ABUSE OF THIS SYSTEM IN THE SENSE THAT
 SUPERVISORY PEOPLE THEN USED THIS AS A METHOD OF REWARDING PEOPLE OR
 PAYING PEOPLE THAT SHOULD NOT HAVE COME UNDER THE (SIC) EITHER THE
 CRITERIA SET UP IN THE GENERAL GUIDELINES OR THE AUTHORIZED WORK
 SITUATION.  . . . " (TR. VOL. I, 13).
 
    THE UNEVEN NATURE OF THE PRACTICE UNDER THE PRIOR COLLECTIVE
 BARGAINING AGREEMENT WAS DESCRIBED BY OFFICERS OF THE COUNCIL.  IT WAS
 BROUGHT OUT THAT IN SOME CASES WORK IN AN AUTHORIZED "DIRTY PAY" WORK
 SITUATION DID NOT RESULT IN PAYMENT OF THE DIFFERENTIAL.  (TR. VOL. I,
 53-54).  SOME MANAGERS INSISTED ON APPLYING THE GENERAL CRITERIA UNDER
 THE PRIOR CONTRACT.  (TR. VOL . IV, 59-60).  GRIEVANCES WERE FILED
 FREQUENTLY TO TEST "DIRTY PAY" DETERMINATIONS.
 
    HIGHER LEVEL SHIPYARD MANAGERS RESPONSIBLE FOR THE ADMINISTRATION OF
 THE "DIRTY PAY" PROVISIONS UNDER THE PRIOR COLLECTIVE BARGAINING
 AGREEMENT DETERMINED THAT ACTION TO RESOLVE PERCEIVED CONTRACT
 ADMINISTRATION PROBLEMS SHOULD BE DEFERRED UNTIL THE INITIATION OF
 CONTRACT NEGOTIATIONS.  THIS DEFERRAL WAS BASED UPON A RELUCTANCE TO
 CHANGE A PRACTICE AFFECTING WORKING CONDITIONS WITHOUT FIRST RAISING THE
 ISSUE DURING FORMAL CONTRACT NEGOTIATIONS SCHEDULED TO COMMENCE PRIOR TO
 EXPIRATION OF THE COLLECTIVE BARGAINING AGREEMENT THEN IN EFFECT.  (TR.
 VOL. III, 70;  VOL. IV, 11-12, 20-21).
 
    (D) NEGOTIATIONS LEADING TO CURRENT COLLECTIVE BARGAINING AGREEMENT
 
    NEGOTIATIONS LEADING TO THE CURRENT COLLECTIVE BARGAINING AGREEMENT
 EXTENDED OVER AN EIGHTEEN-MONTH PERIOD AND INCLUDED LONG AND DRAWN OUT
 BARGAINING OVER THE "DIRTY PAY" SEGMENT OF ARTICLE 13.  THE UNION
 ATTEMPTED TO EXPAND ARTICLE 13 BY INCREASING THE NUMBER OF AUTHORIZED
 WORK SITUATIONS WHICH COULD BE USED AS A BASIS FOR "DIRTY PAY." THE
 SHIPYARD SOUGHT A REDUCTION IN THE NUMBER OF LISTED AUTHORIZED WORK
 SITUATIONS.
 
    WITNESSES CALLED TO TESTIFY ON BEHALF OF THE COUNCIL ADMITTED THAT
 THE GENERAL CRITERIA SET OUT IN SECTION 2, PART I B(1), (2) AND (3),
 WERE DISCUSSED DURING NEGOTIATIONS, THAT THE SHIPYARD INSISTED THAT
 "DIRTY PAY" WAS BEING AUTHORIZED IN VIOLATION OF THE CONTRACT AND THAT
 THE PRACTICE DID NOT COMPLY WITH THE AGREEMENT.  (TR. VOL. I, 71-73;
 VOL. II, 29-30, 261-262, 264-266;  DEP. 102).  EVIDENCE CLEARLY
 DISCLOSED THAT THE COUNCIL WISHED TO CHANGE THE CONTRACT BY DRAFTING
 CONTRACTUAL PROVISIONS WHICH WOULD HAVE HAD THE EFFECT OF DELETING THE
 GENERAL CRITERIA RELATING TO "DIRTY PAY." (TR. VOL. II, 53).  HOWEVER,
 WHEN THE COUNCIL SUBMITTED A PROPOSAL WITHOUT THE GENERAL CRITERIA EARLY
 IN THE NEGOTIATIONS, THE SHIPYARD REJECTED IT AND INSISTED ON RETENTION
 OF THE GENERAL CRITERIA AS BEING A PREREQUISITE TO THE AUTHORIZATION OF
 "DIRTY PAY." (TR. VOL. III, 11-12, 31-32;  VOL. IV, 42-43).
 
    THERE WAS EXTENDED DISCUSSION OF VARIOUS WORK SITUATIONS IN THE LIGHT
 OF WHETHER THEY DID IN FACT MEET THE GENERAL CRITERIA, AS WELL AS OTHER
 GENERAL INTRODUCTORY TERMS PRECEDING THE LISTING OF "DIRTY PAY"
 AUTHORIZED WORK SITUATIONS.  THROUGHOUT THE NEGOTIATIONS THE SHIPYARD
 INSISTED THAT THE GENERAL CRITERIA SHOULD BE APPLICABLE BEFORE ANY
 LISTED AUTHORIZED WORK SITUATIONS WERE CLASSIFIED AS "DIRTY WORK."
 
    AT NUMEROUS POINTS IN THE RECORD IT WAS MADE CLEAR THAT THE LAST
 SENTENCE OF ARTICLE 13, SECTION 2, PART I B(3) WAS INCLUDED BY THE
 PARTIES IN THE CURRENT COLLECTIVE BARGAINING AGREEMENT SPECIFICALLY TO
 SIGNIFY THIS POSITION.  FROM THE INCEPTION OF NEGOTIATIONS THE
 SHIPYARD'S STANCE ON THIS ISSUE DID NOT CHANGE.
 
    IN THE FINAL STAGES OF NEGOTIATIONS, WHEN IMPASSE SEEMED IMMINENT,
 THE PARTIES AGREED TO WITHDRAW THEIR RESPECTIVE DEMANDS AND RETAIN, IN
 LARGE MEASURE, THE LANGUAGE OF THE PRIOR CONTRACT, INCLUDING THE GENERAL
 CRITERIA RELATING TO "DIRTY PAY." /12/ DURING A FINAL NEGOTIATING
 SESSION LEADING TO AGREEMENT, REPRESENTATIVES OF THE SHIPYARD
 SPECIFICALLY REITERATED THAT THE AGREEMENT WAS BEING MADE WITH THE
 UNDERSTANDING THAT THE GENERAL CRITERIA HAD TO BE MET BEFORE A LISTED
 AUTHORIZED WORK SITUATION QUALIFIED FOR "DIRTY PAY." (TR. VOL. III,
 34-36;  DEP.  34-35).
 
    THE COUNCIL AGREED TO THE INCLUSION OF THE GENERAL CRITERIA IN THE
 CONTRACT ON THE BASIS OUTLINED.  (TR. VOL. III, 93, VOL. IV, 69-71;
 DEP. 54-55).  AUTHORIZED WORK SITUATIONS WERE INCLUDED WITH THE
 UNDERSTANDING THAT IF THEY DID NOT IN FACT MEET THE GENERAL CRITERIA AT
 THE WORK SITE, "DIRTY PAY" WOULD NOT BE AUTHORIZED.  (TR. VOL. III, 78).
  THE RECORD DISCLOSED SPECIFIC INDICATION THAT THERE WAS ACCEPTANCE BY
 THE PARTIES THAT CERTAIN AUTHORIZED WORK SITUATIONS LISTED IN THE "DIRTY
 PAY" PROVISIONS OF ARTICLE 13, WOULD NOT CONSTITUTE A BASIS FOR
 COMPENSATION WITHOUT A SHOWING OF COMPLIANCE WITH THE GENERAL CRITERIA.
 (DEP 91-92).  IN FACT, RICHARD F. LAKE, A FORMER PRESIDENT OF THE
 COUNCIL AND A KEY COUNCIL NEGOTIATOR TESTIFIED THAT IT WAS HIS
 UNDERSTANDING THAT THE GENERAL CRITERIA HAD TO BE MET.  (TR. VOL. I, 87;
  89-91).  BERNARD W. WHITE, THE CURRENT UNION PRESIDENT, WHO WAS SERVING
 AS VICE-PRESIDENT OF THE UNION AT THE TIME HE PARTICIPATED IN THE
 CONTRACT NEGOTIATIONS TESTIFIED THAT IT WAS HIS UNDERSTANDING THAT THE
 GENERAL CRITERIA HAD TO BE MET BEFORE ANY AUTHORIZED WORK SITUATION
 LISTED UNDER THE "DIRTY PAY" SEGMENT OF THE CONTRACT COULD BE
 AUTHORIZED.  (TR. VOL. II, 41-44).
 
    TESTIMONY SUPPLIED BY COUNCIL WITNESSES TO THE EFFECT THAT "DIRTY
 PAY" WOULD BE AUTHORIZED BY THE SHIPYARD WITHOUT REFERENCE TO THE
 GENERAL CRITERIA WAS EFFECTIVELY CONTRADICTED AND IS NOT CONSIDERED
 CREDIBLE IN THE LIGHT OF CONSIDERATION OF ALL EVIDENCE RELATING TO THS
 ELEMENT.
 
    (E) PRACTICE FOLLOWING EXECUTION OF CURRENT COLLECTIVE BARGAINING
 AGREEMENT
 
    FOLLOWING EXECUTION OF THE CURRENT COLLECTIVE BARGAINING AGREEMENT
 THE NUMBER OF GRIEVANCES RELATING TO THE INTERPRETATION OF THE "DIRTY
 PAY" PROVISIONS OF ARTICLE 13 BEGAN TO INCREASE.  ALTHOUGH "DIRTY PAY"
 CONTINUED TO BE AUTHORIZED, THIS FORM OF ENVIRONMENTAL PAY WAS MORE
 FREQUENTLY DENIED ON THE GROUND THAT WORK ACTIVITY DID NOT MEET THE
 GENERAL CRITERIA.
 
    IT WAS ESTABLISHED THAT SHIPYARD MANAGERS WERE PROVIDED WITH
 ORIENTATION SESSIONS AFTER THE CURRENT AGREEMENT BECAME EFFECTIVE, AND
 THAT AT THESE SESSIONS MANAGERS WERE INSTRUCTED TO AUTHORIZE "DIRTY PAY"
 ONLY IF IT COULD BE SHOWN THAT THE GENERAL CRITERIA WERE BEING MET.  IT
 WAS EXPLAINED THAT THE CONTRACT HAD NOT BEEN ADMINISTERED PROPERLY IN
 THE PAST AND THAT THE GENERAL CRITERIA WOULD BE ADHERED TO IN THE
 FUTURE.  (TR. VOL. IV, 16).  THE PRACTICE OF AUTHORIZING "DIRTY PAY" AT
 THE FIRST LEVEL OF SUPERVISION ALSO CHANGED.  THE DECISIONS OF FIRST
 LEVEL SUPERVISORS WERE MADE REVIEWABLE BY A GENERAL FOREMAN.  (TR. VOL.
 II, 60-61).  /13/ THE PRACTICE WITH RESPECT TO FIRST LINE SUPERVISORY
 APPROVAL OF "DIRTY PAY" DID NOT, AS ALLEGED, CHANGE IN A WAY WHICH
 PRECLUDED FIRST LINE SUPERVISORS FROM AUTHORIZING "DIRTY PAY," IN THE
 FIRST INSTANCE.  THE CHANGE IMPLEMENTED BY THE SHIPYARD, AND DISCUSSED
 AT LENGTH WITH THE COUNCIL DURING NEGOTIATIONS, SUBJECTED THE DECISIONS
 OF FIRST LINE SUPERVISORS TO REVIEW.  (TR. VOL. IV, 17, 51-52).
 
    (F) GRIEVANCES FILED UNDER CURRENT COLLECTIVE BARGAINING AGREEMENT
 
    AS NOTED A NUMBER OF GRIEVANCES WERE FILED UNDER THE CURRENT
 COLLECTIVE BARGAINING AGREEMENT TO TEST THE SHIPYARD'S INTERPRETATION OF
 THE "DIRTY PAY" PROVISIONS.
 
    A GRIEVANCE WAS FILED BY THE COUNCIL'S CHIEF STEWARD FOR THE
 SHIPYARD'S SHOP 71 ON BEHALF OF A GROUP OF SANDBLASTERS.  AT LEAST FIFTY
 EMPLOYEES WERE REPRESENTED IN THIS CONSOLIDATED GRIEVANCE.  THE
 GRIEVANCE WAS DENIED AT THE SEVERAL STEPS OF THE GRIEVANCE PROCEDURE.
 THE COUNCIL THEN REFERRED THE GRIEVANCE TO ARBITRATION UNDER THE
 PROVISIONS OF ARTICLE 34 OF THE COLLECTIVE BARGAINING AGREEMENT.  UNDER
 THE PROVISIONS OF THIS ARTICLE ONLY THE EMPLOYER OR THE COUNCIL MAY TAKE
 A MATTER TO BINDING ARBITRATION.
 
    THE COUNCIL ARGUED THAT THE PERFORMANCE OF SANDBLASTING WORK IN DRY
 DOCKS BY SHOP 71 EMPLOYEES FELL WITHIN AUTHORIZED WORK SITUATION 2(A) OF
 ARTICLE 13, SECTION 2, PART I B, AND THAT SUCH A SHOWING WAS SUFFICIENT
 TO QUALIFY FOR "DIRTY PAY." THE SHIPYARD TOOK THE POSITION THAT THE
 GENERAL CRITERIA HAD TO BE MET IN THE FIRST INSTANCE.  A KEY ISSUE
 RELATED TO THE INTENT OF THE PARTIES IN ADOPTING THE "DIRTY PAY"
 PROVISIONS OF ARTICLE 13, AND THE IMPACT OF THE PARTIES' USE OF APPENDIX
 J LANGUAGE TO DEFINE "DIRTY WORK" IN THE COLLECTIVE BARGAINING
 AGREEMENT.  IN AN APRIL 4, 1978, AWARD THE ARBITRATOR HELD:
 
    TO SUMMARIZE, THE CONCLUSIONS OF THE ARBITRATOR ARE:  (1) THAT THE
 LISTING OF SHOP 71
 
    EMPLOYEES PERFORMING SANDBLASTING UNDER AUTHORIZED WORK SITUATIONS IN
 THE NEGOTIATED AGREEMENT
 
    IS NOT, OF ITSELF, DECISIVE OF THE QUESTION WHETHER PAYMENT OF THE
 DIFFERENTIAL SHOULD BE
 
    MADE;  PAYMENT IN SUCH SITUATIONS DEPENDS UPON SATISFYING THE
 CRITERIA OF THE CIVIL SERVICE
 
    COMMISSION'S DEFINITION WHICH ARE INCORPORATED VERBATIM IN THE FIRST
 PARAGRAPHS OF ARTICLE 13B
 
    OF THE NEGOTIATED AGREEMENT.  . . .  (RESPONDENT'S EXHIBIT 2 AT
 21-22).
 
    A CONTRARY RESULT WAS REALIZED AS A RESULT OF AN ARBITRATION AWARD
 DATED JUNE 11, 1978 RELATING TO A SINGLE GRIEVANCE FILED BY A WELDER
 RELYING UPON AUTHORIZED WORK SITUATION 44 UNDER ARTICLE 13, SECTION 2,
 PART I B OF THE AGREEMENT.  AGAIN, THE ISSUE WAS TAKEN TO ARBITRATION BY
 THE COUNCIL AFTER DENIAL OF THE GRIEVANCE AT THE FOURTH STEP OF THE
 GRIEVANCE PROCEDURE.  THE SHIPYARD DENIAL WAS BASED ON THE APPLICATION
 OF THE GENERAL CRITERIA SET OUT IN ARTICLE 13, SECTION 2, PART I B(1),
 (2) AND (3).  DURING LITIGATION RELATING TO THIS GRIEVANCE THE ISSUE OF
 UNILATERAL CHANGE WAS SUCCESSFULLY RAISED BY THE COUNCIL.  THE
 ARBITRATOR HELD THAT IN VIEW OF THE FACT THAT THE SHIPYARD HAD
 INTERPRETED IDENTICAL LANGUAGE IN THE PRIOR CONTRACT AS REQUIRING
 PAYMENT IN THIS SPECIFIC WORK SITUATION, THE SHIPYARD COULD NOT DENY
 "DIRTY PAY" IN THE ABSENCE OF A SHOWING THAT THE SHIPYARD HAD, DURING
 NEGOTIATIONS ADVISED THE COUNCIL THAT THIS SPECIFIC WORK ACTIVITY WOULD
 NO LONGER COMPRISE A BASIS FOR THE "DIRTY PAY" DIFFERENTIAL.
 (COMPLAINANT EXHIBIT 5).
 
    IN ORDER TO RESOLVE THE CONTRACTUAL DISPUTE AS IT RELATED TO THE
 BOILERMAKER CLASSIFICATION, THE PARTIES HEREIN ARRANGED TO SEEK A
 CONTRACTUAL INTERPRETATION THROUGH THE ARBITRATION CLAUSE OF THE
 CONTRACT.  (RESPONDENT EXHIBIT 3).  /14/ THIS DID NOT INVOLVE AN ACTUAL
 CLAIM FOR "DIRTY PAY," BUT WAS INSTEAD, AN ISSUE SUBMITTED TO
 ARBITRATION BY THE PARTIES UNDER THE NEGOTIATED GRIEVANCE PROCEDURE TO
 RESOLVE A DISPUTE OVER WHEN AND UNDER WHAT CIRCUMSTANCES THE "DIRTY
 WORK" DIFFERENTIAL WOULD BE PAYABLE TO BOILERMAKERS.  IN A DECISION
 DATED OCTOBER 23, 1978, THE ARBITRATOR STATED THE POSITION OF THE UNION
 IN THE FOLLOWING TERMS:
 
    THE BASIC CONTENTION OF THE UNION APPEARS TO BE THAT AFTER
 CONSUMMATION OF THE CURRENT
 
    (1977) AGREEMENT, THE MANAGEMENT OF THE SHIPYARD DECIDED UNILATERALLY
 TO DENY ENVIRONMENTAL
 
    PAY TO BOILERMAKERS WHO, UNDER THE 1968 SHOP AGREEMENT AND THE 1973
 COLLECTIVELY BARGAINED
 
    AGREEMENT, HAD BEEN RECEIVING THAT PAY AND THAT SUCH ACTION ON THE
 PART OF THE MANAGEMENT
 
    CONSTITUTES A VIOLATION OF ESTABLISHED PAST PRACTICE AND THE
 PROVISIONS OF THE CURRENT
 
    AGREEMENT.
 
    THE SHIPYARD URGED AS A DEFENSE THAT THE GENERAL CRITERIA SET OUT IN
 ARTICLE 13, SECTION 2, PART I B(1), (2) AND (3) MUST BE MET BEFORE ANY
 AUTHORIZED WORK SITUATIONS LISTED UNDER THE "DIRTY WORK" PROVISIONS OF
 THE CONTRACT COULD BE DEEMED A BASIS FOR DIRTY PAY.  THE ARBITRATOR
 AGREED WITH THE SHIPYARD POSITION.  IT WAS HELD THAT THE COUNCIL WAS
 BOUND BY APPENDIX J UNDER THE PROVISIONS OF SECTION 12(A) OF THE ORDER;
 THAT THE AGREEMENT ITSELF INCLUDES THE EXACT TERMINOLOGY OF APPENDIX J;
 THAT DURING NEGOTIATIONS LEADING TO ARTICLE 13, THE SHIPYARD MADE IT
 CLEAR THAT IT BELIEVED APPENDIX J WAS APPLICABLE AND FURTHER THAT THE
 SHIPYARD INTENDED TO ADMINISTER THE CONTRACT IN THE FUTURE BY STRICT
 COMPLIANCE WITH, AND APPLICATION OF, THE GENERAL CRITERIA;  THAT THE
 CRITERIA SUBSEQUENTLY WERE INCORPORATED INTO THE CONTRACT WITHOUT ANY
 APPARENT PROTEST BY THE COUNCIL;  AND THAT IF, AS THE COUNCIL ASSERTS,
 THE SHIPYARD MADE A UNILATERAL CHANGE IN THE METHOD OF PAYMENT OF
 COMPENSATION FOR "DIRTY WORK" AND THUS VIOLATED AN ESTABLISHED PAST
 PRACTICE AND THE TERMS OF THE CURRENT AGREEMENT, THEN THAT ISSUE MORE
 APPROPRIATELY SHOULD HAVE BEEN RAISED DURING THE NEGOTIATIONS OF THE
 CURRENT AGREEMENT RATHER THAN THROUGH ARBITRATION.
 
                            CONCLUSIONS OF LAW
 
    A THRESHOLD ISSUE POSED IN THIS CASE RELATES TO THE RESPONDENT'S
 CONTENTION THAT THE AMENDED COMPLAINT IS BARRED BY SECTION 19(D) OF THE
 ORDER.  SECTION 19(D) PROVIDES IN PART:
 
    ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY, IN THE
 DISCRETION OF THE
 
    AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR THE COMPLAINT
 PROCEDURE UNDER THIS SECTION,
 
    BUT NOT UNDER BOTH PROCEDURES.
 
    THE LANGUAGE OF SECTION 19(D) WAS BASED ON THE RECOMMENDATION OF THE
 FEDERAL LABOR RELATIONS COUNCIL IN ITS 1971 REPORT AND RECOMMENDATIONS
 TO THE PRESIDENT ON THE AMENDMENT OF EXECUTIVE ORDER 11491, WHEREIN IT
 WAS STATED:
 
    WE PROPOSE . . . THAT WHEN AN ISSUE MAY BE PROCESSED UNDER EITHER A
 GRIEVANCE PROCEDURE OR
 
    THE UNFAIR LABOR PRACTICE PROCEDURE, IT BE MADE OPTIONAL WITH THE
 AGGRIEVED PARTY WHETHER TO
 
    SEEK REDRESS UNDER THE GRIEVANCE PROCEDURE OR UNDER THE UNFAIR LABOR
 PRACTICE PROCEDURE.  THE
 
    SELECTION OF ONE PROCEDURE WOULD BE BINDING;  THE AGGRIEVED PARTY
 WOULD NOT BE PERMITTED,
 
    SIMULTANEOUSLY OR SEQUENTIALLY, TO PURSUE THE ISSUE UNDER THE OTHER
 PROCEDURE. LABOR
 
    MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), AT 57-58.
 
    CASES INTERPRETING SECTION 19(D) CLEARLY INDICATE THAT ISSUES POSED
 IN A GRIEVANCE PROCEEDING RELIED UPON AS A BASIS FOR INVOKING SECTION
 19(D), NEED NOT BE IDENTICAL TO THOSE RAISED IN THE UNFAIR LABOR
 PRACTICE PROCEEDING.  IN AGREEMENT WITH AN ACTING REGIONAL
 ADMINISTRATOR'S DISMISSAL OF A COMPLAINT, THE ASSISTANT SECRETARY
 ADOPTED THE FOLLOWING LANGUAGE IN U.S. GEOLOGICAL SURVEY, GULF OF
 MEXICO, OCS OPERATIONS AND LOCAL 3457, AFGE, CASE NO. 64-4091(CA),
 (DECEMBER 22, 1978):
 
    . . . SECTION 19(D) CLEARLY APPLIES TO WHETHER BASIC ISSUES ARE
 RAISED, NOT WHETHER
 
    SPECIFIC THEORIES ARE RAISED AND THE ISSUES IN (THE) GRIEVANCE AND
 THE INSTANT COMPLAINT ARE
 
    IDENTICAL.  . . .  IF YOUR ARGUMENT THAT THE ISSUE IN THE GRIEVANCE
 WAS THAT RESPONDENT
 
    VIOLATED 9-4 OF THE AGREEMENT WHEREAS THE ISSUE IN THE INSTANT
 COMPLAINT WAS THAT RESPONDENT
 
    VIOLATED ARTICLE 2-1 OF THE AGREEMENT BY UNILATERALLY ESTABLISHING A
 POLICY AFFECTING WORKING
 
    CONDITIONS WITHOUT AFFORDING THE UNION AN OPPORTUNITY TO NEGOTIATE
 WERE TO BE ACCEPTED,
 
    VIRTUALLY ANY GRIEVANCE COULD BE RAISED UNDER THE NEGOTIATED
 PROCEDURE TO DETERMINE WHETHER OR
 
    NOT THE CONTRACT HAD BEEN VIOLATED, AND UNDER THE COMPLAINT PROCEDURE
 TO DETERMINE WHETHER OR
 
    NOT THE ORDER HAD BEEN VIOLATED.  IN MY VIEW, SECTION 19(D) PREVENTS
 THIS DOUBLE "BITE OF THE
 
    APPLE." MOREOVER, IT IS NOTED THAT THE ISSUE OF UNILATERALLY
 ESTABLISHING A POLICY WITHOUT
 
    NEGOTIATING WITH THE UNION COULD HAVE BEEN RAISED DURING THE
 GRIEVANCE PROCEDURE.  YOUR
 
    FAILURE TO DO SO AND/OR TO PURSUE YOUR GRIEVANCE TO ARBITRATION DOES
 NOT PRECLUDE 19(D) FROM
 
    BARRING THE INSTANT COMPLAINT.  /15/
 
    THE RECORD DISCLOSES THAT IN THIS CASE BASIC ISSUES RAISED IN THE
 AMENDED COMPLAINT WERE RAISED IN GRIEVANCE PROCEEDINGS INITIATED IN THE
 FIRST INSTANCE BY THE COUNCIL ON BEHALF OF SANDBLASTERS AND BOILERMAKERS
 IN THE BARGAINING UNIT.  (RESPONDENT EXHIBITS 2 AND 3).  /16/
 
    THE BASIC ISSUES RAISED IN THE AMENDED COMPLAINT RELATED TO WHETHER
 THE SHIPYARD BARGAINED IN BAD FAITH DURING NEGOTIATIONS LEADING TO
 EXECUTION OF THE CURRENT COLLECTIVE BARGAINING AGREEMENT;  WHETHER THE
 SHIPYARD FAILED TO NEGOTIATE WITH THE COMPLAINANT PRIOR TO INITIATING A
 UNILATERAL CHANGE IN CRITERIA RELATING TO ENTITLEMENT TO "DIRTY PAY,"
 AND WHETHER THE SHIPYARD FAILED TO NEGOTIATE WITH THE COMPLAINANT PRIOR
 TO INITIATING A CHANGE IN THE AUTHORITY OF SUPERVISORS TO APPROVE
 ENTITLEMENT TO "DIRTY PAY."
 
    THE GRAVAMEN OF THE AMENDED COMPLAINT AND THE GRIEVANCE FILED BY ON
 BEHALF OF BOILERMAKERS COVERED BY THE AGREEMENT, RELATED TO THE BASIC
 ISSUES OF WHETHER OR NOT ENTITLEMENT TO "DIRTY PAY" SHOULD BE
 CONDITIONED UPON A SHOWING THAT "AUTHORIZED WORK SITUATIONS" LISTED
 UNDER THE "DIRTY WORK" PROVISIONS OF THE CONTRACT MUST ALSO MEET THE
 GENERAL CRITERIA IN THE COLLECTIVE BARGAINING AGREEMENT;  WHETHER THE
 SHIPYARD WAS JUSTIFIED IN CHANGING THE PRACTICE EMPLOYED IN SOME CASES,
 OF AUTHORIZING ENTITLEMENT TO "DIRTY PAY" WITHOUT FIRST REQUIRING A
 SHOWING OF ADHERENCE TO THE GENERAL CRITERIA;  AND WHETHER THE SHIPYARD
 MADE A UNILATERAL CHANGE IN THE METHOD OF PAYMENT OF COMPENSATION FOR
 "DIRTY WORK." /17/ BOTH THE BOILERMAKER GRIEVANCE AND THE AMENDED
 COMPLAINT POSE THE ISSUE OF WHETHER THE PARTIES FULLY EXPLORED QUESTIONS
 CONCERNING THE APPLICABILITY OF THE GENERAL CRITERIA DURING CONTRACT
 NEGOTIATIONS;  AND MOST IMPORTANTLY, THE ISSUE OF WHETHER THE SHIPYARD'S
 INTENTION TO ADMINISTER THE CONTRACT IN STRICT COMPLIANCE WITH THE
 CRITERIA WAS NEGOTIATED WITH THE COUNCIL.  THESE BASIC ISSUES WERE ALSO
 RAISED, ALTHOUGH IN A LESS DISTINCT MANNER, IN THE CONSOLIDATED
 GRIEVANCE FILED ON BEHALF OF ALL SANDBLASTERS.  (RESPONDENT'S EXHIBIT
 2).
 
    SINCE THE BASIC ISSUES RAISED IN THE BOILERMAKER AND SANDBLASTER
 GRIEVANCES WERE ESSENTIALLY THE SAME AS THOSE RAISED IN THIS FORUM,
 SECTION 19(D) PRECLUDES FURTHER PROCESSING OF THE COMPLAINT.  DEPARTMENT
 OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, A/SLMR NO. 1073
 (JULY 5, 1978).
 
    IT MUST ALSO BE NOTED THAT SUBSTANTIVE REASONS EXIST FOR THE
 DISMISSAL OF THE COMPLAINT IN THIS CASE.  UNDER THE RULES AND
 REGULATIONS OF THE ASSISTANT SECRETARY (29 C.F.R. 203.15), "(A)
 COMPLAINANT IN ASSERTING A VIOLATION OF THE ORDER SHALL HAVE THE BURDEN
 OF PROVING THE ALLEGATIONS OF THE COMPLAINT BY A PREPONDERANCE OF THE
 EVIDENCE." THIS BURDEN HAS NOT BEEN MET.
 
    THE COUNCIL'S VIEW OF THE NEGOTIATING PROCESS AMOUNTS TO AN ASSERTION
 THAT THE GENERAL CRITERIA (ARTICLE 13, SECTION 2, PART I B(1), (2) AND
 (3)), WERE INCLUDED IN THE CURRENT COLLECTIVE BARGAINING AGREEMENT BY
 THE PARTIES WITH A VERBAL UNDERSTANDING THAT THESE PROVISIONS WOULD HAVE
 NO LEGAL EFFECT WHATSOEVER.  THERE IS NO BASIS IN THE RECORD FOR
 CONCLUDING THAT THE PARTIES MADE SUCH A VERBAL AGREEMENT.  THE RECORD
 DISCLOSES THAT THE COUNCIL WAS, DURING NEGOTIATIONS, REPEATEDLY APPRISED
 AND PUT ON NOTICE CONCERNING THE INTENDED CHANGES IN PRACTICE ALLEGED IN
 THE AMENDED COMPLAINT, AND THE REASONS FOR THE CHANGES.  THE EVIDENCE
 INDICATES THAT THERE WAS A FULL DISCLOSURE BY THE SHIPYARD THAT THE
 CRITERIA WOULD BE APPLIED ACROSS THE BOARD IN WORK SITUATIONS INVOLVING
 "DIRTY PAY." THE COUNCIL AGREED TO THE APPLICABILITY OF THE CRITERIA IN
 THIS SPECIFIC CONTEXT, ONLY AFTER BEING PROVIDED WITH UNLIMITED
 OPPORTUNITY TO NEGOTIATE FURTHER OR PURSUE THE ISSUE TO IMPASSE.
 
    IN VIEW OF THE APPLICABILITY OF SECTION 19(D) OF THE ORDER, AND IN
 VIEW OF THE SUBSTANTIVE REASONS UNDERLYING DISMISSAL OF THE AMENDED
 COMPLAINT, IT IS UNNECESSARY TO DETERMINE WHETHER THE PROVISIONS OF
 SECTION 12(A) OR 13(A) OF THE ORDER WOULD INSURE TO THE BENEFIT OF THE
 SHIPYARD.
 
                              RECOMMENDATION
 
    HAVING FOUND THAT THE AMENDED COMPLAINT IS BARRED BY SECTION 19(D) OF
 THE ORDER, AND FURTHER THAT RESPONDENT HAS NOT ENGAGED IN CONDUCT
 PROHIBITED BY SECTIONS 19(A)(1) AND (6) OF THE ORDER, IT IS RECOMMENDED
 THAT THE AMENDED COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.
 
                               LOUIS SCALZO
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JUNE 11, 1979
 
    WASHINGTON, D.C.
 
    /1/ IN CONFORMITY WITH SEC. 902(B) OF THE CIVIL SERVICE REFORM ACT OF
 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS OF
 E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /2/ FOLLOWING THE HEARING THE DEPOSITIONS OF THREE WITNESSES WERE
 TAKEN.  THESE WERE FILED AS PART OF THE RECORD ON APRIL 9, 1979.  THE
 DEPOSITIONS ARE ADMITTED AND OBJECTIONS TO TESTIMONY OVERRULED;  HOWEVER
 OBJECTIONS RAISED BY COUNSEL FOR COMPLAINANT TO THE ADMISSION OF A
 LETTER DATED SEPTEMBER 15, 1978, ADDRESSED TO MR. RAYMOND H. HARRISON,
 BY MR.  RAYMOND C. WEISSENBORN, CHIEF, PAY POLICY DIVISION, BUREAU OF
 POLICIES ANS STANDARDS, UNITED STATES CIVIL SERVICE COMMISSION, ARE
 SUSTAINED TO THE EXTENT THAT REFERENCES TO THE LETTER IN THE DEPOSITION
 TRANSCRIPT MAY NOT BE ADMITTED AS EVIDENCE OF CIVIL SERVICE COMMISSION
 ENDORSEMENT OF THE LETTER OR ITS CONTENTS.  THIS RESULT FOLLOWS FROM THE
 FACT THAT THE RECORD DOES NOT DISCLOSE A SHOWING THAT THE LETTER
 REPRESENTS THE VIEWS OF THE CIVIL SERVICE COMMISSION.  REFERENCES TO THE
 LETTER IN THE TRANSCRIPT ARE DEEMED ADMISSIBLE AS STATEMENTS OF THE
 RESPONDENT'S POSITION REGARDING LEGAL ISSUES REFLECTED THEREIN.
 
    /3/ JOINT EXHIBIT 2 AT PAGE 31.
 
    /4/ IN OTHER WORK CATEGORIES SET OUT IN ARTICLE 13, SECTION 2, PART
 II OF THE AGREEMENT, ENVIRONMENTAL PAY IS AUTHORIZED ON THE BASIS OF A
 SPECIFIED "PAY STATUS."
 
    /5/ SECTION 2, PART I B ALSO RELATES TO ENVIRONMENTAL DIFFERENTIALS
 PAID FOR HIGH WORK;  COLD WORK;  HOT WORK;  WORKING WITH PREHEATED
 METALS, FIBROUS CLASS, AND ASBESTOS;  EXPOSURE IN PRESSURE CHAMBERS OR
 TO A HIGH DEGREE OF CENTRIFUGAL FORCE;  AND FLYING.
 
    /6/ SEE LIST OF "AUTHORIZED WORK SITUATIONS" IN ARTICLE 13, SECTION
 2, PART I B.  A NUMBER OF THESE INCLUDE MORE THAN ONE SPECIFIC WORK
 ACTIVITY.
 
    /7/ SEE JOINT EXHIBIT 1.  THE RECORD ALSO DISCLOSES THAT ALTHOUGH
 MINOR CHANGES WERE MADE IN ARTICLE 13 IN THE EARLIER COLLECTIVE
 BARGAINING AGREEMENT IS, FOR PURPOSES HEREIN, SUBSTANTIALLY THE SAME AS
 THE CURRENT COLLECTIVE BARGAINING AGREEMENT.
 
    /8/ GENERAL CRITERIA RELATING TO "DIRTY WORK," AS SET OUT IN PART I
 B(1), (2), AND (3), ARE DERIVED ENTIRELY FROM APPENDIX J.  THE LAST
 SENTENCE OF (3), UNDERLINED ABOVE, REPRESENTS LANGUAGE ADDED BY THE
 PARTIES.
 
    UNLIKE A NUMBER OF OTHER CATEGORIES IDENTIFIED IN APPENDIX J., "DIRTY
 WORK" IS NOT DE