16:0485(72)CA - DOD, Navy, Naval Weapons Station, Yorktown, Virginia and NAGE Local R4-1 -- 1984 FLRAdec CA



[ v16 p485 ]
16:0485(72)CA
The decision of the Authority follows:


 16 FLRA No. 72
 
 DEPARTMENT OF DEFENSE
 DEPARTMENT OF THE NAVY
 NAVAL WEAPONS STATION
 YORKTOWN, VIRGINIA
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R4-1
 Charging Party
 
                                            Case Nos. 4-CA-20041
                                                      4-CA-20271
                                                      4-CA-20295
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 the unfair labor practices alleged in Case No. 4-CA-20041 and Case No.
 4-CA-20271, and recommending that it be ordered to cease and desist
 therefrom and take certain affirmative action.  The Respondent filed
 exceptions to the Judge's Decision in this regard.  The Judge further
 found that the Respondent had not engaged in the unfair labor practices
 alleged in Case No. 4-CA-20295, and recommended dismissal of that
 complaint.  The General Counsel filed exceptions to the Judge's Decision
 in this regard.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions, and recommended Order.
 
    Accordingly, the Authority finds that the Respondent violated section
 7116(a)(1) and (5) of the Statute by unilaterally terminating 8 percent
 environmental differential pay to certain employees.  As the change was
 within the duty to bargain, /1/ the Respondent was obligated to give
 prior notice to the Charging Party, and an opportunity to request
 bargaining over the decision to effectuate the change.  Internal Revenue
 Service, Western Region, San Francisco, California, 11 FLRA No. 112
 (1983).
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Department of Defense, Department of the Navy,
 Naval Weapons Station, Yorktown, Virginia shall:
 
    1.  Cease and desist from:
 
    (a) Unilaterally terminating the payment of 8 percent environmental
 hazardous duty pay to the two inspectors working in the CAPTOR MINE
 facility in Building 430 and the public works employees working in
 Building 1816 without first notifying the National Association of
 Government Employees, Local R4-1, the exclusive representative of the
 affected employees, and affording it the opportunity to negotiate
 concerning the elimination of such pay.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of the rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Upon request, meet and negotiate with the National Association of
 Government Employees, Local R4-1, the employees' exclusive
 representative, concerning elimination of the 8 percent environmental
 hazardous duty pay previously paid to the two inspectors working in the
 CAPTOR MINE facility in Building 430 and the public works employees
 working in Building 1816.
 
    (b) Rescind the orders given to the supervisors in the CAPTOR MINE
 facility in Building 430 and Building 1816 which effectively eliminated
 the payment of 8 percent environmental hazardous duty pay to the
 employees working in such locations.
 
    (c) Make whole employees for any loss of pay occasioned by the
 unilateral termination of 8 percent environmental hazardous duty pay to
 the two inspectors working in the CAPTOR MINE facility in Building 430
 and the public works employees working in Building 1816.  The amount of
 back pay to be determined shall be in accordance with the normal
 environmental pay formulas in effect prior to the termination of such
 pay on September 8, 1981, and March 22, 1982, respectively.
 
    (d) Post at its facility, the Naval Weapons Station, Yorktown,
 Virginia, copies of the attached Notice on forms to be furnished by the
 Federal Labor Relations Authority.  Upon receipt of such forms, they
 shall be signed by the Shipyard Commander, or his designee, and shall be
 posted and maintained for 60 consecutive days thereafter, in conspicuous
 places, including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 ensure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (e) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IV, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the complaint in Case No. 4-CA-20295 be,
 and it hereby is, dismissed.  
 
 Issued, Washington, D.C., November 15, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT unilaterally terminate payment of 8 percent environmental
 hazardous duty pay to the two inspectors working in the CAPTOR MINE
 facility in Building 430 and the public works employees working in
 Building 1816 without first notifying the National Association of
 Government Employees, Local R4-1, the exclusive representative of the
 affected employees, and affording it the opportunity to negotiate
 concerning the elimination of such pay.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of the rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request, meet and negotiate with the National
 Association of Government Employees, Local R4-1, the employees'
 exclusive representative, concerning elimination of the 8 percent
 environmental hazardous duty pay previously paid to the two inspectors
 working in the CAPTOR MINE facility in Building 430 and the public works
 employees working in Building 1816.
 
    WE WILL rescind the orders given to the supervisors in the CAPTOR
 MINE facility in Building 430 and Building 1816 which effectively
 eliminated the payment of 8 percent environmental hazardous duty pay to
 the employees working in such locations.
 
    WE WILL make whole employees for any loss of pay occasioned by the
 unilateral termination of 8 percent environmental hazardous duty pay to
 the two inspectors working in the CAPTOR MINE facility in Building 430
 and the public works employees working in Building 1816.  The amount of
 back pay to be determined shall be in accordance with the normal
 environmental pay formulas in effect prior to the termination of such
 pay on September 8, 1981, and March 22, 1982, respectively.
                                       (Activity)
 
    Dated:  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director for the Federal Labor Relations Authority whose address is:
 Federal Labor Relations Authority, Region IV, 1776 Peachtree Street,
 NW., Suite 501 - North Wing, Atlanta, Georgia 30309, and whose telephone
 number is:  (404) 881-2324.
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DEPARTMENT OF DEFENSE
    DEPARTMENT OF THE NAVY
    NAVAL WEAPONS STATION
                                Respondent
 
    and
 
    NATIONAL ASSOCIATION OF GOVERNMENT
    EMPLOYEES, LOCAL R4-1
                              Charging Party
 
                                       Case No. 4-CA-20041
 
    and
 
    DEPARTMENT OF DEFENSE
    DEPARTMENT OF THE NAVY
    NAVAL WEAPONS STATION
 
                                Respondent
 
    and
 
    NATIONAL ASSOCIATION OF GOVERNMENT
    EMPLOYEES, LOCAL R4-1
 
                               Charging Party
                                       Case No. 4-CA-20271
 
    and
 
    DEPARTMENT OF DEFENSE
    DEPARTMENT OF THE NAVY
    NAVAL WEAPONS STATION
                                Respondent
 
    and
 
    NATIONAL ASSOCIATION OF GOVERNMENT
    EMPLOYEES, LOCAL R4-1
                              Charging Party
 
                                       Case No. 4-CA-20295
 
    Ms. Delores T. Griffin
    Ms. Denise Bane
    For the Respondent
 
    Edward P. Nichols, Esquire
    James R. Puhger, Esquire
    For the General Counsel
 
    Mr. George L. Reaves
    For the Charging Party
 
    Before:  BURTON S. STERNBURG
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 7101, et seq., and the Rules and Regulations issued thereunder, Fed.
 Reg., Vol. 45, No. 12, January 17, 1980, and Vol. 46, No. 154, August
 11, 1981, 5 C.F.R. Chapter XIV, Part 2411, et seq.
 
    Pursuant to charges filed on October 28, 1981 in Case No. 4-CA-20041,
 April 28, 1982 in Case No. 4-CA-20271, and May 17, 1982, in Case No.
 4-CA-20295, by the National Association of Government Employees, Local
 R4-1 (hereinafter called the Union or NAGE), a Consolidated Complaint
 and Amended Notice of Hearing was issued on August 31, 1982, by the
 Regional Director for Region IV, Federal Labor Relations Authority,
 Atlanta, Georgia.  The Consolidated Complaint alleges that the
 Department of Defense, Department of the Navy, Naval Weapons Station,
 Yorktown, Virginia (hereinafter called the Respondent), violated
 Sections 7116(a)(1) and (5) of the Federal Service Labor-Management
 Relations Statute (hereinafter called the Statute or Act), by virtue of
 its actions in unilaterally stopping payment of 8 percent environmental
 differential pay to certain employees working in Buildings 28, 1816 and
 the CAPTOR MINE facility in Building 430 without affording the Union
 notice and an opportunity to bargain concerning such terminations of 8
 percent environmental differential hazardous duty pay.
 
    A hearing was held in the captioned matter on October 18 and 19,
 1982, in Yorktown, Virginia.  All parties were afforded full opportunity
 to be heard, to examine and cross-examine witnesses, and to introduce
 evidence bearing on the issues involved herein.  The General Counsel and
 the Respondent submitted post-hearing briefs on December 10 and 6, 1982,
 respectively, which have been duly considered.
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
    The Union is the exclusive representative of Respondent's wage grade
 employees working at the Naval Weapons Station, Yorktown, Virginia.
 
    Due to the nature of the work performed at the Naval Weapons
 Stations, i.e. repair and maintenance of explosive naval weapons, the
 employees, on occasion, are entitled to environmental pay of 4 to 8
 percent when exposed to certain enumerated chemical or explosive
 hazards.
 
    The hazards and manner of computing the environmental pay for same
 are governed by a number of instructions (NWSYORKTOWNINST) issued by
 Respondent.  The first instruction numbered 12531.3D and entitled
 Environmental Differential Pay for Various Degrees of Hazards, Physical
 Hardships, and Working Conditions of an Unusual Nature became effective
 November 27, 1970.  A second instruction numbered 12531.3E became
 effective March 28, 1972.  The most recent instruction numbered 12531.3F
 became effective April 23, 1979 and was in effect at the time the events
 underlying the instant complaint occurred.
 
    The aforecited three instructions concerning environmental pay for
 hazardous duty, which are substantially similar in content, set forth
 the conditions and hazards under which the employees are entitled to
 high hazard (8 percent) and low hazard (4 percent) environmental pay.
 The last instruction (12531.3F effective April 23, 1979), which was the
 product of negotiations between the Union and the Respondent, contrary
 to its predecessor instructions, removed "Radiography" (X-ray) of high
 explosives from the high hazard, 8 percent category and provided no
 environmental pay for such exposure.
 
    In practice, an employee working at, or exposed to, a high or low
 explosive hazard, would submit a "chit" to his respective supervisor for
 approval.  Once the "chit" was approved by the supervisor, the "chit"
 would be recorded on the employee's time card and sent forward to
 payroll.  The employee would subsequently be paid the environmental
 differential for his entire shift, irrespective of the total amount of
 time the employee had been exposed to the hazard during his shift.
 Thus, it appears from the record, that a one minute exposure to a hazard
 would result in 8 hours of environmental pay.  The record further
 discloses that an employee merely had to be present in a building where
 a hazard existed to qualify for the respective hazardous duty pay
 associated with certain work or conditions.  The record also discloses
 that approval of the hazardous duty pay was solely within the discretion
 of the employee's supervisor who was charged with the individual
 responsibility of applying the published instructions dealing with the
 payment of environmental pay for the performance of hazardous duty.
 
    Instruction 12531.3F which was in effect at the time of the events
 underlying the instant complaint set forth 25 situations where high
 hazard pay (8 percent) should be paid and 10 situations where low hazard
 pay (4 percent) should be paid.  Additionally, Section 5,
 Responsibilities and Action, provides as follows:
 
          (a) Department Heads shall carry out the policies and other
       requirements of this instruction and shall at appropriate random
       intervals review or cause to be reviewed the validity of
       environmental differential pay codes which have been approved on
       time cards.
 
          (b) Officials authorized to sign time cards for environmental
       differential pay shall be line supervisors no lower than General
       Foreman or equivalent, unless the Department Head certifies in
       writing to the Comptroller that specific practical considerations
       require that authorization to sign time cards be delegated to
       Foreman or equivalent level supervisor.
 
    With respect to Building 1816, the parties entered into a stipulation
 concerning the high hazard (8 percent) environmental pay earned by wage
 grade employees of the Public Works Department who worked in Building
 1816.  The stipulation which was based on "chits" analyzed for the
 period 1/81 to 9/82 indicates that high hazard environmental pay was
 paid as follows:  1/81-- 19 employees, 2/81-- 32 employees, 3/81-- 68
 employees, 4/81-- 71 employees, 5/81-- 37 employees, 6/81-- 55
 employees, 7/81-- 59 employees, 8/81-- 49 employees, 9/81-- 62
 employees, 10/81-- 66 employees, 11/81-- 72 employees, 12/81-- 81
 employees, 1/82-- 70 employees, 2/82-- 55 employees, 3/82-- 29
 employees, 4/82-- 3 employees, 5/82-- 0 employees, 6/82-- 0 employees,
 7/82-- 1 employee, 8/82-- 1 employee, 8/82-- 1 employee, 9/82-- 0
 employees.
 
    With respect to Building 28, the parties entered into a stipulation
 concerning the high hazard (8 percent) environmental pay earned by wage
 grade employees of the Public Works Department who worked in Building 28
 doing radiography.  The stipulation which was based on "chits" analyzed
 for the period 1/81 to 9/82 indicates that high hazard environmental pay
 was paid as follows:  1/81-- 18 employees, 2/81-- 21 employees, 3/81--
 33 employees, 4/81-- 34 employees, 5/81-- 22 employees, 6/81-- 9
 employees, 7/81-- 1 employee, 8/81-- 2 employees, 9/81-- 3 employees,
 10/81-- 16 employees, 11/81-- 17 employees, 12/81-- 35 employees, 1/82--
 25 employees, 2/82-- 25 employees, 3/82-- 25 employees, 4/82-- 0
 employees, 5/82-- 0 employees, 6/82-- 0 employees, 7/82-- 1 employee,
 8/82-- 0 employees, 9/82-- 0 employees.
 
    With respect to Building 430, the parties entered into a stipulation
 concerning the high hazard (8 percent) environmental pay earned by
 Electronics Integrated Inspectors T. W. Greene and M. E. Shelton, who
 regularly worked in the CAPTOR MINE facility located in Building 430.
 The stipulation indicates that for the representative period June 1,
 1981 to September 8, 1981, Respondent paid Inspectors T. W. Greene and
 M. E. Shelton who were regularly assigned to Building 430, high hazard
 environmental pay 73 percent and 70 percent, respectively, for the time
 they were working in Building 430 and explosive weapons were present or
 handled in the building.  The stipulation further indicates that
 subsequent to September 8, 1981, for the representative period September
 8, 1981, through April 1982, Respondent paid T. W. Greene and M. E.
 Shelton, high explosive hazard pay 15 percent and 1 percent,
 respectively, for the time they were working in Building 430 and
 explosive weapons were present or being handled.
 
    The parties further stipulated "that at no time material herein did
 Respondent notify the Union or engage in collective bargaining thereon
 prior to the changes in payments of environmental pay on the dates set
 forth in paragraphs 8(a-c) of the amended consolidated complaint." /2/
 
    Respondent acknowledges that it stopped paying the high hazard (8
 percent) environmental differential in Buildings 28 and 1816 on or about
 March 2, 1982.  It further acknowledges that high hazard (8 percent)
 environmental differential pay was stopped in Building 430 on or about
 September 8, 1981.  According to Respondent the payments previously paid
 were contrary to both Instruction 12531.3F which had deleted Radiography
 as an environmental hazard and the hazard evaluations which were in
 effect for other employees working in Buildings 430 and 1816, as well as
 a number of other buildings in the complex where hazards similar to
 those encountered in Buildings 430 and 1816 were performed at the low
 hazard pay of 4 percent.
 
    With regard to the type of hazard pay awarded employees other than
 inspectors T. W. Greene and M. E. Shelton who worked from time to time
 in Building 430 the parties stipUlated that during the representative
 period January 1, 1981 through September 1981, 32 public works employees
 received 4 percent low hazard pay and only 1 employee received 8 percent
 high hazard pay.
 
    Mr. Randolph Raines, Production Superintendent of the Weapons
 Maintenance Branch of the Ordnance Department testified that he had up
 to five ordnance employees working in Building 430 and that prior to
 September 8, 1981, such ordnance employees received only 4 percent low
 hazard environmental pay.  Mr. John Smith, Head of the Engineering
 Department, testified that employees working in his department who from
 time to time performed work in Building 430 received either high hazard,
 low hazard or no environmental pay.
 
    Mr. Smith and Mr. Eugene Harleman, Deputy Ordnance Officer, testified
 that Building 1456, 1467, and 1595 were Intermediate Level Maintenance
 Operations (IMA) and that the work in such buildings qualified for 4
 percent hazard pay rather than 8 percent high hazard pay.  They further
 testified that the work in the Buildings wherein the alleged unilateral
 changes occurred, namely Building 430 and 1816, qualified as IMA and
 that the hazards existing in such building were only 4 percent low
 hazard.
 
    With respect to the environmental differential for explosive hazards
 awarded to employees working in Buildings 1456, 1467, and 1595, the
 parties entered into a number of stipulations.
 
    For the representative period January 1981 through September 1982 the
 parties stipulated that high hazard (8 percent) or low hazard (4
 percent) environmental differential pay was awarded employees in
 Building 1456 as follows:
 
          1/18/81-- 15 employees received high, 2/81-- 17 employees
       received high, 3/81-- 18 employees received high, 4/81-- 8
       employees received high and 4 employees received low, 5/81-- 13
       employees received high and 2 employees received low, 6/81-- 2
       employees received high, 7/81-- 8 employees received high and 4
       employees received low, 8/81-- 15 employees received high, 9/81--
       17 employees received high, 10/81-- 17 employees received high,
       11/81-- 11 employees received high, 12/81-- 4 employees received
       high, 1/82-- 15 employees received high, 2/82-- 15 employees
       received high and 3 employees received low, 3/82-- 16 employees
       received high and 13 employees received low, 4/82-- 0 employees
       received high and 14 employees received low, 5/82-- 0 employees
       received high and 4 employees received low, 6/82-- 0 employees
       received high and 20 employees received low, 7/82-- 0 employees
       received high and 7 employees received low, 8/82-- no employee
       received either high or low, 9/82-- 3 employees received high and
       0 employees received low.
 
    With respect to Building 1467 for the representative period 1/81
 through 8/82 high (8 percent) environmental differential pay was only
 awarded once to two employees in February 1982.  Low 4 percent hazard
 pay was awarded to employees working in Building 1467 as follows:
 
          1/81-- 7, 2/81-- 18, 3/81-- 11, 4/81-- 13, 5/81-- 4, 6/81-- 0,
       7/81-- 0, 8/81-- 25, 9/81-- 18, 10/81-- 14, 11/81-- 28, 12/81-- 0,
       1/82-- 4, 2/82-- 15, 3/82-- 36, 4/82-- 17, 5/82-- 10, 6/82-- 16,
       7/82-- 15, 8/82-- 6.
 
    With respect to Building 1595, for the representative period 1/81
 through 10/82 the record indicates that high and low environmental
 differential hazardous duty pay was paid as follows:
 
          1/81-- 11 employees received high and 11 employees received
       low, 2/81-- 24 employees received high and 22 employees received
       low, 3/81-- 17 employees received high and 34 employees received
       low, 5/81-- 2 employees received high and 44 employees received
       low, 6/81-- 54 employees received high and 93 employees received
       low, 7/81-- 10 employees received high and 95 employees received
       low, 8/81-- 2 employees received high and 40 employees received
       low, 9/81-- 3 employees received high and 32 employees received
       low, 10/81-- 4 employees received high and 15 employees received
       low, 11/81-- 4 employees received high and 17 employees received
       low, 12/81-- 1 employee received high and 18 employees received
       low, 1/82-- 3 employees received high and 15 employees received
       low, 2/82-- 1 employee received high and 17 employees received
       low, 3/82-- 5 employees received high and 31 employees received
       low, 4/82-- 1 employee received high and 23 employees received
       low, 5/82-- 1 employee received high and 26 employees received
       low, 6/82-- 9 employees received high and 54 employees received
       low, 7/82-- 2 employees received high and 49 employees received
       low, 8/82-- 1 employee received high and 57 employees received
       low, 9/82-- 0 employees received high and 8 employees received
       low, 10/82-- 0 employees received high and 1 employee received
       low.
 
    With respect to the operations carried on in Building 1595, Mr.
 Raines testified that Radiography (X-ray) had been used in the building
 since around March of 1981 and that no environmental hazard pay had been
 paid to employees who had worked in such operation or been in the
 building when the X-ray operation had been carried on.  According to Mr.
 Raines, the reason for the non-payment was the deletion of such
 operation from the 1979 instruction (12531.F) regarding environmental
 hazards.  Mr. Connie L. Portewig, General Foreman of the Air Launch
 facility which is located in Building 1595 testified that the hazards in
 the building were low hazard (4 percent) except for the time when they
 had a waivered situation involving a particular missile.  He further
 testified that when the employees under his supervision performed
 Radiography in Building 1595, beginning some time in March 1981, they
 were not paid any environmental hazard pay.
 
    The unrefuted testimony of Mr. John Smith, Head of Ordnance
 Engineering Division, indicates that there are three other buildings on
 the Naval Base which are considered IMAs and in which work similar to
 that performed in Building 430 is carried on.  According to his
 testimony, prior to September 1981, the 17 inspectors assigned to
 Building 1595 and the 11 inspectors assigned to Building 1467 received 4
 percent environmental hazard pay while working in the respective
 buildings.  Further, according to Mr. Smith, Ordnance and Material
 Management employees under his supervision worked in Building 430.  The
 six ordnance employees received 4 percent environmental hazard pay and
 the material management employees received 0, 4 or 8 percent
 environmental hazard pay.  With respect to public works employees in
 Building 430, Mr. Smith testified that they also received 0, 4, or 8
 percent environmental hazard pay.
 
    With respect to Building 1595, Mr. Smith testified that as a general
 rule, the employees under his supervision in Building 1595 received 4
 percent environmental hazard pay.  He also testified that Mr. A. T.
 Greene, an inspector in Building 1595, received, for the period June
 1981 to April 1982, 4 percent environmental hazard pay for 78 percent of
 the time and 8 percent environmental pay for 15 percent of the time he
 worked there.
 
    Finally, Mr. Smith testified that the type of X-ray equipment in
 Building 1595 was identical to that in Building 28 and that the
 employees under his supervision working on such equipment were not paid
 any environmental differential.
 
    The record further indicates that while there had been in the past
 changes in an individual employee's environmental pay from time to time,
 there had only been one occasion when an environmental hazard pay change
 was instituted which affected a large group of employees.  On this
 occasion the record indicates that the Respondent notified the Union and
 bargained over the change before instituting same.
 
                        Discussion and Conclusions
 
    Respondent acknowledges and I find that prior to September 8, 1981,
 Respondent paid the two Electronic Intergrated Inspectors working in the
 CAPTOR MINE facility in Building 430 high hazard 8 percent environmental
 pay for the majority of the time they were working in Building 430.
 Respondent further acknowledges and I find that prior to March 22, 1982,
 Respondent paid wage grade employees working in Buildings 1816 and 28
 high hazard 8 percent environmental pay for the majority of the time
 they were working in such buildings.  Finally, Respondent acknowledges
 that on or about September 8, 1981, with respect to the employees
 working in the CAPTOR MINE facility in Building 430, and on or about
 March 22, 1982 with respect to wage grade employees working in Buildings
 1816 and 28, Respondent, without prior notice to the Union, advised its
 supervisors to cease paying the high hazard 8 percent environmental pay
 to the wage grade employees involved despite the fact that there had
 been no changes in their respective duties.
 
    The record further establishes that the payment of hazardous duty
 environmental pay was governed by NWSYORKTOWNINST 12531.3F effective
 April 23, 1979, which set forth both the explosive hazard situations and
 the percentage of differential pay to be accorded employees subjected to
 such hazards.  The determination of whether or not a particular employee
 had been exposed to an explosive hazard was generally left up to the
 employee's immediate supervisor.  Although there had been disputes in
 the past concerning whether or not an individual employee had been
 exposed to a particular explosive or chemical hazard, there had only
 been one occasion when the Respondent had instituted a change in
 hazardous duty environmental pay which affected a large group of
 employees.  On this occasion the Respondent had given the Union advanced
 notice of the change and an opportunity to bargain thereon.
 
    The record also discloses that NWSYORKTOWNINST 12531.3F, effective
 April 23, 1979, contrary to earlier similar instructions, deleted
 Radiography (X-ray) from the list of hazards qualifying for the payment
 of environmental hazardous duty pay and that with the exception of
 Building 28, no environmental hazard pay had been paid to employees
 performing Radiography since such date.
 
    Finally, the record discloses that in other buildings on the
 compound, namely Buildings 1456, 1467, and 1595 which were classified as
 Intermediate Level Operations (IMA) and in which work similar to that in
 Buildings 430 and 1816 (which were also IMA operations), was performed
 no consistent practice existed with respect to the awarding of 8 percent
 high hazard or 4 percent low hazardous duty environmental pay.
 Generally, however, the majority of employees working in Buildings 1456,
 1467, and 1595 were awarded 4 percent low hazard environmental pay.
 
    Respondent acknowledges that it unilaterally, without prior notice to
 the Union, stopped the payment of 8 percent high hazardous duty pay in
 Building 430 and 1816, and Building 28 on September 8, 1981 and March
 22, 1982, respectively, because payment of 8 percent high hazard pay in
 such buildings was in its opinion contrary to NWSYORTOWNINST 12531.3F
 and that paid in other IMA facilities.
 
    Respondent takes the position that (1) such prior payments of the 8
 percent high hazard environmental pay had not ripened into a past
 practice which constituted a condition of employment which it could not
 unilaterally change without prior notice to and bargaining with, the
 Union;  (2) Respondent was within its rights in correcting environmental
 hazardous duty payments which were contrary to NWSYORKTOWINST 12531.3F;
 and (3) that by virtue of Section 5 of NWSYORTOWNINST 12531.3F it was
 permitted to make corrections in the payment of hazardous duty pay
 without any further negotiations with the Union.
 
    Taking the Respondent's defenses in inverse order, I find such
 defenses to be without merit.
 
    While it is true that Section 5 of NWSYORKTOWNINST 12531.3F imposes
 upon Department Heads the responsibility of reviewing the validity of
 environmental hazardous duty pay, it does not empower them to effect
 changes in such payments without prior notice and negotiation with the
 Union.  Moreover, a literal reading of the language of Section 5 falls
 short of indicating that the Union clearly and unmistakably waived its
 right to negotiate over any subsequent changes in environmental
 differential hazardous duty pay.  The limited amount of testimony in the
 record concerning the negotiations leading up to the issuance of
 NWSYORKTOWNINST 12531.3F Section 5 fails to support a contrary
 conclusion.  Accordingly, in view of the foregoing considerations, I
 find that the Union did not waive its right to bargain over changes in
 the application of environmental hazardous duty pay.  /3/
 
    With regard to Respondent's first and second defenses, i.e. that
 there was no past practice and that in any event it was within its
 rights in correcting the erroneous application of the existing hazardous
 duty pay instruction, I find such defenses to be without merit except
 for the changes effected with respect to Radiography in Building 28.
 
    The record discloses that it had always been Respondent's practice to
 allow its supervisors to utilize their own individual discretion in
 applying the existing hazardous duty pay instructions to the affected
 employees daily work situations.  In this connection the parties
 stipulated, and I find, that certain employees working in Buildings
 1816, 28, and 430 were consistently awarded by their respective
 supervisors 8 percent environmental hazardous duty pay for a majority of
 the time they were working in such buildings.  The record further
 indicates that upon orders from Respondent the responsible supervisors
 in Buildings 1816, 28, and 430 ceased approving the payment of 8 percent
 hazardous duty pay on September 8, 1981 in Building 430, and on March
 22, 1982 in Buildings 28 and 1816.  Respondent acknowledges taking the
 aforementioned action without giving the Union any prior notice and an
 opportunity to request bargaining thereon.
 
    The record also contains stipulations concerning the payment of
 environmental hazardous duty pay in Buildings 1456, 1467, and 1595,
 which like Buildings 1816, 28, and 430 were Intermediate Level
 Maintenance Operations.  According to witnesses presented by Respondent,
 whose testimony was not disputed, the work in all Intermediate Level
 Maintenance Operations was generally similar in nature and the employees
 therein were generally subjected to the same explosive hazards.
 Additionally, with respect to Building 430 the parties stipulated that
 with the exception of inspectors Greene and Shelton the public works
 employees working in Building 430 received only 4 percent hazardous duty
 pay as opposed to the 8 percent hazardous duty pay paid to the
 inspectors in the CAPTOR MINE facility for a majority of the time they
 worked in such building.  According to the uncontested testimony of Mr.
 Raines the five ordnance employees who worked in Building 430 from time
 to time received only 4 percent hazardous duty pay.
 
    A review of the hazardous duty pay awarded employees in Building
 1456, 1467, and 1595, with the exception of employees performing
 Radiography, fails to indicate any set pattern with respect to the
 payment of 8 percent or 4 percent hazardous duty pay.  As may be noted
 from the stipulation set forth in the factual portion of this decision,
 on any given day some employees received 4 percent and others 8 percent
 hazardous duty pay.  With respect to the employees performing
 Radiography in Building 1595, the undisputed testimony of Mr. Raines
 establishes that subsequent to April 1979 when the new and current
 Instruction became effective, none of the employees performing
 Radiography in Building 1595 were paid any environmental hazardous duty
 pay.
 
    Analyzing the record as a whole, I find, as Respondent acknowledges
 in its post hearing brief, that there was no uniform pattern with
 respect to awarding or not awarding 8 percent environmental hazardous
 duty pay to employees working in all the various IMA facilities.
 Rather, I find that payment of 4 percent and 8 percent hazardous duty
 pay was left up to the discretion of the individual supervisors in the
 various IMA building until September 8, 1981 and March 22, 1982, when
 Respondent in an attempt to make hazardous duty payments uniform,
 unilaterally changed its policy in Buildings 430, 1816, and 28,
 respectively, and, instructed the respective supervisors in such
 buildings to only-- approve 4 percent or less environmental hazardous
 duty pay to the employees under their supervision.
 
    Inasmuch as the two inspectors in Building 430 as well as the public
 works employees in Building 1816 had been receiving 8 percent
 environmental hazardous duty pay for over two years prior to September
 8, 1981 and March 22, 1982, respectively, when such hazardous duty
 payments were reduced to 4 percent without any change in their
 employment duties, I find that the action of Respondent amounted to a
 change in an established practice which required the Respondent to give
 the Union timely notice of, and the opportunity to bargain thereon.  The
 fact that other employees working in other IMA facilities doing similar
 work were not consistently awarded 8 percent rather than 4 percent
 environmental hazardous duty pay by their respective supervisors does
 not alter the situation since the established practice was shown to
 exist with respect to only the inspectors in Building 430 and the public
 works employees in Building 1816.  Contrary to the contention of the
 Respondent, I know of no Authority case which holds that in order for a
 practice to exist it must be shown that such practice was common to all
 the employees in the recognized unit.  As long as there is an
 identifiable group which has enjoyed a practice which has grown into a
 condition of employment, a Respondent is obligated to bargain with such
 group's representative prior to changing such condition of employment.
 Cf. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
 Hampshire, 5 FLRA No. 48.
 
    Accordingly, in view of the foregoing consideration and absent any
 substantial evidence indicating that the payments were clearly in
 violation of the negotiated instruction, /4/ I find that the Respondent
 violated Sections 7116(a)(1) and (5) of the Statute when it unilaterally
 terminated its existing practice in Buildings 430 and 1816 which
 permitted the supervisors therein to determine the amount of hazardous
 duty pay to be awarded the employees under their supervision and
 directed that the maximum hazardous duty pay be limited to 4 percent.
 
    However, with respect to Building 28 where the record establishes
 that employees performing Radiography had consistently received 8
 percent environmental hazardous pay, a different conclusion is in order.
  Thus, the record establishes that the Instruction, which was a product
 of the negotiations between the parties, clearly deleted Radiography
 from the list of hazardous duty operations.  In such circumstances,
 having agreed to delete Radiography as an operation for which hazardous
 duty pay is in order, I question how the Union may now contest the
 correction of a clearly erroneous act of one supervisor in permitting
 the payment of hazardous duty pay for same.  Accordingly, I find that
 the Respondent did not violate the Statute when it corrected the
 erroneous actions of a supervisor who had authorized the payment of
 hazardous duty pay to the employees in Building 28 while they were
 performing Radiography.
 
    Having concluded that Respondent violated Sections 7116(a)(1) and (5)
 of the Statute by virtue of its actions in unilaterally terminating the
 payment of 8 percent environmental hazardous duty pay to the two
 inspectors of the CAPTOR MINE facility in Building 430 and the public
 works employees in Building 1816, I recommend that the Authority adopt
 the following order.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's rules and regulations and section 7118 of the Statute, it is
 hereby ordered that Department of Defense, Department of the Navy, Naval
 Weapons Station, Yorktown, Virginia shall:
 
    1.  Cease and desist from:
 
          (a) Unilaterally terminating the payment of 8 percent
       environmental hazardous duty pay to the two inspectors working in
       the CAPTOR MINE facility in Building 430 and the public works
       employees working in Building 1816 without first notifying the
       National Association of Government Employees, Local R4-1, the
       exclusive representative of the affected employees, and affording
       it the opportunity to negotiate concerning the elimination of such
       pay.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Upon request, meet and negotiate with the National
       Association of Government Employees, Local R4-1, the employees
       exclusive collective bargaining representative, to the extent
       consonant with law and regulations, concerning elimination of the
       8 percent environmental hazardous duty pay previously paid to the
       two inspectors working in the CAPTOR MINE facility in Building 430
       and the public works employees working in Building 1816.
 
          (b) Rescind the orders given to the supervisors in the CAPTOR
       MINE facility in Building 430 and Building 1816 which effectively
       eliminated the payment of 8 percent environmental hazardous duty
       pay to the employees working in such locations.
 
          (c) Make whole employees for any loss of pay occasioned by the
       unilateral termination of 8 percent environmental hazardous duty
       pay to the two inspectors working in the CAPTOR MINE facility in
       Building 430 and the public works employees working in Building
       1816.  The amount of back pay to be determined shall be in
       accordance with the normal environmental pay formulas in effect
       prior to the termination of such pay on September 8, 1981 and
       March 22, 1982, respectively.
 
          (d) Post at the Naval Weapons Station, Yorktown, Virginia,
       copies of the attached notice marked "Appendix," on forms to be
       furnished by the Federal Labor Relations Authority.  Upon receipt
       of such forms, they shall be signed by the Shipyard Commander and
       they shall be posted for 60 consecutive days thereafter in
       conspicuous places, including all places where notice to employees
       are customarily posted.  The Shipyard Commander shall take
       reasonable steps to insure that such notices are not altered,
       defaced, or covered by any other material.
 
          (e) Notify the Federal Labor Relations Authority in writing
       within 30 days from the date of this Order as to what steps have
       been taken to comply herewith.
 
                                       BURTON S. STERNBURG
                                       Administrative Law Judge
 
    Dated:  January 28, 1983
            Washington, DC
 
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
 WE HEREBY
 NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT unilaterally terminate the 8 percent environmental
 hazardous duty pay to the two inspectors working in the CAPTOR MINE
 facility in Building 430 and the public works employees working in
 Building 1816 without first notifying National Association of Government
 Employees, Local R4-1, the exclusive representative of the affected
 employees, and affording it the opportunity to negotiate concerning the
 elimination of such pay.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce any employees in the exercise of the rights guaranteed by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL rescind the orders given to our supervisors which effectively
 eliminated the 8 percent environmental hazardous duty pay to the two
 inspectors in the CAPTOR MINE facility in Building 430 and the public
 works employees in Building 1816.
 
    WE WILL, upon request, meet and negotiate with the National
 Association of Government Employees, Local R4-1, to the extent consonant
 with law and regulations with respect to any intended change in the
 payment of 8 percent environmental hazardous duty pay to the inspectors
 in the CAPTOR MINE facility in Building 430 and the public works
 employees in Building 1816.
 
    WE WILL make whole employees for any loss of pay or benefits because
 of our unilateral determination to cease paying 8 percent environmental
 hazardous duty pay to the two inspectors working in the CAPTOR MINE
 facility in Building 430 and the public works employees working in
 Building 1816.  The amount of back pay to be determined in accordance
 with the normal environmental hazardous duty pay formulas in effect
 prior to the termination of such pay on September 8, 1981 and March 22,
 1982, respectively.
                                       (Agency or Activity)
 
    Dated:  By:  (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Federal Labor Relations Authority, Region 4, whose
 address is:  1776 Peachtree Street, NW., Suite 501 - North Wing,
 Atlanta, Georgia 30309, and whose telephone number is (404) 881-2324.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ It is not disputed, and the Authority has consistently recognized
 that the specific work situations for which an environmental
 differential is payable are left to local determination, including
 collective bargaining.  See Veterans Administration Medical Center, Fort
 Howard, 5 FLRA 250, 253 (1981).
 
 
    /2/ Paragraphs 8(a), (b), and (c) of the amended consolidated
 complaint allege in substance that Respondent termina