[ 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 terminated payment of the
8 percent differential in Building 430, Building 1816, and Building 28
on September 8, 1981, March 22, 1982, and March 22, 1982, respectively.
/3/ Although not necessarily controlling, it is noted that in the
past when a change in the payment of hazardous duty pay affecting a
large group of employees was considered, Respondent gave the Union
notice of, and an opportunity to bargain thereon, prior to instituting
the change.
/4/ In this connection, the mere fact that a number of supervisors
considered the work in Buildings 430 and 1816 to qualify only for low
hazard 4 percent environmental pay does not, standing alone, establish
that the past practice of paying 8 percent was a clear violation of the
existing Instruction.