17:0511(76)CA - Long Beach Naval Shipyard, Long Beach, CA and FEMT Council -- 1985 FLRAdec CA



[ v17 p511 ]
17:0511(76)CA
The decision of the Authority follows:


 17 FLRA No. 76
 
 LONG BEACH NAVAL SHIPYARD 
 LONG BEACH, CALIFORNIA 
 Respondent 
 
 and
 
 FEDERAL EMPLOYEES METAL TRADES 
 COUNCIL, AFL-CIO 
 Charging Party
 
                                            Case No. 8-CA-30037
 
                            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 the complaint, and recommending that
 it be ordered to cease and desist therefrom and take certain affirmative
 action.  Thereafter, the Respondent filed exceptions to the Judge's
 Decision and Recommended Order, and the General Counsel filed a response
 in opposition.
 
    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, except as modified
 below.
 
    The complaint alleged that the Long Beach Naval Shipyard, Long Beach,
 California (the Respondent) unilaterally implemented a change in the
 working conditions of bargaining unit employees by changing the policy
 and procedures used in connection with the use of coveralls in fibrous
 glass operations without first notifying the Federal Employees Metal
 Trades Council, AFL-CIO (the Union) and affording it an opportunity to
 bargain over the changes.
 
    In determining whether there was a unilateral change in a condition
 of employment, the Judge, relying on American Federation of Government
 Employees, Meet Graders Council, AFL-CIO and Department of Agriculture,
 Food Safety and Quality Service, Meat Grading Branch, Washington, D.C.,
 8 FLRA 118 (1982), and American Federation of Government Employees,
 AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development
 Center, Warminster, Pennsylvania, 2 FLRA 450 (1980), first concluded
 that the subject matter was negotiable in that it did not interfere with
 statutory and regulatory provisions, or protected management rights, and
 more particularly, did not interfere with the agency's right to
 determine the technology, methods, and means of performing work.  /1/
 Upon resolution of the negotiability question, the Judge considered the
 record evidence and concluded that the Respondent violated section
 7116(a)(1) and (5) of the Statute by unilaterally implementing a change
 in the employees' working conditions without first providing the Union
 with adequate notice and an opportunity to bargain on the decision to
 change the type of coveralls worn by the employees and on the impact and
 implementation of such decision prior to its effectuation.  Further, in
 view of such conclusion, the Judge, among other things, recommended a
 status quo ante remedy.
 
    The Respondent primarily disagrees with the Judge's negotiability
 determination, arguing essentially that the Judge, in finding the
 subject matter herein negotiable erred in his interpretation and
 application of the two cases cited which did not involve section
 7106(b)(1) of the Statute;  that it is mandated by certain
 Government-wide regulations to require the use of approved personal
 protective equipment for safety and health reasons;  that the subject
 employees in carrying out the agency's work are exposed to hazardous
 fibrous glass material;  and therefore that the type of protective
 clothing (disposable coveralls) required by the Respondent is an
 instrument necessary to carry out its mission and thus constitutes
 "technology" and "means of performing work" under section 7106(b)(1) of
 the Statute, negotiable only at its election.  Also, citing Article 25,
 Section 1 of the parties' contract, the Respondent contends that the
 Union, by such provision, waived its right to bargain over the
 Respondent's safety policy decisions.  /2/ Finally, the Respondent
 argues that a status quo ante remedy is unwarranted.
 
    The Authority agrees with the Judge's conclusion that the
 Respondent's substantive decision concerning the type of protective
 clothing to be worn by the employees is within the Respondent's duty to
 bargain, noting particularly that the Respondent has provided no support
 for a finding that the subject matter is outside the duty to bargain
 because it is inconsistent with Government-wide regulations under
 section 7117(a)(1) of the Statute.  /3/ See American Federation of
 Government Employees, Meat Graders Council, AFL-CIO and Department of
 Agriculture, Food Safety and Quality Service, Meat Grading Branch,
 Washington, D.C., supra (Union Proposal II).  Also, the Respondent has
 not shown that bargaining on such matters would interfere with its right
 to determine "the technology" or "means of performing work" under
 section 7106(b)(1) of the Statute.  In this regard, the Respondent has
 failed to show that the particular type of protective safety clothing
 worn by the subject employees as distinguished from the wearing of
 safety clothes, itself, is a technical method of performing work, i.e.,
 the insulation of equipment in the pursuit of the Respondent's stated
 overall mission.  Therefore, the Authority concludes that inasmuch as
 the Respondent's decision was to change the type of coveralls worn by
 the employees, it is negotiable as negotiation would not interfere with
 management's right under section 7106(b)(1) to require safety clothing
 to be worn.  Rather, such issue principally relates to matters affecting
 employees' working conditions and is within the duty to bargain.  /4/
 American Federation of State, County, and Municipal Employees, AFL-CIO,
 Local 2477 and Library of Congress, Washington, D.C. (and the case
 consolidated therewith), 7 FLRA 578 (1982) (Union Proposal XVI),
 enforced sub nom. Library of Congress v. Federal Labor Relations
 Authority, 699 F.2d 1280 (D.C. Cir. 1983).  See also American Federation
 of Government Employees, AFL-CIO, National Immigration and
 Naturalization Service Council and U.S. Department of Justice,
 Immigration and Naturalization Service, 8 FLRA 347 (1982) (Union
 Proposal 2), reversed as to other matters sub nom. U.S. Department of
 Justice v. Federal Labor Relations Authority, 709 F.2d 724 (D.C. Cir.
 1983) and National Treasury Employees Union and U.S. Customs Service,
 Region VIII, San Francisco, California, 2 FLRA 254 (1979).  Accordingly,
 the Authority concludes that the Respondent violated section 7116(a)(1)
 and (5) of the Statute by unilaterally changing the type of coveralls
 worn by the subject employees without first providing the Union with
 adequate notice and an opportunity to negotiate on the decision to do
 so.
 
    Having concluded that the Respondent's decision to change the type of
 protective clothing worn by unit employees is within its duty to
 bargain, and noting particularly that the Respondent did not provide the
 Union with adequate notice and an opportunity to bargain on such
 decision, the Authority finds that an order directing the restoration of
 cloth coveralls, including the policies and procedures in effect prior
 to the Respondent's change to disposable ones, is necessary to
 effectuate the purposes and policies of the Statute.  U.S. Customs
 Service, Region V, New Orleans, Louisiana, 9 FLRA 116 (1982).  /5/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relation Authority's
 Rules and Regulations and section 7118 of the Statute, the Authority
 hereby orders that the Long Beach Naval Shipyard, Long Beach,
 California, shall:
 
    1.  Cease and desist from:
 
    (a) Unilaterally instituting any changes in policy or procedures in
 Shop 57 involving the type of coveralls to be used in connection with
 fibrous glass operations, including those associated with the use of
 cloth coveralls, without affording the Federal Employees Metal Trades
 Council, AFL-CIO, the exclusive representative of certain of its
 employees, reasonable notice and an opportunity to negotiate concerning
 such changes.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of rights assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Rescind the memorandum dated October 13, 1982, concerning the use
 of disposable coveralls, and restore the policy and procedures in effect
 prior thereto, including those associated with the use of cloth
 coveralls.
 
    (b) Notify and, upon request, negotiate with the Federal Employees
 Metal Trades Council, AFL-CIO, the exclusive representative of certain
 of its employees, regarding any intended changes in policy or procedures
 involving the use of coveralls in connection with fibrous glass
 operations.
 
    (c) Post at the Long Beach Naval Shipyard, Long Beach, California,
 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 Commanding Officer at said activity, or a 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 insure that such Notices are not altered, defaced, or covered
 by any other material.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VIII, 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.  
 
 Issued Washington, D.C., April 15, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., 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 institute any changes in policy or procedures in Shop 57
 involving the type of coveralls to be used in connection with fibrous
 glass operations, including those associated with the use of cloth
 coveralls, without affording the Federal Employees Metal Trades Council,
 AFL-CIO, the exclusive representative of certain of our employees,
 reasonable notice and an opportunity to negotiate concerning such
 changes.  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
 rescind the memorandum dated October 13, 1982, concerning the use of
 disposable coveralls, and restore the policy and procedures in effect
 prior thereto, including those associated with the use of cloth
 coveralls.  WE WILL notify and, upon request, negotiate with the Federal
 Employees Metal Trades Council, AFL-CIO, the exclusive representative of
 certain of our employees, regarding any intended changes in policy or
 procedures involving the use of coveralls in connection with fibrous
 glass operations.
                                       (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, Region VIII, whose address is:  350 South
 Figueroa Street, 10th Floor, Los Angeles, California 90071 and whose
 telephone number is:  (213) 688-3805.
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 8-CA-30037
 
    Alfred M. Jackson
    Thomas R. Wilson
    For the Respondent
 
    Frank Rodriguez
    For the Charging Party
 
    Deborah Wagner, Esq.
    For the General Counsel
 
    Before:  FRANCIS E. DOWD, Administrative Law Judge
 
                         Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
 U.S.C. 7101 et seq.  On March 4, 1983, the Regional Director for Region
 8 of the Federal Labor Relations Authority, pursuant to a charge filed
 on November 1, 1982, and amended on February 25, 1983, by the Federal
 Employees Metal Trades Council, herein called the Union, issued a
 Complaint and Notice of Hearing alleging that the Long Beach Naval
 Shipyard, Long Beach, California, herein called Respondent or the
 Shipyard, had engaged in, and is engaging in, unfair labor practices
 within the meaning of Section 7116(a)(1) and (5) of the Federal Service
 Labor-Management Relations Statute, herein called the Statute, in that
 on or about October 14, 1982, Respondent unilaterally changed the
 working conditions for bargaining unit employees when it implemented a
 change in the policy and procedures used in connection with the use of
 coveralls in fibrous glass operations without first notifying the Union
 and affording it an opportunity to bargain over the changes.  On March
 10, 1983, Respondent filed an answer denying the allegations of the
 complaint.  In its brief, Respondent contends that it had no obligation
 to bargain about the substance of its decision because it properly
 elected not to bargain about the technology and means of performing
 work.  With respect to impact and implementation, Respondent contends
 that it did provide the Union with timely and adequate notice of its
 decision to conduct a study of the new coveralls, and that the Union's
 failure to present any specific proposals during meetings with
 Respondent constitutes a waiver of its right to bargain.  Respondent
 opposes a status quo remedy.
 
    A hearing was held in Los Angeles, California at which the parties
 were represented by counsel and afforded full opportunity to adduce
 evidence and call, examine, and cross-examine witnesses and argue
 orally.  Briefs filed by Respondent and the General Counsel have been
 duly considered.  /6/
 
    Upon consideration of the entire record in this case, including my
 evaluation of the testimony and evidence presented at the hearing, and
 from my observation of the witnesses and their demeanor, I make the
 following findings of fact, conclusions of law, and recommended order.
 
                  Findings of Fact and Conclusions of Law
 
    Insulators are bargaining unit employees in Shop 57 of Respondent's
 facility.  Their work is primarily involved with insulating various
 types of equipment such as pipes, vents, boilers and high pressure
 vessels.  Most of the Insulators work with fibrous glass every day.  To
 protect them from the fibrous glass, Insulators were given safety
 equipment, including coveralls, hood, and gloves.  In approximately
 April 1980, the Respondent came to the conclusion that the safety
 equipment provided to employees practically eliminated hazards of
 working with fibrous glass, and therefore under Federal regulations the
 employees working with fibrous glass would no longer receive
 differential pay.  The Union challenged this conclusion, and the matter
 eventually went to hearing.  In September 1982, the arbitrator rendered
 his decision, finding that the hazards had not been eliminated for
 employees performing work on board ships (Jt. Exh. No. 1).  In what the
 General Counsel correctly characterized as "clear dicta unnecessary to
 his findings," the arbitrator then went on to make the following
 comment:
 
          It is my considered opinion that the Employer may initiate
       appropriate studies to gather information over a reasonable period
       of time (six months to a year or more) to monitor the frequency
       and severity of skin irritation due to fibrous glass exposure and
       if such a study does in fact reveal that employees are not
       suffering significant distress while using the current protective
       devices, the Employer may consider discontinuing the differential
       on board ship (Jt. Exh. No. 1, p. 14).  /7/
 
    About 1 month later, by memorandum dated October 8 (G.C. Exh. No. 2),
 it was announced that pursuant to the arbitrator's recommendation,
 Respondent was initiating a study to gather information concerning
 fibrous glass exposure.  The memorandum announced that effective October
 18, 1982, all personnel working with fibrous glass would wear disposable
 coveralls.  Prior to this time, the employees had worn coveralls made of
 cotton cloth.  In order to monitor whether the disposable coveralls
 resulted in fewer safety problems than the cloth coveralls, supervisors
 were directed to maintain a log of skin irritations, rips, tears, or
 melting of coveralls.  The study of the safety of the disposable
 coveralls was scheduled to last 90 days.  The memorandum was signed by
 William Jackson, Acting Head of Labor Relations, and was distributed to
 Code 106 (Safety Officer), Code 700 (Medical), Code 970 (Service Group),
 Code 907 (Shop 57), Code 930 (Mechanical Group) and Code 964 (Service
 Group).  The memorandum did not show any distribution to the Union.  The
 memorandum contained no language to the effect that the 90-day study was
 tentative or in any way subject to changes prior to the effective date
 of its implementation on October 18.  Indeed, the memo instructed Code
 700 (Medical) to provide the Shop involved and Code 106 (Safety) with
 copies of all referrals indicating skin irritation as a result of
 fibrous glass.  Finally, the memo stated that on January 7, 1983, the
 study group would meet at 1300 in the Building 142 conference room to
 analyze the data obtained in the study.
 
    From the evidence it is not clear whether the memo was being
 distributed directly to employees or whether it was an internal memo to
 supervising and management officials heading up these departments.
 However, it seems to me that the memo had all the earmarks of a final
 decision which already had been formulated and was now in the first
 stage of implementation, even though the so-called effective date was
 stated to be October 18-- 10 days later.
 
    There is a dispute as to when the Union actually received the October
 8 memorandum.  Jackson testified that he hand-delivered it to Rodriguez
 the afternoon of Friday, October 8.  If this were so, I don't understand
 why Jackson's self-serving memorandum "for the record" (G.C. Exh. No. 9)
 states that the purpose of his October 12 visit with Rodriguez was "to
 hand deliver (sic) a copy of my memo dtd 8 October 1983 . . ." Nor does
 the memorandum for the record state that the October 12 visit was
 requested by Rodriguez, as testified to by Jackson at the hearing.  On
 the other hand, Rodriguez testified that he first received the October 8
 memo from Jackson on October 12 or 13.  Although Charles Schuster
 testified he saw Jackson give a piece of paper to Rodriguez the week
 after October 8, this testimony is not inconsistent with Jackson who
 said he gave the October 8 memo to Rodriguez on each visit.  While
 Gerald Davis' testimony was quite credible it only is corroborative of
 Jackson's if Davis was correct about the meeting being on October 12
 (rather than, for example on October 15).  Because I found certain other
 aspects of Jackson's testimony not believable, and based upon my
 observation of his demeanor, I am inclined to resolve a close question
 against him and find that the Union received the October 8 memo late the
 afternoon of October 12.
 
    In any event, I do not believe resolution of this issue is crucial.
 Assuming, arguendo, that the October 8 memorandum constituted timely and
 adequate notice of a proposed change in conditions of employment, I find
 that the Union promptly replied in timely manner with an oral bargaining
 request on October 12 and a written one on October 13 (G.C. Exh. No. 3).
  That the Union requested bargaining is quite clear.  Thus, Rodriguez'
 testimony is corroborated by Charles Schuster, Chief Steward and
 Business Agent for the International Association of Heat and Frost and
 Asbestos Workers.  Also, Respondent's own witness, Gerald Davis,
 Carpenter's Local 2431 President as of October 12, who became a Labor
 Relations Specialist on October 25, testified that he heard Rodriguez
 request Jackson to negotiate extending the study to 6 months.
 
    It is also quite clear that Jackson categorically refused to
 negotiate the 90-day study and based his refusal on the arbitrator's
 decision.  This conclusion is based upon the credited testimony of
 Rodriguez as corroborated by Schuster.  Because of the Union's formal
 written request to bargain, Jackson called Rodriguez to set up a meeting
 to discuss the matter.  Rodriguez asked that the meeting be delayed
 until the Union's attorney could attend, and Jackson agreed.  The
 meeting was set for October 21, 1982.
 
    In the meantime, unbeknownst to the Union, the Superintendent of Shop
 57, Larry Mauser, distributed a notice dated October 13 to Shop 67
 Insulators, informing them that effective October 18, 1982, employees
 working with fibrous glass would be issued disposable coveralls rather
 than cloth coveralls.  (See G.C. Exh. No. 4).  A copy of this letter was
 sent to the Union, but due to the irregularities of the internal mail
 system, did not arrive for 3 or 4 days.  Obviously, this was the second
 stage of implementing the October 8 memo, and constituted an
 announcement to employees of a change in conditions of employment.  The
 copy being sent to the Union was nothing more than an information copy
 which the Union received after the employees had been told.  /8/
 
    Separate and apart from Respondent's policy decision to require
 employees to wear disposable coveralls, Respondent also changed its
 procedures used in connection with the use of coveralls.  A summary of
 these changes are set forth in Jt. Exh. No. 3.  Thus, during the second
 week of October, in staff meetings held with employees of Shop 57,
 employees were told that since they were going to be issued disposable
 coveralls on the pier, there would be no need for them to use the locker
 rooms in Building 132 to store their clothes and tools.  Instead, the
 employees would be issued footlocker-type tool boxes in which to store
 their clothes and tools.  These tool boxes would be kept out on the
 pier.
 
    Prior to October 1982, Shop 57 employees were allowed to use the
 locker rooms in the pad shop in Building 132.  This building is located
 in the shipyard, a short distance away from the piers.  Inside the pad
 shop were clean and dirty locker rooms.  In the morning, Shop 57
 employees would enter the clean locker room, store their street clothes
 in their lockers, put on the blue cotton overalls, and then go through
 the shower and restroom area through another door and into the dirty
 locker room.  The employees would then pick up their tools from the
 lockers on the dirty side.  The employees were each given individual
 locks to put on their lockers.  At the end of the day, this process was
 reversed.  The employees would enter the dirty locker room, take off the
 coveralls and seal them in plastic bags, and store their work tools in
 their locker.  The old coveralls were exchanged for a clean pair each
 day.  The employees would then go through the showers and restroom into
 the clean locker room where they would collect their personal belongings
 and then leave.  The employees were given 10 to 15 minutes to work time,
 on the clock, for this cleanup procedure.
 
    After October 18, 1982, these lockers were taken away from the
 employees.  The employees now report directly to the worksite, on the
 pier, instead of the production shop.  Because of this, the employees
 are released from the worksite 5 minutes later at lunch time and 10-15
 minutes later at the end of the day, although they still punch in and
 out at the same time.  Thus, they are given less time for cleanup and
 changing clothes.  Respondent admits that the Union was given no prior
 notice of these procedural changes.
 
    In the past, management had considered making some of these same
 changes in the procedures for Shop 57 employees to report to and from
 the worksite, and in the procedures for issuance of coveralls.  On June
 17, 1981, Judy Eveleth, who was then the Head of Labor Relations
 submitted proposals (G.C. Exh. No. 5) on these subjects to the Union.
 In a letter dated June 18, 1981 (G.C. Exh. No. 6), the Union requested
 negotiations.  After several meetings were held, Respondent withdrew the
 proposed change and declared it would resubmit the proposals when
 negotiations for a new collective-bargaining agreement commenced.
 
    On October 21, 1982, 3 days after the implementation of the change
 from cloth to disposable coveralls and the new procedures surrounding
 that change, the Union and the Respondent met to negotiate the October
 8, 1982 memorandum.  Present at the meeting for the Union were Rodriguez
 and Lindsay Bruce, a union steward who accompanied Rodriguez primarily
 to take notes.  The Respondent was represented by Gilbert C. Bond, the
 Director of Industrial Relations, and Jackson, who, as mentioned
 previously, was the Acting Head of the Employee Relations Division of
 Industrial Relations.  The Union asked to negotiate the change from
 cloth to disposable coveralls and the study announced in the memorandum
 dated October 8, 1982, but it is undisputed that Bond refused to
 negotiate it, claiming they'd been told by the arbitrator to do it.  /9/
 The Union went through each paragraph of the October 8, 1982, memorandum
 (G.C. Exh. 2) and asked Respondent to explain it.  The Union raised some
 safety problems, questioning the use of disposable coveralls in areas
 where hot work, such as welding, burning or working with hot pipes, was
 taking place.  The Union's position was that disposable coveralls should
 not be worn any time there was hot work going on in the same room or
 compartment, and the Respondent agreed that it should depend on the
 distance between the hot work and the employees in disposable coveralls,
 not on whether it was in the same room or compartment.  /10/ Bond
 informed the Union the only change they were implementing was a change
 from cloth to disposable coveralls and they would not negotiate it.
 However, to placate the Union on the safety issue, the Respondent
 offered to set up a special safety committee, consisting of the
 Production Superintendent for the mechanical group, the head of Safety,
 the Director of Industrial Relations, and the President of the Union.
 This special safety committee could look into safety aspects of the
 entire Shipyard.  The Union agreed to participate on such a committee.
 
    The October 21, 1982, meeting ended with no further agreements
 between the parties.  /11/ There have been no meetings regarding the
 change from cloth to disposable coveralls since October 21, 1982.  The
 special committee on safety has never been established in spite of the
 apparent agreement made at the October 21, 1982, meeting.
 
                                Discussion
 
    It is well settled that an agency may not make changes in conditions
 of employment without first properly notifying an exclusive
 representative and affording it an opportunity to negotiate.  Norfolk
 Naval Shipyard, Portsmouth, Virginia, 6 FLRA No. 22, 6 FLRA 74 (1981);
 Scott Air Force Base, Illinois, 5 FLRA No. 2 (1981).  In find that
 Respondent effected such a change on and after October 18, 1982 by
 unilaterally requiring employees in Shop 57 to wear disposable paper
 coveralls rather than the cloth overalls employees had been wearing for
 years.  Moreover, the Respondent made this change in the face of a
 proper request to negotiate by the Union, on October 13, 1982, and
 Respondent, through Bill Jackson and Gilbert Bond, clearly refused to
 negotiate the type of coveralls to be worn by unit employees.
 
    Apart from the unilateral change issue, the instant case also
 presents the issue of whether the type of clothing to be worn by
 Insulators is negotiable.  In American Federation of Government
 Employees, Meat Graders Council, AFL-CIO, and Department of Agriculture,
 Food Safety and Quality Service, Meat Grading Branch, Washington, D.C.,
 8 FLRA No. 25, 8 FLRA 118 (1982), the Authority found a union proposal
 that the employer furnish protective clothing such as a cooler coat and
 gloves to the employees was negotiable.  The Authority held that a
 proposal to furnish protective clothing did not interfere with statutory
 and regulatory provisions, or protected management rights.  Respondent
 contends that the Authority's decision is limited to an agency's
 obligation "to provide" protective clothing but cannot be extended to
 encompass "the kind" of protective clothing.  Contrary to Respondent's
 contention it seems more logical that the right of a union to negotiate
 whether protective clothing be furnished to employees, also encompasses
 the right to negotiate the type of protective clothing;  i.e. whether it
 be made of cloth, paper, asbestos, lead, or whatever.  It seems to me,
 for example, that a union has a vital interest in ensuring that
 protective clothing be flame-resistant in areas where employees are
 working with blowtorches.  In my opinion, giving the union the right to
 bargain on what those coveralls will be made of, does not interfere with
 the agency's right to determine the technology, methods and means of
 performing work.  The Insulators will continue to perform whatever work
 they are assigned, with the tools they are given to do that job.  The
 provision of protective coveralls, whether they be made of plastic,
 paper, or cotton cloth has nothing to do with the technology of
 performing work.  See also Department of the Navy, Naval Air Development
 Center, Warminster, Pennsylvania, 2 FLRA No. 62, 2 FLRA 450 (1980).
 
    As previously noted, the unilateral change complained of here is not
 confined to Respondent's decision to use a different type of coverall in
 a 90-day study.  It is abundantly clear that Respondent also instituted
 a number of related changes in working conditions (see Jt. Exh. No. 3)
 such as eliminating the locker rooms, reducing the amount of cleanup
 time, and requiring employees to report to their worksite instead of to
 the production shop.  As noted, supra, an agency may not make changes
 which affect conditions of employment without first affording the union
 an opportunity to bargain.  Internal Revenue Service, Los Angeles
 District, 10 FLRA No. 107, 10 FLRA 653 (1982);  Norfolk Naval Shipyard,
 Portsmouth, Virginia, supra.  Here, the employees in Shop 57 learned of
 the changes before the Union did.  There is no question but what these
 changes had a substantial impact of an adverse nature by the affected
 employees.
 
    In its own defense, Respondent offers a number of arguments, each of
 which is hereby rejected.  First, the October 8 memorandum (delivered on
 October 12) was not adequate notice.  It barely gave the Union an
 adequate amount of time in which to timely request bargaining, no less
 prepare any bargaining proposals, except those which would come to mind,
 off the top of one's head, so to speak.  Certainly, it did not provide
 adequate time to also complete the bargaining prior to October 18.
 Therefore, once the Union requested bargaining-- which it formally did
 on October 13-- the Respondent was obliged to postpone the October 18
 implementation date, absent an emergency situation justifying no
 postponement. There clearly was no emergency requiring the 90-day study
 to be put into effect on October 18.  While it may have simplified
 matters had the Union formally requested a postponement, I do not
 believe it was required in the circumstances of this case, particularly
 in view of Respondent's agreement to meet on October 21.  I believe the
 Union had a right to assume that its request to negotiate served as an
 implicit request to postpone the implementation date until bargaining
 about the proposed changes were completed.
 
    Second, the Union's request to bargain on October 12 and 13 only went
 to the proposed changes about which it had been informed.  As of then,
 the Union only knew of a 90-day study utilizing disposable instead of
 cloth coveralls.  It did not know about, and therefore couldn't request
 bargaining about, all the significant changes in procedures set forth in
 Joint Exhibit No. 3.  Clearly, the Union did not have adequate notice of
 these changes.
 
    Third, contrary to Respondent's contention, I do not find any
 evidence that Respondent and Union were involved in any negotiations
 prior to October 21.  The only purpose served by the brief encounters on
 October 12 and 15 was for the Union to orally make some proposals and to
 set a date for formal negotiations.  In this regard, Respondent argues
 that the Union's failure to make proposals prior to the announced
 implementation date gave the Activity the right to proceed with
 implementation.  While this may be a proper subject for ground rules
 negotiations, nothing in the Statute requires the submission of
 proposals prior to a face-to-face meeting of the parties.  Respondent
 admits there is no past practice of submitting proposals prior to
 meeting at the Shipyard.  Respondent could have submitted such a
 proposal if it wished to negotiate over ground rules, but it may not
 impose such a requirement on the Union after the fact.  In any case, the
 Union did make at least some proposals.  There was evidence that the
 Union has orally proposed increasing the length of the study, including
 a union representative on the committee which would monitor the study,
 and limiting the use of disposable coveralls where welding or other "hot
 work" is taking place.  Although some of the Union's proposals may not
 be negotiable, Respondent must give the Union an opportunity to revise
 its proposals so as to make them negotiable if it asserts they are not
 negotiable and must bargain with the Union on those proposals which are
 negotiable.  The Adjutant General's Office, Puerto Rico Air National
 Guard, 3 FLRA No. 55 (1980), 3 FLRA 342.  In any event, Respondent is in
 no position to complain about the nature and extent of the Union's
 proposals.  It is well settled that management is required to give the
 union sufficient notice of an intended change to provide the Union with
 enough time to offer proposals and exchange views in respect thereto.
 Where the union does not have sufficient time to prepare proposals, the
 Activity has violated the Statute by failing to provide sufficient
 notice.  San Antonio Air Logistics Center (AFLC), Kelly Air Force Base,
 Texas, 5 FLRA No. 22 (1981).  In conclusion, I find that Respondent
 violated Section 7116(a)(1) and (5) by unilaterally implementing a
 change in working conditions without first providing the Union with
 adequate notice and an opportunity to bargain over the decision and its
 impact and implementation, prior to implementation of the decision.
 Here, Respondent implemented the changes prior to completion of
 negotiations and prior to impasse.  Department of the Treasury, United
 States Customs Service, Region VIII, San Francisco, California, 9 FLRA
 No. 68, 9 FLRA 606 (1982).
 
                                  REMEDY
 
    When an employer fails to bargain concerning a change in conditions
 of employment which is substantively negotiable, the Authority has held
 that a status quo ante remedy is required.  "Such conclusion is
 supported by the literal language and the legislative history of the
 Statute and is necessary in order to avoid rendering meaningless the
 mutual obligation under the Statute to negotiate concerning changes in
 conditions of employment." U.S. Customs Service, Region V, New Orleans,
 Louisiana, 9 FLRA No. 15, at p. 119 (1982).  The changes in working
 conditions that took place in the case at hand include both the change
 from cloth to disposable coveralls, and the changes in the procedures
 incident to the issuance of coveralls and reporting and departing from
 the worksite.  This encompasses a number of different factors.  For
 example, the Shop 57 employees now report directly to their worksite
 instead of to the Production Shop.  Timecards are distributed to
 employees on the pier next to the worksite, instead of in the Production
 Shop.  The employees must dispose of their coveralls and clean up in the
 restrooms located on the piers instead of being allowed time for cleanup
 purposes in the locker rooms in the Production Shop.  This last
 mentioned change led to a decrease in the amount of cleanup time
 provided to the employees as the Respondent unilaterally determined that
 the employees did not need as much time to clean up as they had formerly
 required.  All of these changes are substantively negotiable.
 Therefore, the General Counsel argues that a status quo ante remedy is
 required to effectuate the purposes and policies of the Statute.
 
    In Federal Correctional Institute, 8 FLRA No. 111 (1982), at p. 606,
 the Authority listed five factors which must be considered in
 determining whether a status quo ante remedy is appropriate in a case
 where the employer is obligated to bargain on the impact and
 implementation of its decision.  These factors are:
 
          (1) Whether, and when, notice was given to the union by the
       agency concerning the action or change decided upon;
 
          (2) Whether, and when, the union requested bargaining on the
       procedures to be observed by the agency in implementing such
       action or change and/or concerning appropriate arrangements for
       employees adversely affected by such action or change;
 
          (3) The willfulness of the agency's conduct in failing to
       discharge its bargaining obligations under the Statute;
 
          (4) The nature and extent of the impact experienced by
       adversely affected employees;  and
 
          (5) Whether, and to what degree, a status quo ante remedy would
       disrupt or impair the efficiency and effectiveness of the agency's
       operations.
 
 In the present case, application of these factors leads me to the
 conclusion that a status quo ante remedy must be imposed.  Applying the
 factors to the case at hand, (1) the Union was provided inadequate
 notice of the change from cloth to disposable coveralls and was provided
 no notice at all of any other changes which were implemented in
 connection with the change from cloth to disposable coveralls.  (2) The
 Union almost immediately requested to negotiate upon this change.  (3)
 The evidence strongly suggests that the Agency's failure to bargain was
 deliberate and intentional.  To begin with, the October 12 notice to the
 Union appeared to be an afterthought, since copies of the memo had
 already been sent to many departments and Mauser's notice to Shop 57
 employees was dated October 13.  Further, the Respondent failed or
 refused to provide the Union with any notice of the attendant procedural
 changes.  The fact that the agency had proposed some of these same
 changes the previous year, and had subsequently withdrawn the proposal,
 suggests that the failure to notify the Union in this instance may have
 been intentional.  The agency apparently hoped that it could avoid the
 inconvenience of fulfilling its bargaining obligations by simply
 implementing the change and accepting the consequences.  (4) Taken
 together, the various changes in procedures, as well as the change from
 cloth to disposable coveralls had a substantial adverse effect on the
 employees.  In addition to ripping or tearing, the disposable coveralls
 can burn or melt if they come into contact with flame or a sufficiently
 hot surface.  They also cause heat stress for the employees that the
 cloth coveralls do not.  In addition, the changes in procedures have
 eliminated the private lockers that were formerly available to the
 employees and reduced the amount of time, as well as the facilities,
 that are available for clean up.  Thus, the changes had a significant
 and substantial adverse impact on Shop 57 employees.  (5) There is no
 evidence that a return to status quo ante would seriously disrupt or
 impair the efficiency of the agency's operation.  The 90-day study began
 on October 18 and by the time of the hearing on April 21, 1983 should
 have been completed.  In any event, whether completed or not, those
 facts were in the Respondent's possession as of the hearing date but
 Respondent provided no evidence that reverting back to cloth coveralls
 would cause any difficulties for the Respondent.  Allowing the employees
 to use the locker rooms, be issued their timecards and coveralls at the
 Pad Shop would not seriously disrupt the mission of the Shipyard.  Taken
 as a whole, it is clear that a return to the status quo ante would not
 cause a major disruption in Government operations in this case.
 
    Having found that Respondent has violated Section 7116(a)(1) and (5)
 by the conduct described above, I recommend that the Authority issue the
 following:
 
                                   ORDER
 
    Pursuant to Section 7118(a)(7)(A) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. Section 7118(a)(7)(A), and
 Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R. Section
 2423.29(b)(1), the Authority hereby ordered that the Long Beach Naval
 Shipyard, Long Beach, California, shall:
 
    1.  Cease and desist from:
 
          (a) Unilaterally instituting changes in policy or procedures in
       Shop 57 involving the type of coveralls used in connection with
       fibrous glass operations and involving the procedures associated
       with the use of cloth coveralls without affording the Federal
       Employees Metal Trades Council, the exclusive representative of
       certain of our employees, hereinafter called FEMTC, reasonable
       notice and opportunity to negotiate concerning such policy and
       procedural changes.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing any employee in the exercise of the
       rights guaranteed by the Federal Service Labor-Management
       Relations Statute.
 
    2.  Take the following affirmative action designed and found
 necessary to effectuate the policies of the Statute:
 
          (a) Rescind the memorandum dated October 13, 1982, concerning
       the use of disposable coveralls, and restore the policy and
       procedures in effect prior thereto including the use of Shop 57
       lockers and shower facilities on duty time, and the use of cloth
       coveralls.
 
          (b) Notify and, upon request, negotiate with FEMTC regarding
       any intended changes in policy or procedures involving the use of
       coveralls in connection with fibrous glass operations.
 
          (c) Post at the Long Beach Naval Shipyard, Long Beach,
       California, 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 Commanding Officer at said
       activity and shall be posted and maintained for 60 consecutive
       days thereafter, in conspicuous places, including all bulletin
       boards and other places where notices are customarily posted.
       Reasonable steps shall be taken by the Commander to ensure that
       such notices are not altered, defaced, or covered by any other
       material.
 
          (d) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region 8, 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.
 
                                       FRANCIS E. DOWD
                                       Administrative Law Judge
 
 Dated:  September 8, 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 UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT institute changes in policy or procedures in Shop 57
 involving the type of coveralls used in connection with fibrous glass
 operations and involving the procedures associated with the use of cloth
 coveralls without affording the Federal Employees Metal Trades ,
 Council, the exclusive representative of certain of our employees,
 hereinafter called FEMTC, reasonable notice and opportunity to negotiate
 concerning such policy and procedural changes.  WE WILL rescind the
 memorandum dated October 13, 1982, concerning the use of disposable
 coveralls, and restore the policy and procedures in effect prior thereto
 including the use of Shop 57 lockers and shower facilities on duty time,
 and the use of cloth coveralls.  WE WILL notify and, upon request,
 negotiate with FEMTC regarding any intended changes in policy or
 procedures involving the use of coveralls in connection with fibrous
 glass operations.  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.
                                       (Agency or Activity)
 
 Dated:  . . .  By:  (Signature) This Notice must remain posted for sixty
 (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 of
 the Federal Labor Relations Authority, Region VIII, whose address is:
 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071 and
 whose telephone number is (213) 688-3805.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7106(b)(1) of the Statute provides:
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating--
 
          (1) at the election of the agency, on the numbers, types, and
       grades of employees or positions assigned to any organizational
       subdivision, work project, or tour of duty, or on the technology,
       methods, and means of performing work(.)
 
 
    /2/ Article 25, Section 1 provides:
 
          The Employer shall provide and maintain safe working conditions
       for all employees working under the provisions of this Agreement
       and directives of higher authority.
 
                                .  .  .  .
 
          The Council will be notified of proposed changes to Shipyard
       safety policies and provided opportunity to submit recommendations
       and meet and confer on the impact of intended policy changes.
 
 
    /3/ Section 7117(a)(1) of the Statute provides as follows:
 
          Sec. 7117.  Duty to bargain in good faith;  compelling need;
       duty to consult
 
          (a)(1) Subject to paragraph (2) of this subsection, the duty to
       bargain in good faith shall, to the extent not inconsistent with
       any Federal law or any Government-wide rule or regulation, extend
       to matters which are the subject of any rule or regulation only if
       the rule or regulation is not a Government-wide rule or
       regulation.
 
 
    /4/ With respect to the Respondent's contention that the Union waived
 its right to negotiate on the subject matter by Article 25, Section 1 of
 the parties' contract, the Authority has held that a waiver will be
 found only if it can be shown that the exclusive representative clearly
 and unmistakably waived its right to negotiate.  Library of Congress, 9
 FLRA 421 (1982);  Department of the Air Force, Scott Air Force Base,
 Illinois, 5 FLRA 9 (1981).  Here, neither the record nor the language of
 the agreement shows that the Union clearly and unmistakably waived its
 right to negotiate as asserted by the Respondent.
 
 
    /5/ As the Authority has concluded that the Respondent's decision to
 change the type of protective clothing worn by unit employees is itself
 within the duty to bargain, we find it unnecessary to reach and do not
 rely upon the Judge's application of the criteria in Federal
 Correctional Institution, 8 FLRA 604 (1982), in granting a status quo
 ante remedy herein.
 
 
    /6/ To the extent possible, I have adopted the proposed findings and
 conclusions submitted by the General Counsel.
 
 
    /7/ The instant case does not involve differential pay.  At the
 outset, it should be noted that the arbitrator's award did not require
 the agency to set up a study to monitor the effectiveness of safety
 equipment in eliminating skin irritation due to fibrous glass exposure.
 Nor did the arbitrator's award specify what form the study should take
 or suggest that the Shipyard need not negotiate with the Union regarding
 such a study.  The General Counsel contends that absent a clear and
 unmistakable waiver of the Union's statutory right to bargain regarding
 such a study, the Respondent is obligated to negotiate prior to
 implementation.
 
 
    /8/ The record does not establish whether Jackson, when he visited
 Rodriguez on October 12 to deliver the October 8 memo, already knew that
 Mauser was about to issue his memo to Shop 57 Insulators the following
 day.  If so, this could have prompted Jackson's personal hand-delivery
 of the October 8 memo to Rodriguez in order to cure the earlier
 "oversight" in not sending the Union a copy.
 
 
    /9/ Bond's version of this meeting was that he was present for only
 several minutes but he never denied telling Rodriguez that he would not
 negotiate over the change in type of coveralls.  As stated previously,
 Jackson testified that Rodriguez made no proposals on behalf of the
 Union.  I do not accept this testimony, however, as it is inconsistent
 with other evidence in the record, including Jackson's own testimony.
 Thus, Jackson also testified that on October 12, 1983, Rodriguez
 proposed that a union representative be included on the committee that
 would monitor and evaluate the use of disposable rather than cloth
 coveralls, and also that the length of the study be increased.  He
 further testified that on the 15th of October, Rodriguez informed
 Jackson that he wanted to discuss the NAVSEA directive which Respondent
 claimed gave them the authority to make the change, the names of the
 individuals on the committee and the agenda of the meeting the committee
 was supposed to have at the conclusio