[ 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 conclusion of the study. Jackson also
admitted Rodriguez raised another issue which he could not recall.
Jackson's response to these concerns was:
After talking to him about the other two issues again, dealing
with the person that he wanted on the panel, and the length of the
study, again I repeated the same thing that I told him again-- No
on each one.
He then wanted me to negotiate the letter of the 8th, and I
told him that I would discuss that letter of the 8th; I would not
negotiate that with him. (Jackson, Tr. 79:14-20.)
/10/ Throughout his testimony, Bruce referred to the disposable
coveralls as "Tyveck" coveralls. Although Counsel for Respondent
pointed out that the coveralls worn by Shop 57 employees were
Kimberly-Clark brand rather than Tyveck brand, he provided no evidence
on that point. Schuster, who is an Insulator in Shop 57, explained that
the employees sometimes refer to both types of disposable coveralls as
Tyvecks.
/11/ I credit the testimony of Rodriguez and Bruce with respect to
the October 21 meeting, both as to the length of the meeting and the
subject matter discussed. I specifically discredit Jackson's testimony
that he did not recall Rodriguez making any proposals. Both Jackson and
Bond admitted that there was discussion about the safety committee. In
addition, Bond recalled Rodriguez mentioning that cloth overalls "were
the way to go" and that the disposable coveralls were unsatisfactory.