18:0902(105)CA - Navy, Philadelphia Naval Shipyard and Philadelphia MTC -- 1985 FLRAdec CA



[ v18 p902 ]
18:0902(105)CA
The decision of the Authority follows:


 18 FLRA No. 105
 
 DEPARTMENT OF THE NAVY 
 PHILADELPHIA NAVAL SHIPYARD 
 Respondent 
 
 and
 
 PHILADELPHIA METAL TRADES 
 COUNCIL, AFL-CIO 
 Charging Party
 
                                            Case No. 2-CA-20245
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices as alleged in the complaint, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  The Judge further found that the Respondent
 had not engaged in certain other alleged unfair labor practices and
 recommended dismissal of the complaint with respect to them.
 Thereafter, the Respondent and the General Counsel filed exceptions to
 the Judge's Decision.
 
    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 and conclusions, and his recommended Order as modified
 below.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that the Department of the Navy, Philadelphia
 Naval Shipyard shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to provide an opportunity for the Philadelphia Metal
 Trades Council, AFL-CIO, the exclusive bargaining representative of
 certain of its employees, to bargain with respect to procedures and
 appropriate arrangements for employees adversely affected by a legally
 required change in the practice of paying employees environmental
 differential pay.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request by the Philadelphia Metal Trades Council, AFL-CIO,
 the exclusive bargaining representative of certain of its employees,
 bargain with respect to procedures and appropriate arrangements for
 employees adversely affected by a legally required change in the
 practice of paying employees environmental differential pay for
 performing snow removal work.
 
    (b) Post at its facilities at Philadelphia, Pennsylvania, 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 Commander, or a designee, and shall be posted and maintained for
 60 consecutive days thereafter in conspicuous places, including all
 bulletin boards and places where notices to employees are customarily
 posted.  Reasonable steps shall be taken to insure that said Notices are
 not altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Federal Labor Relations
 Authority's Rules and Regulations, notify the Regional Director, Region
 II, Federal Labor Relations Authority, in writing, within 30 days from
 the date of this Order, as to what steps have been taken to comply
 herewith.
 
    IT IS FURTHER ORDERED that the remaining allegations of the complaint
 in Case No. 2-CA-20245 be, and they hereby are, dismissed.  
 
 Issued, Washington, D.C., June 28, 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 refuse to provide an opportunity for the Philadelphia
 Metal Trades Council, AFL-CIO, the exclusive representative of certain
 of our employees, to bargain with respect to the impact and
 implementation of a legally required change in the practice of paying
 employees environmental differential pay.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request by the Philadelphia Metal Trades Council,
 AFL-CIO, the exclusive representative of certain of our employees,
 bargain with respect to the impact and implementation of a legally
 required change in the practice of paying employees environmental
 differential pay for performing snow removal work.
                                       (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, Region II, Federal Labor Relations Authority, whose address
 is:  26 Federal Plaza, Room 24-102, New York, N.Y. 10278, and whose
 telephone number is:  (212) 264-4934.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Geoffrey D. Spinks
    For the Respondent
 
    Robert J. Fabii, Esq.
    James E. Petrucci, Esq.
    For the General Counsel
 
    Before:  WILLIAM NAIMARK, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to a Complaint and Notice of Hearing issued on September 27,
 1982 by the Acting Regional Director for the Federal Labor Relations
 Authority, New York, N.Y., a hearing was held before the undersigned at
 Philadelphia, Pennsylvania on January 26, 1983.
 
    This case arose under the Federal Service Labor-Management Relations
 Statute (herein called the Statute).  It is based on a charge filed on
 February 8, 1982 by the Philadelphia Metal Trades Council, AFL-CIO
 (herein called the Union) against the Department of the Navy,
 Philadelphia Naval Shipyard (herein called Respondent or Shipyard).
 
    The complaint alleged, in substance, that on or about December 7,
 1981, Respondent unilaterally implemented a change in Instruction
 12531.8A wherein it eliminated environmental differential pay to unit
 employees for snow removal.  Further, it alleged that the change was
 effected without bargaining with the Union re the decision, its impact
 and implementation;  and that certain employees were denied such
 differential pay for snow removal on several dates following December 7,
 1982-- all in violation of Section 7116(a)(1) and (5) of the Statute.
 
    In its answer, dated October 13, 1982, Respondent denied the
 aforesaid allegations as well as the commission of any unfair labor
 practices.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed with the
 undersigned which have been duly considered.
 
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    1.  At all times material herein the Union has been, and still is,
 the exclusive bargaining representative of all non-supervisory ungraded
 employees of the Philadelphia Naval Shipyard, excluding ungraded
 employees in units where other labor organizations have been granted
 exclusive recognition.
 
    2.  Both Union and Respondent were parties to a collective bargaining
 agreement covering the employees in the aforesaid unit.  The said
 agreement was entered into on January 18, 1974, and by its terms was
 effective for a 2-year period from February 8, 1974.  The agreement
 provides for its automatic renewal for 1 year if the requisite notice is
 not given to negotiate a new agreement.  /1/
 
    3.  The aforesaid agreement contained, inter alia, the following
 provision:
 
                                "Article XI
 
                        ENVIRONMENTAL DIFFERENTIALS
 
          Section 1-- An environmental differential will be paid to an
       employee in the Unit who is exposed to a hazard, physical
       hardship, or working condition which is listed under the
       categories in the schedule of environmental differential in
       accordance with applicable regulations, the categories for which
       environmental differential will be paid is;
 
                                .  .  .  .
 
          "Cold Work (4 Percent)
 
          Working in cold storage or other climate controlled areas where
       the employee is subjected to temperature at or below freezing (32
       degrees Fahrenheit)."
 
    4.  Regulations pertaining to Respondent's wage grade employees are
 issued in the form of Instructions.  PHILANAVSHIPYDINST 12531.8A is a
 Regulation/Instruction dated January 25, 1980 and provides, inter alia,
 as follows:
 
          "III Category:  Cold Work
 
          A. Differential Rate:  4 Percent
 
          B.  Pay Code:  66
 
          C. Statement of General Conditions
 
          "Working in cold storage or other climate-controlled areas
       where the employee is subjected to temperature at or below
       freezing (32 degrees Fahrenheit) where such exposure is not
       practically eliminated by mechanical equipment or protection
       devices being used.
 
          D.  Work Situations
 
          PUBLIC WORKS GROUP
 
          1.  Operating mechanized snow removal or loading equipment
       which is not fitted with a protective operation cab, when the
       temperature is 32 degrees Fahrenheit or below and it is snowing or
       sleeting, in order to keep piers, streets or other areas clear for
       movement of pedestrian or vehicular traffic.  Regardless of
       clothing, portions of face and hands are exposed to elements and
       body is subject to unusual chilling and other discomfort."
 
    5.  Prior to November 6, 1981 Dominic Casciatto, head of the
 Respondent's Wage and Classification Division, discussed with Edward J.
 DiGiovanni, Respondent's Labor Relations Specialist, a request received
 for the authorization of payment of cold pay to a particular work
 situation in another department.  The request was made in view of the
 language in PHILANAVSHIPYDINST 12531.8A dealing with PUBLIC WORKS
 GROUP,
 supra, which dealt with snow removal operation.  Casciatto explained
 that the category criteria under "cold work" was not met by the
 situation embraced within the request, i.e. snow removal did not involve
 work in "cold storage or other climate controlled areas." The head of
 the Wage and Classification Division advised DiGiovanni that the
 authorization for cold pay for snow removal should be deleted from the
 Shipyard regulation.  /2/
 
    6.  Thereafter the Wage and Classification Division prepared a
 proposal to abolish cold pay for snow removal, and it was forwarded to
 the labor relations office.  DiGiovanni took steps to notify the Union
 and other labor organizations representing Respondent's employees.  He
 forwarded the proposal on November 6, 1981 for review to the aforesaid
 labor organizations, including the Union herein, together with a
 Proposed Directive.  The proposal called for eliminating from the
 Shipyard Instruction the payment of cold pay as set forth in paragraph 4
 herein.
 
    7.  The aforesaid proposal was accompanied by a Proposed Directive,
 referred to as a cover sheet.  It stated that the named labor
 organizations, including the Union herein, should submit their comments
 and/or approval no later than November 23, 1981.  It provided space for
 "Remarks" on the form if the union desired to utilize the cover sheet
 and return same to management.
 
    8.  During negotiations for a new agreement, and on or about November
 15, 1981, the Union sought to negotiate over the proposed deletion of
 snow removal work from the type of cold work for which environmental
 differential pay would be paid.  The Union did not submit any proposals
 in regard thereto nor request any information about snow removal.  It
 did inquire at this meeting as to why this Shipyard Instruction had to
 be eliminated, and the Union negotiators expressed a desire to negotiate
 such change.  When asked what he proposed to negotiate, Union Agent
 Richard Johanson stated it was "to change the Shipyard instruction as
 far as the instructions go." Management, via Industrial Relations
 Manager, Richard R. Britt, informed the Union during contract
 negotiation that instructions are negotiated separately since they
 affect all bargaining units at the Shipyard.  No discussion was
 therefore had during contract negotiations re snow removal differential
 pay.
 
    9.  On November 18, 1981 the Union and Respondent met again in
 negotiations for a new collective bargaining agreement.  They consented
 to include therein, as Article XI, a provision for "ENVIRONMENTAL
 DIFFERENTIALS." The proposals made by the Union with respect thereto
 were included under Article XI of the agreement.  Sections 1 and 5 of
 this Article recited as follows:
 
          "Section 1.  The Employer shall assign environmental pay to
       unit employees engaged in hazardous work or work involving
       difficult working conditions to the extent permitted and
       prescribed by applicable regulations.
 
          "Section 5.  It is agreed that Appendix J of FPM Supplement
       532-1 shall be made an addendum to this contract." /3/
 
    10.  Under date of November 23, 1981 the Union returned the Proposed
 Directive form to Respondent.  Under the heading "Remarks", Johanson
 wrote as follows:  "We do not concur with this proposed
 PHILANAVSHIPYDINST.  We are presently in negotiations and we will
 negotiate this matter with you at the table at your earliest
 convenience."
 
    11.  Respondent did not reply to the comment made by the Union re the
 proposed change in Instruction 12531.8A.  No proposals were made by the
 Union in respect thereto.
 
    12.  On December 7, 1981 Respondent issued and implemented the
 changed Instruction 12531.8A which deleted cold pay as a category for
 which an environmental differential would be paid.
 
    13.  Record facts disclose that the deletion of category III;  Cold
 Work, subparagraphs A, B, C, D /4/ in their entirety in the aforesaid
 changed Instruction was not contemplated by management and was done in
 error.  Respondent intended, which is not disputed, that the revised
 Instruction 12531.8A eliminate only differential pay for snow removal.
 Moreover, despite the deletion, Respondent has continued to pay cold
 work environmental differential where warranted except for snow removal
 situations.
 
    14.  The new collective bargaining agreement was executed between the
 parties on March 12, 1982.  It became effective on April 2, 1982 and, by
 its terms, will remain in full force and effect for a period of 3 years.
  As heretofore indicated, it includes Appendix J of FPM Supplement 532-1
 as an addendum to the agreement providing for 4 percent pay differential
 for cold work performed in cold storage areas of climate-controlled
 areas where the employee is subjected to temperatures below freezing (32
 degrees Fahrenheit).  /5/
 
                                Conclusions
 
    It is contended by General Counsel herein that the change by
 Respondent in Instruction 12531.8A whereby it discontinued payment of
 environmental differential (cold pay) for snow removal, /6/ was
 negotiable both as to the decision itself as well as any impact and
 implementation thereof.  Moreover, General Counsel maintains that the
 Union requested negotiation over such change, but that Respondent
 unilaterally implemented it and failed to bargain over the
 discontinuance in violation of the Statute.
 
    Respondent insists that the change was mandated by a government-wide
 regulation issued by the Office of Personnel Management (OPM).  It
 adverts to the language in 5 C.F.R. 532.511(a) which provides for paying
 environmental differential pay where an employee is exposed to working
 conditions or hazards falling within certain categories approved by OPM.
  Respondent avers that the pertinent category governing the situation
 herein concerns Cold Work, as set forth in category 5 of Appendix J to
 Subchapter 8 of the FPM Supplement 532-1.  Further, it contends that the
 authorization for environmental differential pay, as set forth in
 Appendix J, does not permit such pay for snow removal.  Hence, it argues
 the change whereby such provision was discontinued by Respondent was
 required, and hence no obligation could be imposed upon it to negotiate
 the decision.
 
    With respect to any duty on its part to bargain as to the impact and
 implementation of the change, the employer maintains it afforded the
 Union an opportunity to request such bargaining;  that the Union never
 sought to negotiate thereon but merely quarreled with the decision,
 rather than its impact and implementation, since no proposals were made
 to management;  and thus Respondent did not refuse to bargain in that
 regard.
 
  A. Respondent's Obligations to Bargain Concerning its Decision to
 Eliminate Environmental Differential Pay for Snow Removal Work
 
    The obligation of an agency to pay differential pay stems from Title
 5, United States Code.  Section 5343(c)(4) thereof provides "for proper
 differentials, as determined by the Office, /7/ for duty involving
 unusually severe working conditions or unusually severe hazards."
 Further, it is provided under 5 C.F.R. 532.511(a) that (a) in accordance
 with the aforesaid section of the Code, an employee shall be paid
 environmental differential "when exposed to a working condition or
 hazard that falls within one of the categories approved by the Office of
 Personnel Management";  (b) each installation or activity must evaluate
 situations against guidelines issued by OPM to determine whether a local
 situation is covered by a defined category.
 
    The Federal Personnel Manual contains further provisions dealing with
 differential pay as follows:
 
          "FPM 532-1, subchapter S8-7, which instruct as the procedures
       to be followed in the payment of environmental differential
       provides, in pertinent part:
 
          b.  Basis for environmental differential.  These instructions
       provide the basis for (1) approving and paying environmental
       differentials to wage employees (full-time, part-time, or
       intermittent);  listing categories of situations in Appendix J of
       this subchapter and specifying the differentials payable for each
       category to identify the various degrees of hazard, physical
       hardships, and working conditions of an unusually severe nature,
       by the use of examples for the categories listed in Appendix J.
       For the purpose of this section, environmental differential means
       additional pay authorized as specified in Appendix J for a
       category of situations involving exposure to a hazard, a physical
       hardship, or working conditions of an unusually severe nature . .
       .
 
          d.  (3) . . . Some of the environmental differential listed in
       Appendix J are payable whenever the criteria in the category
       definition are met.  Others are payable only if protective
       facilities, devices, or clothing have not practically eliminated
       the hazard, physical hardship, or working condition of an usually
       severe nature.  Consistent with section S8-7g(3) below,
       determinations in this regard may be through negotiations at the
       local level . . .
 
          At Chapter S8-7, subsection (g), the FPM also provides:
 
          g.  Determining local situations when environmental
       differentials are payable.  (1) Appendix J defines the categories
       of exposure for which the hazard, physical hardship, or working
       conditions are of such an unusual nature as to warrant
       environmental differentials, and gives examples of situations
       which are illustrative of the nature and degree of the particular
       hazard, physical hardship, or working condition involved in
       performing the category.  The examples of the situations are not
       all inclusive but are intended to be illustrative only.  (2) Each
       installation or activity must evaluate its situations against the
       guidelines in Appendix J to determine whether the local situation
       is covered by one or more of the defined categories.  (a) When the
       local situation is determined to be covered by one or more of the
       defined categories (even though not covered by a specific
       illustrative example), the authorized environmental differential
       is paid for the appropriate category . . . .  (3) Nothing in this
       section shall preclude negotiations through the collective
       bargaining process for:  (a) determining the coverage of
       additional local situations under appropriate categories in
       Appendix J and application of Appendix J categories to local work
       situations.  For example, local negotiations may be used to
       determine whether a local work situation is covered under an
       approved category, even though the work situation may not be
       described under a specific illustrative example.
 
    Convincing arguments have been made by both parties herein in support
 of their respective positions.  However, upon due and careful
 consideration, I am persuaded that Respondent was not obliged to
 negotiate as to its discontinuance of environmental pay for snow
 removal.  Despite the Shipyard having done so in the past, FPM
 Supplement 532-1 (Appendix J-s) provides in clear and specific language
 that such differential shall be paid for work performed in cold storage
 or other climate-controlled areas where the employee is subjected to
 temperatures at or below freezing (32 degrees Fahrenheit).  Unless it
 can be inferred that pay of this nature may be granted for work outside
 of cold storage locations or climate-controlled area, payment for snow
 removal work would contravene the government-wide regulation.  It is
 clear, at least, that snow removal is not performed in either cold
 storage or climate-controlled locations but occurs outside to clear
 streets, piers or passages for pedestrians or vehicles.
 
    In support of its position herein, General Counsel stresses the
 permissive language re negotiation of work situations found in FPM 532-1
 subchapter S8-7(g), supra.  It is contended that this section pointedly
 recites that, while management may determine whether a local situation
 is covered by a particular category in Appendix J, nothing shall
 preclude negotiations as to whether Appendix J applies to a specific
 work situation.  General Counsel argues that such language reaffirms
 that the inclusion or exclusion of situations is appropriately
 negotiable.  However, to adopt this reasoning would be tantamount to
 nullifying the coverage contained in Appendix J-s.  Thus, the latter
 recognizes payment of an environmental differential only for work
 performed in cold storage or climate-controlled areas.  Payment for snow
 removal work performed elsewhere-- as formerly described in Respondent's
 Instruction 12531.8A-- would fly in the face of the FPM regulation and
 render it meaningless.  Further, it would be pointless to permit the
 activity to determine whether a situation fits a category, as set forth
 in subchapter S8-7(g), if it is never given leeway to act thereon by
 itself.
 
    It appears to the undersigned that a reasonable interpretation of FPM
 532-1 subchapter S8-7(g) suggests that negotiations are not precluded,
 in regard to whether a work situation is covered by Appendix J, when
 some question may logically arise as to such coverage.  Thus, it is
 noted that 4 percent differential pay thereunder is paid for cold work
 performed inside those areas where such exposure is not practically
 eliminated by the mechanical equipment or protective devices being used.
  Work situations might well give rise to a dispute as to whether an
 employee working in cold storage areas or climate-controlled places has
 sufficient protection, by reasons of equipment or other devices, to
 eliminate exposure to cold.  A determination re whether that particular
 work situation warrants differential pay for "Cold Work" would be
 negotiable, and would be in all doubtful instances.  However, I would
 construe FPM 532-1 subchapter S8-7(g) as still precluding negotiations
 concerning coverage for a work situation when the work itself which is
 being undertaken is clearly not within the Appendix J category.  In that
 instance, I conclude no obligation is imposed upon an employee to
 bargain concerning the coverage of a work situation.  The case at bar
 presents a work situation, i.e. snow removal, which is performed outside
 work areas, and is clearly not covered by the category "Cold Work" in
 the FPM Supplement (Appendix J-s).  Accordingly, I am compelled to
 conclude Respondent was not required to negotiate its coverage.
 Moreover, the unilateral deletion from Instruction 12531.8A of its work
 condition pertaining to snow removal differential pay was in accord with
 the FPM regulations, and Respondent's failure or refusal to negotiate
 the decision to terminate such pay, and remove it from Instruction
 12531.8A, was not violative of the Statute.  See Department of the
 Interior, U.S. Geological Survey, Conservation Division, Gulf of Mexico
 Region, Metairie, Louisiana, 9 FLRA No. 65 (1982).  /8/
 
         B.  Respondent's Fulfillment of Obligation to Bargain Re
 
                Impact and Implementation of Elimination of Snow Removal
 
                Differential Pay
 
    It is fundamental in the public sector that an employer must notify a
 bargaining agent of proposed changes in working conditions;  that,
 further, it must provide the union with ample opportunity to negotiate
 the impact and implementation of such changes.  Social Security
 Administration, 8 FLRA No. 102 (1982);  Scott Air Force Base, Illinois,
 5 FLRA No. 2 (1981).
 
    While recognizing its obligation to bargain on the impact of its
 decision to terminate snow removal pay, Respondent argues that any
 failure to so bargain was not attributable to its conduct.  It is
 contended that the Union never actually sought to negotiate as to
 "impact and impact of the decision;  that the bargaining agent did not
 submit any proposals in this regard or attempt to seek further
 information from management.  Respondent maintains that the Union was
 not interested in negotiating anything except the decision itself, and
 it insists any delay in negotiations as to impact and implementation of
 such decision was due to the Union's failure to follow up with its
 position and proposals thereon.
 
    A review of the facts herein persuades me that these contentions
 should be rejected.  The Statute provides in Section 7103(12) that
 collective bargaining calls for the exclusive bargaining representative
 and the agency to meet in an effort to reach agreement as to working
 conditions.  The Union herein sought such a meeting, and declared its
 desire to bargain re the elimination of snow removal differential pay,
 on two occasions.  Union official Johanson told management in November
 1981, during negotiations for a new contract, that it wanted to
 negotiate about the matter.  Industrial Relations Officer, Richard Britt
 replied that negotiations with respect thereto must take place
 separately.  Further, Johanson submitted its request to negotiate in
 writing on November 23, 1981 and indicated the Union wanted to meet at
 Respondent's earliest convenience.  Neither request resulted in a
 meeting.  Although Respondent insists that the Union wanted to discuss
 the decision, rather than any impact thereof, record facts do not
 disclose that the bargaining agent had so confined its request to
 bargain.  Thus, unless some exculpatory factor exists on its behalf, I
 am satisfied that Respondent failed to provide the Union with an
 opportunity to meet and bargain on the impact and implementation of its
 action herein.
 
    In its brief to the undersigned the employees herein cites Division
 of Military and Naval Affairs, State of New York, Albany, N.Y., 8 FLRA
 No. 71 (1982).  The Authority upheld the dismissal of a complaint
 alleging, inter alia, that the agency refused to bargain re impact and
 implementation of a particular program.  In the cited case the
 bargaining agent, although requested, did not submit proposals to
 management concerning the impact thereof.  Respondent herein maintains
 the Union in the case at bar who refused or failed to submit proposals.
 Accordingly, it insists such refusal or failure relieves the agency of
 any further obligation to bargain.
 
    The cases are strikingly dissimilar.  In Naval Affairs the parties
 met and discussed in detail the program and details thereof.  The
 employer advised the unions that, before meeting to discuss impact and
 implementation of the program, it wanted proposals from the bargaining
 agent.  The latter continued to demand proposals from the agency, and by
 its conduct the union precluded any future bargaining.  In the instant
 case I cannot include that the Union foreclosed bargaining on impact and
 implementation.  None of the Union's actions reflects a disinclination
 of the part to negotiate in that regard.  Neither do I conclude that its
 failure to submit specific proposals in that regard absolves the
 Respondent to bargain on the impact of its decision re snow removal.
 Management did not seek specific proposals after hearing discussed the
 matter with the Union, as occurred in the Naval Affairs case.  It merely
 requested that the Union submit its comments, which the labor
 organization complied with thereafter.  The request does not, in my
 opinion, deprive the bargaining agent of an opportunity to meet and
 negotiate the impact and implementation of the intended change.  /9/ I
 cannot subscribe to the view that a union must submit matters proposals,
 as a sine qua non, before an employer is obliged to meet and confer re
 any contemplated change in the working conditions.  /10/ In sum, I am
 persuaded that it was incumbent upon Respondent to meet with the Union
 herein, as requested, and afford the bargaining agent an opportunity to
 bargain as to any impact of its decision re termination of snow removal
 differential, as well as the implementation thereof.  Further, I am
 constrained to conclude Respondent did not fulfill this obligation by
 requesting comments from the union;  that, in light of the Union's
 request to negotiate the termination-- which may well embrace the impact
 and implementation of the employer's conduct-- and the employer's
 failure to accede thereto, the Respondent has refused to bargain as to
 such impact and implementation in violation of Section 7116(a)(1) and
 (5) of the Statute.  /11/
 
    Having found that Respondent violated Section 7116(a)(1) and (5) of
 the Statute by refusing to negotiate with the Union as to the impact and
 implementation of its elimination of environmental differential pay for
 snow removal work, I recommend the Authority adopt the following Order:
 
                                   ORDER
 
    Pursuant to Section 7118(a)(7) of the Federal Service
 Labor-Management Relations Statute and Section 2423.29 of the Rules and
 Regulations, it is hereby ordered that the Department of the Navy,
 Philadelphia Naval Shipyard shall:
 
    1.  Cease and desist from:
 
          (a) Unilaterally changing its past practice of paying employees
       environmental differential pay for performing snow removal work
       without first notifying the Philadelphia Metal Trades Council,
       AFL-CIO and affording it an opportunity to negotiate, upon request
       concerning the impact and implementation of such change.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Upon request by the Philadelphia Metal Trades Council, the
       exclusive bargaining representative of certain unit employees,
       bargain, to the extent consonant with law and regulations, with
       respect to the impact and implementation of changing its practice
       of paying employees environmental differential pay for performing
       snow removal work.
 
          (b) Post at its facilities at Philadelphia, Pennsylvania copies
       of the attached notice marked "Appendix" on forms to be furnished
       by the Authority.  Upon receipt of such forms, they shall be
       signed by the Commander, and shall be posted and maintained by him
       for 60 consecutive days thereafter in conspicuous places,
       including all bulletin boards and places where notices to
       employees are customarily posted.  Reasonable steps shall be t