18:0902(105)CA - Navy, Philadelphia Naval Shipyard and Philadelphia MTC -- 1985 FLRAdec CA
[ v18 p902 ]
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 taken by the Commander to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Acting 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. WILLIAM NAIMARK Administrative Law Judge Dated: September 19, 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 change the 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. 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 notify the Philadelphia Metal Trades Council, AFL-CIO of any intended change in the practice of paying employees environmental differential pay for performing snow removal work and, upon request, negotiate with it concerning the impact and implementation of such change. (Agency/Activity) Dated: By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, 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. --------------- FOOTNOTES$ --------------- /1/ Although not explicit in the record, the 1974 agreement apparently continued to govern the collective bargaining relationship between the parties until supplanted by the written agreement in 1982, discussed infra. /2/ Cold pay premium (4 percent) had been paid for snow removal work since 1974. /3/ Appendix J of FPM Supplement 532-1, which was included in the 1982 contract between the parties, provided as follows: "SCHEDULE OF ENVIRONMENTAL DIFFERENTIALS PAID FOR EXPOSURE TO VARIOUS DEGREES OF HAZARDS, PHYSICAL HARDSHIPS, AND WORKING CONDITIONS OF AN UNUSUAL NATURE PART I. PAYMENT FOR ACTUAL EXPOSURE (Category for which payable) . . . . 5. Cold Work. (a) Working in cold storage or other climate-controlled areas where the employee is subjected to temperatures at or below freezing (32 degrees Fahrenheit). (b) Working in cold storage or other climate-controlled areas where the employee is subjected to temperatures at or below freezing (32 degrees Fahrenheit) where such exposure is not practically eliminated by the mechanical equipment or protective devices being used." /4/ Page 10 of PHILANAVSHIPYDINST 12531.8A (Jan. 25, 1980). /5/ See footnote 3, supra. /6/ Both parties recognize that, while the changed Instruction discontinued the entire cold pay environmental differential, this was an error. The Respondent intended to, and did, eliminate only seek pay for snow removal as not being embraced within the term "Cold Work" set forth in the Federal Personnel Manual Supplement 532-1 Appendix J. /7/ Office of Personnel Management. /8/ General Counsel cites, in support of its argument herein, the cases of Department of the Navy, Pearl Harbor Naval Shipyard, OALJ-82-67 (Eli Nash, Jr., ALJ) (March 31, 1982) and Department of Defense, Department of the Navy, Naval Weapons Station, OALJ-83-47 (Burton S. Sternburg, ALJ) (January 28, 1983). Both cases are distinguishable from the one at bar. The former involved unilateral termination of "dirty pay" for brush plating work. Payment for "dirty work" is prescribed in category 4 under Appendix J in FPM Supplement 532-1. It could well include, by its language, brush plating work and such work is not clearly outside its scope. In the Naval Weapons Station case, hazardous pay awarded employees (which was changed) was not clearly in violation of negotiated instructions. /9/ The case of Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 7 FLRA No. 65 (1981), cited by Respondent, is inapposite. The agency in said case attempted to reach the union and ascertain who would act as its representative. The union was unable to identify a responsible representative. It was held that any delay in bargaining was not attributable to the agency since it had attempted to contact the bargaining agent. The facts herein do not reflect that Respondent did all it could in order to set up a bargaining meeting re impact and implementation. /10/ See Long Beach Naval Shipyard, Long Beach, California, OALJ-83-131 (Francis E. Dowd, ALJ) (September 8, 1983). /11/ General Counsel seeks a status quo remedy herein. I am aware that such a remedy may be granted in cases where impact and implementation bargaining orders are issued. Federal Correctional Institution, 8 FLRA No. 111 (1982). However, I do not consider such a remedy appropriate in the instant case. A reversion to differential pay for snow removal would contravene the government-wide regulation issued in this regard. FPM Supplement 532-1 (Appendix J-s). To require an agency to restore such a practice, which is contrary to a regulation so issued, would nullify the government-wide regulation. An order of this nature would, at best, result in unsettled conditions of an agency attempting to comply with a government mandate. See Department of the Air Force, Air Force Logistics Command, Ogden Air Logistics Center, Hill Air Force Base, Utah, OALJ-83-43 (John H. Fenton, ALJ) (January 19, 1983).