21:0195(30)CA - Navy and Navy Portsmouth Naval Shipyard, Portsmouth, NH and Richard Pearl and Victor Porro and Portsmouth FEMTC -- 1986 FLRAdec CA



[ v21 p195 ]
21:0195(30)CA
The decision of the Authority follows:


 21 FLRA No. 30
 
 DEPARTMENT OF THE NAVY AND 
 DEPARTMENT OF THE NAVY 
 PORTSMOUTH NAVAL SHIPYARD 
 (PORTSMOUTH, NEW HAMPSHIRE)
 Respondents
 
 and                                   Case Nos. 1-CA-30303
                                                           1-CA-30305
                                                           1-CA-30306
 
 RICHARD PEARL
 
 and
 
 VICTOR PORRO
 
 and
 
 PORTSMOUTH FEDERAL EMPLOYEES METAL 
 TRADES COUNCIL, AFL-CIO
 Charging Parties
 
                                  DECISION AND ORDER
 
    I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 to the attached Administrative Law Judge's Decision filed by the
 Respondents and the General Counsel.  The Portsmouth Federal Employees
 Metal Trades Council, AFL-CIO (Union) and the General Counsel filed
 oppositions to the Respondents' exceptions.  The consolidated complaint
 alleged that the Department of the Navy and the Portsmouth Naval
 Shipyard, Portsmouth, New Hampshire (Shipyard) violated section
 7116(a)(1), (5) and (8) of the Statute by refusing to bargain in good
 faith with the Union and by failing and refusing to comply with the
 provisions of section 7122(b) of the Statute based upon noncompliance
 with an arbitration award.  /1/
 
    II.  Background
 
    On July 28, 1983, Arbitrator John P. McCrory issued an award
 sustaining a grievance filed by the Union based on an asserted violation
 of the safety provisions of the collective bargaining agreement in
 effect between the Shipyard and the Union.  As part of the award, the
 arbitrator outlined several corrective measures the Shipyard could
 employ to practically eliminate the potential for illness due to
 asbestos exposure by unit employees performing various functions on
 submarines.  The arbitrator further directed the establishment of a
 Joint Asbestos Safety Committee within 30 days of the award.  With
 respect to the Union's claim for the payment of Environmental
 Differential Pay (EDP) to unit employees exposed to asbestos, the
 arbitrator ordered such payment to the extent that the Shipyard failed
 to practically eliminate unnecessary exposure or unnecessary potential
 exposure to airborne asbestos.  Finally, the arbitrator retained
 jurisdiction of the matter for a period of 90 days for the purpose of
 resolving any issues arising with respect to the award.  Requests for
 clarification of the award were filed by the Respondents and the Union.
 Additionally, the Department of the Navy filed exceptions to the award
 pursuant to section 7122 of the Statute, which exceptions were found by
 the Authority to be untimely filed.  Portsmouth Naval Shipyard and
 Federal Employees Metal Trades Council, AFL-CIO, 15 FLRA 181 (1984).
 
    III.  Judge's Decision
 
    The Judge found that the Respondents failed to comply with the
 arbitration award and thus violated section 7116(a)(1) and (8) of the
 Statute.  In reaching this result, the Judge looked to the language and
 intent of the award in determining that the Respondents had not taken
 sufficient measures to comply with it.  The Judge further found it
 unnecessary to decide whether the Respondents' conduct also violated
 section 7116(a)(5) of the Statute.  To remedy the unfair labor practice,
 the Judge ordered the Respondents to fully comply with the arbitration
 award and to make available to the Authority or its agents, upon
 request, copies of all documents necessary to determine the amount of
 backpay to be awarded.
 
    IV.  Positions of the Parties
 
    The Respondent raised a number of arguments which amount to
 disagreement with the Judge's findings and conclusions.  The findings
 and conclusions of the Judge are consistent with established precedent
 and thus the Authority finds no basis for reversing them.  However, we
 do modify the Judge's recommended Order for the reasons indicated below,
 and also address an exception to the Judge's Decision filed by the
 General Counsel.
 
    V. Analysis
 
    It is a well-established principle that a failure to comply with an
 arbitration award to which no timely exceptions have been filed pursuant
 to section 7122(a) of the Statute constitutes a violation of section
 7116(a)(1) and (8) of the Statute.  /2/ See United States Air Force, Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA
 151 (1984), aff'd sub nom.  Department of the Air Force, et al. v.
 Federal Labor Relations Authority, 775 F.2d 727 (6th Cir., 1985).  See
 also Department of Defense, Department of the Navy, United States Marine
 Corps, United States Marine Corps Air Station, Cherry Point, North
 Carolina, 15 FLRA 686 (1984);  U.S. Department of Justice and Department
 of Justice, Bureau of Prisons (Washington, D.C.) and Federal
 Correctional Institution (Danbury, Connecticut), 20 FLRA No. 5 (1985),
 petition for review filed, No. 85-4167 (2nd Cir. Nov. 5, 1985);  and
 U.S. Army Health Clinic, Fort Ritchie, Maryland, 9 FLRA 935 (1982).  In
 this case, as previously noted, the Authority found that the exceptions
 filed by the Department of the Navy were not timely filed.  /3/
 Accordingly, the award became final and binding pursuant to the
 provisions of section 7122(b) of the Statute and there was an obligation
 on the part of agency management to take the actions required by the
 award, which it failed to do.
 
    VI.  Remedy
 
    To remedy the unfair labor practice conduct, the Judge ordered the
 Respondents to fully comply with the arbitration award.  As to that
 portion of the award directing the prospective payment of EDP, the Judge
 found that, but for the Respondents' failure to implement the award,
 employees would have received such payment for those periods of time
 during which substandard asbestos conditions were maintained on the
 various submarines involved.  Because, in the Judge's view, the record
 did not clearly establish all periods of the Respondents' liability for
 payment of EDP, the Judge ordered the Respondents to make available to
 the Authority or its agents, upon request, those records and documents
 necessary to analyze the amount of backpay to be awarded in whatever
 manner is deemed appropriate for such determination.  In the Authority's
 view, an order which will require the Respondents to fully comply with
 the arbitration award of July 28, 1983, /4/ and pay EDP to the affected
 employees in accordance with the regulatory requirements pertaining to
 such payment contained in Federal Personnel Manual Supplement 532-1,
 Appendix J, as referenced in both the parties' collective bargaining
 agreement and the arbitrator's award, /5/ will effectuate the purposes
 and policies of the Statute.  The determination as to which employees
 are eligible for such payment and for what periods of time is
 appropriately resolved through compliance procedures.  See U.S. Army,
 U.S. Army Materiel Development and Readiness Command, Warren, Michigan,
 8 FLRA 806, n. at 807 (1982).
 
    VII.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds that no prejudicial error was
 committed, and thus affirms those rulings.  The Authority has considered
 the Judge's Decision and the entire record in this case, adopts the
 Judge's findings and conclusions, and, with the modification noted above
 concerning the manner in which Environmental Differential Pay will be
 awarded to affected employees, adopts the Judge's recommended Order.
 Therefore, we find that the Respondents' failure to comply with the
 arbitration award violated section 7116(a)(1) and (8) of the Statute.
 /6/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 ordered that the Department of the Navy and the Department of the Navy,
 Portsmouth Naval Shipyard, Portsmouth, New Hampshire, shall:
 
    1. Cease and desist from:
 
    (a) Failing and refusing to fully comply with Arbitrator John P.
 McCrory's July 28, 1983 arbitration award.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing 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) Fully comply with Arbitrator John P. McCrory's July 28, 1983
 arbitration award, including the payment of environmental differential
 pay to affected employees in accordance with law and regulation.
 
    (b) Pursuant to section 2423.30 of the Authority's Naval Shipyard,
 Portsmouth, New Hampshire, 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 other places where
 notices to employees are customarily posted.  Reasonable steps shall be
 taken to ensure that such Notices are not altered, defaced, or covered
 by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region I, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply with it.
 
    Issued, Washington, D.C., March 31, 1986
 
                                       (s)---
                                       Jerry L. Calhoun, Chairman
                                       (s)---
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ The consolidated complaint was amended at the hearing to include
 the Department of the Navy as a named respondent.
 
 
    /2/ Section 7122 of the Statute provides as follows:
 
    7122. Exceptions to arbitral awards
 
    (a) Either party to arbitration under this chapter may file with the
 Authority an exception to any arbitrator's award pursuant to the
 arbitration (other than an award relating to a matter described in
 section 7121(f) of this title).  If upon review the Authority finds that
 the award is deficient--
 
    (1) because it is contrary to any law, rule, or regulation;  or
 
    (2) on other grounds similar to those applied by Federal courts in
 private sector labor-management relations;  the Authority may take such
 action and make such recommendations concerning the award as it
 considers necessary, consistent with applicable laws, rules, or
 regulations.
 
    (b) If no exception to an arbitrator's award is filed under
 subsection (a) of this section during the 30-day period beginning on the
 date the award is served on the party, the award shall be final and
 binding.  An agency shall take the actions required by an arbitrator's
 final award.  The award may include the payment of backpay (as provided
 in section 5596 of this title).
 
 
    /3/ The Authority also found in Portsmouth Naval Shipyard and Federal
 Employees Metal Trades Council, AFL-CIO, 15 FLRA 181 (1984), that
 retention of jurisdiction by an arbitrator, as here, does not serve to
 extend the statutory time limit for filing exceptions to an award under
 section 7122 of the Statute or render such award interlocutory.
 
 
    /4/ With respect to the General Counsel's exception to the Judge's
 failure to specifically pass on the Respondents' asserted noncompliance
 with that portion of the award directing the establishment of a Joint
 Asbestos Safety Committee, the Authority finds that the Judge's finding
 of a failure to comply with the award encompasses the failure to
 establish such a committee.  Further, the Judge's order to fully comply
 with the award, which is here adopted, extends to the establishment of
 such a committee.
 
 
    /5/ Federal Personnel Manual Supplement 532-1 governing the Federal
 Wage System provides in Appendix J a schedule of environmental
 differentials to be paid for exposure to various degrees of hazards,
 physical hardships and working conditions of an unusual nature.  Among
 them is Category 16 relating to asbestos exposure which provides an 8%
 differential for the following:  "Working in an area where airborne
 concentrations of asbest fibers may expose employees to potential
 illness or injury and protective devices or safety measures have not
 practically eliminated the potential for such personal illness or
 injury."
 
 
    /6/ The Authority finds, as did the Judge, that in view of the result
 reached above, it is unnecessary to decide whether the Respondents'
 conduct also violated section 7116(a)(5) of the Statute.
 
 
 
                          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 fail and refuse to comply with Arbitrator John P.
 McCrory's July 28, 1983 arbitration award.
 
    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
 Statute.
 
    WE WILL fully comply with Arbitrator John P. McCrory's July 28, 1983
 arbitration award, including the payment of environmental differential
 pay to affected unit employees in accordance with law and regulation.
                                       ---
                                       (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, Federal Labor Relations Authority, Region I, whose address is:
  441 Stuart Street, 9th Floor, Boston, Massachusetts 02116, and whose
 telephone number is:  (617) 223-0920.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DEPARTMENT OF THE NAVY AND 
    DEPARTMENT OF THE NAVY, 
    PORTSMOUTH NAVAL SHIPYARD, 
    PORTSMOUTH, NEW HAMPSHIRE
         Respondents
 
    and
 
    RICHARD PEARL
 
    and
 
    VICTOR PORRO
 
    and
 
    PORTSMOUTH FEDERAL EMPLOYEES METAL 
    TRADES COUNCIL, AFL-CIO
         Charging Parties
 
    Peter F. Dow, Esq.  
    Richard D. Zaiger, Esq.  
         For the General Counsel
 
    Steven Sharfstein, Esq.  
         For the Respondent
 
    Sally M. Armstrong, Esq.  
        For the Charging Party
 
    Before:  ELI NASH, JR.  Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, 82 Stat. 1191, 5 U.S.C. 7101 et seq.  It was
 instituted by the issuance of a consolidated complaint on March 30,
 1984.  The complaint alleges that the Department of the Navy, Portsmouth
 Naval Shipyard, Portsmouth, New Hampshire, hereinafter called the
 "shipyard," has violated and continues to violate section 7116(a)(1),
 (5) and (8) of the Statute by failing to comply with an arbitration
 award issued on July 25, 1983 and by refusing to bargain in good faith
 with the Portsmouth Federal Employees Metal Trades Council, AFL-CIO,
 hereinafter called the "union." In its answer the shipyard denied the
 commission of any unfair labor practice.  By notice dated August 7,
 1984, the General Counsel notified the parties of its intent to move to
 amend the complaint at the hearing to include the Department of the Navy
 as a party respondent.  /1/
 
    A hearing was held in this matter on August 15, 16 and 17, 1984, in
 Portsmouth, New Hampshire.  All parties were represented and afforded
 full opportunity to adduce evidence, examine aid cross-examine
 witnesses, and argue orally.  Briefs were filed by all parties.
 
    Upon consideration of the entire record, including my observation of
 the witnesses and their demeanor, I make the following findings of fact,
 conclusions of law, and recommended order.
 
                             Findings of Fact
 
    At all times material herein, respondents have been and are now
 agencies within the meaning of section 7103(i)(3) of the Statute.  In
 addition, the shipyard and the union were parties to a collective
 bargaining agreement at all material times herein.
 
    In October 1981, the union filed a grievance on behalf of certain
 employees performing overhaul operations on submarines, alleging unsafe
 working conditions due to asbestos exposure.  As a remedy the union
 sought replacement of all asbestos and asbestos products on board the
 submarines and payment of environmental differential pay (EDP) in
 accordance with Article 20 of the parties' collective bargaining
 agreement /2/ and Appendix J of Supplement 532-1 of the Federal
 Personnel Manual.  /3/
 
    The above grievance concerned conditions existing after the "ripout"
 phase of the overhaul, that is, the extensive removal of equipment to be
 refurbished.  During this phase, the submarine is also stripped of
 asbestos insulation and only Shop 64 employees, who wear protective
 equipment, including respirators, are allowed inside.  After the ripout
 phase, asbestos exposure may result from damage to unremoved asbestos
 lagging and other asbestos materials, caused by contact with equipment,
 tools, and chains used to move equipment.  In addition, employees crawl
 and stand on asbestos covered pipes in the course of their work.
 Asbestos dust also remains in inaccessible areas and may become airborne
 due to disturbances such as air turbulence, and movement by employees.
 The ripout phase is followed by reinstallation, and testing and
 finishing phases.
 
    THE ARBITRATOR'S DECISION AND AWARD:
 
    The matter was submitted to arbitration at which evidence was
 adduced, argument presented, and an on-site inspection made by the
 arbitrator.  On July 25, 1953, Arbitrator John P. McCrory sustained the
 grievance, finding that the shipyard had not made every reasonable
 effort to provide and maintain safe working conditions and, thus, was in
 violation of Article 29, Section 1 of the agreement.  /4/ He found that
 asbestos dust, asbestos particles, broken lagging with exposed asbestos
 and similar potential sources of airborne asbestos were "routinely" in
 work areas aboard submarines.  The shipyard was ordered to take
 appropriate corrective action with respect to all overhauls beginning
 after receipt of the award and "to the extent practicable" for overhauls
 already in progress.
 
    Arbitrator McCrory rejected the shipyard's contention that there is a
 safe level of exposure to asbestos.  He stated:
 
       Establishing exposure "thresholds" on the assumption that there is
       a "safe" level of exposure demonstrates a philosophy which has
       caused employees to be victimized ... The time has come to reverse
       the presumption and give the benefit of any doubts regarding the
       toxic nature of airborne asbestos to employees and their families.
 
    Similarly, the arbitrator refused to base payment of environmental
 differential pay on the Occupational Safety and Health Administration
 (OSHA) 2 fibers/cc standard.  In November 1977, Arbitrator Robert L.
 Stutz issued an award in a dispute between the same parties relating to
 environmental pay for exposure to airborne asbestos fibers.  Arbitrator
 Stutz based payment on the OSHA standard.  Arbitrator McCrory did not
 consider himself bound by the Stutz award.
 
    After finding the shipyard's safety precautions to be deficient, the
 arbitrator made the following recommendations:
 
    1) Asbestos lagging which is not removed could be clearly marked so
 that employees would be aware of a potential hazard.  Marking would also
 make surveillance efforts more efficient by reducing the need to test
 dust and particles each time it is suspected that asbestos is present.
 
    2) More asbestos lagging could be removed during the ripout phase of
 an overhaul.  The Agency has not explained why lagging which is
 sufficiently exposed to be damaged by employees working on an overhaul
 could not be removed, thus removing a potential source of airborne
 asbestos.
 
    3) A more durable and effective protective covering could be placed
 on unremoved asbestos lagging.  The tape which is now used to seal
 lagging tends to peal off.  The use of tough protective sleeves to cover
 and seal asbestos lagging which cannot be removed from work areas would
 reduce the incidence of damage and spills.
 
    4) More frequent surveillances could be made of areas where the
 potential asbestos exposure is high.  In view of the fact that the
 lagging is routinely damaged, weekly inspections may not be adequate.  A
 system for marking asbestos would be helpful in identifying areas which
 require the most attention.  The high percentage of cases in which
 corrective action was required after weekly surveillances suggest that
 exposure potential could be reduced by locating problems sooner.
 
    Finally, air monitoring techniques which are in general use leave
 something to be desired.  Attempts should be made to develop and use
 procedures which can reliably detect levels of asbestos concentration
 below .1 fibers/ cc and more attention should be given to the possible
 harmful effects of low levels of exposure.  /5/
 
    Addressing the environmental differential pay issue, the arbitrator
 construed the Federal Personnel Manual requirement to "practically
 eliminate(d) the potential for ... personal illness or injury." He noted
 that employees who work in the confined interiors of submarines which
 contain asbestos are exposed to a concentration of airborne asbestos
 greater than that present in the outside environment.  He concluded:
 
       This exposure can not practically be eliminated, except with the
       use of respirators;  which both parties reject as an option in
       this case. 1 am not fully satisfied that some type of respirator
       program would not be helpful.  The circumstances and conditions
       described in items 1 through 4 on page 23 above unnecessarily
       increase the potential for exposure to airborne asbestos, over
       that which is inherent due to the general presence of asbestos.
       They are a potential source of exposure which could be controlled
       by measures which would not place an unreasonable burden on the
       Agency.  I do not propose an impossible burden of cleanliness, but
       rather measures designed to substantially reduce, but not totally
       eliminate, risk.  As stated by Doctor Selikoff:  It would be hoped
       that no avoidable asbestos exposure will occur in any
       circumstances . . .  For the foregoing reasons 1 find that the
       Agency has not consistently employed safety measures which would
       practically eliminate the potential for illness due to exposure to
       asbestos fibers.
 
    Arbitrator McCrory did not order back pay because the shipyard had
 followed the less rigorous OSHA standard in accordance with the Stutz
 award.  He described his new standard as focusing on the "efforts made
 by the Agency to eliminate unnecessary exposure, or unnecessary
 potential exposure, to airborne asbestos, without reference to an
 arbitrary threshold." Last, Arbitrator McCrory ordered the establishment
 of a Joint Asbestos Safety Committee within 30 days of the award:
 
       Unless otherwise agreed, the Committee shall consist of six
       members, three selected by each party.  The parties may designate
       a neutral member, or members, if they so choose.  It is
       anticipated that the Committee will meet regularly and
       conscientiously pursue its assigned task.  Its deliberations may
       generate suggestions which can be implemented as part of the
       Shipyard's safety program or provide the basis for collective
       bargaining proposals.  The Committee shall remain in existence at
       least until the termination of the current collective bargaining
       agreement.
 
    REQUESTS FOR CLARIFICATION AND EXCEPTIONS TO THE AWARD:
 
    Requests for clarification were filed by the union on September 14,
 1983 and by the shipyard on August 26, and September 23, 1983.  On
 October 21, 1983, the Department of the Navy filed exceptions to the
 award, stating:  "Under the authority of 5 U.S.C. 7122(b), the agency
 will not implement the arbitrator's final award until the exceptions to
 it discussed herein are ultimately resolved."
 
    On October 25, 1983, Arbitrator McCrory addressed the shipyard's
 requests for clarification.  In part, he stated that the Department of
 the Navy's labelling system for unremoved asbestos is ineffective and
 does not comply with the award.  The Navy uses signs instructing
 employees to treat all insulation as asbestos unless marked otherwise.
 Additionally, he reiterated that no specific asbestos level will trigger
 environmental pay:  "It is more compatible with the wording of Appendix
 J to focus on the unnecessary sources, or unnecessary potential sources,
 of exposure to airborne asbestos."
 
    On October 20, 1983, Arbitrator McCrory responded to the union's
 request for clarification.  The union had posted, in part, the following
 interpretations of the award:
 
       (1) All employees assigned to work on boats without respirators
 
 are entitled to Category 16, Environmental Pay, from July 28, 1953.
 
    (2) Category 16, Environmental Pay, will continue to be paid
 employees assigned to work on the boats without respirators until such
 time that the hazard no longer exists or a testing method is developed
 which can, shift by shift and hour by hour, clearly indicate the
 atmosphere in the boats as asbestos fiber free as the atmosphere outside
 the Shipyard.
 
    The clarification stated:
 
       The statements in items (1) and (2) are not correct.  The intent
       of the Award is that Category 16 environmental pay should be paid
       when circumstances or conditions which increase the potential for
       exposure to airborne asbestos, over that which is inherent due to
       the general presence of asbestos in submarines, are not corrected.
        The standard in Appendix J ... does not require the total
       elimination of work place exposure to airborne asbestos.  It does,
       however, specify a low threshold for environmental pay
       eligibility--when the potential for illness or injury is not
       "practically eliminated." This, 1 concluded, requires that
       employees receive environmental pay if they are exposed to
       conditions like those described on page 23 of the Award.  The
       minimal increased exposure to airborne asbestos (over
       concentrations found in the general environment) which is caused
       solely by working in submarines which contain asbestos materials
       does not trigger entitlement to environmental pay.  It is when
       this minimal level of exposure is jeopardized by circumstances or
       conditions which have the potential to increase actual exposure
       and the risk of illness that Category 16 environmental pay is
       required.  The use of a respirator program, which might obviate
       other precautionary measures discussed in the Award, was not used
       as a determining factor because that option was rejected as
       impractical by both parties.
 
    On July 27, 1984, the Authority found the exceptions filed by the
 Department of the Navy to be untimely.  /6/
 
    COMPLIANCE WITH THE AWARD:
 
    A. REMOVAL OF ASBESTOS
 
    1) 606 Submarine
 
    Prior to the McCrory award, workers removed only as much asbestos
 insulation as necessary to facilitate the equipment overhaul.  Between
 20 and 40% of the asbestos was removed.  Joseph Belmont, production
 superintendent, testified that the 606 submarine, which had just entered
 the shipyard at the time of the award, was stripped of nearly 100% of
 its accessible asbestos located in the engineering spaces.  According to
 Belmont, respondents declined to remove some of the accessible asbestos
 where the likelihood of damage was small.  The engineering spaces
 include the engine room, the auxiliary machinery (AMR 2) and the
 auxiliary machine spaces (AMS), and contain the vast majority of
 asbestos found on a ship.
 
    Further, Belmont stated that accessible asbestos remains in other
 areas of a ship, such as the reactor compartment, and forward spaces,
 which contain mainly cold system asbestos.  Department of Navy policy
 strictly controls work done in the reactor compartment, in order to
 minimize exposure to radiation.  The policy forbids all unnecessary work
 in that area.
 
    Cold system asbestos insulation is less susceptible to damage than
 hot system insulation.  Hot systems are designed to retain heat and
 prevent electrical equipment from overheating.  The asbestos lagging
 ranges from 1 1/2 to 5 inches thick and is covered with asbestos cloth.
 Amosite asbestos, the type which most easily becomes airborne, is
 sometimes used in these systems.
 
    Cold system insulation prevents condensation in cooling water
 systems.  Approximately 90% of cold systems designed within the past 20
 years use rubber-type, asbestos-free insulation which is covered with
 1/32 inch thick asbestos cloth.  These materials are then covered with
 water base sealer and 8 to 10 coats of paint.  Respondents conducted
 studies over two years and concluded that the probability of cold system
 asbestos becoming airborne is practically nill and that protective
 equipment is not even necessary for its removal.
 
    Leo Mazzuchi, general foreman insulator of Shop 64, testified that
 respondents removed 95% of the accessible hot system insulation in the
 engine room and 100% in the AMS.  /7/ Thirty to 40% of the total
 asbestos content remains in the engine room, however, and 40 to 50%
 remains in the AMS, which contains more inaccessible areas.  According
 to Belmont, about 10% of the total asbestos in a ship is inaccessible.
 
    In October 1983, the 606 submarine was the first ship to undergo a
 second ripout, in order to eliminate asbestos uncovered by equipment
 removal during the first ripout in July 1983.  Respondents removed
 approximately 200 bags of insulation during the second ripout and
 approximately 1600 bags in total.  The previous record for removal was
 646 bags.
 
    Joseph Mason, a labor-relations specialist, Paul Clark, former
 director of the shipyard's Office of Safety and Health, and Belmont
 conceded that damage continues to occur on the submarines.  Union
 witnesses claim that damage occurs on a daily or weekly basis.
 
    Steve Perry, chairman of the union Safety and Health Committee,
 examined the 606 boat in August or September 1983 and counted more than
 18 areas of torn lagging and 25 exposed ends on asbestos covered pipes.
 At least five of the areas were pipes running directly across the
 footpath, and employees were kicking the loose asbestos.  Perry
 testified:  "We saw other areas where 1 could reach down and grab a
 whole handful of asbestos -- chunks of asbestos fibers ..." Perry also
 saw a large piece of equipment which had been removed from the 606 boat
 placed on the dockside for a week and a half in September or October
 1983.  The asbestos lagging around the equipment contained large holes
 and tears, apparently caused by cables used to transport it.
 
    According to Belmont, Perry praised the condition of the 606 boat in
 November 1983.  He allegedly stated that the removal was "the best he
 could imagine happening" and that "if all submarines in Portsmouth or
 any place they were ripped out were in that condition not only would we
 not have a problem with asbestos or exposure to employees but we would
 exceed the requirements of the McCrory award." Perry testified that
 Belmont asked him about the 606 boat and he responded that he was "happy
 that they had taken out a little more asbestos but ... appalled at the
 condition ..." Based on my observation of the witnesses' demeanor, 1
 credit Perry.
 
    Dennis Frost, union chief steward, toured the boat in August 1984 and
 observed 15 to 20 problem areas, including several exposed ends, cracked
 and damaged lagging, and taped ends.  /8/ He estimated that up to 100
 feet of accessible, unremoved asbestos remained on the ship.
 
    2) 631 Submarine
 
    The 631 submarine entered the shipyard in January 1984.  Mason
 testified that the asbestos removal from the 606 boat was used as a
 standard for subsequent overhauls.  According to Mazzuchi, respondents
 removed from the 631 boat 95% of accessible hot system insulation,
 excluding very low traffic areas.  In addition, respondents removed cold
 system insulation that was marked or in high traffic areas.  About 1800
 bags were removed.  The configuration of the 631 boat did not
 necessitate a second ripout.
 
    Perry toured the 631 boat on August 14, 1984 with Frost, Froehling
 and Joseph Luvisi, former union chief steward.  Perry observed 32
 exposed ends, including one end within a foot of a worker's head, loose
 fibers adhering to the walls of the lithium bromide plant within inches
 of workers' faces, large chunks of almost pure asbestos on top of the
 lithium bromide plant, asbestos materials on the floor by the plant,
 employees sitting and standing on exposed asbestos, employees stepping
 on unprotected lagging, and a crushed pipe at foot level surrounded by
 white dust and powder.
 
    Luvisi reported insulation that had been walked on or smashed during
 the ripout, large chunks of asbestos on the lithium bromide plant,
 asbestos fibers clinging to the side of the plant, and exposed ends.
 /9/ Froehling described asbestos "all over the engine room, loose
 lagging, ripped ends, debris on the deck, et cetra." Workers were
 sitting and standing on the lagging and loose material and holding their
 hands on the pipes.  He estimated that a couple hundred feet of
 protective sleeving would be necessary to cover the accessible,
 unremoved lagging.
 
    After its tour of the 631 boat, the union called in the shipyard's
 Asbestos Recovery Control (ARC) Team, an emergency squad formed in
 December 1983 to repair damaged asbestos and survey the ships.  Thirteen
 out of 15 samples taken by the team tested positive.  The General
 Counsel entered into evidence 12 of the positive test results.  All of
 the tests involved areas accessible to employees;  though, in general,
 they were low traffic areas, such as crawl spaces.
 
    The lithium bromide plant, from which four positive samples were
 taken, is 10 to 12 feet tall and located 10 feet from the middle
 passageway, a high traffic area.  Lawrence Cooper, union president,
 testified that heavy machinery is often moved during the overhaul in the
 vicinity of the plant, causing it damage.  Mazzuchi, who weighs 230
 pounds, can get into the inboard area around the plant.  Perry testified
 that employees using a nearby ladder hold onto pieces of the plant as
 they ascend and descend and brush their clothes against the plant in
 locations where the samples were taken.
 
    Steve Herman, former chief steward, who worked on the 631 boat since
 February 1984, testified at the hearing that accessible asbestos lagging
 remains everywhere on the boat.
 
    The General Counsel introduced into evidence random entries from the
 shipyard's spill log, dating from January to March 1984.
 
    3) The 690 Submarine
 
    The 690 is a new class submarine which is largely asbestos-free.
 Respondents tested the 690 boat, which arrived in June 1984, and found 6
 or 7 samples containing asbestos, out of 1,000.  All the asbestos in the
 non-nuclear areas was removed;  any remaining asbestos is very minute.
 
    4) The 605 and 678 Submarines
 
    The 605 submarine has been in the shipyard since October 1982, and
 the 678 submarine since March 1983.  The ripouts were completed before
 issuance of the McCrory award.  The 605 boat began its testing phase on
 July 20, 1983 and the 678 boat on September 28, 1983.  Sixty per cent
 fewer employees are on the ship during this phase as compared to earlier
 phases.  The risk of damage to asbestos is greatest during the ripout
 phase.
 
    Frost was on the 605 boat in August 1984 and found "various open ends
 of lagging, a few tears in some cloth, several areas crushed and
 damaged, a couple of holes, like a water injection type hole ..." He
 opined that relative to the other submarines in the shipyard, the 605
 boat contains the most asbestos.  According to union witnesses, at least
 hundreds of feet of accessible asbestos remain.
 
    B. PROTECTIVE COVERINGS
 
    By at least August 23, 1983, respondents began to use the mud-cloth
 method of repairing damage to insulation and sealing exposed ends.  The
 exposed area is covered with cement and fiberglass cloth forming a
 "cap," and sealed with a water-based adhesive.  Previously, respondents
 used cloth tape, which sometimes curled or lost its adhesiveness when
 exposed to heat, steam or paint.  Further, asbestos material adhered to
 the tape when it was removed.  The cement is hot and fuses into the
 insulation.  Mazzuchi testified that the mud-cloth method "outweighs the
 tape a hundred times." A worker climbing on a pipe may dislodge the
 "cap," however.
 
    Respondents' witnesses testified that protective coverings, such as
 sheet metal and plastic toboggans, have been installed on the submarines
 to protect unremoved asbestos insulation, particularly in the reactor
 compartments.  Union witnesses testified that they have not seen
 protective coverings on the 606 boat, the 631 boat, nor the 678 boat.
 According to Frost and Luvisi, the 605 boat contains one piece of
 protective sleeving over insulation, approximately 3 or 4 feet long.
 
    C. MARKINGS
 
    1) 606 Submarine
 
    Respondents' witnesses claim that 500 small tags were posted on
 unremoved asbestos in the 606 submarine on or about September 13, 1983.
 /10/ Some tags were removed along with asbestos during the October 1983
 second ripout.  In addition, on or about August 27, 1983, respondents
 posted large signs on the ship's four brows, the bridges which cross
 from the dry dock wall under the top of the submarine.  The brow signs
 direct workers to treat all insulation as asbestos unless otherwise
 identified.  Minutes in evidence of meetings between the shipyard and
 the union indicate that the 606 boat had been equipped with brow signs
 and small tags by the October 3, 1983 meeting.
 
    Luvisi and Frost conceded that the 606 boat is substantially well
 marked.  Frost opined that about fifty additional small tags are needed
 in the lower level.  Perry contended, however, that in October 1983, the
 shipyard's agents told him that they had only equipped the boat with
 brow signs.  I do not credit Perry's statement.
 
    2) 631 Submarine
 
    Respondents' witnesses attested to installation of small tags on the
 631 submarine after its ripout phase.  Weinert testified, however, that
 a week after ordering workers to tag the boat, he saw five tags in the
 engine room and none in the AMR-2.
 
    The shipyard ordered two employees to tag the AMR-2 in the 631 boat
 on August 14, 1984 and the engineering spaces on August 15, 1984.  Perry
 and Luvisi saw the employees during their tour of the boat on August 14:
  "They had a big box of signs-- they were marking everything as fast as
 they could." One of these employees testified that she posted about
 fifty small tags at that time.  She saw two tags already hanging in the
 AMR-2, and "a couple" tags in the engine room that were "dirty like they
 had been there for a while."
 
    According to Perry and Luvisi, they saw no small tags in the engine
 room on August 14.  Herman testified that he had worked on the boat
 since February 1984 and saw no small tags until August 16, 1984.
 Froehling testified that he saw no small tags in early August 1984 and
 estimated that more than one hundred were needed.
 
    3) The 605 and 678 Submarines
 
    According to respondents' witnesses, the 605 and 678 submarines were
 tagged in October or November 1983.  Priority was given to the 606 boat,
 since damage was more likely to occur during the ripout phase.  Frost
 testified that in August 1984 he saw a few small tags on the side of the
 605 boat and none on the lower level.  He saw three in the engine room
 which, in his opinion, needed several hundred, and none in the AMS,
 which needed 50 to 100.  Luvisi was on the 605 boat on two occasions
 during the six months preceding the hearing and on the 678 boat within
 five weeks of the hearing, and claims he saw no small tags on either
 boat.
 
    Tags which have been posted may be removed by painters or mechanics
 during the course of their work.  Most of the painting occurs in between
 the reinstallation phase and testing phase, but some painting is
 completed after the ripout phase.  The 631 submarine had not reached the
 testing phase at the time of the hearing.  Mechanics are apt to work on
 a boat at any time after the ripout phase.  Respondents attempt to
 replace tags that have been removed.
 
    Some tags are also removed before sea trial during the finishing
 phase of the overhaul because they are not authorized by the Department
 of the Navy as permanent fixtures.  The 605 and 678 boats have been in
 the finishing phase since May 1984.  Employees represented by the union
 work on the submarines after the finishing phases.
 
    Order forms in evidence show that respondents ordered 1,000 small
 tags in August 1983, 5,000 in September 1983 and 1,000 in February 1984
 In addition, respondents introduced into evidence a memorandum dated
 February 21, 1984 in which Weinert ordered Shop 64 to tag the 631 boat.
 
    D. SURVEILLANCE
 
    Prior to the McCrory award, respondents surveyed work areas for
 asbestos damage on a weekly basis.  Respondents increased surveillance
 to a daily basis in the spring of 1983 and to every shift, after
 issuance of the McCrory award.  In addition, respondents attempted to
 involve supervisors and employees in surveillance efforts.  Supervisors
 are required to make three surveillance tours per shift.
 
    E. ADDITIONAL MEASURES
 
    The Asbestos Recovery Control Team was instituted as part of the "As
 Low As Reasonably Achievable" (ALARA) program, the Department of the
 Navy program to minimize employee exposure to hazardous materials such
 as asbestos.  ALARA was applied to asbestos in late 1980 or early 1981.
 After the McCrory award, the program became more formalized;  for
 instance, in September 1983 Code 106, the shipyard Office of Health and
 Safety, hired a full-time manager for the asbestos ALARA program who
 secured a van for the ARC Team and established a hot-line.  Two
 employees from Shop 64 are now assigned on a full-time basis to the team
 each month.  The ARC Team needs seven to twelve minutes to respond to a
 call, whereas Code 106 formerly required one hour.
 
    Employee awareness has also improved.  In addition to supplying
 signs, posters and hard hat stickers advertising the ARC Team,
 respondents have presented slide shows and formal lectures.  Respondents
 have also published several articles on the subject in the shipyard
 magazine.  The number of reports of potential asbestos problems has
 increased by 400%.
 
    Respondents developed a water-injection procedure which reduces the
 risk of asbestos particles remaining after a ripout.  /11/ Water
 combined with a solvent enhancing its wetting properties is injected
 into the insulation, thereby reducing airborne levels during the ripout.
 
    In approximately February 1984, respondents introduced glove bags,
 vinyl or plastic bags used to isolate areas during "minor ripouts"
 conducted while unprotected workers are in the area.  Last, respondents
 established a spill log to monitor asbestos problems.
 
    F. AIR MONITORING TECHNIQUE
 
    Rather than develop its own procedure for monitoring airborne
 asbestos, respondents requested the National Institute of Occupational
 Safety and Health (NIOSH) to conduct research and develop a new
 technique.  Respondents decided that they lacked the credibility to
 develop a procedure which would be accepted by the community.
 Respondents are in the process of implementing a new method introduced
 by NIOSH in February 1984.
 
    G. JOINT ASBESTOS SAFETY COMMITTEE
 
    In approximately March 1983, the union established a Safety and
 Health Committee.  Joe Diewicki, director of industrial relations,
 informed the union that respondent considered the new committee to be
 strictly internal union business and would not allow use of official
 time for its activities.
 
    After issuance of the McCrory award, the shipyard initiated meetings
 with the union and employees to discuss health and safety issues.  These
 meetings continued until January 1984.  Clark told Perry that it was not
 the committee mandated by McCrory and that the Department of the Navy
 prohibited him from establishing such a committee.  Captain J.F. Yurso,
 then shipyard commander, and Mason also told union officials that the
 shipyard was not allowed to establish the McCrory committee.
 
    Mazzuchi solicited volunteers to participate in the meetings between
 the shipyard, the union and employees.  Minutes in evidence indicate
 that attendance varied generally from five to seven persons.  The union
 was permitted to select its representatives.  There were no limitations
 on health and safety issues to be discussed.  The shipyard's Office of
 Health and Safety had the authority to implement recommendations
 submitted by Clark as a result of these deliberations.
 
    Clark testified:  "When we established the meetings, we agreed it did
 not meet the letter of the McCrory award.  I was not allowed to do that
 but our full intention was to do exactly what the McCrory award asked
 for." He conceded that respondents did not technically comply with the
 McCrory award.
 
    On July 23, 1984, the parties entered into a Memorandum of
 Understanding establishing the McCrory committee.
 
    H. ENVIRONMENTAL DIFFERENTIAL PAY
 
    Respondents have paid environmental differential pay only in cases of
 actual exposure.  /12/ For instance, one recipient was struck by a chunk
 of asbestos weighing three to four pounds.  Another recipient was
 installing a flange when asbestos spilled out of the pipe.  In both
 cases, employees standing nearby also received payment.  Some employees'
 claims have been denied because they could not provide airborne samples
 taken after actual exposure.
 
    In order to collect, an employee must follow a procedures established
 in the parties' collective bargaining agreement.  /13/ The employee
 files a complaint with the supervisor, who may agree that environmental
 pay is warranted and annotate the employee's time card accordingly.
 This determination is reviewed by a labor-relations specialist.  If the
 supervisor disagrees with the employee, the employee may grieve the
 decision.  The union may also initiate a claim for environmental
 differential pay on behalf of an employee.
 
    Perry testified that respondents could monitor, with difficulty, the
 whereabouts of its employees.  It would have to secure information from
 every trade.  Respondents attempt to identify for the medical action
 surveillance program all employees exposed to asbestos.
 
    Prior to the McCrory award, respondents were obligated to pay the
 environmental differential when the airborne concentration exceeded 2
 fibers/cc.
 
                        Discussion and Conclusions
 
    The General Counsel has established by a preponderance of evidence
 that respondents have violated section 7116(a)(1) and (8) of the Statute
 by failing to comply with a final and binding arbitration award, issued
 on July 28, 1983 by Arbitrator McCrory, directing the shipyard to
 improve asbestos conditions on the submarines and pay environmental pay
 until such steps have been taken.
 
    As a threshold issue, respondents contend that the case should be
 dismissed on procedural error.  It reasons that because the Authority
 did not rule on the October 21, 1983 exceptions to the award until June
 27, 1984, the award was not "final and binding" within the meaning of
 section 7122 of the Statute when the General Counsel issued the
 consolidated complaint in this matter.  The time for filing timely
 exceptions expired on August 31, 1983.  Based on previous Authority
 actions when exceptions to an arbitrator's award were untimely filed,
 finding an agency's subsequent refusal to implement an award as
 violative of section 7116(a)(1) and (8) of the Statute, the General
 Counsel's actions clearly were appropriate.  Furthermore, Respondents'
 reliance on U.S. Soldiers' and Airmen's Home, Washington, D.C., 15 FLRA
 No. 26, 15 FLRA 139 (1984), is misplaced.  In that case, the agency had
 not failed to comply with an arbitration award because timely exceptions
 were pending before the Authority.  In the instant case, exceptions
 filed by the Department of Navy were not timely.
 
    Respondents also assert as a defense their good faith belief that the
 exceptions were timely, because the arbitrator retained jurisdiction for
 ninety days and because clarification requests were pending before the
 arbitrator.  An agency acts at its own peril in disregarding the
 thirty-day deadline.  /14/ Section 7122 plainly states:  "If no
 exception to an arbitrator's award is filed under subsection (a) of this
 section during the 30-day period beginning on the day of such award, the
 award shall be final and binding".  /15/ The law in that area is
 abundantly clear;  therefore, respondents' argument must be rejected.
 
    In addition respondents contend that the arbitration award at issue
 is more appropriately interpreted through the negotiated grievance
 procedure.  Although respondents state unequivocally that they complied
 with the award by August 31, 1983, they argue that the "amorphous steps
 management takes' standard" precludes evaluation of compliance in an
 unfair labor practice proceeding.  While the arbitrator did not
 condition compliance upon a specific level of airborne concentration,
 neither did he leave the parties without guidance as to the safeguards
 to which employees working on submarines are entitled.  It is my view
 that a reading of the award in its entirety dispels any notion of its
 ambiguity.  Assuming, arguendo, that the award were ambiguous, I would
 still consider the unfair labor practice proceeding to be the proper
 forum for this matter as it stands.  Any contention that an arbitrator's
 award is deficient because it is contrary to law, rule or regulation
 must be made by invoking the procedures established by Congress in
 section 7122(a) of the Statute.  If a party fails to file exceptions to
 the arbitrator's award pursuant to section 7122(a), within the 30 day
 period established therein, the award becomes final and binding and
 "(a)n agency shall take the actions required by an arbitrator's final
 award" /16/ Department of the Navy, Portsmouth Naval Shipyard,
 Portsmouth, New Hampshire, 17 FLRA No. 13, 17 FLRA 40 (1985);
 Department of Defense, Department of the Navy, U.S. Marine Corps U.S.
 Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA No. 137,
 15 FLRA 568 (1984).  Similarly, if a party fails to assert the ambiguity
 of an arbitration award in timely exceptions pursuant to section
 7122(a)(2), /17/ or in a request to the arbitrator for clarification, it
 is in my opinion barred from later doing so in an unfair labor practice
 proceeding.  A party should not benefit from its failure to invoke the
 procedures established in the Statute.
 
    In the award at issue, Arbitrator McCrory clearly stated that "the
 circumstances and conditions described in items 1 through 4 on page 23
 above unnecessarily increase the potential for exposure to airborne
 asbestos, over that which is inherent due to the general presence of
 asbestos.  They are a potential source of exposure which could be
 controlled by measures which would not place an unreasonable burden on
 the Agency." On page 23 he recommended that respondent 1) mark unremoved
 asbestos, 2) remove more asbestos, 3) install more durable and effective
 protective coverings, and 4) institute more frequent surveillance.
 Arbitrator McCrory repeated references to "unnecessary exposure" and
 "unnecessary potential exposure" several times in the award and in the
 responses to the parties' requests for clarification.  In the response
 to the union's request, he again stated:  "This (the Federal Personnel
 Manual), 1 concluded, requires that employees receive environmental pay
 if they are exposed to conditions like those described on page 23 of the
 Award." /18/
 
    The parties read differently McCrory's directive to remove additional
 asbestos.  On brief, respondents stated:
 
       General Counsel literally reads McCrory's language on page 23 to
       the extent he mentions lagging "which is sufficiently exposed to
       be damaged during the overhaul" yet concurrently overlooks other
       portions of the award and the overall context of the award itself.
        For example, on pages 22 and 23 McCrory limits his discussion to
       asbestos lagging left in work areas "where the risk of damage
       during the overhaul is substantial."
 
    A reading in its entirety of the paragraph to which respondents refer
 militates against respondents' interpretation:
 
    The record also shows that asbestos lagging and other asbestos
 materials are exposed and routinely damaged while unprotected workers
 are engaged in the overhaul of submarines.  According to Mr. Weinert,
 prior to a ripout, insulation is tested to determine what is and what is
 not asbestos.  Yet, lagging which is found to be asbestos is not marked
 or labeled and exposed asbestos lagging is left (after a ripout) in work
 areas where the risk of damage during the overhaul is substantial.
 Conceding the accuracy of Agency's statement that it would not be
 practical to remove all asbestos lagging, there is no apparent
 justification for not removing the lagging which is sufficiently exposed
 to be damaged during the overhaul, thereby causing a potential hazard in
 the work area.
 
    Arbitrator McCrory did not emphasize that the risk of damage must be
 substantial;  rather, he emphasized the need to remove asbestos which is
 at least sufficiently exposed to be damaged.  Further, McCrory
 reiterated in the award:  "The Agency has not explained why lagging
 which is sufficiently exposed to be damaged by employees working in an
 overhaul could not be removed, thus removing a potential source of
 airborne asbestos."
 
    Similarly, in his response to the union's request for clarification,
 McCrory made it plain that some quantity of asbestos greater than that
 found in the general environment would no doubt remain in the
 submarines.  He was equally emphatic in the award, however, that all
 asbestos which is sufficiently exposed to be damaged is an unnecessary
 hazard.  McCrory specifically rejected the assumption that there is a
 "safe" level of exposure.  I cannot accept as a "differing and arguable"
 conclusion respondents' contention that accessible asbestos must be
 removed only from areas where risk of damage is substantial, that is,
 high traffic areas.
 
    Testimony concerning unremoved asbestos on the 606 submarine is by no
 means conclusive.  August or September 1983;  however, the second ripout
 did not occur until October 1983.  Further, although Frost estimated
 that 100 feet of accessible asbestos remained on the boat, he did not
 specify whether the material was hot or cold system asbestos.  Mazzuchi
 conceded that a substantial percentage of asbestos remains in both the
 engine room and the AMS because it is inaccessible or because it is cold
 system asbestos.  It is uncontroverted that cold system asbestos is
 generally innocuous.
 
    Spill logs in evidence, however, indicate that the boat sustained
 asbestos damage on numerous occasions between January and March 1984.
 Two out of eight entries show damage to asbestos insulation in the
 engine room.  /19/ On brief, respondents claimed that the problems
 reported in the spill logs were "largely in areas above things, behind
 things, or below things".  It is particularly irrelevant under these
 circumstances that they were low traffic areas since they were obviously
 sufficiently accessible to become damaged.  Once exposed, any asbestos
 may become airborne through the daily motion in the submarine.  The
 spill logs, maintained as part of the shipyard's day to day operations,
 show that accessible asbestos remained on the 606 boat in early 1984,
 and that actual damage indeed occurred.  Respondents were, therefore, in
 violation of the arbitration award with respect to the 606 boat.  /20/
 
    The 631 submarine is also the subject of numerous spill log entries.
 In addition, 1 find testimony by witnesses for the General Counsel
 convincing that the boat was in substandard condition as late as August
 1984.  Credible accounts by Perry, Frost, Froehling and Luvisi of
 considerable employee exposure to loose asbestos materials caused by
 damaged insulation can only lead to the conclusion that respondents
 failed to remove enough insulation during the ripout.  This testimony is
 corroborated by results in evidence of tests taken by the ARC Team on
 the 631 boat after the union's inspection.  It is again irrelevant that
 respondents' witness characterized the locations of the damage as low
 traffic areas.  The record is devoid of evidence that exposed asbestos
 in low traffic areas cannot become airborne and is not dangerous.  In
 any case, the lithium bromide plant, targeted by the General Counsel's
 witnesses as a problem area, does not appear to be a low traffic area.
 
    In addition, tagging on the 631 boat was deficient.  The last minute
 tagging admittedly ordered by respondents around August 14 and 15, 1984
 indicates respondents awareness of non-compliance in that area.  That
 the employee assigned to tag the boat saw two tags already in the AMR-2
 and "a couple" in the engine room does not excuse the need to hang at
 least fifty.  Although the evidence shows that 1,000 tags were February
 7, 1984, and it reveals that Weinert directed the tagging of the 631
 boat on February 21, 1984, there is no showing that this tagging
 actually took place.  Weinert admitted that when he checked up on his
 order a week later he saw only five tags in the engine room and none in
 the AMR.  He did not testify that his employees ever corrected the
 situation.  Herman testified that the boat had no tags from February to
 August 1984.  I credit Herman where his testimony conflicts with that of
 Belmont and Mazzuchi on this point.
 
    Having found violations of the award with respect to the 606 and 631
 boats, I turn to the boats which entered the shipyard prior to issuance
 of the award.  Arbitrator McCrory ordered compliance with the award "to
 the extent practicable" for overhauls already in progress.  The General
 Counsel did not attempt to prove that it would have been practicable to
 conduct second ripouts on the 605 and 678 boats in order to remove more
 asbestos insulation.  The 678 was in its reinstallation phase and the
 605 in its testing phase when the award was issued.  To minimize risk,
 however, respondents were obligated to survey and tag the boats, and
 provide protective coverings.  Respondents do not assert that these
 criteria are inapplicable to the 605 and 678 boats, but state that the
 risk of damage is minimal because fewer workers are in the boats and
 because damage is most likely to occur during the ripout.  Nevertheless,
 spill log entries for these boats, recorded during their testing phases
 between January and March 1984, demonstrate that damage can and does
 occur after the ripout phase.
 
    By respondents' own admission, the 605 and 678 boats had been devoid
 of tags since May 1984 because they were in the portion of the finishing
 stage during which unauthorized objects must be removed from the boats.
 Since employees work on the boats before and after the sea trial,
 respondents certainly are obligated in order to be in compliance with
 the McCrory award to provide the protections mandated by the award.
 Notwithstanding objections at this point, respondents did not raise this
 issue in timely exceptions and are, in my opinion, precluded from
 raising the Navy policy as a defense at this time.  Department of the
 Defense, Department of the Navy, United States Marine Corps, United
 States Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA
 at 687.  Thus, respondents were in violation of the award with respect
 to all four submarines at issue.  /21/
 
    The parties disagree over the method of payment of environmental
 differential pay.  Respondents assert that individual employees must
 claim EDP under Article 20, Section 3 of the collective bargaining
 agreement and grieve if compensation is refused.  The General Counsel
 claims that all employees working in proximity to conditions on the ship
 triggering EDP are automatically entitled to payment and that the bonus
 is on respondent to make payment.
 
    It appears illogical that the arbitrator would award EDP, but then
 prolong respondents' violation of the contract by having each employee
 apply separately.  Involvement of the negotiated grievance procedure
 would further complicate rather than expedite the process.  Moreover,
 pursuant to respondents' interpretation, the award does not afford a
 remedy;  it merely triggers the remedy already provided by the
 collective bargaining agreement, thereby making the entire process up to
 this point a futile exercise which could not resolve the already
 existing different interpretations of the parties.
 
    Respondents claim that this procedure is necessary to ensure that
 each recipient was exposed to the unsafe conditions.  This solution
 actually creates more problems than it solves.  Since employees are
 entitled to EDP for potential as well as actual exposure, it is unclear
 how often employees who work regularly in ships would have to reapply
 for payment.  Potential exposure is a continuous state.  In this
 respect, work done in proximity to asbestos is similar to work done at
 dangerous heights.  Thus, the danger is always there and the employee is
 being paid for the potential rather than an actual hazard.  Respondents
 assert that in the latter situation, the collective bargaining agreement
 allows supervisors to initiate assignment of EDP.  I find that the award
 cannot be reasonably construed to require each employee to seek EDP
 individually.  Nor can it reasonably be construed to require payment
 only when a supervisor initials requests for payment of EDP.
 
    In light of all the foregoing, it is found that respondents have not
 fulfilled their obligation pursuant to section 7122 of the Statute and,
 thus, have violated section 7116(a)(1) and (8) of the Statute.  /22/
 
                                The Remedy
 
    Having found that the respondents have engaged in certain unfair
 labor practices I will recommend that they cease and desist therefrom
 and to take affirmative action designed to effectuate the policies of
 the Statute.
 
    Section 7118(a)(7) of the Statute provides that backpay is an
 appropriate remedy where the unfair labor practice of an agency has
 resulted in loss of pay to its employee.  Similarily, the Statute
 incorporates the backpay provisions at 5 U.S.C. 5596 which provides for
 backpay in instances where an employee has been adversely affected by an
 unfair labor practice.  Under 5 U.S.C. 5596 the employee or employees
 must establish that "but for" the wrongful unilateral act of an agency,
 a loss of pay would not have occurred.  The record in this case supports
 a finding that "but for" respondents unilateral act in not implementing
 the arbitrators award employees working on the various submarines
 involved would have received environmental differential pay during
 periods that substandard asbestos conditions were maintained aboard a
 particular submarine.
 
    Although the matter has been extensively litigated, the record in my
 view, does not clearly establish all periods of potential liability for
 respondents.  During the course of the hearing it was suggested that a
 backpay proceeding might be necessary in order to calculate the
 employees entitlement to environmental differential pay, if any.
 Preliminarily, it appears that certain employees may be entitled to
 compensation from October 26, 1983 until such time as respondents prove
 compliance with the arbitration award.  If respondents are able to
 demonstrate compliance with the award for any submarine during any
 period of time after October 26, 1983, then liability should be
 diminished accordingly.  Whether such a back pay hearing should be
 ordered should be left to those in charge of compliance of the instant
 Decision, the Authority's order or a court decree, as the case might be,
 to see how payment could best be carried out.
 
    At this juncture, I would recommend however, that respondents be
 ordered to preserve and upon request, make available to the Authority or
 its agents, for examination and copying all payroll records, time cards,
 personnel records and reports and all other records necessary to analyze
 the amount of backpay due under the terms of this order.  /23/
 
    It is recommended that the Authority adopt the following order:
 
                                   ORDER
 
    Pursuant to 5 U.S.C. 7118 and section 2423.26 of the Final Rules and
 Regulations of the Federal Labor Relations Authority, U.S. Fed.Reg.
 3482, 3510 (1980), its is hereby ordered that Department of the Navy and
 Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
 Hampshire, shall:
 
    1. Cease and desist from:
 
       (a) Failing and refusing to comply with Arbitrator John P.
       McCrory's July 28, 1983 arbitration award by maintaining
       substandard asbestos conditions on submarines undergoing overhaul
       and by refusing to pay environmental differential pay.  (b) In any
       like or related manner interfering with, restraining, or coercing
       employees in the exercise of their rights assured by the Federal
       Labor-Management Relations Statute.
 
    2. Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute.
 
       (a) Fully comply with Arbitrator John P. McCrory's July 28, 1983
       arbitration award by conforming asbestos conditions on submarines
       undergoing overhaul to the standard established in the pay until
       such steps have been taken.  (b) Preserve and upon request, make
       available to the Authority or its agents, for examination and
       copying, all payroll records, time cards, personnel record and
       reports, and all other records necessary to analyze the amount of
       backpay due under the terms of this order.  (c) Post at the
       Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
       Hampshire copies of the attached notice marked "Appendix." Copies
       of said notice, to be furnished by the Regional Director for
       Region 1, after being signed by an authorized representative,
       shall be posted immediately upon receipt thereof, and thereafter,
       in conspicuous places, including all places where notices to
       employees are customarily posted.  Reasonable steps shall be taken
       to insure said notices are not altered, defaced, or covered by
       other material.  (d) Notify the Regional Director for Region 1, in
       writing, within 30 days from the date of this order, as to what
       steps have been taken to comply herewith.
 
                                       (s)---
                                       ELI NASH, JR.
                                       Administrative Law Judge
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ The shipyard objects to the General Counsel's motion on the
 ground that section 7118(a)(4)(A) of the Statute applies to the pleading
 of new parties as well as issues or causes of action.  The acts and
 conduct of higher level agency management may constitute an unfair labor
 practice where such conduct prevents agency management at the level of
 exclusive recognition from fulfilling its obligation to comply with a
 final and binding arbitration award.  Department of Health and Human
 Services, Region II, 15 FLRA No. 139, 15 FLRA 710, 711, fn. 2 (1984).
 The record reveals that the Department of the Navy was instrumental in
 at least the delay in implementation of the Joint Asbestos Safety
 Committee.  Further, the Department of the Navy filed the exception;  to
 the award.  In view of its cognizance of the proceedings and active
 participation, the Navy will not be prejudiced by the General Counsel's
 motion.  Furthermore, failure to comply with an arbitration award
 constitutes a continuing violation;  thus, the six month statute of
 limitations cannot bar an action against the Department of the Navy.
 See Department of Defense, Department of the Air Force, 31st Combat
 Support Group, Homestead Air Force Base, 13 FLRA No. 41, 13 FLRA 239,
 246, fn. 8 (1983).  Hereinafter, the Department of the Navy and the
 shipyard will be known collectively as "respondents."
 
 
    /2/ Article 20 provides in relevant part:
 
    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 3. Cognizant supervisors, When assigning employees to work
 for which environmental pay is indicated, shall so inform the employee.
 If at any time any employee believes that environmental pay is
 warranted, the employee should call the matter to the attention of his
 immediate supervisor who will make (or obtain) a determination and
 advise the employee.  The employee may exercise his right to be
 represented by a Council steward when discussing environmental pay.
 
 
    /3/ FPM Supplement 532-1 Appendix J prescribes those working
 conditions for which environmental pay may be warranted.  Category 15
 (Asbestos) provides for payment of an 8% differential for:
 
       Working in an area where airborne concentrations of asbestos
       fibers may expose employees to potential illness or injury and
       protective devices or safety measures have not practically
       eliminated the potential for such personal illness or injury.
 
 
    /4/ Article 29 provides in relevant part:
 
    Section 1. Each employee has the responsibility to work safely.  The
 Employer will make every reasonable effort to provide and maintain safe
 working conditions.  The Council will cooperate in these efforts and
 encourage employees to work in a safe manner.
 
 
    /5/ These corrective actions were listed on page 23 of the award.
 
 
    /6/ See Portsmouth Naval Shipyard, 15 FLRA No. 28, 15 FLRA 181
 (1984).
 
 
    /7/ George Weinert, an industrial hygienist, testified that almost
 all of the hot system asbestos in the entire submarine was removed.
 
 
    /8/ John Froehling, union steward, concurred with this description.
 
 
    /9/ Frost corroborated this testimony by Perry and Luvisi.
 
 
    /10/ Although Mason, Belmont and Weinert testified that the small
 tags were posted on or about August 29, 1983, 1 credit Mazzuchi on this
 point since he was held responsible by Belmont for the development and
 installation of the tags.
 
 
    /11/ At the end of a ripout, a ship is also vacuumed before employees
 outside Shop 64 are allowed to enter.
 
 
    /12/ Although Mason claimed that environmental differential pay had
 been paid for potential exposure, his testimony was contradicted by
 Perry, Luvisi, and Belmont, respondents' witness.  In addition, Mason
 could not identify any employee who received such payment.  On the basis
 of the entire record, 1 credit Perry, Luvisi and Belmont.
 
 
    /13/ See footnote 1.
 
 
    /14/ U.S. Department of the Interior, Bureau of Land Management,
 Eugene District Office, 6 FLRA No. 72, 6 FLRA 401 (1981), cited by
 respondents in support of their good faith belief, is inapposite in that
 it involved a response to a clarification request which gave rise to
 deficiencies asserted by the agency in its exceptions.
 
 
    /15/ In this regard, respondents' compliance with the award will be
 evaluated from October 26, 1983 when the arbitrator relinquished
 jurisdiction, rather than from June 27, 1984, as urged by the
 respondents.
 
 
    /16/ See section 7122(b) of the Statute.
 
 
    /17/ Section 7122 provides in relevant part:
 
       (a) Either party to arbitration under this chapter may file with
       the Authority an exception to any arbitrator's award pursuant to
       the arbitration ... If upon review the Authority finds that the
       award is deficient -- (2) on other grounds similar to those
       applied by Federal courts in private sector labor-management
       relations;  the Authority may take such action and make such
       recommendations concerning the award as it considers necessary,
       consistent with applicable laws, rules or regulations.
 
 
    /18/ The General Counsel asserts that the only conditions which
 trigger entitlement to environmental pay are the presence of free
 asbestos material and unremoved asbestos lagging.  In view of McCrory's
 explicit reference to "items 1 through 4 on page 23," I am in agreement
 with the other parties that the triggering "conditions" include all four
 corrective actions listed on page 23 of the award.
 
 
    /19/ G.C. Exh. S-29 involves cold system asbestos;  however, the
 record does not show that exposed cold system asbestos is completely
 safe.  Cold system asbestos is less dangerous partially because it is
 less likely to become exposed.
 
 
    /20/ The evidence is largely uncontroverted that the 606 boat was
 sufficiently marked.  In addition, 1 find it unnecessary to make a
 credibility finding regarding the use of protective coverings on the 606
 boat in view of the above conclusion.
 
 
    /21/ In view of the above conclusions, I deem it unnecessary to make
 credibility determinations regarding the use of protective coverings on
 the 631, 605 and 678 submarines.  In addition, respondents have complied
 with item 4 on McCrory's list by increasing surveillance on all the
 boats from a weekly to shift by shift basis.
 
 
    /22/ In view of this conclusion, I find it unnecessary to determine
 whether respondents' conduct was also in violation of section 7116(a)(5)
 of the Statute.
 
 
 
 
 
 
                               APPENDIX A
 
                          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