25:0277(19)CA - Norfolk Naval Shipyard and Tidewater Virginia FEMT Council -- 1987 FLRAdec CA



[ v25 p277 ]
25:0277(19)CA
The decision of the Authority follows:


 25 FLRA No. 19
 
 NORFOLK NAVAL SHIPYARD
 Respondent
 
 and
 
 TIDEWATER VIRGINIA FEDERAL
 EMPLOYEES METAL TRADES
 COUNCIL, AFL-CIO
 Charging Party
 
                                            Case No. 34-CA-50389
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached decision in these
 proceedings.  He found that the Respondent had not engaged in the unfair
 labor practices alleged in the complaint, and he recommended that the
 complaint be dismissed.  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, we have reviewed the rulings of the Judge made at the hearing.
 We find that no prejudicial error was committed, and we affirm those
 rulings.  Upon consideration of the Judge's decision and the entire
 record, we adopt the Judge's findings, conclusions and recommended
 Order.
 
                                   ORDER
 
    The complain in Case No. 34-CA-50389 is dismissed.
 
    Issued, Washington, D.C., January 20, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 34-CA-50389
 
    NORFOLK NAVAL SHIPYARD
    Respondent
 
                                    and
 
    TIDEWATER VIRGINIA FEDERAL
    EMPLOYEES METAL TRADES
    COUNCIL, AFL-CIO
    Charging Party
 
    Mr. Robert J. Gilson
    For the Respondent
 
    Mr. A. J. Walker
    For the Charging Party
 
    Patricia Eanet Dratch, Esquire
    For the General Counsel, FLRA
 
    Before:  GARVIN LEE OLIVER
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns an unfair labor practice complaint issued by
 the Regional Director, Region III, Federal Labor Relations Authority,
 Washington, D.C., against the Norfolk Naval Shipyard (Respondent), based
 on an amended charge filed by the Tidewater Virginia Federal Employees
 Metal Trades Council, AFL-CIO (Charging Party or Union).  The complaint
 alleged, in substance, that Respondent violated sections 7116(a)(1) and
 (5) of the Federal Service Labor-Management Relations Statute, 5 U.S.C.
 Section 7101 et seq. (the Statute), by requiring all Shop 07 employees
 who are respirator qualified and whose work assignments do not normally
 require respirator protection to remain clean shaven in the area of the
 face seal of the respirator at all times.  The complaint alleged that
 the Respondent implemented this alleged change in the working conditions
 of unit employees without affording the Union prior notice and an
 opportunity to bargain over the change and its impact and
 implementation.
 
    Respondent's answer admitted the jurisdictional allegations, but
 denied that it had made a change or violated the Statute.
 
    A hearing was held in Norfolk, Virginia.  The Respondent, Charging
 Party, and the General Counsel were represented and afforded full
 opportunity to be heard, adduce relevant evidence, examine and
 cross-examine witnesses, and file post-hearing briefs.  The General
 Counsel and the Respondent filed briefs.
 
    The General Counsel contends that a practice developed in Shop 07
 whereby respriator qualified employees who do not routinely require
 respirator protection could grow facial hair in the area of the face
 seal, and that this practice ripened into a condition of employment
 which could not be unilaterally changed by management.  The General
 Counsel points out that the practice, as testified to by Union officials
 and employees, comports with the Shipyard Instruction on this matter.
 
    Counsel for the General Counsel presented testimony from the Union
 president, the Shop 07 chief steward, shop steward, and from six unit
 Shop 07 employees.  These witnesses testified that prior to February
 1985 it was the practice that respirator qualified employees in Shop 07
 who did not routinely use respirators could grow facial hair in the area
 of the face seal except during training.  Mr. A. J. Walker, Union
 president, acknowledged that he had no direct knowledge of the practices
 in the shop, but rather relied on his stewards and chief steward to
 inform him.  Mr. Howard E. Briggs, shop steward, has worked in Shop 07
 for about ten years.  He has been respirator qualified during most of
 this period and testified as to the above practice and use of
 respirators.  He did not keep track of which of the 200 employees were
 respirator qualified.  If he saw an employee with a beard he would have
 no direct knowledge of whether the employee was respirator qualified or
 not unless he asked him or was told.  Chief Steward William W. Brown,
 Jr. has worked in Shop 07 for seven years.  He is not respirator
 qualified, but has talked with lots of employees who are.  He also
 testified that he had not sought to find out exactly which employees
 were respirator qualified.  If he saw an employee with a beard he would
 not know whether the employee was respirator qualified or not unless he
 had talked with the employee or researched the matter.  Brown testified
 that most employees do not carry respirator cards.  Dwight Geddis,
 formerly a cement finisher in Shop 07, was not respirator qualified at
 the time of the hearing.  Approximately four and a half years ago he had
 been respirator qualified for a period of three years.  This
 qualification was on an on and off basis.  Mitchell Batten, a
 pipefitter, was not respirator qualified at the time of the hearing, but
 was qualified during the period of 1981-1983.  David Morris, a high
 voltage cable splicer, and Richard Davidson, an electrician, have been
 respirator qualified for seven and four years respectively, but only
 recently have been issued their respirator qualification cards.  John
 Woodall, a sheetmetal mechanic, was respirator qualified in
 approximately August 1984.  However, since November 1984 he has been
 assigned to painting and maintenance work outside of the controlled
 industrial area pending resolution of a clearance matter.  Charlie B.
 Taylor, Jr., a high voltage electrician, was respirator qualified for
 the face-to-face respirator for three years from approximately 1981 to
 1984.  He used the respirator about once a year.  He shaved his beard
 only for respirator training.
 
    Respondent defends on the basis that no management official ever knew
 or knowingly acquiesced in a past practice of allowing respirator
 qualified employees of Shop 07 to grown facial hair in the area of the
 face seal, and the requirement to be clean shaven in the area of the
 facial seal was the reaffirmation of a long standing policy.  Respondent
 presented testimony from three individuals who do not work directly in
 Shop 07 (a supervisory industrial hygienist, supervisory training
 instructor, and labor relations specialist) as well as four upper level
 managers in the Shop (the superintendent and three general foremen).
 The General Counsel urges that Respondent's failure to bring forth any
 first line supervisors compels the drawing of an adverse inference that
 their testimony would not have corroborated that of the upper level
 managers.  I see no basis for drawing such an inference in the
 circumstances described.  I have credited major portions of the
 testimony of Respondent's witnesses as set forth in the following
 findings.
 
    Based on the entire record, including my observation of the witnesses
 and their demeanor, I make the following findings of fact, conclusions
 of law, and recommendations.
 
                             Findings of Fact
 
    1.  At all times material, the Union has been certified as the
 exclusive representative of an appropriate unit of Respondent's
 employees, including, inter alia, employees assigned to Respondent's
 Shop 07.
 
    2.  The Union and the Respondent are parties to a collective
 bargaining agreement effective April 4, 1977.  Article 33, Section 1
 provides a procedure for the Union or Respondent to file and process
 grievances which allege, inter alia, "the improper application of
 Shipyard directives. . . ."
 
    3.  On July 9, 1982 Respondent issued NAVSHIPYDNOR Instruction
 10470.6B on respiratory protection.  Paragraph 5.e.(5), 6.b.(1) (a),
 6.e.(1), and 10.d.(2) and 10.d.(3)(c) provide as follows:
 
          5.  Responsibilities
 
                       . . . . . .
 
 
          e.  Employees will:
 
                      . . . . . .
 
 
          (5) in situations where respiratory protection requiring a
       facepiece-to-face seal is routinely required, e.g., electroplating
       facility, waste treatment facility, insulators, firefighters,
       etc., be clean shaven in the area of the face seal of the
       respirator at all times while in a pay status(.)
 
                      . . . . . .
 
 
          6.  Selection and Use of Respirators
 
 1@@ . . . . . .
 
          b.  Respirator Issue
 
          (1) Respirators shall only be issued to those employees
       qualified to the requirements of this instruction and possessing a
       valid respirator fitting card. . . . Respirator issue is also
       permitted to the following individuals:
 
          (a) Shipyard employees not normally engaged in work requiring
       respirators, who must enter a work area on a one-time only basis,
       provided that the employee has written authorization from his
       supervisor and is accompanied by a qualified employee who will
       inform him of the hazards involved and ensure that the respirator
       is properly selected and worn.  Such employees must be medically
       qualified and meet the requirements of paragraph 6c(1), (2), and
       (3), page 9.
 
          NOTE:  Shop personnel which may be required to work in a
       respirator area on an intermittent but routine or regular
       anticipated basis must have a respirator fitting card.
       Intermittent is not one-time only.
 
                      . . . . . .
 
 
          e.  Use of Respirators -- Normal Operations
 
          (1) Shipyard Policy on Facial Hair
 
          (a) All employees must be cleanly shaven during their initial
       qualification and subsequent biannual requalification training for
       respirators requiring a face-to-face piece seal.
 
          (b) All employees whose work assignment routinely requires
       respiratory protection having a face-to-face piece seal shall be
       cleanly shaven in the area of the face seal of the respirator
       while in a pay status. (c) When an employee must perform a job
       which requires a respirator having a face-to-face piece seal, he
       shall be cleanly shaven in the area of the face seal of the
       respirator.
 
          NOTE:  Where jobs do not normally require respiratory
       protection, employees may grow facial hair.  When required to wear
       a respirator utilizing a face-to-face piece seal, employees must
       be cleanly shaven in the area of the face seal of the respirator.
 
 1@@ . . . . . .
 
          10.  Training
 
                      . . . . . .
 
 
          d.  Certification
 
                      . . . . . .
 
 
          (2) Upon completing of employees training, the instructor shall
       issue a qualification card . . . to each trainee.  This
       qualification is valid for 2 years.  A new card shall be issued
       upon requalification.
 
          (3) An employee may lose his qualification at any time his
       supervisor or code 106 personnel determine any of the following:
 
                      . . . . . .
 
 
          (c) conditions which prevent a good face seal, such conditions
       may be growth of beard, sideburns, skullcap that projects under
       the facepiece, or temple pieces on glasses (an employee who grows
       facial hair that interferes with the face seal of the respirator
       after being trained and fitted, is automatically disqualified
       until clean shaven again)(.)
 
    4.  The respiratory protection instruction was negotiated with the
 Union prior to its issuance.  The discussion concerning facial hair was
 brief.  The Union proposed that employees be permitted to grow facial
 hair that did not interfere with the seal.  This proposal was
 immediately accepted by management and became part of paragraph 6.e.(b).
  The rest of the instruction was rewritten to conform to the
 proposition.  The discussion of which jobs would normally or routinely
 require respirator protection was very brief.  Management put forth the
 view that an employee in any trade who could reasonably be expected to
 use a respirator at any given time should be clean shaven in the area of
 the seal at all times, but that an employee who goes into a respirator
 area on a one-time only basis or was assigned to a job that did not
 require respirator use may grow facial hair.  In management's view this
 understanding was set forth in paragraph 6.b.(1).  At the Union's
 request, some examples of the kinds of jobs were respirators would be
 required on a routine basis were inserted in paragraph 5.e.(5).  The
 list was not definitive.
 
    5.  For at least the last two or three years each new employee has
 been required to sign a preemployment agreement that he will shave if
 required to do so in the performance of his job.
 
    6.  Shop 07 is in the public works department.  Supervision is
 provided by a general superintendent, three general foreman, and fifteen
 supervisors.  The shop has a total of about 207 employees.  It is
 composed of three service areas:  electrical, mechanical, and ground
 structures.  Employees work all over the Norfolk Naval Shipyard and some
 of its annexes on emergency, routine, and service calls.  Employees
 never know what kind of conditions they will encounter in an emergency.
 The employees include sheet metal mechanics, electricians, pipefitters,
 cement finishers, welders, railroad workers, and insulators.  There is
 no dispute that insulators are required to be clean shaven at all times.
 
    7.  In the past insulators have worn respirators almost all of the
 time while performing insulation duties.  Approximately 30 employees of
 various trades who work on the hazardous waste response team have also
 worn respirators almost all of the time while dealing with hazardous
 wastes.  The other employees, such as sheet metal mechanics,
 electricians, pipefitters, cement finishers, and welders, seldom have
 worn respirators in connection with their work assignments.  The use of
 respirators by these latter employees has ranged from once a year to
 never in 10 years.
 
    8.  The policy of Shop 07 since at least 1978 is that all Shop 07
 employees must be respirator qualified, and all employees who are
 respirator qualified and possess a respirator card must be clean shaven
 in the area of the facial seal at all times.  Shop 07 management
 maintains that any employee may be required to wear a respirator on a
 moment's notice anywhere on the base, and the only way to ensure his
 ability to do so is for him to report wo work each day clean shaven.  It
 does not matter to management how often the employee may be required to
 use a respirator to perform his work assignments.
 
    9.  There is no dispute that when an employee's medical qualification
 or training expires, he is permitted to grow whatever facial hair he
 wishes until he becomes qualified again.
 
    10.  An employee must undergo a medical examination and complete a
 four hour training course in order to become respirator qualified and to
 be issued a qualification card.  All employees within Shop 07 are
 required to be clean shaven during respirator training.  That part of
 the training dealing with NAVSHIPYDNOR Instruction 10470.6B is taught at
 one time.  Employees are taught that the instruction must be read as a
 whole since only complying with individual parts could violate other
 paragraphs of the instruction.  Employees are given the blanket
 instruction that respirator qualified employees must be clean shaven in
 the area of the face seal.
 
    11.  On February 15, 1980 Maintenance Foreman Charles G. Insley was
 charged with insubordination for refusing to remove a growth of beard
 and to obey orders to report to work clean shaven on 20 occasions in
 September and October 1980.  It was alleged that the growth of beard
 prevented a good face seal for a respirator and was contrary to
 NAVSHIPYDNOR Instruction 10470.6.  An agency demotion of Insley was
 upheld by a presiding official of the Merit Systems Protection Board on
 November 16, 1981.
 
    12.  The job description of cement workers was amended in April 1981
 to provide that the "majority of duties of this position will be work
 assignments where the use of a respirator is required, therefore, the
 incumbents of this position will be required to wear a respirator and be
 respirator qualified." In 1982 the job descriptions of other workers in
 the shop were amended to state, "Should work be assigned which requires
 the use of a respirator, the incumbent of this position will be required
 to wear a respirator and be respirator qualified."
 
    13.  On June 28, 1984, Maintenance Superintendent W. R. Darden sent a
 memorandum to all foremen in Shop 07 reminding them that the
 NAVSHIPYDNOR Instruction prohibited the wearing of any facial hair that
 would prevent a good face seal with a respirator.  He requested
 supervisors to pay close attention to employees to ensure compliance and
 to take corrective action if violations were found.
 
    14.  It is the responsibility of the individual supervisor to make
 sure employees have an up-to-date qualification card.
 
    15.  Prior to approximately February 1985 supervisors did not have an
 accurate computer print-out of who was or was not currently respirator
 qualified.  In approximately February 1985 a new computer print-out of
 employee names and the dates of their current medical and training
 qualification was developed to help supervisors monitor employee
 qualifications.  The print-out was also developed to shorten the time
 lag between the expiration date of the medical and training
 examinations, the reexaminations, and the reports of the results of such
 examinations.
 
    16.  In February 1984 supervisors advised employees with respirator
 cards that they had to be clean shaven at all times.  This policy was
 also announced at a Shop 07 safety meeting on approximately March 5,
 1984.
 
    17.  As of April 1985 approximately 85 employees or 43 percent of
 employees in Shop 07 were not respirator qualified or had an expired
 medical or training qualification date.  (Res. Ex. 1).  Approximately 12
 employees were not respirator qualified as of the date of the hearing.
 
    18.  By letter dated February 26, 1985 the Union advised Respondent
 that its policy of requiring all Shop 07 employees holding respirator
 cards to be clean shaven at all times violated the Shipyard Instruction.
  The Union requested that Respondent cease and desist and adhere to the
 provisions of the Instruction.  By memorandum dated March 1, 1985,
 Respondent replied that no violation or change had occurred.  Respondent
 stated that the requirement that all personnel who are respirator
 qualified remain clean shaven in the area of the face seal while in a
 pay status was an ongoing practice.
 
                Discussion, Conclusions, and Recommendation
 
    The parties recognize that under Authority precedent a unilateral
 change in an established condition of employment regarding facial hair
 growth by respirator qualified employees would violate the Statute.  See
 United States Department of Defense, Department of the Air Force,
 Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 8
 FLRA 740 (1982).
 
    It is well established that parties may establish terms and
 conditions of employment by practice, or other form of tacit or informal
 agreement, and that this, like other established terms and conditions of
 employment may not be altered by either party in the absence of
 agreement or impasse following good faith bargaining.  Department of the
 Navy, Naval Underwater Systems Center, Newport Naval Base, 3 FLRA 413
 (1980).  Past practices generally include all conditions of employment
 not specifically covered in the parties' collective bargaining agreement
 which are followed by both parties, or followed by one party and not
 challenged by the other party over a period of time.  Past practices may
 also include the actual practice being followed, regardless of the
 contractual agreement.  In order to constitute the establishment by
 practice of a term and condition of employment the practice must be
 consistently exercised for an extended period of time with the agency's
 knowledge and express or implied consent.  Internal Revenue Service and
 Brookhaven Service Center, 6 FLRA No. 127 (1981);  Department of the
 Navy, supra.  Essential factors in this regard are that the practice
 must be known to management, responsible management must knowingly
 acquiesce, and such practice must continue for some significant period.
 Department of Health, Education and Welfare, Region V, Chicago, Illonis,
 4 FLRA No. 98 (1980);  Department of Health and Human Services, Social
 Security Adminstration, 17 FLRA No. 25, 17 FLRA 126 (1985).
 
    The record does not establish Respondent's implied knowledge and
 consent to the alleged practice by mutual acceptance and action.  There
 is, and apparently has never been, a meeting of the minds on what the
 policy on facial hair is under the negotiated Shipyard instruction.  The
 General Counsel and the Charging Party essentially contend that the
 policy on facial hair is set forth in the note to paragraph 6.3. (1) of
 the negotiated Shipyard instruction.  Paragraph 6.3. (1) of the
 instruction supports the Charging Party's view while paragraphs 5.e.
 (5), 6.b. 1(a), and 10.d. (2) and (3)(c) of the instruction support
 Respondent's view of the existing policy on facial hair.  /1/ The record
 also shows that employees are instructed during respirator training that
 respirator qualified employees must be clean shaven in the area of the
 face seal.  Also, in June 1984, the Shop 07 superintendent sent a
 memorandum to all foremen requesting supervisors to enforce the Shipyard
 Instruction which, in part, prohibits the wearing of any facial hair in
 the area of the face seal by respirator qualified employees.
 
    The record also does not establish that management knowingly
 acquiesced in such a practice.  The record reflects that prior to April
 1985 approximately 43 per cent of Shop 07 employees were not respirator
 qualified or had expired medical or training qualification dates.  There
 is no dispute that such employees may wear facial hair in the area of
 the respirator seal.  Therefore, while some, and at times, numerous,
 Shop 07 employees were wearing facial hair, there is no showing that
 such employees were known by management to be currently respirator
 qualified.
 
    The record reflects that it was Respondent's policy that respirator
 qualified employees be clean shaven in the area of the facial seal.  It
 was the responsibility of individual supervisors to enforce the policy.
 However, the record reflects that prior to February 1985 supervisors did
 not have accurate records concerning who was or was not currently
 respirator qualified.  Under such circumstances, and in view of the fact
 that employees who were not currently respirator qualified could wear
 facial hair, the laxity in enforcement does not amount to knowing
 acquiescence in a practice contrary to the policy.  Cf.  United States
 Department of the Treasury, Internal Revenue Service, Des Moines
 District, 13 FLRA 296, 308 (1983).
 
    It is concluded that a preponderance of the evidence does not
 establish a violation of section 7116(a)(1) and (5), as alleged.  Based
 on the foregoing findings and conclusions, it is recommended that the
 Authority issue the following Order.
 
                                   ORDER
 
    IT IS HEREBY ORDERED, t