28:0209(34)CA - Navy and Navy, Portsmouth Naval Shipyard (Portsmouth, NH) and Richard Pearl and Victor Porro and Portsmouth FEMTC -- 1987 FLRAdec CA



[ v28 p209 ]
28:0209(34)CA
The decision of the Authority follows:


28 FLRA No. 34

DEPARTMENT OF THE NAVY AND
DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
(PORTSMOUTH, NEW HAMPSHIRE)

             Respondent

      and

RICHARD PEARL

      and

VICTOR PORRO

      and

PORTSMOUTH FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO

             Charging Party

Case Nos. 1-CA-30303
            1-CA-30305
            1-CA-30306
     (21 FLRA No. 30)

DECISION ON REMAND

This matter is before the Authority on remand from the United States Court of Appeals for the First circuit, Department of the Navy v. FLRA, No. 86-1506 (March 31, 1987). In that decision, the court declined to enforce our decision which found that the Department of the Navy and the Portsmouth Naval Shipyard had violated Section 7116(a)(1) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) by failing to comply with an arbitration award. The court found it "unquestionable that the Shipyard must take the actions required by the award," and remanded the case to us for proceedings consistent with its opinion.

We find that we are unable to ascertain from the arbitration award and the Administrative Law Judge's decision whether the actions of the Shipyard in dispute comply with that award. Consequently, we are unable to resolve whether the Shipyard has committed violations of the Statute, as [PAGE] alleged. Due to this uncertainty, this matter must be remanded to the Judge with the direction that he order the parties to obtain a clarification and interpretation of the award from the Arbitrator.

Accordingly, we vacate our order in Department of the Navy, Portsmouth, New Hampshire, 21 FLRA No. 30 (1985). Pursuant to section 2423.29 of the Authority's Rules and Regulations, this matter is remanded to the Judge who shall order the Shipyard and the Portsmouth Federal Employees Metal Trades Council to resubmit the award, either jointly or separately, to the Arbitrator to obtain a clarification and interpretation. The resubmission to the Arbitrator is for the limited purpose of having the Arbitrator clarify and interpret his award. In particular, and without prejudice to any other matters on which the Arbitrator may choose to comment, clarification should be requested on the following:

1. Was it your intention that the award in this arbitration would be the direct source for category 16 environmental differential pay (EDP) on and after July 28, 1983, or merely the standard under which such claims by individual employees would be resolved in accordance with the established procedures for individual employees claiming entitlement to EDP?

2. In your award you concluded that "(t)here is room for corrective action to remove potential sources of airborne asbestos fibers on submarines' and you provided "examples." You also stated that you did not propose "an impossible burden of cleanliness, but rather measures designed to substantially reduce but not eliminate risk." What type and amount of corrective action undertaken by the Shipyard were intended to be sufficient to comply with the direction in your award "to take corrective action."? How, in your view, is compliance with this standard to be measured?

On receipt of this remand, the Judge shall direct the parties to resubmit this matter to the Arbitrator within 14 days and within 14 days of receipt of the clarification to resubmit the matter to the Judge: The Judge shall take whatever action is necessary to issue a decision and recommended order on remand, consistent with the decision of the Court of Appeals, based on the Arbitrator's award as [ v28 p2 ] clarified. Any party may file exceptions to the Judge's decision on remand with the Authority.

Issued, Washington, D.C., July 29, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LAB