United States, Army Corps of Engineers, Waterways Experiment Station, ERDC, Vicksburg, Mississippi (Respondent/Agency) and American Federation of Government Employees, Local 3310 (Charging Party/Union)

[ v61 p258 ]

61 FLRA No. 51

UNITED STATES
ARMY CORPS OF ENGINEERS
WATERWAYS EXPERIMENT STATION
ERDC, VICKSBURG, MISSISSIPPI
(Respondent/Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3310
(Charging Party/Union)

AT-CA-01-0305
(59 FLRA 835 (2004))

_____

DECISION AND ORDER

September 23, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel (GC). The Respondent filed an opposition to the GC's exceptions.

      In 59 FLRA 835 (2004), the Authority remanded this case for a hearing to resolve the complaint. The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) in two respects: by failing to negotiate in good faith before executing an agreement concerning insulated coveralls, and by subsequently repudiating that agreement. The Judge found, as relevant here, that the Respondent did not repudiate the agreement. [n1] 

      For the reasons discussed below, we deny the GC's exceptions to the Judge's findings and conclusions and dismiss the complaint.

II.     Background and Judge's Decision

      The background, which is set forth in 59 FLRA 835, and the Judge's decision are summarized here.

      In June 2000, the parties negotiated an agreement that required the Respondent to provide insulated coveralls to unit employees. [n2]  In December 2000, the Respondent notified the Union that it would not implement the agreement because the purchase of special clothing was unlawful pursuant to a 1984 decision by the Comptroller General, Matter of Down-Filled Parkas, 63 Comp. Gen. 245 (1984) (Alaska Down-Filled Parkas). The GC issued a complaint alleging that the Respondent repudiated the agreement in violation of § 7116(a)(1) and (5) of the Statute.

      At the pre-hearing conference with the Judge, the parties agreed that the legality of the parties' agreement was the dispositive issue in the case, and the Respondent subsequently requested and received a decision from the Comptroller General entitled Matter of Purchase of Insulated Coveralls, Vicksburg, Mississippi, B-288828 (October 3, 2002) (Mississippi Insulated Coveralls).

      The Respondent subsequently filed a motion to dismiss the complaint predicated on the Comptroller General's decision in Mississippi Insulated Coveralls. The GC filed an opposition to the Respondent's motion to dismiss and a motion for summary judgment. As relevant here, without holding a hearing, the Judge dismissed the allegation that the Respondent repudiated the agreement on the basis of the Comptroller General's decision in Mississippi Insulated Coveralls.

      In 59 FLRA 835, the Authority found that the Judge's reliance on the Comptroller General's decision in Mississippi Insulated Coveralls in dismissing this allegation was not appropriate. The Authority noted that the Comptroller General's decision in Mississippi Insulated Coveralls stated that weather-related protective clothing may be furnished by the government if the agency head determines the clothing to be necessary under OSHA, 29 U.S.C. § 668(a), and its implementing regulations and standards. The Authority noted that the decision further stated that an agency may use appropriated funds to furnish insulated coveralls so long as the agency determines the coveralls to be necessary under § 668(a). Specifically, under § 668(a), the head of each Federal agency must "establish and maintain an effective and comprehensive occupational safety and health [ v61 p259 ] program" that is consistent with applicable standards promulgated by the Secretary of Labor. [n3]  In particular, § 668(a)(2) provides that

The head of each agency shall (after consultation with representatives of the employees thereof)--
. . . .
(2) acquire, maintain, and require the use of safety equipment, personal protective equipment, and devices reasonably necessary to protect employees[.]

      The Authority found that "[t]he question that must be resolved in this case is whether the Respondent, in accordance with § 668(a)(2), made a determination that providing insulated coveralls to unit employees was reasonably necessary." 59 FLRA at 838. However, the Authority was unable to determine whether the Respondent had made such an OSHA determination given the lack of record evidence on this point. In this respect, the Authority noted that the Comptroller General's decision did not address the GC's claim that the parties' coveralls agreement itself constituted a determination by the Respondent that the insulated coveralls were necessary under OSHA. Accordingly, the Authority remanded the complaint to the Judge for hearing and to make factual findings "particularly as to whether the Respondent's Chief Negotiator was authorized as the agency head's designee to make such a determination on behalf of the Respondent." Id. at 838-39. In this respect, the Authority noted that since the parties' insulated coveralls agreement was not in the record, the Authority could not "tell whether the agreement itself contained any terms relevant to determining whether the agency head had delegated his discretion to the Respondent's Chief Negotiator." Id. at 839.

      On remand, as relevant here, the Judge held a hearing and made the factual findings and conclusions regarding the following three separate issues:

(a)      Whether the Respondent, in accordance with OSHA, 29 U.S.C. §668(a)(2), made a determination that the issuance of insulated coveralls to bargaining unit employees was reasonably necessary;
(b)      Whether the insulated coveralls agreement itself constituted a determination that the coveralls were necessary under OSHA, 29 U.S.C. §668(a)(2); and
(c)      Whether the Respondent's Chief Negotiator was authorized to make a determination of OSHA necessity on behalf of the Respondent.

Judge's Decision at 3-4.

      As relevant here, with respect to the first issue, the Judge found that the Respondent "did not make a determination of OSHA necessity either before or after the commencement of negotiations over the agreement[.]" Id. at 16. The Judge found that the subject of coveralls was initially raised at a labor-management partnership council meeting in December 1999. The Judge noted that the Union President (Smith) testified that the coveralls matter was discussed by the Commanding Officer, the Director of Public Works/Chief Negotiator and himself in a meeting immediately following the partnership council, during which the Commanding Officer "stated that he thought that it was a good idea to provide coveralls to employees and told [the Chief Negotiator] to consult with the legal department [to] find a way to do it legally." Id. at 5. The Judge noted that the Chief Steward corroborated the Union President's testimony regarding the Commanding Officer's instructions to the Chief Negotiator to consult with the legal department. The Judge noted that contrary to the testimony of the Union witnesses, the Chief Negotiator testified that he did not remember any such meeting where the Commanding Officer directed him to consult with the legal department in order to provide the coveralls to employees.

      Also, the Judge found that prior to the execution of the agreement in June 2000, the Chief Negotiator purchased 24 sets of coveralls in January 2000. The Judge noted that the Chief Negotiator testified that he did not consult with the legal department prior to purchasing the coveralls and executing the coveralls agreement since he believed that the coveralls agreement would be legal based on decisions of the Comptroller General, specifically Alaska Down-Filled Parkas. The Judge noted that the Chief Negotiator testified that "he was not concerned about OSHA standards, but only wished to ensure that employees would be protected during severe weather conditions[,]" particularly ice storms. Judge's Decision at 7 (citing Tr. at 145, 154-55). [ v61 p260 ]

      The Judge found that after the execution of the agreement, the Chief Negotiator "first learned from the Respondent's auditing and legal departments that the agreement was considered to be illegal." Id. On December 13, 2000, the Chief Negotiator provided the Acting President of the Union with a memorandum from the legal department, which concluded that the expenditure of appropriated funds to purchase coveralls for the Vicksburg employees would be unlawful.

      With respect to the second issue, the Judge found that the Insulated Coveralls Agreement "contains no language which refers to OSHA or to the protection of employees while working under hazardous conditions." Id. at 6.

      Lastly, regarding the third issue, the Judge concluded that the Chief Negotiator did not have actual or apparent authority to make the determination that the coveralls were necessary under OSHA. In this respect, the Judge found that "[t]he uncontroverted evidence shows that [the Chief Negotiator] did not consider OSHA either in the procurement of the coveralls or in the negotiation of the insulated coveralls agreement." Id. at 14. Moreover, the Judge found that the testimony of the Safety Officer "indicates that he, rather than [the Chief Negotiator], had the actual authority to make the necessary determination" under OSHA. Id. The Judge noted that under Article 30 of the parties' collective bargaining agreement, concerning Occupational Safety and Health, the Safety Officer has the authority to make determinations regarding hazardous conditions. Id. at 12. Further, the Judge found "no evidence to support the GC's contention that [the Chief Negotiator's] authority to negotiate the coveralls agreement included the implied authority to determine whether the coveralls were necessary within the context of OSHA." Id. at 14.

III.     Positions of the Parties

A.      GC's Exceptions

      The GC excepts to the Judge's decision that the Respondent did not violate § 7116(a)(1) and (5) of the Statute on two grounds. First, the GC maintains that "the Judge erred by concluding that the Respondent did not determine that the provision of insulated coveralls was necessary under the OSHA guidelines[.]" Exceptions at 8. The GC maintains that the Judge made this erroneous conclusion by ignoring material facts and instead relying on "[the Chief Negotiator's] testimony that he did not consider OSHA and the fact that the agreement did not mention OSHA." Id. at 9-10. The GC contends that the Judge was "overly technical on this point" and that "[t]he exact word `OSHA' should not have to appear in the agreement." Id. at 10. The GC further contends that the Judge "ignored [the Chief Negotiator's] testimony that he did consider OSHA in determining to purchase the [24 pairs of] insulated coveralls." Id. (citing Tr. at 156).

      Moreover, with respect to the Judge's finding that the Safety Officer was the appropriate official to make OSHA determinations, the GC contends that the Judge ignored the Safety Officer's testimony that he merely makes recommendations to the Commanding Officer, who has the discretion to reject these recommendations. The GC argues that "it is clear that the Commanding Officer . . . at the time, or his designee, is the appropriate official to make OSHA determinations[.]" Id. at 11. In support of this claim, the GC notes that Article 30, section 21, "requires the Safety Officer . . . to evaluate humidity and temperature readings and for the Employer . . . to initiate action necessary to correct situations deemed unsafe." Id. Thus, contrary to the Judge's findings, the GC maintains that the Commanding Officer or his designee can also make OSHA determinations.

      Second, the GC maintains that the Judge erred in concluding that the Chief Negotiator "did not have actual or apparent authority to determine that the provision of insulated coveralls w[as] necessary under [OSHA] guidelines." Id. at 14. In this respect, the GC argues that "the Respondent was aware that [the Chief Negotiator] purchased [the] insulated coveralls and took no disciplinary action toward him, did not disavow th[e] purchase, and did not even advise [the Chief Negotiator] not to act in this manner again." Id. at 15. The GC maintains that "the Respondent acquiesced to this purchase . . . based on the lack of any restrictions on [the Chief Negotiator's] purchasing ability." Id. Moreover, the GC contends that "based upon [the Commanding Officer's] instructions, in the presence of Union representatives, that [the Chief Negotiator] find a way to lawfully provide [the] insulated coveralls, it is clear that [the Chief Negotiator] possessed both actual and apparent authority to purchase insulated coveralls." Id.

B.     Respondent's Opposition

      The Respondent maintains that the Judge properly concluded that it did not determine that insulated coveralls are necessary to comply with OSHA or its implementing regulations at the ERDC in Vicksburg. The Respondent maintains that the GC's reliance on the Commanding Officer's alleged statement to the Chief Negotiator to find a legal way to purchase the coveralls, "even if true, does not have any probative value as to the issue of an OSHA determination." Opposition at 7. In [ v61 p261 ] this respect, the Respondent maintains that the GC "completely ignores the fact that the Respondent's Safety Office conducted a hazardous condition analysis and specifically concluded that only certain electricians needed insulated coveralls." Id. at 8. According to the Respondent, even if the Commanding Officer told the Chief Negotiator to find a way to purchase the coveralls, "the Respondent still could not employ OSHA as the basis for purchasing the coveralls for employees other than electrical linemen." Id.

      Moreover, contrary to the GC's claim that the Respondent determined that the coveralls were necessary under OSHA since the Respondent failed to discipline the Chief Negotiator for purchasing the coveralls, the Respondent maintains that the Chief Negotiator's "error does not warrant any disciplinary action[,]" and the Chief Negotiator "was under the reasonable impression that he was acting properly." Id.

      Lastly, the Respondent maintains that the Judge properly concluded that the Chief Negotiator lacked actual or apparent authority to determine whether insulated coveralls were necessary under OSHA. The Respondent contends that the Chief Negotiator's testimony establishes that he "lacked . . . knowledge of OSHA requirements[,]" and that "[he] was not thinking of OSHA" when he executed the agreement. Id. at 9 (citing Tr. at 144). In the same vein, the Respondent claims that the Union President testified that OSHA was not discussed during negotiations of the agreement. The Respondent also maintains that the agreement neither states that the coveralls were being provided to meet OSHA requirements nor specifically mentions OSHA.

IV.     Analysis and Conclusions

      In 59 FLRA 835, the Authority found that "[t]he question that must be resolved in this case is whether the Respondent, in accordance with § 668(a)(2), made a determination that providing insulated coveralls to unit employees was reasonably necessary." 59 FLRA at 838. However, the Authority was unable to determine whether the Respondent had made such an OSHA determination given the lack of record evidence on this point. Specifically, the Authority noted that the Comptroller General's decision did not address the GC's claim that the parties' coveralls agreement itself constituted a determination by the Respondent that the insulated coveralls were necessary under OSHA. To resolve the GC's claim, the Authority remanded the complaint to the Judge to make factual findings "particularly as to whether the Respondent's Chief Negotiator was authorized as the agency head's designee to make such a determination on behalf of the Respondent." Id. at 838-39. In this respect, the Authority noted that since the parties' insulated coveralls agreement was not in the record, the Authority could not "tell whether the agreement itself contained any terms relevant to determining whether the agency head had delegated his discretion to the Respondent's Chief Negotiator." Id. at 839. Thus, on remand, the critical and dispositive issue was "whether the Respondent's Chief Negotiator was authorized as the agency head's designee to make[,]" through negotiations with the Charging Party, such a determination under OSHA that the coveralls were necessary. Id.

      As relevant here, the Judge found that the Chief of Safety and Environmental Management (Safety Officer), "rather than [the Chief Negotiator], had the actual authority to make the necessary determination" under OSHA. Judge's Decision at 14. The Judge noted that under Article 30 of the parties' collective bargaining agreement, the facility Safety Officer has the authority to make determinations regarding hazardous conditions. Id. at 12. Further, the Judge found "no evidence to support the GC's contention that [the Chief Negotiator's] authority to negotiate the coveralls agreement included the implied authority to determine whether the coveralls were necessary within the context of OSHA." Id. at 14. The Judge found that "[t]he uncontroverted evidence shows that [the Chief Negotiator] did not consider OSHA either in the procurement of the coveralls or in the negotiation of the insulated coveralls agreement." Id.

      We find that substantial evidence in the record, including the wording of the insulated coveralls agreement, supports the Judge's determination that the Respondent's Chief Negotiator had not been delegated authority to make the OSHA determination. In this regard, the record evidence supports the Judge's conclusion that consistent with the parties' CBA, the Safety Officer was the appropriate official to make assessments of hazardous conditions under OSHA. Section 21 of Article 30 of the parties' CBA requires that the "Employer . . . take temperature and humidity readings in situations where heat/cold stress may impact worker safety and health[,]" and that "the[se] findings shall be evaluated by the facility Safety Officer[.]" GC's Exhibit 14, Article 30 of CBA, Section 21, at 99. Contrary to the GC's claims, the Judge did not find that the Safety Officer was the only person or official authorized to make OSHA determinations. In fact, the Judge noted that the industrial hygienist conducted a detailed Position Hazard Analysis of all positions at the Vicksburg facility for the Respondent. Moreover, the Respondent's [ v61 p262 ] Station Regulation 385-1-3 states that "the Safety and Occupational Health Office, [u]pon request, . . . shall assist supervisors in the proper selection of personal protective clothing and equipment to ensure that adequate protection is provided." The Station Regulation states that the Safety and Occupational Health Office is responsible for assisting in the selection and use of personal protective clothing and equipment through: "(1) monitoring of employees' exposure, (2) accident analyses, (3) medical surveillance, and (4) inspection of workplaces." GC's Exhibit 17, Section 9(b) at 4. Thus, we find that the GC has not demonstrated that the Judge erred in concluding that the Safety Officer was the appropriate official to make assessments of hazardous conditions under OSHA.

      Moreover, we reject the GC's argument that the Chief Negotiator had both actual and apparent authority to make an OSHA determination and to purchase the insulated coveralls. The GC's claim is predicated on the testimony of the Union's President and Chief Steward that the Commanding Officer instructed the Chief Negotiator to consult with the legal department to find a way to provide the coveralls. See Tr. at 48, 128. However, the Chief Negotiator testified that he did not recall any such meeting or instructions from the Commanding Officer. See Tr. at 141. The Judge did not make any factual findings regarding this conflicting testimony as to whether the Commanding Officer so instructed the Chief Negotiator. See Judge's Decision at 4-5. Nonetheless, assuming arguendo that the Commanding Officer instructed the Chief Negotiator to consult with the legal department to find a way to provide the coveralls, any authorization to the Chief Negotiator to provide the coveralls would have been contingent on obtaining approval from the legal department. It is undisputed that the Chief Negotiator did not consult with or receive approval from the legal department prior to purchasing the coveralls or negotiating the agreement. Lastly, the insulated coveralls agreement does not contain any terms that indicate that the agency head or Commanding Officer otherwise delegated his authority to the Chief Negotiator to make the OSHA determination.

      In these circumstances, we find that the GC has not demonstrated that the Judge erred in finding that the Chief Negotiator did not have the authority to make the OSHA determination to provide the coveralls. In light of the Chief Negotiator's lack of authority to make the OSHA determination, the parties' agreement is not enforceable. [n4] 

      Accordingly, based on the foregoing, we deny the GC's exceptions to the Judge's findings and conclusions, and dismiss the complaint.

V.     Order

      The complaint is dismissed.


APPENDIX

      Insulated Coveralls Agreement

      1.      Consistent criteria will be applied to determine when insulated coveralls are to be provided to employees of U.S. Army Engineer Research and Development Center (ERDC)/Waterways Experiment Station who are asked to perform work in Vicksburg during what is defined as other-than-normal winter weather conditions.

      2.     Other-than-normal winter weather conditions is defined as: When an employee is in a duty status, including responses to winter emergencies after hours, and the temperature is less than 35 degrees Fahrenheit. National Weather Service wind chill factor will be used to adjust the actual measurement. For example, if the actual temperature were 40 degrees, but the wind chill factor made it seem to be 30 degrees, then issuance of the insulated coveralls would be appropriate. To determine whether other-than-normal temperatures exist, a permanent thermometer will be placed inside the south end of Hanger #4. At the start of the work period, if there is a question about the appropriateness of issuing insulated coveralls, representatives from the Union and management will jointly check the thermometer.

      3.     Insulated coveralls will be issued for use during working hours only. The insulated coveralls will be the property of the United States Government. Management will be responsible for cleaning the insulated coveralls when they become soiled. Replacements [ v61 p263 ] will be given as needed, due to wear and tear.

      4.     For identification purposes, the insulated coveralls will be identified "Property of ERDC" in a location selected jointly by a Union and a management representative. The same set of insulated coveralls will be issued to an employee if they are available; a serial number will be imprinted in an inconspicuous location on the coveralls to help identify them for this purpose.

      5.     An employee is expected to furnish his or her own winter clothing for conditions that normally exist at the location for which the employee was hired.

      6.     For employees on TDY to work at exterior locations such as Alaska and other high-latitude locations, insulated coveralls will be issued prior to their departure for turn-in when the employee returns.

Joint Exhibit 1.


File 1: Authority's Decision in 61 FLRA No. 51
File 2: ALJ's Decision


Footnote # 1 for 61 FLRA No. 51 - Authority's Decision

   The Judge also found that the Respondent did not fail to negotiate in good faith before executing the agreement. No exception was taken to this determination, and we do not discuss it further.


Footnote # 2 for 61 FLRA No. 51 - Authority's Decision

   The parties' agreement is set forth in the attached Appendix.


Footnote #