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16:1083(142)CA LIUNA, LOCAL 1276 VS DOD, DLA -- 1984 FLRAdec CA

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The decision of the Authority follows:

16 FLRA NO. 142




     Charging Party

Case No. 9-CA-20439


The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleges in the complaint and recommending that the complaint be dismissed. The General Counsel filed exceptions to the Judge's Decision and the Respondent filed an opposition thereto.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendation that the complaint be dismissed. 1 [ v16 p1083 ]


IT IS ORDERED that the complaint in Case No. 9-CA-20439 be, and it hereby is, dismissed.

Issued, Washington, D.C., December 24, 1984

Henry B. Frazier III, Acting Chairman

Ronald W. Haughton, Member


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     Charging Party

Case No. 9-CA-20439

Anthony R. Carr, Esquire
        For the Respondent

Patricia J. Howze, Esquire
Stefanie Arthur, Esquire
        For the General Counsel

Mr. Marlin D. Tolbert
        For the Charging Party

        Administrative Law Judge


Statement of the Facts

This case arose as an unfair labor practice proceeding under the provisions of the Federal Service Labor - Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter called "the Statute"), and the Rules and Regulations issued thereunder.

The complaint alleges that representatives of the Defense Logistics Agency, Defense Depot Tracy, Tracy, California (hereinafter called [ v16 p1085 ] Respondent), committed unfair labor practices within the purview of Sections 7116(a)(1) and (5) of the Statute by unilaterally terminating Environmental Differential Pay (EDP) paid to Motor Pool Servicers in the Defense Depot Tracy Motor Pool, without providing notice to the Laborers' International Union, Local 1276, AFL - CIO (hereinafter called Charging Party or Union), and without providing the Charging Party an opportunity to bargain concerning the substance, and impact and implementation of the change; and by directly advising such employees of Respondent's intention to terminate EDP.

Counsel representing the Respondent argues that the complaint is barred by Section 7116(d) of the Statute, because it involves issues raised under a negotiated grievance procedure; that the Respondent had no duty to bargain over the elimination of EDP because the issue had been previously negotiated; that agreement had been reached concerning termination of the EDP in question; and that the termination of EDP was effectuated in accordance with an agreement reached by the parties.

The parties were represented by counsel during the hearing and were afforded full opportunity to be heard, adduce relevant evidence, and examine and cross-examine witnesses. Based upon the entire record herein, and other relevant evidence adduced at the hearing, and briefs filed by the parties, I make the following findings of fact, conclusions and recommendations.

Findings of Fact.

Agreement Relating to Payment of EDP

The record disclosed that a 1976 collective bargaining agreement governing the labor relations of the parties provided for the utilization of a neutral third party to complete an Environmental Pay Survey (Survey) for Federal Wage System Employees working at Defense Depot Tracy (Tr. 65, 74, 80-81). The parties agreed to utilize the services of Dr. Maurice Oberg, an expert in the field, to complete the Survey for the purpose of providing a basis for EDP eligibility determinations relating to environmental hazards as defined in Federal Personnel Manual Supplement 532-1, Appendix J (R. Exh. 5, Appendix I).

The record disclosed that a series of discussions between the parties preceded the agreement providing for the utilization of Dr. Oberg's services (Tr. 24). The Union was represented by Mr. Eudith Hendrix, then President of the Union, and Mr. Marlin D. Tolbert (Tr. 21. 25. 65). The Respondent was represented by Mr. Steve Collins, then the Depot's Labor Relations Officer; Mr. F.X. Hamel, the Civilian Personnel Officer, and [ v16 p1086 ] Mr. Dean Boswell 2 (Tr. 24-25, 39, 63, 65). The parties agreed that Dr. Oberg's Survey would be binding upon the parties with respect to prescribed levels of EDP to be paid for certain environmental hazards identified; the categories of employees entitled to EDP; and with respect to recommendations and conclusions for the correction of environmental hazards, and the subsequent elimination of EDP (Tr. 25, 63).

The Survey, dated June 28, 1978, reflects the following purpose:


The purpose of the above survey was to conduct a comprehensive survey of Defense Depot Tracy with the following objectives:

1. Depot work operations would be analyzed in order to identify environmental hazards, as defined by Federal Personnel Manual Supplement 532-1, Appendix J...

2. Present safety measures and/or protective devices would be analyzed and their effectiveness evaluated in terms of eliminating, for all practical purposes, the potential hazard.

3. Improved safety measures and/or protective devices would be recommended to eliminate the potential hazard where the current practice was found to be ineffective.

4. Hazards which could not be eliminated by item 3 above would be evaluated in accordance with the criteria of the FPM Supplement 532-1 in order to determine the applicability of Environmental Differential Pay (EDP).

5. Jobs which would be eligible for EDP from item 4 above would be identified. (R. Exh. 5 at page 1). [ v16 p1087 ]

The Survey established a basis for four percent EDP for Motor Pool Servicers while filling fork lift trucks and other mobile equipment with regular gasoline. The EDP was prescribed because of a "low degree of hazard" found to be present under the respiratory protection program then being utilized by the Respondent (Tr. 27-28, 47, R. Exh. 5, at page 7). Dr. Oberg recommended that organic vapor respiratory protection be used while filling gasoline powered fork lifts and other mobile equipment with regular gasoline; that electric powered fork lifts be utilized instead of gasoline powered units where their use is required in confined spaces; and that gasoline powered fork lifts be converted to burn propane, butane, or diesel, and be equipped with catalytic converters (Tr. 46-47, R. Exh. 5 at pages 5-6).

Negotiation of Procedure to be Utilized by Parties to Effect Discontinuance of EDP

Shortly after the issuance of the Oberg Survey representatives of the parties met with Dr. Oberg to discuss his findings and conclusions (Tr. 30). They also met separately on various occasions to discuss the methodology to be utilized in the elimination of environmental hazards and the elimination of EDP (Tr. 24-25, 30-31). However, the parties could not agree on what steps would effectuate elimination of the differential (Tr. 31). They did agree to meet with Dr. Oberg and let him determine the circumstances which would provide a basis for discontinuance of EDP (Tr. 31, 38).

Mr. Hendrix represented the Union and Mr. Boswell represented the Respondent in a meeting with Dr. Oberg on this narrow issue (Tr. 64-65, 76-77), and Dr. Oberg advised them that the Depot could be surveyed again by Dr. Oberg or any industrial hygienist to check the controls established and to determine whether or not a particular hazard had been "practically eliminated." He stated that having established that the hazard was practically eliminated, EDP relating to that hazard could then be discontinued (Tr. 31). The record reflects that questions concerning the method to utilize in selecting an expert to perform this evaluative function were not specifically resolved by the parties. 3 However, Mr. Hendrix and Mr. Boswell asked Dr. Oberg to present his conclusions in writing so that the parties would have a basis for making determinations concerning the elimination of EDP (Tr. 31-32). [ v16 p1088 ]

Dr. Oberg responded to the request for a written statement by letter dated December 5, 1978 addressed to Mr. Boswell (R. Exh. 6). The letter was drafted for the purpose of amending the original Survey prepared by Dr. Oberg. It reflects the following:

As a result of our discussion earlier today and to clear up any misunderstandings resulting from Environmental Pay Survey ... dated June 28, 1978 the following is offered as an addendum:


After implementation and demonstrated effectiveness of environmental controls stated in this report or other equivalent control methods the EDP could either be eliminated or reduced to a lower category.

The testimony of Mr. Tolbert established that the Union was aware of the fact that Dr. Oberg's Survey, as amended, contemplated the possible elimination of environmental hazards and EDP through appropriate changes in the work environment (Tr. 18, 21).

Discontinuance of Motor Pool Servicer EDP

On July 13, 1982, Mr. Stanley Jackson, Supervisor of the Motor Pool, advised affected bargaining unit employees directly that EDP would be eliminated on August 1, 1982. In letter dated July 13, 1982, and thereafter received by Mr. Tolbert on July 16, 1982, Mr. Hamel confirmed that this was indeed the case (G.C. Exh. 2). The decision was based on a recommendation prepared by Mr. Mike Jackson, a United States Army industrial hygienist who found that current operations presented "no significant exposure to motor pool servicers dispensing gasoline from tank truck to (material handling equipment)." He found that hazardous exposure had been "practically eliminated by the employment of proper filling techniques and the significantly reduced demands for gasoline as a fuel source." [ v16 p1089 ]

On the basis of the recommendation representatives of the Respondent determined that the Respondent had complied with Dr. Oberg's criteria for elimination of the Motor Pool Servicer EDP (Tr. 38). Evidence introduced established that the industrial hygienist utilized acceptable industrial hygiene standards, and that they were "similar" to those used by Dr. Oberg (Tr. 38, 41-42).

In a letter dated July 27, 1982, addressed to Mr. Hamel, Mr. Tolbert interposed objection to discontinuance of the EDP, stating that the Union was not satisfied with Mr. Jackson's report (G.C. Exh. 3). It was contended that the report, "may be unintentionally biased or faulty." He requested continuance of EDP until the Respondent showed the Union "a clarified comparison between (the) Oberg and Jackson conclusions."

On August 1, 1982, EDP was discontinued, and on August 12, 1982, Mr. Hamel wrote to Mr. Tolbert, in a further effort to justify Union adoption of Mr. Jackson's recommendation (G.C. Exh. 4).

Motor Pool Servicers File Grievance

Prior to the filing of a charge by the Union, a grievance was filed by three bargaining unit members employed as Motor Pool Servicers. The grievance, filed on August 23, 1982, sought continuance of EDP. It was rejected at the first three levels because it was not filed in a timely manner. However, the Depot Commander waived the untimeliness issue, and a fourth step grievance hearing was held on September 9, 1982. The sole issue presented by the grievance was whether the three bargaining unit members were entitled to EDP on the ground that the environmental hazard had not been eliminated (R. Exh. 4). The grievance was denied by the Depot Commander on September 10, 1982.

Discussion and Conclusions

A threshold issue is posed in this case by the Respondent's contention that the complaint is barred by Section 7116(d) of the Statute because of the filing of a grievance by three bargaining unit employees seeking restoration of EDP for Motor Pool Servicers. This argument must be rejected on the ground that the grievance raised issues other than those involved in the unfair labor practice complaint filed in this case. United States Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology Center, Newark, Ohio, 4 FLRA No. 70 (October 24, 1980), reversed on other grounds, 681 F.2d 466 (6th Cir. 1982); Department of the Air Force, Air Force Logistics Command, Ogden Air Logistics Center, Hill Air Force Base, Utah, 10 FLRA No. 22, 10 FLRA 88 (September 17, 1982). Moreover, the fact that the grievance was not filed by the Union in its institutional capacity as an aggrieved party, without more, precludes consideration of the grievance as a basis for barring the [ v16 p1090 ] complaint. United States Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology Center, Newark, Ohio, supra. Accordingly, it is concluded that the filing of the grievance did not constitute an election of remedies within the meaning of Section 7116(d).

The record reflects that the underlying dispute in this case is essentially one involving conflicting interpretations of an agreement reached by the parties. Under the provisions of the 1976 collective bargaining agreement the Respondent and the Union agreed to be bound by the findings and recommendations of a neutral third party on matters relating to EDP. They called upon Dr. Oberg to complete an Environmental Pay Survey, and thereafter, in accordance with their agreement, they effectuated Dr. Oberg's findings and conclusions relating to EDP.

Subsequently, representatives of the Respondent and the Union agreed to a further extension of their agreement when they decided to be bound by Dr. Oberg's opinion with respect to the methodology to be utilized by the parties to eliminate or reduce EDP. In accordance with this latter facet of their agreement, Dr. Oberg's Survey was amended by Dr. Oberg's December 5, 1978 letter, so as to provide for the elimination or reduction of EDP after implementation and demonstrated effectiveness of environmental controls referred to in Dr. Oberg's June 28, 1978 Survey, or other equivalent controls. The record is clear that Mr. Hendrix and Mr. Boswell negotiated a specific agreement with respect to the elimination or reduction of EDP. Testimony concerning this phase of the case was not contradicted. In fact, Mr. Tolbert's testimony reflects awareness of the fact that Dr. Oberg's Survey, as amended, contemplated elimination or reduction of EDP. It is true that the parties subsequently disagreed concerning the method used by the Respondent to eliminate EDP for Motor Pool Servicers. Nevertheless, the method selected by the Respondent was arguably within the meaning of the agreed upon addendum provided to the Respondent and the Union by Dr. Oberg for use in effectuating elimination or reduction of EDP. Since the parties agreed to be bound by the amendment of the Survey provided by Dr. Oberg, the issue presented is whether or not the elimination of EDP by the Respondent was effectuated in accordance with Dr. Oberg's December 5, 1978 addendum.

It is well settled that alleged unfair labor practices which essentially involve differing and arguable interpretations of a negotiated agreement, as distinguished from alleged actions which constitute clear and patent breaches of a negotiated agreement, are not deemed to be violative of the Statute. In such cases the aggrieved party's remedy lies within the grievance and arbitration procedures in the negotiated agreement rather than through unfair labor practice procedures. Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, 11 FLRA No. 90, 11 FLRA 516 (March 9, 1983); Iowa National Guard and National Guard Bureau, 8 FLRA No. 101 (1982), 8 FLRA 500; [ v16 p1091 ] Division of Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA No. 71 (1982), 8 FLRA 307; U.S. Patent and Trademark Office, 3 FLRA 123 (1980), 3 FLRA 824; Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 3 FLRA No. 82 (1980), 3 FLRA 512; Department of the Navy, Naval Weapons Station, Concord, California, 1 FLRA No. 13 (1979), 1 FLRA 133.

Here there is no evidence of a clear and patent breach and the complaint does not otherwise allege such a breach. The gravamen of each element of the complaint is that the Respondent acted unilaterally by effectuating elimination of EDP. This conduct was either in accordance with the agreement governing Respondent's conduct or it was not. The negotiated grievance and arbitration procedure was the appropriate means of reaching a resolution of this issue, 5 rather than the unfair labor practice procedures set forth in Section 7118 of the Statute and Part 2423 of the Authority's Rules and Regulations.

Even assuming the absence of differing and arguable interpretations of an agreement, it is noted that the Union's July 27, 1982 letter response to the Respondent's announced intention to eliminate EDP did not include a specific request to bargain on the issue of discontinuance of EDP, but merely set out a Union contention that the Jackson report was not an adequate basis for the action proposed by the Respondent. The letter was merely a demand for evidence which would be acceptable to the Union. In fact, Mr. Tolbert's July 27th response indicated that the Union recognized the relevance of the Jackson report on the issue involved (EDP), as well as the existence of disagreement over the weight to be attributed to the report. It also may be interpreted as suggesting disagreement with respect to the meaning to be given to Dr. Oberg's December 5, 1978 addendum.

Similarly, it must be concluded that the evidence did not reflect a showing that there was a bypass of the Union on July 13, 1982. The only probative evidence in the record to establish such a bypass was an admission that "on or about July 13, 1982, the agency through its agent Stanley Jackson advised the employees in the Motor Pool that the 4% Environmental Differential Pay ... which they had been receiving, would be terminated effective August 1, 1982." (Answer at Paragraph 5). This showing, in the light of other elements in the record developed, is an insufficient basis on which to establish that there was a bypass of the Union by Mr. Jackson. Instead, the record reflects that the Respondent did in fact bargain with the Union on the issue raised by Mr. Jackson, and further that the implementation announced by him was merely a facet [ v16 p1092 ] of the Respondent's effort to effectuate implementation of the agreement reached by Mr. Hendrix and Mr. Boswell with respect to elimination or reduction of EDP. The announcement may not be used as a basis for an unfair labor practice based on bypass because it involved no attempt by the Respondent to bypass the Union and deal directly with employees; did not threaten or promise benefits to employees; and did not undermine the status of the Union. Division of Military and Naval Affairs, State of New York, Albany, New York, supra.

Upon the basis of the foregoing, it is recommended that the Authority issue the following Order pursuant to 5 C.F.R 2422.29(c).


IT IS HEREBY ORDERED, that the complaint in Case No. 9-CA-20439, be, and it hereby is, dismissed.

Administrative Law Judge

Dated:  April 19, 1983
        Washington, D.C.

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Footnote 1 In adopting the Judge's conclusions, we find it unnecessary to pass upon the Judge's findings with regard to whether there was evidence of a "clear and patent breach" of the parties' negotiated agreement. But see Department of Defense, Department of the Army, Headquarters, XVIII Airborne Corps, and Fort Bragg, 15 FLRA No. 150, Note 2, and cases cited therein.

Footnote 2 Mr. Boswell was then Chief, Classification and Pay Administration. In Mid-1978, he became the Depot's Labor Relations Officer (TR. 24). Mr. Hendrix served as President of the Union from 1974 until April of 1979 (Tr. 67). Upon being promoted to a supervisory position he was separated from the bargaining unit. During the hearing he testified as a witness on behalf of the Respondent. However, on all dates deemed relevant in this case, Mr. Hendrix served as a representative and negotiator on behalf of the Union.

Footnote 3 Mr. Boswell testified that, "Dr. Oberg merely told us that we could have him sent back in and do a follow-up survey, or we could have any industrial hygienist check the control that we had established and determine whether or not we had practically eliminated the Hazard" (Tr. 31).

Footnote 4 The "Recommendations" portion of the Oberg Survey actually commenced on page three, rather than page five. However, it is clear from the testimony of witnesses who met with Dr. Oberg, and the record as a whole, that Dr. Oberg's addendum was designed to provide a rational basis for eliminating or reducing all forms of EDP referred to in the Survey (Tr. 43-44).

Footnote 5 R. Exh. 9, Articles XXIV and XXV.