[ v17 p40 ]
17:0040(13)CA
The decision of the Authority follows:
17 FLRA No. 13
DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE
Respondent
and
PORTSMOUTH FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
Charging Party
Case No. 1-CA-854
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain of the unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent 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 (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing 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 Recommended Order. See Department of
Defense, Department of the Navy, United States Marine Corps, United
States Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA
No. 137 (1984). /1A/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Portsmouth Naval Shipyard, Portsmouth, New
Hampshire shall:
1. Cease and desist from:
(a) Failing and refusing to continue to implement Arbitrator William
J. Fallon's January 31, 1981 arbitration award by discontinuing
Environmental Differential Pay (EDP) payments to employees working in
the Rubber Molding and Curing Area of Building 60 on July 27, 1981.
(b) In any like or related manner interfering with, restraining or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Fully comply with Arbitrator William J. Fallon's January 31, 1981
arbitration award by paying the eight percent (8%) EDP ordered by the
arbitrator to the appropriate employees working in the Rubber Molding
and Curing Area of Building 60 and make whole any employee who worked in
that area during the interim by paying EDP retroactive to July 27, 1981.
(b) Post at the Portsmouth 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 his 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
insure 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 herewith.
Issued, Washington, D.C., February 26, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
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 continue to implement Arbitrator William
J. Fallon's January 31, 1981 arbitration award by discontinuing
Environmental Differential Pay (EDP) payments to employees working in
the Rubber Molding and Curing Area of Building 60 on July 27, 1981. WE
WILL NOT in any like or related manner interfere with, restrain or
coerce employees in the exercise of their rights assured by the Statute.
WE WILL fully comply with Arbitrator William J. Fallon's January 31,
1981 arbitration award by paying the eight percent (8%) EDP ordered by
the arbitrator to the appropriate employees working in the Rubber
Molding and Curing Area of Building 60 and make whole any employee who
worked in that area during the interim by paying EDP retroactive to July
27, 1981.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature) 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, MA 02116 and whose telephone number is: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 1-CA-854
A. Gene Niro, Esq.
For Respondent
Richard D. Zaiger, Esq.
Marilyn Roth, Esq.
For General Counsel, FLRA
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding arising under the Federal Service
Labor-Management Relations Statute, Chapter 71 of Title 5 of the United
States Code, 5 U.S.C. 7101, et seq., 92 Stat. 1191 (hereinafter referred
to as the Statute), and the Rules and Regulations of the Federal Labor
Relations Authority (FLRA), 5 C.F.R.Chapter XIV, Sec. 2410, et seq.
A charge was filed on July 29, 1981 and amended on September 30, 1981
by the Portsmouth Federal Employees Metal Trades Council, AFL-CIO
(hereinafter called the Union and/or MTC), against Department of the
Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire (hereinafter
called Respondent and/or Portsmouth Naval Shipyard). Pursuant to the
above described charge and amended charge, the General Counsel of the
FLRA, by the Director of Region I, issued a Complaint and Notice of
Hearing on October 9, 1981 alleging that Portsmouth Naval Shipyard
violated Sections 7116(a)(1), (5), and (8) of the Statute by failing to
comply with an arbitrator's award. Respondent filed an Answer denying
it had violated the Statute.
A hearing in this matter was conducted before the undersigned in
Portsmouth, New Hampshire. Respondent and the General Counsel of the
FLRA were represented and afforded full opportunity to be heard, to
examine and cross-examine witnesses, to introduce evidence and to argue
orally. Post hearing briefs were submitted and have been duly
considered.
Based upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
At all times material herein MTC has been the collective bargaining
representative for a unit of ungraded and GS employees employed by the
Portsmouth Naval Shipyard, with certain exclusions not here relevant,
and MTC and Respondent have been parties to a collective bargaining
agreement. Employees in the rubber molding and curing area are within
the unit described above.
Article 20 of the collective bargaining agreement provides that
Respondent "shall assign environmental pay to unit employees engaged in
hazardous work . . . to the extent permitted and prescribed by
applicable regulations." Article 20 further provides for employees and
the Union to grieve over any work situation that they feel meets the
criteria for an environmental differential found in the regulations /1/
for which Respondent refuses to pay such a differential.
MTC filed a grievance that raised many safety issues including, inter
alia, the entitlement of employees in the rubber molding and curing area
to environmental differential pay. The grievance was taken to
arbitration and the matter was heard by Arbitrator William J. Fallon.
The matter was presented to Arbitrator Fallon during 4 days of hearing,
during which the parties had an opportunity and did submit evidence with
respect to the various issues raised in the grievance. Arbitrator
Fallon issued his Arbitration Decision on January 31, 1981. The
Arbitration Decision stated, inter alia:
"Since the decision will necessarily be based on the limited
evidence presented, it should not be construed to limit the
parties at any time in the future, from making a more
particularized presentation with additional evidence on any of the
health, safety or pay issues considered herein." /2/
. . . .
"The Independent nature of these two subjects (Environmental
Pay Differential and Positive Safety Action) is also confirmed by
Article 29, Section 8 of the agreement . . . which indicates that
when a health impairing condition is found, the remedy provided is
not environmental pay, but rather a prohibition of further work
until the unsafe condition has been corrected or until adequate
protective clothing and/or devices have been provided to affected
employees." /3/
. . . .
"Finally, if the union is dissatisfied with a particular
individual determination, the matter would be deemed grievable
under Article 34, Section 1 a. . . . and subject to the various
steps of the general grievance procedure, as described in Article
34, Section 2 - 5. Or, if the Union has a more generalized
grievance, based on the belief 'that a work situation not listed
in (Enclosure (2)) meets the criteria of an established
environmental differential category found in Appendix J of FPM
Supplement 532-1, that complaint shall be filed in accordance with
Article 34, Section 5 . . .' (Article 20, Section 4, quoted below,
p. A2)." /4/
"Having considered general engineering controls, there remains
for our consideration particular controls, if any, warranted by
the hazardous nature of the particular chemicals. With respect to
ETU, the Arbitrator is prepared to accept the Employer's
representation that NIOSH has concluded that the handling of
encapsulated NA-22f results in no occupational exposure, because
it is dustless. Nevertheless, the Arbitrator notes that the
manufacturer (Dupont), with the concurrence of Mr. Athanasiou of
the Industrial Hygiene Department, and Mr. Nelson, the Shop
Instructor, still recommends that women of child-bearing potential
should not work with that chemical. The Employer has not complied
with this recommendation and should do so in the future.
As noted above, NIOSH has recommended the monitoring of
employee exposure to ETU. The Employer should also comply with
that recommendation.
Also, as noted above, even in its 'dustless', encapsulated
form, when NA-22f is heated - as it is in the curing of rubber -
it may be released in vapor form. These vapors should not be
breathed, and, therefore, the Arbitrator has already recommended
that this problem be controlled by isolation, ventilation and/or
respiratory protection. The Employer has claimed that the vapors
and smoke released in this area are harmless, having been measured
and having produced no test reading in excess of established
TLV's. Yet the smoke and vapors were tested for other chemicals--
and not ETU, which, in any event, does not appear to have an
established TLV (or at least the Arbitrator is unable to find
evidence as to any TLV). Thus the Employer's tests are not
sufficient to prove that there are no ETU vapors being released,
and therefore the manufacturer's recommendations should be
followed." /5/
. . . .
"Having considered control measures, there remains for our
consideration the question of environmental pay. On the record
before us, a high degree hazard differential should be paid to
employees working in the molding and curing area at any times when
molds were being opened and vapors and smoke, possibly including
ETU, were being released. Given the lack of ventilation or
personal respiratory equipment, there existed and continues to
exist a potential for serious injury from exposure to ETU vapors
or fumes, which has not been practically eliminated." /6/
As part of his award Arbitrator Fallon provided:
"J. The Employer should monitor the exposure to Ethylene
Thiourea of employees assigned to work with it, in accordance with
applicable NIOSH monitoring procedures." /7/
. . . .
"The Employer violated Article 20, Section 1 by failing to
provide the 8% high degree poison (toxic chemicals) differential
in the following instances:
A. To employees working in the rubber molding and curing area
when molds are or were being opened, and/or when vapors and smoke
were being released, and ETU was a component ingredient of the
rubber being manufactured." /8/
Arbitrator Fallon's award required compliance by Respondent by March
2, 1981. Respondent complied with the award by paying $150,000 in back
pay to affected employees in the rubber molding area and by
prospectively paying the eight percent environmental differential pay
(EDP).
Beginning March 2, 1981 Portsmouth Naval Shipyard started taking
samples in the rubber molding area analyzing for airborne Ethylene
Thiourea (ETU). These tests continued during much of March 1981. On
March 5 MTC Chief Steward was officially advised of the described tests.
No representative of MTC requested to participate in the testing
procedures, but they did review documents relating to the sampling
process and were given the NIOSH bulletin on the subject. A copy of the
detailed report of the study was forwarded to MTC on June 10, 1981. The
report concluded that ETU presence in the air of the rubber molding and
curing area was not as high as the threshold limit established by the
ETU manufacturer, DuPont. There is no official or government formulated
or approved threshold limit for ETU in the air.
By letter dated July 20, 1981 Portsmouth Naval Shipyard advised MTC
that, as a result of the report, the use of ETU in Building 60 did not
meet the criteria for toxic chemical pay as set forth in Appendix J of
FPM Supplement 532-1, and, as a result, such pay " . . . to employees
who are molding rubber in Building 60 will be paid on a case basis when
it appears that exposure to ETU has occurred." On July 27, 1981
Respondent discontinued the eight percent EDP to employees in rubber
molding and curing area.
The actual job of the employees exposed to ETU in the rubber molding
and curing area has not changed since the Arbitrator's Award.
Portsmouth Naval Shipyard did not improve or otherwise change the
ventilating system or other working conditions in the rubber molding and
curing area since the arbitrator's award. The record does not establish
that there has been any change in the exposure to airborne ETU of the
employees in the rubber molding and curing area since the arbitrator's
award.
The Portsmouth Naval Shipyard did not file any exceptions to
Arbitrator Fallon's Award and did not request a stay. Article 35 of the
collective bargaining agreement provides that Respondent and the Union
can file grievances. In the past when Respondent determined that it was
unwarranted, Respondent would discontinue EDP and the Union would file a
grievance to resolve the dispute.
Discussion and Conclusions
The General Counsel of the FLRA contends that by discontinuing the
eight percent EDP for the employees in the rubber molding and curing
area Respondent violated Sections 7116(a)(1), (5), and (8) of the
Statute because it violated Arbitrator Fallon's award and Sections
7116(a)(1) and (5) of the Statute because Respondent unilaterally
changed a term and condition of employment.
The Statute provides a procedure for appealing to the FLRA if a party
is dissatisfied with an arbitrator's award. Both pursuant to the
collective bargaining agreement (Article 35 Section 6) and the Statute,
if no exceptions are filed to an arbitrator's award, that award is final
and binding. /9/ In the subject case, Respondent filed no exceptions to
Arbitrator Fallon's Award and did not utilize the procedures provided by
the Statute to secure review of the Award. Accordingly, Arbitrator
Fallon's Award is final and binding.
In the award Arbitrator Fallon found that "On the record before us a
high degree hazard differential should be paid to employees working in
the molding and curing area. . . . Given the lack of ventilation or
personal respiratory equipment, there existed and continues to exist a
potential for serious injury from exposure to ETU vapors or fumes, which
has not been practically eliminated." Arbitrator Fallon was clearly
making a finding that employees working in the rubber molding and curing
area are entitled to EDP. He was not merely saying that in the past
conditions existed that justified awarding EDP solely for times past.
Rather he was clearly finding that employees working under the then
existing conditions were entitled pursuant to the collective bargaining
agreement to eight percent EDP. It is a decision that quite obviously
continues to apply so long as the working conditions in the rubber
molding and curing area remain unchanged. Arbitrator Fallon's Award
concluded that Respondent violated Article 20 Section 1 of the
collective bargaining agreement "by failing to provide eight percent
high degree poison (toxic chemicals) differentials . . . to employees
working in the rubber molding and curing area . . ." The entire thrust
of the Arbitrator's Decision and Award is that pursuant to the
collective bargaining agreement employees working in the rubber molding
and curing area were and continue to be entitled to the eight percent
EDP and that by failing to pay the eight percent Respondent was
violating the contract. Accordingly, it is concluded that Arbitrator
Fallon's Decision and Award was intended to and did have both
retrospective and prospective effect. This is supported by Arbitrator
Fallon's invitation to come back to him with additional evidence. This
clearly was appropriate only because the Decision was to have
prospective and continuing application.
Portsmouth Naval Shipyard did not justify the discontinuance of the
eight percent EDP ordered by Arbitrator Fallon on the basis of any
change in working conditions in the rubber molding and curing area or
because it had improved ventilation or provided the employees with
personal respiratory equipment. Rather, Respondent justified its action
because it performed studies which, it alleges, show that the ETU level
in the rubber molding and curing area was not sufficiently hazardous to
justify an eight percent EDP. This, however, was the very matter
considered and decided by Arbitrator Fallon. Respondent, after losing
the case before Arbitrator Fallon, recognized that it had not submitted
sufficiently convincing evidence to persuade Arbitrator Fallon that the
rubber molding and curing area was not hazardous. Accordingly, it is
attempting to rectify that shortcoming by performing its own tests,
making its own determination and then deciding not to comply with
Arbitrator Fallon's Decision and Award. This defeats the very purpose
of the arbitration process, which is to permit the parties to submit a
dispute to an arbitrator of their own choosing and to have that dispute
resolved with finality. The absence of finality would frustrate the
entire purpose of going to arbitration.
Respondent urges that it is entitled to refuse to comply with
Arbitrator Fallon's Decision and Award and, if MTC was dissatisfied, MTC
should file a new grievance and proceed to Arbitration again to seek a
new determination of exactly what Arbitrator Fallon had already decided.
Presumably if MTC prevailed again, Respondent would contend that
Respondent could again refuse to pay EDP and, not being in noncompliance
with the arbitrator's decision, require MTC to resort again to
arbitration to enforce the very same right. This could, under
Respondent's theory, be repeated over and over, until some arbitrator
found in the favor of Respondent. Then, if Respondent is to be
consistent, presumably MTC would not be bound by such an arbitrator's
award and could file a new grievance over the very same employees and
work. All of the above could occur, according to Respondent, with
absolutely no change having taken place in the working conditions. Such
an interpretation of the effect and result of an arbitration proceeding
would render arbitration meaningless and does not permit the parties to
establish, with any finality, their obligations.
Respondent cites a number of authorities to the effect that an
arbitrator's award is not precedential and that the principles, of stare
decisis and res adjudicata do not apply to an arbitrator's award. These
precedents are inapposite. In those situations the issues involved
whether an arbitrator's interpretation of a contract clause is binding
in subsequent arbitrations. That is not the situation in the subject
case. In the subject case, the precise issue presented and resolved was
whether employees in the rubber molding and curing area are entitled to
the eight percent EDP. Arbitrator Fallon specifically determined that
employees in the rubber molding and curing area are entitled to the EDP.
Thus, Respondent's argument that because neither stare decisis nor res
adjudicata attaches to arbitration decisions, Arbitrator Fallon's
Decision has no prospective effect is rejected. This is further
supported by Arbitrator Fallon's Decision wherein he recognized that the
record made at the hearing was not as complete as it should have been.
Thus he kept jurisdiction over the matter and invited the parties to
submit additional evidence on any issue considered. Respondent chose
not to abide by Arbitrator Fallon's Decision and not to submit its
additional evidence in order to convince Arbitrator Fallon to change his
decision. Rather, by discontinuing the EDP, Portsmouth Naval Shipyard
chose not to continue to comply with Arbitrator Fallon's award and by so
doing Respondent violated Sections 7116(a)(1), (5), and (8) of the
Statute. Marine Corps Case, supra.
Having concluded that Respondent failed to comply with Arbitrator
Fallon's Decision and Award, I need not reach General Counsel of the
FLRA's contention that, apart and distinct from the failure to comply
with the arbitrator's award, there was a unilateral discontinuance of an
existing working condition which violated Sections 7116(a)(1) and (5) of
the Statute. /10/
Having found that Respondent violated Sections 7116(a)(1), (5), and
(8) of the Statute by its failure to continue to comply with Arbitrator
Fallon's Decision and Award, it is concluded that a status quo ante
remedy is appropriate.
Having found and concluded that Respondent violated Sections
7116(a)(1), (5), and (8) of the Statute, I recommend that the Authority
issue the following:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, it is
hereby ordered that Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire shall:
1. Cease and desist from:
(a) Failing and refusing to comply with the arbitration award
of Arbitrator William J. Fallon issued on January 31, 1981 by
failing and refusing to pay an eight percent Environmental to
employees working in the Rubber Molding and Curing Area of
Building 60.
(b) In any like or related manner, interfering with,
restraining or coercing employees in the exercise of 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) Comply with the arbitration award of Arbitrator William J.
Fallon issued on January 31, 1981 by paying an eight percent
Environmental Pay Differential to employees in the Rubber Molding
and Curing Area of Building 60 and by making whole any employee in
the Rubber Molding and Curing Area by making such Environmental
Pay Differential retroactive to July 27, 1981.
(b) Post at its facilities copies of the Attached notice marked
"Appendix" on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by an
authorized representative and shall be posted and maintained for
60 consecutive days thereafter in conspicuous places, including
all bulletin boards and other places where notices are customarily
posted. Reasonable steps shall be taken to insure that the
notices are not altered, defaced or covered by other material.
(c) Notify the 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 the Order.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: November 30, 1982
Washington, DC
APPENDIX
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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to comply with the arbitration award of
Arbitrator William J. Fallon issued January 31, 1981 by failing to pay
an eight percent Environmental Pay Differential to employees working in
the Rubber Molding and Curing Area of Building 60. WE WILL NOT in any
like or related manner, interfere with, restrain or coerce employees in
the exercise of rights assured by the Federal Service Labor-Management
Relations Statute. WE WILL comply with the arbitration award of
Arbitrator William J. Fallon issued January 31, 1981 by paying an eight
percent Environmental Pay Differential to employees in the Rubber
Molding and Curing Area of Building 60 and by making whole any employee
in the Rubber Molding and Curing Area by making such Environmental Pay
Differential retroactive to July 27, 1981.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature) 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 of the Federal Labor
Relations Authority, Region 1, whose address is: 441 Stuart Street, 9th
Floor, Boston, MA 02116, and whose telephone number is (617) 223-1920.
--------------- FOOTNOTES$ ---------------
/1A/ In view of this conclusion, the Authority finds it unnecessary
to determine whether the Respondent's conduct was also in violation of
section 7116(a)(5) of the Statute.
/1/ The regulations in question are appendix J of FPM Supplement
532-1.
/2/ Page 21, Footnote 6 of the Arbitration Decision.
/3/ Id of Page 23.
/4/ Id at Page 43-44.
/5/ Id at Page 64-65.
/6/ Id at Page 66.
/7/ Id at Page 100.
/8/ Id at Page 102-103.
/9/ I adopt the reasoning set forth in Department of Defense,
Department of the Navy, U.S. Marine Corps, U.S. Marine Corps Air
Station, Cherry Point, North Carolina, 4-CA-502, OALJ-82-71 (1982),
(hereinafter called the Marine Corps Case) and the cases cited therein.
/10/ If it is determined by the FLRA that this issue must be reached
I would conclude that the EDP was an existing working condition; that
Respondent did not give MTC appropriate advanced notice of its intent to
change this working condition and that Respondent presented MTC with an
already made and final decision. Accordingly, I would conclude
Respondent violated Sections 7116(a)(1) and (5) of the Statute. Cf.
Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No.
2 (1981) and San Antonio Air Logistics Center (AFLC), Kelly Air Force
Base, Texas, 5 FLRA No. 22 (1981). Respondent contends that in the past
when it unilaterally discontinued EDP, MTC filed a grievance and
therefore Respondent urges that somehow this constitutes a waiver of
MTC's right to urge such changes as unfair labor practices. No such
waiver was here present because MTC did not clearly and unequivocally
waive its right, especially when it sought to protect its rights by
other means. A party that seeks to protect its right by one means can
hardly be interpreted to waive all other means. To so hold would be to
unfairly burden a wronged party. Thus Respondent's contention that
there was a waiver is rejected.