18:0902(105)CA - Navy, Philadelphia Naval Shipyard and Philadelphia MTC -- 1985 FLRAdec CA
[ v18 p902 ]
18:0902(105)CA
The decision of the Authority follows:
18 FLRA No. 105
DEPARTMENT OF THE NAVY
PHILADELPHIA NAVAL SHIPYARD
Respondent
and
PHILADELPHIA METAL TRADES
COUNCIL, AFL-CIO
Charging Party
Case No. 2-CA-20245
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices as alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. The Judge further found that the Respondent
had not engaged in certain other alleged unfair labor practices and
recommended dismissal of the complaint with respect to them.
Thereafter, the Respondent and 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 (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 and conclusions, and his recommended Order as modified
below.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Department of the Navy, Philadelphia
Naval Shipyard shall:
1. Cease and desist from:
(a) Refusing to provide an opportunity for the Philadelphia Metal
Trades Council, AFL-CIO, the exclusive bargaining representative of
certain of its employees, to bargain with respect to procedures and
appropriate arrangements for employees adversely affected by a legally
required change in the practice of paying employees environmental
differential pay.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their 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) Upon request by the Philadelphia Metal Trades Council, AFL-CIO,
the exclusive bargaining representative of certain of its employees,
bargain with respect to procedures and appropriate arrangements for
employees adversely affected by a legally required change in the
practice of paying employees environmental differential pay for
performing snow removal work.
(b) Post at its facilities at Philadelphia, Pennsylvania, 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 a designee, and shall be posted and maintained for
60 consecutive days thereafter in conspicuous places, including all
bulletin boards and places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said Notices are
not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director, Region
II, 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.
IT IS FURTHER ORDERED that the remaining allegations of the complaint
in Case No. 2-CA-20245 be, and they hereby are, dismissed.
Issued, Washington, D.C., June 28, 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 refuse to provide an opportunity for the Philadelphia
Metal Trades Council, AFL-CIO, the exclusive representative of certain
of our employees, to bargain with respect to the impact and
implementation of a legally required change in the practice of paying
employees environmental differential pay.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request by the Philadelphia Metal Trades Council,
AFL-CIO, the exclusive representative of certain of our employees,
bargain with respect to the impact and implementation of a legally
required change in the practice of paying employees environmental
differential pay for performing snow removal work.
(Activity)
Dated: By: (Signature) (Title)
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, Region II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 24-102, New York, N.Y. 10278, and whose
telephone number is: (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Geoffrey D. Spinks
For the Respondent
Robert J. Fabii, Esq.
James E. Petrucci, Esq.
For the General Counsel
Before: WILLIAM NAIMARK, Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on September 27,
1982 by the Acting Regional Director for the Federal Labor Relations
Authority, New York, N.Y., a hearing was held before the undersigned at
Philadelphia, Pennsylvania on January 26, 1983.
This case arose under the Federal Service Labor-Management Relations
Statute (herein called the Statute). It is based on a charge filed on
February 8, 1982 by the Philadelphia Metal Trades Council, AFL-CIO
(herein called the Union) against the Department of the Navy,
Philadelphia Naval Shipyard (herein called Respondent or Shipyard).
The complaint alleged, in substance, that on or about December 7,
1981, Respondent unilaterally implemented a change in Instruction
12531.8A wherein it eliminated environmental differential pay to unit
employees for snow removal. Further, it alleged that the change was
effected without bargaining with the Union re the decision, its impact
and implementation; and that certain employees were denied such
differential pay for snow removal on several dates following December 7,
1982-- all in violation of Section 7116(a)(1) and (5) of the Statute.
In its answer, dated October 13, 1982, Respondent denied the
aforesaid allegations as well as the commission of any unfair labor
practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been, and still is,
the exclusive bargaining representative of all non-supervisory ungraded
employees of the Philadelphia Naval Shipyard, excluding ungraded
employees in units where other labor organizations have been granted
exclusive recognition.
2. Both Union and Respondent were parties to a collective bargaining
agreement covering the employees in the aforesaid unit. The said
agreement was entered into on January 18, 1974, and by its terms was
effective for a 2-year period from February 8, 1974. The agreement
provides for its automatic renewal for 1 year if the requisite notice is
not given to negotiate a new agreement. /1/
3. The aforesaid agreement contained, inter alia, the following
provision:
"Article XI
ENVIRONMENTAL DIFFERENTIALS
Section 1-- An environmental differential will be paid to an
employee in the Unit who is exposed to a hazard, physical
hardship, or working condition which is listed under the
categories in the schedule of environmental differential in
accordance with applicable regulations, the categories for which
environmental differential will be paid is;
. . . .
"Cold Work (4 Percent)
Working in cold storage or other climate controlled areas where
the employee is subjected to temperature at or below freezing (32
degrees Fahrenheit)."
4. Regulations pertaining to Respondent's wage grade employees are
issued in the form of Instructions. PHILANAVSHIPYDINST 12531.8A is a
Regulation/Instruction dated January 25, 1980 and provides, inter alia,
as follows:
"III Category: Cold Work
A. Differential Rate: 4 Percent
B. Pay Code: 66
C. Statement of General Conditions
"Working in cold storage or other climate-controlled areas
where the employee is subjected to temperature at or below
freezing (32 degrees Fahrenheit) where such exposure is not
practically eliminated by mechanical equipment or protection
devices being used.
D. Work Situations
PUBLIC WORKS GROUP
1. Operating mechanized snow removal or loading equipment
which is not fitted with a protective operation cab, when the
temperature is 32 degrees Fahrenheit or below and it is snowing or
sleeting, in order to keep piers, streets or other areas clear for
movement of pedestrian or vehicular traffic. Regardless of
clothing, portions of face and hands are exposed to elements and
body is subject to unusual chilling and other discomfort."
5. Prior to November 6, 1981 Dominic Casciatto, head of the
Respondent's Wage and Classification Division, discussed with Edward J.
DiGiovanni, Respondent's Labor Relations Specialist, a request received
for the authorization of payment of cold pay to a particular work
situation in another department. The request was made in view of the
language in PHILANAVSHIPYDINST 12531.8A dealing with PUBLIC WORKS
GROUP,
supra, which dealt with snow removal operation. Casciatto explained
that the category criteria under "cold work" was not met by the
situation embraced within the request, i.e. snow removal did not involve
work in "cold storage or other climate controlled areas." The head of
the Wage and Classification Division advised DiGiovanni that the
authorization for cold pay for snow removal should be deleted from the
Shipyard regulation. /2/
6. Thereafter the Wage and Classification Division prepared a
proposal to abolish cold pay for snow removal, and it was forwarded to
the labor relations office. DiGiovanni took steps to notify the Union
and other labor organizations representing Respondent's employees. He
forwarded the proposal on November 6, 1981 for review to the aforesaid
labor organizations, including the Union herein, together with a
Proposed Directive. The proposal called for eliminating from the
Shipyard Instruction the payment of cold pay as set forth in paragraph 4
herein.
7. The aforesaid proposal was accompanied by a Proposed Directive,
referred to as a cover sheet. It stated that the named labor
organizations, including the Union herein, should submit their comments
and/or approval no later than November 23, 1981. It provided space for
"Remarks" on the form if the union desired to utilize the cover sheet
and return same to management.
8. During negotiations for a new agreement, and on or about November
15, 1981, the Union sought to negotiate over the proposed deletion of
snow removal work from the type of cold work for which environmental
differential pay would be paid. The Union did not submit any proposals
in regard thereto nor request any information about snow removal. It
did inquire at this meeting as to why this Shipyard Instruction had to
be eliminated, and the Union negotiators expressed a desire to negotiate
such change. When asked what he proposed to negotiate, Union Agent
Richard Johanson stated it was "to change the Shipyard instruction as
far as the instructions go." Management, via Industrial Relations
Manager, Richard R. Britt, informed the Union during contract
negotiation that instructions are negotiated separately since they
affect all bargaining units at the Shipyard. No discussion was
therefore had during contract negotiations re snow removal differential
pay.
9. On November 18, 1981 the Union and Respondent met again in
negotiations for a new collective bargaining agreement. They consented
to include therein, as Article XI, a provision for "ENVIRONMENTAL
DIFFERENTIALS." The proposals made by the Union with respect thereto
were included under Article XI of the agreement. Sections 1 and 5 of
this Article recited as follows:
"Section 1. The Employer shall assign environmental pay to
unit employees engaged in hazardous work or work involving
difficult working conditions to the extent permitted and
prescribed by applicable regulations.
"Section 5. It is agreed that Appendix J of FPM Supplement
532-1 shall be made an addendum to this contract." /3/
10. Under date of November 23, 1981 the Union returned the Proposed
Directive form to Respondent. Under the heading "Remarks", Johanson
wrote as follows: "We do not concur with this proposed
PHILANAVSHIPYDINST. We are presently in negotiations and we will
negotiate this matter with you at the table at your earliest
convenience."
11. Respondent did not reply to the comment made by the Union re the
proposed change in Instruction 12531.8A. No proposals were made by the
Union in respect thereto.
12. On December 7, 1981 Respondent issued and implemented the
changed Instruction 12531.8A which deleted cold pay as a category for
which an environmental differential would be paid.
13. Record facts disclose that the deletion of category III; Cold
Work, subparagraphs A, B, C, D /4/ in their entirety in the aforesaid
changed Instruction was not contemplated by management and was done in
error. Respondent intended, which is not disputed, that the revised
Instruction 12531.8A eliminate only differential pay for snow removal.
Moreover, despite the deletion, Respondent has continued to pay cold
work environmental differential where warranted except for snow removal
situations.
14. The new collective bargaining agreement was executed between the
parties on March 12, 1982. It became effective on April 2, 1982 and, by
its terms, will remain in full force and effect for a period of 3 years.
As heretofore indicated, it includes Appendix J of FPM Supplement 532-1
as an addendum to the agreement providing for 4 percent pay differential
for cold work performed in cold storage areas of climate-controlled
areas where the employee is subjected to temperatures below freezing (32
degrees Fahrenheit). /5/
Conclusions
It is contended by General Counsel herein that the change by
Respondent in Instruction 12531.8A whereby it discontinued payment of
environmental differential (cold pay) for snow removal, /6/ was
negotiable both as to the decision itself as well as any impact and
implementation thereof. Moreover, General Counsel maintains that the
Union requested negotiation over such change, but that Respondent
unilaterally implemented it and failed to bargain over the
discontinuance in violation of the Statute.
Respondent insists that the change was mandated by a government-wide
regulation issued by the Office of Personnel Management (OPM). It
adverts to the language in 5 C.F.R. 532.511(a) which provides for paying
environmental differential pay where an employee is exposed to working
conditions or hazards falling within certain categories approved by OPM.
Respondent avers that the pertinent category governing the situation
herein concerns Cold Work, as set forth in category 5 of Appendix J to
Subchapter 8 of the FPM Supplement 532-1. Further, it contends that the
authorization for environmental differential pay, as set forth in
Appendix J, does not permit such pay for snow removal. Hence, it argues
the change whereby such provision was discontinued by Respondent was
required, and hence no obligation could be imposed upon it to negotiate
the decision.
With respect to any duty on its part to bargain as to the impact and
implementation of the change, the employer maintains it afforded the
Union an opportunity to request such bargaining; that the Union never
sought to negotiate thereon but merely quarreled with the decision,
rather than its impact and implementation, since no proposals were made
to management; and thus Respondent did not refuse to bargain in that
regard.
A. Respondent's Obligations to Bargain Concerning its Decision to
Eliminate Environmental Differential Pay for Snow Removal Work
The obligation of an agency to pay differential pay stems from Title
5, United States Code. Section 5343(c)(4) thereof provides "for proper
differentials, as determined by the Office, /7/ for duty involving
unusually severe working conditions or unusually severe hazards."
Further, it is provided under 5 C.F.R. 532.511(a) that (a) in accordance
with the aforesaid section of the Code, an employee shall be paid
environmental differential "when exposed to a working condition or
hazard that falls within one of the categories approved by the Office of
Personnel Management"; (b) each installation or activity must evaluate
situations against guidelines issued by OPM to determine whether a local
situation is covered by a defined category.
The Federal Personnel Manual contains further provisions dealing with
differential pay as follows:
"FPM 532-1, subchapter S8-7, which instruct as the procedures
to be followed in the payment of environmental differential
provides, in pertinent part:
b. Basis for environmental differential. These instructions
provide the basis for (1) approving and paying environmental
differentials to wage employees (full-time, part-time, or
intermittent); listing categories of situations in Appendix J of
this subchapter and specifying the differentials payable for each
category to identify the various degrees of hazard, physical
hardships, and working conditions of an unusually severe nature,
by the use of examples for the categories listed in Appendix J.
For the purpose of this section, environmental differential means
additional pay authorized as specified in Appendix J for a
category of situations involving exposure to a hazard, a physical
hardship, or working conditions of an unusually severe nature . .
.
d. (3) . . . Some of the environmental differential listed in
Appendix J are payable whenever the criteria in the category
definition are met. Others are payable only if protective
facilities, devices, or clothing have not practically eliminated
the hazard, physical hardship, or working condition of an usually
severe nature. Consistent with section S8-7g(3) below,
determinations in this regard may be through negotiations at the
local level . . .
At Chapter S8-7, subsection (g), the FPM also provides:
g. Determining local situations when environmental
differentials are payable. (1) Appendix J defines the categories
of exposure for which the hazard, physical hardship, or working
conditions are of such an unusual nature as to warrant
environmental differentials, and gives examples of situations
which are illustrative of the nature and degree of the particular
hazard, physical hardship, or working condition involved in
performing the category. The examples of the situations are not
all inclusive but are intended to be illustrative only. (2) Each
installation or activity must evaluate its situations against the
guidelines in Appendix J to determine whether the local situation
is covered by one or more of the defined categories. (a) When the
local situation is determined to be covered by one or more of the
defined categories (even though not covered by a specific
illustrative example), the authorized environmental differential
is paid for the appropriate category . . . . (3) Nothing in this
section shall preclude negotiations through the collective
bargaining process for: (a) determining the coverage of
additional local situations under appropriate categories in
Appendix J and application of Appendix J categories to local work
situations. For example, local negotiations may be used to
determine whether a local work situation is covered under an
approved category, even though the work situation may not be
described under a specific illustrative example.
Convincing arguments have been made by both parties herein in support
of their respective positions. However, upon due and careful
consideration, I am persuaded that Respondent was not obliged to
negotiate as to its discontinuance of environmental pay for snow
removal. Despite the Shipyard having done so in the past, FPM
Supplement 532-1 (Appendix J-s) provides in clear and specific language
that such differential shall be paid for work performed in cold storage
or other climate-controlled areas where the employee is subjected to
temperatures at or below freezing (32 degrees Fahrenheit). Unless it
can be inferred that pay of this nature may be granted for work outside
of cold storage locations or climate-controlled area, payment for snow
removal work would contravene the government-wide regulation. It is
clear, at least, that snow removal is not performed in either cold
storage or climate-controlled locations but occurs outside to clear
streets, piers or passages for pedestrians or vehicles.
In support of its position herein, General Counsel stresses the
permissive language re negotiation of work situations found in FPM 532-1
subchapter S8-7(g), supra. It is contended that this section pointedly
recites that, while management may determine whether a local situation
is covered by a particular category in Appendix J, nothing shall
preclude negotiations as to whether Appendix J applies to a specific
work situation. General Counsel argues that such language reaffirms
that the inclusion or exclusion of situations is appropriately
negotiable. However, to adopt this reasoning would be tantamount to
nullifying the coverage contained in Appendix J-s. Thus, the latter
recognizes payment of an environmental differential only for work
performed in cold storage or climate-controlled areas. Payment for snow
removal work performed elsewhere-- as formerly described in Respondent's
Instruction 12531.8A-- would fly in the face of the FPM regulation and
render it meaningless. Further, it would be pointless to permit the
activity to determine whether a situation fits a category, as set forth
in subchapter S8-7(g), if it is never given leeway to act thereon by
itself.
It appears to the undersigned that a reasonable interpretation of FPM
532-1 subchapter S8-7(g) suggests that negotiations are not precluded,
in regard to whether a work situation is covered by Appendix J, when
some question may logically arise as to such coverage. Thus, it is
noted that 4 percent differential pay thereunder is paid for cold work
performed inside those areas where such exposure is not practically
eliminated by the mechanical equipment or protective devices being used.
Work situations might well give rise to a dispute as to whether an
employee working in cold storage areas or climate-controlled places has
sufficient protection, by reasons of equipment or other devices, to
eliminate exposure to cold. A determination re whether that particular
work situation warrants differential pay for "Cold Work" would be
negotiable, and would be in all doubtful instances. However, I would
construe FPM 532-1 subchapter S8-7(g) as still precluding negotiations
concerning coverage for a work situation when the work itself which is
being undertaken is clearly not within the Appendix J category. In that
instance, I conclude no obligation is imposed upon an employee to
bargain concerning the coverage of a work situation. The case at bar
presents a work situation, i.e. snow removal, which is performed outside
work areas, and is clearly not covered by the category "Cold Work" in
the FPM Supplement (Appendix J-s). Accordingly, I am compelled to
conclude Respondent was not required to negotiate its coverage.
Moreover, the unilateral deletion from Instruction 12531.8A of its work
condition pertaining to snow removal differential pay was in accord with
the FPM regulations, and Respondent's failure or refusal to negotiate
the decision to terminate such pay, and remove it from Instruction
12531.8A, was not violative of the Statute. See Department of the
Interior, U.S. Geological Survey, Conservation Division, Gulf of Mexico
Region, Metairie, Louisiana, 9 FLRA No. 65 (1982). /8/
B. Respondent's Fulfillment of Obligation to Bargain Re
Impact and Implementation of Elimination of Snow Removal
Differential Pay
It is fundamental in the public sector that an employer must notify a
bargaining agent of proposed changes in working conditions; that,
further, it must provide the union with ample opportunity to negotiate
the impact and implementation of such changes. Social Security
Administration, 8 FLRA No. 102 (1982); Scott Air Force Base, Illinois,
5 FLRA No. 2 (1981).
While recognizing its obligation to bargain on the impact of its
decision to terminate snow removal pay, Respondent argues that any
failure to so bargain was not attributable to its conduct. It is
contended that the Union never actually sought to negotiate as to
"impact and impact of the decision; that the bargaining agent did not
submit any proposals in this regard or attempt to seek further
information from management. Respondent maintains that the Union was
not interested in negotiating anything except the decision itself, and
it insists any delay in negotiations as to impact and implementation of
such decision was due to the Union's failure to follow up with its
position and proposals thereon.
A review of the facts herein persuades me that these contentions
should be rejected. The Statute provides in Section 7103(12) that
collective bargaining calls for the exclusive bargaining representative
and the agency to meet in an effort to reach agreement as to working
conditions. The Union herein sought such a meeting, and declared its
desire to bargain re the elimination of snow removal differential pay,
on two occasions. Union official Johanson told management in November
1981, during negotiations for a new contract, that it wanted to
negotiate about the matter. Industrial Relations Officer, Richard Britt
replied that negotiations with respect thereto must take place
separately. Further, Johanson submitted its request to negotiate in
writing on November 23, 1981 and indicated the Union wanted to meet at
Respondent's earliest convenience. Neither request resulted in a
meeting. Although Respondent insists that the Union wanted to discuss
the decision, rather than any impact thereof, record facts do not
disclose that the bargaining agent had so confined its request to
bargain. Thus, unless some exculpatory factor exists on its behalf, I
am satisfied that Respondent failed to provide the Union with an
opportunity to meet and bargain on the impact and implementation of its
action herein.
In its brief to the undersigned the employees herein cites Division
of Military and Naval Affairs, State of New York, Albany, N.Y., 8 FLRA
No. 71 (1982). The Authority upheld the dismissal of a complaint
alleging, inter alia, that the agency refused to bargain re impact and
implementation of a particular program. In the cited case the
bargaining agent, although requested, did not submit proposals to
management concerning the impact thereof. Respondent herein maintains
the Union in the case at bar who refused or failed to submit proposals.
Accordingly, it insists such refusal or failure relieves the agency of
any further obligation to bargain.
The cases are strikingly dissimilar. In Naval Affairs the parties
met and discussed in detail the program and details thereof. The
employer advised the unions that, before meeting to discuss impact and
implementation of the program, it wanted proposals from the bargaining
agent. The latter continued to demand proposals from the agency, and by
its conduct the union precluded any future bargaining. In the instant
case I cannot include that the Union foreclosed bargaining on impact and
implementation. None of the Union's actions reflects a disinclination
of the part to negotiate in that regard. Neither do I conclude that its
failure to submit specific proposals in that regard absolves the
Respondent to bargain on the impact of its decision re snow removal.
Management did not seek specific proposals after hearing discussed the
matter with the Union, as occurred in the Naval Affairs case. It merely
requested that the Union submit its comments, which the labor
organization complied with thereafter. The request does not, in my
opinion, deprive the bargaining agent of an opportunity to meet and
negotiate the impact and implementation of the intended change. /9/ I
cannot subscribe to the view that a union must submit matters proposals,
as a sine qua non, before an employer is obliged to meet and confer re
any contemplated change in the working conditions. /10/ In sum, I am
persuaded that it was incumbent upon Respondent to meet with the Union
herein, as requested, and afford the bargaining agent an opportunity to
bargain as to any impact of its decision re termination of snow removal
differential, as well as the implementation thereof. Further, I am
constrained to conclude Respondent did not fulfill this obligation by
requesting comments from the union; that, in light of the Union's
request to negotiate the termination-- which may well embrace the impact
and implementation of the employer's conduct-- and the employer's
failure to accede thereto, the Respondent has refused to bargain as to
such impact and implementation in violation of Section 7116(a)(1) and
(5) of the Statute. /11/
Having found that Respondent violated Section 7116(a)(1) and (5) of
the Statute by refusing to negotiate with the Union as to the impact and
implementation of its elimination of environmental differential pay for
snow removal work, I recommend the Authority adopt the following Order:
ORDER
Pursuant to Section 7118(a)(7) of the Federal Service
Labor-Management Relations Statute and Section 2423.29 of the Rules and
Regulations, it is hereby ordered that the Department of the Navy,
Philadelphia Naval Shipyard shall:
1. Cease and desist from:
(a) Unilaterally changing its past practice of paying employees
environmental differential pay for performing snow removal work
without first notifying the Philadelphia Metal Trades Council,
AFL-CIO and affording it an opportunity to negotiate, upon request
concerning the impact and implementation of such change.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
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) Upon request by the Philadelphia Metal Trades Council, the
exclusive bargaining representative of certain unit employees,
bargain, to the extent consonant with law and regulations, with
respect to the impact and implementation of changing its practice
of paying employees environmental differential pay for performing
snow removal work.
(b) Post at its facilities at Philadelphia, Pennsylvania copies
of the attached notice marked "Appendix" on forms to be furnished
by the Authority. Upon receipt of such forms, they shall be
signed by the Commander, and shall be posted and maintained by him
for 60 consecutive days thereafter in conspicuous places,
including all bulletin boards and places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Commander to insure that such notices are not altered,
defaced, or covered by any other material.
(c) Notify the Acting Regional Director, Region II, 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.
WILLIAM NAIMARK
Administrative Law Judge
Dated: September 19, 1983
Washington, DC
APPENDIX
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 STATUTE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT change the past practice of paying employees
environmental differential pay for performing snow removal work without
first notifying the Philadelphia Metal Trades Council, AFL-CIO and
affording it an opportunity to negotiate, upon request, concerning the
impact and implementation of such change.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL notify the Philadelphia Metal Trades Council, AFL-CIO of any
intended change in the practice of paying employees environmental
differential pay for performing snow removal work and, upon request,
negotiate with it concerning the impact and implementation of such
change.
(Agency/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 any of its provisions, they may communicate directly with the
Regional Director, Region II, Federal Labor Relations Authority whose
address is: 26 Federal Plaza, Room 24-102, New York, N.Y. 10278 and
whose telephone number is: (212) 264-4934.
--------------- FOOTNOTES$ ---------------
/1/ Although not explicit in the record, the 1974 agreement
apparently continued to govern the collective bargaining relationship
between the parties until supplanted by the written agreement in 1982,
discussed infra.
/2/ Cold pay premium (4 percent) had been paid for snow removal work
since 1974.
/3/ Appendix J of FPM Supplement 532-1, which was included in the
1982 contract between the parties, provided as follows:
"SCHEDULE OF ENVIRONMENTAL DIFFERENTIALS PAID FOR EXPOSURE TO
VARIOUS
DEGREES OF HAZARDS, PHYSICAL HARDSHIPS, AND WORKING
CONDITIONS OF AN
UNUSUAL NATURE
PART I. PAYMENT FOR ACTUAL EXPOSURE (Category for which
payable)
. . . .
5. Cold Work. (a) Working in cold storage or other
climate-controlled areas where the employee is subjected to
temperatures at or below freezing (32 degrees Fahrenheit). (b)
Working in cold storage or other climate-controlled areas where
the employee is subjected to temperatures at or below freezing (32
degrees Fahrenheit) where such exposure is not practically
eliminated by the mechanical equipment or protective devices being
used."
/4/ Page 10 of PHILANAVSHIPYDINST 12531.8A (Jan. 25, 1980).
/5/ See footnote 3, supra.
/6/ Both parties recognize that, while the changed Instruction
discontinued the entire cold pay environmental differential, this was an
error. The Respondent intended to, and did, eliminate only seek pay for
snow removal as not being embraced within the term "Cold Work" set forth
in the Federal Personnel Manual Supplement 532-1 Appendix J.
/7/ Office of Personnel Management.
/8/ General Counsel cites, in support of its argument herein, the
cases of Department of the Navy, Pearl Harbor Naval Shipyard, OALJ-82-67
(Eli Nash, Jr., ALJ) (March 31, 1982) and Department of Defense,
Department of the Navy, Naval Weapons Station, OALJ-83-47 (Burton S.
Sternburg, ALJ) (January 28, 1983). Both cases are distinguishable from
the one at bar. The former involved unilateral termination of "dirty
pay" for brush plating work. Payment for "dirty work" is prescribed in
category 4 under Appendix J in FPM Supplement 532-1. It could well
include, by its language, brush plating work and such work is not
clearly outside its scope. In the Naval Weapons Station case, hazardous
pay awarded employees (which was changed) was not clearly in violation
of negotiated instructions.
/9/ The case of Department of the Treasury, Bureau of Alcohol,
Tobacco and Firearms, 7 FLRA No. 65 (1981), cited by Respondent, is
inapposite. The agency in said case attempted to reach the union and
ascertain who would act as its representative. The union was unable to
identify a responsible representative. It was held that any delay in
bargaining was not attributable to the agency since it had attempted to
contact the bargaining agent. The facts herein do not reflect that
Respondent did all it could in order to set up a bargaining meeting re
impact and implementation.
/10/ See Long Beach Naval Shipyard, Long Beach, California,
OALJ-83-131 (Francis E. Dowd, ALJ) (September 8, 1983).
/11/ General Counsel seeks a status quo remedy herein. I am aware
that such a remedy may be granted in cases where impact and
implementation bargaining orders are issued. Federal Correctional
Institution, 8 FLRA No. 111 (1982). However, I do not consider such a
remedy appropriate in the instant case. A reversion to differential pay
for snow removal would contravene the government-wide regulation issued
in this regard. FPM Supplement 532-1 (Appendix J-s). To require an
agency to restore such a practice, which is contrary to a regulation so
issued, would nullify the government-wide regulation. An order of this
nature would, at best, result in unsettled conditions of an agency
attempting to comply with a government mandate. See Department of the
Air Force, Air Force Logistics Command, Ogden Air Logistics Center, Hill
Air Force Base, Utah, OALJ-83-43 (John H. Fenton, ALJ) (January 19,
1983).