[ v21 p195 ]
The decision of the Authority follows:
21 FLRA No. 30 DEPARTMENT OF THE NAVY AND DEPARTMENT OF THE NAVY PORTSMOUTH NAVAL SHIPYARD (PORTSMOUTH, NEW HAMPSHIRE) Respondents and Case Nos. 1-CA-30303 1-CA-30305 1-CA-30306 RICHARD PEARL and VICTOR PORRO and PORTSMOUTH FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO Charging Parties DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions to the attached Administrative Law Judge's Decision filed by the Respondents and the General Counsel. The Portsmouth Federal Employees Metal Trades Council, AFL-CIO (Union) and the General Counsel filed oppositions to the Respondents' exceptions. The consolidated complaint alleged that the Department of the Navy and the Portsmouth Naval Shipyard, Portsmouth, New Hampshire (Shipyard) violated section 7116(a)(1), (5) and (8) of the Statute by refusing to bargain in good faith with the Union and by failing and refusing to comply with the provisions of section 7122(b) of the Statute based upon noncompliance with an arbitration award. /1/ II. Background On July 28, 1983, Arbitrator John P. McCrory issued an award sustaining a grievance filed by the Union based on an asserted violation of the safety provisions of the collective bargaining agreement in effect between the Shipyard and the Union. As part of the award, the arbitrator outlined several corrective measures the Shipyard could employ to practically eliminate the potential for illness due to asbestos exposure by unit employees performing various functions on submarines. The arbitrator further directed the establishment of a Joint Asbestos Safety Committee within 30 days of the award. With respect to the Union's claim for the payment of Environmental Differential Pay (EDP) to unit employees exposed to asbestos, the arbitrator ordered such payment to the extent that the Shipyard failed to practically eliminate unnecessary exposure or unnecessary potential exposure to airborne asbestos. Finally, the arbitrator retained jurisdiction of the matter for a period of 90 days for the purpose of resolving any issues arising with respect to the award. Requests for clarification of the award were filed by the Respondents and the Union. Additionally, the Department of the Navy filed exceptions to the award pursuant to section 7122 of the Statute, which exceptions were found by the Authority to be untimely filed. Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, AFL-CIO, 15 FLRA 181 (1984). III. Judge's Decision The Judge found that the Respondents failed to comply with the arbitration award and thus violated section 7116(a)(1) and (8) of the Statute. In reaching this result, the Judge looked to the language and intent of the award in determining that the Respondents had not taken sufficient measures to comply with it. The Judge further found it unnecessary to decide whether the Respondents' conduct also violated section 7116(a)(5) of the Statute. To remedy the unfair labor practice, the Judge ordered the Respondents to fully comply with the arbitration award and to make available to the Authority or its agents, upon request, copies of all documents necessary to determine the amount of backpay to be awarded. IV. Positions of the Parties The Respondent raised a number of arguments which amount to disagreement with the Judge's findings and conclusions. The findings and conclusions of the Judge are consistent with established precedent and thus the Authority finds no basis for reversing them. However, we do modify the Judge's recommended Order for the reasons indicated below, and also address an exception to the Judge's Decision filed by the General Counsel. V. Analysis It is a well-established principle that a failure to comply with an arbitration award to which no timely exceptions have been filed pursuant to section 7122(a) of the Statute constitutes a violation of section 7116(a)(1) and (8) of the Statute. /2/ See United States Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151 (1984), aff'd sub nom. Department of the Air Force, et al. v. Federal Labor Relations Authority, 775 F.2d 727 (6th Cir., 1985). See also Department of Defense, Department of the Navy, United States Marine Corps, United States Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA 686 (1984); U.S. Department of Justice and Department of Justice, Bureau of Prisons (Washington, D.C.) and Federal Correctional Institution (Danbury, Connecticut), 20 FLRA No. 5 (1985), petition for review filed, No. 85-4167 (2nd Cir. Nov. 5, 1985); and U.S. Army Health Clinic, Fort Ritchie, Maryland, 9 FLRA 935 (1982). In this case, as previously noted, the Authority found that the exceptions filed by the Department of the Navy were not timely filed. /3/ Accordingly, the award became final and binding pursuant to the provisions of section 7122(b) of the Statute and there was an obligation on the part of agency management to take the actions required by the award, which it failed to do. VI. Remedy To remedy the unfair labor practice conduct, the Judge ordered the Respondents to fully comply with the arbitration award. As to that portion of the award directing the prospective payment of EDP, the Judge found that, but for the Respondents' failure to implement the award, employees would have received such payment for those periods of time during which substandard asbestos conditions were maintained on the various submarines involved. Because, in the Judge's view, the record did not clearly establish all periods of the Respondents' liability for payment of EDP, the Judge ordered the Respondents to make available to the Authority or its agents, upon request, those records and documents necessary to analyze the amount of backpay to be awarded in whatever manner is deemed appropriate for such determination. In the Authority's view, an order which will require the Respondents to fully comply with the arbitration award of July 28, 1983, /4/ and pay EDP to the affected employees in accordance with the regulatory requirements pertaining to such payment contained in Federal Personnel Manual Supplement 532-1, Appendix J, as referenced in both the parties' collective bargaining agreement and the arbitrator's award, /5/ will effectuate the purposes and policies of the Statute. The determination as to which employees are eligible for such payment and for what periods of time is appropriately resolved through compliance procedures. See U.S. Army, U.S. Army Materiel Development and Readiness Command, Warren, Michigan, 8 FLRA 806, n. at 807 (1982). VII. Conclusion Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority has reviewed the rulings of the Judge made at the hearing, finds that no prejudicial error was committed, and thus affirms those rulings. The Authority has considered the Judge's Decision and the entire record in this case, adopts the Judge's findings and conclusions, and, with the modification noted above concerning the manner in which Environmental Differential Pay will be awarded to affected employees, adopts the Judge's recommended Order. Therefore, we find that the Respondents' failure to comply with the arbitration award violated section 7116(a)(1) and (8) of the Statute. /6/ ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is ordered that the Department of the Navy and the Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, shall: 1. Cease and desist from: (a) Failing and refusing to fully comply with Arbitrator John P. McCrory's July 28, 1983 arbitration award. (b) In any like or related manner interfering with, restraining, or coercing 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) Fully comply with Arbitrator John P. McCrory's July 28, 1983 arbitration award, including the payment of environmental differential pay to affected employees in accordance with law and regulation. (b) Pursuant to section 2423.30 of the Authority's 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 a 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 ensure 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 with it. Issued, Washington, D.C., March 31, 1986 (s)--- Jerry L. Calhoun, Chairman (s)--- Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The consolidated complaint was amended at the hearing to include the Department of the Navy as a named respondent. /2/ Section 7122 of the Statute provides as follows: 7122. Exceptions to arbitral awards (a) Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator's award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title). If upon review the Authority finds that the award is deficient-- (1) because it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor-management relations; the Authority may take such action and make such recommendations concerning the award as it considers necessary, consistent with applicable laws, rules, or regulations. (b) If no exception to an arbitrator's award is filed under subsection (a) of this section during the 30-day period beginning on the date the award is served on the party, the award shall be final and binding. An agency shall take the actions required by an arbitrator's final award. The award may include the payment of backpay (as provided in section 5596 of this title). /3/ The Authority also found in Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, AFL-CIO, 15 FLRA 181 (1984), that retention of jurisdiction by an arbitrator, as here, does not serve to extend the statutory time limit for filing exceptions to an award under section 7122 of the Statute or render such award interlocutory. /4/ With respect to the General Counsel's exception to the Judge's failure to specifically pass on the Respondents' asserted noncompliance with that portion of the award directing the establishment of a Joint Asbestos Safety Committee, the Authority finds that the Judge's finding of a failure to comply with the award encompasses the failure to establish such a committee. Further, the Judge's order to fully comply with the award, which is here adopted, extends to the establishment of such a committee. /5/ Federal Personnel Manual Supplement 532-1 governing the Federal Wage System provides in Appendix J a schedule of environmental differentials to be paid for exposure to various degrees of hazards, physical hardships and working conditions of an unusual nature. Among them is Category 16 relating to asbestos exposure which provides an 8% differential for the following: "Working in an area where airborne concentrations of asbest fibers may expose employees to potential illness or injury and protective devices or safety measures have not practically eliminated the potential for such personal illness or injury." /6/ The Authority finds, as did the Judge, that in view of the result reached above, it is unnecessary to decide whether the Respondents' conduct also violated section 7116(a)(5) of the Statute. 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 comply with Arbitrator John P. McCrory's July 28, 1983 arbitration award. 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 Statute. WE WILL fully comply with Arbitrator John P. McCrory's July 28, 1983 arbitration award, including the payment of environmental differential pay to affected unit employees in accordance with law and regulation. --- (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, Federal Labor Relations Authority, Region I, whose address is: 441 Stuart Street, 9th Floor, Boston, Massachusetts 02116, and whose telephone number is: (617) 223-0920. -------------------- ALJ$ DECISION FOLLOWS -------------------- DEPARTMENT OF THE NAVY AND DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE Respondents and RICHARD PEARL and VICTOR PORRO and PORTSMOUTH FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO Charging Parties Peter F. Dow, Esq. Richard D. Zaiger, Esq. For the General Counsel Steven Sharfstein, Esq. For the Respondent Sally M. Armstrong, Esq. For the Charging Party Before: ELI NASH, JR. Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, 82 Stat. 1191, 5 U.S.C. 7101 et seq. It was instituted by the issuance of a consolidated complaint on March 30, 1984. The complaint alleges that the Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, hereinafter called the "shipyard," has violated and continues to violate section 7116(a)(1), (5) and (8) of the Statute by failing to comply with an arbitration award issued on July 25, 1983 and by refusing to bargain in good faith with the Portsmouth Federal Employees Metal Trades Council, AFL-CIO, hereinafter called the "union." In its answer the shipyard denied the commission of any unfair labor practice. By notice dated August 7, 1984, the General Counsel notified the parties of its intent to move to amend the complaint at the hearing to include the Department of the Navy as a party respondent. /1/ A hearing was held in this matter on August 15, 16 and 17, 1984, in Portsmouth, New Hampshire. All parties were represented and afforded full opportunity to adduce evidence, examine aid cross-examine witnesses, and argue orally. Briefs were filed by all parties. Upon consideration of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommended order. Findings of Fact At all times material herein, respondents have been and are now agencies within the meaning of section 7103(i)(3) of the Statute. In addition, the shipyard and the union were parties to a collective bargaining agreement at all material times herein. In October 1981, the union filed a grievance on behalf of certain employees performing overhaul operations on submarines, alleging unsafe working conditions due to asbestos exposure. As a remedy the union sought replacement of all asbestos and asbestos products on board the submarines and payment of environmental differential pay (EDP) in accordance with Article 20 of the parties' collective bargaining agreement /2/ and Appendix J of Supplement 532-1 of the Federal Personnel Manual. /3/ The above grievance concerned conditions existing after the "ripout" phase of the overhaul, that is, the extensive removal of equipment to be refurbished. During this phase, the submarine is also stripped of asbestos insulation and only Shop 64 employees, who wear protective equipment, including respirators, are allowed inside. After the ripout phase, asbestos exposure may result from damage to unremoved asbestos lagging and other asbestos materials, caused by contact with equipment, tools, and chains used to move equipment. In addition, employees crawl and stand on asbestos covered pipes in the course of their work. Asbestos dust also remains in inaccessible areas and may become airborne due to disturbances such as air turbulence, and movement by employees. The ripout phase is followed by reinstallation, and testing and finishing phases. THE ARBITRATOR'S DECISION AND AWARD: The matter was submitted to arbitration at which evidence was adduced, argument presented, and an on-site inspection made by the arbitrator. On July 25, 1953, Arbitrator John P. McCrory sustained the grievance, finding that the shipyard had not made every reasonable effort to provide and maintain safe working conditions and, thus, was in violation of Article 29, Section 1 of the agreement. /4/ He found that asbestos dust, asbestos particles, broken lagging with exposed asbestos and similar potential sources of airborne asbestos were "routinely" in work areas aboard submarines. The shipyard was ordered to take appropriate corrective action with respect to all overhauls beginning after receipt of the award and "to the extent practicable" for overhauls already in progress. Arbitrator McCrory rejected the shipyard's contention that there is a safe level of exposure to asbestos. He stated: Establishing exposure "thresholds" on the assumption that there is a "safe" level of exposure demonstrates a philosophy which has caused employees to be victimized ... The time has come to reverse the presumption and give the benefit of any doubts regarding the toxic nature of airborne asbestos to employees and their families. Similarly, the arbitrator refused to base payment of environmental differential pay on the Occupational Safety and Health Administration (OSHA) 2 fibers/cc standard. In November 1977, Arbitrator Robert L. Stutz issued an award in a dispute between the same parties relating to environmental pay for exposure to airborne asbestos fibers. Arbitrator Stutz based payment on the OSHA standard. Arbitrator McCrory did not consider himself bound by the Stutz award. After finding the shipyard's safety precautions to be deficient, the arbitrator made the following recommendations: 1) Asbestos lagging which is not removed could be clearly marked so that employees would be aware of a potential hazard. Marking would also make surveillance efforts more efficient by reducing the need to test dust and particles each time it is suspected that asbestos is present. 2) More asbestos lagging could be removed during the ripout phase of an overhaul. The Agency has not explained why lagging which is sufficiently exposed to be damaged by employees working on an overhaul could not be removed, thus removing a potential source of airborne asbestos. 3) A more durable and effective protective covering could be placed on unremoved asbestos lagging. The tape which is now used to seal lagging tends to peal off. The use of tough protective sleeves to cover and seal asbestos lagging which cannot be removed from work areas would reduce the incidence of damage and spills. 4) More frequent surveillances could be made of areas where the potential asbestos exposure is high. In view of the fact that the lagging is routinely damaged, weekly inspections may not be adequate. A system for marking asbestos would be helpful in identifying areas which require the most attention. The high percentage of cases in which corrective action was required after weekly surveillances suggest that exposure potential could be reduced by locating problems sooner. Finally, air monitoring techniques which are in general use leave something to be desired. Attempts should be made to develop and use procedures which can reliably detect levels of asbestos concentration below .1 fibers/ cc and more attention should be given to the possible harmful effects of low levels of exposure. /5/ Addressing the environmental differential pay issue, the arbitrator construed the Federal Personnel Manual requirement to "practically eliminate(d) the potential for ... personal illness or injury." He noted that employees who work in the confined interiors of submarines which contain asbestos are exposed to a concentration of airborne asbestos greater than that present in the outside environment. He concluded: This exposure can not practically be eliminated, except with the use of respirators; which both parties reject as an option in this case. 1 am not fully satisfied that some type of respirator program would not be helpful. The circumstances and conditions described in items 1 through 4 on page 23 above unnecessarily increase the potential for exposure to airborne asbestos, over that which is inherent due to the general presence of asbestos. They are a potential source of exposure which could be controlled by measures which would not place an unreasonable burden on the Agency. I do not propose an impossible burden of cleanliness, but rather measures designed to substantially reduce, but not totally eliminate, risk. As stated by Doctor Selikoff: It would be hoped that no avoidable asbestos exposure will occur in any circumstances . . . For the foregoing reasons 1 find that the Agency has not consistently employed safety measures which would practically eliminate the potential for illness due to exposure to asbestos fibers. Arbitrator McCrory did not order back pay because the shipyard had followed the less rigorous OSHA standard in accordance with the Stutz award. He described his new standard as focusing on the "efforts made by the Agency to eliminate unnecessary exposure, or unnecessary potential exposure, to airborne asbestos, without reference to an arbitrary threshold." Last, Arbitrator McCrory ordered the establishment of a Joint Asbestos Safety Committee within 30 days of the award: Unless otherwise agreed, the Committee shall consist of six members, three selected by each party. The parties may designate a neutral member, or members, if they so choose. It is anticipated that the Committee will meet regularly and conscientiously pursue its assigned task. Its deliberations may generate suggestions which can be implemented as part of the Shipyard's safety program or provide the basis for collective bargaining proposals. The Committee shall remain in existence at least until the termination of the current collective bargaining agreement. REQUESTS FOR CLARIFICATION AND EXCEPTIONS TO THE AWARD: Requests for clarification were filed by the union on September 14, 1983 and by the shipyard on August 26, and September 23, 1983. On October 21, 1983, the Department of the Navy filed exceptions to the award, stating: "Under the authority of 5 U.S.C. 7122(b), the agency will not implement the arbitrator's final award until the exceptions to it discussed herein are ultimately resolved." On October 25, 1983, Arbitrator McCrory addressed the shipyard's requests for clarification. In part, he stated that the Department of the Navy's labelling system for unremoved asbestos is ineffective and does not comply with the award. The Navy uses signs instructing employees to treat all insulation as asbestos unless marked otherwise. Additionally, he reiterated that no specific asbestos level will trigger environmental pay: "It is more compatible with the wording of Appendix J to focus on the unnecessary sources, or unnecessary potential sources, of exposure to airborne asbestos." On October 20, 1983, Arbitrator McCrory responded to the union's request for clarification. The union had posted, in part, the following interpretations of the award: (1) All employees assigned to work on boats without respirators are entitled to Category 16, Environmental Pay, from July 28, 1953. (2) Category 16, Environmental Pay, will continue to be paid employees assigned to work on the boats without respirators until such time that the hazard no longer exists or a testing method is developed which can, shift by shift and hour by hour, clearly indicate the atmosphere in the boats as asbestos fiber free as the atmosphere outside the Shipyard. The clarification stated: The statements in items (1) and (2) are not correct. The intent of the Award is that Category 16 environmental pay should be paid when circumstances or conditions which increase the potential for exposure to airborne asbestos, over that which is inherent due to the general presence of asbestos in submarines, are not corrected. The standard in Appendix J ... does not require the total elimination of work place exposure to airborne asbestos. It does, however, specify a low threshold for environmental pay eligibility--when the potential for illness or injury is not "practically eliminated." This, 1 concluded, requires that employees receive environmental pay if they are exposed to conditions like those described on page 23 of the Award. The minimal increased exposure to airborne asbestos (over concentrations found in the general environment) which is caused solely by working in submarines which contain asbestos materials does not trigger entitlement to environmental pay. It is when this minimal level of exposure is jeopardized by circumstances or conditions which have the potential to increase actual exposure and the risk of illness that Category 16 environmental pay is required. The use of a respirator program, which might obviate other precautionary measures discussed in the Award, was not used as a determining factor because that option was rejected as impractical by both parties. On July 27, 1984, the Authority found the exceptions filed by the Department of the Navy to be untimely. /6/ COMPLIANCE WITH THE AWARD: A. REMOVAL OF ASBESTOS 1) 606 Submarine Prior to the McCrory award, workers removed only as much asbestos insulation as necessary to facilitate the equipment overhaul. Between 20 and 40% of the asbestos was removed. Joseph Belmont, production superintendent, testified that the 606 submarine, which had just entered the shipyard at the time of the award, was stripped of nearly 100% of its accessible asbestos located in the engineering spaces. According to Belmont, respondents declined to remove some of the accessible asbestos where the likelihood of damage was small. The engineering spaces include the engine room, the auxiliary machinery (AMR 2) and the auxiliary machine spaces (AMS), and contain the vast majority of asbestos found on a ship. Further, Belmont stated that accessible asbestos remains in other areas of a ship, such as the reactor compartment, and forward spaces, which contain mainly cold system asbestos. Department of Navy policy strictly controls work done in the reactor compartment, in order to minimize exposure to radiation. The policy forbids all unnecessary work in that area. Cold system asbestos insulation is less susceptible to damage than hot system insulation. Hot systems are designed to retain heat and prevent electrical equipment from overheating. The asbestos lagging ranges from 1 1/2 to 5 inches thick and is covered with asbestos cloth. Amosite asbestos, the type which most easily becomes airborne, is sometimes used in these systems. Cold system insulation prevents condensation in cooling water systems. Approximately 90% of cold systems designed within the past 20 years use rubber-type, asbestos-free insulation which is covered with 1/32 inch thick asbestos cloth. These materials are then covered with water base sealer and 8 to 10 coats of paint. Respondents conducted studies over two years and concluded that the probability of cold system asbestos becoming airborne is practically nill and that protective equipment is not even necessary for its removal. Leo Mazzuchi, general foreman insulator of Shop 64, testified that respondents removed 95% of the accessible hot system insulation in the engine room and 100% in the AMS. /7/ Thirty to 40% of the total asbestos content remains in the engine room, however, and 40 to 50% remains in the AMS, which contains more inaccessible areas. According to Belmont, about 10% of the total asbestos in a ship is inaccessible. In October 1983, the 606 submarine was the first ship to undergo a second ripout, in order to eliminate asbestos uncovered by equipment removal during the first ripout in July 1983. Respondents removed approximately 200 bags of insulation during the second ripout and approximately 1600 bags in total. The previous record for removal was 646 bags. Joseph Mason, a labor-relations specialist, Paul Clark, former director of the shipyard's Office of Safety and Health, and Belmont conceded that damage continues to occur on the submarines. Union witnesses claim that damage occurs on a daily or weekly basis. Steve Perry, chairman of the union Safety and Health Committee, examined the 606 boat in August or September 1983 and counted more than 18 areas of torn lagging and 25 exposed ends on asbestos covered pipes. At least five of the areas were pipes running directly across the footpath, and employees were kicking the loose asbestos. Perry testified: "We saw other areas where 1 could reach down and grab a whole handful of asbestos -- chunks of asbestos fibers ..." Perry also saw a large piece of equipment which had been removed from the 606 boat placed on the dockside for a week and a half in September or October 1983. The asbestos lagging around the equipment contained large holes and tears, apparently caused by cables used to transport it. According to Belmont, Perry praised the condition of the 606 boat in November 1983. He allegedly stated that the removal was "the best he could imagine happening" and that "if all submarines in Portsmouth or any place they were ripped out were in that condition not only would we not have a problem with asbestos or exposure to employees but we would exceed the requirements of the McCrory award." Perry testified that Belmont asked him about the 606 boat and he responded that he was "happy that they had taken out a little more asbestos but ... appalled at the condition ..." Based on my observation of the witnesses' demeanor, 1 credit Perry. Dennis Frost, union chief steward, toured the boat in August 1984 and observed 15 to 20 problem areas, including several exposed ends, cracked and damaged lagging, and taped ends. /8/ He estimated that up to 100 feet of accessible, unremoved asbestos remained on the ship. 2) 631 Submarine The 631 submarine entered the shipyard in January 1984. Mason testified that the asbestos removal from the 606 boat was used as a standard for subsequent overhauls. According to Mazzuchi, respondents removed from the 631 boat 95% of accessible hot system insulation, excluding very low traffic areas. In addition, respondents removed cold system insulation that was marked or in high traffic areas. About 1800 bags were removed. The configuration of the 631 boat did not necessitate a second ripout. Perry toured the 631 boat on August 14, 1984 with Frost, Froehling and Joseph Luvisi, former union chief steward. Perry observed 32 exposed ends, including one end within a foot of a worker's head, loose fibers adhering to the walls of the lithium bromide plant within inches of workers' faces, large chunks of almost pure asbestos on top of the lithium bromide plant, asbestos materials on the floor by the plant, employees sitting and standing on exposed asbestos, employees stepping on unprotected lagging, and a crushed pipe at foot level surrounded by white dust and powder. Luvisi reported insulation that had been walked on or smashed during the ripout, large chunks of asbestos on the lithium bromide plant, asbestos fibers clinging to the side of the plant, and exposed ends. /9/ Froehling described asbestos "all over the engine room, loose lagging, ripped ends, debris on the deck, et cetra." Workers were sitting and standing on the lagging and loose material and holding their hands on the pipes. He estimated that a couple hundred feet of protective sleeving would be necessary to cover the accessible, unremoved lagging. After its tour of the 631 boat, the union called in the shipyard's Asbestos Recovery Control (ARC) Team, an emergency squad formed in December 1983 to repair damaged asbestos and survey the ships. Thirteen out of 15 samples taken by the team tested positive. The General Counsel entered into evidence 12 of the positive test results. All of the tests involved areas accessible to employees; though, in general, they were low traffic areas, such as crawl spaces. The lithium bromide plant, from which four positive samples were taken, is 10 to 12 feet tall and located 10 feet from the middle passageway, a high traffic area. Lawrence Cooper, union president, testified that heavy machinery is often moved during the overhaul in the vicinity of the plant, causing it damage. Mazzuchi, who weighs 230 pounds, can get into the inboard area around the plant. Perry testified that employees using a nearby ladder hold onto pieces of the plant as they ascend and descend and brush their clothes against the plant in locations where the samples were taken. Steve Herman, former chief steward, who worked on the 631 boat since February 1984, testified at the hearing that accessible asbestos lagging remains everywhere on the boat. The General Counsel introduced into evidence random entries from the shipyard's spill log, dating from January to March 1984. 3) The 690 Submarine The 690 is a new class submarine which is largely asbestos-free. Respondents tested the 690 boat, which arrived in June 1984, and found 6 or 7 samples containing asbestos, out of 1,000. All the asbestos in the non-nuclear areas was removed; any remaining asbestos is very minute. 4) The 605 and 678 Submarines The 605 submarine has been in the shipyard since October 1982, and the 678 submarine since March 1983. The ripouts were completed before issuance of the McCrory award. The 605 boat began its testing phase on July 20, 1983 and the 678 boat on September 28, 1983. Sixty per cent fewer employees are on the ship during this phase as compared to earlier phases. The risk of damage to asbestos is greatest during the ripout phase. Frost was on the 605 boat in August 1984 and found "various open ends of lagging, a few tears in some cloth, several areas crushed and damaged, a couple of holes, like a water injection type hole ..." He opined that relative to the other submarines in the shipyard, the 605 boat contains the most asbestos. According to union witnesses, at least hundreds of feet of accessible asbestos remain. B. PROTECTIVE COVERINGS By at least August 23, 1983, respondents began to use the mud-cloth method of repairing damage to insulation and sealing exposed ends. The exposed area is covered with cement and fiberglass cloth forming a "cap," and sealed with a water-based adhesive. Previously, respondents used cloth tape, which sometimes curled or lost its adhesiveness when exposed to heat, steam or paint. Further, asbestos material adhered to the tape when it was removed. The cement is hot and fuses into the insulation. Mazzuchi testified that the mud-cloth method "outweighs the tape a hundred times." A worker climbing on a pipe may dislodge the "cap," however. Respondents' witnesses testified that protective coverings, such as sheet metal and plastic toboggans, have been installed on the submarines to protect unremoved asbestos insulation, particularly in the reactor compartments. Union witnesses testified that they have not seen protective coverings on the 606 boat, the 631 boat, nor the 678 boat. According to Frost and Luvisi, the 605 boat contains one piece of protective sleeving over insulation, approximately 3 or 4 feet long. C. MARKINGS 1) 606 Submarine Respondents' witnesses claim that 500 small tags were posted on unremoved asbestos in the 606 submarine on or about September 13, 1983. /10/ Some tags were removed along with asbestos during the October 1983 second ripout. In addition, on or about August 27, 1983, respondents posted large signs on the ship's four brows, the bridges which cross from the dry dock wall under the top of the submarine. The brow signs direct workers to treat all insulation as asbestos unless otherwise identified. Minutes in evidence of meetings between the shipyard and the union indicate that the 606 boat had been equipped with brow signs and small tags by the October 3, 1983 meeting. Luvisi and Frost conceded that the 606 boat is substantially well marked. Frost opined that about fifty additional small tags are needed in the lower level. Perry contended, however, that in October 1983, the shipyard's agents told him that they had only equipped the boat with brow signs. I do not credit Perry's statement. 2) 631 Submarine Respondents' witnesses attested to installation of small tags on the 631 submarine after its ripout phase. Weinert testified, however, that a week after ordering workers to tag the boat, he saw five tags in the engine room and none in the AMR-2. The shipyard ordered two employees to tag the AMR-2 in the 631 boat on August 14, 1984 and the engineering spaces on August 15, 1984. Perry and Luvisi saw the employees during their tour of the boat on August 14: "They had a big box of signs-- they were marking everything as fast as they could." One of these employees testified that she posted about fifty small tags at that time. She saw two tags already hanging in the AMR-2, and "a couple" tags in the engine room that were "dirty like they had been there for a while." According to Perry and Luvisi, they saw no small tags in the engine room on August 14. Herman testified that he had worked on the boat since February 1984 and saw no small tags until August 16, 1984. Froehling testified that he saw no small tags in early August 1984 and estimated that more than one hundred were needed. 3) The 605 and 678 Submarines According to respondents' witnesses, the 605 and 678 submarines were tagged in October or November 1983. Priority was given to the 606 boat, since damage was more likely to occur during the ripout phase. Frost testified that in August 1984 he saw a few small tags on the side of the 605 boat and none on the lower level. He saw three in the engine room which, in his opinion, needed several hundred, and none in the AMS, which needed 50 to 100. Luvisi was on the 605 boat on two occasions during the six months preceding the hearing and on the 678 boat within five weeks of the hearing, and claims he saw no small tags on either boat. Tags which have been posted may be removed by painters or mechanics during the course of their work. Most of the painting occurs in between the reinstallation phase and testing phase, but some painting is completed after the ripout phase. The 631 submarine had not reached the testing phase at the time of the hearing. Mechanics are apt to work on a boat at any time after the ripout phase. Respondents attempt to replace tags that have been removed. Some tags are also removed before sea trial during the finishing phase of the overhaul because they are not authorized by the Department of the Navy as permanent fixtures. The 605 and 678 boats have been in the finishing phase since May 1984. Employees represented by the union work on the submarines after the finishing phases. Order forms in evidence show that respondents ordered 1,000 small tags in August 1983, 5,000 in September 1983 and 1,000 in February 1984 In addition, respondents introduced into evidence a memorandum dated February 21, 1984 in which Weinert ordered Shop 64 to tag the 631 boat. D. SURVEILLANCE Prior to the McCrory award, respondents surveyed work areas for asbestos damage on a weekly basis. Respondents increased surveillance to a daily basis in the spring of 1983 and to every shift, after issuance of the McCrory award. In addition, respondents attempted to involve supervisors and employees in surveillance efforts. Supervisors are required to make three surveillance tours per shift. E. ADDITIONAL MEASURES The Asbestos Recovery Control Team was instituted as part of the "As Low As Reasonably Achievable" (ALARA) program, the Department of the Navy program to minimize employee exposure to hazardous materials such as asbestos. ALARA was applied to asbestos in late 1980 or early 1981. After the McCrory award, the program became more formalized; for instance, in September 1983 Code 106, the shipyard Office of Health and Safety, hired a full-time manager for the asbestos ALARA program who secured a van for the ARC Team and established a hot-line. Two employees from Shop 64 are now assigned on a full-time basis to the team each month. The ARC Team needs seven to twelve minutes to respond to a call, whereas Code 106 formerly required one hour. Employee awareness has also improved. In addition to supplying signs, posters and hard hat stickers advertising the ARC Team, respondents have presented slide shows and formal lectures. Respondents have also published several articles on the subject in the shipyard magazine. The number of reports of potential asbestos problems has increased by 400%. Respondents developed a water-injection procedure which reduces the risk of asbestos particles remaining after a ripout. /11/ Water combined with a solvent enhancing its wetting properties is injected into the insulation, thereby reducing airborne levels during the ripout. In approximately February 1984, respondents introduced glove bags, vinyl or plastic bags used to isolate areas during "minor ripouts" conducted while unprotected workers are in the area. Last, respondents established a spill log to monitor asbestos problems. F. AIR MONITORING TECHNIQUE Rather than develop its own procedure for monitoring airborne asbestos, respondents requested the National Institute of Occupational Safety and Health (NIOSH) to conduct research and develop a new technique. Respondents decided that they lacked the credibility to develop a procedure which would be accepted by the community. Respondents are in the process of implementing a new method introduced by NIOSH in February 1984. G. JOINT ASBESTOS SAFETY COMMITTEE In approximately March 1983, the union established a Safety and Health Committee. Joe Diewicki, director of industrial relations, informed the union that respondent considered the new committee to be strictly internal union business and would not allow use of official time for its activities. After issuance of the McCrory award, the shipyard initiated meetings with the union and employees to discuss health and safety issues. These meetings continued until January 1984. Clark told Perry that it was not the committee mandated by McCrory and that the Department of the Navy prohibited him from establishing such a committee. Captain J.F. Yurso, then shipyard commander, and Mason also told union officials that the shipyard was not allowed to establish the McCrory committee. Mazzuchi solicited volunteers to participate in the meetings between the shipyard, the union and employees. Minutes in evidence indicate that attendance varied generally from five to seven persons. The union was permitted to select its representatives. There were no limitations on health and safety issues to be discussed. The shipyard's Office of Health and Safety had the authority to implement recommendations submitted by Clark as a result of these deliberations. Clark testified: "When we established the meetings, we agreed it did not meet the letter of the McCrory award. I was not allowed to do that but our full intention was to do exactly what the McCrory award asked for." He conceded that respondents did not technically comply with the McCrory award. On July 23, 1984, the parties entered into a Memorandum of Understanding establishing the McCrory committee. H. ENVIRONMENTAL DIFFERENTIAL PAY Respondents have paid environmental differential pay only in cases of actual exposure. /12/ For instance, one recipient was struck by a chunk of asbestos weighing three to four pounds. Another recipient was installing a flange when asbestos spilled out of the pipe. In both cases, employees standing nearby also received payment. Some employees' claims have been denied because they could not provide airborne samples taken after actual exposure. In order to collect, an employee must follow a procedures established in the parties' collective bargaining agreement. /13/ The employee files a complaint with the supervisor, who may agree that environmental pay is warranted and annotate the employee's time card accordingly. This determination is reviewed by a labor-relations specialist. If the supervisor disagrees with the employee, the employee may grieve the decision. The union may also initiate a claim for environmental differential pay on behalf of an employee. Perry testified that respondents could monitor, with difficulty, the whereabouts of its employees. It would have to secure information from every trade. Respondents attempt to identify for the medical action surveillance program all employees exposed to asbestos. Prior to the McCrory award, respondents were obligated to pay the environmental differential when the airborne concentration exceeded 2 fibers/cc. Discussion and Conclusions The General Counsel has established by a preponderance of evidence that respondents have violated section 7116(a)(1) and (8) of the Statute by failing to comply with a final and binding arbitration award, issued on July 28, 1983 by Arbitrator McCrory, directing the shipyard to improve asbestos conditions on the submarines and pay environmental pay until such steps have been taken. As a threshold issue, respondents contend that the case should be dismissed on procedural error. It reasons that because the Authority did not rule on the October 21, 1983 exceptions to the award until June 27, 1984, the award was not "final and binding" within the meaning of section 7122 of the Statute when the General Counsel issued the consolidated complaint in this matter. The time for filing timely exceptions expired on August 31, 1983. Based on previous Authority actions when exceptions to an arbitrator's award were untimely filed, finding an agency's subsequent refusal to implement an award as violative of section 7116(a)(1) and (8) of the Statute, the General Counsel's actions clearly were appropriate. Furthermore, Respondents' reliance on U.S. Soldiers' and Airmen's Home, Washington, D.C., 15 FLRA No. 26, 15 FLRA 139 (1984), is misplaced. In that case, the agency had not failed to comply with an arbitration award because timely exceptions were pending before the Authority. In the instant case, exceptions filed by the Department of Navy were not timely. Respondents also assert as a defense their good faith belief that the exceptions were timely, because the arbitrator retained jurisdiction for ninety days and because clarification requests were pending before the arbitrator. An agency acts at its own peril in disregarding the thirty-day deadline. /14/ Section 7122 plainly states: "If no exception to an arbitrator's award is filed under subsection (a) of this section during the 30-day period beginning on the day of such award, the award shall be final and binding". /15/ The law in that area is abundantly clear; therefore, respondents' argument must be rejected. In addition respondents contend that the arbitration award at issue is more appropriately interpreted through the negotiated grievance procedure. Although respondents state unequivocally that they complied with the award by August 31, 1983, they argue that the "amorphous steps management takes' standard" precludes evaluation of compliance in an unfair labor practice proceeding. While the arbitrator did not condition compliance upon a specific level of airborne concentration, neither did he leave the parties without guidance as to the safeguards to which employees working on submarines are entitled. It is my view that a reading of the award in its entirety dispels any notion of its ambiguity. Assuming, arguendo, that the award were ambiguous, I would still consider the unfair labor practice proceeding to be the proper forum for this matter as it stands. Any contention that an arbitrator's award is deficient because it is contrary to law, rule or regulation must be made by invoking the procedures established by Congress in section 7122(a) of the Statute. If a party fails to file exceptions to the arbitrator's award pursuant to section 7122(a), within the 30 day period established therein, the award becomes final and binding and "(a)n agency shall take the actions required by an arbitrator's final award" /16/ Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 17 FLRA No. 13, 17 FLRA 40 (1985); Department of Defense, Department of the Navy, U.S. Marine Corps U.S. Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA No. 137, 15 FLRA 568 (1984). Similarly, if a party fails to assert the ambiguity of an arbitration award in timely exceptions pursuant to section 7122(a)(2), /17/ or in a request to the arbitrator for clarification, it is in my opinion barred from later doing so in an unfair labor practice proceeding. A party should not benefit from its failure to invoke the procedures established in the Statute. In the award at issue, Arbitrator McCrory clearly stated that "the circumstances and conditions described in items 1 through 4 on page 23 above unnecessarily increase the potential for exposure to airborne asbestos, over that which is inherent due to the general presence of asbestos. They are a potential source of exposure which could be controlled by measures which would not place an unreasonable burden on the Agency." On page 23 he recommended that respondent 1) mark unremoved asbestos, 2) remove more asbestos, 3) install more durable and effective protective coverings, and 4) institute more frequent surveillance. Arbitrator McCrory repeated references to "unnecessary exposure" and "unnecessary potential exposure" several times in the award and in the responses to the parties' requests for clarification. In the response to the union's request, he again stated: "This (the Federal Personnel Manual), 1 concluded, requires that employees receive environmental pay if they are exposed to conditions like those described on page 23 of the Award." /18/ The parties read differently McCrory's directive to remove additional asbestos. On brief, respondents stated: General Counsel literally reads McCrory's language on page 23 to the extent he mentions lagging "which is sufficiently exposed to be damaged during the overhaul" yet concurrently overlooks other portions of the award and the overall context of the award itself. For example, on pages 22 and 23 McCrory limits his discussion to asbestos lagging left in work areas "where the risk of damage during the overhaul is substantial." A reading in its entirety of the paragraph to which respondents refer militates against respondents' interpretation: The record also shows that asbestos lagging and other asbestos materials are exposed and routinely damaged while unprotected workers are engaged in the overhaul of submarines. According to Mr. Weinert, prior to a ripout, insulation is tested to determine what is and what is not asbestos. Yet, lagging which is found to be asbestos is not marked or labeled and exposed asbestos lagging is left (after a ripout) in work areas where the risk of damage during the overhaul is substantial. Conceding the accuracy of Agency's statement that it would not be practical to remove all asbestos lagging, there is no apparent justification for not removing the lagging which is sufficiently exposed to be damaged during the overhaul, thereby causing a potential hazard in the work area. Arbitrator McCrory did not emphasize that the risk of damage must be substantial; rather, he emphasized the need to remove asbestos which is at least sufficiently exposed to be damaged. Further, McCrory reiterated in the award: "The Agency has not explained why lagging which is sufficiently exposed to be damaged by employees working in an overhaul could not be removed, thus removing a potential source of airborne asbestos." Similarly, in his response to the union's request for clarification, McCrory made it plain that some quantity of asbestos greater than that found in the general environment would no doubt remain in the submarines. He was equally emphatic in the award, however, that all asbestos which is sufficiently exposed to be damaged is an unnecessary hazard. McCrory specifically rejected the assumption that there is a "safe" level of exposure. I cannot accept as a "differing and arguable" conclusion respondents' contention that accessible asbestos must be removed only from areas where risk of damage is substantial, that is, high traffic areas. Testimony concerning unremoved asbestos on the 606 submarine is by no means conclusive. August or September 1983; however, the second ripout did not occur until October 1983. Further, although Frost estimated that 100 feet of accessible asbestos remained on the boat, he did not specify whether the material was hot or cold system asbestos. Mazzuchi conceded that a substantial percentage of asbestos remains in both the engine room and the AMS because it is inaccessible or because it is cold system asbestos. It is uncontroverted that cold system asbestos is generally innocuous. Spill logs in evidence, however, indicate that the boat sustained asbestos damage on numerous occasions between January and March 1984. Two out of eight entries show damage to asbestos insulation in the engine room. /19/ On brief, respondents claimed that the problems reported in the spill logs were "largely in areas above things, behind things, or below things". It is particularly irrelevant under these circumstances that they were low traffic areas since they were obviously sufficiently accessible to become damaged. Once exposed, any asbestos may become airborne through the daily motion in the submarine. The spill logs, maintained as part of the shipyard's day to day operations, show that accessible asbestos remained on the 606 boat in early 1984, and that actual damage indeed occurred. Respondents were, therefore, in violation of the arbitration award with respect to the 606 boat. /20/ The 631 submarine is also the subject of numerous spill log entries. In addition, 1 find testimony by witnesses for the General Counsel convincing that the boat was in substandard condition as late as August 1984. Credible accounts by Perry, Frost, Froehling and Luvisi of considerable employee exposure to loose asbestos materials caused by damaged insulation can only lead to the conclusion that respondents failed to remove enough insulation during the ripout. This testimony is corroborated by results in evidence of tests taken by the ARC Team on the 631 boat after the union's inspection. It is again irrelevant that respondents' witness characterized the locations of the damage as low traffic areas. The record is devoid of evidence that exposed asbestos in low traffic areas cannot become airborne and is not dangerous. In any case, the lithium bromide plant, targeted by the General Counsel's witnesses as a problem area, does not appear to be a low traffic area. In addition, tagging on the 631 boat was deficient. The last minute tagging admittedly ordered by respondents around August 14 and 15, 1984 indicates respondents awareness of non-compliance in that area. That the employee assigned to tag the boat saw two tags already in the AMR-2 and "a couple" in the engine room does not excuse the need to hang at least fifty. Although the evidence shows that 1,000 tags were February 7, 1984, and it reveals that Weinert directed the tagging of the 631 boat on February 21, 1984, there is no showing that this tagging actually took place. Weinert admitted that when he checked up on his order a week later he saw only five tags in the engine room and none in the AMR. He did not testify that his employees ever corrected the situation. Herman testified that the boat had no tags from February to August 1984. I credit Herman where his testimony conflicts with that of Belmont and Mazzuchi on this point. Having found violations of the award with respect to the 606 and 631 boats, I turn to the boats which entered the shipyard prior to issuance of the award. Arbitrator McCrory ordered compliance with the award "to the extent practicable" for overhauls already in progress. The General Counsel did not attempt to prove that it would have been practicable to conduct second ripouts on the 605 and 678 boats in order to remove more asbestos insulation. The 678 was in its reinstallation phase and the 605 in its testing phase when the award was issued. To minimize risk, however, respondents were obligated to survey and tag the boats, and provide protective coverings. Respondents do not assert that these criteria are inapplicable to the 605 and 678 boats, but state that the risk of damage is minimal because fewer workers are in the boats and because damage is most likely to occur during the ripout. Nevertheless, spill log entries for these boats, recorded during their testing phases between January and March 1984, demonstrate that damage can and does occur after the ripout phase. By respondents' own admission, the 605 and 678 boats had been devoid of tags since May 1984 because they were in the portion of the finishing stage during which unauthorized objects must be removed from the boats. Since employees work on the boats before and after the sea trial, respondents certainly are obligated in order to be in compliance with the McCrory award to provide the protections mandated by the award. Notwithstanding objections at this point, respondents did not raise this issue in timely exceptions and are, in my opinion, precluded from raising the Navy policy as a defense at this time. Department of the Defense, Department of the Navy, United States Marine Corps, United States Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA at 687. Thus, respondents were in violation of the award with respect to all four submarines at issue. /21/ The parties disagree over the method of payment of environmental differential pay. Respondents assert that individual employees must claim EDP under Article 20, Section 3 of the collective bargaining agreement and grieve if compensation is refused. The General Counsel claims that all employees working in proximity to conditions on the ship triggering EDP are automatically entitled to payment and that the bonus is on respondent to make payment. It appears illogical that the arbitrator would award EDP, but then prolong respondents' violation of the contract by having each employee apply separately. Involvement of the negotiated grievance procedure would further complicate rather than expedite the process. Moreover, pursuant to respondents' interpretation, the award does not afford a remedy; it merely triggers the remedy already provided by the collective bargaining agreement, thereby making the entire process up to this point a futile exercise which could not resolve the already existing different interpretations of the parties. Respondents claim that this procedure is necessary to ensure that each recipient was exposed to the unsafe conditions. This solution actually creates more problems than it solves. Since employees are entitled to EDP for potential as well as actual exposure, it is unclear how often employees who work regularly in ships would have to reapply for payment. Potential exposure is a continuous state. In this respect, work done in proximity to asbestos is similar to work done at dangerous heights. Thus, the danger is always there and the employee is being paid for the potential rather than an actual hazard. Respondents assert that in the latter situation, the collective bargaining agreement allows supervisors to initiate assignment of EDP. I find that the award cannot be reasonably construed to require each employee to seek EDP individually. Nor can it reasonably be construed to require payment only when a supervisor initials requests for payment of EDP. In light of all the foregoing, it is found that respondents have not fulfilled their obligation pursuant to section 7122 of the Statute and, thus, have violated section 7116(a)(1) and (8) of the Statute. /22/ The Remedy Having found that the respondents have engaged in certain unfair labor practices I will recommend that they cease and desist therefrom and to take affirmative action designed to effectuate the policies of the Statute. Section 7118(a)(7) of the Statute provides that backpay is an appropriate remedy where the unfair labor practice of an agency has resulted in loss of pay to its employee. Similarily, the Statute incorporates the backpay provisions at 5 U.S.C. 5596 which provides for backpay in instances where an employee has been adversely affected by an unfair labor practice. Under 5 U.S.C. 5596 the employee or employees must establish that "but for" the wrongful unilateral act of an agency, a loss of pay would not have occurred. The record in this case supports a finding that "but for" respondents unilateral act in not implementing the arbitrators award employees working on the various submarines involved would have received environmental differential pay during periods that substandard asbestos conditions were maintained aboard a particular submarine. Although the matter has been extensively litigated, the record in my view, does not clearly establish all periods of potential liability for respondents. During the course of the hearing it was suggested that a backpay proceeding might be necessary in order to calculate the employees entitlement to environmental differential pay, if any. Preliminarily, it appears that certain employees may be entitled to compensation from October 26, 1983 until such time as respondents prove compliance with the arbitration award. If respondents are able to demonstrate compliance with the award for any submarine during any period of time after October 26, 1983, then liability should be diminished accordingly. Whether such a back pay hearing should be ordered should be left to those in charge of compliance of the instant Decision, the Authority's order or a court decree, as the case might be, to see how payment could best be carried out. At this juncture, I would recommend however, that respondents be ordered to preserve and upon request, make available to the Authority or its agents, for examination and copying all payroll records, time cards, personnel records and reports and all other records necessary to analyze the amount of backpay due under the terms of this order. /23/ It is recommended that the Authority adopt the following order: ORDER Pursuant to 5 U.S.C. 7118 and section 2423.26 of the Final Rules and Regulations of the Federal Labor Relations Authority, U.S. Fed.Reg. 3482, 3510 (1980), its is hereby ordered that Department of the Navy and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, shall: 1. Cease and desist from: (a) Failing and refusing to comply with Arbitrator John P. McCrory's July 28, 1983 arbitration award by maintaining substandard asbestos conditions on submarines undergoing overhaul and by refusing to pay environmental differential pay. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute. (a) Fully comply with Arbitrator John P. McCrory's July 28, 1983 arbitration award by conforming asbestos conditions on submarines undergoing overhaul to the standard established in the pay until such steps have been taken. (b) Preserve and upon request, make available to the Authority or its agents, for examination and copying, all payroll records, time cards, personnel record and reports, and all other records necessary to analyze the amount of backpay due under the terms of this order. (c) Post at the Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire copies of the attached notice marked "Appendix." Copies of said notice, to be furnished by the Regional Director for Region 1, after being signed by an authorized representative, shall be posted immediately upon receipt thereof, and thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure said notices are not altered, defaced, or covered by other material. (d) Notify the Regional Director for Region 1, in writing, within 30 days from the date of this order, as to what steps have been taken to comply herewith. (s)--- ELI NASH, JR. Administrative Law Judge --------------- FOOTNOTES$ --------------- /1/ The shipyard objects to the General Counsel's motion on the ground that section 7118(a)(4)(A) of the Statute applies to the pleading of new parties as well as issues or causes of action. The acts and conduct of higher level agency management may constitute an unfair labor practice where such conduct prevents agency management at the level of exclusive recognition from fulfilling its obligation to comply with a final and binding arbitration award. Department of Health and Human Services, Region II, 15 FLRA No. 139, 15 FLRA 710, 711, fn. 2 (1984). The record reveals that the Department of the Navy was instrumental in at least the delay in implementation of the Joint Asbestos Safety Committee. Further, the Department of the Navy filed the exception; to the award. In view of its cognizance of the proceedings and active participation, the Navy will not be prejudiced by the General Counsel's motion. Furthermore, failure to comply with an arbitration award constitutes a continuing violation; thus, the six month statute of limitations cannot bar an action against the Department of the Navy. See Department of Defense, Department of the Air Force, 31st Combat Support Group, Homestead Air Force Base, 13 FLRA No. 41, 13 FLRA 239, 246, fn. 8 (1983). Hereinafter, the Department of the Navy and the shipyard will be known collectively as "respondents." /2/ Article 20 provides in relevant part: 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 3. Cognizant supervisors, When assigning employees to work for which environmental pay is indicated, shall so inform the employee. If at any time any employee believes that environmental pay is warranted, the employee should call the matter to the attention of his immediate supervisor who will make (or obtain) a determination and advise the employee. The employee may exercise his right to be represented by a Council steward when discussing environmental pay. /3/ FPM Supplement 532-1 Appendix J prescribes those working conditions for which environmental pay may be warranted. Category 15 (Asbestos) provides for payment of an 8% differential for: Working in an area where airborne concentrations of asbestos fibers may expose employees to potential illness or injury and protective devices or safety measures have not practically eliminated the potential for such personal illness or injury. /4/ Article 29 provides in relevant part: Section 1. Each employee has the responsibility to work safely. The Employer will make every reasonable effort to provide and maintain safe working conditions. The Council will cooperate in these efforts and encourage employees to work in a safe manner. /5/ These corrective actions were listed on page 23 of the award. /6/ See Portsmouth Naval Shipyard, 15 FLRA No. 28, 15 FLRA 181 (1984). /7/ George Weinert, an industrial hygienist, testified that almost all of the hot system asbestos in the entire submarine was removed. /8/ John Froehling, union steward, concurred with this description. /9/ Frost corroborated this testimony by Perry and Luvisi. /10/ Although Mason, Belmont and Weinert testified that the small tags were posted on or about August 29, 1983, 1 credit Mazzuchi on this point since he was held responsible by Belmont for the development and installation of the tags. /11/ At the end of a ripout, a ship is also vacuumed before employees outside Shop 64 are allowed to enter. /12/ Although Mason claimed that environmental differential pay had been paid for potential exposure, his testimony was contradicted by Perry, Luvisi, and Belmont, respondents' witness. In addition, Mason could not identify any employee who received such payment. On the basis of the entire record, 1 credit Perry, Luvisi and Belmont. /13/ See footnote 1. /14/ U.S. Department of the Interior, Bureau of Land Management, Eugene District Office, 6 FLRA No. 72, 6 FLRA 401 (1981), cited by respondents in support of their good faith belief, is inapposite in that it involved a response to a clarification request which gave rise to deficiencies asserted by the agency in its exceptions. /15/ In this regard, respondents' compliance with the award will be evaluated from October 26, 1983 when the arbitrator relinquished jurisdiction, rather than from June 27, 1984, as urged by the respondents. /16/ See section 7122(b) of the Statute. /17/ Section 7122 provides in relevant part: (a) Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator's award pursuant to the arbitration ... If upon review the Authority finds that the award is deficient -- (2) on other grounds similar to those applied by Federal courts in private sector labor-management relations; the Authority may take such action and make such recommendations concerning the award as it considers necessary, consistent with applicable laws, rules or regulations. /18/ The General Counsel asserts that the only conditions which trigger entitlement to environmental pay are the presence of free asbestos material and unremoved asbestos lagging. In view of McCrory's explicit reference to "items 1 through 4 on page 23," I am in agreement with the other parties that the triggering "conditions" include all four corrective actions listed on page 23 of the award. /19/ G.C. Exh. S-29 involves cold system asbestos; however, the record does not show that exposed cold system asbestos is completely safe. Cold system asbestos is less dangerous partially because it is less likely to become exposed. /20/ The evidence is largely uncontroverted that the 606 boat was sufficiently marked. In addition, 1 find it unnecessary to make a credibility finding regarding the use of protective coverings on the 606 boat in view of the above conclusion. /21/ In view of the above conclusions, I deem it unnecessary to make credibility determinations regarding the use of protective coverings on the 631, 605 and 678 submarines. In addition, respondents have complied with item 4 on McCrory's list by increasing surveillance on all the boats from a weekly to shift by shift basis. /22/ In view of this conclusion, I find it unnecessary to determine whether respondents' conduct was also in violation of section 7116(a)(5) of the Statute. APPENDIX A 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 OUT EMPLOYEES THAT: We WILL NOT fail and refuse to comply with Arbitrator John P. McCrory's July 28, 1983 arbitration award by maintaining substandard asbestos conditions on submarines undergoing overhaul and by refusing to pay environmental differential pay. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL fully comply with Arbitrator John P. McCrory's July 28, 1983 arbitration award by conforming asbestos conditions on submarines undergoing overhaul to the standard established in the award and by paying environmental differential pay until such steps have been taken. WE WILL preserve and upon request, make available to the Authority or its agents, for examination and copying, all personnel records, time cards, reports, and all other records necessary to analyze the amount of backpay due under the terms of this order. --- (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 any of 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, Massachusetts 02116 and whose telephone number is: (617) 223-0920.