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The decision of the Authority follows:
25 FLRA No. 19 NORFOLK NAVAL SHIPYARD Respondent and TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO Charging Party Case No. 34-CA-50389 DECISION AND ORDER The Administrative Law Judge issued the attached decision in these proceedings. He found that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and he recommended that the complaint be dismissed. 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, we have reviewed the rulings of the Judge made at the hearing. We find that no prejudicial error was committed, and we affirm those rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order. ORDER The complain in Case No. 34-CA-50389 is dismissed. Issued, Washington, D.C., January 20, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 34-CA-50389 NORFOLK NAVAL SHIPYARD Respondent and TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO Charging Party Mr. Robert J. Gilson For the Respondent Mr. A. J. Walker For the Charging Party Patricia Eanet Dratch, Esquire For the General Counsel, FLRA Before: GARVIN LEE OLIVER Administrative Law Judge DECISION Statement of the Case This decision concerns an unfair labor practice complaint issued by the Regional Director, Region III, Federal Labor Relations Authority, Washington, D.C., against the Norfolk Naval Shipyard (Respondent), based on an amended charge filed by the Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO (Charging Party or Union). The complaint alleged, in substance, that Respondent violated sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. Section 7101 et seq. (the Statute), by requiring all Shop 07 employees who are respirator qualified and whose work assignments do not normally require respirator protection to remain clean shaven in the area of the face seal of the respirator at all times. The complaint alleged that the Respondent implemented this alleged change in the working conditions of unit employees without affording the Union prior notice and an opportunity to bargain over the change and its impact and implementation. Respondent's answer admitted the jurisdictional allegations, but denied that it had made a change or violated the Statute. A hearing was held in Norfolk, Virginia. The Respondent, Charging Party, and the General Counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The General Counsel and the Respondent filed briefs. The General Counsel contends that a practice developed in Shop 07 whereby respriator qualified employees who do not routinely require respirator protection could grow facial hair in the area of the face seal, and that this practice ripened into a condition of employment which could not be unilaterally changed by management. The General Counsel points out that the practice, as testified to by Union officials and employees, comports with the Shipyard Instruction on this matter. Counsel for the General Counsel presented testimony from the Union president, the Shop 07 chief steward, shop steward, and from six unit Shop 07 employees. These witnesses testified that prior to February 1985 it was the practice that respirator qualified employees in Shop 07 who did not routinely use respirators could grow facial hair in the area of the face seal except during training. Mr. A. J. Walker, Union president, acknowledged that he had no direct knowledge of the practices in the shop, but rather relied on his stewards and chief steward to inform him. Mr. Howard E. Briggs, shop steward, has worked in Shop 07 for about ten years. He has been respirator qualified during most of this period and testified as to the above practice and use of respirators. He did not keep track of which of the 200 employees were respirator qualified. If he saw an employee with a beard he would have no direct knowledge of whether the employee was respirator qualified or not unless he asked him or was told. Chief Steward William W. Brown, Jr. has worked in Shop 07 for seven years. He is not respirator qualified, but has talked with lots of employees who are. He also testified that he had not sought to find out exactly which employees were respirator qualified. If he saw an employee with a beard he would not know whether the employee was respirator qualified or not unless he had talked with the employee or researched the matter. Brown testified that most employees do not carry respirator cards. Dwight Geddis, formerly a cement finisher in Shop 07, was not respirator qualified at the time of the hearing. Approximately four and a half years ago he had been respirator qualified for a period of three years. This qualification was on an on and off basis. Mitchell Batten, a pipefitter, was not respirator qualified at the time of the hearing, but was qualified during the period of 1981-1983. David Morris, a high voltage cable splicer, and Richard Davidson, an electrician, have been respirator qualified for seven and four years respectively, but only recently have been issued their respirator qualification cards. John Woodall, a sheetmetal mechanic, was respirator qualified in approximately August 1984. However, since November 1984 he has been assigned to painting and maintenance work outside of the controlled industrial area pending resolution of a clearance matter. Charlie B. Taylor, Jr., a high voltage electrician, was respirator qualified for the face-to-face respirator for three years from approximately 1981 to 1984. He used the respirator about once a year. He shaved his beard only for respirator training. Respondent defends on the basis that no management official ever knew or knowingly acquiesced in a past practice of allowing respirator qualified employees of Shop 07 to grown facial hair in the area of the face seal, and the requirement to be clean shaven in the area of the facial seal was the reaffirmation of a long standing policy. Respondent presented testimony from three individuals who do not work directly in Shop 07 (a supervisory industrial hygienist, supervisory training instructor, and labor relations specialist) as well as four upper level managers in the Shop (the superintendent and three general foremen). The General Counsel urges that Respondent's failure to bring forth any first line supervisors compels the drawing of an adverse inference that their testimony would not have corroborated that of the upper level managers. I see no basis for drawing such an inference in the circumstances described. I have credited major portions of the testimony of Respondent's witnesses as set forth in the following findings. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. Findings of Fact 1. At all times material, the Union has been certified as the exclusive representative of an appropriate unit of Respondent's employees, including, inter alia, employees assigned to Respondent's Shop 07. 2. The Union and the Respondent are parties to a collective bargaining agreement effective April 4, 1977. Article 33, Section 1 provides a procedure for the Union or Respondent to file and process grievances which allege, inter alia, "the improper application of Shipyard directives. . . ." 3. On July 9, 1982 Respondent issued NAVSHIPYDNOR Instruction 10470.6B on respiratory protection. Paragraph 5.e.(5), 6.b.(1) (a), 6.e.(1), and 10.d.(2) and 10.d.(3)(c) provide as follows: 5. Responsibilities . . . . . . e. Employees will: . . . . . . (5) in situations where respiratory protection requiring a facepiece-to-face seal is routinely required, e.g., electroplating facility, waste treatment facility, insulators, firefighters, etc., be clean shaven in the area of the face seal of the respirator at all times while in a pay status(.) . . . . . . 6. Selection and Use of Respirators 1@@ . . . . . . b. Respirator Issue (1) Respirators shall only be issued to those employees qualified to the requirements of this instruction and possessing a valid respirator fitting card. . . . Respirator issue is also permitted to the following individuals: (a) Shipyard employees not normally engaged in work requiring respirators, who must enter a work area on a one-time only basis, provided that the employee has written authorization from his supervisor and is accompanied by a qualified employee who will inform him of the hazards involved and ensure that the respirator is properly selected and worn. Such employees must be medically qualified and meet the requirements of paragraph 6c(1), (2), and (3), page 9. NOTE: Shop personnel which may be required to work in a respirator area on an intermittent but routine or regular anticipated basis must have a respirator fitting card. Intermittent is not one-time only. . . . . . . e. Use of Respirators -- Normal Operations (1) Shipyard Policy on Facial Hair (a) All employees must be cleanly shaven during their initial qualification and subsequent biannual requalification training for respirators requiring a face-to-face piece seal. (b) All employees whose work assignment routinely requires respiratory protection having a face-to-face piece seal shall be cleanly shaven in the area of the face seal of the respirator while in a pay status. (c) When an employee must perform a job which requires a respirator having a face-to-face piece seal, he shall be cleanly shaven in the area of the face seal of the respirator. NOTE: Where jobs do not normally require respiratory protection, employees may grow facial hair. When required to wear a respirator utilizing a face-to-face piece seal, employees must be cleanly shaven in the area of the face seal of the respirator. 1@@ . . . . . . 10. Training . . . . . . d. Certification . . . . . . (2) Upon completing of employees training, the instructor shall issue a qualification card . . . to each trainee. This qualification is valid for 2 years. A new card shall be issued upon requalification. (3) An employee may lose his qualification at any time his supervisor or code 106 personnel determine any of the following: . . . . . . (c) conditions which prevent a good face seal, such conditions may be growth of beard, sideburns, skullcap that projects under the facepiece, or temple pieces on glasses (an employee who grows facial hair that interferes with the face seal of the respirator after being trained and fitted, is automatically disqualified until clean shaven again)(.) 4. The respiratory protection instruction was negotiated with the Union prior to its issuance. The discussion concerning facial hair was brief. The Union proposed that employees be permitted to grow facial hair that did not interfere with the seal. This proposal was immediately accepted by management and became part of paragraph 6.e.(b). The rest of the instruction was rewritten to conform to the proposition. The discussion of which jobs would normally or routinely require respirator protection was very brief. Management put forth the view that an employee in any trade who could reasonably be expected to use a respirator at any given time should be clean shaven in the area of the seal at all times, but that an employee who goes into a respirator area on a one-time only basis or was assigned to a job that did not require respirator use may grow facial hair. In management's view this understanding was set forth in paragraph 6.b.(1). At the Union's request, some examples of the kinds of jobs were respirators would be required on a routine basis were inserted in paragraph 5.e.(5). The list was not definitive. 5. For at least the last two or three years each new employee has been required to sign a preemployment agreement that he will shave if required to do so in the performance of his job. 6. Shop 07 is in the public works department. Supervision is provided by a general superintendent, three general foreman, and fifteen supervisors. The shop has a total of about 207 employees. It is composed of three service areas: electrical, mechanical, and ground structures. Employees work all over the Norfolk Naval Shipyard and some of its annexes on emergency, routine, and service calls. Employees never know what kind of conditions they will encounter in an emergency. The employees include sheet metal mechanics, electricians, pipefitters, cement finishers, welders, railroad workers, and insulators. There is no dispute that insulators are required to be clean shaven at all times. 7. In the past insulators have worn respirators almost all of the time while performing insulation duties. Approximately 30 employees of various trades who work on the hazardous waste response team have also worn respirators almost all of the time while dealing with hazardous wastes. The other employees, such as sheet metal mechanics, electricians, pipefitters, cement finishers, and welders, seldom have worn respirators in connection with their work assignments. The use of respirators by these latter employees has ranged from once a year to never in 10 years. 8. The policy of Shop 07 since at least 1978 is that all Shop 07 employees must be respirator qualified, and all employees who are respirator qualified and possess a respirator card must be clean shaven in the area of the facial seal at all times. Shop 07 management maintains that any employee may be required to wear a respirator on a moment's notice anywhere on the base, and the only way to ensure his ability to do so is for him to report wo work each day clean shaven. It does not matter to management how often the employee may be required to use a respirator to perform his work assignments. 9. There is no dispute that when an employee's medical qualification or training expires, he is permitted to grow whatever facial hair he wishes until he becomes qualified again. 10. An employee must undergo a medical examination and complete a four hour training course in order to become respirator qualified and to be issued a qualification card. All employees within Shop 07 are required to be clean shaven during respirator training. That part of the training dealing with NAVSHIPYDNOR Instruction 10470.6B is taught at one time. Employees are taught that the instruction must be read as a whole since only complying with individual parts could violate other paragraphs of the instruction. Employees are given the blanket instruction that respirator qualified employees must be clean shaven in the area of the face seal. 11. On February 15, 1980 Maintenance Foreman Charles G. Insley was charged with insubordination for refusing to remove a growth of beard and to obey orders to report to work clean shaven on 20 occasions in September and October 1980. It was alleged that the growth of beard prevented a good face seal for a respirator and was contrary to NAVSHIPYDNOR Instruction 10470.6. An agency demotion of Insley was upheld by a presiding official of the Merit Systems Protection Board on November 16, 1981. 12. The job description of cement workers was amended in April 1981 to provide that the "majority of duties of this position will be work assignments where the use of a respirator is required, therefore, the incumbents of this position will be required to wear a respirator and be respirator qualified." In 1982 the job descriptions of other workers in the shop were amended to state, "Should work be assigned which requires the use of a respirator, the incumbent of this position will be required to wear a respirator and be respirator qualified." 13. On June 28, 1984, Maintenance Superintendent W. R. Darden sent a memorandum to all foremen in Shop 07 reminding them that the NAVSHIPYDNOR Instruction prohibited the wearing of any facial hair that would prevent a good face seal with a respirator. He requested supervisors to pay close attention to employees to ensure compliance and to take corrective action if violations were found. 14. It is the responsibility of the individual supervisor to make sure employees have an up-to-date qualification card. 15. Prior to approximately February 1985 supervisors did not have an accurate computer print-out of who was or was not currently respirator qualified. In approximately February 1985 a new computer print-out of employee names and the dates of their current medical and training qualification was developed to help supervisors monitor employee qualifications. The print-out was also developed to shorten the time lag between the expiration date of the medical and training examinations, the reexaminations, and the reports of the results of such examinations. 16. In February 1984 supervisors advised employees with respirator cards that they had to be clean shaven at all times. This policy was also announced at a Shop 07 safety meeting on approximately March 5, 1984. 17. As of April 1985 approximately 85 employees or 43 percent of employees in Shop 07 were not respirator qualified or had an expired medical or training qualification date. (Res. Ex. 1). Approximately 12 employees were not respirator qualified as of the date of the hearing. 18. By letter dated February 26, 1985 the Union advised Respondent that its policy of requiring all Shop 07 employees holding respirator cards to be clean shaven at all times violated the Shipyard Instruction. The Union requested that Respondent cease and desist and adhere to the provisions of the Instruction. By memorandum dated March 1, 1985, Respondent replied that no violation or change had occurred. Respondent stated that the requirement that all personnel who are respirator qualified remain clean shaven in the area of the face seal while in a pay status was an ongoing practice. Discussion, Conclusions, and Recommendation The parties recognize that under Authority precedent a unilateral change in an established condition of employment regarding facial hair growth by respirator qualified employees would violate the Statute. See United States Department of Defense, Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 8 FLRA 740 (1982). It is well established that parties may establish terms and conditions of employment by practice, or other form of tacit or informal agreement, and that this, like other established terms and conditions of employment may not be altered by either party in the absence of agreement or impasse following good faith bargaining. Department of the Navy, Naval Underwater Systems Center, Newport Naval Base, 3 FLRA 413 (1980). Past practices generally include all conditions of employment not specifically covered in the parties' collective bargaining agreement which are followed by both parties, or followed by one party and not challenged by the other party over a period of time. Past practices may also include the actual practice being followed, regardless of the contractual agreement. In order to constitute the establishment by practice of a term and condition of employment the practice must be consistently exercised for an extended period of time with the agency's knowledge and express or implied consent. Internal Revenue Service and Brookhaven Service Center, 6 FLRA No. 127 (1981); Department of the Navy, supra. Essential factors in this regard are that the practice must be known to management, responsible management must knowingly acquiesce, and such practice must continue for some significant period. Department of Health, Education and Welfare, Region V, Chicago, Illonis, 4 FLRA No. 98 (1980); Department of Health and Human Services, Social Security Adminstration, 17 FLRA No. 25, 17 FLRA 126 (1985). The record does not establish Respondent's implied knowledge and consent to the alleged practice by mutual acceptance and action. There is, and apparently has never been, a meeting of the minds on what the policy on facial hair is under the negotiated Shipyard instruction. The General Counsel and the Charging Party essentially contend that the policy on facial hair is set forth in the note to paragraph 6.3. (1) of the negotiated Shipyard instruction. Paragraph 6.3. (1) of the instruction supports the Charging Party's view while paragraphs 5.e. (5), 6.b. 1(a), and 10.d. (2) and (3)(c) of the instruction support Respondent's view of the existing policy on facial hair. /1/ The record also shows that employees are instructed during respirator training that respirator qualified employees must be clean shaven in the area of the face seal. Also, in June 1984, the Shop 07 superintendent sent a memorandum to all foremen requesting supervisors to enforce the Shipyard Instruction which, in part, prohibits the wearing of any facial hair in the area of the face seal by respirator qualified employees. The record also does not establish that management knowingly acquiesced in such a practice. The record reflects that prior to April 1985 approximately 43 per cent of Shop 07 employees were not respirator qualified or had expired medical or training qualification dates. There is no dispute that such employees may wear facial hair in the area of the respirator seal. Therefore, while some, and at times, numerous, Shop 07 employees were wearing facial hair, there is no showing that such employees were known by management to be currently respirator qualified. The record reflects that it was Respondent's policy that respirator qualified employees be clean shaven in the area of the facial seal. It was the responsibility of individual supervisors to enforce the policy. However, the record reflects that prior to February 1985 supervisors did not have accurate records concerning who was or was not currently respirator qualified. Under such circumstances, and in view of the fact that employees who were not currently respirator qualified could wear facial hair, the laxity in enforcement does not amount to knowing acquiescence in a practice contrary to the policy. Cf. United States Department of the Treasury, Internal Revenue Service, Des Moines District, 13 FLRA 296, 308 (1983). It is concluded that a preponderance of the evidence does not establish a violation of section 7116(a)(1) and (5), as alleged. Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order. ORDER IT IS HEREBY ORDERED, that the complaint in Case No. 34-CA-50389 be, and it hereby is, DISMISSED. /s/ GARVIN LEE OLIVER Administrative Law Judges Dated: February 27, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) An underlying contractual dispute should be resolved under the grievance and arbitration procedures in the collective bargaining agreement governing the parties. See, Social Security Administration, 15 FLRA 614 (1984).