OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE
PORTSMOUTH FEDERAL EMPLOYEES
METAL TRADES COUNCIL
Case No. BN-CA-20811
Ms. Marcia-Ann Pogar
For the Respondent
Peter F. Dow, Esquire
For the General Counsel
Mr. Richard Draper
For the Charging Party
Before: WILLIAM B. DEVANEY
Administrative Law Judge
Statement of the Case
This proceeding, under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. § 7101, et seq.(1), and the Rules
and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether
Respondent violated §§ 16(a)(5) and (1) of the Statute by
unilaterally implementating a program to train and license all OSOT
members to operate, on base, trucks used by OSOT. Respondent
asserts, inter alia, that it had no duty to bargain because: a) the
training was merely an extension of their OSOT work assignment; b)
training had no actual or reasonably foreseeable adverse impact on
OSOT employees and was no more than a de
minimis change. For reasons fully set forth
hereinafter, I find that Respondent violated §§ 16(a)(5) and (1) of
the Statute as charged.
This case was initiated by a charge filed on April 15, 1992 (G.C. Exh. 1-A); the Complaint and Notice of Hearing issued on July 29, 1992, and set the hearing for October 23, 1992; however, on October 22, 1992, at the opening of the hearing in related cases, 1-CA-10493 and BN-CA-20137, the parties agreed that the hearing in Case No. BN-CA-20811 should immediately follow completion of the hearing in 1-CA-10493 and BN-CA-20137, and, accordingly, the hearing in Case No. BN-CA-20811 was duly held on October 22, 1992, in Portsmouth, New Hampshire, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument which each party waived. At the conclusion of the hearing, November 23, 1992, was fixed as the date for mailing post-hearing briefs which time was subsequently extended, initially on motion of Respondent, to which the other parties did not object, for good cause shown, to January 22, 1993, and thereafter on motion of General Counsel, to which the other parties did not object, for good cause shown, to February 10, 1993. Respondent and General Counsel each timely mailed a brief, received on, or before, February 12, 1993, which have been carefully considered. Upon the basis of the entire record,(2) including my observation of the witnesses and their demeanor, I make the following findings and conclusions:
Findings of Fact
1. The Portsmouth Federal Employees Metal Trades Council
(hereinafter, "Union") is the certified exclusive represent-ative
of a unit of employees appropriate for collective bargaining at the
Portsmouth Naval Shipyard, Portsmouth, New Hampshire (hereinafter,
2. For more than 12 years, Respondent has maintained a
team of employees known as the "On Scene Operations
Team"(3) (OSOT) which consists of
approximately 17 bargaining unit employees. The purpose of OSOT is
to respond to the recovery of oil and chemical spills caused by
Respondent, or by the Navy, and OSOT responds to spills which occur
both on and off the Shipyard's premises. Team membership is a
collateral duty and the team is called out only when there is an
actual spill or for training (Tr. 11-12, 47-48). With exceptions
that are not material to this case, OSOT originally was an
all-volunteer group. However, when the HAZMAT handler position
description was written in 1989, team membership was made a
requirement for holding that job (Res. Exh. 2, Tr. 42-45, 47-48,
50). Nevertheless, members of OSOT by no means are all HAZMAT
handlers as some are: fuel plant distributors, warehouse workers,
motor vehicle operators in the storage branch, boat operators, etc.
(Tr. 14, 45, 47-48).(4) OSOT members
all undergo intense training including: self-contained breathing
apparatus, boat training, first-aid (each must be CPR qualified),
decontamination, and a 40 hour course with EPA (Tr. 62).
3. It is undisputed that, prior to April, 1992, the only
person licensed or assigned to operate the OSOT's two-ton rack body
truck was the vehicle operator member of the team (Tr. 51). That
is, the other members of OSOT, including HAZMAT handlers, were not
trained, licensed or assigned to operate the truck.
4. In April, 1992, the Supply Department nominated all
members of the OSOT to begin a Truck Safety Course in order to
obtain a license to drive a two-ton rack truck onboard the base.
The OSOT truck is used by the Team to haul its equipment to the
site of spill recovery operations. It is also equipped with a
trailer hitch to haul a trailer and a 15 - 20' boat known as a
"skimmer" which is utilized during oil spill recovery work on
5. Mr. Thomas Guillory, Head of Materials Operations,
which includes OSOT, explained that Respondent had experienced
difficulty in meeting its spill responsibilities on the off-shift
(after 4:00 p.m.) and on weekends because the Team had only one
person who was licensed to operate OSOT's two-ton rack truck and,
on occasion, he would be unavailable. As a result, ". . . people
would come in and they could not deploy the truck to the spill site
because they didn't have a license. So we felt it necessary, it was
part of the oil spill equipment, that we should license everybody.
. . . So that if someone came in during the off-hours, they would
be able to get the truck and bring it to the site." (Tr. 51). As
noted, this license would not authorize OSOT members to operate the
truck off the premises of the Shipyard (Tr. 54). Mr. Guillory
explained that when OSOT goes "off-shipyard" Respondent is hired by
the Coast Guard and there is advance notice so that the
transportation office can bring the equipment (Tr. 54).
6. The acknowledged procedure for notifying the Union of proposed changes in working conditions, by advance written notice to the President (G.C. Exh. 8A-E; Tr. 21-22), was not followed with respect to the April, 1992, qualification of all Team members to drive the OSOT truck - Respondent did not tell the Union but just started the training (Tr. 59). When, on April 2, 1992, the Union discovered that Respondent had implemented its new program, the Union sent a written bargaining request to Respondent (G.C. Exh. 5; Tr. 28-29) and, in addition, Mr. Paul Feeney, Recording Secretary, also complained to Mr. Frank Harris, Employee Relations Specialist in Respondent's Industrial Relations Office, about Respondent's failure to notify the Union. Mr. Feeney stated that Mr. Harris told him he would have the program stopped immediately (Tr. 29-31); however, the program was not stopped and the Union filed the charge herein on April 15, 1992 (G.C. Exh. 1-A; Tr. 29-31). After the charge was filed, Respondent did stop the program (Tr. 65).
It is conceded that Respondent was free to require that all OSOT members be qualified to operate the two-ton rack truck for the transport of spill equipment to on-base spill sites. Nevertheless, it is plain that by requiring all OSOT members to have an Incidental Truck Operating License, Respondent changed the conditions of employment of OSOT members. This was a new qualification not previously required. Because Respondent changed conditions of employment, notwithstanding that it did so pursuant to a reserved management right, Respondent was, none the less, obligated to bargain concerning the impact and implementation of its decision, i.e., to bargain concerning procedures and appropriate arrangements, in accordance with § 6(b)(2) and (3) of the Statute, if the reasonably foreseeable effects of the change on unit employees' conditions of employment were more than de minimis. Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-408 (1986); Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, El Paso, Texas, 39 FLRA 1325, 1330-1332 (1991); United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 47 FLRA No. 15, 47 FLRA 225, 230-232 (1993); Veterans Administration Medical Center, Phoenix, Arizona, 47 FLRA No. 33, 47 FLRA 419, 422-423 (1993). Unlike Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 45 FLRA 574, 576 (1992), where the Authority found that Respondent's decision to discontinue recertification training was not more than de minimis because any concerns that the effect of the change was more than de minimis were speculative, rather than reasonably foresee-able, here, the concerns about the effect of the change were reasonably foreseeable. The change added a new qualification and, as OSOT membership is a requirement of the job descrip-tions of every member but the warehouseman, Mr. Gregory, possession of the required incidental truck driving license was an immediate concern of all OSOT members, both as to their status as continuing members of OSOT and, except Mr. Gregory, continued employment with Respondent. I am aware that Mr. Guillory testified that if an OSOT member decided not to continue OSOT duties, the employee would not lose employment with Respondent (Tr. 50). Nevertheless, until clarified and made certain, there was reasonably foreseeable concern about continued employment in the event of the failure to obtain the incidental truck driving license or, if obtained, its loss for reasons of health. The Union amply demonstrated justification for its concern by the facts that: a) there were OSOT members with physical limitations caused by heart and high blood pressure ailments (Tr. 28); and b) one OSOT member was not licensed to drive an automobile (Tr. 38). Of course, continued membership on OSOT was important to the Team members and, even if continued employment by Respondent were not a concern, as noted above, there was reasonably foreseeable concern about obtaining and/or retaining the required incidental truck driving license for OSOT membership.
The Union had a significant concern about safety; reasonably
had concern that persons licensed to drive the truck would not pose
a hazard to themselves or to others when driving the truck; and
reasonably had concern, as noted above, from the standpoint of
safety, of licensing persons to drive who had physical limitations.
The Union had reasonable concern about the impact of the program,
to license all members of OSOT to drive the truck, both on the
makeup of OSOT in the future as well as operations of OSOT
thereafter. For example, one member of OSOT had been an employee
classified as a truck driver. With all members of OSOT licensed
would the need for an employee so classified become redundant?;
with all members of OSOT licensed there would be a foreseeable
impact on drivers, such as Mr. Feeney, who were not members of
OSOT, since there would be no need to call for a replacement for
on- base deployment of the truck (cf., G.C.
Exh. 8-D)); and with all members of OSOT licensed who would be
responsible for deployment of the truck, and in what order?
Because there were reasonably foreseeable effects of this
change on bargaining unit employees' conditions of employment which
were more than de minimis, Respondent violated §§ 16(a) (5) and (1) of
the Statute by its unilateral implementation of the program and by
its failure and refusal to bargain con-cerning the impact and
implementation of the program. Nor does Respondent's suspension of
the program after the filing of the unfair labor practice charge
render Respondent's violation moot or cure the violation.
Department of the Air Force, 47th Flying Training
Wing, Laughlin Air Force Base, Texas, 2 FLRA 213, 214
(1979); Veterans Administration, Veterans
Administration Center, Laboratory Service, Temple, Texas, 2
FLRA 920, 932 (1980); Action, 26 FLRA 299,
301 (1987); Bureau of Engraving and Printing,
Washington, D.C., 44 FLRA 575, 580-581 (1992). However,
inasmuch as Respondent has suspended the program, it is unnecessary
to order, and General Counsel has not sought to order, a return to
the status quo
Accordingly, having found that Respondent violated §§
16(a)(5) and (1) of the Statute, it is recommended that the
Authority adopt the following:
Pursuant to § 18(a)(7) of the Statute, 5 U.S.C. §
7118(a)(7), and § 2423.29 of the Regulations, 5 C.F.R § 2423.29, it
is hereby ordered that the Portsmouth Naval Shipyard, Portsmouth,
New Hampshire, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain in good faith
with the Portsmouth Federal Employees Metal Trades Council
(hereinafter, "Union") concerning the impact and implemen-tation of
any decision to train and license On Scene Operations Team (OSOT)
members to operate, on base, trucks used to haul OSOT equipment to
spill sites prior to implementation of any such program.
(b) In any like or related manner interfering with,
restraining or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
Labor-Management Relations Statute:
(a) Provide the Union with reasonable advance notice
of any proposed change in working conditions of bargaining unit
employees by the training of OSOT members to operate trucks.
(b) Upon request of the Union, bargain in good faith concerning the impact and implementation of any decisiona to train and license OSOT members to operate, on base, trucks prior to implementation of any such program.
(c) Post at its facilities at the Portsmouth Naval
Shipyard, Portsmouth, New Hampshire, copies of the attached Notice
on forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by the Commanding
Officer of the Shipyard, 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
(d) Pursuant to section 2423.30 of the Authority's
Rules and Regulations, 5 C.F.R. § 2423.30, notify the Regional
Director of the Boston Region, Federal Labor Relations Authority,
99 Summer Street, Suite 1500, Boston, Massachusetts 02110-1200, in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: October 21, 1993
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to bargain in good faith with the
Portsmouth Federal Employees Metal Trades Council (hereinafter,
"Union"), the exclusive representative of our employees, concerning
the impact and implementation of any decision to train and license
On Scene Operations Team (OSOT) members to operate, on base, trucks
used to haul OSOT equipment to spill sites prior to implementation
of any such program.
WE WILL NOT refuse to provide an opportunity for the Union to
bargain, to its extent consonant with law and regulation, with
respect to the impact and/or implementation of any proposed change
in working conditions of bargaining unit employees by the training
of OSOT members to operate trucks.
WE WILL NOT in any like or related manner interfere with,
restrain or coerce our employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations
WE WILL give the Union reasonable advance notice of any proposed
change in working conditions of bargaining unit employees by the
training of OSOT members to operate trucks.
WE WILL, upon request of the Union, bargain in good faith
concerning the impact and implementation of any decision to train
and license OSOT members to operate, on base, trucks prior to
implementation of any such program.
Date: _________________________ By: ______________________________________
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by any
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, Boston Region, whose address is: 99 Summer Street, Suite
1500, Boston, Massachusetts 02110-1200, and whose telephone number
is: (617) 424-5730.
1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7116(a)(5) will be referred to, simply, as, "§ 16(a)(5)".
2. Motion of General Counsel to incorporate as part of the record the corrected exhibit file, prepared by General Counsel at the request of the Office of Administrative Law Judges, to which the other parties did not object, is granted and the corrected exhibit file is hereby incorporated as the Exhibit file in this case.
5. Mr. Paul Feeney, a motor vehicle operator, but not now, nor in the past, a member of OSOT (Tr. 10, 19), testified that hazardous materials are carried on the truck (Tr. 17, 26). Mr. Thomas Guillory, Head of Materials Operations, including OSOT, testified that, "There are no chemicals ever transported on that truck. Only oil spill equipment." (Tr. 51) [hazardous waste operators come and take the recovery drums to hazardous waste (Tr. 52)]; that, while it was conceivable that hazardous materials were carried on the truck that he didn't know about (Tr. 66), he stated that, "I wouldn't allow it." (Tr. 66). It is unnecessary to resolve this conflict since, obviously, Respondent has not undertaken the training of employees to do that which it prohibits, i.e., the carriage of hazardous materials on the OSOT truck.