[ v02 p817 ]
02:0817(104)CA
The decision of the Authority follows:
2 FLRA No. 104
NORFOLK NAVAL SHIPYARD,
PORTSMOUTH, VIRGINIA
Respondent
and
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
Complainant
Assistant Secretary
Case No. 22-08539(CA)
DECISION AND ORDER
ON JUNE 11, 1979, ADMINISTRATIVE LAW JUDGE LOUIS SCALZO ISSUED HIS
RECOMMENDED DECISION IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE
ISSUES RAISED IN THE INSTANT COMPLAINT HAD PREVIOUSLY BEEN RAISED IN
CERTAIN ARBITRATION PROCEEDINGS ARISING OUT OF A GRIEVANCE AND A
SUBMISSION FILED UNDER THE NEGOTIATED AGREEMENT BETWEEN THE RESPONDENT
AND THE COMPLAINANT. THUS, HE CONCLUDED THAT SEC. 19(D) OF THE ORDER
BARRED HIS CONSIDERATION OF THE COMPLAINT HEREIN, AND HE RECOMMENDED
THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY. THEREAFTER, THE
COMPLAINANT FILED TIMELY EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SEC. 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SEC. 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS (45
F.R. 3482, JANUARY 17, 1980). THE AUTHORITY CONTINUES TO BE RESPONSIBLE
FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SEC. 7135(B) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SEC. 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SEC. 7135(B) OF THE STATUTE, THE AUTHORITY HAS REVIEWED
THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND
FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY
AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, INCLUDING THE COMPLAINANT'S EXCEPTIONS, THE AUTHORITY HEREBY
ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATION. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 22-08539(CA) BE AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C. MARCH 7, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
WALTER B. BAGBY, ESQUIRE
LABOR RELATIONS ADVISOR
NAVAL CIVILIAN PERSONNEL COMMAND
DEPARTMENT OF THE NAVY
BUILDING A-67, NAVAL STATION
NORFOLK, VIRGINIA 23511
FOR THE RESPONDENT
ARNOLD H. ABRONS, ESQUIRE
LEONARD B. SACHS, ESQUIRE
SACHS AND ABRONS
SUITE 220
5 KOGER EXECUTIVE CENTER
NORFOLK, VIRGINIA 23502
FOR THE COMPLAINANT
BEFORE: LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION
STATEMENT OF THE CASE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED (HEREINAFTER
REFERRED TO AS THE ORDER), AND REGULATIONS OF THE DEPARTMENT OF LABOR,
OFFICE OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS, TITLE
29 C.F.R. PART 203, AS RECENTLY ADOPTED AND AMENDED BY REGULATIONS OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES
PANEL, TITLE 5, C.F.R.PART 2400 (FEDERAL REGISTER, VOL. 44, NO. 1,
TUESDAY, JANUARY 2, 1979). IT WAS INITIATED BY THE FILING OF A
PRE-COMPLAINT CHARGE ON AUGUST 23, 1977 BY THE TIDEWATER VIRGINIA
FEDERAL METAL TRADES COUNCIL, AFL-CIO, (HEREINAFTER REFERRED TO AS THE
COMPLAINANT OR COUNCIL) AGAINST THE NORFOLK NAVAL SHIPYARD, PORTSMOUTH,
VIRGINIA (HEREINAFTER REFERRED TO AS RESPONDENT OR SHIPYARD). THIS WAS
FOLLOWED BY THE FILING OF A COMPLAINT ON SEPTEMBER 27, 1977, CHARGING
VIOLATIONS OF SECTIONS 19(A)(1), (5) AND (6) OF THE ORDER.
ON MARCH 7, 1978 THE COUNCIL FILED A SECOND AMENDED COMPLAINT WHEREIN
IT WAS ALLEGED THAT RESPONDENT VIOLATED SECTIONS 19(A) (1) AND (6) OF
THE ORDER BY BARGAINING IN BAD FAITH DURING NEGOTIATIONS LEADING TO
EXECUTION OF A COLLECTIVE BARGAINING AGREEMENT ON APRIL 21, 1977; BY
FAILING TO NEGOTIATE WITH THE COMPLAINANT PRIOR TO INITIATING A
UNILATERAL CHANGE IN CRITERIA RELATING TO ENTITLEMENT TO "DIRTY PAY," AN
ENVIRONMENTAL PAY DIFFERENTIAL AUTHORIZED BY THE FEDERAL PERSONNEL
MANUAL AND ARTICLE 13 OF THE COLLECTIVE BARGAINING AGREEMENT; AND BY
FAILING TO NEGOTIATE WITH THE COMPLAINANT PRIOR TO INITIATING A
UNILATERAL CHANGE IN THE AUTHORITY OF SUPERVISORS TO APPROVE ENTITLEMENT
TO "DIRTY PAY."
A HEARING WAS HELD AT WHICH BOTH PARTIES WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, AND TO EXAMINE AND
CROSS-EXAMINE WITNESSES. THEREAFTER, THE PARTIES FILED POST-HEARING
BRIEFS. /2/ UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING OBSERVATION
OF THE WITNESSES AND THERE DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS AND RECOMMENDATION.
FINDINGS OF FACT
(A) PERTINENT CONTRACTUAL AND FEDERAL PERSONNEL MANUAL PROVISIONS
ARTICLE 13 OF THE AGREEMENT SETS OUT THE VARIOUS WORK CATEGORIES
WHEREIN ENVIRONMENTAL PAY MAY BE EARNED BY THOSE EMPLOYED BY THE
RESPONDENT. /3/ PART I REFLECTS CRITERIA GOVERNING THE PAYMENT OF AN
ENVIRONMENTAL DIFFERENTIAL FOR WORK INVOLVING "ACTUAL EXPOSURE." /4/
SECTION 2, PART I B OF ARTICLE 13 PROVIDES A FOUR PERCENT
DIFFERENTIAL TO BE PAID FOR "DIRTY WORK." /5/ GENERAL CRITERIA RELATING
TO THE PAYMENT OF THE "DIRTY WORK" DIFFERENTIAL ARE SET OUT IN PART I B
IN THE FOLLOWING TERMS:
PERFORMING WORK WHICH SUBJECTS THE EMPLOYEE TO SOIL OF BODY OR
CLOTHING:
(1) BEYOND THAT NORMALLY TO BE EXPECTED IN PERFORMING DUTIES OF THE
CLASSIFICATION; AND
(2) WHERE THE CONDITION IS NOT ADEQUATELY ALLEVIATED BY THE
MECHANICAL EQUIPMENT OR
PROTECTIVE DEVICES BEING USED, OR WHICH ARE READILY AVAILABLE, OR
WHEN SUCH DEVICES ARE NOT
FEASIBLE FOR USE DUE TO HEALTH CONSIDERATIONS (EXCESSIVE TEMPERATURE,
ASTHMATIC CONDITIONS,
ETC.); OR
(3) WHEN THE USE OF MECHANICAL EQUIPMENT, OR PROTECTIVE DEVICES, OR
PROTECTIVE CLOTHING
RESULTS IN AN UNUSUAL DEGREE OF DISCOMFORT. WHEN CONDITIONS ARE SUCH
THAT PROTECTIVE CLOTHING
DOES NOT PREVENT SOIL OF THE BODY AND PERSONAL CLOTHING, DIRTY PAY IS
CONSIDERED
APPROPRIATE. WHEN THE CONDITIONS SET FORTH ABOVE ARE SATISFIED THE
WORK LISTED BELOW SHALL BE
PAID
THE SENTENCE LAST QUOTED IS IMMEDIATELY FOLLOWED BY DEFINITIONS OF
THE TERMS "CONFINED SPACE," AND "CLOSE PROXIMITY," CONCEPTS UTILIZED IN
SOME OF THE FIFTY ENSUING CATEGORIES OR "AUTHORIZED WORK SITUATIONS,"
WHEREIN THE FOUR PERCENT "DIRTY WORK" PAY DIFFERENTIAL MAY BE EARNED.
/6/
THE GENERAL LANGUAGE UTILIZED TO DESCRIBE "DIRTY WORK" IN ARTICLE 13,
SECTION 2, PART I B(1), (2) AND (3) OF THE COLLECTIVE BARGAINING
AGREEMENT TRACKS IDENTICAL LANGUAGE IN A PRIOR COLLECTIVE BARGAINING
AGREEMENT. /7/ IN TURN, THE RECORD REFLECTS THAT THE OPERATIVE LANGUAGE
SET OUT ABOVE IS DERIVED FROM APPENDIX J OF SUPPLEMENT 532-1 OF THE
FEDERAL PERSONNEL MANUAL /8/
FOR THE PURPOSES OF FPM SUPPLEMENT 532-1, SUBCHAPTER S8-7 ENTITLED,
"ENVIRONMENTAL DIFFERENTIALS PAID FOR EXPOSURE TO VARIOUS DEGREES OF
HAZARDS, PHYSICAL HARDSHIPS, AND WORKING CONDITIONS OF AN UNUSUALLY
SEVERE NATURE" THE TERM "ENVIRONMENTAL DIFFERENTIAL" IS DEFINED AS:
(E)NVIRONMENTAL DIFFERENTIAL MEANS ADDITIONAL PAY AUTHORIZED AS
SPECIFIED IN APPENDIX J FOR
A CATEGORY OF SITUATIONS INVOLVING EXPOSURE TO A HAZARD, A PHYSICAL
HARDSHIP, OR WORKING
CONDITIONS OF AN UNUSUALLY SEVERE NATURE. (FPM SUPPLEMENT 532-1,
SUBCHAPTER S8-7B).
FPM SUPPLEMENT 532-1, SUBCHAPTER S8-7 PROVIDES THE FOLLOWING GUIDANCE
WITH RESPECT TO THE IMPORTANCE OF APPENDIX J SINCE APPENDIX J COMPRISES
A BASIS FOR THE PAYMENT OF ALL ENVIRONMENTAL PAY. /9/
(C) PAYMENT FOR ENVIRONMENTAL DIFFERENTIAL. AN ENVIRONMENTAL
DIFFERENTIAL IS PAID TO A
WAGE EMPLOYEE WHO IS EXPOSED TO A HAZARD, PHYSICAL HARDSHIP, OR
WORKING CONDITION OF AN
UNUSUALLY SEVERE NATURE LISTED UNDER THE CATEGORIES IN APPENDIX J OF
THIS
SUBCHAPTER. EXPOSURE TO A HAZARD, PHYSICAL HARDSHIP, OR WORKING
CONDITION OF AN UNUSUALLY
SEVERE NATURE LISTED IN APPENDIX J IS NOT TAKEN INTO CONSIDERATION IN
THE JOB GRADING PROCESS,
AND ADDITIONAL PAY FOR EXPOSURE TO THESE CONDITIONS IS PROVIDED ONLY
THROUGH THE ENVIRONMENTAL
DIFFERENTIALS AUTHORIZED BY THIS SECTION. . . .
. . . .
(D) AUTHORIZATION FOR PAY FOR ENVIRONMENTAL DIFFERENTIAL.
. . . .
SOME OF THE ENVIRONMENTAL DIFFERENTIALS LISTED IN APPENDIX J ARE
PAYABLE WHENEVER THE
CRITERIA IN THE CATEGORY DEFINITION ARE MET. OTHERS ARE PAYABLE ONLY
IF PROTECTIVE
FACILITIES, DEVICES, OR CLOTHING HAVE NOT PRACTICALLY ELIMINATED THE
HAZARD, PHYSICAL
HARDSHIP, OR WORKING CONDITION OF AN UNUSUALLY SEVERE NATURE.
CONSISTENT WITH SECTION
S8-7G(3) BELOW, DETERMINATIONS IN THIS REGARD MAY BE MADE THROUGH
NEGOTIATIONS AT THE LOCAL
LEVEL.
CATEGORIES FOR WHICH PAYMENT IS MADE WHEN THE CONDITIONS GIVEN IN THE
DEFINITION ARE MET
THOSE IN WHICH THERE IS NO REFERENCE TO PRACTICAL ELIMINATION OF THE
CONDITION THROUGH
PROTECTIVE MEASURES. CATEGORIES WHICH ARE SUBJECT TO PRACTICAL
ELIMINATION CONTAIN LANGUAGE
TO THAT EFFECT IN THE DEFINITION.
. . . .
(E) ESTABLISHMENT OF ENVIRONMENTAL DIFFERENTIAL . . . ENVIRONMENTAL
DIFFERENTIALS ARE
AUTHORIZED ONLY WHEN THE EXPOSURE IS UNDER THE CIRCUMSTANCES
DESCRIBED IN THE CATEGORY LISTED
IN APPENDIX J . . . WHEN EXAMPLES ARE LISTED UNDER THE CATEGORIES IN
APPENDIX J, THESE
EXAMPLES ARE ILLUSTRATIVE ONLY AND ARE NOT INTENDED TO BE EXCLUSIVE
OF OTHER EXPOSURES WHICH
MAY BE ENCOUNTERED UNDER THE CIRCUMSTANCES WHICH DESCRIBE THE LISTED
CATEGORY.
. . . .
(G) DETERMINING LOCAL SITUATIONS WHEN ENVIRONMENTAL DIFFERENTIALS ARE
PAYABLE. (1)
APPENDIX J DEFINES THE CATEGORIES OF EXPOSURE FOR WHICH THE HAZARD,
PHYSICAL HARDSHIPS, OR
WORKING CONDITIONS ARE OF SUCH AN UNUSUAL NATURE AS TO WARRANT
ENVIRONMENTAL DIFFERENTIALS,
AND GIVES EXAMPLES OF SITUATIONS WHICH ARE ILLUSTRATIVE OF THE NATURE
AND DEGREE OF THE
PARTICULAR HAZARD, PHYSICAL HARDSHIP OR WORKING CONDITION INVOLVED IN
PERFORMING THE
CATEGORY. THE EXAMPLES OF THE SITUATIONS ARE NOT ALL INCLUSIVE BUT
ARE INTENDED TO BE
ILLUSTRATIVE ONLY. (2) EACH INSTALLATION OR ACTIVITY MUST EVALUATE
ITS SITUATIONS AGAINST THE
GUIDELINES IN APPENDIX J TO DETERMINE WHETHER THE LOCAL SITUATION IS
COVERED BY ONE OR MORE OF
THE DEFINED CATEGORIES.
(A) WHEN THE LOCAL SITUATION IS DETERMINED TO BE COVERED BY ONE OR
MORE OF THE DEFINED
CATEGORIES (EVEN THOUGH NOT COVERED BY A SPECIFIC ILLUSTRATIVE
EXAMPLE), THE AUTHORIZED
ENVIRONMENTAL DIFFERENTIAL IS PAID FOR THE APPROPRIATE CATEGORY.
. . . .
(3) NOTHING IN THIS SECTION SHALL PRECLUDE NEGOTIATIONS THROUGH THE
COLLECTIVE BARGAINING
PROCESS FOR:
(A) DETERMING THE COVERAGE OF ADDITIONAL LOCAL SITUATIONS UNDER
APPROPRIATE CATEGORIES IN
APPENDIX J AND APPLICATION OF APPENDIX J CATEGORIES TO LOCAL WORK
SITUATIONS. FOR EXAMPLE,
LOCAL NEGOTIATIONS MAY BE USED TO DETERMINE WHETHER A LOCAL WORK
SITUATION IS COVERED UNDER AN
APPROVED CATEGORY, EVEN THOUGH THE WORK SITUATION MAY NOT BE
DESCRIBED UNDER A SPECIFIC
ILLUSTRATIVE EXAMPLE.
(B) POSITIONS OF THE PARTIES
THE COUNCIL TAKES THE POSITION THAT THE FEDERAL PERSONNEL MANUAL
AUTHORIZES COLLECTIVE BARGAINING CONCERNING SPECIFIC WORK SITUATIONS
WHEREIN "DIRTY PAY" MAY BE AUTHORIZED, AND THAT SINCE THE PARTIES, HAVE
AGREED TO SUCH SPECIFIC WORK SITUATIONS, FURTHER REFERENCE TO THE
GENERAL CRITERIA SET OUT IN THE CONTRACT AND IN APPENDIX J IS
UNWARRANTED. IT IS ARGUED THAT IN SUCH CASES THE SHIPYARD SHOULD NOT BE
PERMITTED TO AVOID THE PAYMENT OF "DIRTY PAY" BY SHOWING THAT THE WORK
INVOLVED IS EXCLUDED BY REASON OF FAILURE OF THE WORK TO MEET THE
GENERAL CRITERIA, AND THAT BARGAINING UNIT MEMBERS SHOULD BE ENTITLED TO
"DIRTY PAY" BY MERELY ESTABLISHING THAT THEY HAVE PERFORMED IN ANY OF
THE AUTHORIZED "DIRTY PAY" WORK SITUATIONS SET OUT IN THE COLLECTIVE
BARGAINING AGREEMENT.
IT IS ALLEGED THAT THE SHIPYARD FOLLOWED SUCH AN INTERPRETATION PRIOR
TO EXECUTION OF THE CURRENT COLLECTIVE BARGAINING AGREEMENT, THAT DURING
NEGOTIATIONS LEADING TO THE CURRENT AGREEMENT THE COUNCIL UNDERSTOOD
THAT THE PRACTICE WOULD CONTINUE, THAT THE COUNCIL ENTERED INTO THE
PRESENT AGREEMENT WITH THIS UNDERSTANDING, THAT THE SHIPYARD NEGOTIATED
IN BAD FAITH CONCERNING THIS ISSUE, AND THAT AFTER EXECUTION OF THE
CURRENT COLLECTIVE BARGAINING AGREEMENT, THE SHIPYARD CHANGED THE PAST
PRACTICE WITH RESPECT TO THE DETERMINIATION OF ENTITLEMENT TO "DIRTY
PAY" WITHOUT FIRST NEGOTIATING THIS ISSUE WITH THE COUNCIL.
THE SHIPYARD DENIES THESE ALLEGATIONS AND ARGUES THAT THE AMENDED
COMPLAINT IS BARRED BY SECTION 19(D) OF THE ORDER BECAUSE IT INVOLVED
ISSUES RAISED BY THE COUNCIL UNDER A NEGOTIATED GRIEVANCE PROCEDURE;
THAT THE PRACTICE OF COMPENSATING BARGAINING UNIT EMPLOYEES FOR "DIRTY
PAY" WITHOUT REGARD TO THE GENERAL CRITERIA IS VIOLATIVE OF APPENDIX J
OF FPM SUPPLEMENT 532-1, AND IS THEREFORE PROHIBITED BY VIRTUE OF
SECTION 12(A) OF THE ORDER; THAT THE AMENDED COMPLAINT SHOULD NOT BE
ENTERTAINED BECAUSE IT INVOLVES ESSENTIALLY DIFFERING INTERPRETATIONS OF
THE COLLECTIVE BARGAINING AGREEMENT AS DISTINGUISHED FROM ALLEGED
ACTIONS WHICH WOULD CONSTITUTE CLEAR UNILATERAL BREACHES OF THE
AGREEMENT; AND THAT SECTION 13(A) OF THE ORDER PROVIDES THAT THE
NEGOTIATED GRIEVANCE PROCEDURE SHALL BE THE EXCLUSIVE PROCEDURE
AVAILABLE TO THE PARTIES FOR RESOLVING SUCH DISPUTES; THAT DURING
NEGOTIATIONS THERE WAS FULL DISCLOSURE AND NEGOTIATION OF A SHIPYARD
PROPOSAL TO MODIFY THE PAST PRACTICE; AND THAT THE COUNCIL AGREED TO
THE SHIPYARD PROPOSAL RELATING TO STRICT APPLICATION OF THE GENERAL
CRITERIA.
THE SHIPYARD ALSO ARGUES THAT THE LAST SENTENCE OF ARTICLE 13,
SECTION 2, PART I B(3) IS CONTROLLING; THAT THE SENTENCE, "(W)HEN THE
CONDITIONS (GENERAL CRITERIA) SET FORTH ARE SATISFIED THE WORK
(AUTHORIZED WORK SITUATIONS) LISTED BELOW SHALL BE PAID," CLEARLY HAS
THE EFFECT OF BRINGING THE GENERAL CRITERIA INTO PLAY IN EVERY CLAIM FOR
"DIRTY PAY." IT IS ARGUED THAT ALTHOUGH SUCH PAY MAY BE APPROVED IF IT
FALLS WITHIN A SPECIFICALLY IDENTIFIED "DIRTY PAY" WORK SITUATION, SUCH
WORK SITUATION MUST OTHERWISE MEET THE PROVISIONS OF THE GENERAL
CRITERIA SET OUT IN SECTION 2, PART I B(1), (2) AND (3), AND IDENTICAL
LANGUAGE IN APPENDIX J OF FPM SUPPLEMENT 532-1.
THE SHIPYARD ASSERTS THAT ALTHOUGH SOME CATEGORIES OF ENVIRONMENTAL
PAY DESCRIBED IN THE COLLECTIVE BARGAINING AGREEMENT AND APPENDIX J ARE
PAYABLE WITHOUT REFERENCE TO GENERAL CRITERIA, "DIRTY WORK" IS NOT ONE
OF THEM. /10/ REFERENCE HERE IS MADE TO THE FACT THAT WHAT IS KNOWN AS
"DIRTY WORK" CHANGES WITH ALTERATIONS MADE IN THE WORK ENVIRONMENT AND
THAT THE COLLECTIVE BARGAINING AGREEMENT PROVIDES FOR SUCH CHANGES WITH
RESPECT TO THIS CATEGORY.
(C) PRACTICE PRIOR TO EXECUTION OF CURRENT COLLECTIVE BARGAINING
AGREEMENT
PRIOR TO THE INITIATION OF NEGOTIATIONS WHICH LED TO THE CURRENT
COLLECTIVE BARGAINING AGREEMENT, MANAGEMENT REVIEWED THE IMPLEMENTATION
OF ARTICLE 13 UNDER THE PRIOR COLLECTIVE BARGAINING AGREEMENT, AND MADE
A DETERMINATION THAT THE "DIRTY PAY" PROVISIONS OF THE AGREEMENT THEN IN
EFFECT WERE NOT BEING FOLLOWED. A QUESTIONNAIRE EXECUTED BY LINE
MANAGERS DISCLOSED "WIDESPREAD MISUSE." (TR. VOL. III, 69-70). IT WAS
ESTABLISHED THAT THE SHIPYARD WAS FREQUENTLY PAYING WITHOUT REGARD TO
THE GENERAL CRITERIA SET OUT IN THE AGREEMENT AND APPENDIX J. (TR. VOL.
IV, 19).
UNDER THE PRIOR AGREEMENT A FIRST LINE SUPERVISOR OR FOREMAN MADE THE
DETERMINATION AS TO WHETHER "DIRTY PAY" SHOULD BE AUTHORIZED. AS A
RESULT DETERMINATIONS WERE NOT UNIFORM. /11/ BOTH THE COUNCIL AND THE
SHIPYARD EXPRESSED THE DESIRE TO CLEAR UP AMBIGUOUS TERMS IN ARTICLE 13.
(TR. VOL. II, 259-260, 274-275). COUNSEL REPRESENTING THE CLAIMANT
ACKNOWLEDGED SUCH LACK OF UNIFORMITY IN HIS OPENING STATEMENT WHEREIN HE
STATED, "(T)HERE MAY HAVE BEEN AN ABUSE OF THIS SYSTEM IN THE SENSE THAT
SUPERVISORY PEOPLE THEN USED THIS AS A METHOD OF REWARDING PEOPLE OR
PAYING PEOPLE THAT SHOULD NOT HAVE COME UNDER THE (SIC) EITHER THE
CRITERIA SET UP IN THE GENERAL GUIDELINES OR THE AUTHORIZED WORK
SITUATION. . . . " (TR. VOL. I, 13).
THE UNEVEN NATURE OF THE PRACTICE UNDER THE PRIOR COLLECTIVE
BARGAINING AGREEMENT WAS DESCRIBED BY OFFICERS OF THE COUNCIL. IT WAS
BROUGHT OUT THAT IN SOME CASES WORK IN AN AUTHORIZED "DIRTY PAY" WORK
SITUATION DID NOT RESULT IN PAYMENT OF THE DIFFERENTIAL. (TR. VOL. I,
53-54). SOME MANAGERS INSISTED ON APPLYING THE GENERAL CRITERIA UNDER
THE PRIOR CONTRACT. (TR. VOL . IV, 59-60). GRIEVANCES WERE FILED
FREQUENTLY TO TEST "DIRTY PAY" DETERMINATIONS.
HIGHER LEVEL SHIPYARD MANAGERS RESPONSIBLE FOR THE ADMINISTRATION OF
THE "DIRTY PAY" PROVISIONS UNDER THE PRIOR COLLECTIVE BARGAINING
AGREEMENT DETERMINED THAT ACTION TO RESOLVE PERCEIVED CONTRACT
ADMINISTRATION PROBLEMS SHOULD BE DEFERRED UNTIL THE INITIATION OF
CONTRACT NEGOTIATIONS. THIS DEFERRAL WAS BASED UPON A RELUCTANCE TO
CHANGE A PRACTICE AFFECTING WORKING CONDITIONS WITHOUT FIRST RAISING THE
ISSUE DURING FORMAL CONTRACT NEGOTIATIONS SCHEDULED TO COMMENCE PRIOR TO
EXPIRATION OF THE COLLECTIVE BARGAINING AGREEMENT THEN IN EFFECT. (TR.
VOL. III, 70; VOL. IV, 11-12, 20-21).
(D) NEGOTIATIONS LEADING TO CURRENT COLLECTIVE BARGAINING AGREEMENT
NEGOTIATIONS LEADING TO THE CURRENT COLLECTIVE BARGAINING AGREEMENT
EXTENDED OVER AN EIGHTEEN-MONTH PERIOD AND INCLUDED LONG AND DRAWN OUT
BARGAINING OVER THE "DIRTY PAY" SEGMENT OF ARTICLE 13. THE UNION
ATTEMPTED TO EXPAND ARTICLE 13 BY INCREASING THE NUMBER OF AUTHORIZED
WORK SITUATIONS WHICH COULD BE USED AS A BASIS FOR "DIRTY PAY." THE
SHIPYARD SOUGHT A REDUCTION IN THE NUMBER OF LISTED AUTHORIZED WORK
SITUATIONS.
WITNESSES CALLED TO TESTIFY ON BEHALF OF THE COUNCIL ADMITTED THAT
THE GENERAL CRITERIA SET OUT IN SECTION 2, PART I B(1), (2) AND (3),
WERE DISCUSSED DURING NEGOTIATIONS, THAT THE SHIPYARD INSISTED THAT
"DIRTY PAY" WAS BEING AUTHORIZED IN VIOLATION OF THE CONTRACT AND THAT
THE PRACTICE DID NOT COMPLY WITH THE AGREEMENT. (TR. VOL. I, 71-73;
VOL. II, 29-30, 261-262, 264-266; DEP. 102). EVIDENCE CLEARLY
DISCLOSED THAT THE COUNCIL WISHED TO CHANGE THE CONTRACT BY DRAFTING
CONTRACTUAL PROVISIONS WHICH WOULD HAVE HAD THE EFFECT OF DELETING THE
GENERAL CRITERIA RELATING TO "DIRTY PAY." (TR. VOL. II, 53). HOWEVER,
WHEN THE COUNCIL SUBMITTED A PROPOSAL WITHOUT THE GENERAL CRITERIA EARLY
IN THE NEGOTIATIONS, THE SHIPYARD REJECTED IT AND INSISTED ON RETENTION
OF THE GENERAL CRITERIA AS BEING A PREREQUISITE TO THE AUTHORIZATION OF
"DIRTY PAY." (TR. VOL. III, 11-12, 31-32; VOL. IV, 42-43).
THERE WAS EXTENDED DISCUSSION OF VARIOUS WORK SITUATIONS IN THE LIGHT
OF WHETHER THEY DID IN FACT MEET THE GENERAL CRITERIA, AS WELL AS OTHER
GENERAL INTRODUCTORY TERMS PRECEDING THE LISTING OF "DIRTY PAY"
AUTHORIZED WORK SITUATIONS. THROUGHOUT THE NEGOTIATIONS THE SHIPYARD
INSISTED THAT THE GENERAL CRITERIA SHOULD BE APPLICABLE BEFORE ANY
LISTED AUTHORIZED WORK SITUATIONS WERE CLASSIFIED AS "DIRTY WORK."
AT NUMEROUS POINTS IN THE RECORD IT WAS MADE CLEAR THAT THE LAST
SENTENCE OF ARTICLE 13, SECTION 2, PART I B(3) WAS INCLUDED BY THE
PARTIES IN THE CURRENT COLLECTIVE BARGAINING AGREEMENT SPECIFICALLY TO
SIGNIFY THIS POSITION. FROM THE INCEPTION OF NEGOTIATIONS THE
SHIPYARD'S STANCE ON THIS ISSUE DID NOT CHANGE.
IN THE FINAL STAGES OF NEGOTIATIONS, WHEN IMPASSE SEEMED IMMINENT,
THE PARTIES AGREED TO WITHDRAW THEIR RESPECTIVE DEMANDS AND RETAIN, IN
LARGE MEASURE, THE LANGUAGE OF THE PRIOR CONTRACT, INCLUDING THE GENERAL
CRITERIA RELATING TO "DIRTY PAY." /12/ DURING A FINAL NEGOTIATING
SESSION LEADING TO AGREEMENT, REPRESENTATIVES OF THE SHIPYARD
SPECIFICALLY REITERATED THAT THE AGREEMENT WAS BEING MADE WITH THE
UNDERSTANDING THAT THE GENERAL CRITERIA HAD TO BE MET BEFORE A LISTED
AUTHORIZED WORK SITUATION QUALIFIED FOR "DIRTY PAY." (TR. VOL. III,
34-36; DEP. 34-35).
THE COUNCIL AGREED TO THE INCLUSION OF THE GENERAL CRITERIA IN THE
CONTRACT ON THE BASIS OUTLINED. (TR. VOL. III, 93, VOL. IV, 69-71;
DEP. 54-55). AUTHORIZED WORK SITUATIONS WERE INCLUDED WITH THE
UNDERSTANDING THAT IF THEY DID NOT IN FACT MEET THE GENERAL CRITERIA AT
THE WORK SITE, "DIRTY PAY" WOULD NOT BE AUTHORIZED. (TR. VOL. III, 78).
THE RECORD DISCLOSED SPECIFIC INDICATION THAT THERE WAS ACCEPTANCE BY
THE PARTIES THAT CERTAIN AUTHORIZED WORK SITUATIONS LISTED IN THE "DIRTY
PAY" PROVISIONS OF ARTICLE 13, WOULD NOT CONSTITUTE A BASIS FOR
COMPENSATION WITHOUT A SHOWING OF COMPLIANCE WITH THE GENERAL CRITERIA.
(DEP 91-92). IN FACT, RICHARD F. LAKE, A FORMER PRESIDENT OF THE
COUNCIL AND A KEY COUNCIL NEGOTIATOR TESTIFIED THAT IT WAS HIS
UNDERSTANDING THAT THE GENERAL CRITERIA HAD TO BE MET. (TR. VOL. I, 87;
89-91). BERNARD W. WHITE, THE CURRENT UNION PRESIDENT, WHO WAS SERVING
AS VICE-PRESIDENT OF THE UNION AT THE TIME HE PARTICIPATED IN THE
CONTRACT NEGOTIATIONS TESTIFIED THAT IT WAS HIS UNDERSTANDING THAT THE
GENERAL CRITERIA HAD TO BE MET BEFORE ANY AUTHORIZED WORK SITUATION
LISTED UNDER THE "DIRTY PAY" SEGMENT OF THE CONTRACT COULD BE
AUTHORIZED. (TR. VOL. II, 41-44).
TESTIMONY SUPPLIED BY COUNCIL WITNESSES TO THE EFFECT THAT "DIRTY
PAY" WOULD BE AUTHORIZED BY THE SHIPYARD WITHOUT REFERENCE TO THE
GENERAL CRITERIA WAS EFFECTIVELY CONTRADICTED AND IS NOT CONSIDERED
CREDIBLE IN THE LIGHT OF CONSIDERATION OF ALL EVIDENCE RELATING TO THS
ELEMENT.
(E) PRACTICE FOLLOWING EXECUTION OF CURRENT COLLECTIVE BARGAINING
AGREEMENT
FOLLOWING EXECUTION OF THE CURRENT COLLECTIVE BARGAINING AGREEMENT
THE NUMBER OF GRIEVANCES RELATING TO THE INTERPRETATION OF THE "DIRTY
PAY" PROVISIONS OF ARTICLE 13 BEGAN TO INCREASE. ALTHOUGH "DIRTY PAY"
CONTINUED TO BE AUTHORIZED, THIS FORM OF ENVIRONMENTAL PAY WAS MORE
FREQUENTLY DENIED ON THE GROUND THAT WORK ACTIVITY DID NOT MEET THE
GENERAL CRITERIA.
IT WAS ESTABLISHED THAT SHIPYARD MANAGERS WERE PROVIDED WITH
ORIENTATION SESSIONS AFTER THE CURRENT AGREEMENT BECAME EFFECTIVE, AND
THAT AT THESE SESSIONS MANAGERS WERE INSTRUCTED TO AUTHORIZE "DIRTY PAY"
ONLY IF IT COULD BE SHOWN THAT THE GENERAL CRITERIA WERE BEING MET. IT
WAS EXPLAINED THAT THE CONTRACT HAD NOT BEEN ADMINISTERED PROPERLY IN
THE PAST AND THAT THE GENERAL CRITERIA WOULD BE ADHERED TO IN THE
FUTURE. (TR. VOL. IV, 16). THE PRACTICE OF AUTHORIZING "DIRTY PAY" AT
THE FIRST LEVEL OF SUPERVISION ALSO CHANGED. THE DECISIONS OF FIRST
LEVEL SUPERVISORS WERE MADE REVIEWABLE BY A GENERAL FOREMAN. (TR. VOL.
II, 60-61). /13/ THE PRACTICE WITH RESPECT TO FIRST LINE SUPERVISORY
APPROVAL OF "DIRTY PAY" DID NOT, AS ALLEGED, CHANGE IN A WAY WHICH
PRECLUDED FIRST LINE SUPERVISORS FROM AUTHORIZING "DIRTY PAY," IN THE
FIRST INSTANCE. THE CHANGE IMPLEMENTED BY THE SHIPYARD, AND DISCUSSED
AT LENGTH WITH THE COUNCIL DURING NEGOTIATIONS, SUBJECTED THE DECISIONS
OF FIRST LINE SUPERVISORS TO REVIEW. (TR. VOL. IV, 17, 51-52).
(F) GRIEVANCES FILED UNDER CURRENT COLLECTIVE BARGAINING AGREEMENT
AS NOTED A NUMBER OF GRIEVANCES WERE FILED UNDER THE CURRENT
COLLECTIVE BARGAINING AGREEMENT TO TEST THE SHIPYARD'S INTERPRETATION OF
THE "DIRTY PAY" PROVISIONS.
A GRIEVANCE WAS FILED BY THE COUNCIL'S CHIEF STEWARD FOR THE
SHIPYARD'S SHOP 71 ON BEHALF OF A GROUP OF SANDBLASTERS. AT LEAST FIFTY
EMPLOYEES WERE REPRESENTED IN THIS CONSOLIDATED GRIEVANCE. THE
GRIEVANCE WAS DENIED AT THE SEVERAL STEPS OF THE GRIEVANCE PROCEDURE.
THE COUNCIL THEN REFERRED THE GRIEVANCE TO ARBITRATION UNDER THE
PROVISIONS OF ARTICLE 34 OF THE COLLECTIVE BARGAINING AGREEMENT. UNDER
THE PROVISIONS OF THIS ARTICLE ONLY THE EMPLOYER OR THE COUNCIL MAY TAKE
A MATTER TO BINDING ARBITRATION.
THE COUNCIL ARGUED THAT THE PERFORMANCE OF SANDBLASTING WORK IN DRY
DOCKS BY SHOP 71 EMPLOYEES FELL WITHIN AUTHORIZED WORK SITUATION 2(A) OF
ARTICLE 13, SECTION 2, PART I B, AND THAT SUCH A SHOWING WAS SUFFICIENT
TO QUALIFY FOR "DIRTY PAY." THE SHIPYARD TOOK THE POSITION THAT THE
GENERAL CRITERIA HAD TO BE MET IN THE FIRST INSTANCE. A KEY ISSUE
RELATED TO THE INTENT OF THE PARTIES IN ADOPTING THE "DIRTY PAY"
PROVISIONS OF ARTICLE 13, AND THE IMPACT OF THE PARTIES' USE OF APPENDIX
J LANGUAGE TO DEFINE "DIRTY WORK" IN THE COLLECTIVE BARGAINING
AGREEMENT. IN AN APRIL 4, 1978, AWARD THE ARBITRATOR HELD:
TO SUMMARIZE, THE CONCLUSIONS OF THE ARBITRATOR ARE: (1) THAT THE
LISTING OF SHOP 71
EMPLOYEES PERFORMING SANDBLASTING UNDER AUTHORIZED WORK SITUATIONS IN
THE NEGOTIATED AGREEMENT
IS NOT, OF ITSELF, DECISIVE OF THE QUESTION WHETHER PAYMENT OF THE
DIFFERENTIAL SHOULD BE
MADE; PAYMENT IN SUCH SITUATIONS DEPENDS UPON SATISFYING THE
CRITERIA OF THE CIVIL SERVICE
COMMISSION'S DEFINITION WHICH ARE INCORPORATED VERBATIM IN THE FIRST
PARAGRAPHS OF ARTICLE 13B
OF THE NEGOTIATED AGREEMENT. . . . (RESPONDENT'S EXHIBIT 2 AT
21-22).
A CONTRARY RESULT WAS REALIZED AS A RESULT OF AN ARBITRATION AWARD
DATED JUNE 11, 1978 RELATING TO A SINGLE GRIEVANCE FILED BY A WELDER
RELYING UPON AUTHORIZED WORK SITUATION 44 UNDER ARTICLE 13, SECTION 2,
PART I B OF THE AGREEMENT. AGAIN, THE ISSUE WAS TAKEN TO ARBITRATION BY
THE COUNCIL AFTER DENIAL OF THE GRIEVANCE AT THE FOURTH STEP OF THE
GRIEVANCE PROCEDURE. THE SHIPYARD DENIAL WAS BASED ON THE APPLICATION
OF THE GENERAL CRITERIA SET OUT IN ARTICLE 13, SECTION 2, PART I B(1),
(2) AND (3). DURING LITIGATION RELATING TO THIS GRIEVANCE THE ISSUE OF
UNILATERAL CHANGE WAS SUCCESSFULLY RAISED BY THE COUNCIL. THE
ARBITRATOR HELD THAT IN VIEW OF THE FACT THAT THE SHIPYARD HAD
INTERPRETED IDENTICAL LANGUAGE IN THE PRIOR CONTRACT AS REQUIRING
PAYMENT IN THIS SPECIFIC WORK SITUATION, THE SHIPYARD COULD NOT DENY
"DIRTY PAY" IN THE ABSENCE OF A SHOWING THAT THE SHIPYARD HAD, DURING
NEGOTIATIONS ADVISED THE COUNCIL THAT THIS SPECIFIC WORK ACTIVITY WOULD
NO LONGER COMPRISE A BASIS FOR THE "DIRTY PAY" DIFFERENTIAL.
(COMPLAINANT EXHIBIT 5).
IN ORDER TO RESOLVE THE CONTRACTUAL DISPUTE AS IT RELATED TO THE
BOILERMAKER CLASSIFICATION, THE PARTIES HEREIN ARRANGED TO SEEK A
CONTRACTUAL INTERPRETATION THROUGH THE ARBITRATION CLAUSE OF THE
CONTRACT. (RESPONDENT EXHIBIT 3). /14/ THIS DID NOT INVOLVE AN ACTUAL
CLAIM FOR "DIRTY PAY," BUT WAS INSTEAD, AN ISSUE SUBMITTED TO
ARBITRATION BY THE PARTIES UNDER THE NEGOTIATED GRIEVANCE PROCEDURE TO
RESOLVE A DISPUTE OVER WHEN AND UNDER WHAT CIRCUMSTANCES THE "DIRTY
WORK" DIFFERENTIAL WOULD BE PAYABLE TO BOILERMAKERS. IN A DECISION
DATED OCTOBER 23, 1978, THE ARBITRATOR STATED THE POSITION OF THE UNION
IN THE FOLLOWING TERMS:
THE BASIC CONTENTION OF THE UNION APPEARS TO BE THAT AFTER
CONSUMMATION OF THE CURRENT
(1977) AGREEMENT, THE MANAGEMENT OF THE SHIPYARD DECIDED UNILATERALLY
TO DENY ENVIRONMENTAL
PAY TO BOILERMAKERS WHO, UNDER THE 1968 SHOP AGREEMENT AND THE 1973
COLLECTIVELY BARGAINED
AGREEMENT, HAD BEEN RECEIVING THAT PAY AND THAT SUCH ACTION ON THE
PART OF THE MANAGEMENT
CONSTITUTES A VIOLATION OF ESTABLISHED PAST PRACTICE AND THE
PROVISIONS OF THE CURRENT
AGREEMENT.
THE SHIPYARD URGED AS A DEFENSE THAT THE GENERAL CRITERIA SET OUT IN
ARTICLE 13, SECTION 2, PART I B(1), (2) AND (3) MUST BE MET BEFORE ANY
AUTHORIZED WORK SITUATIONS LISTED UNDER THE "DIRTY WORK" PROVISIONS OF
THE CONTRACT COULD BE DEEMED A BASIS FOR DIRTY PAY. THE ARBITRATOR
AGREED WITH THE SHIPYARD POSITION. IT WAS HELD THAT THE COUNCIL WAS
BOUND BY APPENDIX J UNDER THE PROVISIONS OF SECTION 12(A) OF THE ORDER;
THAT THE AGREEMENT ITSELF INCLUDES THE EXACT TERMINOLOGY OF APPENDIX J;
THAT DURING NEGOTIATIONS LEADING TO ARTICLE 13, THE SHIPYARD MADE IT
CLEAR THAT IT BELIEVED APPENDIX J WAS APPLICABLE AND FURTHER THAT THE
SHIPYARD INTENDED TO ADMINISTER THE CONTRACT IN THE FUTURE BY STRICT
COMPLIANCE WITH, AND APPLICATION OF, THE GENERAL CRITERIA; THAT THE
CRITERIA SUBSEQUENTLY WERE INCORPORATED INTO THE CONTRACT WITHOUT ANY
APPARENT PROTEST BY THE COUNCIL; AND THAT IF, AS THE COUNCIL ASSERTS,
THE SHIPYARD MADE A UNILATERAL CHANGE IN THE METHOD OF PAYMENT OF
COMPENSATION FOR "DIRTY WORK" AND THUS VIOLATED AN ESTABLISHED PAST
PRACTICE AND THE TERMS OF THE CURRENT AGREEMENT, THEN THAT ISSUE MORE
APPROPRIATELY SHOULD HAVE BEEN RAISED DURING THE NEGOTIATIONS OF THE
CURRENT AGREEMENT RATHER THAN THROUGH ARBITRATION.
CONCLUSIONS OF LAW
A THRESHOLD ISSUE POSED IN THIS CASE RELATES TO THE RESPONDENT'S
CONTENTION THAT THE AMENDED COMPLAINT IS BARRED BY SECTION 19(D) OF THE
ORDER. SECTION 19(D) PROVIDES IN PART:
ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY, IN THE
DISCRETION OF THE
AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR THE COMPLAINT
PROCEDURE UNDER THIS SECTION,
BUT NOT UNDER BOTH PROCEDURES.
THE LANGUAGE OF SECTION 19(D) WAS BASED ON THE RECOMMENDATION OF THE
FEDERAL LABOR RELATIONS COUNCIL IN ITS 1971 REPORT AND RECOMMENDATIONS
TO THE PRESIDENT ON THE AMENDMENT OF EXECUTIVE ORDER 11491, WHEREIN IT
WAS STATED:
WE PROPOSE . . . THAT WHEN AN ISSUE MAY BE PROCESSED UNDER EITHER A
GRIEVANCE PROCEDURE OR
THE UNFAIR LABOR PRACTICE PROCEDURE, IT BE MADE OPTIONAL WITH THE
AGGRIEVED PARTY WHETHER TO
SEEK REDRESS UNDER THE GRIEVANCE PROCEDURE OR UNDER THE UNFAIR LABOR
PRACTICE PROCEDURE. THE
SELECTION OF ONE PROCEDURE WOULD BE BINDING; THE AGGRIEVED PARTY
WOULD NOT BE PERMITTED,
SIMULTANEOUSLY OR SEQUENTIALLY, TO PURSUE THE ISSUE UNDER THE OTHER
PROCEDURE. LABOR
MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), AT 57-58.
CASES INTERPRETING SECTION 19(D) CLEARLY INDICATE THAT ISSUES POSED
IN A GRIEVANCE PROCEEDING RELIED UPON AS A BASIS FOR INVOKING SECTION
19(D), NEED NOT BE IDENTICAL TO THOSE RAISED IN THE UNFAIR LABOR
PRACTICE PROCEEDING. IN AGREEMENT WITH AN ACTING REGIONAL
ADMINISTRATOR'S DISMISSAL OF A COMPLAINT, THE ASSISTANT SECRETARY
ADOPTED THE FOLLOWING LANGUAGE IN U.S. GEOLOGICAL SURVEY, GULF OF
MEXICO, OCS OPERATIONS AND LOCAL 3457, AFGE, CASE NO. 64-4091(CA),
(DECEMBER 22, 1978):
. . . SECTION 19(D) CLEARLY APPLIES TO WHETHER BASIC ISSUES ARE
RAISED, NOT WHETHER
SPECIFIC THEORIES ARE RAISED AND THE ISSUES IN (THE) GRIEVANCE AND
THE INSTANT COMPLAINT ARE
IDENTICAL. . . . IF YOUR ARGUMENT THAT THE ISSUE IN THE GRIEVANCE
WAS THAT RESPONDENT
VIOLATED 9-4 OF THE AGREEMENT WHEREAS THE ISSUE IN THE INSTANT
COMPLAINT WAS THAT RESPONDENT
VIOLATED ARTICLE 2-1 OF THE AGREEMENT BY UNILATERALLY ESTABLISHING A
POLICY AFFECTING WORKING
CONDITIONS WITHOUT AFFORDING THE UNION AN OPPORTUNITY TO NEGOTIATE
WERE TO BE ACCEPTED,
VIRTUALLY ANY GRIEVANCE COULD BE RAISED UNDER THE NEGOTIATED
PROCEDURE TO DETERMINE WHETHER OR
NOT THE CONTRACT HAD BEEN VIOLATED, AND UNDER THE COMPLAINT PROCEDURE
TO DETERMINE WHETHER OR
NOT THE ORDER HAD BEEN VIOLATED. IN MY VIEW, SECTION 19(D) PREVENTS
THIS DOUBLE "BITE OF THE
APPLE." MOREOVER, IT IS NOTED THAT THE ISSUE OF UNILATERALLY
ESTABLISHING A POLICY WITHOUT
NEGOTIATING WITH THE UNION COULD HAVE BEEN RAISED DURING THE
GRIEVANCE PROCEDURE. YOUR
FAILURE TO DO SO AND/OR TO PURSUE YOUR GRIEVANCE TO ARBITRATION DOES
NOT PRECLUDE 19(D) FROM
BARRING THE INSTANT COMPLAINT. /15/
THE RECORD DISCLOSES THAT IN THIS CASE BASIC ISSUES RAISED IN THE
AMENDED COMPLAINT WERE RAISED IN GRIEVANCE PROCEEDINGS INITIATED IN THE
FIRST INSTANCE BY THE COUNCIL ON BEHALF OF SANDBLASTERS AND BOILERMAKERS
IN THE BARGAINING UNIT. (RESPONDENT EXHIBITS 2 AND 3). /16/
THE BASIC ISSUES RAISED IN THE AMENDED COMPLAINT RELATED TO WHETHER
THE SHIPYARD BARGAINED IN BAD FAITH DURING NEGOTIATIONS LEADING TO
EXECUTION OF THE CURRENT COLLECTIVE BARGAINING AGREEMENT; WHETHER THE
SHIPYARD FAILED TO NEGOTIATE WITH THE COMPLAINANT PRIOR TO INITIATING A
UNILATERAL CHANGE IN CRITERIA RELATING TO ENTITLEMENT TO "DIRTY PAY,"
AND WHETHER THE SHIPYARD FAILED TO NEGOTIATE WITH THE COMPLAINANT PRIOR
TO INITIATING A CHANGE IN THE AUTHORITY OF SUPERVISORS TO APPROVE
ENTITLEMENT TO "DIRTY PAY."
THE GRAVAMEN OF THE AMENDED COMPLAINT AND THE GRIEVANCE FILED BY ON
BEHALF OF BOILERMAKERS COVERED BY THE AGREEMENT, RELATED TO THE BASIC
ISSUES OF WHETHER OR NOT ENTITLEMENT TO "DIRTY PAY" SHOULD BE
CONDITIONED UPON A SHOWING THAT "AUTHORIZED WORK SITUATIONS" LISTED
UNDER THE "DIRTY WORK" PROVISIONS OF THE CONTRACT MUST ALSO MEET THE
GENERAL CRITERIA IN THE COLLECTIVE BARGAINING AGREEMENT; WHETHER THE
SHIPYARD WAS JUSTIFIED IN CHANGING THE PRACTICE EMPLOYED IN SOME CASES,
OF AUTHORIZING ENTITLEMENT TO "DIRTY PAY" WITHOUT FIRST REQUIRING A
SHOWING OF ADHERENCE TO THE GENERAL CRITERIA; AND WHETHER THE SHIPYARD
MADE A UNILATERAL CHANGE IN THE METHOD OF PAYMENT OF COMPENSATION FOR
"DIRTY WORK." /17/ BOTH THE BOILERMAKER GRIEVANCE AND THE AMENDED
COMPLAINT POSE THE ISSUE OF WHETHER THE PARTIES FULLY EXPLORED QUESTIONS
CONCERNING THE APPLICABILITY OF THE GENERAL CRITERIA DURING CONTRACT
NEGOTIATIONS; AND MOST IMPORTANTLY, THE ISSUE OF WHETHER THE SHIPYARD'S
INTENTION TO ADMINISTER THE CONTRACT IN STRICT COMPLIANCE WITH THE
CRITERIA WAS NEGOTIATED WITH THE COUNCIL. THESE BASIC ISSUES WERE ALSO
RAISED, ALTHOUGH IN A LESS DISTINCT MANNER, IN THE CONSOLIDATED
GRIEVANCE FILED ON BEHALF OF ALL SANDBLASTERS. (RESPONDENT'S EXHIBIT
2).
SINCE THE BASIC ISSUES RAISED IN THE BOILERMAKER AND SANDBLASTER
GRIEVANCES WERE ESSENTIALLY THE SAME AS THOSE RAISED IN THIS FORUM,
SECTION 19(D) PRECLUDES FURTHER PROCESSING OF THE COMPLAINT. DEPARTMENT
OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, A/SLMR NO. 1073
(JULY 5, 1978).
IT MUST ALSO BE NOTED THAT SUBSTANTIVE REASONS EXIST FOR THE
DISMISSAL OF THE COMPLAINT IN THIS CASE. UNDER THE RULES AND
REGULATIONS OF THE ASSISTANT SECRETARY (29 C.F.R. 203.15), "(A)
COMPLAINANT IN ASSERTING A VIOLATION OF THE ORDER SHALL HAVE THE BURDEN
OF PROVING THE ALLEGATIONS OF THE COMPLAINT BY A PREPONDERANCE OF THE
EVIDENCE." THIS BURDEN HAS NOT BEEN MET.
THE COUNCIL'S VIEW OF THE NEGOTIATING PROCESS AMOUNTS TO AN ASSERTION
THAT THE GENERAL CRITERIA (ARTICLE 13, SECTION 2, PART I B(1), (2) AND
(3)), WERE INCLUDED IN THE CURRENT COLLECTIVE BARGAINING AGREEMENT BY
THE PARTIES WITH A VERBAL UNDERSTANDING THAT THESE PROVISIONS WOULD HAVE
NO LEGAL EFFECT WHATSOEVER. THERE IS NO BASIS IN THE RECORD FOR
CONCLUDING THAT THE PARTIES MADE SUCH A VERBAL AGREEMENT. THE RECORD
DISCLOSES THAT THE COUNCIL WAS, DURING NEGOTIATIONS, REPEATEDLY APPRISED
AND PUT ON NOTICE CONCERNING THE INTENDED CHANGES IN PRACTICE ALLEGED IN
THE AMENDED COMPLAINT, AND THE REASONS FOR THE CHANGES. THE EVIDENCE
INDICATES THAT THERE WAS A FULL DISCLOSURE BY THE SHIPYARD THAT THE
CRITERIA WOULD BE APPLIED ACROSS THE BOARD IN WORK SITUATIONS INVOLVING
"DIRTY PAY." THE COUNCIL AGREED TO THE APPLICABILITY OF THE CRITERIA IN
THIS SPECIFIC CONTEXT, ONLY AFTER BEING PROVIDED WITH UNLIMITED
OPPORTUNITY TO NEGOTIATE FURTHER OR PURSUE THE ISSUE TO IMPASSE.
IN VIEW OF THE APPLICABILITY OF SECTION 19(D) OF THE ORDER, AND IN
VIEW OF THE SUBSTANTIVE REASONS UNDERLYING DISMISSAL OF THE AMENDED
COMPLAINT, IT IS UNNECESSARY TO DETERMINE WHETHER THE PROVISIONS OF
SECTION 12(A) OR 13(A) OF THE ORDER WOULD INSURE TO THE BENEFIT OF THE
SHIPYARD.
RECOMMENDATION
HAVING FOUND THAT THE AMENDED COMPLAINT IS BARRED BY SECTION 19(D) OF
THE ORDER, AND FURTHER THAT RESPONDENT HAS NOT ENGAGED IN CONDUCT
PROHIBITED BY SECTIONS 19(A)(1) AND (6) OF THE ORDER, IT IS RECOMMENDED
THAT THE AMENDED COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.
LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DATED: JUNE 11, 1979
WASHINGTON, D.C.
/1/ IN CONFORMITY WITH SEC. 902(B) OF THE CIVIL SERVICE REFORM ACT OF
1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS OF
E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ FOLLOWING THE HEARING THE DEPOSITIONS OF THREE WITNESSES WERE
TAKEN. THESE WERE FILED AS PART OF THE RECORD ON APRIL 9, 1979. THE
DEPOSITIONS ARE ADMITTED AND OBJECTIONS TO TESTIMONY OVERRULED; HOWEVER
OBJECTIONS RAISED BY COUNSEL FOR COMPLAINANT TO THE ADMISSION OF A
LETTER DATED SEPTEMBER 15, 1978, ADDRESSED TO MR. RAYMOND H. HARRISON,
BY MR. RAYMOND C. WEISSENBORN, CHIEF, PAY POLICY DIVISION, BUREAU OF
POLICIES ANS STANDARDS, UNITED STATES CIVIL SERVICE COMMISSION, ARE
SUSTAINED TO THE EXTENT THAT REFERENCES TO THE LETTER IN THE DEPOSITION
TRANSCRIPT MAY NOT BE ADMITTED AS EVIDENCE OF CIVIL SERVICE COMMISSION
ENDORSEMENT OF THE LETTER OR ITS CONTENTS. THIS RESULT FOLLOWS FROM THE
FACT THAT THE RECORD DOES NOT DISCLOSE A SHOWING THAT THE LETTER
REPRESENTS THE VIEWS OF THE CIVIL SERVICE COMMISSION. REFERENCES TO THE
LETTER IN THE TRANSCRIPT ARE DEEMED ADMISSIBLE AS STATEMENTS OF THE
RESPONDENT'S POSITION REGARDING LEGAL ISSUES REFLECTED THEREIN.
/3/ JOINT EXHIBIT 2 AT PAGE 31.
/4/ IN OTHER WORK CATEGORIES SET OUT IN ARTICLE 13, SECTION 2, PART
II OF THE AGREEMENT, ENVIRONMENTAL PAY IS AUTHORIZED ON THE BASIS OF A
SPECIFIED "PAY STATUS."
/5/ SECTION 2, PART I B ALSO RELATES TO ENVIRONMENTAL DIFFERENTIALS
PAID FOR HIGH WORK; COLD WORK; HOT WORK; WORKING WITH PREHEATED
METALS, FIBROUS CLASS, AND ASBESTOS; EXPOSURE IN PRESSURE CHAMBERS OR
TO A HIGH DEGREE OF CENTRIFUGAL FORCE; AND FLYING.
/6/ SEE LIST OF "AUTHORIZED WORK SITUATIONS" IN ARTICLE 13, SECTION
2, PART I B. A NUMBER OF THESE INCLUDE MORE THAN ONE SPECIFIC WORK
ACTIVITY.
/7/ SEE JOINT EXHIBIT 1. THE RECORD ALSO DISCLOSES THAT ALTHOUGH
MINOR CHANGES WERE MADE IN ARTICLE 13 IN THE EARLIER COLLECTIVE
BARGAINING AGREEMENT IS, FOR PURPOSES HEREIN, SUBSTANTIALLY THE SAME AS
THE CURRENT COLLECTIVE BARGAINING AGREEMENT.
/8/ GENERAL CRITERIA RELATING TO "DIRTY WORK," AS SET OUT IN PART I
B(1), (2), AND (3), ARE DERIVED ENTIRELY FROM APPENDIX J. THE LAST
SENTENCE OF (3), UNDERLINED ABOVE, REPRESENTS LANGUAGE ADDED BY THE
PARTIES.
UNLIKE A NUMBER OF OTHER CATEGORIES IDENTIFIED IN APPENDIX J., "DIRTY
WORK" IS NOT DESCRIBED THROUGH THE USE OF SPECIFIC EXAMPLES.
/9/ REFERENCES TO THE FEDERAL PERSONNEL MANUAL REFLECT CLARIFYING
REVISIONS MADE TO SECTION S8-7D AND S8-7G (3) OF FPM SUPPLEMENT 532-1
DURING NEGOTIATIONS LEADING TO THE CURRENT COLLECTIVE BARGAINING
AGREEMENT UNDER CONSIDERATION IN THIS CASE, AND PRIOR TO THE EFFECTIVE
DATE OF THE CURRENT COLLECTIVE BARGAINING AGREEMENT. (JOINT EXHIBIT 4).
/10/ ILLUSTRATIONS OF THIS WOULD BE CATEGORIES LISTED IN APPENDIX J
WITHOUT QUALIFYING LANGUAGE OR GENERAL CRITERIA.
/11/ BOTH THE PRIOR AND CURRENT COLLECTIVE BARGAINING AGREEMENT
CONTAIN LANGUAGE REFLECTING THAT THE "IMMEDIATE SUPERVISOR AND/OR THE
NEXT LEVEL SUPERVISOR WILL MAKE A DETERMINATION AND SO ADVISE THE
EMPLOYEE." (ARTICLE 13, SECTION 3, JOINT EXHIBITS 1 AND 2).
/12/ ARTICLE 13, SECTION 2, PART I B WAS AMENDED TO ADD DEFINITIONS
OF, "CONFINED SPACE, " AND "CLOSE PROXIMITY." LIKE THE GENERAL CRITERIA
OUTLINED, THESE TERMS WERE UTILIZED FOR THE PURPOSE OF ASCERTAINING
WHETHER WORK FELL WITHIN LISTED AUTHORIZED WORK SITUATIONS IDENTIFIED AS
"DIRTY WORK."
/13/ SEE FOOTNOTE 10 SUPRA. BOTH PRACTICES ARE CONTEMPLATED BY THE
COLLECTIVE BARGAINING AGREEMENT. THIS FACT WAS ACKNOWLEDGED BY COUNSEL
REPRESENTING THE COMPLAINANT. (TR. VOL. II, 16-17).
/14/ AT LEAST FIFTEEN "DIRTY PAY" AUTHORIZED WORK SITUATIONS WERE
INVOLVED.
/15/ SEE DEPARTMENT OF THE NAVY, PEARL HARBOR NAVAL SHIPYARD,
ASSISTANT SECRETARY CASE NO. 73-587(CA), REQUEST FOR REVIEW DENIED, FLRC
NO. 75-A-57 (SEPTEMBER 18, 1975); AND THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION ADOPTED BY THE ASSISTANT SECRETARY IN EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, 6 A/SLMR 485, A/SLMR NO. 707.
/16/ THESE GRIEVANCES WERE FILED BY THE COUNCIL IN ITS INSTITUTIONAL
CAPACITY AS THE EXCLUSIVE BARGAINING UNIT, AND THEREFORE MAY BE
DISTINGUISHED FROM THE GRIEVANCE FILED INDIVIDUALLY BY A WELDER. THE
FACT THAT THE LATTER WAS NOT FILED BY THE COUNCIL PRECLUDES
CONSIDERATION OF THIS GRIEVANCE AS A BASIS FOR BARRING THE COMPLAINT
UNDER SECTION 19(D). DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, FRESNO SERVICE CENTER, A/SLMR NO. 983 (FEBRUARY 6, 1978).
/17/ THE BOILERMAKER GRIEVANCE SPECIFICALLY RAISED THE ISSUE OF
WHETHER THE SHIPYARD'S ACTION CONSTITUTED "A VIOLATION OF ESTABLISHED
PAST PRACTICE AND THE PROVISIONS OF THE CURRENT AGREEMENT."
(RESPONDENT'S EXHIBIT 3 AT 6).