[ v25 p914 ]
25:0914(76)CA
The decision of the Authority follows:
25 FLRA No. 76
U.S. DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916
Charging Party
Case No. 6-CA-50014
DECISION AND ORDER /1/
I. Statement of the Case
This unfair labor practice case is before the Authority because the
Respondent filed exceptions to the attached Administrative Law Judge's
Decision. The complaint alleged that the Respondent violated sections
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute) by unilaterally changing the working conditions of
bargaining unit employees when it installed a replacement degreaser
machine ("degreaser"). That is, the Respondent installed the degreaser
without providing notice to the Charging Party (Union) or bargaining
with it over: (1) the procedures to be observed in implementing the
proposed change, and (2) the appropriate arrangements for bargaining
unit employees adversely affected by the Respondent's decision to
install the degreaser.
The General Counsel filed an opposition to the Respondent's
exceptions. The Charging Party filed neither exceptions nor an
opposition to the Respondent's exceptions.
II. Background
The facts in this case are set forth in the Judge's Decision. They
will be discussed only where relevant.
Tinker Air Force Base is organizationally divided into directorates,
divisions, branches, sections, and units/shops. The Heat Treat/Plasma
Spray Unit (Plasma Spray Unit) was created in 1969. The Plasma Spray
Unit's primary function is to restore aircraft engine parts to original
dimensions by building up the parts with metal. Approximately 40
bargaining unit employees work in the Plasma Spray Unit. Three to four
hundred employees enter or pass through the Plasma Spray Unit's work
area. There is also a Degreaser Unit at Tinker Air Force Base; the
function of this unit is to clean the engine parts before they are sent
to the Plasma Spray Unit. Plasma Spray Unit employees have removed
grease from the parts, however, rather than sending them back to the
Degreaser unit, either by hand or by using a degreaser machine.
In 1969, the Plasma Spray Unit's first vapor degreaser was installed.
A vapor degreaser is a tank containing a chemical solvent that is
heated to produce vapors which clean grease from metal parts as they
pass through the tank. In 1978, a second degreaser (Detrex VS-800S)
replaced the first one and was used until August 1982, when it was
removed. In September 1982, a third degreaser (Cooper) was delivered to
the Plasma Spray Unit but was not installed until August 1984.
Due to certain structural and equipment changes along with a
different type of installation, the operating conditions for the third
degreaser were different from those existing when the second degreaser
was in use. First, a new building blocked off some windows, causing a
draft to occur over the degreaser when the remaining windows are open.
Second, two new furnaces were located in the work area, one of which is
near the degreaser. Finally, the third degreaser is partially installed
in a pit without exhaust ventilation whereas the second degreaser was
entirely at floor level.
Technical publications and recognized authorities in industry health
hazards indicate that there can be serious health problems from vapor
degreasers when they are located: (1) in a draft because drafts can
spread the solvent vapors; (2) next to a heat source because solvent
vapors tend to decompose into toxic vapors when exposed to heat; or (3)
in a pit without exhaust ventilation because solvent vapors are heavier
than air and tend to concentrate in low areas. /2/
III. The Administrative Law Judge's Decision
The Judge concluded that the Respondent violated section 7116(a)(1)
and (5) of the Statute as alleged in the complaint and recommended a
status quo ante Order requiring the Respondent to cease using the
degreaser and to remove its solvent pending the outcome of negotiations.
He found that:
(1) the Respondent did not develop a "past practice" of not
having an operational degreaser in the Plasma Spray Unit;
(2) the Respondent changed working conditions when it installed
the replacement degreaser under markedly different circumstances
which the Respondent should have reasonably foreseen could create
health hazards;
(3) the change had more than a de minimis impact on bargaining
unit employees;
(4) Article 25 (Health and Safety) of the Master Agreement does
not constitute a waiver by the Union of its bargaining rights;
(5) the Respondent did not give formal notice to the Union or
give it an opportunity to bargain over the installation of the
degreaser; and
(6) the filing of the Charge was timely.
IV. Exceptions
The Respondent's exceptions involve two issues: (1) whether it was
reasonably foreseeable that the installation of the third degreaser
presented an increased health hazard to Plasma Spray Unit employees, and
(2) whether the dispute is more appropriately resolved through the
negotiated grievance procedure. Regarding the first issue, the
Respondent argues that because no health hazard has developed since the
degreaser's installation it is illogical to conclude that the Respondent
should have foreseen that the installation of the degreaser would
increase the risk to employees' health. The Respondent also contends
the record fails to show that a health hazard has developed from the
degreaser's larger size, its canvas cover, or from being located in a
draft, next to a furnace or installed in a pit without exhaust
ventilation.
Regarding the second issue, the Respondent argues the matter involves
health hazards and is therefore covered by Article 25 (Health and
Safety) of the collective bargaining agreement and is fully resolvable
using the procedures and arrangements set forth in Article 25.
V. Analysis
We agree with the Judge that the Respondent violated section
7116(a)(1) and (5) when it unilaterally changed working conditions, as
alleged in the complaint.
A. It was reasonably foreseeable that installation of the
degreaser presented an increased health hazard.
We recently reassessed and modified the de minimis standard
previously used to identify changes in conditions of employment which
require bargaining. Under the revised standard, we place principal
emphasis on such general areas of consideration as the nature and extent
of the effect or reasonably foreseeable effect of the change on
conditions of employment of bargaining unit employees. Department of
Health and Human Services, Social Security Administration and American
Federation of Government Employees, AFL-CIO, Local 1760, 24 FLRA No. 42,
slip op. at 5-6 (1986), petition for review filed sub nom. American
Federation of Government Employees, Local 1760 v. FLRA, No. 86-1702
(D.C. Cir. Dec. 17, 1986).
Applying the revised standard to the facts and circumstances of this
case, we find that the nature and extent and the reasonably foreseeable
effect of installing the third degreaser under the circumstances
described in ths record gave rise to a duty to bargain. The literature
on health hazards associated with the operation of a degreaser,
including the Operator's Manual used by the Respondent, clearly
establishes that the presence of drafts, proximity to heat sources, and
location in a pit -- conditions existing at the time of installation --
were factors that could produce health hazards for employees working
near a degreaser. We believe that it is reasonable to expect the
Respondent to be knowledgeable of conditions in the work environment
that could produce health hazards for employees associated with the
operation of a degreaser.
B. The collective bargaining agreement's procedures for
resolving health hazard disputes are not applicable.
Regarding the second issue raised in the Respondent's exceptions, we
agree with the Judge for the reasons stated in his decision that Article
25 of the master agreement does not contain a clear and unmistakable
waiver by the Union of its bargaining rights. See Department of the Air
Force, Scott Air Force Base, Illinois, 5 FLRA 9, 9-11 (1981). Absent
such a waiver, the Respondent had an obligation to give the Union notice
of the proposed installation and, upon request, to afford it an
opportunity to negotiate concerning: (1) the procedures to be observed
in implementing the installation, and (2) the appropriate arrangements
for bargaining unit employees adversely affected by Respondent's
decision to install the third degreaser.
C. A status quo ante remedy is warranted.
After applying the balancing criteria established by the Authority in
Federal Correctional Institution, 8 FLRA 604, 606 (1982), the Judge
recommended that the Authority issue a status quo ante remedy. The
Judge balanced the nature and circumstances of the particular violation
in this case against the degree of disruption in government operations
that would be caused by the status quo ante remedy. He recommended an
Order requiring the Respondent to stop using the degreaser and to remove
the solvent from the degreaser pending the outcome of any requested
negotiations over its installation.
In the circumstances of this case, and noting that no exception to
the remedy was filed, we agree that the status quo ante remedy
recommended by the Judge is warranted.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge made at the hearing and find no prejudicial error was committed
and affirm those rulings. We have considered the Judge's Decision and
the entire record. We adopt the Judge's findings, conclusions, and
recommended Order only to the extent that they are consistent with our
decision.
ORDER
The Department of the Air Force, Air Force Logistics Center, Tinker
Air Force Base shall:
1. Cease and desist from:
(a) Changing working conditions involving the installation of the
Cooper vapor degreaser in the Heat Treat/Plasma Spray Unit in Building
3001 at Tinker Air Force Base without bargaining with the employees'
exclusive representative, the American Federation of Government
Employees, AFL-CIO, Local 916 concerning procedures to observe in
implementing such change and appropriate arrangements for adversely
affected employees.
(b) Using the Cooper vapor degreaser in the Heat Treat/Plasma Spray
Unit in Building 3001 at Tinker Air Force Base pending the outcome of
any negotiations requested by Local 916 over its installation.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action:
(a) Remove the solvent from the Cooper vapor degreaser in the Heat
Treat/Plasma Spray Unit in Building 3001 at Tinker Air Force Base
pending the outcome of any requested negotiations over its installation.
(b) Upon request, meet and bargain with Local 916, to the extent
consonant with law and regulations, concerning the installation of the
Cooper vapor degreaser in the Heat Treat/Plasma Spray Unit in Building
3001 at Tinker Air Force Base.
(c) Post in the Heat Treat/Plasma Spray Unit in Building 3001 at
Tinker Air Force Base copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, the Commanding Officer of Tinker Air Force Base shall sign
them, and they shall be posted and maintained for 60 consecutive days
thereafter in conspicuous places, including bulletin boards and other
places where notices to employees are customarily posted. The
Commanding Officer shall take reasonable steps to ensure that such
Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, Federal Labor
Relations Authority, in writing within 30 days of the date of this Order
as to what steps have been taken to comply with this Order.
Issued, Washington, D.C., February 26, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun
I agree with the majority that the Respondent was obligated under the
Statute to give the Union notice of the installation of the new
degreaser and, upon request, to bargain over procedures and appropriate
arrangements. I disagree, however, with the majority's conclusion that
a status quo ante order is appropriate to remedy the violation. As
noted by the Judge, the new degreaser produces much lower levels of
fumes than the old one, levels which are well within the permissible
exposure limit set by the American Conference of Governmental Industrial
Hygienists. The Judge also found that there is no evidence to establish
that any employees have suffered health hazards as a result of the
installation of the new equipment. On the other hand the effect on the
Agency's operation is potentially costly and certainly disruptive. In
these circumstances, I find that the policies and purposes of the
Statute would be best effectuated by a bargaining order rather than a
status quo ante remedy.
Issued, Washington, D.C., February 26, 1987.
/s/ Jerry L. Calhoun, Chairman
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 change working conditions involving the installation of
the Cooper vapor degreaser in the Heat Treat/Plasma Spray Unit in
Building 3001 at Tinker Air Force Base without providing prior notice to
and, upon request, bargaining with the employees' exclusive
representative, the American Federation of Government Employees,
AFL-CIO, Local 916 concerning procedures to observe in implementing such
change and appropriate arrangements for adversely affected employees.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL remove the solvent from the Cooper vapor degreaser in the
Heat Treat/Plasma Spray Unit in Building 3001 and refrain from using the
degreaser pending the outcome of any negotiations requested by Local 916
over its installation.
WE WILL, upon request, meet and bargain with Local 916, to the extent
consonant with law and regulations, concerning the installation of the
Cooper vapor degreaser in the Heat Treat/Plasma Spray Unit in Building
3001.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VI, Federal Labor Relations Authority, whose address
is: 525 Griffin Street, Suite 926, Dallas, Texas 75202, and whose
telephone number is: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE
AIR FORCE, AIR FORCE LOGISTICS CENTER, TINKER AIR
FORCE BASE, OKLAHOMA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO LOCAL 916
Charging Party
Lt. Col. Wade Morrison, Esquire
For the Respondent
Susan Jelen, Esquire
Christopher J. Ivits, Esquire
For the General Counsel
Steven Angel, Esquire
Jerry Barnett, Esquire
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. Section 7101, et seq. (hereinafter referred to as
"the Statute"), and the Rules and Regulations issued thereunder.
The complaint, issued on February 7, 1985, alleges a violation of
Section 7116(a)(1) and (5) of the Statute, "since on or about August 15,
1984, the exact date being unknown, and continuing to date," by reason
of a failure and refusal to bargain in good faith with the Union as
exclusive bargaining representative for bargaining unit employees "by
unilaterally changing working conditions involving the installation of a
vapor degreaser in the Heat Treat Annex of Building 3001 (at Tinker
AFB), without prior notice to or bargaining with the exclusive
representative over procedures to be observed in implementing the
proposed change and appropriate arrangements for adversely affected
employees as a result of Respondent's decision to install a vapor
degreaser." See G.C. Exh. 1(d). /3/ Respondent denies that any
statutory violations have occurred.
Based upon the entire record herein, including exhibits, my
observation of the demeanor of the witnesses, the arguments made during
the hearing, and briefs filed by the parties, I make the following
findings of fact, conclusions and recommendations.
Findings of Fact
It is admitted that, at all times material herein, the Air Force
Logistics Command ("AFLC") has been and is a major command of the Air
Force engaged in worldwide logistical support to components of the Air
Force from facilities at several bases of the Air Force including Tinker
Air Force Base, designated as "OCALC"; that AFLC has been and is an
agency within the meaning of 5 U.S.C. 7103(a)(3); and that OCALC has
been and is the only activity of AFLC directly involved in these
proceedings.
It is further admitted that the American Federation of Government
Employees, AFL-CIO ("AFGE") and Local 916 (hereinafter referred to also
as the "Union", have been, at all times material herein, labor
organizations with the meaning of 5 U.S.C. 7103(a)(4). It is further
admitted that, at all times material herein, AFGE has represented a
national consolidated unit of employees at AFLC, including
nonsupervisory, nonprofessional employees at various AFLC activities,
including OCALC at Tinker Air Force Base ("AFB"), with exceptions not
here relevant. It is further admitted that, at all times material
herein, Local 916 is and has been the representative of AFGE at OCALC
Tinker AFB for the purposes of collective bargaining, representation of
unit employees, administrative of collective bargaining agreements, and
dealing with management. It is further admitted that, at all times
material herein, AFGE and AFLC have been parties to a master agreement
covering the unit of employees above described and executed on June 1,
1982, and that Local 916, AFLC and OCALC have been parties to a Local
supplement agreement. See G.C. Exh. 1(d) and (j) and R. Exh. 1. There
are about 16,000 bargaining unit employees located at Tinker AFB. (Tr.
35)
Background
Tinker AFB is organizationally divided into directorates, which are
subdivided into divisions, which are further subdivided into branches.
Branches are subdivided into sections, and sections are divided into
units or shops. (Tr. 34) Plasma Spray and Heat Treat constitute a
single unit of the PSH Branch of the MAE Division within the
organizational structure at Tinker AFB. (Tr. 34, 174) There are two
shifts of employees who work in Plasma Spray, day and swing (evening).
There are approximately 40 bargaining unit employees employed in the
Heat Treat/Plasma Spray Unit. (Tr. 87) Three to four hundred employees
have work duties which require them to go into or work in the Heat
Treat/Plasma Spray Unit or use the Unit as access to their work areas.
(Tr. 55)
The Plasma Spray Unit's primary function is to build up parts with
metal. (Tr. 57) The employees' position description states that the
Unit employs a variety of semi-automatic or non-automatic metalizing
machines to apply any of a wide variety of wires, metal powder, and
gases to build up, restore original dimensions, and prevent corrosion of
aircraft engine parts. (R. Exh. 10) Employees in Plasma Spray are
responsible for checking serial numbers on parts and the work control
documents, and sand blasting, cleaning and spraying parts. (Tr. 57-58)
Preliminary to the metal build-up, employees may also be required to use
"degreaser" to degrease parts. (R. Exh. 9-10) There are two processes
used for degreasing parts: the parts may be degreased either by using a
degreasing solvent on the part and wiping it clean; or by using a
degreasing machine. (Tr. 95-96) There is also a separate Degrease Unit
at Tinker Air Force Base which primarily does degreasing. (Tr. 248) A
part of the responsibility of the Degrease Unit has been to degrease
parts which go to the Plasma Spray Unit. (Tr. 248) Nevertheless, some
greasy or soiled parts have been received in the Heat Treat/Plasma Spray
Unit. Employees of Plasma Spray, upon receipt of a greasy part, have
recycled it back to the Degrease Unit (Tr. 248-249) or degreased it in
the hand process with a degreasing solvent called MEK. (Tr. 97). One
employee employed in Plasma Spray Unit for seven years did not consider
it part of her job to use the degreasing machine. (Tr. 98)
A vapor degreaser machine uses solvent vapors by converting solvent
liquid to vapors in a fuming process. When these vapors are brought in
contact with a soiled article, the vapor condenses to a liquid on the
article. As the solvent drains by gravity, the soluable and insoluable
soil is cleaned off the part. A number of different solvents may be
used in the process. (G.C. Exh. 4, p. 1) The degreasers at Tinker AFB
use a solvent known as perchloroethylene (Tr. 46), which is also known
as tetrachloroethylene. (Tr. 43A; G.C. Exh. 6 and 7) The Cooper vapor
degreaser which was installed in the Heat Treat/Plasma Spray Unit uses
perchloroethylene. (Tr. 47, 58). Perchloroethylene is a chemical which
is used as a dry cleaning solvent and degreasing agent. (G.C. Exh. 7)
It can affect the body if inhaled or if it comes in contact with the
eyes or skin. On a short-term exposure basis, it can cause headaches,
nausea, drowsiness, dizziness, loss of coordination and unconsciousness.
It can also cause irritation of the eyes, nose and throat, and flushing
of the face and neck. (G.C. Exh. 6, p. 1) Further, such short exposure
can cause a metallic taste and a tightness of the frontal sinuses.
(G.C. Exh. 7) Also, even short term exposure to perchloroethylene can
cause liver damage. (G.C. Exh. 6) Prolonged or repeated overexposure
can cause damage to the liver and kidneys. (G.C. Exh. 6) Exposure to
perchloroethylene has also resulted in adverse effects to the central
nervous system, the lungs, and the heart. (G.C. Exh. 7) Death can
result if too much solvent vapor is inhaled. (G.C. Exh. 5, p. 18)
Perchloroethylene is a chlorinated solvent. (G.C. Exh. 5, p. 15) When
the vapors of a chlorinated solvent, such as perchloroethylene, are
exposed to a heat source, they tend to decompose forming carbon
monoxide, hydrogen chloride, chlorine, and phosgene. (G.C. Exh. 4, p.
30 and G.C. Exh. 5, p. 17) Hydrogen chloride can be inhaled and can
cause irritation of the respiratory tract (burning, choking, and
coughing), and ulceration of the nose and throat. (G.C. Exh. 9, p. 1)
Carbon monoxide decreases the ability of the blood to carry oxygen to
the tissues. Inhalation of carbon monoxide can cause headaches, nausea,
dizziness, weakness, rapid breathing, unconsciousness, and ultimately
death. Exposure to carbon monoxide may also aggravate heart disease.
(G.C. Exh. 10, p. 1) Phosgene, after a minute or so of exposure to low
concentrations, can cause cough or discomfort in the chest, and
irritation of the nose and throat. Phosgene may cause pulmonary edema
with coughing, shortness of breath, and production of frothy sputum and
may irritate the eyes. (G.C. Exh. 11, p. 1) Some employees are more
susceptible to the effects of these chemicals than others. (Tr. 240)
The American Conference of Governmental Industrial Hygienists
("ACIH") has set the permissible exposure limit for perchloroethylene at
50 parts per million (ppm). (Tr. 216, G.C. Exh. 8) Continuing strong or
objectionable solvent odor can prove to be a serious situation. Such
strong solvent odors indicate high vapor concentrations that may
endanger the health of the operator and others working in the vicinity
of the degreaser. (G.C. Exh. 5, p. 22) In terms of odor,
perchloroethylene solvent is barely detectable at the permissible
exposure limit of 50 ppm; the odor is slight but not unpleasant at 150
ppm; the odor is strong and unpleasant at 400 ppm. (G.C. Exh. 5, p.
16; G.C. Exh. 14)
Because of the health hazards associated with vapor degreasers and
their resultant vapors, certain safeguards are recommended by the
American Society for Testing and Materials ("ASTM"; G.C. Exh. 3),
William A. Burgess, Associate Professor of Occupational Health
Engineering, Harvard School of Public Health (G.C. Exh. 4), and Dow
Chemical Company. (G.C. Exh. 5) Degreasers should be installed so that
they are not affected by drafts caused by windows, doors, and unit
heaters. Degreasers should not be installed near open flames or near
high temperature surfaces. (G.C. Exh. 3, p. 23) Since chlorinated
solvent vapors are heavier than air (G.C. Exh. 5, p. 18), when
degreasers are installed in pits, mechanical exhaust ventilation should
be provided in the pit. (G.C. Exh. 4, p. 29; G.C. Exh. 5, p. 12) Since
solvent fumes can decompose into toxic air contaminants, the degreaser
should not be placed near open flames or electric heating elements.
(G.C. Exh. 4, p. 29) Protective equipment should be provided to
safeguard the health and safety of degreaser operators. (G.C. Exh. 5,
p. 17) Employees should be thoroughly trained before operating a
degreaser. (G.C. Exh. 3, p. 33) Since operating instructions vary with
design, type, and work cycle of the unit, it is essential that the
operator be familiar with the specific instructions pertaining to the
unit. (G.C. Exh. 3, p. 24)
History of the Vapor Degreaser in the Heat Treat/Plasma Spray Unit.
In 1969 the Plasma Spray function was combined with the Heat
Treatment Unit in a workshop in Building 3001 at Tinker Air Force Base.
That shop became known as the Heat Treat/Plasma Spray Unit, office
symbol MAEPSH. (Tr. 173-174) The original plans for the Heat
Treat/Plasma Spray Unit (R. Exhs. 2 and 3) included provisions for
installation of a degreaser; and a degreaser was installed in 1969.
(Tr. 163, 174) In 1978 the degreaser was replaced with another larger
degreaser, called a "Detrex VS8005 Degreaser" because the old degreaser
was in bad shape and was too small. (Tr. 163 and 169; R. Exhs. 4 and
6)
Testing done by Bioenvironmental Engineering on the Detrex degreaser
on April 25, 1980, showed an excessive amount of fumes emanating from
the degreaser. (Tr. 199-200; R. Exh. 12) Sampling one foot from the
tank edge in a "grab sample" showed a concentration of perchloroethylene
of 250 ppm, which was in excess of the then permissible exposure level
(PEL) of 100 ppm. (Tr. 199-200; R. Exh. 12) On April 28, 1980,
Bioenvironmental Engineering submitted an ALC Form 916 (Notice of
Unsafe/Unhealthy Condition) to Mr. Myers in MAEPSH, and recommended
certain corrective measures. (Tr. 200; R. Exh. 13) A "grab sample" was
again taken on May 2, 1980, and was determined to contain a
concentration of perchloroethylene of 200 ppm -- again above the then
PEL of 100 ppm. (Tr.203-204); R. Exh. 14) On March 16, 1981,
Bioenvironmental Engineering sent a letter to MAEPSH, notifying
management that a "grab sample" taken on March 10, 1981, showed a
concentration level of perchloroethylene of 240 ppm -- again above the
then PEL. (Tr. 204-205); R. Exh. 15) On April 3, 1981,
Bioenvironmental Engineering advised Mr. Tatum in the Facilities and
Equipment Engineering Services Section (Tr. 159) that samples taken on
March 25, 1981 in MAEPSH showed perchloroethylene levels of 50 to 100
ppm, which were within the then-existing PEL, but not the present PEL
for perchloroethylene, which is now 50 ppm. (Tr. 205-206; R. Exh. 16)
On May 6, 1981 Bioenvironmental Engineering advised MAEPSH that sampling
in March and April of 1981 showed perchloroethylene concentration levels
between 50-100 ppm, which were within the then-existing PEL that was
likely to be reduced to 50 ppm in the near future. (Tr. 206; R. Exh.
17) On May 4, 1981 Bioenvironmental Engineering took 6-hour samples
around one employee and four fixed locations around the degreaser in the
Heat Treat/Plasma Spray Unit. (Tr. 207-215; R. Exhs. 18(a) and (b))
Laboratory results disclosed time-weighted average tetrachloroethylene
concentration levels of 33 mg/m3, 28.5 mg/m3, 93.8 mg/m3 and 21 mg/m3.
(Tr. 207-215; R. Exh. 18(c) and (d)) /4/
In August 1982 management initiated the paperwork to again replace
the degreaser in the Heat Treat/Plasma Spray Unit. (Tr. 166, R. Exhs. 6
and 7) Although management submitted the service order to install the
new degreaser on September 14, 1982 (Tr. 166; R. Exh. 7), it was not
installed until approximately two years later. The degreaser that was
eventually installed was new (Tr. 167). The new degreaser was made by a
different company, Cooper. (Tr. 169)
Sometime after the old degreaser was removed, the new degreaser was
brought into the shop and placed a few feet from the spot where the old
degreaser had been located. (Tr. 100-101, 143, 166-167, 176, 246) A
General Counsel's witness estimated that "four or five, maybe six
months" elapsed between when management took out the old degreaser and
brought in the new one (Tr. 143); and Respondent's witness estimated
three or four months. (Tr. 176) Some employees were told and found out
that it was a new degreaser that would or might replace the old one.
(Tr. 100-101, 143, 179, 246) At least one employee knew that it was a
bigger degreaser than the old one. (Tr. 143) The new degreaser sat on
the shop floor, in a crate, for a period of months before being moved
out to Building 3105 so that it would not be in the way of the
installation of furnaces being put in next to it. (Tr. 100, 176) After
the installation of one of the furnaces, the new degreaser was brought
back to the Heat Treat/Plasma Spray Unit and placed "on site again."
(Tr. 177) The new degreaser stayed out in Building 3105 for three to
four months before it was brought back to the shop. (Tr. 146) The new
degreaser then remained on site in Building 3001 for about six months
before installation began. (Tr. 177) Normally, the installation of the
degreaser would have taken approximately 203 days to complete. (Tr.
167-168; R. Exhs. 8(a) and (b)) However, higher priority projects
caused a delay in installation. (Tr. 168, 171) Moreover, the installers
broke a heat-sensing device during installation, so the project sat idle
for two or three months awaiting new parts. (Tr. 177-178) Once the
degreaser was installed, it developed a water leak and trouble with the
heating coils. (Tr. 178) The new degreaser caused the emission of fumes
that were noticeable. (Tr. 180, 249) Respondent acknowledges that it
"caused a stink, literally." See page 4 of Respondent's brief.
It is not clear just when the new degreaser became operational for
the first time. One employee estimated late August or early September
1984. (Tr. 106-108) A report of OCALC indicated that it was still not
operational on October 3. (G.C. Exh. 13)
Woodville Couch, an employee in Plasma Spray and a union steward,
filed a Hazard Report on September 21, 1984, and described the hazard as
the location of the new degreaser in a draft which was causing fumes to
be spread throughout the Unit. (Tr. 108 and G.C. Exh. 13) Within
probably four or five days after the filing of the Hazard Report, a sign
was placed on the new degreaser which read: "Do not operate." (Tr. 109)
On October 19, 1984, Mr. Couch received a reply, stating that management
"was going to make an evaluation of it." (Tr. 110) The reply indicated
that the new degreaser had some operational problems, one being a lack
of trained personnel, and that sampling would occur in the future.
(G.C. Exh. 13) In December 1984, the new degreaser was "reactivated,"
and has been used consistently since that time. (Tr. 110)
After the filing of the Hazard Report, repairmen worked on the new
degreaser for approximately six weeks. (Tr. 178) and Bioenvironmental
Engineering was called to check on the fumes being emitted. (Tr.
196/197)
The first sampling on the new degreaser was performed on February 7,
1985. (Tr. 215-216; R. Exh. 19) The two "grab samples" showed
perchloroethylene levels of 6 ppm at one location and 10 ppm at another
-- well below the new PEL of 50 ppm. (Tr. 215-216, 237; R. Exh. 19)
These samples were taken while the samplers were standing by an employee
putting a part in the degreaser. (Tr. 237) Testing on the new degreaser
was done again on February 14, 1985. As indicated on the AF Form 2750
(R. Exhs. 20(c), the testing was done around two individuals over a 7
and 1/2 hour period, and the results showed perchloroethylene levels of
18.8 mg/m3 and 27.55 mg/m3, compared to the PEL of 335 mg/m3. (Tr.
216-218; R. Exhs. 20(a)-(d) Testing on the new degreaser was done again
in June 1985. (Tr. 218) As indicated on the AF Forms 2750 (R. Exhs.
21(c)-(f)), samples were collected around two individuals and three
fixed locations around the degreaser over periods ranging from three to
four hours, and the results showed time-weighted average
perchloroethylene levels of 0, 11 mg/m3, 15 mg/m3, 22 mg/m3, and 66
mg/m3, compared to the PEL of 335 mg/m3. (Tr. 218-219; R. Exhs.
21(a)-(g))
The degreaser usually used by Heat Treat/Plasma Spray Unit employees
in the 1982-1984 period (the degreaser in the Paint Shop) was tested for
perchloroethylene levels on February 21, 1984. (Tr. 243, 219) Sampling
data taken around two employees on February 21, 1984 showed
time-weighted average perchloroethylene concentration levels of 89 mg/m3
and 66 mg/m3. (R. Exhs. 22(a)-(h))
Notice to the Union and Failure to Bargain
OCALC Tinker AFB concedes that management "never formally notified
the Union of its intent to replace the old degreaser with a new one."
(See page 5 of its Post Hearing Brief.) Its General Foreman in the Heat
Treat/Plasma Spray Unit admits that he never gave "any notice to any
union members or the union concerning the installation and beginning of
the operations of the present degreaser." (Tr. 173, 188)
Back in August 1984, Anna Beck, an employee of the Plasma Spray Unit,
told Reata Johnson, Division Steward, that a new degreaser had been
installed in the Unit and the Activity had brought in barrels of
perchloroethylene for use in the machine. (Tr. 37) This was when Ms.
Johnson first learned of the new vapor degreaser. The Activity had
never notified Ms. Johnson or the Union of the installation of the
machine. Ms. Johnson is one of the Union officials who receives notice
of changes. (Tr. 37, 188) Shortly after learning about the existence of
the machine, Ms. Johnson prepared a letter dated September 20, 1984
requesting bargaining "(i)n accordance with the Master Labor Agreement
Article 33, Section 33.03, paragraph b, covering changes in local
conditions of employment . . . . " (G.C. Exh. 2) This letter was
addressed to Roy Bryars, Chief, MAEPS Section. The letter was signed by
Phil Porter, Chief Steward of the Union. Specifically, the letter
indicated that James Berryman, supervisor for the swing shift in the
Heat Treat/Plasma Spray Unit, had indicated that unspecified changes in
the Unit "would be implemented before the first of the year." (G.C. Exh.
2) Ms. Johnson asked if the degreaser was "part of it" and was told that
Mr. Berryman "wasn't at liberty to give (her) an answer to any of (her)
questions." (Tr. 39) Ms. Johnson requested bargaining over "new changes
of conditions planned in M aepsh Plasma Spray Unit." (G.C. Exh. 2) Ms.
Johnson admitted that, at the time of the letter, the new degreaser had
not been put into operation. (Tr. 39 and 56) Ms. Johnson, who the
letter designated as the Union's representative in the matter, never
received a reply. (Tr. 38). There is no evidence that OCALC has ever
indicated a willingness to bargain with the Union to the extent required
by statute following the filing of the unfair labor practice charge in
this case.
Other than the request to bargain, on September 20, 1984, the Union
never again requested to bargain the impact and implementation of
management's decision to replace the old degreaser with a new one,
either before or after the new degreaser was installed.
On October 3, 1984, the Union filed an unfair labor practice charge
alleging that, on or about September 17, 1984, OCALC "refused to bargain
in good faith by unilaterally changing terms and conditions of
employment by installing a vapor degreaser in heat treat/plasma spray
without notice to or bargaining with the Union." (G.C. Exh. 1(a))
Between 1982, when the old degreaser was taken out, and 1984 when the
new one became operational, the General Foreman of the Heat Treat/Plasma
Spray Unit had conversations with employees regarding the degreaser.
(Tr. 179). "Numerous questions were asked about when it was going to be
installed, if it was going to be installed, if (the Unit was) going to
be able to keep it, where it was going to be put, primarily." (Tr. 179)
All the top journeymen asked questions about it. (Tr. 179)
Differences Between the Old Detrex Degreaser and the New Cooper
Degreaser
1. Size
The new Cooper degreaser is "probably about at least three times
bigger than (the old Detrex degreaser)." (Tr. 62) The old degreaser had
an opening which measures "probably four feet by three feet." (Tr. 62,
111) The new degreaser has an opening of 74 inches by 54 inches, or four
and one-half feet by six feet. (Tr. 142) The new degreaser handles
larger parts and more work than the old degreaser. (Tr. 172, 185) The
new degreaser also holds more perchloroethylene than the old degreaser.
(Tr. 185)
If a degreaser is designed properly, a larger opening does not have
much effect at all on the escape of vapors, because more cooling coils
are put in to keep the vapors from coming out of the unit. (Tr. 202) If
a degreaser is working properly, size alone has no bearing on the
dangerousness of the degreaser. (Tr. 203)
2. Location
The old degreaser was situated on top of a grating over a pit. (Tr.
63, 112) The new degreaser is situated so that five feet of it is sunk
into the pit. (Tr. 63, 112) The pit area is covered by a grating and
"is not ventilated per se," that is, "it doesn't have a solid top over
it." (Tr. 112, 168, 184) There is no mechanical exhaust ventilation
provided in the pit. (Tr. 112)
3. Cover
The old degreaser had a steel cover, which provided a "pretty good
seal" when it was closed. (Tr. 111-112) The new degreaser has a canvas
cover, which is "torn and broken" and cannot be closed. (Tr. 63) Fumes
from the new degreaser can be smelled "all over the place." (Tr. 63) The
seal on the new degreaser is "(n)ot very good." (Tr. 112)
4. Manufacturer
The old degreaser was a Detrex VS-800S. The new degreaser is a
Cooper. "It is like a Pontiac and a Ford." (Tr. 169)
5. Vapor Fumes
When the old degreaser was closed and not being operated, employees
could not smell its fumes. (Tr. 67) When the new degreaser is closed
and not being operated, some employees can still smell its fumes within
15 feet of the degreaser. (Tr. 66-67) Several employees could smell the
fumes of the old degreaser within only three to 10 feet of the
degreaser. (Tr. 65, 113) When the new degreaser is open or being
operated, several employees can smell its fumes within about 25 to 60
feet of the degreaser. (Tr. 66, 114)
Respondent's witness, Jerry Gilbert, smelled fumes in his work area
(Plasma Spray) when the new degreaser was first installed "as long as
you didn't keep it covered." (Tr. 249) Now, he cannot tell "any
difference" between new and old degreasers, "as long as we keep the new
one covered." (Tr. 249) /5/
6. Frequency of Use
One employee in Plasma Spray estimated that she used the old
degreaser "probably . . . to degrease maybe six parts within two years"
and other employees used it "probably similar to that, because the
routine place to have them degreased was in Degrease, which was outside
(the Plasma Spray) shop". (Tr. 73) Another employee in that shop, on
the swing shift, estimated that "somebody in plasma spray might use it
(the old degreaser) once or twice a night." (Tr. 114) Two employees
testified that, as far as they knew, no employees outside the Heat
Treat/Plasma Spray Unit used the old degreaser. (Tr. 73-74, 111, 114)
Another employee in that unit testified that "sometime it (the old
degreaser) was" used by "employees from other units." (Tr. 248) It was
stipulated that several other witnesses would have testified the same.
(Tr. 250-251) I find that the old degreaser was used as a backup unit by
employees outside the Heat Treat/Plasma Spray Unit, but not on a regular
basis.
The new degreaser has been used as a backup degreaser by employees
from other units. Respondent's witness, Jerry Myers, admitted that the
new degreaser is used as a "backup by some other shops" and has had "an
excessive amount of parts in there going through it for, say, a week at
a time sometimes." (Tr. 184) One employee in the Heat Treat/Plasma Spray
Unit estimated that other shops use the new degreaser "daily." (Tr. 74)
Another employee testified that the new degreaser is used "(m)ostly by
people out of other shops" and that he had seen it operated by them for
"three or four days at a time, maybe four or five different times,"
because the degreasers in their shops were "inoperable." (Tr. 110) I
find that the new degreaser is used more frequently than the old
degreaser as a backup unit by employees from other shops.
7. Procedures
When the old degreaser was in place, the procedure for degreasing
parts was as follows. If an extremely greasy and oily part came into
the Plasma Spray Unit, the employees would return it to the Degrease
Unit and have the Degrease Unit degrease it. If a part was only
slightly greasy or it was a rush job, the employees would degrease it
themselves. (Tr. 76) A Plasma Unit employee testified that it was "just
announced" to the employees of the Plasma Spray Unit: "We have a new
degreaser now and you can degrease your own parts." (Tr. 77)
8. Congestion
The fact that the Cooper degreaser in the Heat Treat/Plasma Spray
Unit is being used by employees of other units as a backup degreaser
(Tr. 74, 110) has resulted, "(o)nce in a while," in parts being stacked
in the aisles around the degreaser, thereby increasing congestion in the
area. (Tr. 90-93, 136-138) This makes movement in the aisles difficult
and requires that employees move the parts to make it possible for them
to get through the aisles. (Tr. 92-93, 138-139) There was no problem
with congestion in the Heat Treat/Plasma Spray Unit with the old
degreaser. (Tr. 139)
A witness for Respondent testified that the use of the new degreaser
by employees in the Paint Shop has not "really" caused congestion
because by the time "they got over there we (employees in the Heat
Treat/Plasma Spray Unit) usually have our parts degreased and ready to
go." (Tr. 245) It was stipulated that two other employees would have
testified similarly if called. (Tr. 250-251)
I find that some congestion in the aisles occurs, once in a while,
when employees from other units use the Cooper degreaser.
9. Introduction of New Equipment Which Affects the
Operation of the New Degreaser
When the Detrex degreaser was in place, there were no furnaces near
it. (Tr. 60) After the old degreaser was removed, an electric forced
air furnace and a Lindberg vacuum furnace were installed in the Heat
Treat/Plasma Spray Unit. (Tr. 61, 118-119, 185-186) The forced air
furnace is situated to the left of the vapor degreaser. (Tr. 118)
10. Structural Changes Have Been Made Which Affect the
Operation of the Degreaser
When the old degreaser was in place, there were more windows in the
Heat Treat/Plasma Spray Unit. (Tr. 77-81) At that time, there were
windows on the south side of the Heat Treat/Plasma Spray Unit. (Tr.
79-80, 120-121) There were also windows located on the uest wall. (Tr.
119) These windows on the west wall extended from the south side of the
building to furnace 15. (Tr. 120-121; G.C. Exh. 12) After the old
degreaser was removed, the windows on the south wall were blocked off by
a new building. (Tr. 81, 121-122) Also, all of the windows behind
furnaces 12-15 on the west wall were closed in. (Tr. 121, G.C. Exh. 12)
The only remaining windows are two located behind the vapor degreaser.
(Tr. 81-82, 121) These windows are kept open during the summer. (Tr.
82, 122) As they are the only windows left, there is a draft which flows
over the degreaser. (Tr. 81, 187) Vapors from a vapor degreasing
machine can escape because of air currents running across the surface of
a degreaser. (Tr. 202) Further, there are plasma spray booths located
in the Plasma Spray Unit. These booths have a ventilation system which
gets its make-up air from inside the unit. These ventilators take air
from the Unit pulling the air from the windows behind the degreaser,
across the degreaser to the top of the booths into the booths. (Tr. 83)
11. Safety and Training
Respondent's witness, Mr. Myers, admitted that only 4 out of 42
Plasma Spray employees have received training on the use of the new
degreaser. Such training is a "new requirement that has been in effect
since, oh, about three months ago (as of the date of the hearing)." (Tr.
189-190) The employees of the Plasma Spray Unit have not been issued any
safety equipment for operating the machine other than gloves.
12. Effects of the Vapor Degreaser Upon Employees
After smelling the fumes from the new degreaser, some employees
developed sinus problems, headaches, dizziness, and started coughing and
sneezing. (Tr. 85, 108-109) There was no medical evidence that the
cause of these problems could be attributed to the new degreaser.
Tinker Air Force Base Regulation 161-3, dated April 19, 1982, has
been in effect for the last three years and describes how to deal with
"Control of Health Hazards in Vapor Degreasing Operations." (Tr.
198-199; R. Exh. 11) The regulation sets forth, inter alia, operational
procedures including the requirements for protective clothing. The
master agreement of the parties also contains articles that include,
inter alia, provisions for protective clothing and equipment, safety
training, toxic or flammable vapors, exposure to hazardous conditions,
notification of dangerous condition, inspections, reporting hazardous
conditions, physical examinations for employees exposed to potentially
dangerous or unhealthy conditions, notice to the Union of a dangerous or
potentially dangerous condition at a work site, hazardous and
environmental pay, and employee disability compensation. (R. Exh. 1,
pp. 107-123)
In November 1984, the parties negotiated over the installation of a
salt-bath furnace in a building adjacent to Building 3001, after notice
of the installation was given to the Union. (Tr. 125, 130, 135) There
was no evidence that the salt-bath furnace replaced an old one.
Discussion and Conclusions
The General Counsel contends that Respondent violated 5 U.S.C.
7116(a)(1) and (5) when, in or about August 1984, it unilaterally
changed working conditions in the Heat Treat/Plasma Spray Unit of
Building 3001, by installing a vapor degreaser in that Unit without
providing prior notice to or bargaining with the Union over the
procedures to be observed in implementing the proposed change and
appropriate arrangements for employees adversely affected by
Respondent's decision to install the degreaser.
5 U.S.C. 7116(a)(5) provides:
(a) For the purposes of this chapter, it shall be an unfair
labor practice for an agency --
* * * *
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter . . . .
5 U.S.C. 7106(b)(2) and (3) provides:
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating --
* * * *
(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
In interpreting 5 U.S.C. 7116(a)(5), it has been well established 0y
the Authority that an agency may not make changes affecting working
conditions without first notifying the exclusive bargaining
representative of the affected employees and affording it an opportunity
to bargain concerning the impact and implementation of such changes.
Internal Revenue Service, Washington, D.C., 4 FLRA 488 (1980). It is
also equally well established that an agency when exercising a reserved
management right in changing working conditions is not obligated to
provide notice and bargain impact and implementation of a change unless
that change has some sort of impact upon employees. Department of
Health and Human Services, Social Security Administration, Office of
Program Operations and Field Operations, Sutter District Office, San
Francisco, California, 5 FLRA 504 (1981). "(N)o duty to bargain arises
from the exercise of a management right that results in an impact or a
reasonably foreseeable impact on bargaining unit employees which is no
more than de minimis." Department of Health and Human Services, Social
Security Administration, Chicago Region, 15 FLRA 922, 924 (1984).
In order to determine whether the exercise of a management right will
result in a change in working conditions having an impact or reasonably
foreseeable impact upon bargaining unit employees which is more than de
minimis, the Authority has looked to the totality of the facts and
circumstances presented in each case. Department of Health and Human
Services, Social Security Administration, Chicago Region (SSA Chicago),
19 FLRA 827, 829 (1985).
In the SSA Chicago case, the Authority looked at five criteria to
determine whether the exercise of a reserved management right which
resulted in a change in working conditions resulted in more than a de
minimis impact. Those criteria are as follows:
1. The nature of the change as it affects or foreseeably
affects unit employees as individuals or as a whole.
2. The temporary, recurring, or permanent nature of the
change.
3. The number of unit employees affected or foreseeably
affected by the change.
4. The size of the bargaining unit.
5. The extent to which the parties may have established,
through negotiation or past practice, procedures and appropriate
arrangements concerning analogous changes in the pact.
A sixth element was noted by former Member McGinnis in a concurring
opinion, as follows:
6. When would the implementation of the change involve or
adversely affect unit employees.
I. The General Counsel and the Charging Party argue, unsuccessfully,
that the change here in issue is "analogous to a situation where prior
to August 1984, Respondent had developed a past practice of not having
an operational vapor degreaser in the Plasma Spray/Heat Treat Unit." See
page 17 of the Memorandum to the Administrative Law Judge On Behalf of
the Counsel for the General Counsel (hereinafter, "G.C. Memo.") and see
also pages 4-5 of the Post Hearing Brief of the Charging Party.
It is well established that the parties may create terms and
conditions of employment through consistent actions which evidence a
tacit or informal agreement to conduct business in a certain manner.
Thus a "past practice" may become a condition of employment through such
a tacit or informal agreement. However, if the General Counsel relies
on creation of a condition of employment through past practice, the
burden is on the General Counsel to prove that (1) the practice was
known to management, (2) responsible management consented or knowingly
acquiesced in the practice, and (3) the practice continued for an
extended period of time. Department of Defense, Department of the Navy,
Polaris Missile Facility, Charleston, South Carolina, 6 FLRA 372, 379
(1981). Regarding the first element, management, as well as the
employees, knew when the old degreaser was taken away and when the new
degreaser was put in place. As to the third element, a considerable
period of time did pass. However, the General Counsel failed to prove
the second element. Here there is nothing even approaching an implied
agreement. A degreaser was provided for in the original plans for the
Heat Treat/Plasma Spray Unit. Ever since the Heat Treat/Plasma Spray
Unit came into existence at its present location in 1969 there has been
a degreaser. Shortly after the old degreaser was removed, a new one was
placed on the shop floor in the same location as the old one. Employees
asked about the new degreaser -- when, where and if it would be
installed. No union official testified that he or she was led to
believe that management intended to discontinue having a degreaser in
the Heat Treat/Plasma Spray Unit.
II. The General Counsel has established, by a preponderance of the
evidence, that Respondent did change working conditions when it
installed a new degreaser, under markedly different circumstances, and
that the change had a more than de minimis impact upon bargaining unit
employees.
It was established that the new degreaser was about three times the
size of the old degreaser and it had a canvas cover rather than a metal
one. It was reasonably foreseeable that the new degreaser, able to hold
more solvent, was capable of producing more fumes of a dangerous nature
to employees working in close proximity to it. It was also reasonably
foreseeable that a canvas cover, unlike a metal one, might become torn
and broken (as it did) and be less likely to contain escaping fumes.
It was also established that the new degreaser was installed in the
same area as the old degreaser, but under conditions that made
reasonably foreseeable that its operation would be more dangerous. It
was installed next to a furnace that was not in place when the old
degreaser occupied the space. It was installed in an unventilated pit,
unlike the old degreaser. It was installed after windows had been shut
off, thereby creating a draft that was not in existence when the old
degreaser sat in the same area. Technical periodicals show dangers in
installing degreasers under such circumstances. Respondent should have
reasonably foreseen these added dangers.
The change to a Cooper degreaser, and its location, is permanent and
was made before any bargaining opportunity was given to the Union. It
affects not only the 40 employees who work in the Heat Treat/Plasma
Spray Unit but also the 300 or 400 who must pass through it during the
course of their duties. Employees can smell the fumes from the new
degreaser from farther distances than they could with the old degreaser.
Smelling fumes is a threshold indication of a hazardous condition; and
management conceded that there were problems, initially, with the new
degreaser, and that it literally emitted a "stink." /6/ Employees have
complained of a variety of health problems since the new degreaser
became operational.
Literature in the field establishes that there can be serious health
problems with degreasers, particularly those located near electric
furnaces, and placed in pits and in drafts, the situation here involved.
A change which has the potential of creating serious health hazards for
this many employees out of a bargaining unit of 16,000 cannot be
regarded as de minimis in nature. While there is no proof that the
parties have ever before negotiated the replacement of one piece of
machinery with another, /7/ the parties have negotiated general health
and safety provisions in their master agreement.
The General Counsel and the Charging Party also rely upon evidence
that the use of the degreaser has changed. Respondent argues that a
change in use does not come within the confines of this complaint, which
alleges only that the change was one "involving the installation of a
vapor degreaser." See count 8 of G.C. Exh. 1(d). The installation
occurred in or around the late summer or early Fall of 1984. Some of
the changes in use had recently occurred as of the date of the hearing,
on September 23, 1985, namely that training on use of the new degreaser
was to be given to all employees (Tr. 189-190) and that all employees in
the Heat Treat/Plasma Spray Unit must use the degreaser. (Tr. 102)
There was also evidence of congestion now occurring in the aisles of the
Heat Treat/Plasma Spray Unit because employees from other shops are
using the new degreaser more than they had used the old degreaser.
Arguably, Respondent may be correct that this change in use should be
the subject of a separate charge and is not encompassed in this
proceeding. In any event, I have not considered changes in use in
arriving at the above conclusions.
Respondent argues that it is relieved from an "additional bargaining
obligation as to health and safety issues" because such issues are
"fully negotiable under Tinker AFB Regulation 161-3 (R. Exh. 11) and
Article 25 of the collective bargaining agreement" (R. Exh. 1, pp.
107-117). See page 12 of Respondent's Post-Hearing Brief. Respondent
does not indicate, and the record does not show that Regulation 161-3 is
a binding agreement between Respondent and the Union. It is entitled
"Control of Health Hazards in Vapor Degreasing Operations" and defines
individual and organizational responsibilities, in some detail. It is
dated April 19, 1982, before the Detrex degreaser was replaced by the
Cooper one now in place. Thus, I can find no bargaining obligation
fixed by this regulation or waiver by the Union of a bargaining
obligation when Respondent chose to replace a Detrex degreaser with one
built by Cooper, with a less-effective cover for containing dangerous
fumes, and then chose to install the Cooper under permanent conditions
which made it potentially more dangerous, i.e., in an unventilated pit,
next to an electric furnace; and in a draft.
Article 25 of the master agreement, signed on June 1, 1982, before
Respondent installed the Cooper degreaser, deals in generalities on the
subject of health and safety. I cannot conclude that this article
constitutes a waiver by the Union of its bargaining rights either. We
do not know what proposals the Union might make as to the Cooper
degreaser, since Respondent never accorded to it the opportunity to make
any. According to the Post Hearing Brief of the Charging Party, at page
6, the proposals will relate to "the safety and health of the
employees." It is likely that they will be very specific in nature,
e.g., proposing to replace the torn and broken canvas cover on the
Cooper degreaser with a better one. There is nothing specific in the
master agreement about the type of cover for a degreaser. Ergo, I
cannot conclude that the Union waived its bargaining rights as to such a
proposal by agreeing to the generalities in Article 25 of the master
agreement.
None of the cases cited by Respondent are to the contrary. My
decision in Department of Defense, Department of the Air Force, Langley
Air Force Base, Virginia, (Langley AFB), Case No. 4-CA-30557, OALJ
85-027 (1984) did not involve a change in working conditions initiated
by the agency, as here; it involved a refusal to bargain over
union-initiated proposals which I found would have operated to change
the parties' collective bargaining agreement. Two Authority decisions
cited by Respondent (Department of Justice, Immigration and
Naturalization Service, ("INS"), 17 FLRA 227, 234 (1985) and Naval
Amphibious Base, Little Creek, Norfolk, Virginia, ("NAB"), 9 FLRA 774,
777-778 (1982)) involved very specific provisions negotiated by the
parties in their collective bargaining agreements -- in INS, the use of
a specific form; in NAB a specific procedure for effectuating
non-discriplinary adverse actions. A third Authority case cited by
Respondent, Department of the Navy, Mare Island Naval Shipyard, Vallejo,
California, 9 FLRA 784 (1982) was decided on the basis that there had
been no change in conditions of employment; and the Authority
explicitly declined to adopt "the Judge's interpretation of the parties'
agreement." Id. at 785. A fourth Authority case cited by Respondent, at
page 6 of its Reply to General Counsel's Post-Hearing Brief, U.S. Army
Reserve Components Personnel and Administration Center, St. Louis,
Missouri, 20 FLRA 117 (1985) involved some "minor in nature" changes
caused by a relocation of unit employees into offices on the same floor
of the same building. Id. at 120. As to these "minor in nature"
changes, none of which had a potential for endangering the health and
safety of the relocated employees, the Authority did state that they are
"more applicable to resolution through the negotiated grievance
procedure." Ibid. The decision does not reveal what provisions there
were in the parties' collective bargaining agreement which related to
office relocations. Thus, its applicability to the case at issue here
is uncertain, at best.
III. Respondent does not contest the record evidence that it gave no
formal notice to the Union or an opportunity to bargain over the
installation of the new degreaser. Clearly, it did not. See, e.g.,
Office of the Assistant Secretary of Defense for Public Affairs, 19 FLRA
1103, 1106 (1985) to the effect that a union's "designated agent" must
be given notice concerning changes in working conditions. See fn. 7,
id. at 1106.
Respondent does argue that employees in the Heat Treat/Plasma Spray
Unit were aware of its decision to replace the old degreaser well over
six months prior to the charge, which was filed on October 3, 1984, and
therefore, that the charge was untimely filed. /8/ See pages 15-16 of
Respondent's Post-Hearing Brief and page 7 of its Reply to General
Counsel's Post-Hearing Brief. Knowledge to employees does not equate to
knowledge of the Union's designated agents, however, when changes in
working conditions are made. And, in any event, employees were not sure
that the new degreaser was going to be installed until late August or
early Fall of 1984. Thus, the filing of the charge on October 3 was
timely, even under Respondent's argument.
Respondent cites only one Authority case in support of its argument,
United States Department of the Treasury, Internal Revenue Service, and
United States Department of the Treasury, Internal Revenue Service,
Houston District, 20 FLRA 51 (1985), in which the agency had announced
its policy prohibiting the wearing of jeans at open meetings on November
15, 1982, to which union representatives had been invited, and the union
asserted that it first learned of the policy on May 5, 1983. The policy
was implemented on November 15, 1982, and consistently followed. Prior
to the November 15 date, management met with the union regarding the
contemplated dress code. Id. at 67. The Authority ruled that, under 5
U.S.C. 7118(A), the charge should have been filed within six six months
of the November 15, 1982, meetings. Instead, it was filed on July 5,
1983. /9/ The facts of the instant case make it distinguishable from
this cited case.
IV. As a remedy, the General Counsel seeks an order that Respondent
"be required to post a notice, be ordered to negotiate the procedures to
be observed in implementing the degreaser and impact upon adversely
affected employees at the request of the Union, and remove the Cooper
vapor degreaser that is currently located in the Plasma Spray/Heat Treat
Unit." See G.C. Memo. 31.
The posting of a notice and an order to bargain are appropriate and
will be recommended. An order removing the degreaser presents a more
difficult question, to be resolved in the light of criteria established
in Federal Correctional Institution, 8 FLRA 604, 606 (1982). Balancing
the nature and circumstances of a particular violation against the
degree of disruption in government that would be caused by a status quo
ante remedy, in the Federal Correctional Institution case, the Authority
annunciated several factors to consider in determining whether a status
quo ante remedy would be appropriate. These factors include whether
notice was given to the union by the agency concerning the change;
whether the union requested impact and implementatioh bargaining; the
willfulness of the agency's conduct in failing to discharge its
bargaining obligations under the Statute; the nature and extent of the
impact experienced by adversely affected employees; and whether, and to
what degree, a status quo ante remedy would disrupt or impair the
efficiency and effectiveness of the agency's operations.
In the instant case, notice was never provided to the Union. The
Union requested bargaining, on September 20, 1984, shortly after
becoming auare that "many new changes" were expected in the Heat
Treat/Plasma Spray Unit and that the installation of the new degreaser
might be one. See Tr. 39 and 56 and G.C. Exh. 2. The conduct of the
agency was willful; it apparently never responded to the Union's
request to bargain and takes the position that it had no obligation to
bargain. The impact upon adversely affected employees can potentially
be severe, in terms of short and long-range health problems.
The really troublesome issue is whether removing the degreaser would
disrupt or impair the efficiency and effectiveness of agency operations.
Since the agency has an entire unit devoted to degreasing operations
and went for almost two years without one in the unit here involved, it
would be difficult to conclude that removing the degreaser would
interfere too seriously with operations. At page 9 of its Post Hearing
Brief, the Charging Party urges "stopping use of the degreaser," not
outright removal. At the hearing, Counsel for the General Counsel asked
only that the Cooper degreaser "be shut down." (Tr. 223) This seems to
be a more practical solution; and it will be recommended, along with an
order that the solvent be removed from the degreaser while it stands
idle, pending the outcome of negotiations. This should adequately
protect the health of employees whose duties bring them into the
vicinity of the degreaser.
Having found that Respondent violated 5 U.S.C. 7116(a)(1) and (5), as
alleged, it is recommended that the Authority issue the following Order:
ORDER
Pursuant to 5 C.F.R. 2423.29 and 5 U.S.C. 7118, the Authority hereby
orders that Respondent shall:
1. Cease and desist from:
(a) Changing working conditions involving the installation of a
vapor degreaser in the Heat Treat/Plasma Spray Unit in Building
3001 at Tinker Air Force Base, without prior notice to and, upon
request, bargaining with the employees' exclusive representative,
the American Federation of Government Employees, AFL-CIO, Local
916, concerning procedures to be observed in implementing such
change and appropriate arrangements for adversely affected
employees.
(b) From using the vapor degreaser in the Heat Treat/Plasma
Spray Unit in Building 3001 at Tinker Air Force Base, pending the
outcome of any requested negotiations over its installation with
Local 916.
(c) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Remove the solvent from the degreaser in the Heat
Treat/Plasma Spray Unit in Building 3001 at Tinker Air Force Base
pending the outcome of any requested negotiations over its
installation.
(b) Upon request, meet and bargain with Local 916, to the
extent consonant with law and regulations, concerning the
installation of the vapor degreaser in the Heat Treat/Plasma Spray
Unit in Building 3001 at Tinker Air Force Base.
(c) Post in the Heat Treat/Plasma Spray Unit in Building 3001,
at Tinker Air Force Base, 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 Tinker Air Force Base, or his or her designee, and
shall be posted and maintained for 60 consecutive days thereafter
in conspicuous places, including all bulletin boards and other
places where notices are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered,
defaced or covered by any other material.
(d) Notify the Federal Labor Relations Authority in writing
within 30 days from the date of this order as to what steps have
been taken to comply herewith.
/s/ LOUIS SCALZO
Administrative Law Judge
Dated: April 23, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Chairman Calhoun concurs in part and dissents in part for the
reasons stated in his separate opinion.
(2) Handbook of Vapor Degreasing by the American Society for Testing
and Materials (used by the Respondent as an Operator's Manual);
Recognition of Health Hazards in Industry by William A. Burgess; and
Modern Vapor Degreasing and Dow Chlorinated Solvents by Dow Chemical
Company.
(3) "G.C. Exh." refers to the exhibits of the General Counsel. Other
abbreviations to be used herein are as follows. "R. Exh." refers to the
exhibits of Respondent. "Tr." refers to the transcript.
The complaint alleges violations by the United States Department of
Defense, Department of the Air Force, Air Force Logistics Command,
Oklahoma City Air Logistics Center, and Tinker Air Force Base, Oklahoma
and refers to them, jointly, as "Respondent." They are so referenced in
this decision. The complaint also names the Air Force Logistics
Command, Oklahoma City Air Logistics Center, and Tinker Air Force Base,
separately.
(4) The PEL stated in milligrams per cubic meter is 335 (Tr. 234).
(5) Three witnesses who work in the Heat Treat/Plasma Spray Unit
testified as to the fumes. (Tr. 57, 106, 242) I find the variations in
their testimony to be based upon variations in their olfactory
perceptions.
(6) Respondent relies on tests which show that the new degreaser,
now, emits less fumes than the old one or others available at the
facility. Even assuming, arguendo, the reliability of these tests, the
fact remains that employees in the Heat Treat/Plasma Spray Unit were
initially subjected to fumes which are indicative of a hazardous working
condition.
(7) The General Counsel proved that negotiations took place over the
introduction of a salt bath furnace in an area adjacent to the Heat
Treat/Plasma Spray Unit. (Tr. 125-126) It was not established that this
was a case of one piece of machinery replacing another, as here.
(8) 5 U.S.C. 7118(a) provides, in pertinent part, that
(4)(A) Except as provided in subparagraph (B) of this
paragraph, no complaint shall be issued based on any alleged
unfair labor practice which occurred more than 6 months before the
filing of the charge with the Authority.
(B) If the General Counsel determines that the person filing
any charge was prevented from filing the charge during the 6-month
period referred to in subparagraph (A) of this paragraph by reason
of --
(i) any failure of the agency or labor organization against
which the charge is made to perform a duty owed to the person, or
(ii) any concealment which prevented discovery of the alleged
unfair labor practice during the 6-month period,
the General Counsel may issue a complaint based on the charge
if the charge was filed during the 6-month period beginning on the
day of the discovery by the person of the alleged unfair labor
practice.
(9) Respondent also relies on a case arising under the National Labor
Relations Act, U.S. Postal Service, 271 NLRB No. 61, 116 LRRM 1417
(1984), which held that the period to file an unfair labor practice
began to run when the employee was informed of an adverse action to be
taken against her, and that the employee's appeal to the Merit Systems
Protection Board did not toll the time to file. This is quite a
different situation from the one here involved.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT change working conditions involving the installation of a
vapor degreaser in the Heat Treat/Plasma Spray Unit in Building 3001
without prior notice to and, upon request, bargaining with the
employees' exclusive representative, American Federation of Government
Employees, AFL-CIO, Local 916 concerning the procedures to be observed
in implementing any proposed changes and appropriate arrangements for
adversely affected employees.
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 remove the solvent from the vapor degreaser in the Heat
Treat/Plasma Spray Unit in Building 3001 and refrain from using the
degreaser, pending the outcome of any requested negotiations with Local
916 over its installation.
WE WILL, upon request, meet and bargain with Local 916 to the extent
consonant with law and regulations, concerning the installation of the
vapor degreaser in the Heat Treat/Plasma Spray Unit in Building 3001.
(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 6,
whose address is: Federal Office Building, 525 Griffin Street, Suite
926, Dallas, TX 75202, and whose telephone number is: (214) 767-4996.