[ v21 p195 ]
21:0195(30)CA
The decision of the Authority follows:
21 FLRA No. 30
DEPARTMENT OF THE NAVY AND
DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
(PORTSMOUTH, NEW HAMPSHIRE)
Respondents
and Case Nos. 1-CA-30303
1-CA-30305
1-CA-30306
RICHARD PEARL
and
VICTOR PORRO
and
PORTSMOUTH FEDERAL EMPLOYEES METAL
TRADES COUNCIL, AFL-CIO
Charging Parties
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the
Respondents and the General Counsel. The Portsmouth Federal Employees
Metal Trades Council, AFL-CIO (Union) and the General Counsel filed
oppositions to the Respondents' exceptions. The consolidated complaint
alleged that the Department of the Navy and the Portsmouth Naval
Shipyard, Portsmouth, New Hampshire (Shipyard) violated section
7116(a)(1), (5) and (8) of the Statute by refusing to bargain in good
faith with the Union and by failing and refusing to comply with the
provisions of section 7122(b) of the Statute based upon noncompliance
with an arbitration award. /1/
II. Background
On July 28, 1983, Arbitrator John P. McCrory issued an award
sustaining a grievance filed by the Union based on an asserted violation
of the safety provisions of the collective bargaining agreement in
effect between the Shipyard and the Union. As part of the award, the
arbitrator outlined several corrective measures the Shipyard could
employ to practically eliminate the potential for illness due to
asbestos exposure by unit employees performing various functions on
submarines. The arbitrator further directed the establishment of a
Joint Asbestos Safety Committee within 30 days of the award. With
respect to the Union's claim for the payment of Environmental
Differential Pay (EDP) to unit employees exposed to asbestos, the
arbitrator ordered such payment to the extent that the Shipyard failed
to practically eliminate unnecessary exposure or unnecessary potential
exposure to airborne asbestos. Finally, the arbitrator retained
jurisdiction of the matter for a period of 90 days for the purpose of
resolving any issues arising with respect to the award. Requests for
clarification of the award were filed by the Respondents and the Union.
Additionally, the Department of the Navy filed exceptions to the award
pursuant to section 7122 of the Statute, which exceptions were found by
the Authority to be untimely filed. Portsmouth Naval Shipyard and
Federal Employees Metal Trades Council, AFL-CIO, 15 FLRA 181 (1984).
III. Judge's Decision
The Judge found that the Respondents failed to comply with the
arbitration award and thus violated section 7116(a)(1) and (8) of the
Statute. In reaching this result, the Judge looked to the language and
intent of the award in determining that the Respondents had not taken
sufficient measures to comply with it. The Judge further found it
unnecessary to decide whether the Respondents' conduct also violated
section 7116(a)(5) of the Statute. To remedy the unfair labor practice,
the Judge ordered the Respondents to fully comply with the arbitration
award and to make available to the Authority or its agents, upon
request, copies of all documents necessary to determine the amount of
backpay to be awarded.
IV. Positions of the Parties
The Respondent raised a number of arguments which amount to
disagreement with the Judge's findings and conclusions. The findings
and conclusions of the Judge are consistent with established precedent
and thus the Authority finds no basis for reversing them. However, we
do modify the Judge's recommended Order for the reasons indicated below,
and also address an exception to the Judge's Decision filed by the
General Counsel.
V. Analysis
It is a well-established principle that a failure to comply with an
arbitration award to which no timely exceptions have been filed pursuant
to section 7122(a) of the Statute constitutes a violation of section
7116(a)(1) and (8) of the Statute. /2/ See United States Air Force, Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA
151 (1984), aff'd sub nom. Department of the Air Force, et al. v.
Federal Labor Relations Authority, 775 F.2d 727 (6th Cir., 1985). See
also Department of Defense, Department of the Navy, United States Marine
Corps, United States Marine Corps Air Station, Cherry Point, North
Carolina, 15 FLRA 686 (1984); U.S. Department of Justice and Department
of Justice, Bureau of Prisons (Washington, D.C.) and Federal
Correctional Institution (Danbury, Connecticut), 20 FLRA No. 5 (1985),
petition for review filed, No. 85-4167 (2nd Cir. Nov. 5, 1985); and
U.S. Army Health Clinic, Fort Ritchie, Maryland, 9 FLRA 935 (1982). In
this case, as previously noted, the Authority found that the exceptions
filed by the Department of the Navy were not timely filed. /3/
Accordingly, the award became final and binding pursuant to the
provisions of section 7122(b) of the Statute and there was an obligation
on the part of agency management to take the actions required by the
award, which it failed to do.
VI. Remedy
To remedy the unfair labor practice conduct, the Judge ordered the
Respondents to fully comply with the arbitration award. As to that
portion of the award directing the prospective payment of EDP, the Judge
found that, but for the Respondents' failure to implement the award,
employees would have received such payment for those periods of time
during which substandard asbestos conditions were maintained on the
various submarines involved. Because, in the Judge's view, the record
did not clearly establish all periods of the Respondents' liability for
payment of EDP, the Judge ordered the Respondents to make available to
the Authority or its agents, upon request, those records and documents
necessary to analyze the amount of backpay to be awarded in whatever
manner is deemed appropriate for such determination. In the Authority's
view, an order which will require the Respondents to fully comply with
the arbitration award of July 28, 1983, /4/ and pay EDP to the affected
employees in accordance with the regulatory requirements pertaining to
such payment contained in Federal Personnel Manual Supplement 532-1,
Appendix J, as referenced in both the parties' collective bargaining
agreement and the arbitrator's award, /5/ will effectuate the purposes
and policies of the Statute. The determination as to which employees
are eligible for such payment and for what periods of time is
appropriately resolved through compliance procedures. See U.S. Army,
U.S. Army Materiel Development and Readiness Command, Warren, Michigan,
8 FLRA 806, n. at 807 (1982).
VII. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision and the entire record in this case, adopts the
Judge's findings and conclusions, and, with the modification noted above
concerning the manner in which Environmental Differential Pay will be
awarded to affected employees, adopts the Judge's recommended Order.
Therefore, we find that the Respondents' failure to comply with the
arbitration award violated section 7116(a)(1) and (8) of the Statute.
/6/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
ordered that the Department of the Navy and the Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, shall:
1. Cease and desist from:
(a) Failing and refusing to fully comply with Arbitrator John P.
McCrory's July 28, 1983 arbitration award.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Fully comply with Arbitrator John P. McCrory's July 28, 1983
arbitration award, including the payment of environmental differential
pay to affected employees in accordance with law and regulation.
(b) Pursuant to section 2423.30 of the Authority's Naval Shipyard,
Portsmouth, New Hampshire, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Commander, or a designee, and
shall be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to ensure that such Notices are not altered, defaced, or covered
by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region I, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with it.
Issued, Washington, D.C., March 31, 1986
(s)---
Jerry L. Calhoun, Chairman
(s)---
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The consolidated complaint was amended at the hearing to include
the Department of the Navy as a named respondent.
/2/ Section 7122 of the Statute provides as follows:
7122. Exceptions to arbitral awards
(a) Either party to arbitration under this chapter may file with the
Authority an exception to any arbitrator's award pursuant to the
arbitration (other than an award relating to a matter described in
section 7121(f) of this title). If upon review the Authority finds that
the award is deficient--
(1) because it is contrary to any law, rule, or regulation; or
(2) on other grounds similar to those applied by Federal courts in
private sector labor-management relations; the Authority may take such
action and make such recommendations concerning the award as it
considers necessary, consistent with applicable laws, rules, or
regulations.
(b) If no exception to an arbitrator's award is filed under
subsection (a) of this section during the 30-day period beginning on the
date the award is served on the party, the award shall be final and
binding. An agency shall take the actions required by an arbitrator's
final award. The award may include the payment of backpay (as provided
in section 5596 of this title).
/3/ The Authority also found in Portsmouth Naval Shipyard and Federal
Employees Metal Trades Council, AFL-CIO, 15 FLRA 181 (1984), that
retention of jurisdiction by an arbitrator, as here, does not serve to
extend the statutory time limit for filing exceptions to an award under
section 7122 of the Statute or render such award interlocutory.
/4/ With respect to the General Counsel's exception to the Judge's
failure to specifically pass on the Respondents' asserted noncompliance
with that portion of the award directing the establishment of a Joint
Asbestos Safety Committee, the Authority finds that the Judge's finding
of a failure to comply with the award encompasses the failure to
establish such a committee. Further, the Judge's order to fully comply
with the award, which is here adopted, extends to the establishment of
such a committee.
/5/ Federal Personnel Manual Supplement 532-1 governing the Federal
Wage System provides in Appendix J a schedule of environmental
differentials to be paid for exposure to various degrees of hazards,
physical hardships and working conditions of an unusual nature. Among
them is Category 16 relating to asbestos exposure which provides an 8%
differential for the following: "Working in an area where airborne
concentrations of asbest fibers may expose employees to potential
illness or injury and protective devices or safety measures have not
practically eliminated the potential for such personal illness or
injury."
/6/ The Authority finds, as did the Judge, that in view of the result
reached above, it is unnecessary to decide whether the Respondents'
conduct also violated section 7116(a)(5) of the Statute.
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND
IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5
OF
THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY
NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT fail and refuse to comply with Arbitrator John P.
McCrory's July 28, 1983 arbitration award.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL fully comply with Arbitrator John P. McCrory's July 28, 1983
arbitration award, including the payment of environmental differential
pay to affected unit employees in accordance with law and regulation.
---
(Activity)
Dated:---
By:---
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Federal Labor Relations Authority, Region I, whose address is:
441 Stuart Street, 9th Floor, Boston, Massachusetts 02116, and whose
telephone number is: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF THE NAVY AND
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
PORTSMOUTH, NEW HAMPSHIRE
Respondents
and
RICHARD PEARL
and
VICTOR PORRO
and
PORTSMOUTH FEDERAL EMPLOYEES METAL
TRADES COUNCIL, AFL-CIO
Charging Parties
Peter F. Dow, Esq.
Richard D. Zaiger, Esq.
For the General Counsel
Steven Sharfstein, Esq.
For the Respondent
Sally M. Armstrong, Esq.
For the Charging Party
Before: ELI NASH, JR. Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 82 Stat. 1191, 5 U.S.C. 7101 et seq. It was
instituted by the issuance of a consolidated complaint on March 30,
1984. The complaint alleges that the Department of the Navy, Portsmouth
Naval Shipyard, Portsmouth, New Hampshire, hereinafter called the
"shipyard," has violated and continues to violate section 7116(a)(1),
(5) and (8) of the Statute by failing to comply with an arbitration
award issued on July 25, 1983 and by refusing to bargain in good faith
with the Portsmouth Federal Employees Metal Trades Council, AFL-CIO,
hereinafter called the "union." In its answer the shipyard denied the
commission of any unfair labor practice. By notice dated August 7,
1984, the General Counsel notified the parties of its intent to move to
amend the complaint at the hearing to include the Department of the Navy
as a party respondent. /1/
A hearing was held in this matter on August 15, 16 and 17, 1984, in
Portsmouth, New Hampshire. All parties were represented and afforded
full opportunity to adduce evidence, examine aid cross-examine
witnesses, and argue orally. Briefs were filed by all parties.
Upon consideration of the entire record, including my observation of
the witnesses and their demeanor, I make the following findings of fact,
conclusions of law, and recommended order.
Findings of Fact
At all times material herein, respondents have been and are now
agencies within the meaning of section 7103(i)(3) of the Statute. In
addition, the shipyard and the union were parties to a collective
bargaining agreement at all material times herein.
In October 1981, the union filed a grievance on behalf of certain
employees performing overhaul operations on submarines, alleging unsafe
working conditions due to asbestos exposure. As a remedy the union
sought replacement of all asbestos and asbestos products on board the
submarines and payment of environmental differential pay (EDP) in
accordance with Article 20 of the parties' collective bargaining
agreement /2/ and Appendix J of Supplement 532-1 of the Federal
Personnel Manual. /3/
The above grievance concerned conditions existing after the "ripout"
phase of the overhaul, that is, the extensive removal of equipment to be
refurbished. During this phase, the submarine is also stripped of
asbestos insulation and only Shop 64 employees, who wear protective
equipment, including respirators, are allowed inside. After the ripout
phase, asbestos exposure may result from damage to unremoved asbestos
lagging and other asbestos materials, caused by contact with equipment,
tools, and chains used to move equipment. In addition, employees crawl
and stand on asbestos covered pipes in the course of their work.
Asbestos dust also remains in inaccessible areas and may become airborne
due to disturbances such as air turbulence, and movement by employees.
The ripout phase is followed by reinstallation, and testing and
finishing phases.
THE ARBITRATOR'S DECISION AND AWARD:
The matter was submitted to arbitration at which evidence was
adduced, argument presented, and an on-site inspection made by the
arbitrator. On July 25, 1953, Arbitrator John P. McCrory sustained the
grievance, finding that the shipyard had not made every reasonable
effort to provide and maintain safe working conditions and, thus, was in
violation of Article 29, Section 1 of the agreement. /4/ He found that
asbestos dust, asbestos particles, broken lagging with exposed asbestos
and similar potential sources of airborne asbestos were "routinely" in
work areas aboard submarines. The shipyard was ordered to take
appropriate corrective action with respect to all overhauls beginning
after receipt of the award and "to the extent practicable" for overhauls
already in progress.
Arbitrator McCrory rejected the shipyard's contention that there is a
safe level of exposure to asbestos. He stated:
Establishing exposure "thresholds" on the assumption that there is
a "safe" level of exposure demonstrates a philosophy which has
caused employees to be victimized ... The time has come to reverse
the presumption and give the benefit of any doubts regarding the
toxic nature of airborne asbestos to employees and their families.
Similarly, the arbitrator refused to base payment of environmental
differential pay on the Occupational Safety and Health Administration
(OSHA) 2 fibers/cc standard. In November 1977, Arbitrator Robert L.
Stutz issued an award in a dispute between the same parties relating to
environmental pay for exposure to airborne asbestos fibers. Arbitrator
Stutz based payment on the OSHA standard. Arbitrator McCrory did not
consider himself bound by the Stutz award.
After finding the shipyard's safety precautions to be deficient, the
arbitrator made the following recommendations:
1) Asbestos lagging which is not removed could be clearly marked so
that employees would be aware of a potential hazard. Marking would also
make surveillance efforts more efficient by reducing the need to test
dust and particles each time it is suspected that asbestos is present.
2) More asbestos lagging could be removed during the ripout phase of
an overhaul. The Agency has not explained why lagging which is
sufficiently exposed to be damaged by employees working on an overhaul
could not be removed, thus removing a potential source of airborne
asbestos.
3) A more durable and effective protective covering could be placed
on unremoved asbestos lagging. The tape which is now used to seal
lagging tends to peal off. The use of tough protective sleeves to cover
and seal asbestos lagging which cannot be removed from work areas would
reduce the incidence of damage and spills.
4) More frequent surveillances could be made of areas where the
potential asbestos exposure is high. In view of the fact that the
lagging is routinely damaged, weekly inspections may not be adequate. A
system for marking asbestos would be helpful in identifying areas which
require the most attention. The high percentage of cases in which
corrective action was required after weekly surveillances suggest that
exposure potential could be reduced by locating problems sooner.
Finally, air monitoring techniques which are in general use leave
something to be desired. Attempts should be made to develop and use
procedures which can reliably detect levels of asbestos concentration
below .1 fibers/ cc and more attention should be given to the possible
harmful effects of low levels of exposure. /5/
Addressing the environmental differential pay issue, the arbitrator
construed the Federal Personnel Manual requirement to "practically
eliminate(d) the potential for ... personal illness or injury." He noted
that employees who work in the confined interiors of submarines which
contain asbestos are exposed to a concentration of airborne asbestos
greater than that present in the outside environment. He concluded:
This exposure can not practically be eliminated, except with the
use of respirators; which both parties reject as an option in
this case. 1 am not fully satisfied that some type of respirator
program would not be helpful. The circumstances and conditions
described in items 1 through 4 on page 23 above unnecessarily
increase the potential for exposure to airborne asbestos, over
that which is inherent due to the general presence of asbestos.
They are a potential source of exposure which could be controlled
by measures which would not place an unreasonable burden on the
Agency. I do not propose an impossible burden of cleanliness, but
rather measures designed to substantially reduce, but not totally
eliminate, risk. As stated by Doctor Selikoff: It would be hoped
that no avoidable asbestos exposure will occur in any
circumstances . . . For the foregoing reasons 1 find that the
Agency has not consistently employed safety measures which would
practically eliminate the potential for illness due to exposure to
asbestos fibers.
Arbitrator McCrory did not order back pay because the shipyard had
followed the less rigorous OSHA standard in accordance with the Stutz
award. He described his new standard as focusing on the "efforts made
by the Agency to eliminate unnecessary exposure, or unnecessary
potential exposure, to airborne asbestos, without reference to an
arbitrary threshold." Last, Arbitrator McCrory ordered the establishment
of a Joint Asbestos Safety Committee within 30 days of the award:
Unless otherwise agreed, the Committee shall consist of six
members, three selected by each party. The parties may designate
a neutral member, or members, if they so choose. It is
anticipated that the Committee will meet regularly and
conscientiously pursue its assigned task. Its deliberations may
generate suggestions which can be implemented as part of the
Shipyard's safety program or provide the basis for collective
bargaining proposals. The Committee shall remain in existence at
least until the termination of the current collective bargaining
agreement.
REQUESTS FOR CLARIFICATION AND EXCEPTIONS TO THE AWARD:
Requests for clarification were filed by the union on September 14,
1983 and by the shipyard on August 26, and September 23, 1983. On
October 21, 1983, the Department of the Navy filed exceptions to the
award, stating: "Under the authority of 5 U.S.C. 7122(b), the agency
will not implement the arbitrator's final award until the exceptions to
it discussed herein are ultimately resolved."
On October 25, 1983, Arbitrator McCrory addressed the shipyard's
requests for clarification. In part, he stated that the Department of
the Navy's labelling system for unremoved asbestos is ineffective and
does not comply with the award. The Navy uses signs instructing
employees to treat all insulation as asbestos unless marked otherwise.
Additionally, he reiterated that no specific asbestos level will trigger
environmental pay: "It is more compatible with the wording of Appendix
J to focus on the unnecessary sources, or unnecessary potential sources,
of exposure to airborne asbestos."
On October 20, 1983, Arbitrator McCrory responded to the union's
request for clarification. The union had posted, in part, the following
interpretations of the award:
(1) All employees assigned to work on boats without respirators
are entitled to Category 16, Environmental Pay, from July 28, 1953.
(2) Category 16, Environmental Pay, will continue to be paid
employees assigned to work on the boats without respirators until such
time that the hazard no longer exists or a testing method is developed
which can, shift by shift and hour by hour, clearly indicate the
atmosphere in the boats as asbestos fiber free as the atmosphere outside
the Shipyard.
The clarification stated:
The statements in items (1) and (2) are not correct. The intent
of the Award is that Category 16 environmental pay should be paid
when circumstances or conditions which increase the potential for
exposure to airborne asbestos, over that which is inherent due to
the general presence of asbestos in submarines, are not corrected.
The standard in Appendix J ... does not require the total
elimination of work place exposure to airborne asbestos. It does,
however, specify a low threshold for environmental pay
eligibility--when the potential for illness or injury is not
"practically eliminated." This, 1 concluded, requires that
employees receive environmental pay if they are exposed to
conditions like those described on page 23 of the Award. The
minimal increased exposure to airborne asbestos (over
concentrations found in the general environment) which is caused
solely by working in submarines which contain asbestos materials
does not trigger entitlement to environmental pay. It is when
this minimal level of exposure is jeopardized by circumstances or
conditions which have the potential to increase actual exposure
and the risk of illness that Category 16 environmental pay is
required. The use of a respirator program, which might obviate
other precautionary measures discussed in the Award, was not used
as a determining factor because that option was rejected as
impractical by both parties.
On July 27, 1984, the Authority found the exceptions filed by the
Department of the Navy to be untimely. /6/
COMPLIANCE WITH THE AWARD:
A. REMOVAL OF ASBESTOS
1) 606 Submarine
Prior to the McCrory award, workers removed only as much asbestos
insulation as necessary to facilitate the equipment overhaul. Between
20 and 40% of the asbestos was removed. Joseph Belmont, production
superintendent, testified that the 606 submarine, which had just entered
the shipyard at the time of the award, was stripped of nearly 100% of
its accessible asbestos located in the engineering spaces. According to
Belmont, respondents declined to remove some of the accessible asbestos
where the likelihood of damage was small. The engineering spaces
include the engine room, the auxiliary machinery (AMR 2) and the
auxiliary machine spaces (AMS), and contain the vast majority of
asbestos found on a ship.
Further, Belmont stated that accessible asbestos remains in other
areas of a ship, such as the reactor compartment, and forward spaces,
which contain mainly cold system asbestos. Department of Navy policy
strictly controls work done in the reactor compartment, in order to
minimize exposure to radiation. The policy forbids all unnecessary work
in that area.
Cold system asbestos insulation is less susceptible to damage than
hot system insulation. Hot systems are designed to retain heat and
prevent electrical equipment from overheating. The asbestos lagging
ranges from 1 1/2 to 5 inches thick and is covered with asbestos cloth.
Amosite asbestos, the type which most easily becomes airborne, is
sometimes used in these systems.
Cold system insulation prevents condensation in cooling water
systems. Approximately 90% of cold systems designed within the past 20
years use rubber-type, asbestos-free insulation which is covered with
1/32 inch thick asbestos cloth. These materials are then covered with
water base sealer and 8 to 10 coats of paint. Respondents conducted
studies over two years and concluded that the probability of cold system
asbestos becoming airborne is practically nill and that protective
equipment is not even necessary for its removal.
Leo Mazzuchi, general foreman insulator of Shop 64, testified that
respondents removed 95% of the accessible hot system insulation in the
engine room and 100% in the AMS. /7/ Thirty to 40% of the total
asbestos content remains in the engine room, however, and 40 to 50%
remains in the AMS, which contains more inaccessible areas. According
to Belmont, about 10% of the total asbestos in a ship is inaccessible.
In October 1983, the 606 submarine was the first ship to undergo a
second ripout, in order to eliminate asbestos uncovered by equipment
removal during the first ripout in July 1983. Respondents removed
approximately 200 bags of insulation during the second ripout and
approximately 1600 bags in total. The previous record for removal was
646 bags.
Joseph Mason, a labor-relations specialist, Paul Clark, former
director of the shipyard's Office of Safety and Health, and Belmont
conceded that damage continues to occur on the submarines. Union
witnesses claim that damage occurs on a daily or weekly basis.
Steve Perry, chairman of the union Safety and Health Committee,
examined the 606 boat in August or September 1983 and counted more than
18 areas of torn lagging and 25 exposed ends on asbestos covered pipes.
At least five of the areas were pipes running directly across the
footpath, and employees were kicking the loose asbestos. Perry
testified: "We saw other areas where 1 could reach down and grab a
whole handful of asbestos -- chunks of asbestos fibers ..." Perry also
saw a large piece of equipment which had been removed from the 606 boat
placed on the dockside for a week and a half in September or October
1983. The asbestos lagging around the equipment contained large holes
and tears, apparently caused by cables used to transport it.
According to Belmont, Perry praised the condition of the 606 boat in
November 1983. He allegedly stated that the removal was "the best he
could imagine happening" and that "if all submarines in Portsmouth or
any place they were ripped out were in that condition not only would we
not have a problem with asbestos or exposure to employees but we would
exceed the requirements of the McCrory award." Perry testified that
Belmont asked him about the 606 boat and he responded that he was "happy
that they had taken out a little more asbestos but ... appalled at the
condition ..." Based on my observation of the witnesses' demeanor, 1
credit Perry.
Dennis Frost, union chief steward, toured the boat in August 1984 and
observed 15 to 20 problem areas, including several exposed ends, cracked
and damaged lagging, and taped ends. /8/ He estimated that up to 100
feet of accessible, unremoved asbestos remained on the ship.
2) 631 Submarine
The 631 submarine entered the shipyard in January 1984. Mason
testified that the asbestos removal from the 606 boat was used as a
standard for subsequent overhauls. According to Mazzuchi, respondents
removed from the 631 boat 95% of accessible hot system insulation,
excluding very low traffic areas. In addition, respondents removed cold
system insulation that was marked or in high traffic areas. About 1800
bags were removed. The configuration of the 631 boat did not
necessitate a second ripout.
Perry toured the 631 boat on August 14, 1984 with Frost, Froehling
and Joseph Luvisi, former union chief steward. Perry observed 32
exposed ends, including one end within a foot of a worker's head, loose
fibers adhering to the walls of the lithium bromide plant within inches
of workers' faces, large chunks of almost pure asbestos on top of the
lithium bromide plant, asbestos materials on the floor by the plant,
employees sitting and standing on exposed asbestos, employees stepping
on unprotected lagging, and a crushed pipe at foot level surrounded by
white dust and powder.
Luvisi reported insulation that had been walked on or smashed during
the ripout, large chunks of asbestos on the lithium bromide plant,
asbestos fibers clinging to the side of the plant, and exposed ends.
/9/ Froehling described asbestos "all over the engine room, loose
lagging, ripped ends, debris on the deck, et cetra." Workers were
sitting and standing on the lagging and loose material and holding their
hands on the pipes. He estimated that a couple hundred feet of
protective sleeving would be necessary to cover the accessible,
unremoved lagging.
After its tour of the 631 boat, the union called in the shipyard's
Asbestos Recovery Control (ARC) Team, an emergency squad formed in
December 1983 to repair damaged asbestos and survey the ships. Thirteen
out of 15 samples taken by the team tested positive. The General
Counsel entered into evidence 12 of the positive test results. All of
the tests involved areas accessible to employees; though, in general,
they were low traffic areas, such as crawl spaces.
The lithium bromide plant, from which four positive samples were
taken, is 10 to 12 feet tall and located 10 feet from the middle
passageway, a high traffic area. Lawrence Cooper, union president,
testified that heavy machinery is often moved during the overhaul in the
vicinity of the plant, causing it damage. Mazzuchi, who weighs 230
pounds, can get into the inboard area around the plant. Perry testified
that employees using a nearby ladder hold onto pieces of the plant as
they ascend and descend and brush their clothes against the plant in
locations where the samples were taken.
Steve Herman, former chief steward, who worked on the 631 boat since
February 1984, testified at the hearing that accessible asbestos lagging
remains everywhere on the boat.
The General Counsel introduced into evidence random entries from the
shipyard's spill log, dating from January to March 1984.
3) The 690 Submarine
The 690 is a new class submarine which is largely asbestos-free.
Respondents tested the 690 boat, which arrived in June 1984, and found 6
or 7 samples containing asbestos, out of 1,000. All the asbestos in the
non-nuclear areas was removed; any remaining asbestos is very minute.
4) The 605 and 678 Submarines
The 605 submarine has been in the shipyard since October 1982, and
the 678 submarine since March 1983. The ripouts were completed before
issuance of the McCrory award. The 605 boat began its testing phase on
July 20, 1983 and the 678 boat on September 28, 1983. Sixty per cent
fewer employees are on the ship during this phase as compared to earlier
phases. The risk of damage to asbestos is greatest during the ripout
phase.
Frost was on the 605 boat in August 1984 and found "various open ends
of lagging, a few tears in some cloth, several areas crushed and
damaged, a couple of holes, like a water injection type hole ..." He
opined that relative to the other submarines in the shipyard, the 605
boat contains the most asbestos. According to union witnesses, at least
hundreds of feet of accessible asbestos remain.
B. PROTECTIVE COVERINGS
By at least August 23, 1983, respondents began to use the mud-cloth
method of repairing damage to insulation and sealing exposed ends. The
exposed area is covered with cement and fiberglass cloth forming a
"cap," and sealed with a water-based adhesive. Previously, respondents
used cloth tape, which sometimes curled or lost its adhesiveness when
exposed to heat, steam or paint. Further, asbestos material adhered to
the tape when it was removed. The cement is hot and fuses into the
insulation. Mazzuchi testified that the mud-cloth method "outweighs the
tape a hundred times." A worker climbing on a pipe may dislodge the
"cap," however.
Respondents' witnesses testified that protective coverings, such as
sheet metal and plastic toboggans, have been installed on the submarines
to protect unremoved asbestos insulation, particularly in the reactor
compartments. Union witnesses testified that they have not seen
protective coverings on the 606 boat, the 631 boat, nor the 678 boat.
According to Frost and Luvisi, the 605 boat contains one piece of
protective sleeving over insulation, approximately 3 or 4 feet long.
C. MARKINGS
1) 606 Submarine
Respondents' witnesses claim that 500 small tags were posted on
unremoved asbestos in the 606 submarine on or about September 13, 1983.
/10/ Some tags were removed along with asbestos during the October 1983
second ripout. In addition, on or about August 27, 1983, respondents
posted large signs on the ship's four brows, the bridges which cross
from the dry dock wall under the top of the submarine. The brow signs
direct workers to treat all insulation as asbestos unless otherwise
identified. Minutes in evidence of meetings between the shipyard and
the union indicate that the 606 boat had been equipped with brow signs
and small tags by the October 3, 1983 meeting.
Luvisi and Frost conceded that the 606 boat is substantially well
marked. Frost opined that about fifty additional small tags are needed
in the lower level. Perry contended, however, that in October 1983, the
shipyard's agents told him that they had only equipped the boat with
brow signs. I do not credit Perry's statement.
2) 631 Submarine
Respondents' witnesses attested to installation of small tags on the
631 submarine after its ripout phase. Weinert testified, however, that
a week after ordering workers to tag the boat, he saw five tags in the
engine room and none in the AMR-2.
The shipyard ordered two employees to tag the AMR-2 in the 631 boat
on August 14, 1984 and the engineering spaces on August 15, 1984. Perry
and Luvisi saw the employees during their tour of the boat on August 14:
"They had a big box of signs-- they were marking everything as fast as
they could." One of these employees testified that she posted about
fifty small tags at that time. She saw two tags already hanging in the
AMR-2, and "a couple" tags in the engine room that were "dirty like they
had been there for a while."
According to Perry and Luvisi, they saw no small tags in the engine
room on August 14. Herman testified that he had worked on the boat
since February 1984 and saw no small tags until August 16, 1984.
Froehling testified that he saw no small tags in early August 1984 and
estimated that more than one hundred were needed.
3) The 605 and 678 Submarines
According to respondents' witnesses, the 605 and 678 submarines were
tagged in October or November 1983. Priority was given to the 606 boat,
since damage was more likely to occur during the ripout phase. Frost
testified that in August 1984 he saw a few small tags on the side of the
605 boat and none on the lower level. He saw three in the engine room
which, in his opinion, needed several hundred, and none in the AMS,
which needed 50 to 100. Luvisi was on the 605 boat on two occasions
during the six months preceding the hearing and on the 678 boat within
five weeks of the hearing, and claims he saw no small tags on either
boat.
Tags which have been posted may be removed by painters or mechanics
during the course of their work. Most of the painting occurs in between
the reinstallation phase and testing phase, but some painting is
completed after the ripout phase. The 631 submarine had not reached the
testing phase at the time of the hearing. Mechanics are apt to work on
a boat at any time after the ripout phase. Respondents attempt to
replace tags that have been removed.
Some tags are also removed before sea trial during the finishing
phase of the overhaul because they are not authorized by the Department
of the Navy as permanent fixtures. The 605 and 678 boats have been in
the finishing phase since May 1984. Employees represented by the union
work on the submarines after the finishing phases.
Order forms in evidence show that respondents ordered 1,000 small
tags in August 1983, 5,000 in September 1983 and 1,000 in February 1984
In addition, respondents introduced into evidence a memorandum dated
February 21, 1984 in which Weinert ordered Shop 64 to tag the 631 boat.
D. SURVEILLANCE
Prior to the McCrory award, respondents surveyed work areas for
asbestos damage on a weekly basis. Respondents increased surveillance
to a daily basis in the spring of 1983 and to every shift, after
issuance of the McCrory award. In addition, respondents attempted to
involve supervisors and employees in surveillance efforts. Supervisors
are required to make three surveillance tours per shift.
E. ADDITIONAL MEASURES
The Asbestos Recovery Control Team was instituted as part of the "As
Low As Reasonably Achievable" (ALARA) program, the Department of the
Navy program to minimize employee exposure to hazardous materials such
as asbestos. ALARA was applied to asbestos in late 1980 or early 1981.
After the McCrory award, the program became more formalized; for
instance, in September 1983 Code 106, the shipyard Office of Health and
Safety, hired a full-time manager for the asbestos ALARA program who
secured a van for the ARC Team and established a hot-line. Two
employees from Shop 64 are now assigned on a full-time basis to the team
each month. The ARC Team needs seven to twelve minutes to respond to a
call, whereas Code 106 formerly required one hour.
Employee awareness has also improved. In addition to supplying
signs, posters and hard hat stickers advertising the ARC Team,
respondents have presented slide shows and formal lectures. Respondents
have also published several articles on the subject in the shipyard
magazine. The number of reports of potential asbestos problems has
increased by 400%.
Respondents developed a water-injection procedure which reduces the
risk of asbestos particles remaining after a ripout. /11/ Water
combined with a solvent enhancing its wetting properties is injected
into the insulation, thereby reducing airborne levels during the ripout.
In approximately February 1984, respondents introduced glove bags,
vinyl or plastic bags used to isolate areas during "minor ripouts"
conducted while unprotected workers are in the area. Last, respondents
established a spill log to monitor asbestos problems.
F. AIR MONITORING TECHNIQUE
Rather than develop its own procedure for monitoring airborne
asbestos, respondents requested the National Institute of Occupational
Safety and Health (NIOSH) to conduct research and develop a new
technique. Respondents decided that they lacked the credibility to
develop a procedure which would be accepted by the community.
Respondents are in the process of implementing a new method introduced
by NIOSH in February 1984.
G. JOINT ASBESTOS SAFETY COMMITTEE
In approximately March 1983, the union established a Safety and
Health Committee. Joe Diewicki, director of industrial relations,
informed the union that respondent considered the new committee to be
strictly internal union business and would not allow use of official
time for its activities.
After issuance of the McCrory award, the shipyard initiated meetings
with the union and employees to discuss health and safety issues. These
meetings continued until January 1984. Clark told Perry that it was not
the committee mandated by McCrory and that the Department of the Navy
prohibited him from establishing such a committee. Captain J.F. Yurso,
then shipyard commander, and Mason also told union officials that the
shipyard was not allowed to establish the McCrory committee.
Mazzuchi solicited volunteers to participate in the meetings between
the shipyard, the union and employees. Minutes in evidence indicate
that attendance varied generally from five to seven persons. The union
was permitted to select its representatives. There were no limitations
on health and safety issues to be discussed. The shipyard's Office of
Health and Safety had the authority to implement recommendations
submitted by Clark as a result of these deliberations.
Clark testified: "When we established the meetings, we agreed it did
not meet the letter of the McCrory award. I was not allowed to do that
but our full intention was to do exactly what the McCrory award asked
for." He conceded that respondents did not technically comply with the
McCrory award.
On July 23, 1984, the parties entered into a Memorandum of
Understanding establishing the McCrory committee.
H. ENVIRONMENTAL DIFFERENTIAL PAY
Respondents have paid environmental differential pay only in cases of
actual exposure. /12/ For instance, one recipient was struck by a chunk
of asbestos weighing three to four pounds. Another recipient was
installing a flange when asbestos spilled out of the pipe. In both
cases, employees standing nearby also received payment. Some employees'
claims have been denied because they could not provide airborne samples
taken after actual exposure.
In order to collect, an employee must follow a procedures established
in the parties' collective bargaining agreement. /13/ The employee
files a complaint with the supervisor, who may agree that environmental
pay is warranted and annotate the employee's time card accordingly.
This determination is reviewed by a labor-relations specialist. If the
supervisor disagrees with the employee, the employee may grieve the
decision. The union may also initiate a claim for environmental
differential pay on behalf of an employee.
Perry testified that respondents could monitor, with difficulty, the
whereabouts of its employees. It would have to secure information from
every trade. Respondents attempt to identify for the medical action
surveillance program all employees exposed to asbestos.
Prior to the McCrory award, respondents were obligated to pay the
environmental differential when the airborne concentration exceeded 2
fibers/cc.
Discussion and Conclusions
The General Counsel has established by a preponderance of evidence
that respondents have violated section 7116(a)(1) and (8) of the Statute
by failing to comply with a final and binding arbitration award, issued
on July 28, 1983 by Arbitrator McCrory, directing the shipyard to
improve asbestos conditions on the submarines and pay environmental pay
until such steps have been taken.
As a threshold issue, respondents contend that the case should be
dismissed on procedural error. It reasons that because the Authority
did not rule on the October 21, 1983 exceptions to the award until June
27, 1984, the award was not "final and binding" within the meaning of
section 7122 of the Statute when the General Counsel issued the
consolidated complaint in this matter. The time for filing timely
exceptions expired on August 31, 1983. Based on previous Authority
actions when exceptions to an arbitrator's award were untimely filed,
finding an agency's subsequent refusal to implement an award as
violative of section 7116(a)(1) and (8) of the Statute, the General
Counsel's actions clearly were appropriate. Furthermore, Respondents'
reliance on U.S. Soldiers' and Airmen's Home, Washington, D.C., 15 FLRA
No. 26, 15 FLRA 139 (1984), is misplaced. In that case, the agency had
not failed to comply with an arbitration award because timely exceptions
were pending before the Authority. In the instant case, exceptions
filed by the Department of Navy were not timely.
Respondents also assert as a defense their good faith belief that the
exceptions were timely, because the arbitrator retained jurisdiction for
ninety days and because clarification requests were pending before the
arbitrator. An agency acts at its own peril in disregarding the
thirty-day deadline. /14/ Section 7122 plainly states: "If no
exception to an arbitrator's award is filed under subsection (a) of this
section during the 30-day period beginning on the day of such award, the
award shall be final and binding". /15/ The law in that area is
abundantly clear; therefore, respondents' argument must be rejected.
In addition respondents contend that the arbitration award at issue
is more appropriately interpreted through the negotiated grievance
procedure. Although respondents state unequivocally that they complied
with the award by August 31, 1983, they argue that the "amorphous steps
management takes' standard" precludes evaluation of compliance in an
unfair labor practice proceeding. While the arbitrator did not
condition compliance upon a specific level of airborne concentration,
neither did he leave the parties without guidance as to the safeguards
to which employees working on submarines are entitled. It is my view
that a reading of the award in its entirety dispels any notion of its
ambiguity. Assuming, arguendo, that the award were ambiguous, I would
still consider the unfair labor practice proceeding to be the proper
forum for this matter as it stands. Any contention that an arbitrator's
award is deficient because it is contrary to law, rule or regulation
must be made by invoking the procedures established by Congress in
section 7122(a) of the Statute. If a party fails to file exceptions to
the arbitrator's award pursuant to section 7122(a), within the 30 day
period established therein, the award becomes final and binding and
"(a)n agency shall take the actions required by an arbitrator's final
award" /16/ Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, 17 FLRA No. 13, 17 FLRA 40 (1985);
Department of Defense, Department of the Navy, U.S. Marine Corps U.S.
Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA No. 137,
15 FLRA 568 (1984). Similarly, if a party fails to assert the ambiguity
of an arbitration award in timely exceptions pursuant to section
7122(a)(2), /17/ or in a request to the arbitrator for clarification, it
is in my opinion barred from later doing so in an unfair labor practice
proceeding. A party should not benefit from its failure to invoke the
procedures established in the Statute.
In the award at issue, Arbitrator McCrory clearly stated that "the
circumstances and conditions described in items 1 through 4 on page 23
above unnecessarily increase the potential for exposure to airborne
asbestos, over that which is inherent due to the general presence of
asbestos. They are a potential source of exposure which could be
controlled by measures which would not place an unreasonable burden on
the Agency." On page 23 he recommended that respondent 1) mark unremoved
asbestos, 2) remove more asbestos, 3) install more durable and effective
protective coverings, and 4) institute more frequent surveillance.
Arbitrator McCrory repeated references to "unnecessary exposure" and
"unnecessary potential exposure" several times in the award and in the
responses to the parties' requests for clarification. In the response
to the union's request, he again stated: "This (the Federal Personnel
Manual), 1 concluded, requires that employees receive environmental pay
if they are exposed to conditions like those described on page 23 of the
Award." /18/
The parties read differently McCrory's directive to remove additional
asbestos. On brief, respondents stated:
General Counsel literally reads McCrory's language on page 23 to
the extent he mentions lagging "which is sufficiently exposed to
be damaged during the overhaul" yet concurrently overlooks other
portions of the award and the overall context of the award itself.
For example, on pages 22 and 23 McCrory limits his discussion to
asbestos lagging left in work areas "where the risk of damage
during the overhaul is substantial."
A reading in its entirety of the paragraph to which respondents refer
militates against respondents' interpretation:
The record also shows that asbestos lagging and other asbestos
materials are exposed and routinely damaged while unprotected workers
are engaged in the overhaul of submarines. According to Mr. Weinert,
prior to a ripout, insulation is tested to determine what is and what is
not asbestos. Yet, lagging which is found to be asbestos is not marked
or labeled and exposed asbestos lagging is left (after a ripout) in work
areas where the risk of damage during the overhaul is substantial.
Conceding the accuracy of Agency's statement that it would not be
practical to remove all asbestos lagging, there is no apparent
justification for not removing the lagging which is sufficiently exposed
to be damaged during the overhaul, thereby causing a potential hazard in
the work area.
Arbitrator McCrory did not emphasize that the risk of damage must be
substantial; rather, he emphasized the need to remove asbestos which is
at least sufficiently exposed to be damaged. Further, McCrory
reiterated in the award: "The Agency has not explained why lagging
which is sufficiently exposed to be damaged by employees working in an
overhaul could not be removed, thus removing a potential source of
airborne asbestos."
Similarly, in his response to the union's request for clarification,
McCrory made it plain that some quantity of asbestos greater than that
found in the general environment would no doubt remain in the
submarines. He was equally emphatic in the award, however, that all
asbestos which is sufficiently exposed to be damaged is an unnecessary
hazard. McCrory specifically rejected the assumption that there is a
"safe" level of exposure. I cannot accept as a "differing and arguable"
conclusion respondents' contention that accessible asbestos must be
removed only from areas where risk of damage is substantial, that is,
high traffic areas.
Testimony concerning unremoved asbestos on the 606 submarine is by no
means conclusive. August or September 1983; however, the second ripout
did not occur until October 1983. Further, although Frost estimated
that 100 feet of accessible asbestos remained on the boat, he did not
specify whether the material was hot or cold system asbestos. Mazzuchi
conceded that a substantial percentage of asbestos remains in both the
engine room and the AMS because it is inaccessible or because it is cold
system asbestos. It is uncontroverted that cold system asbestos is
generally innocuous.
Spill logs in evidence, however, indicate that the boat sustained
asbestos damage on numerous occasions between January and March 1984.
Two out of eight entries show damage to asbestos insulation in the
engine room. /19/ On brief, respondents claimed that the problems
reported in the spill logs were "largely in areas above things, behind
things, or below things". It is particularly irrelevant under these
circumstances that they were low traffic areas since they were obviously
sufficiently accessible to become damaged. Once exposed, any asbestos
may become airborne through the daily motion in the submarine. The
spill logs, maintained as part of the shipyard's day to day operations,
show that accessible asbestos remained on the 606 boat in early 1984,
and that actual damage indeed occurred. Respondents were, therefore, in
violation of the arbitration award with respect to the 606 boat. /20/
The 631 submarine is also the subject of numerous spill log entries.
In addition, 1 find testimony by witnesses for the General Counsel
convincing that the boat was in substandard condition as late as August
1984. Credible accounts by Perry, Frost, Froehling and Luvisi of
considerable employee exposure to loose asbestos materials caused by
damaged insulation can only lead to the conclusion that respondents
failed to remove enough insulation during the ripout. This testimony is
corroborated by results in evidence of tests taken by the ARC Team on
the 631 boat after the union's inspection. It is again irrelevant that
respondents' witness characterized the locations of the damage as low
traffic areas. The record is devoid of evidence that exposed asbestos
in low traffic areas cannot become airborne and is not dangerous. In
any case, the lithium bromide plant, targeted by the General Counsel's
witnesses as a problem area, does not appear to be a low traffic area.
In addition, tagging on the 631 boat was deficient. The last minute
tagging admittedly ordered by respondents around August 14 and 15, 1984
indicates respondents awareness of non-compliance in that area. That
the employee assigned to tag the boat saw two tags already in the AMR-2
and "a couple" in the engine room does not excuse the need to hang at
least fifty. Although the evidence shows that 1,000 tags were February
7, 1984, and it reveals that Weinert directed the tagging of the 631
boat on February 21, 1984, there is no showing that this tagging
actually took place. Weinert admitted that when he checked up on his
order a week later he saw only five tags in the engine room and none in
the AMR. He did not testify that his employees ever corrected the
situation. Herman testified that the boat had no tags from February to
August 1984. I credit Herman where his testimony conflicts with that of
Belmont and Mazzuchi on this point.
Having found violations of the award with respect to the 606 and 631
boats, I turn to the boats which entered the shipyard prior to issuance
of the award. Arbitrator McCrory ordered compliance with the award "to
the extent practicable" for overhauls already in progress. The General
Counsel did not attempt to prove that it would have been practicable to
conduct second ripouts on the 605 and 678 boats in order to remove more
asbestos insulation. The 678 was in its reinstallation phase and the
605 in its testing phase when the award was issued. To minimize risk,
however, respondents were obligated to survey and tag the boats, and
provide protective coverings. Respondents do not assert that these
criteria are inapplicable to the 605 and 678 boats, but state that the
risk of damage is minimal because fewer workers are in the boats and
because damage is most likely to occur during the ripout. Nevertheless,
spill log entries for these boats, recorded during their testing phases
between January and March 1984, demonstrate that damage can and does
occur after the ripout phase.
By respondents' own admission, the 605 and 678 boats had been devoid
of tags since May 1984 because they were in the portion of the finishing
stage during which unauthorized objects must be removed from the boats.
Since employees work on the boats before and after the sea trial,
respondents certainly are obligated in order to be in compliance with
the McCrory award to provide the protections mandated by the award.
Notwithstanding objections at this point, respondents did not raise this
issue in timely exceptions and are, in my opinion, precluded from
raising the Navy policy as a defense at this time. Department of the
Defense, Department of the Navy, United States Marine Corps, United
States Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA
at 687. Thus, respondents were in violation of the award with respect
to all four submarines at issue. /21/
The parties disagree over the method of payment of environmental
differential pay. Respondents assert that individual employees must
claim EDP under Article 20, Section 3 of the collective bargaining
agreement and grieve if compensation is refused. The General Counsel
claims that all employees working in proximity to conditions on the ship
triggering EDP are automatically entitled to payment and that the bonus
is on respondent to make payment.
It appears illogical that the arbitrator would award EDP, but then
prolong respondents' violation of the contract by having each employee
apply separately. Involvement of the negotiated grievance procedure
would further complicate rather than expedite the process. Moreover,
pursuant to respondents' interpretation, the award does not afford a
remedy; it merely triggers the remedy already provided by the
collective bargaining agreement, thereby making the entire process up to
this point a futile exercise which could not resolve the already
existing different interpretations of the parties.
Respondents claim that this procedure is necessary to ensure that
each recipient was exposed to the unsafe conditions. This solution
actually creates more problems than it solves. Since employees are
entitled to EDP for potential as well as actual exposure, it is unclear
how often employees who work regularly in ships would have to reapply
for payment. Potential exposure is a continuous state. In this
respect, work done in proximity to asbestos is similar to work done at
dangerous heights. Thus, the danger is always there and the employee is
being paid for the potential rather than an actual hazard. Respondents
assert that in the latter situation, the collective bargaining agreement
allows supervisors to initiate assignment of EDP. I find that the award
cannot be reasonably construed to require each employee to seek EDP
individually. Nor can it reasonably be construed to require payment
only when a supervisor initials requests for payment of EDP.
In light of all the foregoing, it is found that respondents have not
fulfilled their obligation pursuant to section 7122 of the Statute and,
thus, have violated section 7116(a)(1) and (8) of the Statute. /22/
The Remedy
Having found that the respondents have engaged in certain unfair
labor practices I will recommend that they cease and desist therefrom
and to take affirmative action designed to effectuate the policies of
the Statute.
Section 7118(a)(7) of the Statute provides that backpay is an
appropriate remedy where the unfair labor practice of an agency has
resulted in loss of pay to its employee. Similarily, the Statute
incorporates the backpay provisions at 5 U.S.C. 5596 which provides for
backpay in instances where an employee has been adversely affected by an
unfair labor practice. Under 5 U.S.C. 5596 the employee or employees
must establish that "but for" the wrongful unilateral act of an agency,
a loss of pay would not have occurred. The record in this case supports
a finding that "but for" respondents unilateral act in not implementing
the arbitrators award employees working on the various submarines
involved would have received environmental differential pay during
periods that substandard asbestos conditions were maintained aboard a
particular submarine.
Although the matter has been extensively litigated, the record in my
view, does not clearly establish all periods of potential liability for
respondents. During the course of the hearing it was suggested that a
backpay proceeding might be necessary in order to calculate the
employees entitlement to environmental differential pay, if any.
Preliminarily, it appears that certain employees may be entitled to
compensation from October 26, 1983 until such time as respondents prove
compliance with the arbitration award. If respondents are able to
demonstrate compliance with the award for any submarine during any
period of time after October 26, 1983, then liability should be
diminished accordingly. Whether such a back pay hearing should be
ordered should be left to those in charge of compliance of the instant
Decision, the Authority's order or a court decree, as the case might be,
to see how payment could best be carried out.
At this juncture, I would recommend however, that respondents be
ordered to preserve and upon request, make available to the Authority or
its agents, for examination and copying all payroll records, time cards,
personnel records and reports and all other records necessary to analyze
the amount of backpay due under the terms of this order. /23/
It is recommended that the Authority adopt the following order:
ORDER
Pursuant to 5 U.S.C. 7118 and section 2423.26 of the Final Rules and
Regulations of the Federal Labor Relations Authority, U.S. Fed.Reg.
3482, 3510 (1980), its is hereby ordered that Department of the Navy and
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, shall:
1. Cease and desist from:
(a) Failing and refusing to comply with Arbitrator John P.
McCrory's July 28, 1983 arbitration award by maintaining
substandard asbestos conditions on submarines undergoing overhaul
and by refusing to pay environmental differential pay. (b) In any
like or related manner interfering with, restraining, or coercing
employees in the exercise of their rights assured by the Federal
Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute.
(a) Fully comply with Arbitrator John P. McCrory's July 28, 1983
arbitration award by conforming asbestos conditions on submarines
undergoing overhaul to the standard established in the pay until
such steps have been taken. (b) Preserve and upon request, make
available to the Authority or its agents, for examination and
copying, all payroll records, time cards, personnel record and
reports, and all other records necessary to analyze the amount of
backpay due under the terms of this order. (c) Post at the
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire copies of the attached notice marked "Appendix." Copies
of said notice, to be furnished by the Regional Director for
Region 1, after being signed by an authorized representative,
shall be posted immediately upon receipt thereof, and thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
to insure said notices are not altered, defaced, or covered by
other material. (d) Notify the Regional Director for Region 1, in
writing, within 30 days from the date of this order, as to what
steps have been taken to comply herewith.
(s)---
ELI NASH, JR.
Administrative Law Judge
--------------- FOOTNOTES$ ---------------
/1/ The shipyard objects to the General Counsel's motion on the
ground that section 7118(a)(4)(A) of the Statute applies to the pleading
of new parties as well as issues or causes of action. The acts and
conduct of higher level agency management may constitute an unfair labor
practice where such conduct prevents agency management at the level of
exclusive recognition from fulfilling its obligation to comply with a
final and binding arbitration award. Department of Health and Human
Services, Region II, 15 FLRA No. 139, 15 FLRA 710, 711, fn. 2 (1984).
The record reveals that the Department of the Navy was instrumental in
at least the delay in implementation of the Joint Asbestos Safety
Committee. Further, the Department of the Navy filed the exception; to
the award. In view of its cognizance of the proceedings and active
participation, the Navy will not be prejudiced by the General Counsel's
motion. Furthermore, failure to comply with an arbitration award
constitutes a continuing violation; thus, the six month statute of
limitations cannot bar an action against the Department of the Navy.
See Department of Defense, Department of the Air Force, 31st Combat
Support Group, Homestead Air Force Base, 13 FLRA No. 41, 13 FLRA 239,
246, fn. 8 (1983). Hereinafter, the Department of the Navy and the
shipyard will be known collectively as "respondents."
/2/ Article 20 provides in relevant part:
Section 1. The Employer shall assign environmental pay to unit
employees engaged in hazardous work or work involving difficult working
conditions to the extent permitted and prescribed by applicable
regulations.
Section 3. Cognizant supervisors, When assigning employees to work
for which environmental pay is indicated, shall so inform the employee.
If at any time any employee believes that environmental pay is
warranted, the employee should call the matter to the attention of his
immediate supervisor who will make (or obtain) a determination and
advise the employee. The employee may exercise his right to be
represented by a Council steward when discussing environmental pay.
/3/ FPM Supplement 532-1 Appendix J prescribes those working
conditions for which environmental pay may be warranted. Category 15
(Asbestos) provides for payment of an 8% differential for:
Working in an area where airborne concentrations of asbestos
fibers may expose employees to potential illness or injury and
protective devices or safety measures have not practically
eliminated the potential for such personal illness or injury.
/4/ Article 29 provides in relevant part:
Section 1. Each employee has the responsibility to work safely. The
Employer will make every reasonable effort to provide and maintain safe
working conditions. The Council will cooperate in these efforts and
encourage employees to work in a safe manner.
/5/ These corrective actions were listed on page 23 of the award.
/6/ See Portsmouth Naval Shipyard, 15 FLRA No. 28, 15 FLRA 181
(1984).
/7/ George Weinert, an industrial hygienist, testified that almost
all of the hot system asbestos in the entire submarine was removed.
/8/ John Froehling, union steward, concurred with this description.
/9/ Frost corroborated this testimony by Perry and Luvisi.
/10/ Although Mason, Belmont and Weinert testified that the small
tags were posted on or about August 29, 1983, 1 credit Mazzuchi on this
point since he was held responsible by Belmont for the development and
installation of the tags.
/11/ At the end of a ripout, a ship is also vacuumed before employees
outside Shop 64 are allowed to enter.
/12/ Although Mason claimed that environmental differential pay had
been paid for potential exposure, his testimony was contradicted by
Perry, Luvisi, and Belmont, respondents' witness. In addition, Mason
could not identify any employee who received such payment. On the basis
of the entire record, 1 credit Perry, Luvisi and Belmont.
/13/ See footnote 1.
/14/ U.S. Department of the Interior, Bureau of Land Management,
Eugene District Office, 6 FLRA No. 72, 6 FLRA 401 (1981), cited by
respondents in support of their good faith belief, is inapposite in that
it involved a response to a clarification request which gave rise to
deficiencies asserted by the agency in its exceptions.
/15/ In this regard, respondents' compliance with the award will be
evaluated from October 26, 1983 when the arbitrator relinquished
jurisdiction, rather than from June 27, 1984, as urged by the
respondents.
/16/ See section 7122(b) of the Statute.
/17/ Section 7122 provides in relevant part:
(a) Either party to arbitration under this chapter may file with
the Authority an exception to any arbitrator's award pursuant to
the arbitration ... If upon review the Authority finds that the
award is deficient -- (2) on other grounds similar to those
applied by Federal courts in private sector labor-management
relations; the Authority may take such action and make such
recommendations concerning the award as it considers necessary,
consistent with applicable laws, rules or regulations.
/18/ The General Counsel asserts that the only conditions which
trigger entitlement to environmental pay are the presence of free
asbestos material and unremoved asbestos lagging. In view of McCrory's
explicit reference to "items 1 through 4 on page 23," I am in agreement
with the other parties that the triggering "conditions" include all four
corrective actions listed on page 23 of the award.
/19/ G.C. Exh. S-29 involves cold system asbestos; however, the
record does not show that exposed cold system asbestos is completely
safe. Cold system asbestos is less dangerous partially because it is
less likely to become exposed.
/20/ The evidence is largely uncontroverted that the 606 boat was
sufficiently marked. In addition, 1 find it unnecessary to make a
credibility finding regarding the use of protective coverings on the 606
boat in view of the above conclusion.
/21/ In view of the above conclusions, I deem it unnecessary to make
credibility determinations regarding the use of protective coverings on
the 631, 605 and 678 submarines. In addition, respondents have complied
with item 4 on McCrory's list by increasing surveillance on all the
boats from a weekly to shift by shift basis.
/22/ In view of this conclusion, I find it unnecessary to determine
whether respondents' conduct was also in violation of section 7116(a)(5)
of the Statute.
APPENDIX A
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUT EMPLOYEES THAT:
We WILL NOT fail and refuse to comply with Arbitrator John P.
McCrory's July 28, 1983 arbitration award by maintaining substandard
asbestos conditions on submarines undergoing overhaul and by refusing to
pay environmental differential pay.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL fully comply with Arbitrator John P. McCrory's July 28, 1983
arbitration award by conforming asbestos conditions on submarines
undergoing overhaul to the standard established in the award and by
paying environmental differential pay until such steps have been taken.
WE WILL preserve and upon request, make available to the Authority or
its agents, for examination and copying, all personnel records, time
cards, reports, and all other records necessary to analyze the amount of
backpay due under the terms of this order.
---
(Agency or Activity)
Dated:---
By:---
(Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 1,
whose address is: 441 Stuart Street, 9th Floor, Boston, Massachusetts
02116 and whose telephone number is: (617) 223-0920.