[ v25 p277 ]
25:0277(19)CA
The decision of the Authority follows:
25 FLRA No. 19
NORFOLK NAVAL SHIPYARD
Respondent
and
TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO
Charging Party
Case No. 34-CA-50389
DECISION AND ORDER
The Administrative Law Judge issued the attached decision in these
proceedings. He found that the Respondent had not engaged in the unfair
labor practices alleged in the complaint, and he recommended that the
complaint be dismissed. The General Counsel filed exceptions to the
Judge's decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, we have reviewed the rulings of the Judge made at the hearing.
We find that no prejudicial error was committed, and we affirm those
rulings. Upon consideration of the Judge's decision and the entire
record, we adopt the Judge's findings, conclusions and recommended
Order.
ORDER
The complain in Case No. 34-CA-50389 is dismissed.
Issued, Washington, D.C., January 20, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 34-CA-50389
NORFOLK NAVAL SHIPYARD
Respondent
and
TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO
Charging Party
Mr. Robert J. Gilson
For the Respondent
Mr. A. J. Walker
For the Charging Party
Patricia Eanet Dratch, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region III, Federal Labor Relations Authority,
Washington, D.C., against the Norfolk Naval Shipyard (Respondent), based
on an amended charge filed by the Tidewater Virginia Federal Employees
Metal Trades Council, AFL-CIO (Charging Party or Union). The complaint
alleged, in substance, that Respondent violated sections 7116(a)(1) and
(5) of the Federal Service Labor-Management Relations Statute, 5 U.S.C.
Section 7101 et seq. (the Statute), by requiring all Shop 07 employees
who are respirator qualified and whose work assignments do not normally
require respirator protection to remain clean shaven in the area of the
face seal of the respirator at all times. The complaint alleged that
the Respondent implemented this alleged change in the working conditions
of unit employees without affording the Union prior notice and an
opportunity to bargain over the change and its impact and
implementation.
Respondent's answer admitted the jurisdictional allegations, but
denied that it had made a change or violated the Statute.
A hearing was held in Norfolk, Virginia. The Respondent, Charging
Party, and the General Counsel were represented and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The General
Counsel and the Respondent filed briefs.
The General Counsel contends that a practice developed in Shop 07
whereby respriator qualified employees who do not routinely require
respirator protection could grow facial hair in the area of the face
seal, and that this practice ripened into a condition of employment
which could not be unilaterally changed by management. The General
Counsel points out that the practice, as testified to by Union officials
and employees, comports with the Shipyard Instruction on this matter.
Counsel for the General Counsel presented testimony from the Union
president, the Shop 07 chief steward, shop steward, and from six unit
Shop 07 employees. These witnesses testified that prior to February
1985 it was the practice that respirator qualified employees in Shop 07
who did not routinely use respirators could grow facial hair in the area
of the face seal except during training. Mr. A. J. Walker, Union
president, acknowledged that he had no direct knowledge of the practices
in the shop, but rather relied on his stewards and chief steward to
inform him. Mr. Howard E. Briggs, shop steward, has worked in Shop 07
for about ten years. He has been respirator qualified during most of
this period and testified as to the above practice and use of
respirators. He did not keep track of which of the 200 employees were
respirator qualified. If he saw an employee with a beard he would have
no direct knowledge of whether the employee was respirator qualified or
not unless he asked him or was told. Chief Steward William W. Brown,
Jr. has worked in Shop 07 for seven years. He is not respirator
qualified, but has talked with lots of employees who are. He also
testified that he had not sought to find out exactly which employees
were respirator qualified. If he saw an employee with a beard he would
not know whether the employee was respirator qualified or not unless he
had talked with the employee or researched the matter. Brown testified
that most employees do not carry respirator cards. Dwight Geddis,
formerly a cement finisher in Shop 07, was not respirator qualified at
the time of the hearing. Approximately four and a half years ago he had
been respirator qualified for a period of three years. This
qualification was on an on and off basis. Mitchell Batten, a
pipefitter, was not respirator qualified at the time of the hearing, but
was qualified during the period of 1981-1983. David Morris, a high
voltage cable splicer, and Richard Davidson, an electrician, have been
respirator qualified for seven and four years respectively, but only
recently have been issued their respirator qualification cards. John
Woodall, a sheetmetal mechanic, was respirator qualified in
approximately August 1984. However, since November 1984 he has been
assigned to painting and maintenance work outside of the controlled
industrial area pending resolution of a clearance matter. Charlie B.
Taylor, Jr., a high voltage electrician, was respirator qualified for
the face-to-face respirator for three years from approximately 1981 to
1984. He used the respirator about once a year. He shaved his beard
only for respirator training.
Respondent defends on the basis that no management official ever knew
or knowingly acquiesced in a past practice of allowing respirator
qualified employees of Shop 07 to grown facial hair in the area of the
face seal, and the requirement to be clean shaven in the area of the
facial seal was the reaffirmation of a long standing policy. Respondent
presented testimony from three individuals who do not work directly in
Shop 07 (a supervisory industrial hygienist, supervisory training
instructor, and labor relations specialist) as well as four upper level
managers in the Shop (the superintendent and three general foremen).
The General Counsel urges that Respondent's failure to bring forth any
first line supervisors compels the drawing of an adverse inference that
their testimony would not have corroborated that of the upper level
managers. I see no basis for drawing such an inference in the
circumstances described. I have credited major portions of the
testimony of Respondent's witnesses as set forth in the following
findings.
Based on the entire record, including my observation of the witnesses
and their demeanor, I make the following findings of fact, conclusions
of law, and recommendations.
Findings of Fact
1. At all times material, the Union has been certified as the
exclusive representative of an appropriate unit of Respondent's
employees, including, inter alia, employees assigned to Respondent's
Shop 07.
2. The Union and the Respondent are parties to a collective
bargaining agreement effective April 4, 1977. Article 33, Section 1
provides a procedure for the Union or Respondent to file and process
grievances which allege, inter alia, "the improper application of
Shipyard directives. . . ."
3. On July 9, 1982 Respondent issued NAVSHIPYDNOR Instruction
10470.6B on respiratory protection. Paragraph 5.e.(5), 6.b.(1) (a),
6.e.(1), and 10.d.(2) and 10.d.(3)(c) provide as follows:
5. Responsibilities
. . . . . .
e. Employees will:
. . . . . .
(5) in situations where respiratory protection requiring a
facepiece-to-face seal is routinely required, e.g., electroplating
facility, waste treatment facility, insulators, firefighters,
etc., be clean shaven in the area of the face seal of the
respirator at all times while in a pay status(.)
. . . . . .
6. Selection and Use of Respirators
1@@ . . . . . .
b. Respirator Issue
(1) Respirators shall only be issued to those employees
qualified to the requirements of this instruction and possessing a
valid respirator fitting card. . . . Respirator issue is also
permitted to the following individuals:
(a) Shipyard employees not normally engaged in work requiring
respirators, who must enter a work area on a one-time only basis,
provided that the employee has written authorization from his
supervisor and is accompanied by a qualified employee who will
inform him of the hazards involved and ensure that the respirator
is properly selected and worn. Such employees must be medically
qualified and meet the requirements of paragraph 6c(1), (2), and
(3), page 9.
NOTE: Shop personnel which may be required to work in a
respirator area on an intermittent but routine or regular
anticipated basis must have a respirator fitting card.
Intermittent is not one-time only.
. . . . . .
e. Use of Respirators -- Normal Operations
(1) Shipyard Policy on Facial Hair
(a) All employees must be cleanly shaven during their initial
qualification and subsequent biannual requalification training for
respirators requiring a face-to-face piece seal.
(b) All employees whose work assignment routinely requires
respiratory protection having a face-to-face piece seal shall be
cleanly shaven in the area of the face seal of the respirator
while in a pay status. (c) When an employee must perform a job
which requires a respirator having a face-to-face piece seal, he
shall be cleanly shaven in the area of the face seal of the
respirator.
NOTE: Where jobs do not normally require respiratory
protection, employees may grow facial hair. When required to wear
a respirator utilizing a face-to-face piece seal, employees must
be cleanly shaven in the area of the face seal of the respirator.
1@@ . . . . . .
10. Training
. . . . . .
d. Certification
. . . . . .
(2) Upon completing of employees training, the instructor shall
issue a qualification card . . . to each trainee. This
qualification is valid for 2 years. A new card shall be issued
upon requalification.
(3) An employee may lose his qualification at any time his
supervisor or code 106 personnel determine any of the following:
. . . . . .
(c) conditions which prevent a good face seal, such conditions
may be growth of beard, sideburns, skullcap that projects under
the facepiece, or temple pieces on glasses (an employee who grows
facial hair that interferes with the face seal of the respirator
after being trained and fitted, is automatically disqualified
until clean shaven again)(.)
4. The respiratory protection instruction was negotiated with the
Union prior to its issuance. The discussion concerning facial hair was
brief. The Union proposed that employees be permitted to grow facial
hair that did not interfere with the seal. This proposal was
immediately accepted by management and became part of paragraph 6.e.(b).
The rest of the instruction was rewritten to conform to the
proposition. The discussion of which jobs would normally or routinely
require respirator protection was very brief. Management put forth the
view that an employee in any trade who could reasonably be expected to
use a respirator at any given time should be clean shaven in the area of
the seal at all times, but that an employee who goes into a respirator
area on a one-time only basis or was assigned to a job that did not
require respirator use may grow facial hair. In management's view this
understanding was set forth in paragraph 6.b.(1). At the Union's
request, some examples of the kinds of jobs were respirators would be
required on a routine basis were inserted in paragraph 5.e.(5). The
list was not definitive.
5. For at least the last two or three years each new employee has
been required to sign a preemployment agreement that he will shave if
required to do so in the performance of his job.
6. Shop 07 is in the public works department. Supervision is
provided by a general superintendent, three general foreman, and fifteen
supervisors. The shop has a total of about 207 employees. It is
composed of three service areas: electrical, mechanical, and ground
structures. Employees work all over the Norfolk Naval Shipyard and some
of its annexes on emergency, routine, and service calls. Employees
never know what kind of conditions they will encounter in an emergency.
The employees include sheet metal mechanics, electricians, pipefitters,
cement finishers, welders, railroad workers, and insulators. There is
no dispute that insulators are required to be clean shaven at all times.
7. In the past insulators have worn respirators almost all of the
time while performing insulation duties. Approximately 30 employees of
various trades who work on the hazardous waste response team have also
worn respirators almost all of the time while dealing with hazardous
wastes. The other employees, such as sheet metal mechanics,
electricians, pipefitters, cement finishers, and welders, seldom have
worn respirators in connection with their work assignments. The use of
respirators by these latter employees has ranged from once a year to
never in 10 years.
8. The policy of Shop 07 since at least 1978 is that all Shop 07
employees must be respirator qualified, and all employees who are
respirator qualified and possess a respirator card must be clean shaven
in the area of the facial seal at all times. Shop 07 management
maintains that any employee may be required to wear a respirator on a
moment's notice anywhere on the base, and the only way to ensure his
ability to do so is for him to report wo work each day clean shaven. It
does not matter to management how often the employee may be required to
use a respirator to perform his work assignments.
9. There is no dispute that when an employee's medical qualification
or training expires, he is permitted to grow whatever facial hair he
wishes until he becomes qualified again.
10. An employee must undergo a medical examination and complete a
four hour training course in order to become respirator qualified and to
be issued a qualification card. All employees within Shop 07 are
required to be clean shaven during respirator training. That part of
the training dealing with NAVSHIPYDNOR Instruction 10470.6B is taught at
one time. Employees are taught that the instruction must be read as a
whole since only complying with individual parts could violate other
paragraphs of the instruction. Employees are given the blanket
instruction that respirator qualified employees must be clean shaven in
the area of the face seal.
11. On February 15, 1980 Maintenance Foreman Charles G. Insley was
charged with insubordination for refusing to remove a growth of beard
and to obey orders to report to work clean shaven on 20 occasions in
September and October 1980. It was alleged that the growth of beard
prevented a good face seal for a respirator and was contrary to
NAVSHIPYDNOR Instruction 10470.6. An agency demotion of Insley was
upheld by a presiding official of the Merit Systems Protection Board on
November 16, 1981.
12. The job description of cement workers was amended in April 1981
to provide that the "majority of duties of this position will be work
assignments where the use of a respirator is required, therefore, the
incumbents of this position will be required to wear a respirator and be
respirator qualified." In 1982 the job descriptions of other workers in
the shop were amended to state, "Should work be assigned which requires
the use of a respirator, the incumbent of this position will be required
to wear a respirator and be respirator qualified."
13. On June 28, 1984, Maintenance Superintendent W. R. Darden sent a
memorandum to all foremen in Shop 07 reminding them that the
NAVSHIPYDNOR Instruction prohibited the wearing of any facial hair that
would prevent a good face seal with a respirator. He requested
supervisors to pay close attention to employees to ensure compliance and
to take corrective action if violations were found.
14. It is the responsibility of the individual supervisor to make
sure employees have an up-to-date qualification card.
15. Prior to approximately February 1985 supervisors did not have an
accurate computer print-out of who was or was not currently respirator
qualified. In approximately February 1985 a new computer print-out of
employee names and the dates of their current medical and training
qualification was developed to help supervisors monitor employee
qualifications. The print-out was also developed to shorten the time
lag between the expiration date of the medical and training
examinations, the reexaminations, and the reports of the results of such
examinations.
16. In February 1984 supervisors advised employees with respirator
cards that they had to be clean shaven at all times. This policy was
also announced at a Shop 07 safety meeting on approximately March 5,
1984.
17. As of April 1985 approximately 85 employees or 43 percent of
employees in Shop 07 were not respirator qualified or had an expired
medical or training qualification date. (Res. Ex. 1). Approximately 12
employees were not respirator qualified as of the date of the hearing.
18. By letter dated February 26, 1985 the Union advised Respondent
that its policy of requiring all Shop 07 employees holding respirator
cards to be clean shaven at all times violated the Shipyard Instruction.
The Union requested that Respondent cease and desist and adhere to the
provisions of the Instruction. By memorandum dated March 1, 1985,
Respondent replied that no violation or change had occurred. Respondent
stated that the requirement that all personnel who are respirator
qualified remain clean shaven in the area of the face seal while in a
pay status was an ongoing practice.
Discussion, Conclusions, and Recommendation
The parties recognize that under Authority precedent a unilateral
change in an established condition of employment regarding facial hair
growth by respirator qualified employees would violate the Statute. See
United States Department of Defense, Department of the Air Force,
Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 8
FLRA 740 (1982).
It is well established that parties may establish terms and
conditions of employment by practice, or other form of tacit or informal
agreement, and that this, like other established terms and conditions of
employment may not be altered by either party in the absence of
agreement or impasse following good faith bargaining. Department of the
Navy, Naval Underwater Systems Center, Newport Naval Base, 3 FLRA 413
(1980). Past practices generally include all conditions of employment
not specifically covered in the parties' collective bargaining agreement
which are followed by both parties, or followed by one party and not
challenged by the other party over a period of time. Past practices may
also include the actual practice being followed, regardless of the
contractual agreement. In order to constitute the establishment by
practice of a term and condition of employment the practice must be
consistently exercised for an extended period of time with the agency's
knowledge and express or implied consent. Internal Revenue Service and
Brookhaven Service Center, 6 FLRA No. 127 (1981); Department of the
Navy, supra. Essential factors in this regard are that the practice
must be known to management, responsible management must knowingly
acquiesce, and such practice must continue for some significant period.
Department of Health, Education and Welfare, Region V, Chicago, Illonis,
4 FLRA No. 98 (1980); Department of Health and Human Services, Social
Security Adminstration, 17 FLRA No. 25, 17 FLRA 126 (1985).
The record does not establish Respondent's implied knowledge and
consent to the alleged practice by mutual acceptance and action. There
is, and apparently has never been, a meeting of the minds on what the
policy on facial hair is under the negotiated Shipyard instruction. The
General Counsel and the Charging Party essentially contend that the
policy on facial hair is set forth in the note to paragraph 6.3. (1) of
the negotiated Shipyard instruction. Paragraph 6.3. (1) of the
instruction supports the Charging Party's view while paragraphs 5.e.
(5), 6.b. 1(a), and 10.d. (2) and (3)(c) of the instruction support
Respondent's view of the existing policy on facial hair. /1/ The record
also shows that employees are instructed during respirator training that
respirator qualified employees must be clean shaven in the area of the
face seal. Also, in June 1984, the Shop 07 superintendent sent a
memorandum to all foremen requesting supervisors to enforce the Shipyard
Instruction which, in part, prohibits the wearing of any facial hair in
the area of the face seal by respirator qualified employees.
The record also does not establish that management knowingly
acquiesced in such a practice. The record reflects that prior to April
1985 approximately 43 per cent of Shop 07 employees were not respirator
qualified or had expired medical or training qualification dates. There
is no dispute that such employees may wear facial hair in the area of
the respirator seal. Therefore, while some, and at times, numerous,
Shop 07 employees were wearing facial hair, there is no showing that
such employees were known by management to be currently respirator
qualified.
The record reflects that it was Respondent's policy that respirator
qualified employees be clean shaven in the area of the facial seal. It
was the responsibility of individual supervisors to enforce the policy.
However, the record reflects that prior to February 1985 supervisors did
not have accurate records concerning who was or was not currently
respirator qualified. Under such circumstances, and in view of the fact
that employees who were not currently respirator qualified could wear
facial hair, the laxity in enforcement does not amount to knowing
acquiescence in a practice contrary to the policy. Cf. United States
Department of the Treasury, Internal Revenue Service, Des Moines
District, 13 FLRA 296, 308 (1983).
It is concluded that a preponderance of the evidence does not
establish a violation of section 7116(a)(1) and (5), as alleged. Based
on the foregoing findings and conclusions, it is recommended that the
Authority issue the following Order.
ORDER
IT IS HEREBY ORDERED, that the complaint in Case No. 34-CA-50389 be,
and it hereby is, DISMISSED.
/s/ GARVIN LEE OLIVER
Administrative Law Judges
Dated: February 27, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) An underlying contractual dispute should be resolved under the
grievance and arbitration procedures in the collective bargaining
agreement governing the parties. See, Social Security Administration,
15 FLRA 614 (1984).