United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
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In the Matter of DEPARTMENT OF THE NAVY NAVAL AIR STATION - WHIDBEY ISLAND OAK HARBOR, WASHINGTON |
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and LOCAL 1513, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
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Case No. 96 FSIP 132
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DECISION AND ORDER
Local 1513, American Federation of Government Employees, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, between it and the Department of the Navy, Naval Air Station - Whidbey Island, Oak Harbor, Washington (Employer).
After investigation of the request for assistance, the Panel determined that the dispute, which concerns the wearing of flight deck (or cranial) helmets by certain bargaining-unit employees, should be resolved on the basis of written submissions, including rebuttals, from the parties, with the Panel to take whatever action it deems appropriate to resolve the impasse. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.
BACKGROUND
The Employer’s mission is to maintain and operate facilities and provide services and materials to support aviation activities and operational forces at the installation. The Union represents approximately 430 General Schedule (GS) and Wage Grade (WG) employees. GS employees, who make up the great majority of the bargaining unit, occupy various administrative, clerical, engineering, environmental, firefighting, social service, and technical positions, in pay grades GS-3 through -12; WG employees work mainly as aircraft and engine mechanics, and materials handlers, in pay grades WG-6 through -10. The dispute, however, concerns only 10 WG-10 aircraft mechanics in the Operations Maintenance Division (OMD) who are responsible for the maintenance and repair of H-3 helicopters. The parties are covered by a collective-bargaining agreement (CBA) which is due to expire in October 1999.
By way of background, on January 10, 1996, the Employer implemented its proposed changes to a local instruction and a directive to require OMD aircraft mechanics to wear cranial helmets.(1) Shortly thereafter, one of the affected unit employees filed a complaint with the Occupational Safety and Health Administration (OSHA) alleging that, in requiring employees to wear head gear for protection which is not ANSI approved, the Employer was in violation of OSHA regulations. OSHA conducted an inspection of the work site on March 6, 1996, and found two violations of its regulations. Specifically, the Employer was found to be in violation of 29 C.F.R. § 1910.135 (a)-(b)(2) by having employees wear helmets which were not ANSI approved in an area where an overhead crane was in operation; it was not cited by OSHA because it committed to having employees wear ANSI-approved hard hats when the crane is in use.(3) The Employer, however, was cited for violating § 1910.23(c)(1) by not providing adequate fall protection for employees working on platforms 9 to 15 feet above the ground through the use of fall protection equipment, e.g., guardrails or harnesses; it corrected this violation through the use of scaffolding to prevent falls. OSHA, however, did not comment on whether management could continue to require employees to wear the cranial helmets in addition to taking the aforementioned safety measures. At this time, there is no dispute that the Employer has abated the unsafe working conditions found by OSHA. The parties’ impasse arises as the result of post-implementation bargaining.
ISSUE AT IMPASSE
The sole issue in dispute is whether OMD unit employees should be required to wear a cranial helmet when performing aviation maintenance functions from elevated surfaces.
THE POSITIONS OF THE PARTIES
1. The Employer’s Position
In essence, the Employer proposes that OMD aircraft mechanics wear cranial helmets when: (1) "working on ladders, work stands, or mechanical devices which raise [them] above ground level;" and (2) "working above the sponson level of the H-3 helicopter." They would not have to wear a helmet, however, when: (1) "it hinders access to confined areas on the aircraft (i.e., the main gearbox accessory, oil cooler blower, or linear device shaft areas of the H-3 helicopter;" and (2) "working within the cabin or cockpit area of the aircraft."
The helmets are not to be worn to satisfy OSHA requirements for head and fall protection, but rather, as "additional protection" from head injury should employees fall from elevated surfaces or bump their heads on equipment. The intended use of the helmets is not prohibited under OSHA regulations, nor was it specifically prohibited by OSHA following its March 1996 inspection of the OMD work area; the Union has not provided any evidence to the contrary. The helmets, therefore, do not have to meet any OSHA standards for personal protective equipment (PPE). Nevertheless, they do satisfy two of the approval criteria for PPE under Navy regulations.(4) The need for unit employees to wear them is "dramatically illustrated" by the experience of a sailor at another installation who avoided head injury when he fell from a ladder because he was wearing one.
The Union does not offer any evidence which refutes the "enhanced safety benefit" of the helmets. On the contrary, it agrees that they provide employees with "some protection." Furthermore, in requiring employees to wear the helmets, the Employer meets its "obligation to provide and maintain a safe and healthful work environment" under Article 24, § 2, of the CBA. It is "practical" for management to comply with that contractual obligation because it minimizes costs related to on-the-job injuries. In addition to its contractual obligation, the Employer has a "moral obligation" to employees and their families to provide them with the "best additional protection" in case of accidents. Moreover, under its proposal, military personnel and unit employees who perform the same job would follow the same work rule on the use of helmets, which would minimize conflict between them and make the administration and enforcement of the work rule simpler. It also was within management’s authority to require unit employees to wear helmets as additional protection under NASWHIDBEYINST 5100.27B, chapter 4, section 2, paragraph 4205, before its proposed change was implemented in January 1996,(5) but the Union never grieved that authority even though it could have under Article 24, § 1, of the CBA.
The Union’s proposal, on the other hand, is "in direct conflict with its [contractual] obligation to cooperate in the continuing effort to eliminate and reduce accidents and health hazards." Also, it mandates a different work rule for unit employees than the one followed by military personnel; this difference (1) "makes [the] administration of workplace rules more difficult, and adversely affects the morale and discipline of workforce employees;" and (2) would create "constant conflict" between military personnel, who make up the great majority of the OMD workforce, and unit employees.
2. The Union’s Position
In essence, the Union proposes that unit employees not be required to wear cranial helmets. It also requests that the Panel "instruct" the Employer that only PPE recognized by OSHA "is required to be worn by civilian employees." While cranial helmets may provide employees with "some protection," there is no "bona fide safety reason" for employees to wear them, particularly given that they do not meet the Navy’s or OSHA’s requirements for fall or head protection. Also, during the 20-plus years when employees did not wear cranial helmets, which preceded the Employer’s implementation of its proposal in January 1996, there was not a single accident where an employee suffered a head injury. Nor were there "problems or conflict" between military personnel and unit employees over the wearing of cranial helmets. Moreover, they are not recognized as providing "adequate protection" and, therefore, are not used in the private aviation industry. Rather, their use may "increase the chances of [employees] being injured or put at risk" because they are "uncomfortable, awkward, and restrict sight, hearing and freedom of movement."
With regard to the Employer’s proposal, while OSHA did not disapprove the use of cranial helmets as added protection, neither did it approve their use for such purpose. It is not necessary for employees to wear cranial helmets now that equipment meeting the OSHA requirement for fall protection is in place, and the possibility of employees falling from elevated surfaces has been "eliminated." The sailor referenced in the Employer’s example would not have fallen in the first place had fall protection (e.g., scaffolding and guardrails) required by OSHA been in place. Moreover, it questions the Employer’s recent concern over employees’ safety given that, before the OSHA complaint was filed, it "provided absolutely no safety equipment." Furthermore, the Employer has changed its position for requiring the use of cranial helmets, which has employees "confused." In this regard, employees were initially led to believe that the helmets were to be used for head and fall protection, and now it is for added protection. This "change in direction" on the part of management "has had a tremendous adverse affect on [employees’] morale," and "seriously shaken" their confidence in management "to make reasonable and responsible decisions" concerning their health and safety. The Union now believes that the real reason the Employer wants unit employees to wear cranial helmets is simply that military personnel are already required to wear them. Finally, since the Employer did not require employees to wear cranial helmets under the previous wording of the local instruction, there was no reason for the Union to file a grievance; the Employer first required unit employees to wear cranial helmets when it unilaterally changed the instruction in January 1996.
CONCLUSIONS
Having carefully reviewed the record in this case, we conclude that a modified version of the Union’s proposal should serve as the basis for resolving the parties’ dispute. In the particular circumstances presented, there does not appear to be a need for employees to wear cranial helmets now that the Employer has installed equipment to prevent them from falling, as required by OSHA. Also, employees did not wear cranial helmets for many years preceding the Employer’s unilateral implementation of its proposal, and there is no evidence of head injuries during that period of time when, presumably, OSHA requirements for fall and head protection were not being met. There is also no evidence in the record of conflict in the workplace because military personnel and unit employees were under different requirements. Nor does the record support the Employer’s allegation that having different requirements was administratively burdensome. Nevertheless, we shall modify the Union’s proposal to delete wording which implies that unit employees should only be required to wear PPE which meets OSHA standards. This is unacceptable to the extent that it would prohibit the Employer from proposing the use of safety clothing or equipment, in addition to what OSHA requires, in all future circumstances. In this regard, the deletion of this part of the Union’s proposal would still permit it to bargain should the Employer subsequently propose the use of other additional safety clothing or equipment.(6)
ORDER
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following wording:
OMD unit employees shall not be required to wear cranial helmets.
By direction of the Panel.
H. Joseph Schimansky
Executive Director
December 30, 1996
Washington, D.C.
1.NASWHIDBEYINST 5100.27B, chapter 4, section 2, paragraph 4205, as revised, reads as follows:
2.These regulations require employees to wear protective helmets that are ANSI approved or are “demonstrated to be equally effective” when working in areas “where there is a potential for injury to the head from falling objects.”
3.The Navy Oversight Inspection Unit with the Office of the Navy’s Inspector General, however, did issue the Employer an occupational safety and health deficiency notice for this violation.
4.The helmet is designed in accordance with military specifications (MIL-H-81735B(AS), dated 30 July 1992), to be impact resistant; the specifications require that the cranial shield, which is the critical component, be made of plastic material that meets the standard of the American Society of Testing and Materials.
5.The instruction as previously worded read as follows:
6.On a final note, we are puzzled why the relevant local instruction was changed last January when, by its own admission, the Employer was already permitted to require employees to wear cranial helmets as additional protection.
All aviation personnel, both military and civilian, shall wear the aviator’s cranial helmet when applicable maintenance directives dictate.
The applicable maintenance directive involved in January 1996 was NASWI OMD MI 22-95 CH-1, paragraph 8.g., which requires employees to wear cranial helmets under specific circumstances. On September 16, 1996, that directive was canceled and replaced by NASWI OMD MI 22-96, which retains paragraph 8.g. and adds paragraph 8.h. requiring employees to wear hard hats approved by the American National Standards Institute (ANSI) when involved in overhead hoisting (crane) operations. It is the September, and not the January, directive which represents the Employer’s proposal before the Panel.
Aviator helmets are designed to protect from bumps and to hold associated equipment such as goggles and hearing protection. Cranial helmets may be required by aviation squadrons as additional protection, but must be used in conjunction with OSH[A] required ladders, work stands, scaffolds, or other mechanical devices to prevent falls.