[ v13 p203 ]
13:0203(39)CA
The decision of the Authority follows:
13 FLRA No. 39
U.S. GOVERNMENT PRINTING OFFICE
Respondent
and
JOINT COUNCIL OF UNIONS, GPO
Charging Party
Case No. 3-CA-549
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, Respondent and the General
Counsel filed exceptions to the Judge's Decision with supporting briefs,
and the Respondent filed an opposition to the General Counsel's
exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations, except as modified
herein.
The Judge found that the Respondent, U.S. Government Printing Office
(GPO), violated section 7116(a)(1) and (5) of the Statute by failing to
provide the Charging Party, Joint Council of Unions, GPO (Joint
Council), as designated agent of its constituent locals in the
Production Department, with adequate notice of management's decision to
reorganize the Production Department so as to provide the Joint Council
with an opportunity to negotiate concerning the procedures to be
followed in implementing the reorganization (section 7106(b)(2)) or
appropriate arrangements for adversely affected employees (section
7106(b)(3)). /1/ More specifically, the Judge found that GPO failed to
satisfy its obligation to provide timely and sufficient notice of the
reorganization "when it waited until Friday morning September 28 to
announce that there would be a reorganization and it would be instituted
on Monday October 1." He further found that GPO's refusal to delay the
reorganization, as requested by the Joint Council, to allow the
exclusive representatives an opportunity to determine what impact would
be caused by the reorganization and to negotiate with respect thereto,
was in derogation of GPO's obligation under section 7106(b)(3) and (2)
of the Statute respectively, to negotiate the impact and implementation
of its decision. In this latter regard, the Judge found that the
General Counsel had met the burden of proving that GPO's reorganization
resulted in actual substantial impact adversely affecting bargaining
unit employees, as well as a reasonable likelihood of substantial
adverse impact on them in the future.
The Authority concludes, in agreement with the Judge's conclusion,
that GPO failed to meet its statutory duty to negotiate concerning the
impact and implementation of the reorganization in violation of section
7116(a)(1) and (5) of the Statute. Thus, GPO's notice to the Joint
Council on a Friday that a major reorganization would be implemented the
following Monday clearly was inadequate to permit the Joint Council to
bargain, if it desired, concerning the procedures to be observed in
implementing, and appropriate arrangements for employees adversely
affected by, the reorganization. In this regard, the Authority notes
particularly that GPO rejected the Joint Council's immediate request
that implementation be delayed in order to permit negotiations
concerning the reasonably foreseeable impact of the reorganization on
the employees involved. In so concluding, the Authority emphasizes that
where an agency in exercising a management right under section 7106 of
the Statute, changes conditions of employment of unit employees as here,
/2/ the statutory duty to negotiate comes into play if the change
results in an impact upon unit employees or such impact was reasonably
foreseeable. In such circumstances, where an agency exercises a
management right but has failed to provide adequate prior notice thereof
to the exclusive representative of its employees or has rejected a
timely request for negotiations pursuant to section 7106(b)(2) and (3)
of the Statute, /3/ the agency will be found to have violated section
7116(a)(1) and (5) of the Statute. /4/
In the instant case, the record fully supports the Judge's conclusion
that some of the changes resulting from the reorganization (such as
those concerning sick leave policy and the probe procedure) had an
impact on employees, and in addition that it was reasonably foreseeable
that the reorganization of the Production Department would have an
impact by reducing promotional opportunities and eliminating jobs.
Therefore, the Authority concludes that the Respondent's failure to
provide adequate notice of such changes to the Joint Council constituted
a violation of section 7116(a)(1) and (5) of the Statute.
With regard to the remedy herein, the Judge ordered GPO to cease and
desist from further implementing the reorganization of its Production
Department without first notifying the Joint Council and affording it a
reasonable opportunity to negotiate concerning the procedures to be
observed in implementing, and appropriate arrangements for employees
adversely affected by, the reorganization, and affirmatively ordered GPO
to bargain with the Joint Council upon request and to post appropriate
notices. The General Counsel has requested that the Authority issue a
status quo ante remedy, while GPO opposes such request.
The Authority concludes that a status quo ante remedy is not
warranted. Thus, taking into consideration the various factors set
forth in Federal Correctional Institution, 8 FLRA No. 111 (1982), the
Authority concludes that an order requiring GPO to bargain upon request
about impact and implementation will best effectuate the purposes and
policies of the Statute. In this regard, the Authority notes the
evidence in the record that the Respondent and the exclusive
representative(s) of employees affected by the changes in sick leave and
probe procedures resulting from the reorganization in October 1979 have
reached a negotiated resolution of their differences in these areas.
Further, the record discloses that, as subsequent technological changes
were implemented in connection with the ongoing reorganization of GPO's
operations, the Respondent engaged in negotiations regarding the
changes. In these circumstances, and noting particularly that a status
quo ante remedy would seriously disrupt the accomplishment of the
Respondent's mission and the efficiency of its operations inasmuch as
the reorganization was part of a long range plan which included
substantial changes in plant and equipment now in place, the Authority
shall adopt the Judge's order.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the U.S. Government Printing Office shall:
1. Cease and desist from:
(a) Any further implementation of the October 1, 1979
reorganization of the Production Department without first
providing adequate notice to the Joint Council of Unions, GPO, the
agent of the employees' exclusive bargaining representatives, and
affording it an opportunity to negotiate on (1) the procedures to
be observed in any further implementation of the reorganization,
and (2) appropriate arrangements for employees who have been or
may be adversely affected by the reorganization.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request by the Joint Council of Unions, GPO, the agent
of the employees' exclusive bargaining representatives, negotiate
concerning (1) the procedures to be observed in implementing the
reorganization of its Production Department, and (2) appropriate
arrangements for employees who have been or may be adversely
affected by the reorganization.
(b) Post at all facilities wherein there are bargaining unit
employees represented by constituent locals of the Joint Council,
GPO, 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 Public Printer or his designee and
shall be posted and maintained for a period of 60 consecutive days
thereafter, in conspicuous places, including 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) Notify the Regional Director of Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., September 30, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
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 further implement the October 1, 1979 reorganization of the
Production Department without first providing adequate notice to the
Joint Council of Unions, GPO, the agent of the employees' exclusive
bargaining representatives, and affording it an opportunity to negotiate
on (1) the procedures to be observed in any further implementation of
the reorganization of the Production Department, and (2) appropriate
arrangements for employees who have been or may be adversely affected by
the reorganization. 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, upon request by the Joint Council of Unions, GPO, the agent of the
employees' exclusive bargaining representatives, negotiate concerning
(1) the procedures to be observed in any further implementation of the
reorganization of the Production Department, and (2) appropriate
arrangements for employees who have been or may be adversely affected by
the reorganization.
(Agency or Activity)
Dated: . . . (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 its provisions, they
may communicate directly with the Regional Director, Region III, Federal
Labor Relations Authority, whose address is: P.O. Box 33758,
Washington, D.C. 20033-0758, and whose telephone number is: (202)
653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-549
Neal Fine, Esq.
For the Respondent
Lee Mingledorff, Esq.
For the General Counsel
Cornelius McIntyre
For the Charging Party
Before: FRANCIS E. DOWD
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute (the Statute), 92 Stat. 1191, 5 U.S.C. 7101 et seq.
It was instituted by the issuance of a Complaint and Notice of Hearing
on May 6, 1980 based upon a charge filed on October 1, 1979. The
complaint alleges that the U.S. Government Printing Office (Respondent)
unilaterally implemented a reorganization of its Production Department
on October 1, 1979, thereby precluding bargaining over the impact and
implementation of the reorganization with the Joint Council of Unions,
GPO (Charging Party). Such conduct is alleged to be a violation of
Sections 7116(a)(1) and (5) of the Statute.
Respondent denies that it violated the Act and asserts that (1) it
had no statutory obligation to negotiate with the GPO Joint Council of
Unions since the Council is not a labor organization which is the
exclusive representative of any GPO employees, and (2) it had no
obligation to provide prior notice of its actions and the opportunity to
negotiate because the "realignment" did not materially impact on the
conditions of employment of GPO employees.
At the hearing in Washington, D.C. all parties were afforded full
opportunity to be heard, adduce evidence, examine and cross-examine
witnesses, and argue orally. Thereafter, Respondent and the General
Counsel filed briefs which have been duly considered. /5/
Upon consideration of the entire record in this case, from my
observation of the witnesses and their demeanor, and from all of the
testimony and evidence presented at the hearing, I make the following
findings of fact, conclusions of law and recommended order.
Findings of Fact and Conclusions of Law
A. Jurisdiction
At all times material herein Respondent has been an agency within the
meaning of Section 7103(a)(3) of the Statute (G.C. Exh. No. 1(c) and
1(d)). The Authority has jurisdiction in this matter pursuant to
Section 7118 of the Statute. B. Status of the Joint Council
1. Mr. Cornelius McIntyre has been an offset pressman with the
Respondent for 24 years. He is also the President of the Washington
Printing and Graphics Communication Union, Local 1, and Chairman of the
Joint Council of Unions, an organization consisting of 14 unions holding
exclusive recognition for various units of employees of the Respondent.
A description of the various units of recognition within Respondent's
Production Department are contained in the Appendix attached to the
complaint. The Joint Council's 14 constituent unions represent 85 to 95
percent of Respondent's employees at its central office. All seven
craft unions in Respondent's Production Department belong to the Joint
Council whose function is to coordinate the bargaining of its
constituent locals into a single process so that such locals may bargain
with management in a unified fashion regarding matters of overall impact
on employees.
2. The testimony of McIntyre and Mr. Lawrence Kenelly, Respondent's
Associate Director of Labor Relations and its Chief of Negotiations,
establishes that Respondent and the Joint Council have dealt with one
another on matters of overall concern since, at least, January 1978.
More specifically, Respondent has dealt with the Joint Council on
matters regarding performance ratings, Respondent's internal grievance
procedure, late entrance passes, bulletin boards, proposed leave
regulations, and agency instructions regarding occupational health and
safety (G.C. Exh. 2, 3, 4, 8, 9, 10, 11). Since October 1978,
Respondent and the Joint Council have been in the process of negotiating
a master agreement for all 14 constituent locals of the Joint Council.
In addition, the Joint Council consistently insisted during the period
prior to the reorganization, that it was responsible for bargaining, on
behalf of its locals, regarding matters of overall concern and overall
impact (G.C. Exh. No. 13). C. The Decision to Reorganize the Production
Department and Notification of this Decision to the Joint Council and
the Union
1. Respondent admits that the reorganization of the Production
Department had been a topic of high-level supervisory discussions since
May of 1979. Nevertheless, it was the position of Mr. Johnson McRorie,
Respondent's Production Manager and Head of the Production Department,
that discussions with the Joint Council, or the affected labor
organizations, could not take place until after the reorganization plan
had been officially approved by the Public Printer. Such official
approval did not occur until September 24, 1979.
2. At best, McIntyre and other local union officials only knew by
rumor that "something" was to occur, but they did not know the extent or
the details. In early or mid-September, Cornelius McIntyre had a
conversation with Mr. Robert Thien, the Superintendent of Letterpress
Division. Thien told McIntyre that the Offset Division and the
Letterpress Division would be combined into one division, that he would
be superintendent, and that he would be looking for the union's help.
The information served to confirm rumors McIntyre had been hearing for
some time. Thereupon, McIntyre went to see Joseph Amann, Director of
Labor-Management Relations, to inquire further about the rumored
reorganization. Amann indicated that he had limited knowledge of any
proposed reorganization but assured McIntyre he would be notified in
such event. McIntyre made clear to both Thien and Amann that the
Council wanted to negotiate about any impact. Amann did not testify at
the hearing.
3. On Thursday afternoon, September 27, Amann's secretary telephoned
McIntyre to inform him of a meeting the next morning at 9:00 a.m. on the
reorganization. He was requested to notify the unions representing
employees in the Production Department. McIntyre then went to see Amann
who said he'd just been notified that the reorganization was going into
effect on Monday, October 1. Respondent did not notify individually any
other unions. This was done by McIntyre; it was done at the request of
Respondent; and I find that it was done in his capacity as Chairman of
the Joint Council.
4. At the September 28 meeting, Production Manager Johnson McRorie
passed out an organizational chart (G.C. Exh. No. 14) and stated that
the reorganization was being put into effect on October 1. When
McIntyre asked why that date had been selected, he was told by McRorie
that "we have already changed the data over into the computer as to
October 1st because that is the beginning of the fiscal year and that's
the way it is." In response to inquiries about "impact," McRorie stated
simply that there would be no impact.
5. McIntyre asked McRorie (1) to delay the reorganization so that
the unions could study it and determine if there was an impact, and (2)
if there was an impact, the union wanted to negotiate about it. McRorie
replied that there was no need for delay because. in his opinion, there
would be no impact.
6. At the conclusion of management's briefing the members of the
Joint Council met and voted to authorize McIntyre to file the unfair
labor practice charge herein. All the union presidents who testified
/6/ substantiated the fact that McIntyre, as Chairman of the Joint
Council, had the authority to request, on behalf of the Joint Council
and its constituents locals, a delay in management's implementation of
its reorganization plan and should management have agreed to impact and
implementation negotiations, to have entered into such negotiations at
that time or at a later time.
7. Later that day, McIntyre filled out and completed an unfair labor
practice charge and sent it to the Federal Labor Relations Authority
where it was docketed on October 1, 1980.
8. There is no dispute that the reorganization went into effect on
October 1 as scheduled. D. Objectives of the Reorganization
1. Respondent, in order to demonstrate that the reorganization
concept was really nothing new, introduced into evidence a July 24, 1973
memorandum from Production Manager Rothman to the Public Printer in
which the combining of the press divisions is discussed at length, as
well as the transfer of certain functions to the Electric
Photocomposition Division. /7/ Although the recommendation was not
adopted at that time, I note that the October 1, 1979 reorganization
pretty much followed these 1973 recommendations. Further, I note that
two reorganization objectives mentioned in the 1973 memorandum were as
follows: (a) to eliminate much duplication of effort and (b) to reduce
work schedules.
2. Respondent also introduced into evidence a memorandum (Resp. Exh.
No. 7) dated September 20, 1979 purporting to answer some questions
about the proposed reorganization asked by the Public Printer. In
addition to saving money by eliminating certain supervisory positions,
the reorganization of 1979 had the following additional objectives: (a)
to achieve eventual labor savings through improved efficiency; (b) to
reduce scheduling and other production problems; (c) to adapt more
readily to changes in workload or technology; and (d) to realize other
improvements in operating efficiency and economy. E. The
Reorganization of October 1, 1981
1. According to Respondent, all that happened was that "a simple
paper realignment of divisions and sections within the Production
Department was effectuated." Indeed, Respondent argues that the term
"paper reorganization" is applicable here because no employees were
physically moved and no work was changed as of October 1, 1979.
2. In my opinion, the long planned reorganization was more extensive
in scope than merely changing titles of the Deputy Production Managers.
Indeed, it appears to me that the change of titles was a result of the
reorganization because the new titles reflected the changes brought
about by the transfer of functions performed by employees. Thus, the
Deputy Manager (Electronics) was retitled Deputy Production Manager
(Prepress) because certain prepress functions, including the Copy
Preparation and Negative Sections, were transferred to him. An
objective of this transfer, according to a September 12, 1979 memorandum
of the Production Manager (Joint Exh. No. 2) was to "permit greater
efficiencies and allow a smoother transition from hot metal to
photocomposition processes."
3. Another aspect of the reorganization was discussed in the
September 12, 1979 memorandum as follows:
The existing Letterpress and Offset Division will be merged
under one division entitled the Press Division which will also
include the platemaking functions. The Letterpress and Offset
Press sections will remain separate entities pending the outcome
of the current court action involving the latter. This will
greatly enhance the workload balancing problems encountered under
separate press divisions and facilitate the transition from
letterpress to offset printing.
So, from the foregoing, we see that additional objectives of the
reorganization were to "enhance the workload balancing problems" and to
"facilitate the transition from letterpress to offset printing." This
latter objective belies the contention of Respondent that the merger of
the letterpress and offset divisions was intended to achieve a monetary
savings by eliminating the job of one division superintendent. Saving
the money paid to one managerial official was a byproduct or result of
the reorganization, but it was not the main purpose. Merger of
functions and phasing out letterpress printing were the real objectives.
4. Prior to the reorganization, the Letterpress Division had 5
sections. After the reorganization only two remained intact: Main
Press and Postal Card. The remaining three (Electrotying,
Photoengraving, Stereotyping) were consolidated into one section which
was retitled Photopolymer, consisting of about 32 employees.
5. Prior to the reorganization, the Offset Division had 4 sections.
Afterwards, only 2 remained: Offset Plate and Offset Press. The other
two, Offset Copy Production and Offset Negative, together having about
223 employees, were transferred to the Deputy Production Manager
(Prepress) and placed into the existing Electronic Photocomposition
Division.
6. Prior to the reorganization, the Composing Division consisting of
about 932 employees was one of four divisions reporting to the Deputy
Production Manager (Printing). This entire division was transferred to
the Deputy Production Manager (Electronics) who, as noted above, had
part of his title changed from Electronics to Prepress.
7. The reorganization also resulted in the creation of a new
division named the Production Support Division consisting of 149
employees in 6 sections. It appears that almost all of these employees
were previously a "miscellaneous segment" reporting to the Deputy
Production Manager (Printing) but now reporting directly to the
Production Manager. The new division had a new section called Quality
Control with 12 employees.
8. The employees who were immediately affected by the reorganization
were those who reported to the same familiar job site on Monday but
found themselves under a new superintendent or in a new division. F.
Impact: Change in Policies and Procedures Experienced by Employees
Transferred to a New Division and/or to a New Superintendent
1. In General.
a. A major impact involved in the abolition of the Offset Press
Division was the transfer of each section of the Offset Press Division
to the Press and Electronic Photocomposition Divisions thus placing them
under the control of a new superintendent with his own policies. The
testimony of Sever, Lord, Valentine, Mandelblatt, and Allen establishes
that there were significant differences, particularly from an employee
standpoint, in the procedures, interpretation, and application of
Government Printing Office policies and instructions in the Press
Division and the Electronic Photocomposition Division compared with what
had existed as policy and practices by the superintendent and foremen in
the old Offset Division. Specific incidents are discussed hereinafter.
2. Change in Sick Leave Procedure.
a. Mr. David Sever, President of the Washington Government Photo
Offset Union, Local 538, and an offset platemaker/stripper in the Plate
Section of the new Press Division testified that when the Plate Section
was part of the Offset Division it was the practice of immediate
supervisors to give employees 9 days of personal certification sick
leave each year without subjecting them to discipline or challenge for
abuse of leave. Personal certification sick leave constitutes leave
when an employee presents no doctor's certificate but merely certifies
that he was ill. According to Sever, soon after the reorganization he
was instructed that his members no longer could take 9 days of personal
certification sick leave and that 13 of his employees were being
subjected to review and possible discipline because of their use of sick
leave prior to the reorganization. Sever further testified that he
filed 13 grievances with regard to these employees challenging the
retroactive application of new and stricter standards of sick leave
taken by employees when they were in the Offset Press Division. The
policy of the new Press Division, a carryover from what had been
practiced in the old Letterpress Division, was that an employee was
allowed no specific number of personal certification sick leave. The
grievances went to hearing and were eventually resolved.
b. Mr. Sever's testimony is supported by the credited testimony of
Mr. George Lord who stated that in June 1979 subsequent to being sworn
in as Chapel Chairman for the Third Shift, the assistant foreman in
charge of his section took him up to the night superintendent's office
and introduced him to the superintendent. Upon returning to his desk
the assistant foreman pulled out a letter (G.C. Exh. No. 15), and gave
it to him stating that this was the Offset Division's policy on late and
on sick leave personal certification.
c. Further evidence of a change in sick leave policy comes from the
testimony of Mr. Richard Valentine, a steward for the Graphics Arts
International Union, Local 285, who represents people in the Negative
Section of the Electronic Photocomposition Division, a section formerly
in the Offset Division. He testified that upon their transfer to the
Electronic Photocomposition Division, a supervisor notified employees
that there would be a change in procedure for taking leave such as sick
leave, emergency annual leave and tardiness leave. Under the old
procedure in the Offset Division an employee was allowed to take 9 days
of personal certification sick leave, emergency annual leave, and late
leave. The new procedure in the Electronic Photocomposition Division,
to the contrary, was that employees were only allowed to take 5 days of
such leave without challenge by their supervisors.
d. Mr. Frederick Allen, a printing plant worker and President of
Respondent's Printing Plant Workers Union, supported this testimony when
he testified that one of the major areas of change that resulted from
the abolition of the Offset Division and the transfer of Offset Division
personnel to the new Press Division was that the Press Division, headed
by the former superintendent of the Letterpress Division, followed a
stricter interpretation and application of GPO instructions regarding
sick leave, work assignments, break periods, etc. According to Allen,
the new policies of the Press Division were applied retroactively to
employee-members of his bargaining unit who had taken leave consistent
with the more liberal Offset Division practice and as a consequence were
penalized retroactively for leave that had been taken and approved
previously.
e. In summary the change in sick leave policy affected members of
the Printing Plant Workers Union and employees from the Plate and the
Negative sections. The change was directly related to the transfer of
Offset Division employees to EPD as well to the merger with Letterpress.
Although the change was not plant-wide in scope, it certainly was not
confined to one small section as alleged by Respondent.
3. Change in Probing In and Out Procedure
a. The Probe Machine apparently is a combination of a time clock and
a computer terminal. When an employee inserts his identification badge
into the machine in the morning, he is in effect punching a time clock
and recording his attendance. One of the effects of living in a
computer age is that an employee no longer "punches" in and out rather,
he "probes" in and out. Of course, one of the main purpose of the probe
machine is to record other information. Thus, at the end of the day, an
employee's production data can be recorded on the machine simply by
inserting one's identification badge into the machine and at the same
time pressing certain pre-programmed numbers and production codes. Use
of the probe machine for this purpose serves to eliminate the need for
handwritten reports on sheets of paper from each employee.
b. Prior to reorganization, employees could begin probing out at
4:06 p.m. so as to be through by 4:30 p.m. As a result of the
reorganization and the shift of employees from the Offset Division to
the Electronic Photocomposition Division, under different ultimate
supervision and different managerial policies, the employees had to
change their departure probe from 4:06 p.m. to 4:15 p.m. to conform to
the rest of their new division. Clearly, this was a change in working
conditions. In addition, the employees had to probe out twice whereas,
prior to the reorganization, they only probed out once. This was also a
change in working conditions. As things worked out, the new departure
probe time of 4:15 p.m. caused delays and disputes as employees leaving
the job site competed for positions on the computer with the incoming
shift. In addition, employees experienced a loss of cleanup time "on
the clock." The resulting problem was eventually solved by changing the
time to 4:10 p.m. The foregoing facts are based upon the testimony of
Irwin Mandelblatt, a shop steward of GAU Local 285 and a copy prep
journeyman stripper in the Electronics Photocomposition Division (EPD).
His section formerly was part of the Offset Division. This testimony is
corroborated by Mr. Richard Valentine, a stripper in the Offset Negative
Section which was transferred from the Offset Division to EPD.
c. Use of the probe machine was also related to another change as
illustrated by the testimony of Mr. Sever. Prior to the reorganization
Plate Section employees filed written reports of their work production.
Afterwards, they were required to use the probe machine for this
purpose. In its brief, Respondent described this as a minor change in
the method of recording work.
4. Alleged Changes in a Training Program
a. The General Counsel contends that a further consequence of the
reorganization and the disestablishment of the Offset Division was
established by Mr. Greer and Mr. Allen. Greer testified that during the
time the Negative Section was in the Offset Division his union, the
Graphic Arts Union, Local 285, negotiated a training program to furnish
upward mobility for printing plant workers who were identified as Offset
Photographers Assistants so that they could become offset Photographers
Apprentices. According to Greer, he heard a rumor that employees in the
training program would not be moved up to journeyman status as
originally planned in the program. He thereupon went to the head of the
Electronic Photocomposition Division who, according to Greer, told him
that because of the excess of personnel now in the division he couldn't
say with any reasonable degree of certainty that these people would
continue to journeyman status in that program (Tr. 132, 142). This
meeting was in February 1980, at least four months after the
reorganization. On cross examination, Mr. Greer conceded that the
excess of people had been there "for sometime" but asserted that the
reorganization had a chilling effect on the training program. Mr. Wood
denied telling Greer that employees would not reach journeyman status.
b. Mr. Allen, the President of the Printing Plant Workers Union,
testified that another aspect of the training program was that printing
plant workers, who are semi-skilled employees, would not be assigned any
further skilled duties normally within the jurisdiction of Greer's craft
Union unless they were given an opportunity to enter into the training
program which would lead eventually to the employees being given
journeyman status within the Graphic Arts Union. According to Allen,
this was being ignored by the new management.
c. I can understand the concern expressed by Greer and Allen, and if
the alleged change could be more specifically identified I would agree
that an adverse impact was possible. But much of this testimony is
based on speculation and feelings. As of the date of the hearing, 8 1/2
months had elapsed since the reorganization. Certainly, this was an
ample period of time in which to gather evidence about specific changes
in the training program adversely impacting on employees. Accordingly,
I find that the General Counsel has not established by this evidence any
adverse impact directly related to or resulting from the reorganization.
5. Alleged Changes in Emergency Snow Procedures
a. I am not persuaded by the testimony of Mr. Richard Valentine that
the reorganization resulted in a change of policy with respect to
identifying asserted personnel for purposes of emergency snow
conditions. Even if such a change occurred, the effect on employees was
minimal and would not constitute adverse impact, in my opinion. G.
Impact: Probable Changes Resulting From the Transfer of the Composing
Division
1. As previously noted, the reorganization had purposes and
objectives which were not to be achieved overnight. But there can be no
question that the reorganization was an instrument for change. In terms
of its immediate and eventual impact on employees, the most significant
change was the transfer of the Composing Division from the Deputy
Production Manager, Printing to the Deputy Manager, Prepress. Joint
Exhibit No. 2 clearly establishes that the major purpose of this
reorganization, combined with the transfer of the Offset Copy
Preparation and Negative Sections to the Electronic Photocomposition
Division was to promote greater efficiency and allow for a smoother
transition of work from hot metal processes to photocomposition
processes. A specific example of how this consolidation of work was to
occur is found in Respondent's Exhibit No. 7, a letter from the Deputy
Public Printer to the Public Printer responding to certain questions
concerning the reorganization. Question No. 6 in this memo asks whether
or not thought has been given to creating a common proof room. In
response to this question the Deputy Public Printer states:
The establishment of a single proof room is definitely one of
the major objectives of the proposed reorganization. This section
would combine main proof, EPD proof, patents proof, and job proof,
and would be planned to become operational concurrently with the
transition of the Congressional Record to Photocomposition. This
change-over is planned for January 1981, when the first session of
the Ninety-Seventh Congress convenes. (Resp. Exh. No. 7).
2. Mr. William Boarman, President of Columbia Typographical Union,
#101, testified that prior to the reorganization his Union was the only
craft Union in the Electronic Photocomposition Division and it had
exclusive recognition for purposes of collective bargaining throughout
the Division. As a result of the reorganization there are now two
separate craft units with different rates of pay, etc. within the
Electronic Photocomposition Division operating under the same division
supervision. Thus, the General Counsel contends that a possible impact
of the reorganization is that there is now a possibility for a
requirement of a unit clarification regarding the jurisdiction of the
two craft Unions in the Electronic Photocomposition Division.
3. Boarman also testified that promotional opportunities in the
Electronic Photocomposition Division which were primarily, if not
solely, filled by employees from his craft, are now filled in part by
employees from an additional craft and thus, he asserts, there has been
an impact on promotional opportunities for his people.
4. Now that the Deputy Production Manager for Prepress is in charge
of the Electronic Photocomposition Division and the Composing Division,
he has, as a result of his increased authority, began a program to
combine the operations of both divisions in certain areas.
Specifically, Boarman referred to the combining of the Proof and Copy
Mark-up Sections in the Electronic Photocomposition Division with the
Proof Section of the Composition Division (Resp. Exh. 7; Tr. 207, 215).
According to Boarman, the result of this combination will be that some
of the "up-rates", employees within his bargaining unit, will be
classified "surplus" employees. Boarman complained that there had, at
the time of the reorganization, been no negotiations to provide for the
impact of such consolidation on employees. (See also G.C. Exh. No. 16).
Also, according to Boarman, the Monotype Section in the Composing
Division is scheduled, as a result of the consolidations made possible
under this reorganization, to be closed down. The area where the
Monotype Section is presently located, on the 7th Floor of the
Government Printing Office, is to be renovated for a new combined Proof
Room. Employees in the Monotype Section are to be moved to the Hand
Section in the Composing Division which is located on the 6th Floor and
"up-rate" employees in the Monotype Section and supervisors in that
section will be declared "surplus" because "up-rate" bargaining unit
positions in the Hand Section are already filled. Again there has been
no negotiation on the impact and implementation of these changes which
are closely related to the reorganization and are planned to inevitably
flow from it. (See also G.C. Exh. No. 16). McRorie, Respondent's
Production Manager, supported this contention by Mr. Boarman when he
admitted that it is the intention of the Respondent to transfer all work
eventually from the Composing Division to the Electronic
Photocomposition Division and that one of the major results of the
reorganization is that work can now easily be shifted by the Deputy
Production Manager Prepress from the Composing Division to the
Electronic Photocomposition Division. Elmo Wood also testified that the
two divisions eventually will be "merged and become one." H. Impact:
Changes Resulting From the Establishment of the Photopolymer Plate
Section
1. Prior to the reorganization there were three separate sections:
Electrotyping, Photoengraving, and Stereotyping. The reorganization had
the effect of formally abolishing these individual sections,
consolidating them altogether as one, and retitling the new section as
the Photopolymer Plate Section. This was more than a change of name.
As correctly pointed out by the General Counsel, and as any craft
employee would readily know, the Respondent thereby implemented an
"official" change in "status" of the Photoengraving Section from that of
a section which did primarily photoengraving work to that of a section
whose primary responsibility, and hence name, would be that of
Photopolymer Plate Making. Not only were the employees in these three
sections merged together and given a new name, but to add to the
confusion, the Letterpress Division (of which it was part) was merged
with the Offset Press Division.
2. The purpose of the reorganization was to greatly enhance the
workload balancing problems encountered by having separate press
divisions and to facilitate the transition of work from letterpress to
offset printing. (Jt. Exh. No. 2). One of Respondent's exhibits, a
letter from the Deputy Public Printer to the Public Printer contains the
following statement:
"The Photoengraving Section is to be renamed to Photopolymer
Plate Section to more accurately indicate its primary function.
This section will of course continue to produce magnesium cuts for
envelope work and other metal engraving as long as they are
needed. Consideration is being given to incorporating the
Photopolymer Plate Section as a unit under the Offset Plate
Section." (Resp. Exh. No. 7, p. 3).
These two exhibits establish that the purpose and objective of the
reorganization and the change in name from Photoengraving Section to
that of Photopolymer Plate Section was to implement management's overall
intention to change the way and manner in which work was done at the
Agency. Thus management intended to merge the letterpress and offset
press functions as a means of facilitating the transition of work from
Letterpress to Offset Printing thus abolishing the need, eventually, to
have a separate Photopolymer Plate Section.
3. With this as background one can more easily understand the
testimony of Mr. John Greer, President, Graphic Arts Union, Local 285,
and that of his Special Assistant Mr. Anthony Gonzales, that the change
of the section's name from Photoengraving to that of Photopolymer Plate
Section not only foretold the future but in and of itself constituted an
impact on employees in that section. Greer and Gonzales established
that there is at least 50 year history of tying employees' job
classification to the title of the section in which they work, and as a
consequence and because the rates of pay in this section are related to
the rates of pay in private industry, anything that would support a
change in the classification of employees from that of Offset
Photographers to that of Photopolymer Platemakers has an actual as well
as potential impact on employees in that section.
Issues
A. Whether there is any statutory prohibition to the filing of
an unfair labor practice charge by the Joint Council?
B. Whether the Joint Council herein was authorized to act as
the bargaining agent for the exclusive representatives?
C. Whether Respondent had an obligation to bargain because
there was a reasonable likelihood that the reorganization would
result in an adverse impact, immediately or in the future, on
employees in the production department?
D. Whether Respondent failed to provide the exclusive
representatives with adequate notice of its decision to reorganize
the production department?
E. Whether Respondent refused to bargain with the Joint
Council as the designated agent of the exclusive representatives?
Discussion and Conclusions of Law
A. Status of the Joint Council
At the hearing Respondent challenged the right of the Joint Council
to file an unfair labor practice charge. In its brief, Respondent
contends that the Council is not a labor organization which is the
exclusive representative of any employees in the Government Printing
Office and, therefore, Respondent had no statutory obligation to
negotiate with the Council. These contentions are without merit.
Section 7118(a)(1) of the Statute and the implementing regulatory
section, Section 2423.3 provide, in effect, that a charge may be filed
by "any person," and Section 7103(a)(1) of the Statute provides that a
person means "an individual, labor organization, or agency." Thus, the
Statute requires that any individual or entity which is encompassed
within the statutory definition of "person" set forth in Section
7103(a)(1) of the Statute may file a charge alleging an unfair labor
practice under any subsection of Section 7116 of the Statute.
Accordingly, any "employee" within the meaning of Section 7103(a)(2) of
the Statute, and any "labor organization" within the meaning of Section
7103(a)(4) of the Statute has standing to file a charge alleging an
unfair labor practice under Section 7116 of the Statute. The filing of
such charge invokes the General Counsel's jurisdiction to investigate
the unfair labor practice and, if timely filed, consider such charge on
the merits.
The evidence herein establishes that Mr. McIntyre is an employee of
the Respondent, Chairman of the Joint Council, and President of one of
its constituent locals. The evidence also establishes that the Joint
Council is the designated agent of all seven Unions in the Production
Department and had the function of representing the interests of such
Unions in negotiations with management on matters of common concern.
Finally, the evidence establishes that when McIntyre filed the charge
herein, he had been specifically authorized by the membership of the
Joint Council to do so. Accordingly, I conclude that the charge herein
was properly filed whether it was filed by Mr. McIntyre as an
individual, or by Mr. McIntyre as the Chairman of the Joint Council, the
authorized representative of the seven constituent locals who had units
of recognition in the affected Production Department.
Respondent has offered nothing sufficient to challenge the authority
of Mr. McIntyre, or the Joint Council, to act as agent for its
constituent locals of the Council, as established by the Union
presidents. Indeed, the evidence establishes that Respondent itself
recognized the role of the Chairman McIntyre of the Joint Council when
Mr. Amann's secretary called him on September 27 and requested him to
notify the other unions of the next day's meeting to discuss the
reorganization. I find and conclude that the Joint Council was the
designated agent of its constituent locals in the Production Department
and had authority to request Respondent to delay the reorganization and
to negotiate impact and implementation of the reorganization decision.
B. Other Pertinent Statutory Provisions
1. Section 7116(a) makes it an unfair labor practice for an agency -
"to interfere with, restrain, or coerce any employee in the exercise by
the employee of any right under this chapter" and (5) "to refuse to
consult or negotiate in good faith with a labor organization as required
by this chapter."
2. Section 7106 (the Management Rights section) states as follows:
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
(1) to determine the mission, budget, organization, number of
employees, and internal security practices of the agency; . . .
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating-- . . .
(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
C. Contention of the Parties
1. There is no dispute that Respondent's decision to conduct a
reorganization was a management right under Section 7106(a) of the
Statute and not negotiable. However, the General Counsel contends that
Respondent has an obligation to negotiate about Section 7106(b)(2)
"procedures" and Section 7106(b)(3) "arrangements for employees
adversely affected."
2. Respondent asserts in its brief that it is fully cognizant of its
obligation to negotiate with an exclusive representative before it
effectuates a decision which has adverse impact on employees within a
bargaining unit. But in order to conclude that impact is "adverse,"
Respondent asserts that impact must be substantial and meaningful. More
importantly, impact must be actual, not speculative. On this latter
point, Respondent contends that about every act of management is of some
interest to employees, but from this it does not necessarily follow that
every act has a material and substantial impact on employees and their
conditions of employment. With respect to the instant case, Respondent
argues that the alleged change in sick leave policy and the actual
change in probing in and out were relatively minor and insignificant
matters which did materially impact on employees and therefore did not
constitute adverse impact. With respect to the remainder of the General
Counsel's case, Respondent asserts that the alleged impact is pure
speculation and should be accorded no significance.
4. The General Counsel contends that the language of Section 7106(a)
of the Statute establishes the "primacy of negotiated procedures over
the exercise of management rights" by making subsection (a) subject to
the provisions of subsection (b). The legislative history relied upon
to support this argument are statements made by Congressman William Ford
(124 Cong.Rec.H. 13607, Daily Ed., October 14, 1978). However, since
these statements were made after the enactment of the Statute, they do
not constitute evidence of Congressional intent. /8/ C. Nature of
Impact
1. The central issue in this case resolves around the kind of impact
to be shown, if any, and the nature of such impact. Section 7106(a) of
the Statute has its genesis in Section 11(a) of the Executive Order
11491, as amended. Cases arising under the Executive Order and the
Statute clearly demonstrate that an agency's obligation to negotiate is
not intended to embrace every issue which is of general interest to
employees but may only affect them indirectly or in an unsubstantial
way. /9/ Thus, in cases arising under the Executive Order, a
"substantial impact" test has come into existence and been applied
uniformly in numerous cases. Indeed, the Assistant Secretary, in a case
under the Order stated quite clearly that Section 11(a) (now Section
1706(a) under the Statute) encompassed matters which materially affect
employees and have a substantial impact on personnel policies, practices
and general working conditions. /10/ Complaints have been dismissed
when the substantial impact test has not been met.
In the present case, and since I am of the opinion that a substantial
impact test should be applied to cases arising under the Statute, /11/
the issue is whether the substantial (or adverse) impact must actually
be shown to have occurred (i.e. actual impact) or whether it is
sufficient to show that it probably will occur at a future date.
It is my conclusion that the legal principle to be applied to this
case is as follows: An agency's obligation to negotiate is contingent
upon first showing by a preponderance of the evidence that the
unilateral change in conditions of employment has resulted or may
reasonably be expected to result in substantial impact adversely
affecting employees. Thus, the foregoing test encompasses both actual
and probable impact, but in either case the impact must be "substantial"
and must "result from" the change in question. Of course, the burden of
proof would be with the General Counsel.
1. Actual impact. This may occur contemporaneously with the change
or at a later date, but when it happens, it is specific and
identifiable. It has really happened and there's no need for
speculation. This is illustrated herein by the change in sick leave
policy and the change in the probing in and out procedure. In
disagreement with Respondent, I find that these changes had substantial
impact on the affected employees. These changes occurred in close
proximity to the date of the reorganization and resulted from the
reorganization. The General Counsel attempted to show that the
reorganization also resulted in changes in the upward mobility training
program but, in my opinion, the evidence was insufficient to establish
such a change and, therefore, the question of impact is not reached.
The General Counsel also alleged that subsequent to the reorganization
there were changes in the procedure for determining essential personnel
in emergency snow conditions. Although these changes did occur after
the reorganization, the evidence did not persuasively establish that the
change resulted from the reorganization or that it materially affected
employees in a meaningful way so as to warrant the conclusion that it
constituted substantial or adverse impact.
2. Probable Impact. Not every change in conditions of employment
results in an immediate impact of substantial nature. But the lack of a
substantial impact should not preclude finding an obligation to
negotiate. If an agency changes its RIF procedures, a union should not
have to wait until an employee is terminated before requesting
negotiations concerning the impact and implementation of the change. If
an agency changes its promotion procedures, a union should not have to
wait until an employee is refused promotion before insisting on
negotiations. Whenever an agency institutes a change in conditions of
employment without affording the exclusive representative an opportunity
to request negotiations, the agency acts at its peril.
In determining whether an agency has acted in derogation of its
collective bargaining obligations, the question to be answered is simply
this: Was there a reasonable likelihood /12/ that the change would
result in a substantial impact adversely affecting employees, either
immediately or in the future? Phrased in this manner, an agency may not
escape its statutory obligation by asserting, as Respondent does herein,
that there has been no impact-- yet. Nor can the General Counsel too
easily satisfy its burden of proof by arguing that adverse impact
"could" happen, "might" happen or is "possible" of happening at some
vague indefinite time in the future. /13/ A fair compromise between
these two extreme positions is to require the General Counsel, in the
absence of actual substantial impact, to prove there was a reasonable
likelihood of substantial impact resulting in the future from the
agency's unilateral change. On balance, I believe this would be a fair
but not onerous burden of proof.
In my opinion the "reasonable likelihood" test is applicable to and
very well illustrated by the facts of this case. Indeed, the Joint
Council and its member unions were less concerned with the actual
adverse impact (sick leave, changing the probe procedure, etc.) than
they were with the probable and more serious adverse impact (loss of
jobs, lower pay and fewer promotional opportunities) slated for the
future. Respondent asserts that there is no hard evidence of future
changes and that the General Counsel's case is built upon speculation by
the Union witnesses who testified. I disagree. It is clear from the
testimony of Respondent's own witnesses and documentary evidence as
well, that elimination of jobs was a principal objective of the
reorganization. The abolishment of sections and the merger of divisions
were the first steps in the game plan, but the ultimate objectives were
clear. Based upon my review and analysis of the entire record, I
conclude that as a result of the reorganization of the production
department there was a reasonable likelihood that promotional
opportunities would be diminished and that employees would lose their
jobs. There can be no question that such a result would adversely
affect employees. Accordingly, Respondent had an obligation to
negotiate the impact and implementation of its decision to institute the
reorganization.
The reasonable likelihood test that I have utilized in evaluating the
evidence herein may sound new, but it is not. Rather, I am merely
making explicit what has been implicit all along in decisions by the
Assistant Secretary and the Authority. To illustrate this point, I
refer to a recent decision by the Authority in San Antonio Air Logistics
Center (AFLC), Kelly Air Force Base, Texas, 5 FLRA No. 22 (February 17,
1981). Such terminology as actual, immediate, probable, and reasonably
likely were not expressly used in the decision, but here is what
happened. The Activity in that case changed its appraisal Guidelines.
While this did not have an immediate adverse impact, the eventual
application of the guidelines to employees resulted in a lowering of
scores, by the date of the hearing. But even without this evidence of
actual impact at a later date, it seems clear that the very nature of
the change carried with it a reasonable likelihood that employees'
scores would be adversely affected because an underlying reason for the
new Guidelines was to correct a problem of a disproportionate number of
high scores the preceding year. In the case case, the Activity also
cancelled certain GS-8 positions and replaced them with WG-11 positions
and characterized this maneuver as the establishment of a new position
rather than the reclassification of an old one. Although no employees
suffered an immediate pay reduction, it was held that the change
resulted in a lower pay scale. Thus, we see that the reason for finding
substantial impact was not because any employees were, in fact,
adversely affected but, rather, because there was a reasonable
likelihood that employees would be adversely affected in the future by
this change.
Another case by the Authority is also important. Department of the
Treasury, Internal Revenue Service, Jacksonville District, 3 FLRA No.
103 (July 17, 1980). There, the Respondent unilaterally adopted new
time schedules for the processing of cases. The effect of the change
was to reduce the optimum time frame for the timely processing of a
case-- before it became overage-- from 18 to 12 months. There was no
immediate adverse effect on employees and Respondent contended there was
no actual impact because the new time frame had not been enforced. In
rejecting this contention, the Administrative Law Judge stated as
follows:
The absence of enforcement of same carries little weight in the
absence of any statement from the supervisory hierarchy assuring
continuance of such practice. In the absence of such a statement
the affected employees have no way of knowing what the future
holds with respect to adherence to the March 14th memorandum.
The Authority adopted the Administrative Law Judge's findings,
conclusions, and recommendations.
Turning back to the case before me, the Joint Council and its
constituent locals were not really concerned with the changes in
supervisory and managerial assignments. Rather they were concerned--
and with good reason-- that the abolishment of sections, merger of
divisions and creation of the Photopolymer Section, were all leading in
one direction: loss of jobs and lower pay. The reorganization was an
integral and critical first step in the process and the Joint Council
wanted to be in on the ground floor to negotiate probable impact before
it was too late. Only by objecting in a timely manner could the unions
avoid criticism at a later date that they had slept on their legal
rights. Here, the unions, through the Joint Council, promptly filed an
unfair labor practice charge but even this did not give the Respondent
pause. The reorganization was instituted as scheduled. D. Adequacy of
Respondent's Notice
1. The General Counsel contends that the failure to provide timely
and sufficient notice of the decision in order to afford ample
opportunity for the unions to study the reorganization plan prior to its
implementation was an "ipso facto" violation, irrespective of any actual
impact. I reject the contention that before an agency exercises any
reserved management right it has an obligation to notify the union so
that it may request bargaining about 7106(b)(2) procedures, irrespective
of any showing of substantial impact. /14/
2. My understanding of the law is that Respondent's obligation to
provide adequate notice is contingent upon first establishing an
obligation to bargain. /15/ In the present case, I have determined that
the decision to reorganize the production department had (1) an actual
adverse impact and (2) a reasonable likelihood of future adverse impact.
Therefore, Respondent had an obligation to negotiate the impact and
implementation of its decision. To fulfill this bargaining obligation,
Respondent had an obligation to provide timely and sufficient notice.
/16/ Clearly, the Respondent failed to satisfy this obligation when it
waited until Friday morning September 28 to announce that there would be
a reorganization and it would be instituted on Monday October 1.
Furthermore, I conclude that Respondent, having already programmed its
computer to the new setup, had no intention of even considering a delay
in the reorganization. As Production Manager McRorie said to McIntyre
"we have already changed the data over into the computer . . . and
that's the way it is."
3. Respondent's inadequate notice and its refusal to delay the
reorganization was in derogation of its statutory obligation to
negotiate the "impact and implementation" of its decision. More
specifically, in statutory terminology, Respondent had an obligation
under Section 7106(b)(2) to negotiate the procedures to be followed in
implementing the reorganization, and it had an obligation to negotiate
under Section 7106(b)(3) appropriate arrangements for employees
adversely affected by the reorganization. /17/ Accordingly, I conclude
that Respondent violated Section 7116(a)(5) by its conduct. /18/
Moreover, it is well settled that a violation of any subsection of
Section 7116(a) necessarily tends to interfere with, restrain, or coerce
employees in the exercise of their rights assured by the Statute and
therefore is also a violation of Section 7116(a)(1). /19/
Having found that Respondent has engaged in conduct violative of
Sections 7116(a)(1) and (5) of the Act, I recommend that the Authority
issue the following order designed to effectuate the purposes of the
Federal Service Labor-Management Relations Statute.
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the U.S. Government Printing Office shall:
1. Cease and desist from:
(a) Any further implementation of the October 1, 1979
reorganization of the Production Department without first
notifying the Joint Council of Unions, Government Printing Office,
the agent of the employees' exclusive bargaining representatives,
and affording it a reasonable opportunity to negotiate, to the
extent consonant with law and regulations, on (1) the procedures
to be observed in any further implementation of the
reorganization, and (2) the arrangements for employees who have
been or may be adversely affected by the reorganization.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Upon request by the Joint Council of Unions, Government
Printing Office, the agency of the employees' exclusive
representatives, negotiate, to the extent consonant with law and
regulations, (1) the procedures to be observed in implementing the
reorganization of its Production Department, and (2) the
arrangements for employees who have been or may be adversely
affected by the reorganization.
(b) Post at all facilities wherein there are bargaining unit
employees represented by constituent locals of the Joint Council,
copies of the attached Notice marked "Appendix a" on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt
of such forms they shall be signed by the Public Printer and shall
be posted and maintained for a period of 60 consecutive days
thereafter, in conspicuous places, including bulletin boards and
other places where notices to employees are customarily posted.
The Public Printer shall take reasonable steps to insure that such
notices are not altered, defaced, or covered by any other
material; and
(c) Notify the Federal Labor Relations Authority, in writing,
within 30 days from the date of this order as to what steps have
been taken to comply herewith.
FRANCIS E. DOWD
Administrative Law Judge
Dated: April 9, 1981
Washington, D.C.
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute any further changes in personnel policies,
practices, and working conditions as a result of the reorganization of
the Production Department, without first notifying the Joint Council of
Unions, Government Printing Office, the agent of the employees'
exclusive bargaining representatives, and affording it an opportunity to
negotiate, to the extent consonant with law and regulations, on (1) the
procedures to be observed in any further implementation of the
reorganization of the Production Department, and (2) the arrangements
for employees who have been or may be adversely affected by the
reorganization. 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, to the extent consonant with law and regulation, afford the Joint
Council of Unions the opportunity to negotiate concerning any changes
affecting personnel policies, practices, or working conditions, related
to the reorganization of the Production Department including (1) the
procedures to be observed in any further implementation of the
reorganization of the Production Department and (2) the arrangements for
employees who have been or may be adversely affected by the
reorganization.
(Agency or Activity)
Dated: . . . (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 its provisions, they
may communicate directly with the Regional Director for the Federal
Labor Relations Authority whose address is: 1133 15th Street, NW.,
Suite 300, Washington, D.C. 20005
--------------- FOOTNOTES$ ---------------
/1/ Section 7106(b) of the Statute provides in pertinent part:
Sec. 7106. Management rights
. . . .
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
/2/ Section 7106(a)(1) provides in pertinent part:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
(1) to determine the . . . organization . . . of the agency(.)
/3/ The Authority finds it unnecessary, in the circumstances of this
case, to distinguish between the nature of the bargaining obligations
arising under section 7106(b)(2) and (3). See generally American
Federation of Government Employees, AFL-CIO, Local 2782 and Department
of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA No. 13
(1981), rev'd sub nom. American Federation of Government Employees,
AFL-CIO, Local 2782 v. Federal Labor Relations Authority, 702 F.2d 1183
(D.C. Cir. 1983) (wherein the Court described section 7106(b)(2) as a
provision which was intended to "clarify" the dichotomy between
management's substantive rights governed by section 7106(a) and matters
of procedure, but described section 7106(b)(3) as a provision which was
intended as an "exception" to or a "limit" on management's prerogatives
set forth in section 7106(a)).
/4/ This is not to say that an agency is required to notify the
exclusive representative of its employees every time it decides to
exercise a management right under section 7106 of the Statute. Thus,
where the exercise of a management right has not changed conditions of
employment so as to have an impact on bargaining unit employees and such
impact cannot reasonably be foreseen, management's failure to have
provided prior notice thereof to the exclusive representative will not
be found to have violated section 7116(a)(1) and (5) of the Statute.
See, e.g., Office of Program Operations, Field Operations, Social
Security Administration, San Francisco Region, 5 FLRA No. 45 (1981).
/5/ In its brief Respondent takes exception to my prehearing ruling
denying a Motion for More Definite Statement. The purpose of the motion
was "to elicit specific information" because in civil litigation a
"responding party is entitled to know upon what facts the complaining
party is basing his allegations." To the extent that Respondent's motion
is in the nature of a Request for a Bill of Particulars it was denied
because the complaint, in my opinion, is sufficiently specific and
detailed to apprise the Respondent of the issues and to enable
Respondent to prepare for the hearing. To the extent that Respondent is
seeking discovery of the General Counsel's evidence in advance of the
hearing, I reaffirm my previous denial of the motion for the reasons set
forth in General Counsel's opposition to the motion.
/6/ Mr. McIntyre, President, Washington Printing and Graphic
Communications Union, Local 1; Mr. Sever, President, Washington
Government Photo Offset Union, Local 538; Mr. Greer, President, Graphic
Arts Union, Local 285; Mr. Allen, President, Washington Printing Plant
Workers Union, Local 713; and Mr. Boarman, President Columbia
Typographical Union, # 101.
/7/ Upon reconsideration, I reverse my ruling at the hearing and
receive Resp. Exh. No. 6 into evidence.
/8/ United States v. United Mine Workers of America, 330 U.S. 258
(1947); National Woodwork Mfgs. Ass'n v. N.L.R.B., 386 U.S. 639 (1967);
Blanchette v. Connecticut Insurance Corps., 491 U.S. 102 (1974).
/9/ Department of Defense, Air National Guard, 6 A/SLMR 591.
/10/ Department of Defense, Air National Guard, 6 A/SLMR 591; Social
Security Administration, 2 FLRA No. 27 (1979) Report No. 23.
/11/ In a case decided under the Statute, the Authority has upheld
the substantial impact requirement. See Office of Program Operations,
Field Operations, Social Security Administration, San Francisco Region,
5 FLRA No. 45 (March 20, 1981).
/12/ Webster's New World Dictionary defines likelihood as "the fact
of being likely to happen; probability." Used in this sense the word
"likely" according to Webster's suggests "probability or an eventuality
that can reasonably be expected."
/13/ An agency should not be required to bargain about the impact and
implementation of every management decision simply because there is a
possibility, however remote and unrealistic, of adverse impact. Such a
requirement would be unduly burdensome and could indirectly interfere
with management's 1706(a) decisional authority by causing unreasonable
delay or so constrict management's discretion as to effectively deny
that right altogether. Report of the Federal Labor Relations Council,
January 1970/December 1976 (FLRC 77-2). But see, Department of Health,
Education and Welfare, Social Security Administration, BRSI,
Northeastern Program Service Center, 8 A/SLMR 1237, at 1243, (1978),
affirmed 1 FLRA 19, relied upon by the General Counsel to support a
contention that "possible" impact is negotiable.
/14/ In its brief (p. 18), the General Counsel contends that even if
I find "no substantial adverse impact, there is . . . an obligation to
negotiate procedures, and procedures (sic) for employees adversely
affected if the adverse affect was at least de minimus." In my view,
substantial impact is a precondition to triggering an agency's
obligation under both Sections 7106(b)(2) and (3) in cases involving
unilateral change.
/15/ Department of Treasury, Internal Revenue Service, 7 A/SLMR 255.
/16/ Federal Aviation Administration, 4 A/SLMR 497; Aircraft Fire
and Rescue Division, Naval Air Station, Norfolk, Virginia, 3 FLRA No.
18; Department of the Treasury, 7 A/SLMR 421 (1977).
/17/ Under the Executive Order, the terms "implementation" and
"procedures" were used interchangeably. Department of the Treasury, 8
A/SLMR 1188, fn. 8 (1978).
/18/ Where the exclusive representative has not been afforded
reasonable notice of a proposed change, there is no requirement that a
request for bargaining be made after the fact to establish a violation.
Department of the Treasury, Internal Revenue Service, Austin Service
Center, A/SLMR No. 1187 (1978).
/19/ Small business Administration, 6 A/SLMR 350.