[ v17 p254 ]
17:0254(38)CA
The decision of the Authority follows:
17 FLRA No. 38
U.S. GOVERNMENT PRINTING OFFICE
Respondent
and
COLUMBIA TYPOGRAPHICAL UNION NO. 101
INTERNATIONAL TYPOGRAPHICAL UNION
Charging Party
Case Nos. 3-CA-20109
3-CA-20386
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain of the unfair labor practices alleged in the consolidated
complaint, and recommending that it be ordered to cease and desist
therefrom and take certain affirmative action. The Judge further found
that the Respondent had not engaged in certain other alleged unfair
labor practices and recommended dismissal of the consolidated complaint
with respect to them. Exceptions to the Judge's Decision were filed by
the Respondent.
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, /1/ conclusions /2/ and recommended Order.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, it is hereby ordered that the U.S.
Government Printing Office shall:
1. Cease and desist from:
(a) Failing to provide the Columbia Typographical Union No. 101,
International Typographical Union, the exclusive representative of
certain of its employees, appropriate notice of, and the opportunity to
be present at, formal discussions between employees in the bargaining
unit, or their representatives, and representatives of the agency,
concerning personnel policies or practices or other general conditions
of employment.
(b) Unilaterally changing on March 1, 1982, aspects of the existing
proofreader training program without first notifying Columbia
Typographical Union No. 101, International Typographical Union, the
exclusive bargaining representative of said employees, and affording it
the opportunity to bargain concerning the procedures to be observed in
implementing such changes and concerning appropriate arrangements for
employees affected thereby.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Provide the Columbia Typographical Union No. 101, International
Typographical Union, the exclusive representative of certain of its
employees, with appropriate prior notification of, and an opportunity to
be represented at, formal discussions between representatives of the
agency and its bargaining unit employees or their representatives,
concerning personnel policies or practices or other general conditions
of employment.
(b) Notify the Columbia Typographical Union No. 101, International
Typographical Union, of any intention to change the existing proofreader
training program and, upon request, bargain with it concerning the
procedures to be observed in implementing such changes and concerning
appropriate arrangements for employees affected.
(c) Post at its facilities in Washington, D.C., 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
Director of the U.S. Government Printing Office, or his designee, in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to insure that such Notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director, 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.
IT IS FURTHER ORDERED that the consolidated complaint in Case Nos.
3-CA-20109 and 3-CA-20386, insofar as it alleges that the exclusive
representative was bypassed at the February 24, 1982 meeting in
violation of section 7116(a)(1) and (5) of the Statute, be, and it
hereby is, dismissed.
Issued, Washington, D.C., March 20, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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 fail to provide the Columbia Typographical Union No. 101,
International Typographical Union, the exclusive representative of
certain of our employees, with appropriate prior notice of, and the
opportunity to be present at, formal discussions between employees in
the bargaining unit, or their representatives, and representatives of
the agency, concerning personnel policies or practices or other general
conditions of employment. WE WILL NOT unilaterally change the existing
proofreader training program without first notifying Columbia
Typographical Union No. 101, International Typographical Union, the
exclusive bargaining representative of our employees, and affording it
the opportunity to bargain concerning the procedures to be observed in
implementing such changes and concerning appropriate arrangements for
employees affected thereby. WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in the exercise of
their rights assured by the Statute. WE WILL provide the Columbia
Typographical Union No. 101, International Typographical Union, the
exclusive representative of certain of our employees, with appropriate
prior notification of, and an opportunity to be represented at, formal
discussions between representatives of the agency and our bargaining
unit employees or their representatives, concerning personnel policies
or practices or other general conditions of employment. WE WILL notify
the Columbia Typographical Union No. 101, International Typographical
Union, of any intention to change the existing proofreader training
program and, upon request, bargain with it concerning the procedures to
be observed in implementing such changes and concerning appropriate
arrangements for employees affected.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature) This Notice must remain posted for
60 consecutive days from the date of posting, and must not be altered,
defaced, or covered by any other material. If employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Federal Labor Relations Authority, Region III, whose address is: 1111
18th Street, N.W., Suite 700, P.O. Box 33758, Washington, D.C.
20033-0758 and whose telephone number is: (202) 653-8456.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 3-CA-20109, 3-CA-20386
Neal Fine, Esq.
For the Respondent
Eileen Hamamara Miller, Esq.
For the General Counsel
William J. Boarman
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding arising under the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (herein called
the Statute). It is based on a second amended charge filed on April 13,
1982 in Case No. 3-CA-20109, and a first amended charge filed on May 4,
1982 in Case No. 3-CA-20386 - all by Columbia Typographical Union No.
101, International Typographical Union (herein called the Union) against
U.S. Government Printing Office (herein called Respondent).
Pursuant to an Order Consolidating Cases, Complaint and Notice of
Hearing issued on July 29, 1982 by the Regional Director for the Federal
Labor Relations Authority, Washington, D.C., a hearing was held before
the undersigned on November 12, December 8 and 9, 1982 at Washington,
D.C.
The Complaint alleged, in substance, that (a) on or about February
24, 1982 Respondent held a meeting with certain of its deaf employees,
included within the bargaining unit represented by the Union, concerning
an EEO complaint filed by the employees without giving the Union advance
notice or an opportunity to be present; (b) on or about March 1, 1982
Respondent instituted a proofreader training employees for certain of
its deaf employees, included within the aforesaid unit, without prior
notice to, or negotiation with the Union. By allegedly refusing to
comply with Section 7114(a)(2)(A) of the Statute and refusing to
negotiate in good faith as to the impact and procedures for implementing
the training program, it is averred that Respondent violated Section
7116(a)(1), (5) and (8) of the Statute.
Respondent's answer, dated August 13, 1982, denies the essential
allegations in the Complaint, as aforesaid, as well as the commission of
any unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examination witnesses. Briefs were filed with the undersigned
which have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been, and still is,
the exclusive bargaining representative of all journeymen, apprentices,
and trainees in the composing craft unit of the Respondent. Included
within this unit are approximately 250 printer-proofreaders who read
straight and tabular material and mark various typographical spelling
and style errors.
2. Respondent, who employs about 800 in the bargaining unit, is
responsible for printing and binding materials for Congress and various
departments of the Federal Government. Day shift employees are devoted
to publishing the Federal Register, whereas night shift employees are
primarily concerned with the Congressional Record and bills which have
been introduced.
3. At all times since December 18, 1982 the Union and Respondent
have been, and still are, parties to a "Memorandum of Understanding"
which sets forth various conditions of employment, including a provision
for the establishment of a Joint Training Committee to meet and consider
establishing and maintaining a training program for personnel.
4. Both the Union and Respondent negotiated a "Training Program for
Assignment as Printer-Proofreader" which, as GPO Instruction 625.6A, was
issued on July 12, 1979. The said instruction provides, inter alia,
that eligibility for training is limited to journeymen printers in this
composing craft unit with at least one year's experience in the GPO;
that all eligible employees will be required to demonstrate their
ability to read and enunciate clearly; that the objective of the
program is to give a trainee the knowledge and skills to become a
printer-proofreader; that the trainee will be selected from a voluntary
roster; that during the first week of training, trainees will receive 5
hours of orientation on the proper use of proofreader marks and the
style manual; /3/ he will be rotated to a new partner each week and his
work evaluated every two weeks; the trainees will be detailed to the
program for 13 weeks; tests will be administered with the Chapel
Chairman acting as an observer; and those trainees failing to meet the
standards will be returned to positions in their former classification.
5. Training applications follow after a superintendent or supervisor
decides there is a need to train employees. A memo is written stating
that a posting is required to fill a number of positions for training.
Employees who see the posting and are interested in training so as to
step from one job to another, i.e., linotype operator to
printer-proofreader, will file a claim with the Union. Representatives
of the latter confer with management, and assignments to training are
made on the basis of "priority," which means seniority with GPO as a
journeyman.
6. On February 2, 1981 there was a general posting at GPO for 60
proofreader positions. At this time the Union and Respondent agreed to
the procedure to implement a retraining program for composing room
craftsmen to advance to the said position. As a result of the posting,
60 journeymen qualified to undertake such training for this advancement
on the basis of journeymen priority, i.e. seniority at GPO in that
classification.
7. Included within the top 60 employees who applied for the training
program and were on the list were seven hearing impaired employees. /4/
Since these latter individuals could not "enunciate clearly," as
required by Instruction 625.6A, they were disqualified and not
considered as eligible for the training program.
8. Two hearing impaired employees, William J. Stifter and Walter V.
Ailstock, complained to an Equal Employment Opportunity (EEO) counselor
on February 20, 1981 (prior to Respondent's amending its rule excluding
deafs from training) that they were discriminated against as trainees in
the Proofreader Training Program. Moreover, they stated in a memo to
the counselor that they acted as spokesman for all "deaf employees in
our Division concerning this matter."
9. Both Stifter and Ailstock signed a grievance, dated March 19,
1981, which was presented to Hazel Devers, Respondent's chief of EEO
Counselling and Complaints, on April 1, 1981. The grievance asserted
that Respondent violated the Memorandum of Understanding (Article IX,
Section 2) in denying deaf employees in the composing division "a
reasonable effort to maximize their skills in the printer-proofreader
training program." It was also signed by Union steward Thomas Gibbs.
10. During the month of April, Devers met twice with Stifter and
Ailstock to discuss the aforesaid grievance. A Union representative was
present at each session. There was some discussion regarding the
propriety of filing an EEO complaint at the same time that a grievance
was filed under the labor-management agreement. Further, the parties
talked about the training program - whether the handicapped should be
allowed to enter the program. Gibbs gave Devers a list of 63 hearing
impaired employees who were class members of the classification.
11. Since the grievants were not permitted to enter the training
program as requested, a formal EEO complaint dated May 12, 1981 was
filed by Stifter and Ailstock on behalf of all GPO deaf employees. /5/
The complaint stated, in substance, that both named employees had
applied for a training program for assignment as printer-proofreader;
that they were not selected for the program because of their deafness
since it required they demonstrate an ability to read and enunciate
clearly, which requirement automatically eliminates deaf applicants;
that GPO insists upon term reading for proofreaders, which excludes deaf
employees; that the aforesaid requirement discriminates against deaf
applicants in violation of Section 501 of the Rehabilitation Act of
1973.
12. During June and July, 1981 the parties discussed the restrictive
language in Instruction 625.6A which precluded the deaf employees from
entering the training program. Finally, GPO changed its position on the
matter, and it decided to delete the requirement that the trainee
"enunciate clearly" in order to qualify for the training program. A
letter to this effect, dated August 26, 1981 was sent by Respondent to
William J. Boarman, President of the Union. It was stated therein that
the deletion would enable the hearing impaired to an equal opportunity
to qualify as proofreaders. /6/
13. In early September, 1981 DuBow asked Devers if the seven hearing
impaired applicants who had been disqualified could enter the existent
training program. After checking the matter, Devers advised DuBow that
the program was too far along; that a new training program would be
instituted in the new future and the said employees would be eligible to
compete for it. DuBow said that, in view thereof, he considered the
complaint closed.
14. On October 15, 1981 GPO issued an amendment to Instruction
625.6A deleting the words "and enunciate clearly" therefrom. Thus, in
the Training Program for Assignment as Printer-Proofreader, the sentence
was changed as follows: "they will also be required to demonstrate
their ability to read." The effect of this amendment was to permit the
hearing impaired employees to qualify for training to become a
printer-proofreader.
15. On or about January 6, 1982 /7/ DuBow called Devers. He
mentioned that management had just permitted some additional employees,
who were on the same roster as the one from which the deaf applicants
were eliminated, to enter the ongoing training program. Devers spoke to
management officials and explained this was improper and the hearing
impaired applicants could reopen their EEO complaint under those
circumstances. Accordingly, Respondent decided to allow the seven deaf
employees, who were affected, to enter the ongoing training program.
16. Thereafter, and during January, Devers conversed with John H.
Costello, Superintendent of the Electronic Photocomposition Division.
The proofreading was under the latter's supervision. Costello advised
Devers that the training for the hearing impaired, who were on the night
shift, would be held on the day shift. This decision was based on the
fact that management wanted Mr. McArtor to be the instructor and Dick
Caswell to be the interpreter for the seven deaf employees, and neither
individual was available on the night shift. Further, Costello stated
there would be less interruption on the day shift since training would
not have to be stopped for the Congressional Record.
17. Devers relayed this information to DuBow. However, the latter
told the EEO Counselor that this decision was not understood by Stifter,
Ailstock or himself. Whereupon Devers suggested that employees meet
with her and Costello so that the superintendent could explain in more
detail why the training must be on the day shift. A meeting was
arranged for February 24.
18. On February 23, Eileen Smith, a unit employee and secretary of
the Chairman's Chapel for the Union, was advised by the deaf employees
that a meeting was planned for the following day between management and
their class representative. Whereupon Smith spoke to Costello on
February 24, who confirmed the fact that a meeting was scheduled that
day at 3:30 p.m. The superintendent also informed her that the Union
would not be a party thereto; that the meeting was none of her business
but he divulged it since others were aware of the matter. Costello
explained the meeting concerned the proofreader training program for the
deaf due to the EEO complaint. He indicated the hearing impaired
employees were concerned about day time training, but that the
instructor and interpreter were not available on night shift.
19. At 12:30 p.m. on February 24, Smith spoke to Costello again,
stating that the Union had a right to be at this scheduled meeting since
it was the sole negotiator for the training program. The superintendent
told Smith that he contacted management who viewed the meeting as an
extension of the unfair labor practice filed by Union President Boarman.
Whereupon Smith replied that the Union must be notified and given an
opportunity to be present.
20. The meeting on February 24 was held in Costello's office.
Attendance by the deaf trainees was not mandatory. Both Stifter and
Ailstock were told to appear by DuBow, and all three individuals
attended. Various representatives of management, /8/ apart from Devers
and Costello appeared at the meeting. Another hearing impaired
employee, Ralph Brewer, was present as a representative of the class,
and an interpreter for the deaf also attended.
Costello advised those present that the purpose of the meeting was to
plan a schedule of training for proofreading. He announced that the
secretary of the Union would not be present. /9/ The superintendent
explained that since the Congressional Record was printed at night, it
would interfere with the training program if it were held on the night
shift. He informed the deaf employees that McArtor would be their
instructor and that Caswell would act as the interpreter during
training. Since neither individual was available at night, Costello
asserted this was a further reason which necessitates holding the
program on the day shift. The superintendent indicated that the
training schedule of 14 weeks involved an orientation period during the
first week of 1 hour per day for a total of 5 hours. Employees would be
instructed as to the style manual, mark-ups, reading and proofing. They
would be returned to their linotype section for 7 hours. Costello
stated, further, that during the second week they would have 1 hour of
class and then 7 hours of proofreader training. Since one of the seven
deaf employees had dropped out of the program, Costello was asked if
another such employee could be added to the training. He declined to do
so, remarking there would be just six hearing impaired individuals in
the program. Stifter inquired whether, after the training, they could
return to the shift, and Costello stated they had a "high priority" and
could do so. The superintendent mentioned that the hearing impaired
employees would do silent reading. /10/ Some discussion ensued
regarding starting the following Monday, and Ailstock said they would
have to speak with the other deaf trainees. The meeting lasted between
30-60 minutes.
21. Costello testified, and I find, that no proofreader training had
been instituted in the past for hearing impaired employees. He made the
decision to have 5 hours of familiarization in the training program,
which is not included in the regular training program (13 weeks), and
thus results in a 14 week program. This matter was never the subject of
negotiation with the Union.
22. Training for the six hearing impaired employees began on March
1. They reported on the day shift with 5 hours of orientation between
the first week and then the employees returned to the linotype area. In
the second week they had 5 more hours of instruction and then worked in
the proofroom. The remaining weeks involved training in the proofroom,
but no interpreter was present.
These employees were put in an area of the proofreading room set
aside from third shift employees. Each deaf trainee worked in a
separate cubicle, and did silent reading. The day shift journeymen
proofreaders were 75-100 feet away, and said individuals did not act as
partners. The nearest supervisor was located 10-15 feet from the
trainees. Decisions as to the placement of the deaf trainees were made
by Robert Bibeau, foreman of the day shift. He also decided the work
these employees should do. No input was requested from the Union in
this regard, nor did the bargaining representative participate in any
negotiations concerning the location of these deaf employees, the hours
of training or the details thereof.
23. During the course of the training for the deaf employees, the
latter were given tests and evaluations similar to those utilized in
training regular hearing employees. However, Instructor McArtor did not
provide the Union with the results of such tests or evaluations, nor
were they discussed with the bargaining representatives. /11/ None of
the deaf trainees finished the training program since they were unable
to perform satisfactorily. They dropped out at the suggestion of
McArtor and Bibeau.
Conclusions
It is contended by General Counsel that the meeting held on February
24 involved the EEO complaint filed by the deaf employees in May, 1981.
As such, it is urged, the session was concerned with a "grievance"
relating to employment as a claimed violation of a law affecting
conditions of employment. Thus, under the Authority's decision in
Internal Revenue Service, Fresno Service Center, Fresno, California, 7
FLRA No. 54, it is argued the aforesaid meeting held by Respondent was a
"formal discussion" within the meaning of Section 7114(a)(2)(A) of the
Statute. Having failed to give advance notice thereof to the Union, and
an opportunity to be present, Respondent has allegedly run afoul of this
section and thus violated Section 7116(a)(1) and (8) of the Statute.
Two more issues are raised by the General Counsel herein. It is
asserted that the February 24 meeting constituted an unlawful bypass of
the Union; that Respondent dealt directly with employees at this
session and promised them benefits as well as negotiated the training
program - all in violation of Section 7116(a)(1) and (5) of the Statute.
Further, General Counsel asserts that management unilaterally changed
its training program when it implemented such program for the deaf
employees; that those changes resulted in a substantial and adverse
impact upon unit employees; that Respondent's failure to notify the
Union afforded it an opportunity to bargain regarding such changes and
the implementation of the program for the deaf employees violated
Section 7116(a)(1) and (5) of the Statute.
There are thus presented for determination the following issues: (1)
whether the meeting on February 24 was a formal discussion within the
meaning of Section 7114(a)(2)(A) of the Statute so as to require
notification to the Union and an opportunity to attend thereat; (2)
whether the discussion at the meeting on February 24 was tantamount to a
by-passing of the Union and an attempt to bargain directly with
employees in violations of Section 7116(a)(1) and (5) of the Statute;
(3) whether Respondent, in implementing the training program for the
deaf employees without notifying the Union and affording it an
opportunity to negotiate as to its impact and implementation, violated
Section 7116(a)(1) and (5) of the Statute.
(1) In disputing the claim that the meeting on February 24
constituted a formal discussion under Section 7114(a)(2)(A) of the
Statute, Respondent makes two principal arguments. Firstly, it
maintains the meeting was not held, as alleged in the complaint herein,
to discuss the EEO complaint. There was no pending grievance or EEO
matter, and since the session was held to explain why the deaf employees
must be trained on the day shift, the meeting did not deal with general
conditions of employment so as to constitute a formal discussion.
Secondly, Respondent avers that since attendance of employees thereat
was not mandatory, the key element is missing in order to characterize
the discussion as "formal." It is maintained that in all prior cases,
where the Authority has found such a discussion to exist, meetings were
called 0y,an employer at which attendance of employees was required.
Upon reviewing the entire record herein, I am constrained to agree
with Respondent that the February 24 meeting was not arranged to discuss
or consider the EEO complaint. After considering the grievance filed by
the hearing impaired employees, Respondent concluded in the summer of
1981 that it would change its Instruction 625.6A and thereby permit
these individuals to qualify for the training program. It so advised
the Union President on August 28, 1981. Moreover, in January, 1982
Respondent agreed to allow the six deaf applicants to enter the ongoing
program. Since the employees objected to day shift training, the
meeting was set up so that Superintendent Costello could explain the
necessity for running the program on the day shift. Thus it appears
management wanted to clarify this aspect of the training schedule, and
no attempt was made to resolve the EEO complaint or the underlying
grievance. I conclude that the meeting was not undertaken to discuss
the merits of the EEO matter nor to dispose of same. /12/ Cf. Internal
Revenue Service, Fresno et al., supra.
The basis for an employer's obligation to include the bargaining
representative in particular discussions involving working conditions is
set forth in Section 7114 of the Statute. Pertinent language in this
respect is as follows:
Section 7114. Representation rights and duties
"(a)(2) An exclusive representative of an appropriate unit in
an agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance, or any personnel policy
or practice or other general conditions of employment . . . ."
(Underscoring supplied).
Respondent takes the position that the meeting on February 24 was
arranged so that management could explain to DuBow - the deaf employees'
counsel - the reasons for training these individuals on the day shift.
Since the session was not called to deal with the employees and their
presence was neither requested nor required, Respondent insists the
meeting is not properly deemed a formal discussion under the aforesaid
statutory language.
While it is true that past cases invariably dealt with meetings which
employees were called upon to attend, I am not persuaded that this
factor is the sine quo non for concluding that a discussion was formal
in nature. Although it is a consideration, and one of several criteria
set forth in Department of Health and Human Services, Social Security
Administration, Bureau of Field Operations, San Francisco, California,
10 FLRA No. 24 (1982), the absence of mandatory attendance of employees
should not be determinative as to whether a formal discussion ensued.
/13/ This conclusion seems warranted from a literal reading of Section
7114(a)(2)(A) of the Statute wherein it is declared that such a
discussion may exist between management and its employees or their
representative. It would thus appear that if employees are not called
to attend such a session, but are duly represented thereat, an employer
may not disregard the bargaining agent and deal with such representative
regarding conditions of employment.
In view of the fact that no contrary conclusion in the public sector
has been called to my attention - and this may well be a case of first
impression - I shall conclude that a formal discussion may exist under
those circumstances. Record facts disclose that the day employees were
represented at the February 24 meeting by DuBow, with whom the session
was arranged as their representative. Assuming, argumendo that the
discussion was between management and DuBow, I am satisfied that, under
the Statute, the meeting may be termed "formal." /14/
In numerous cases the Authority has been called up to decide whether
meetings may properly be described as involving "formal discussions"
under Section 7114(a)(2)(A) of the Statute. As a guideline to such
determination the Authority set forth certain criteria in Department of
Health and Human Services, Social Security Administration, et al.,
supra. It mentioned, as relative thereto, the following:
(a) whether the individual who held the discussions is merely a
first-line supervisor or is higher in the management hierarchy;
(b) whether any other management representatives attended;
(c) where the individual meetings took place (i.e., in the
supervisor's office, at each employee's desk, or elsewhere);
(d) how long the meetings lasted;
(e) how the meetings were called (i.e., with formal advance
written notice or more spontaneously and informally);
(f) whether a formal agenda was established for the meetings;
(g) whether each employee's attendance was mandatory; or
(h) the manner in which the meetings were conducted (i.e.,
whether the employee's identity and comments were noted or
transcribed).
Applying those standards to the case at bar, I am constrained to
conclude that the discussions which took place at the February 24
meeting were formal in nature. The session was held by a high ranking
official of Respondent in his office. As Superintendent of the
Electronic Photocomposition Division, Costello was a top management
representative. In attendance thereat were other agency personnel who
may be described as high in the management hierarchy: labor relations
specialist McCaughan, and General Counsel representative Spaulding. It
was not a spontaneous gathering but a planned meeting to discuss at
least one aspect of the training program, and it was of considerable
duration. Prescinding from the voluntary attendance on the part of the
employees -- which may not be critical in any event - the record
reflects that the criteria set down by the Authority for a formal
discussion are present herein.
Respondent insists that, in any event, the meeting on February 24 was
not concerned with personnel policies or general conditions of
employment which warranted union representation thereat. It contends
the meeting was limited to explaining why the training for the deaf had
to be scheduled for the day shift, and that the discussion had no effect
upon other employees in the unit.
Contrary to Respondent's position, I am persuaded that the discussion
dealt with employment conditions affecting unit employees. Although
Costello may have intended to confine his remarks to an explanation
regarding the day shift training, the record reflects that other
subjects were mentioned. Thus, the superintendent also indicated who
the instructor would be for the hearing impaired employees and which
person would be their interpreter. Costello further stated that an
orientation session of one hour per day for the first week would take
place; that the deaf employees would return to their section thereafter
during the first week; that the second week would involve one hour of
class prior to proofreader training; that these employees would do
silent reading. In response to a query from a deaf employee, Costello
refused to allow another hearing impaired employee replace the seventh
individual who had dropped from the training program. Upon being asked
by Stifter whether the deaf employees could return to their shift
thereafter, Costello indicated they could do so.
The foregoing convinces me that the meeting on February 24 was not an
impromptu session, and that it was not, as argued by Respondent, a brief
discussion concerning particular problems of a few employees. Cf.
Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, 9 FLRA No. 9. It involved unit
employees and dealt with orientation of the training program for such
individuals as well as other matters affecting their employment. A
vital condition of employment involved the need for training the deaf on
the day shift since the shift differential in pay amounted to a loss for
them of 15%. Under those circumstances the Union was entitled to be
notified in advance of the meeting, and should have been afforded an
opportunity to attend thereat. /15/ Since it is clear that the Union
was not so notified, nor given such opportunity, I conclude that
Respondent did not adhere to Section 7114(a)(2)(A) of the Statute.
Accordingly, I find it violated Section 7116(a)(1) and (8) thereof.
(2) An attempt was made in the public sector to describe
communications between management and unit employees which may properly
be characterized as a by-pass of the bargaining representative. This
occurred in Department of the Navy, Naval Air Station, Fallon, Nevada,
A/SLMR No. 432, FLRC No. 74A-80, 3 FLRC 697 (1975). The Federal Labor
Relations Council declared that:
"Communications which, for example, amount to an attempt to
by-pass the exclusive representative and bargain directly with
employees, or which urge employees to put pressure on the
representative to take a certain course of action, or which
threaten or promise benefits to employees are violative of the
Order."
Where any agency conducted a meeting with unit employees and threatened
them, as well as promised benefits, the Authority has adhered to the
foregoing criteria and found such conduct to amount to a by-passing of
the Union. Iowa National Guard and National Guard Bureau, 8 FLRA No.
101.
However, in the case at bar, I am not persuaded that the meeting on
February 24 is reflective of an intent on the part of Respondent to
by-pass the Union as bargaining representative. None of Costello's
remarks thereat constituted threats, or promises of benefits, to
employees. The superintendent informed the deaf employees in attendance
and their counsel as to some of the details regarding the training
program. Further, I am not convinced that Costello was attempting to
negotiate or bargain with these employees. Support for this conclusion
is found in the fact that management arranged to meet with the counsel
for the deaf employees. While it may be true that a formal discussion
ensued, which necessitates notification to the Union an opportunity to
be present, it does not follow that the communications at the meeting
required the conclusion that the bargaining representative was by-passed
in violation of Section 7116(a)(5) of the Statute. See Internal Revenue
Service (District, Region, National Office Unit), 11 FLRA No. 23. It is
true that there were one or two questions by employees and responses by
Costello regarding the training program. Nevertheless, they arose out
of the explanation given by Costello as to the forthcoming training
session, and they are not tantamount to an effort by Respondent to
bargain with the deaf employees with respect thereto. In sum, I find
that Respondent, in holding a discussion with employees and their
representatives on February 24 did not by-pass the Union in violation of
the Statute.
(3) It is now well established that management may not change past
practices regarding working conditions without first notifying the
collective bargaining representative, and affording it the opportunity
to bargain regarding the impact and implementation thereof. Department
of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2. In the
instant case Respondent insists a training program has existed prior to
March 1, 1982; that the deaf employees - although excluded therefrom as
ineligibles - were trained in accordance therewith on March 1 and
thereafter; and no change occurred which required dealing with the
Union.
The institution of a training program for the deaf employees
constituted a change, in my opinion, in respect to those individuals.
They were never the recipients of any such training, and past practice
restricted the application of such program to the hearing employees. To
this extent, Respondent has effected a change in the working conditions
of the deaf class. See U.S. Immigration and Naturalization Service,
Case No. 2-CA-1119, OALJ-82-127. /16/ In the latter case the employer
instituted a cross-training program for employees. No such training had
occurred previously. It was concluded by the Administrative Law Judge
that the training sessions were a change from past practice. Under
those circumstances, management was obliged to notify the bargaining
representative before it instituted the program and bargain as to its
impact and implementation. Failure to do so was deemed violative of
Section 7116(a)(1) and (5) of the Statute.
In the case at bar, as in the cited case, the training program was a
new procedure for the involved employees. The past practice adhered to
by management excluded the deaf employees therefrom. By including these
employees in the program Respondent necessarily made changes in their
employment conditions. Thus, it seems that they were put on the day
shift, as opposed to their regular night shift operations. Further,
they underwent instruction or orientation and silent proofreading during
the training sessions - all part and parcel of the program made
applicable to them. It is true that the establishment of a training
program is nonnegotiable as being an integral part of the agency's
authority to assign work. See National Association of Air Traffic
Specialists, 6 FLRA No. 101. No. 101. Nevertheless, under Section
7106(b)(2) and (3) of the Statute, parties are free to negotiate the
procedures for instituting a training session as well as the
arrangements for employees adversely affected. /17/ Likewise, the
Respondent herein was, in my opinion, obliged to notify the Union in
advance of the institution of the training program for the deaf
employees, and to afford it the opportunity to negotiate the procedures
in implementing the program as well as the arrangements for employees
adversely affected.
Moreover, I am satisfied that, based on the training factors or
conditions pertaining to the program, i.e., shift change, instruction
period, silent reading, location of the deaf employees, and shift
differential pay, the impact was substantial so as to require
negotiations as aforesaid. /18/ Having failed to notify the Union in
advance of the institution of the training program for the deaf
employees and affording it an opportunity to bargain regarding the
procedures and the arrangements for adversely affected employees, I
conclude Respondent has violated Section 7116(a)(1) and (5) of the
Statute.
Having concluded, as aforesaid, that the Respondent by its conduct
has violated Section 7116(a)(1), (5) and (8) of the Statute, I recommend
the Authority issue the following:
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Statute, the
Authority hereby orders that the U.S. Government Printing Office shall:
1. Cease and desist from:
(a) Failing to give Columbia Typographical Union No. 101,
International Typographical Union, appropriate notice of, and the
opportunity to be present at, formal discussions between employees
in the bargaining unit, or their representative, and
representatives of the agency concerning personnel policies or
other general conditions of employment.
(b) Unilaterally instituting a training program for hearing
impaired employees without first notifying Columbia Typographical
Union No. 101, International Typographical Union, the exclusive
bargaining representative of said employees, and affording it the
opportunity to bargain concerning the procedures to be observed in
implementing such program and concerning appropriate arrangements
for employees adversely affected thereby.
(c) In any like or related manner interfering with, restraining
or coercing its employees in the exercise of their rights assured
by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative actions in order to effectuate the
policies of the Federal Service Labor-Management Relations Statute:
(a) Provide the Columbia Typographical Union No. 101,
International Typographical Union, with appropriate prior
notification of, and an opportunity to be represented at, formal
discussions between representatives of the agency and its
bargaining unit employees or their representative concerning
personnel policies or practices or other general conditions of
employment.
(b) Notify the Columbia Typographical Union No. 101,
International Typographical Union, of any intention to institute a
training program for hearing impaired employees, and, upon
request, bargain with it concerning the procedures to be observed
in implementing such program and concerning appropriate
arrangements for employees adversely affected.
(c) Post at its facilities at Washington, D.C. 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 Director of the U.S. Government Printing Office, and
shall be posted and maintained by him for 60 consecutive days
thereafter in conspicuous places, including all bulletin boards
and places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Director to insure that
said notices are not altered, defaced or covered by any other
material.
(d) Notify the Regional Director, 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.
WILLIAM NAIMARK
Administrative Law Judge
Dated: March 25, 1983
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail to provide the Columbia Typographical Union No. 101,
International Typographical Union, with appropriate prior notification
of, and the opportunity to be present at, formal discussions between
employees in the bargaining unit, or their representative, and
representatives of the agency, concerning personnel policies or
practices or other general conditions of employment. WE WILL NOT
unilaterally institute a training program for hearing impaired employees
without first notifying Columbia Typographical Union No. 101,
International Typographical Union, the exclusive bargaining
representative of said employees, and affording it the opportunity to
bargain concerning the procedures to be observed in implementing such
program and concerning appropriate arrangements for employees adversely
affected thereby. WE WILL NOT in any like or related manner interfere
with, restrain or coerce our employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute. WE
WILL provide the Columbia Typographical Union No. 101, International
Typographical Union with appropriate prior notification of, and an
opportunity to be represented at, formal discussions between
representatives of the agency and its bargaining unit employees or their
representative concerning personnel policies or other general conditions
of employment. WE WILL notify the Columbia Typographical Union No. 101,
International Typographical Union, of any intention to institute a
training program for hearing impaired employees, and, upon request,
bargain with it concerning the procedures to be observed in implementing
such program and concerning appropriate arrangements for employees
adversely affected.
. . . (Agency or Activity)
DATED: . . . BY: . . . (Signature) This Notice must remain posted for
60 consecutive days from the date of posting and must not be altered,
defaced or covered by any other material. If employees have any
questions concerning this Notice, or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Federal Labor Relations Authority, Region III, whose address is: 1111
18th Street, NW., Suite 700, P.O. Box 33758, Washington, D.C.
20033-0758 and whose telephone number is: (202) 653-8507.
--------------- FOOTNOTES$ ---------------
/1/ With respect to the Judge's finding that the impact of the
training program was substantial, the Authority notes that where an
agency in the exercise of a management right under section 7106 of the
Statute changes conditions of employment of bargaining unit employees, a
statutory duty to negotiate comes into play if the impact or reasonably
foreseeable impact of the change on bargaining unit employees is more
than de minimis. Department of Health and Human Services, Social
Security Administration, Chicago Region, 15 FLRA No. 174 (1984) and U.S.
Government Printing Office, 13 FLRA 203 (1983).
/2/ In adopting the Judge's conclusion that Respondent violated
section 7116(a)(1) and (5) of the Statute, the Authority finds that
Respondent's violative conduct was limited to the unilateral change on
March 1, 1982, of certain aspects of the existing proofreader training
program to deal with the special problems of the hearing impaired rather
than the unilateral institution of a new program as found by the Judge.
With respect to the Judge's conclusion that the February 24, 1982
meeting, which grew out of but was not part of the previously resolved
Equal Employment Opportunity complaint filed by two of the hearing
impaired employees, constituted a formal discussion, compare Bureau of
Government Financial Operations, Headquarters, 15 FLRA No. 87 (1984),
petition for review filed, National Treasury Employees Union v. FLRA,
No. 84-1493 (D.C. Cir. Oct. 1, 1984), where the Authority in finding no
formal discussion concluded that a grievance within the meaning of
section 7114(a)(2)(A) of the Statute does not encompass a statutory
appeal.
/3/ This manual is a style book produced by GPO for typesetting - it
sets forth type faces, sizes and indentions for all GPO work, samples of
printed material, spelling, word breakage and capitalization. It is the
bible for copy preparation. When a manuscript comes in for printing,
the proofreader marks it so the printer or operator can read it and
follow a certain style and italics.
/4/ As many as 20 hearing impaired employees applied but, except for
seven such individuals, they did not make the list.
/5/ Sy DuBow affiliated with the National Center for Law and the
Deaf, also signed the complaint as counsel for complainants.
/6/ On August 28, 1981 a copy of this letter was sent from Devers to
Sy DuBow and Ms. Margaret Mead, District Director, EEO Commission. In
both instances Devers stated the agency deemed the EEO complaint moot
and the matter resolved.
/7/ Unless otherwise indicated, all dates hereinafter mentioned are
in 1982.
/8/ Also attending were labor relations specialist, David P.
McCaughan, and Drew Spaulding from the General Counsel's office.
/9/ Both Costello and Devers testified that the superintendent asked
the deaf employees at the outset of the meeting if they wanted their
Union to be present; that the employees replied in the negative.
Stifter and Ailstock testified Costello did not ask that question.
Since the obligation of an employer, if it is found to exist under the
particular circumstances, is to notify the Union in advance and allow it
to attend, I find it unnecessary to resolve the conflict in these
testimonies.
/10/ Silent reading involves one person, i.e., the deaf employee,
reading both proof and copy. Team reading, performed by hearing
employees involving two persons - one holding the copy while the other
reads the proof.
/11/ While the Union has been allowed to be present at evaluations
and tests given to regular employees, it was not afforded such
opportunity herein. Respondent avers it intended to permit the Union to
play the same role in respect to tests and evaluations of deaf
employees.
/12/ Note is taken that the complaint herein alleges the February 24
meeting concerned the EEO complaint filed by the deaf employees, and
that the discussion thereat without proper notification to the Union ran
counter to Section 7114(a)(2)(A) of the Statute. While I have concluded
the meeting was not concerned with the EEO matter, the discussion
thereat did deal with the training program for the deaf employees.
Thus, I am satisfied the subject matter of the meeting "grew out" of the
EEO complaint. In this posture I am satisfied that the allegation
regarding the meeting is sufficient as a pleading, and that Respondent
is apprised of an alleged formal discussion by management concerning
working conditions, i.e., training program for the deaf, without
advising the Union and affording it the opportunity to be present.
/13/ Note is taken of Judge Chaitovitz's decision in Bureau of
Engraving and Printing, Case No. 3-CA-2704, AOLJ-83-42 (January 14,
1983) where he concluded that all the criteria need not be met for a
discussion to be "formal." In this regard, he noted the word "or"
between the sixth criterion (mandatory attendance) and the seventh
criterion.
/14/ In view of these conclusions, I find it unnecessary to determine
whether the mere presence of the deaf employees - even though not called
upon to attend - warrants labeling the meeting as a formal discussion
since they participated thereat and were accepted as participants.
/15/ This right inures to the union under the Statute independently
of notification to the unit employees.
/16/ In the absence of exceptions, the Authority issued an Order
dated January 18, 1983 adopting the findings and conclusions of the
Administrative Law Judge.
/17/ A termination of a training program similarly mandates that
management notify the Union, and that the latter be given an opportunity
to bargain regarding the procedures to be observed in its
implementation. Internal Revenue Service, (District, Region and
National Office Unit and Service Center Unit), 10 FLRA No. 61.
/18/ General Counsel also maintains these working conditions in the
training program for deaf employees constituted a change in the training
program as pursued for hearing employees. Since no training program was
applicable to deaf persons theretofore, I do not conclude it was changed
as to them. The modified conditions, under which these individuals were
trained, are deemed probative as to the impact of the unilateral
institution of the program for the deaf employees.