[ v04 p33 ]
04:0033(6)CA
The decision of the Authority follows:
4 FLRA No. 6
DEPARTMENT OF THE TREASURY,
BUREAU OF ENGRAVING AND PRINTING
Respondent
and
WASHINGTON PLATE PRINTERS UNION,
LOCAL NO. 2, INTERNATIONAL PLATE
PRINTERS, DIE STAMPERS AND ENGRAVERS
UNION OF NORTH AMERICA, AFL-CIO
Complainant
Assistant Secretary
Case Nos. 22-08989(CA)
22-08990(CA)
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER. THE ADMINISTRATIVE LAW JUDGE
RECOMMENDED THAT THE OTHER ALLEGATIONS OF THE COMPLAINTS BE DISMISSED.
THEREAFTER, BOTH THE RESPONDENT AND THE COMPLAINANT FILED EXCEPTIONS TO
THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER AND THE
COMPLAINANT FILED A RESPONSE BRIEF TO THE RESPONDENT'S EXCEPTIONS. /1/
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2400.2). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THESE CASES,
INCLUDING THE PARTIES' EXCEPTIONS AND THE COMPLAINANT'S RESPONSE BRIEF,
THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS ONLY TO THE EXTENT CONSISTENT HEREWITH.
/2/
BOTH OF THE UNFAIR LABOR PRACTICE COMPLAINTS HEREIN INVOLVE THE
SELECTION BY THE RESPONDENT OF 25 EMPLOYEES TO SERVE AS ACTING ASSISTANT
FOREMEN IN THE RESPONDENT'S PLATE PRINTING DIVISION. THE COMPLAINT IN
CASE NO. 22-08989(CA) ALLEGED THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, (ORDER) AS AMENDED, BY ITS
REFUSAL TO BARGAIN REGARDING THE SELECTION CRITERIA TO BE USED IN
FILLING THE PERMANENT ASSISTANT FOREMAN POSITIONS FROM AMONG THE 25 UNIT
EMPLOYEES PREVIOUSLY SELECTED TO SERVE AS ACTING ASSISTANT FOREMEN, AND
BY THE RESPONDENT'S REFUSAL TO NEGOTIATE REGARDING THE WORKING
CONDITIONS OF THE 25 SELECTEES DURING THEIR TRAINING PERIOD. IN
ADDITION, THE COMPLAINT ALSO CONTAINED THE GENERAL ALLEGATION THAT THE
SELECTION OF 25 EMPLOYEES FOR ACTING ASSISTANT FOREMAN TRAINING FROM A
UNIT OF 125 EMPLOYEES WAS AN ATTEMPT TO UNDERMINE THE UNIT. THE
COMPLAINANT CONTENDED WITH REGARD TO ALL OF THE ABOVE ALLEGATIONS THE
POSITION OF ACTING ASSISTANT FOREMAN WAS NOT A SUPERVISORY POSITION
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER. /3/
THE COMPLAINT IN CASE NO. 22-08990(CA) ALLEGED A MEETING HELD BY THE
RESPONDENT ON JANUARY 13, 1978, WITH 8 OF THE DESIGNATED ACTING
ASSISTANT FOREMAN TRAINEES, WAS A FORMAL DISCUSSION WITHIN THE MEANING
OF SECTION 10(E) OF THE ORDER, AND THE RESPONDENT'S FAILURE TO INFORM
AND GIVE THE COMPLAINANT AN OPPORTUNITY TO BE PRESENT AT THE MEETING
VIOLATED SECTION 19(A)(1) AND (6).
AS NOTED ABOVE, THE ALLEGATIONS OF BOTH COMPLAINTS INVOLVE THE
RESPONDENT'S DECISION TO SELECT 25 EMPLOYEES TO SERVE IN THE ACTING
ASSISTANT FOREMAN POSITION. THE RECORD REFLECTS THE RESPONDENT'S
SELECTION OF THE 25 EMPLOYEES WAS THE FIRST STEP IN THE REORGANIZATION
OF ITS PLATE PRINTING DIVISION. THE REORGANIZATION, WHICH WAS TO OCCUR
IN PHASES, INVOLVED REPLACING THE FOREMEN WHO SUPERVISED THE VARIOUS
SECTIONS ON EACH SHIFT OF THE DIVISION WITH ASSISTANT FOREMEN AT A LOWER
RATE OF PAY. WHEN THE NEW ORGANIZATION IS FULLY IMPLEMENTED, EACH
ASSISTANT FOREMAN WOULD REPORT TO A FOREMAN WHO WOULD ACT IN THE NEWLY
CREATED POSITION OF SHIFTS SUPERVISOR. AS A FIRST STEP IN THE PROCESS,
THE RESPONDENT NOTIFIED THE COMPLAINANT OF ITS PROPOSAL TO SELECT 6 OR 7
PLATE PRINTERS TO ACT AS ASSISTANT FOREMEN. /4/ THE RESPONDENT AVERRED
ITS LATER SELECTION OF 25 UNIT EMPLOYEES TO BE TRAINED IN THE ACTING
ASSISTANT FOREMAN POSITION WAS BASED ON AN UNEXPECTED NUMBER OF
RETIREMENTS OF FOREMEN FROM THE PLATE PRINTING DIVISION. THE RECORD
REVEALS THE 25 SELECTEES EACH SPENT 16 HOURS IN ON-THE-JOB TRAINING, 120
HOURS OF WHICH INVOLVED OBSERVING AND ASSISTING A FOREMAN IN DIRECTING
HIS SECTION. THE REMAINING 40 HOURS INVOLVED DIRECTING THE SECTION
WHILE A FOREMAN ACTED AS OBSERVER. ALTHOUGH EACH SELECTEE WAS TO
RECEIVE AN ADDITIONAL 40 HOURS OF CLASSROOM SUPERVISORY TRAINING, ONLY
EIGHT RECEIVED SUCH TRAINING DUE TO WORKLOAD CONSTRAINTS. AFTER
COMPLETING THEIR ON-THE-JOB TRAINING, THE SELECTEES SPENT AN AVERAGE OF
LESS THAN HALF OF THEIR WORK TIME SERVING AS ACTING ASSISTANT FOREMAN
WITH THEIR REMAINING TIME SPENT WORKING IN THEIR NORMAL CAPACITY AS
PLATE PRINTERS.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THE ASSISTANT FOREMAN POSITION
WAS A SUPERVISORY POSITION WITHIN THE MEANING OF SECTION 2(C) OF THE
EXECUTIVE ORDER, AND THAT THE SELECTEES WERE SUPERVISORS WITHIN THE
MEANING OF SECTION 2(C) WHILE SERVING AS ASSISTANT FOREMEN. THE
AUTHORITY CONCURS WITH THESE FINDINGS OF THE ADMINISTRATIVE LAW JUDGE,
NOTING PARTICULARLY THAT AN ASSISTANT FOREMAN IN THE RESPONDENT'S PLATE
PRINTING DIVISION IS FULLY RESPONSIBLE FOR THE OPERATION OF THE SECTION
ASSIGNED, INCLUDING THE DIRECTION AND CONTROL OF THE EMPLOYEES IN THAT
SECTION, AND THE ASSISTANT FOREMAN IS DESIGNATED AS THE FIRST STEP FOR
THE ADJUSTMENT OF GRIEVANCES UNDER THE THREE NEGOTIATED GRIEVANCE
PROCEDURES COVERING THE THREE CRAFTS EMPLOYED IN MOST SECTIONS. /5/
FURTHER, THE SELECTEES EXERCISED THE FULL SUPERVISORY AUTHORITY OF THE
POSITION WHILE SERVING AS ACTING ASSISTANT FOREMAN.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, HOWEVER, THE AUTHORITY,
CONCLUDES THAT EXCLUDING THE SELECTEES FROM THE UNIT BASED SOLELY ON
THEIR STATUS AS TRAINEES FOR SUPERVISORY POSITIONS REGARDLESS OF THEIR
ACTUAL PERFORMANCE OF SUPERVISORY DUTIES WOULD NOT BE JUSTIFIED. IN
THIS REGARD, IT IS NOTED THE SELECTEES, UPON COMPLETION OF THEIR
TRAINING, REMAINED UNIT EMPLOYEES SPENDING LESS THAN HALF OF THEIR WORK
TIME ACTING IN THE ASSISTANT FOREMAN POSITION. MOREOVER, THEIR PAY AND
FRINGE BENEFITS REMAINED THE SAME BOTH DURING AND UPON COMPLETION OF
THEIR TRAINING EXCEPT FOR THE PERIODS WHEN THEY SERVE IN AN ACTING
ASSISTANT FOREMAN CAPACITY. ACCORDINGLY, THE AUTHORITY CONCLUDES THERE
IS NO BASIS TO EXCLUDE THE SELECTEES FROM THE UNIT BASED SOLELY ON THEIR
STATUS AS TRAINEES UNDER THE CIRCUMSTANCES PRESENT HEREIN AND THEREFORE
HAS RECONSIDERED SEVERAL OF THE ALLEGATIONS OF THE COMPLAINTS IN LIGHT
OF THIS FINDING.
IN CASE NO. 22-08989(CA), THE ADMINISTRATIVE LAW JUDGE CONCLUDED,
AMONG OTHER THINGS, THERE WAS NO DUTY TO BARGAIN REGARDING THE TERMS AND
CONDITIONS OF EMPLOYMENT OF THE SELECTEES DURING THEIR TRAINING PERIOD
BECAUSE HE HAD FOUND THEM TO BE SUPERVISORS AND THUS OUTSIDE THE UNIT.
AS IT HAS BEEN DETERMINED THE SELECTEES REMAINED IN THE BARGAINING UNIT
WHILE IN TRAINING STATUS AND NOT PERFORMING ASSISTANT FOREMAN FUNCTIONS,
THE AUTHORITY FINDS THE RESPONDENT'S REFUSAL TO NEGOTIATE REGARDING
THEIR CONDITIONS OF EMPLOYMENT WHILE IN THE BARGAINING UNIT VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER. /6/
IN CASE NO. 22-08990(CA), THE ADMINISTRATIVE LAW JUDGE CONCLUDED THE
MEETING OF JANUARY 13 WAS NOT A FORMAL DISCUSSION WITHIN THE MEANING OF
SECTION 10(E), AGAIN BASED HIS CONCLUSION THAT THE INDIVIDUALS INVOLVED
WERE SUPERVISORY TRAINEES AND THUS PART OF MANAGEMENT. SINCE THE
ADMINISTRATIVE LAW JUDGE FOUND THE SELECTEES REMAINED UNIT EMPLOYEES
EXCEPT WHEN PERFORMING SUPERVISORY DUTIES AS ASSISTANT FOREMEN, AND AS
THERE IS NO EVIDENCE THEY WERE PERFORMING SUPERVISORY DUTIES AT THE
MEETING IN QUESTION, THEREFORE, IT IS NECESSARY TO DETERMINE WHETHER THE
MEETING WAS A "FORMAL DISCUSSION" WITHIN THE MEANING OF SECTION 10(E).
THE RECORD REFLECTS THE SUBJECT MATTER DISCUSSED AT THE MEETING WAS
LIMITED TO THE ORIENTATION OF THE SELECTEES REGARDING THEIR TRAINING FOR
THE ACTING ASSISTANT FOREMAN POSITIONS, AND MATTERS PERTAINING TO THEIR
TERMS AND CONDITIONS OF EMPLOYMENT WERE NOT DISCUSSED. UNDER THESE
CIRCUMSTANCES, THE AUTHORITY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
CONCLUSION THAT THE MEETING WAS NOT A "FORMAL DISCUSSION" OVER MATTERS
ABOUT WHICH THE UNION HAD A RIGHT TO BE REPRESENTED UNDER SECTION 10(E)
OF THE ORDER. THEREFORE, AS MANAGEMENT WAS UNDER NO OBLIGATION TO
AFFORD THE UNION AN OPPORTUNITY TO BE PRESENT, IN AGREEMENT WITH THE
ADMINISTRATIVE LAW JUDGE, THE AUTHORITY CONCLUDES THE SECTION 10(A)(1)
AND (6) ALLEGATION SHOULD BE DISMISSED. HOWEVER, IN REACHING THIS
CONCLUSION, THE AUTHORITY NOTES IT DOES NOT CONDONE AND FINDS
INAPPROPRIATE STATEMENTS BY MANAGEMENT TO BARGAINING UNIT EMPLOYEES SUCH
AS THOSE QUOTED BY THE ADMINISTRATIVE LAW JUDGE IN HIS RECOMMENDED
DECISION AND ORDER (PAGES 14 AND 15).
FINALLY, ONE ALLEGATION WAS INADVERTENTLY LEFT UNRESOLVED BY THE
ADMINISTRATIVE LAW JUDGE. THUS, IN CASE NO. 22-08989(CA) THE
COMPLAINANT CHARGED THE RESPONDENT "HAS ATTEMPTED TO DENY THE EMPLOYEES
UNION REPRESENTATION AND TO UNDERMINE THE STATUS OF THE UNION AS THEIR
EXCLUSIVE REPRESENTATIVE" BY ITS DESIGNATION OF 25 EMPLOYEES OUT OF A
BARGAINING UNIT OF 125 AS TRAINEES. WHILE NO SECTION OF THE ORDER WAS
SPECIFIED WITH RESPECT TO THIS ALLEGATION, SUCH AN ALLEGATION WOULD
GENERALLY CONSTITUTE AN ALLEGATION OF AN INDEPENDENT VIOLATION OF
SECTION 19(A)(1). UNDER THE CIRCUMSTANCES, IT IS CONCLUDED THAT THE
EVIDENCE IS INSUFFICIENT TO FIND A VIOLATION OF THE ORDER IN THIS
REGARD. ACCORDINGLY, ALTHOUGH IT MIGHT HAVE BEEN A BETTER PRACTICE FOR
THE RESPONDENT TO KEEP THE EXCLUSIVE REPRESENTATIVE BETTER INFORMED AS
TO THE REASONS FOR THE INCREASED NUMBER OF EMPLOYEES SELECTED, THE
AUTHORITY SHALL ORDER THAT ASPECT OF THE COMPLAINT IN CASE NO.
22-08989(CA) BE DISMISSED.
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE DEPARTMENT OF THE TREASURY, BUREAU OF ENGRAVING AND PRINTING,
SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO MEET AND CONFER WITH THE WASHINGTON PLATE PRINTERS
UNION, LOCAL NO. 2, INTERNATIONAL PLATE PRINTERS, DIE STAMPERS AND
ENGRAVERS UNION OF NORTH AMERICA, AFL-CIO, REGARDING THE PERSONNEL
POLICIES AND PRACTICES AND OTHER MATTERS AFFECTING WORKING CONDITIONS
DURING THE TRAINING PERIOD OF UNIT EMPLOYEES SELECTED FOR ACTING
ASSISTANT FOREMAN POSITIONS.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) UPON REQUEST OF THE WASHINGTON PLATE PRINTERS UNION, LOCAL NO.
2, INTERNATIONAL PLATE PRINTERS, DIE STAMPERS AND ENGRAVERS UNION OF
NORTH AMERICA, AFL-CIO, MEET AND CONFER, TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS AND ANY AGREEMENT NEGOTIATED BY THE PARTIES SINCE
THE DATE OF THE HEARING IN THE SUBJECT CASES, REGARDING THE PERSONNEL
POLICIES AND PRACTICES AND OTHER MATTERS AFFECTING THE CONDITIONS OF
EMPLOYMENT DURING THE TRAINING OF THE UNIT EMPLOYEES SELECTED FOR ACTING
ASSISTANT FOREMAN POSITIONS.
(B) POST AT THE DEPARTMENT OF THE TREASURY, BUREAU OF ENGRAVING AND
PRINTING, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" 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 DEPARTMENT OF
THE TREASURY, THE BUREAU OF ENGRAVING AND PRINTING, AND SHALL BE POSTED
AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING BULLETIN BOARDS AND ALL OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(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.
IT IS FURTHER ORDERED THAT THE ALLEGATIONS OF THE COMPLAINT IN
ASSISTANT SECRETARY CASE NO. 22-08989(CA) FOUND NOT TO BE VIOLATIVE OF
THE EXECUTIVE ORDER AND THE COMPLAINT IN CASE NO. 22-08990(CA) BE, AND
THEY HEREBY ARE, DISMISSED.
ISSUED, WASHINGTON, D.C. AUGUST 13, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 REFUSE TO MEET AND CONFER WITH THE WASHINGTON PLATE
PRINTERS UNION, LOCAL NO. 2, INTERNATIONAL PLATE PRINTERS, DIE STAMPERS
AND ENGRAVERS UNION OF NORTH AMERICA, AFL-CIO, REGARDING PERSONNEL
POLICIES AND PRACTICES AND OTHER MATTERS AFFECTING WORKING CONDITIONS
DURING THE TRAINING PERIOD OF UNIT EMPLOYEES SELECTED FOR ACTING
ASSISTANT FOREMAN POSITIONS.
WE WILL NOT, IS ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST OF THE WASHINGTON PLATE PRINTERS UNION, LOCAL
NO. 2, INTERNATIONAL PLATE PRINTERS, DIE STAMPERS AND ENGRAVERS UNION OF
NORTH AMERICA, AFL-CIO, MEET AND CONFER, TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS AND ANY AGREEMENT NEGOTIATED BY THE PARTIES SINCE
THE HEARING HELD IN THE SUBJECT CASES, REGARDING THE PERSONNEL POLICIES
AND PRACTICES AND OTHER MATTERS AFFECTING WORKING CONDITIONS DURING THE
TRAINING PERIOD OF THOSE UNIT EMPLOYEES SELECTED FOR ACTING ASSISTANT
FOREMAN POSITIONS.
. . . .
(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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 1133 15TH STREET, NW., ROOM 300, WASHINGTON, D.C. 20005;
AND WHOSE TELEPHONE NUMBER IS: (202) 653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
MS. SALLY KRAUS MARSHALL
LABOR RELATIONS OFFICER
OFFICE OF INDUSTRIAL RELATIONS
BUREAU OF ENGRAVING AND PRINTING
14TH AND C STREETS, S.W.
WASHINGTON, D.C. 20228
FOR THE RESPONDENT
ALAN SHACHTER, ESQUIRE
9625 SURVEYOR COURT
SUITE 220
MANASSAS, VIRGINIA 22110
FOR THE COMPLAINANT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491 AS AMENDED
(HEREINAFTER ALSO REFERRED TO AS THE "ORDER"). ALTHOUGH THE NOTICE OF
HEARING WAS ISSUED BY A REGIONAL ADMINISTRATOR OF THE LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, AND ALL
PROCEEDINGS WERE CONDUCTED BEFORE THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, THIS DECISION IS ISSUED IN THE NAME OF THE
AUTHORITY PURSUANT TO TRANSITION RULES AND REGULATIONS, FEDERAL
REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979 (5 C.F.R.SECTION 2400.2).
ON FEBRUARY 2, 1978, COMPLAINANT FILED A CHARGE AND ON APRIL 24,
1978, FILED A COMPLAINT IN CASE NO. 22-08989(CA) ASSERTING VIOLATIONS OF
SECTIONS 19(A)(1) AND (6) OF THE ORDER AS THE RESULT OF RESPONDENT'S
REFUSAL TO BARGAIN ON COMPLAINANT'S DEMAND TO BARGAIN, INTER ALIA, ON
"THE WEIGHTS, FACTORS, SELECTION CRITERIA, EVALUATION PROCESS, ETC. TO
BE USED BY THE BUREAU IN FILLING THE POSITION OF ASSISTANT FOREMAN FROM
AMONGST THE 25 EMPLOYEES SELECTED FOR TRAINING . . . THE WORKING
CONDITIONS, PERSONNEL POLICIES AND PRACTICES EFFECTING (SIC) THE 25
SELECTEES DURING THE . . . PERIOD OF (THEIR) TRAINING." (ASS'T SEC. EXH.
1). IN ADDITION, COMPLAINANT ASSERTED THAT THE POSITION OF "ACTING
ASSISTANT FOREMAN" AND/OR "ASSISTANT FOREMAN" IS A POSITION WITHIN THE
BARGAINING UNIT. FINALLY, COMPLAINANT ASSERTED THAT BY DESIGNATING 25
EMPLOYEES OF A UNIT OF APPROXIMATELY 125 AS TRAINEES FOR ACTING
ASSISTANT FOREMAN POSITIONS, RESPONDENT HAS ATTEMPTED TO DENY THE
EMPLOYEES UNION REPRESENTATION AND TO UNDERMINE THE STATUS OF
COMPLAINANT AS THEIR EXCLUSIVE REPRESENTATIVE. COMPLAINANT ASSERTS THAT
THE COMPLAINT ENCOMPASSES ITS REQUESTS TO NEGOTIATE, AND RESPONDENT'S
REFUSAL, AS TO RESPONDENT'S DECISION TO SELECT AND TRAIN 25 EMPLOYEES
FOR THE POSITION OF ASSISTANT FOREMAN AND THE IMPACT AND IMPLEMENTATION
OF THAT DECISION ON THE BARGAINING UNIT. ALTHOUGH RESPONDENT DENIES
THAT THE COMPLAINT ALLEGES EITHER A REQUEST TO NEGOTIATE CONCERNING THE
NUMBER OF EMPLOYEES TO BE SELECTED AND TRAINED OR A REQUEST TO NEGOTIATE
THE IMPACT AND IMPLEMENTATION OF THAT DECISION AS A VIOLATION OF
SECTIONS 19(A)(1) AND (6), THE COMPLAINT, WHILE FAR FROM A MODEL FOR
SPECIFICITY, DOES SET FORTH WITH PARTICULARITY THE FACTS AS TO EACH
ALLEGATION, DOES ALLEGE ITS REQUEST FOR BARGAINING, AND DOES ALLEGE THAT
RESPONDENT REFUSED TO NEGOTIATE ANY ASPECT OF THE MATTERS. BOTH ISSUES
WERE FULLY LITIGATED AND I FIND THAT BOTH ARE, AS COMPLAINANT ASSERTS,
ENCOMPASSED BY THE COMPLAINT.
ON THE SAME DATES, COMPLAINANT FILED A SECOND CHARGE AND COMPLAINT IN
CASE NO. 22-08990(CA), ALLEGING VIOLATION OF SECTIONS 19(A)(1), (5) AND
(6) OF THE ORDER. (ASS'T SEC. EXH. 2). ON JULY 26, 1978, COMPLAINANT
FILED AN AMENDED COMPLAINT IN CASE NO. 22-08990(CA) WHICH DELETED THE
19(A)(5) ALLEGATION. (ASS'T SEC. EXH. 3). THE AMENDED COMPLAINT
ASSERTS THAT A MEETING WAS CONDUCTED ON JANUARY 13, 1978, BY THE ACTING
DIRECTOR OF THE BUREAU WITH 8 OF THE EMPLOYEES SELECTED FOR TRAINING FOR
THE POSITION OF ACTING ASSISTANT FOREMAN; THAT "THE PURPOSE OF THIS
MEETING WAS TO ORIENT THESE EMPLOYEES TO THEIR TRAINING PROGRAM, TO
DISCUSS WITH THEM THE NATURE OF THE POSITION FOR WHICH THEY HAD BEEN
SELECTED THE EVALUATION AND SELECTION PROCEDURES THAT WOULD BE USED IN
FILLING ASSISTANT FOREMAN VACANCIES"; THAT THE POSITION OF ACTING
ASSISTANT FOREMAN AND/OR THE POSITION OF ASSISTANT FOREMAN IS A POSITION
WITHIN THE UNIT; THAT "THE MEETING WAS A FORMAL MEETING CONCERNING
PERSONNEL POLICIES AND PRACTICES AND OTHER MATTERS EFFECTING (SIC)
GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT", I.E., THAT THIS
WAS A FORMAL DISCUSSION WITHIN THE MEANING OF SECTION 10(E) OF THE
ORDER; AND THAT COMPLAINANT WAS NEITHER INFORMED OF THE MEETING NOR
GIVEN THE OPPORTUNITY TO BE REPRESENTED AT THE MEETING.
ON JULY 31, 1978, THE REGIONAL ADMINISTRATOR ISSUED AN ORDER
CONSOLIDATING THESE CASES FOR HEARING (ASS'T SEC. EXH. 4) AND ON THE
SAME DATE ISSUED A NOTICE OF HEARING (ASS'T SEC. EXH. 5) PURSUANT TO
WHICH A HEARING WAS DULY HELD BEFORE THE UNDERSIGNED ON OCTOBER 17, 18
AND 20, 1978, IN WASHINGTON, D.C.
EACH PARTY WAS REPRESENTED, WAS AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN, AND TO PRESENT ORAL ARGUMENT. AT
THE CLOSE OF THE HEARING, DECEMBER 1, 1978, WAS FIXED AS THE DATE FOR
MAILING BRIEFS; HOWEVER, RESPONDENT, ON NOVEMBER 21, 1978, REQUESTED
THAT THE TIME FOR MAILING BRIEFS BE EXTENDED TO DECEMBER 15, 1978, WHICH
REQUEST, FOR GOOD CAUSE SHOWN AND WITH THE CONSENT OF COUNSEL FOR
COMPLAINANT, WAS GRANTED ON NOVEMBER 28, 1978. EACH PARTY HAS TIMELY
FILED AN EXCELLENT BRIEF WHICH HAVE BEEN CAREFULLY CONSIDERED. UPON THE
BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
ORDER.
FINDINGS AND CONCLUSIONS
I. ARE ACTING ASSISTANT FOREMEN SUPERVISORS WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER?
IT IS RECOGNIZED THAT JOURNEYMEN PLATE PRINTERS SELECTED FOR TRAINING
AS ASSISTANT FOREMAN WERE, INITIALLY, TRAINEES AND, STRICTLY SPEAKING,
WERE NOT IMMEDIATELY SUPERVISORS, ALTHOUGH THEY WERE PERFORMING A
MANAGERIAL FUNCTION UNDER THE DIRECTION AND CONTROL OF A FOREMAN OR
ACTING FOREMAN; HOWEVER, AFTER COMPLETION OF 120 HOURS OF SUPERVISED
TRAINING, THEY WERE REQUIRED TO "RUN" A SECTION ALONE FOR 40 HOURS TO
COMPLETE THE REQUIRED 160 HOURS OF TRAINING. AFTER COMPLETION OF THE
160 HOURS, EACH EMPLOYEE WHO SATISFACTORILY COMPLETED THE TRAINING WAS,
UPON RECOMMENDATION OF THE SUPERINTENDENT, ENTITLED TO WORK AS AN
ASSISTANT FOREMAN AND RESPONDENT THEREAFTER ASSIGNED THEM AS ACTING
ASSISTANT FOREMAN AS NEEDED. AFTER COMPLETION OF 160 HOURS ON-THE-JOB
TRAINING, EACH WAS PAID AT THE ASSISTANT FOREMAN RATE FOR THE TIME SPENT
AS ACTING ASSISTANT FOREMAN. WHEN NOT ASSIGNED AS AN ACTING ASSISTANT
FOREMEN, EACH SUCH EMPLOYEE REVERTED TO HIS JOB AS A PLATE PRINTER. IN
ADDITION TO ON-THE-JOB TRAINING AS ASSISTANT FOREMEN, RESPONDENT INTENDS
TO PROVIDE 40 HOURS OF CLASSROOM INSTRUCTION; HOWEVER BECAUSE OF THE
PRESS OF WORK ONLY 8 OF THE 25 SELECTED HAD HAD ANY CLASSROOM
INSTRUCTION AT THE TIME OF THE HEARING; 6 HAD COMPLETED 32 HOURS OF
CLASSROOM INSTRUCTION; AND 2 PROBABLY HAD COMPLETED 40 HOURS OF
CLASSROOM INSTRUCTION. NEVERTHELESS, ALTHOUGH RESPONDENT INTENDS TO
COMPLETE THE CLASSROOM INSTRUCTION, COMPLETION OF CLASSROOM INSTRUCTION
WAS NEITHER A STATED QUALIFICATION REQUIREMENT IN THE VACANCY
ANNOUNCEMENT (JT. EXH. 3) NOR IS IT A REQUIREMENT FOR ELIGIBILITY TO ACT
AS ASSISTANT FOREMAN, INCLUDING PAY AT THE ASSISTANT FOREMAN RATE WHEN
ACTING IN THAT POSITION.
IT HAS BEEN ESTABLISHED BUREAU POLICY SINCE 1960 TO ASSIGN QUALIFIED
EMPLOYEES AS ACTING SUPERVISORS AND TO PAY FOR TIME ACTUALLY WORKED IN A
SUPERVISORY CAPACITY AT THE HIGHER RATE. BULLETIN NO. 60-29, SEPTEMBER
1, 1960, PROVIDED, IN PART, AS FOLLOWS:
"3. . . . THE IMPOSSIBILITY OF FORECASTING THE TIME, FREQUENCY, OR
DURATION OF
CIRCUMSTANCES REQUIRING THE SERVICES OF WORKERS IN SOME SUPERVISORY
CAPACITIES MAKES IT
UNDESIRABLE TO MAKE PERMANENT PROMOTIONS IN CERTAIN HIGHER PAID JOBS
WITHOUT THE PROBABILITY
OF OVERSTAFFING THEM A CONSIDERABLE PORTION OF THE TIME IN THE
FORESEEABLE FUTURE. IT IS,
THEREFORE, ADMINISTRATIVELY DETERMINED THAT PAYING ADDITIONAL
COMPENSATION TO QUALIFIED
UNGRADED WORKERS FOR TIME ACTUALLY WORKED IN A SUPERVISORY CAPACITY
WHEN THE PERIOD OF SUCH
SERVICE IS 8 OR MORE CONSECUTIVE WORK HOURS IS FAIR TO THE EMPLOYEE,
ADVANTAGEOUS TO
MANAGEMENT AND, THROUGH CONTROL OF COSTS, IS IN THE PUBLIC INTEREST."
(JT. EXH. 9) (SEE,
ALSO, BULLETIN NO. 60-29, SUPPLEMENT NO. 1, FEBRUARY 14, 1962, JT.
EXH. 9).
BULLETIN 60-29, PARAGRAPH 4, QUALIFICATION REQUIREMENTS, PROVIDED, IN
PART,
"(B) EMPLOYEE MUST HAVE SERVED A TRAINING PERIOD OF AT LEAST A TOTAL
OF 160 WORKING HOURS,
40 HOURS OF WHICH MUST HAVE BEEN DURING THE ABSENCE OF THE SUPERVISOR
FOR WHOM
ACTING." (JT. EXH. 9).
FOR FISCAL YEAR 1978, AND PRIOR YEARS, THE BUREAU'S ORGANIZATIONAL
CHART FOR ITS PLATE PRINTING DIVISION HAD PROVIDED FOR A SUPERINTENDENT,
AN ASSISTANT SUPERINTENDENT AND FOR A FOREMAN OF PLATE PRINTERS IN EACH
SECTION (JT. EXH. 1). IN 1977, RESPONDENT EMBARKED ON A REORGANIZATION
WHEREBY IN ITS PLATE PRINTING DIVISION THERE WOULD BE A SUPERINTENDENT,
AN ASSISTANT SUPERINTENDENT, 3 FOREMAN OF PLATE PRINTERS, WHO WOULD
REPORT DIRECTLY TO THE SUPERINTENDENT, AND AN ASSISTANT FOREMAN OF PLATE
PRINTERS IN EACH SECTION. (JT. EXH. 2). AT THE TIME OF THE HEARING THE
REORGANIZATION HAD NOT BEEN FULLY IMPLEMENTED FOR A NUMBER OF REASONS.
ONLY ONE FOREMAN TO WORK DIRECTLY UNDER THE SUPERINTENDENT HAD BEEN
DESIGNATED (MR. GEORGE ALCES); THE FOREMEN IN SECTIONS ALL WERE
ELIGIBLE FOR RETIREMENT BY THE END OF 1978, BUT WHETHER THEY RETIRED
RESPONDENT STATED THAT IT INTENDED TO RETAIN THEM IN THEIR POSITIONS
UNTIL THEY LEFT THROUGH ATTRITION; AND COMPLETION OF THE REORGANIZATION
WAS DEFERRED UNTIL THE BUREAU OBTAINED ADDITIONAL PLATE PRINTERS. AT
THE TIME OF THE HEARING, NO PERMANENT PROMOTIONS HAD BEEN MADE TO THE
POSITION OF ASSISTANT FOREMAN AND THE 23 EMPLOYEES TRAINED AND QUALIFIED
(TWO HAD WITHDRAWN AND RETURNED TO THEIR JOBS AS PLATE PRINTERS) TO ACT
AS ASSISTANT FOREMEN WERE ASSIGNED AS ACTING ASSISTANT FOREMEN AS
NEEDED. ALTHOUGH RESPONDENT SOUGHT TO UTILIZE EACH EMPLOYEE ELIGIBLE TO
ACT AS ASSISTANT FOREMAN ON AN ESSENTIALLY EQUAL BASIS, BECAUSE OF
ELECTION OF SENIORITY RIGHTS TO WORK AS PLATE PRINTERS, THE NUMBER OF
DAYS EACH ELIGIBLE EMPLOYEE HAD WORKED AS AN ACTING ASSISTANT FOREMAN
HAD VARIED FROM A HIGH OF ABOUT 106 DAYS TO A LOW OF ABOUT 22 DAYS WITH
A MIDDLE RANGE OF 60 TO 80 DAYS.
I FIND NO BASIS ON THE RECORD TO WARRANT ANY DISTINCTION IN THE
AUTHORITY EXERCISED, OR DUTIES, OF EMPLOYEES WHEN WORKING AS AN ACTING
ASSISTANT FOREMAN OR AN ACTING FOREMAN AS CONTRASTED TO THE AUTHORITY
EXERCISED, OR DUTIES, OF A PERMANENT ASSISTANT FOREMAN OR FOREMAN IN A
SECTION. THAT IS, PURSUANT TO THE LONG ESTABLISHED PRACTICE AND POLICY
OF THE BUREAU, ELIGIBLE EMPLOYEES SERVING IN ACTING SUPERVISORY
POSITIONS EXERCISE THE FULL RANGE OF AUTHORITY, WITH THE ACCOMPANYING
RESPONSIBILITY, WHEN SERVING IN THE ACTING CAPACITY AS WOULD BE
EXERCISED BY A PERMANENT SUPERVISOR.
COMPLAINANT ASSERTS THAT THE POSITION OF ASSISTANT FOREMAN IS NOT A
SUPERVISORY POSITION WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER.
ALTHOUGH COMPLAINANT CONCEDED THAT THE JOB DESCRIPTION (JT. EXH. 6) SETS
FORTH SUFFICIENT DUTIES, IF EXERCISED AS DESCRIBED, TO CONSTITUTE THE
POSITION A SUPERVISORY POSITION, COMPLAINANT ASSERTS THAT THE ACTUAL
DUTIES PERFORMED ARE NOT SUFFICIENT TO MAKE THE POSITION A SUPERVISORY
POSITION WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER. IT IS TRUE
THAT CENTRALIZATION OF CERTAIN FUNCTIONS BY THE BUREAU HAS REMOVED FROM
BOTH THE FOREMAN AND THE ASSISTANT FOREMAN DUTIES NORMALLY LODGED IN
SUCH POSITION. COMPLAINANT ASSERTS: (A) THAT ASSISTANT FOREMEN DO NOT
HAVE AUTHORITY TO HIRE, TRANSFER, LAYOFF, RECALL, OR TO EFFECTIVELY
RECOMMEND SUCH ACTION; THAT ALL PROMOTIONS OF WAGE BOARD EMPLOYEES ARE
HANDLED IN THE PERSONNEL OFFICE AND ARE BASED STRICTLY ON SENIORITY;
THAT ASSISTANT FOREMEN CANNOT APPROVE OR EFFECTIVELY RECOMMEND THE
APPROVAL OF LEAVE SINCE ALL LEAVE IS ADMINISTERED THROUGH A CENTRAL
LEAVE BOOK. (B) THAT ASSISTANT FOREMEN DO NOT HAVE THE AUTHORITY TO
SUSPEND, DISCHARGE OR DISCIPLINE, OR TO EFFECTIVELY RECOMMEND SUCH
ACTION; THAT ANY RECOMMENDATION BY AN ASSISTANT FOREMAN IS ROUTINE OR
OF A CLERICAL NATURE. (C) THAT ASSISTANT FOREMEN DO NOT ASSIGN
EMPLOYEES EXCEPT IN A ROUTINE OR CLERICAL MANNER; THAT ASSISTANT
FOREMEN DO NOT RESPONSIBLY DIRECT EMPLOYEES. (D) THAT ASSISTANT FOREMEN
DO NOT HAVE THE AUTHORITY TO REWARD EMPLOYEES OR TO EFFECTIVELY
RECOMMEND AN AWARD. (E) THAT ASSISTANT FOREMEN DO NOT COUNSEL
EMPLOYEES. (F) THAT ASSISTANT FOREMEN DO NOT ADJUST GRIEVANCES.
FINALLY, COMPLAINANT ASSERTS THAT, "ASSUMING THAT THE ACTING ASSISTANT
FOREMEN DO POSSESS SUPERVISORY AUTHORITIES, THEY ARE NOT SUPERVISORS
BECAUSE THEY POSSESS SUCH SUPERVISORY AUTHORITIES ONLY ON AN
INTERMITTENT AND INFREQUENT BASIS" (COMPLAINANT'S BRIEF P. 15), A
CONTENTION I FOUND TO BE WITHOUT MERIT, AS NOTED HEREIN ABOVE, FOR THE
REASON THAT THE RECORD SHOWS THAT ELIGIBLE EMPLOYEES WHILE SERVING IN AN
ACTING SUPERVISORY CAPACITY POSSESS, AND EXERCISE, THE FULL RANGE OF
AUTHORITY OF THE POSITION AND FOR FURTHER REASONS DISCUSSED HEREINAFTER.
OF COURSE, WHETHER THE POSITION IS, OR IS NOT, A SUPERVISORY POSITION
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER IS ANOTHER MATTER.
I HAVE GIVEN CAREFUL CONSIDERATION TO COMPLAINANT'S CONTENTIONS AND
CONCLUDE, CONTRARY TO COMPLAINANT'S ASSERTIONS, THAT ASSISTANT FOREMEN,
AND, SPECIFICIALLY, EMPLOYEES WHEN WORKING AS ACTING ASSISTANT FOREMEN,
ARE SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER.
INDEED, THE DUTIES AND RESPONSIBILITIES OF FOREMEN, EXCEPT MR. ALCES,
ACTING FOREMEN AND ACTING ASSISTANT FOREMEN IN EACH SECTION ARE
INDISTINGUISHABLE AND, ULTIMATELY, EACH SECTION WILL IN CHARGE OF AN
ASSISTANT FOREMAN.
THE ASSISTANT FOREMAN, OR FOREMAN, IS RESPONSIBLE FOR THE PRODUCTION
AND QUALITY OF THE WORK PRODUCED BY HIS SECTION AND IS SUBJECT TO
DISCIPLINE FOR EXCESSIVE SPOILAGE OF WORK IN HIS SECTION; HE IS
RESPONSIBLE FOR ORDERING NECESSARY SUPPLIES AND MATERIALS; FOR
EXAMINING WORK; FOR EXPEDITING MAINTENANCE AND REPAIR OF PRESSES; FOR
AUTHORIZING THE CHANGING OF PLATES; FOR COMPLIANCE WITH BUREAU RULES
AND REGULATIONS. THE ASSISTANT FOREMAN, OR FOREMAN, ASSISTS THE PLATE
PRINTERS WITH PROBLEMS AND MAKES SUGGESTIONS TO RESOLVE PROBLEMS.
RECOGNIZING THAT THAT PLATE PRINTING IS A SPECIALIZED CRAFT AND THAT
JOURNEYMEN PLATE PRINTERS REQUIRE LITTLE DIRECTION, NEVERTHELESS, THE
ASSISTANT FOREMAN, OR FOREMAN, IS RESPONSIBLE FOR BOTH QUALITY AND
PRODUCTION OF HIS SECTION AND HAS, TOGETHER WITH THE JOURNEYMAN PLATE
PRINTER, THE ACCOMPANYING RESPONSIBILITY TO EXAMINE WORK, TO RECOGNIZE
PRINTING PROBLEMS, AND TO SEE THAT APPROPRIATE CORRECTIVE ACTION IS
TAKEN. OF COURSE, THE ASSISTANT FOREMAN, OR FOREMAN, HAS EMPLOYEES
OTHER THAN JOURNEYMAN PLATE PRINTERS UNDER HIS DIRECTION AND CONTROL.
THE SPECIFIC CLASSIFICATIONS OF OTHER WORKERS VARIES SLIGHTLY IN
DIFFERENT SECTIONS BUT INCLUDE STACKERS, DISTRIBUTORS, PRESS WORKERS,
CLERKS, COUNTERS, ROLLER FINISHERS, AND ADHESIVE PROCESSOR-CONTROLLERS
(JT. EXHS. 1 AND 2). IT MAY VERY WELL BE TRUE THAT CLERKS KNOW THEIR
JOBS; THAT PRESS WORKERS ARE ASSIGNED TO PLATE PRINTERS; THAT
DISTRIBUTORS AND STACKERS PERFORM A REPETITIVE DUTY; NEVERTHELESS, EACH
IS SUBJECT TO THE DIRECTION AND CONTROL OF THE ASSISTANT FOREMAN, OR
FOREMAN. INDEED, MR. DAVID M. MATVAY TESTIFIED THAT IF A PLATE PRINTER
HAD TROUBLE WITH A PRESS WORKER HE WOULD GO TO THE ASSISTANT FOREMAN, OR
FOREMAN, WHO WOULD DEAL WITH THE MATTER.
PERSONNEL ARE ASSIGNED TO SECTIONS ACCORDING TO SENIORITY, BUT ONCE
THEY ARE ASSIGNED TO A SECTION THEIR SENIORITY RIGHTS DO NOT ENTITLE
THEM TO ANY PARTICULAR ASSIGNMENT. ALTHOUGH THE NORMAL PROCEDURE IS TO
ASSIGN SENIOR EMPLOYEES TO EASIER, OR PREFERRED JOBS, PLATE PRINTERS ARE
ASSIGNED IN ORDER OF SENIORITY TO PRESSES MOST LIKELY TO RUN ALL DAY
EVEN THOUGH THE PLATE PRINTER MAY PREFER A DIFFERENT ASSIGNMENT AND/OR
IF ONLY ONE PLATE PRINTER WERE QUALIFIED TO OPERATE A PARTICULAR PRESS
HE WOULD BE ASSIGNED TO THAT JOB. THE ASSISTANT FOREMAN, OR FOREMAN,
MAY ASSIGN WAGE BOARD EMPLOYEES, I.E., NON-SKILLED PLANT WORKERS SUCH AS
DISTRIBUTORS AND STACKERS, AT THEIR DISCRETION. ASSISTANT FOREMEN HAVE
DISCIPLINED DISTRIBUTORS, STACKERS AND CLERKS AND, WHILE THEY DO NOT
HAVE AUTHORITY TO DISCHARGE OR SUSPEND, THEY DO HAVE THE AUTHORITY TO
RECOMMEND SUCH ACTION.
ASSISTANT FOREMEN HANDLE AWOL CHARGES AND RECOMMEND WHETHER AN AWOL
CHARGE IS SUSTAINED OR WHETHER THE EMPLOYEE IS TO BE CHARGED ANNUAL
LEAVE, SICK LEAVE, ETC., AND THE AWOL CHARGE BE DROPPED. GENERALLY,
THESE RECOMMENDATIONS ARE ADOPTED BY THE SUPERINTENDENT. ASSISTANT
FOREMEN FILE "FIVE DAY PROGRESSIVE REPORTS" ON EACH WAGE BOARD EMPLOYEE
ASSIGNED TO HIS SECTION ON WHICH THE PERFORMANCE OF THE EMPLOYEE IS
EVALUATED. ASSISTANT FOREMEN, OR FOREMEN, HAVE AUTHORITY TO APPROVE
ANNUAL LEAVE FOR CLERICAL AND NON-CRAFT EMPLOYEES AND AUTHORITY TO ALLOW
PRINTERS TO LEAVE IN EMERGENCIES. ASSISTANT FOREMEN, OR FOREMEN, DEAL
WITH GRIEVANCES AT THE FIRST STEP OF THE GRIEVANCE PROCEDURE (JT. EXH.
5, ART. XXX, SEC. 6, STEP 1). ALTHOUGH NO ASSISTANT FOREMAN HAD
RECOMMENDED ANY EMPLOYEE FOR AN INCENTIVE AWARD BECAUSE THE INCENTIVE
AWARD PROGRAM WAS BEING MODIFIED, IT IS CLEAR THAT WHEN THE AWARD
PROGRAM IS REINSTITUTED THEY WILL MAKE SUCH RECOMMENDATIONS.
WITHOUT FURTHER EXAMINING THE DUTIES OF ASSISTANT FOREMEN OF THE
PLATE PRINTING DIVISION, IT IS CLEAR THAT THEY RESPONSIBLY DIRECT
EMPLOYEES, ASSIGN EMPLOYEES WITHIN THEIR SECTION, ADJUST GRIEVANCES,
DISCIPLINE EMPLOYEES; ETC., THAT THEY HAVE FULL RESPONSIBILITY FOR THE
OPERATION OF THEIR SECTION; AND THAT THE EXERCISE OF THEIR AUTHORITY IS
NOT OF A MERELY ROUTINE OR CLERICAL NATURE BUT REQUIRES THE EXERCISE OF
INDEPENDENT JUDGMENT. IN UNITED STATES NAVAL WEAPONS CENTER, CHINA
LAKE, CALIFORNIA, FLRC NO. 72A-11, 1 FLRC 405(1973), WHICH INVOLVED FIRE
CAPTAINS, TWO MAJOR POLICY ISSUES WERE PRESENTED, NAMELY: (A) WHETHER
SECTION 2(C) SHOULD BE APPLIED IN THE DISJUNCTIVE AND (B) WHETHER THE
FACT THAT AN ALLEGED SUPERVISOR'S RECOMMENDATIONS ARE SUBJECT TO REVIEW
BY HIGHER RANKING OFFICIALS RENDER HIS RECOMMENDATIONS INEFFECTIVE
WITHIN THE MEANING OF SECTION 2(C). THE COUNSEL STATED, IN PART, AS TO
THE FIRST ISSUE, AS FOLLOWS:
" . . . WE FIND THAT SECTION 2(C) MUST BE APPLIED IN THE DISJUNCTIVE.
ACCORDINGLY, ANY
INDIVIDUAL WHO POSSESSES THE AUTHORITY TO PERFORM A SINGLE FUNCTION
DESCRIBED IN SECTION 2(C),
PROVIDED HE DOES SO IN A MANNER REQUIRING THE USE OF INDEPENDENT
JUDGMENT, IS A SUPERVISOR AND
MUST BE EXCLUDED FROM THE UNIT." (1 FLRC AT 407)
AND, AS TO THE SECOND ISSUE, THE COUNSEL STATED, IN PART, AS FOLLOWS:
" . . . THE EVIDENCE MUST ESTABLISH ONLY THAT A RECOMMENDATION IS
MADE ON BEHALF OF
MANAGEMENT, THAT IT IS BASED UPON THE INDEPENDENT JUDGMENT OF THE
ALLEGED SUPERVISOR, AND THAT
THE RECOMMENDATION-- EITHER CONSIDERED SEPARATELY OR IN CONJUNCTION
WITH THE RECOMMENDATIONS
OF OTHER SUPERVISORS OR MANAGEMENT OFFICIALS-- COULD RESULT IN A
DECISION BY MANAGEMENT TO
HIRE, TRANSFER, SUSPEND, OR TAKE ANY OF THE OTHER ACTIONS SET FORTH
IN SECTION 2(C). TO BE
EFFECTIVE, IT IS NOT NECESSARY THAT ONE RECOMMENDATION BY ONE
INDIVIDUAL BE THE SOLE CRITERIA
USED BY HIGHER MANAGEMENT IN DETERMINING WHETHER TO TAKE ONE OF THE
ACTIONS LISTED IN SECTION
2(C)."
"AS A PRACTICAL MATTER, ANY OTHER INTERPRETATION OF THE TERM
'EFFECTIVE' WOULD BE CLEARLY
CONTRARY TO THE REALITIES OF THE EXERCISE OF AUTHORITY IN THE FEDERAL
SECTOR. FOR EXAMPLE,
WITH RESPECT TO PROMOTIONS, IN THE FEDERAL SECTOR VIRTUALLY ALL
DECISIONS AS TO PROMOTIONS TO
A HIGHER GRADE LEVEL ARE MADE PURSUANT TO ESTABLISHED PROCEDURES
WHICH EXPLICITLY REQUIRE THAT
THE RECOMMENDATION OF A LOWER LEVEL SUPERVISOR BY REVIEWED OR
APPROVED BY HIGHER OFFICIALS
BEFORE BEING PUT INTO EFFECT. THEREFORE, THE KEY TO DETERMINING THE
EFFECTIVENESS OF AN
ALLEGED SUPERVISOR'S RECOMMENDATION IS NOT THE MERE FACT OF REVIEW,
BUT THE IMPACT WHICH THAT
RECOMMENDATION HAS UPON THE OVERALL PROMOTIONAL PROCEDURES IN FORCE
AT AN ACTIVITY . . . "
"WITH RESPECT TO THE REVIEW OF FIRST STEP GRIEVANCE ADJUSTMENTS, WE
MUST FIRST POINT OUT
THAT A DECISION AT THE FIRST OR INFORMAL STAGE OF A GRIEVANCE
PROCEDURE IS THE FINAL AND ONLY
DECISION AT THAT LEVEL. IF THE DECISION AT THE FIRST STEP IS
SATISFACTORY TO THE GRIEVANT, NO
APPEAL IS TAKEN AND THE INDIVIDUAL WHO POSSESSED THE AUTHORITY TO
MAKE THE DECISION AT THE
FIRST STEP HAS, IN FACT, MADE THE FINAL DECISION AS TO THAT
GRIEVANCE. MOREOVER, EVEN IF THE
DECISION AT THE FIRST STEP IS APPEALED AND REVISED, THIS DOES NOT
ALTER THE AUTHORITY OF THE
INDIVIDUAL WHO MADE THE FIRST STEP DECISION. THAT INDIVIDUAL STILL
POSSESSES THE AUTHORITY TO
ADJUST GRIEVANCES AT THE FIRST STEP . . . " (1 FLRC AT 408-409).
UPON REMAND, THE ASSISTANT SECRETARY FOUND THAT EMPLOYEES CLASSIFIED
AS FIRE CAPTAINS POSSESSED THE AUTHORITY TO ADJUST EMPLOYEE GRIEVANCES
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER AND WERE, THEREFORE,
SUPERVISORS WHO SHOULD BE EXCLUDED FROM THE UNIT. DEPARTMENT OF THE
NAVY, UNITED STATES NAVAL WEAPONS CENTER, CHINA LAKE, CALIFORNIA, A/SLMR
NO. 297, 3 A/SLMR 460(1973).
OF COURSE, HERE, ACTING ASSISTANT FOREMEN NOT ONLY POSSESS THE
AUTHORITY TO ADJUST GRIEVANCES AT THE FIRST STEP AND THE AUTHORITY TO
EFFECTIVELY RECOMMEND ACTION SET FORTH IN SECTION 2(C), INCLUDING
SUSPENSION OR DISCHARGE, BUT THEY HAVE FULL RESPONSIBILITY FOR THE
OPERATION OF THEIR SECTIONS, RESPONSIBLY DIRECT EMPLOYEES, DISCIPLINE
EMPLOYEES, ASSIGN EMPLOYEES WITHIN THEIR SECTION, AND, WHEN RESPONDENT'S
INCENTIVE AWARD PROGRAM IS REACTIVATED, WILL HAVE AUTHORITY TO
EFFECTIVELY RECOMMEND THE GRANT OF SUCH AWARDS. ACCORDINGLY, I CONCLUDE
THAT THE POSITION OF ASSISTANT FOREMAN IS A SUPERVISORY POSITION WITHIN
THE MEANING OF SECTION 2(C) OF THE ORDER AND THAT ELIGIBLE EMPLOYEES
WHEN WORKING AS ACTING ASSISTANT FOREMAN ARE SUPERVISORS WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER.
IN REACHING THIS CONCLUSION I HAVE GIVEN CAREFUL CONSIDERATION TO THE
AUTHORITIES PRINCIPALLY RELIED UPON BY COMPLAINANT AND FIND SUCH
AUTHORITIES EITHER WHOLLY CONSISTENT, AS IN U.S. DEPARTMENT OF
AGRICULTURE, AGRICULTURAL RESEARCH SERVICE, EASTERN RESEARCH CENTER
(ERRC) PHILADELPHIA, PENNSYLVANIA, A/SLMR NO. 479, 5 A/SLMR 81(1975),
APPEAL DENIED, FLRC NO. 75A-20, 3 FLRC 446(1975) (PROJECT LEADERS
DETERMINED TO BE SUPERVISORS PRIMARILY BECAUSE THEY PARTICIPATE IN THE
FIRST STEP OF THE FORMAL GRIEVANCE PROCEDURE AND POSSESS THE AUTHORITY
TO ADJUST GRIEVANCE AT THAT LEVEL; NON-PROJECT LEADERS WERE DETERMINED
NOT TO BE SUPERVISORS AND, ALTHOUGH IN THE PETITION FOR REVIEW IT WAS
CONTENDED THAT, "NON-PROJECT LEADERS CONSTITUTE A LEVEL OF SUPERVISION
BELOW THAT OF PROJECT LEADERS FOR THE PURPOSE OF ADJUSTING CERTAIN
GRIEVANCES" THE COUNCIL IN DENYING REVIEW MERELY STATED, "IT DOES NOT
APPEAR THAT THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE
JUSTIFICATION IN DETERMINING THAT SUCH INDIVIDUALS WERE NOT SUPERVISORS
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER." (3 FLRC AT 447)), OR,
AS IN FEDERAL DEPOSIT INSURANCE CORPORATION, A/SLMR NO. 459, 4 A/SLMR
813(1974), APPEAL DENIED, FLRC NO. 75A-39, 3 FLRC 519(1975), CLEARLY
DISTINGUISHABLE. FIRST, THE DUTIES OF "COMMISSIONED BANK EXAMINERS" IN
THE FEDERAL DEPOSIT INSURANCE CASE, SUPRA, WHEN THEY ACTED AS
EXAMINERS-IN-CHARGE, WERE "ROUTINE IN NATURE, . . . WITHIN ESTABLISHED
GUIDELINES AND . . . DICTATED BY ESTABLISHED PROCEDURES . . . " (4
A/SLMR AT 815), WHEREAS ASSISTANT FOREMEN HEREIN POSSESS AND EXERCISE A
PANOPLY OF SUPERVISORY FUNCTIONS WITHIN THE MEANING OF SECTION 2(C) OF
THE ORDER. SECOND, IN DENYING THE APPEAL, THE COUNCIL STATED, "WITH
RESPECT TO YOUR RELATED CONTENTION THAT THE ASSISTANT SECRETARY'S
DECISION APPEARS TO HOLD THAT AN EMPLOYEE MUST PERFORM SUPERVISORY
FUNCTIONS 100 PERCENT OF THE WORK YEAR TO QUALIFY AS A SUPERVISOR. THE
ASSISTANT SECRETARY DID NOT MAKE SUCH A DETERMINATION BUT, RATHER,
MERELY FOUND THAT COMMISSIONED BANK EXAMINERS PERFORM EXAMINER-IN-CHARGE
FUNCTIONS ON AN IRREGULAR AND NON-CONTINUING BASIS AND EXERCISE
SUPERVISORY FUNCTIONS IN THAT CAPACITY ONLY IN ISOLATED INSTANCES." (3
FLRC AT 521-521). THE COUNCIL NOTED ITS STATEMENT IN REPORT AND
RECOMMENDATIONS OF THE FEDERAL LABOR RELATION COUNCIL ON THE AMENDMENT
OF EXECUTIVE ORDER 11491, AS AMENDED, LABOR-MANAGEMENT RELATIONS IN THE
FEDERAL SERVICE, THAT,
"THE ASSISTANT SECRETARY HAS HELD, IN EFFECT, THAT MERE INTERMITTENT
AND INFREQUENT
POSSESSION OR ASSIGNMENT OF A SUPERVISORY FUNCTIONS IS NOT A
SUFFICIENT BASIS FOR A
SUPERVISORY DETERMINATION. THUS, THE FREQUENCY AND REGULARITY WITH
WHICH SUPERVISORY
AUTHORITY IS EXERCISED HAS BEEN MADE AN ELEMENT IN THE APPLICATION OF
THE
DEFINITION." (PP. 12-13) (1975).
FREQUENCY AND REGULARITY WITH WHICH ANY PARTICULAR PERSON SERVES AS
ASSISTANT FOREMAN IS NOT MATERIAL AS TO THE SUPERVISORY STATUS OF THE
ON-GOING POSITION OF ASSISTANT FOREMAN, NOR IS FREQUENCY AND REGULARITY
OF THE EXERCISE OF SUPERVISORY AUTHORITY DETERMINATIVE OF THE AUTHORITY
OF AN EMPLOYEE WHEN FUNCTIONING IN SUCH CAPACITY, C.F., UNITED STATES
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, A/SLMR NO. 833, 7
A/SLMR 371(1977); UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED
STATES FOREST SERVICE, ANGELES NATIONAL FOREST, PASADENA, CALIFORNIA,
A/SLMR NO. 339, 4 A/SLMR 58(1974). CLEARLY, THE FREQUENCY AND
REGULARITY WITH WHICH ELIGIBLE EMPLOYEES SERVE AS ACTING ASSISTANT
FOREMAN WOULD BE AN ESSENTIAL ELEMENT IN A UNIT PLACEMENT CASE; AND,
UNDER SOME CIRCUMSTANCES, HAS BEEN AN IMPORTANT CONSIDERATION BECAUSE OF
THE NEXUS WITH THE SUPERVISORY AUTHORITY ASSERTED, C.F., THE BOSTON
STORE, 221 NLRB 1126, 91 LRRM 1076(1975); THE BULLETIN COMPANY,
PHILADELPHIA, PA., 226 NLRB NO. 53, 94 LRRM 1259(1976). IN VIEW OF THE
AUTHORITY POSSESSED, AND EXERCISED, BY ACTING ASSISTANT FOREMAN IN THIS
CASE, IT IS QUESTIONABLE THAT THIS ELEMENT HAS ANY SIGNIFICANCE.
NEVERTHELESS, EVEN IF FREQUENCY AND REGULARITY WERE DEEMED AN ELEMENT IN
DETERMINING WHETHER EMPLOYEES, WHEN SERVING AS ACTING ASSISTANT FOREMAN,
WERE SUPERVISORS, I CONCLUDE THAT RESPONDENT'S ACTING ASSISTANT FOREMEN
HAVE WORKED IN SUCH POSITIONS WITH SUFFICIENT FREQUENCY AND REGULARITY
THAT THEY FULLY QUALIFY AS SUPERVISORS WHEN SERVING IN THE CAPACITY OF
ACTING ASSISTANT FOREMEN. THUS, THE RECORD SHOWS, INTER ALIA THAT THE
POSITION WAS POSTED FOR BIDS; THAT 25 WERE SELECTED FOR TRAINING (51
BIDS WERE RECEIVED); THAT THE EMPLOYEES WERE TRAINED; THAT 23
(POSSIBLY 25 AS THE TIME THAT 2 WITHDREW FROM THE PROGRAM WAS NOT SHOWN)
BECAME ELIGIBLE TO ACT AS ASSISTANT FOREMAN; THAT THE 23 ELIGIBLE
EMPLOYEES ARE ASSIGNED ON A ROTATING BASIS AS ACTING ASSISTANT FOREMEN;
THAT THE MINIMUM NUMBER OF DAYS WORKED AS ACTING ASSISTANT FOREMAN BY
ANY ELIGIBLE EMPLOYEE AFTER COMPLETION OF TRAINING HAD BEEN 22 DAYS, THE
MEDIAN HAD BEEN 60 TO 80 DAYS AND THE MAXIMUM WAS 106 DAYS; THAT
RESPONDENT ENDEAVORS TO AFFORD EQUAL OPPORTUNITY FOR EACH ELIGIBLE
EMPLOYEE TO SERVE AS ACTING ASSISTANT FOREMEN; THAT COMPLAINANT HAS
BEEN FULLY ADVISED OF THE PROGRAM; AND THAT THE BUREAU, IN USING
QUALIFIED EMPLOYEES IN AN ACTING SUPERVISORY CAPACITY, HAS FOLLOWED ITS
LONG STANDING POLICY IN THIS REGARD, INCLUDING PAYMENT AT THE RATE FOR
THE SUPERVISORY POSITION WHEN EMPLOYEES SERVE IN SUCH CAPACITY, AND THE
EXERCISE BY THE ACTING SUPERVISOR OF THE FULL AUTHORITY OF THE POSITION
WHEN SERVING IN AN ACTING SUPERVISORY POSITION.
II. DID RESPONDENT VIOLATE SECTIONS 19(A)(1) AND (6) OF THE ORDER,
AS ASSERTED IN CASE
NO. 22-08990(CA), BY CONDUCTING A MEETING WITH 8 TRAINEES ON JANUARY
13, 1978?
COMPLAINANT ASSERTS THAT THE MEETING OF JANUARY 13, 1978, WAS A
FORMAL DISCUSSION WITHIN THE MEANING OF SECTION 10(E); THAT IT, AS THE
EXCLUSIVE REPRESENTATIVE, WAS ENTITLED TO BE GIVEN THE OPPORTUNITY TO BE
REPRESENTED; THAT RESPONDENT GAVE IT NO OPPORTUNITY TO BE REPRESENTED
AT THE MEETING, INDEED, THAT IT WAS NOT OFFICIALLY INFORMED OF THE
MEETING BY RESPONDENT.
THE SELECTIONS FOR TRAINING TO THE POSITION OF ACTING ASSISTANT
FOREMAN WERE ANNOUNCED IN EARLY JANUARY 1978 (JT. EXH. 11). SELECTEES
WERE DIVIDED INTO THREE GROUPS, OF 8-- 8-- AND 9, FOR TRAINING AND GROUP
I BEGAN TRAINING ON JANUARY 9, 1978. ON JANUARY 13, 1978, MR. SEYMOUR
BERRY, ACTING DIRECTOR OF THE BUREAU, MET WITH THE TRAINEES IN GROUP I.
THE MEETING WAS IN MR. BERRY'S OFFICE AFTER LUNCH AND THE 8 TRAINEES
CAME AS A GROUP. PRESENT AT THE MEETING WERE: MR. BERRY, THE 8
TRAINEES, MR. KIT ALLEN REGONE, ASSISTANT SUPERINTENDENT OF THE PLATE
PRINTING DIVISION AND MR. EVERETTE J. PRESCOTT, ACTING DIRECTOR OF THE
PLATE DEPARTMENT. THE PURPOSE OF THE MEETING WAS, AS THE COMPLAINT
STATES, TO ORIENT THESE EMPLOYEES TO THEIR TRAINING PROGRAM AND TO
DISCUSS WITH THEM THE NATURE OF THE POSITION FOR WHICH THEY HAD BEEN
SELECTED. THE RECORD DOES NOT SUPPORT THE ALLEGATION OF THE COMPLAINT
THAT THE MEETING CONCERNED "THE EVALUATION AND SELECTION PROCEDURES THAT
WOULD BE USED IN FILLING ASSISTANT FOREMAN VACANCIES."
THE EIGHT INDIVIDUALS INVOLVED WERE MANAGEMENT TRAINEES AND THE
MEETING WAS TO ORIENT THEM TO THE TRAINING PROGRAM FOR WHICH THEY HAD
BEEN SELECTED AND UPON WHICH THEY HAD EMBARKED. THEY HAD NOT, OF
COURSE, BECOME SUPERVISORS, NOR HAD THEY QUALIFIED TO ACT AS
SUPERVISORS; NEVERTHELESS, AS MANAGEMENT TRAINEES THEY WERE PERFORMING
A MANAGERIAL FUNCTION AND THE MEETING WAS A PART OF THEIR TRAINING
PROGRAM. BECAUSE THE MEETING WAS BETWEEN MANAGEMENT AND MANAGEMENT
TRAINEES, IT WAS NOT A FORMAL DISCUSSION WITHIN THE MEANING OF SECTION
10(E) AT WHICH COMPLAINANT HAD ANY RIGHT TO BE PRESENT. THAT IS, IT WAS
NOT A FORMAL DISCUSSION
"BETWEEN MANAGEMENT AND EMPLOYEES . . . CONCERNING GRIEVANCES,
PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT."
INDEED, AT THE HEARING, COMPLAINANT CONCEDED THAT HAD THE MEETING
GONE NO FURTHER THAN TO ORIENT THE TRAINEES TO THE TRAINING PROGRAM OR
DISCUSSION OF MANAGEMENT PROCEDURES, COMPLAINANT WOULD HAVE HAD NO RIGHT
TO BE PRESENT; BUT, BECAUSE OF CERTAIN STATEMENTS MADE BY MR. BERRY,
CONCERNING A LONG STANDING AND BITTER DISAGREEMENT BETWEEN RESPONDENT
AND COMPLAINANT ABOUT RESPONDENT'S PROPOSAL TO EMPLOY PRINTING PRESSMAN,
THE MEETING WAS CONVERTED TO A SECTION 10(E) MEETING AND, ACCORDINGLY,
COMPLAINANT WAS ENTITLED TO BE GIVEN THE OPPORTUNITY TO BE REPRESENTED
AT SUCH FORMAL DISCUSSION.
THE BUREAU OF ENGRAVING AND PRINTING WAS CREATED BY THE NATIONAL
CURRENCY ACT OF 1862 AND, TO SAFEGUARD THE SECURITIES AND CURRENCY OF
THE UNITED STATES AGAINST COUNTERFEITING, THE PROCESS OF INTAGLIO WAS
ADOPTED. THIS PROCESS COMBINES THE SKILLS OF THE ENGRAVER AND THE PLATE
PRINTER AND PROVIDES A QUALITY OF PRINTING BEYOND DUPLICATION BY ANY
OTHER PROCESS. THE PLATE PRINTING CRAFT IS HIGHLY SPECIALIZED BUT VERY
LIMITED IN NUMBERS. HISTORICALLY, THE BUREAU HAS OBTAINED JOURNEYMEN
PLATE PRINTERS BY HIRING JOURNEYMEN FROM OUTSIDE THE BUREAU OR THROUGH
ITS APPRENTICE TRAINING PROGRAM (JT. EXH. 5, ART. XIX) EXCEPT THAT
DURING THE KOREAN WAR THE UNION ALLOWED JOURNEYMEN DIE STAMPERS TO COME
INTO THE CRAFT WITH, OF COURSE, ADDITIONAL TRAINING. FOR SOMETIME, THE
BUREAU HAS EXPERIENCED A CHRONIC SHORTAGE OF PLATE PRINTERS. THIS HAS
NECESSITATED 12 HOUR SHIFTS AND A SEVEN DAY OPERATION. IN 1976, MR.
BERRY HAD PROPOSED THE EMPLOYMENT OF JOURNEYMEN PRINTING PRESSMAN AND,
IN EFFECT, ABOLITION OF APPRENTICESHIP TRAINING, ALTHOUGH THE PRINTING
PRESSMEN WOULD UNDERGO FURTHER TRAINING BEFORE BECOMING JOURNEYMEN
PLATE
PRINTERS. RESPONDENT VIOLENTLY OBJECTED TO ANY SUCH PROPOSAL.
MR. MATVAY TESTIFIED THAT IN THE COURSE OF THE JANUARY 13, 1978,
MEETING MR. BERRY STATED:
" . . . HE WAS VERY HARD ON THE UNION, AS SUCH, SAYING THAT THEY WERE
INCONSIDERATE ABOUT
HIS OFFSET PRESSMAN POSITION, BECAUSE THE UNION WAS HAVING A BIG ROW
ABOUT THE HIRING OF
ADDITIONAL PLATE PRINTERS FROM DIE STAMPERS-- VERSUS OFFSET
PRESSMAN."
"HE MADE A POINT, SAYING THAT THE OFFSET PRESSMAN-- HIS IDEA OF THE
WAY IT SHOULD GO AND
THE UNION SAID, NO, AND THAT IS WHY IT HAS TAKEN SO LONG TO GET
ANYTHING DONE."
"THE UNION WAS FIGHTING THEM EVERY TOOTH AND NAIL ABOUT IT, AS SUCH .
. . " (TR. 347)
. . . .
THE WITNESS: HE SAID THE EXECUTIVE COMMITTEE, AT THE TIME, HE
THOUGHT-- HE BELIEVED WAS
NOT REPRESENTING THE WHOLE UNION, AS SUCH."
IT WAS JUST AN INDIVIDUAL GROUP AND THEY WERE-- THEY DIDN'T REPRESENT
THE UNION, THE
BODY." (TR. 351).
. . . .
"Q. DID YOU FEEL THREATENED OR THAT MR. BERRY WAS GIVING YOU
ANTI-UNION ATTITUDES?"
"A. NOT REALLY; HE WAS JUST VERY HARD ON THE UNION BECAUSE OF THE
PRESSMAN ISSUE, AS
SUCH."
"Q. WAS THERE DISCUSSION, THEN, ABOUT THE DISPUTE BETWEEN UNION AND
MANAGEMENT AT THE
MOMENT, REGARDING HIRING OF PLATE PRINTERS?"
"A. YES, IT WAS."
"Q. HE TOLD YOU YOU WERE EXPECTED TO TAKE THE MANAGEMENT POSITION?"
"A. AS A SUPERVISOR, YOU WERE SUPPOSED TO TAKE THE MANAGEMENT, AS
SUCH." (TR. 352-353).
MR. ROBERT MCGRATH, ALSO A TRAINEE IN GROUP I, WAS PRESENT AT THE
MEETING OF JANUARY 13, 1978, BUT DID NOT RECALL ANY DISCUSSION ABOUT THE
PRESSMAN ISSUE BY MR. BERRY (TR. 494); HOWEVER, MR. REGONE STATED
THAT,
" . . . WE TALKED ABOUT THE SHORTAGE OF PERSONNEL, PRINTERS AND
FOREMEN AND THE BASIC
OVERALL-- I THINK IT WAS MENTIONED-- THERE WAS SOME DISAGREEMENT
BETWEEN THE TWO SIDES, IF YOU
WILL, THE MANAGEMENT AND THE UNION."
"MR. BERRY FELT THAT HIS SIDE WAS WHAT-- NOT HIS SIDE-- WHAT HE
THOUGHT HE WAS DOING WAS
CORRECT AND WAS IN THE BEST INTEREST OF THE GOVERNMENT AND THE BUREAU
AND, CERTAINLY, THE
PLATE PRINTING DIVISION."
"THAT IS ABOUT ALL I CAN REALLY RECALL." (TR. 419).
WHILE IT IS CLEAR THAT MR. BERRY TALKED ABOUT THEIR HAVING TO "WEAR
TWO HATS"; THAT AS ACTING ASSISTANT FOREMAN THEY WOULD BE MANAGEMENT;
THAT WHEN THEY WENT BACK TO THE PRESS THEY WOULD REPRESENT THE UNION;
AND THAT MR. BERRY DISCUSSED THE PRESSMEN DISPUTE. WHETHER MR. BERRY
SAID, IN EFFECT, THIS IS MY POSITION ON THE PRESSMEN DISPUTE AND YOU, AS
SUPERVISORS, WILL SUPPORT IT, IS NOT ALTOGETHER CLEAR. CERTAINLY, IF HE
MADE SUCH STATEMENT, IT MADE SO LITTLE IMPRESSION ON MR. MCGRATH THAT HE
DID NOT RECALL IT, NOR DID MR. REGONE RECALL THAT MR. BERRY TOLD THE
TRAINEES THAT THEY, AS SUPERVISORS, MUST SUPPORT HIS POSITION ON THE
PRESSMEN ISSUE. HOWEVER, IF IT IS ASSUMED THAT HE DID SAY, IN EFFECT,
THAT THE TRAINEES, AS SUPERVISORS, MUST SUPPORT HIS POSITION ON THE
PRESSMEN ISSUE, IT IS, NEVERTHELESS, PLAIN FROM MR. MATVAY'S TESTIMONY
THAT MR. BERRY SPECIFICALLY LIMITED HIS ADMONITION TO THE PERIOD THEY
SERVED IN A SUPERVISORY CAPACITY AND THAT WHEN THEY RETURNED TO THE
PRESS THEY REPRESENTED THE UNION. CONSEQUENTLY, AS ANY SUCH STATEMENT
WAS MADE BY MANAGEMENT TO MANAGEMENT TRAINEES THEN PERFORMING A
MANAGEMENT FUNCTION, THE MEETING WAS NOT THEREBY CONVERTED TO A SECTION
10(E) FORMAL DISCUSSION.
ADDITIONALLY, COMPLAINANT CONTENDS THAT EVEN IF THE MEETING WAS NOT A
SECTION 10(E) MEETING, RESPONDENT, NEVERTHELESS, VIOLATED SECTION
19(A)(1) OF THE ORDER BECAUSE THE STATEMENT OF MR. BERRY INTERFERED
WITH, RESTRAINED, OR COERCED EMPLOYEES (THE TRAINEES) IN THE EXERCISE OF
RIGHTS ASSURED BY THE ORDER INCLUDING "THE RIGHT, FREELY AND WITHOUT
FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR
ORGANIZATION". IT IS RECOGNIZED THAT: (A) RECOMMENDATION OF A SELECTEE
BY THE SUPERINTENDENT (JT. EXH. 3) OR (B) ULTIMATE PROMOTION TO
PERMANENT ASSISTANT FOREMAN MIGHT INTERFERE WITH THE RIGHT OF AN
EMPLOYEE TO ASSIST A LABOR ORGANIZATION, FREELY AND WITHOUT FEAR OF
PENALTY OR REPRISAL, AS TO AN ISSUE ON WHICH MANAGEMENT AND THE UNION
WERE IN STRONG DISAGREEMENT EVEN THOUGH SUPPORT FOR MANAGEMENT'S
POSITION WAS REQUIRED ONLY WHEN ACTING IN A SUPERVISORY POSITION AND
EMPLOYEES WERE TOLD THAT WHEN NOT ACTING IN A SUPERVISORY POSITION THEY
REPRESENTED THE UNION; HOWEVER, MR. MATVAY, THE ONLY WITNESS WHO
TESTIFIED THAT MR. BERRY MADE SUCH A STATEMENT, STATED THAT HE DID NOT
FEEL THREATENED. IN ANY EVENT, WITHOUT DECIDING WHETHER THE STATEMENT,
IF MADE, VIOLATED SECTION 19(A)(1), FOR REASONS MORE FULLY SET FORTH
HEREINAFTER, I HAVE CONCLUDED THAT BECAUSE THE STATEMENT WAS MADE TO
MANAGEMENT TRAINEES WHILE PERFORMING A MANAGEMENT FUNCTION THE
STATEMENT, EVEN IF MADE, DID NOT VIOLATE SECTION 19(A)(1) OF THE ORDER.
THE DEFINITION OF "SUPERVISOR" UNDER THE NATIONAL LABOR RELATIONS
ACT, IS IDENTICAL IN ALL SUBSTANTIVE RESPECTS TO THE DEFINITION OF
"SUPERVISOR" UNDER THE ORDER. THE NATIONAL LABOR RELATIONS BOARD HAS
CONSISTENTLY EXCLUDED "CONFIDENTIAL EMPLOYEES" (EMPLOYEES WHO ASSIST AND
ACT IN A CONFIDENTIAL CAPACITY TO PERSONS WHO FORMULATE, DETERMINE, AND
EFFECTUATE MANAGEMENT POLICIES IN THE FIELD OF LABOR RELATIONS), FORD
MOTOR COMPANY, 66 NLRB 1317, 17 LRRM 394(1946); B.F. GOODRICH CO., 115
NLRB 722, 37 LRRM 1383(1956); AND THE ASSISTANT SECRETARY, INITIALLY IN
VIRGINIA NATIONAL GUARD, HEADQUARTERS, 4TH BATTALION, 111TH ARTILLERY,
A/SLMR NO. 69, 1 F/LMR 332(1971), AND CONSISTENTLY THEREAFTER, HAS
APPLIED A LIKE POLICY, ALTHOUGH NEITHER THE NLRA NOR THE ORDER
SPECIFICALLY REFERS TO "CONFIDENTIAL EMPLOYEE" (SECTION 10(B)(2) DOES,
HOWEVER, STATE, AN EMPLOYEE ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY.") INDEED, IN THE VIRGINIA NATIONAL
GUARD CASE, SUPRA, THE ASSISTANT SECRETARY STATED, IN PART, AS FOLLOWS:
" . . . ALTHOUGH CONFIDENTIAL EMPLOYEES ARE NOT MENTIONED . . . I
CONSIDER THAT IT WOULD
BEST EFFECTUATE THE POLICIES OF THE EXECUTIVE ORDER IF EMPLOYEES WHO
ASSIST AND ACT IN A
CONFIDENTIAL CAPACITY TO PERSONS WHO FORMULATE AND EFFECTUATE
MANAGEMENT POLICIES IN THE FIELD
OF LABOR RELATIONS ARE EXCLUDED FROM BARGAINING UNITS." (1 A/SLMR AT
335).
THE BOARD IN THE PRIVATE SECTOR HAS ALSO CONSISTENTLY EXCLUDED
"MANAGERIAL EMPLOYEES", AND IN NLRB V. BELL AEROSPACE COMPANY, DIVISION
OF TEXTRON, INC., 416 U.S. 267(1974), THE SUPREME COURT STATED.
" . . . THE BOARD'S EARLY DECISIONS, THE PURPOSE AND LEGISLATIVE
HISTORY OF THE
TAFT-HARTLEY ACT OF 1947, THE BOARD'S SUBSEQUENT AND CONSISTENT
CONSTRUCTION OF THE ACT FOR
MORE THAN TWO DECADES, AND THE DECISIONS OF THE COURTS OF APPEALS ALL
POINT UNMISTAKABLY TO
THE CONCLUSION THAT "MANAGERIAL EMPLOYEES' ARE NOT COVERED BY THE
ACT." (416 U.S.AT 289).
THE BOARD HAS LONG HELD THAT MANAGEMENT TRAINEES ARE PART OF
MANAGEMENT AND, THEREFORE, NOT COVERED BY THE ACT. SEE, FOR EXAMPLE,
STOUFFER'S CINCINNATI INN, 225 NLRB NO. 170, 93 LRRM 1197(1976)
(TRAINING TO BECOME AN ASSISTANT MANAGER); CURTIS INDUSTRIES, DIVISION
OF CURTIS NOLL CORP., 218 NLRB 1447, 89 LRRM 1417(1975). THE CURTIS
INDUSTRIES CASE, SUPRA, IS ONE OF THE FEW INSTANCES WHERE THE ISSUE HAS
ARISEN IN AN 8(A)(3) CASE. NEVERTHELESS, THE BOARD STATED,
"WE AGREE WITH THE ADMINISTRATIVE LAW JUDGE THAT BASED ON THE SUPREME
COURT'S HOLDING IN
N.L.R.B. V. BELL AEROSPACE COMPANY, DIVISION OF TEXTRON, INC., 416
U.S. 267(1974), THE
MANAGEMENT TRAINEES INVOLVED HEREIN ARE NOT COVERED BY THE PROTECTION
OF THE ACT." (89 LRRM
AT 1417).
I AM AWARE, OF COURSE, THAT SECTION 2(F) OF THE ORDER DEFINES AGENCY
MANAGEMENT" AND THAT SECTION 10(B) EXCLUDES:
"(1) ANY MANAGEMENT OFFICIAL OR SUPERVISOR . . . "
ALTHOUGH "AGENCY MANAGEMENT", AS DEFINED BY SECTION 2(F) OF THE ORDER
MAY NOT HAVE PRECISELY THE SAME MEANING AS "MANAGERIAL EMPLOYEES" UNDER
THE NLRA, THE TERM CLEARLY CONTEMPLATES THAT THE LONG RECOGNIZED CONCEPT
WAS, AND IS, FULLY RECOGNIZED UNDER THE ORDER. I AM AWARE OF NO
DECISIONS UNDER THE ORDER WHICH HAVE CONSIDERED THE STATUS OF A
MANAGEMENT TRAINEE UNDER THE ORDER, BUT SEE, INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 1859 AND MARINE CORPS
AIR STATION AND NAVAL AIR REWORK FACILITY, CHERRY POINT, N.C., FLRC NO.
77A-28 (FEB. 28, 1978 (REPORT NO. 145, MARCH 3, 1978), AND, WHILE
DECISIONS UNDER THE NLRA ARE NOT BINDING, CHARLESTON NAVAL SHIPYARD,
A/SLMR NO. 1, 1 A/SLMR 27(1970), DECISIONS UNDER THE NLRA ARE PROPERLY
TAKEN INTO ACCOUNT. IN UNITED STATES DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, A/SLMR NO. 833, 7 A/SLMR 371(1977), AN
INTERVIEW OF A UNIT EMPLOYEE WAS INVOLVED WHICH CONCERNED ACTION OF THE
EMPLOYEE WHILE SERVING AS AN ACTING ASSISTANT BRANCH CHIEF. THE
ASSISTANT SECRETARY STATED, IN PART,
"THUS, THE RECORD REVEALS, AND THE PARTIES AGREE, THAT THE EVENTS
WHICH WERE THE SUBJECT OF
THE INTERVIEWS OCCURRED DURING A PERIOD OF TIME IN WHICH FEURZIG WAS
AN ACTING SUPERVISOR AND
THEREBY EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT. FURTHER, THE
EVIDENCE ESTABLISHES THAT
THE RESPONDENT WAS CONCERNED ONLY WITH THE ACTIONS AND DECISIONS OF
FEURZIG MADE WHILE HE WAS
SERVING IN AN ACTING SUPERVISORY CAPACITY . . . IN THIS CONTEXT, I DO
NOT VIEW THE INTERVIEWS
INVOLVED TO COME WITHIN THE PURVIEW OF SECTION 10(E) OF THE ORDER,
AS, IN EFFECT, THEY
INVOLVED AGENCY MANAGEMENT SEEKING TO GATHER INFORMATION FROM ONE OF
ITS OWN MEMBERS."
INTERMITTENT AND TEMPORARY SUPERVISORS ARE RECOGNIZED AND TREATED AS
SUCH WHEN WORKING AS SUPERVISORS, DEPARTMENT OF INTERIOR, BUREAU OF LAND
MANAGEMENT, DISTRICT OFFICE, LAKEVIEW, OREGON, A/SLMR NO. 212, 2 A/SLMR
515(1972); DEPARTMENT OF TRANSPORTATION, UNITED STATES COAST GUARD
SUPPORT CENTER, THIRD DISTRICT, GOVERNORS ISLAND, NEW YORK, A/SLMR NO.
785, 7 A/SLMR 81(1977); DEPARTMENT OF THE INTERIOR, U.S. GOVERNMENT
COMPTROLLER OF GUAM TRUST TERRITORY OF THE PACIFIC ISLANDS, A/SLMR NO.
1002(1978); LAKE CENTRAL REGION, BUREAU OF OUTDOORS RECREATION,
DEPARTMENT OF THE INTERIOR, FEDERAL BUILDING, ANN ARBOR, MICHIGAN,
A/SLMR NO. 1032(1978). THE FOREGOING DECISIONS, WHILE NOT ADDRESSING
THE STATUS OF MANAGEMENT TRAINEES, NEVERTHELESS, RECOGNIZE THAT
EMPLOYEES WHEN PERFORMING A MANAGEMENT FUNCTION ARE TREATED AS
SUPERVISORS WHILE ACTING IN SUCH CAPACITY. THE AGREEMENT HEREIN APPLIES
TO AND GOVERNS,
" . . . EMPLOYEES . . . WHO ARE EMPLOYED AS APPRENTICE AND JOURNEYMEN
PLATE
PRINTERS" (JT. EXH. 5, ART. II).
ARTICLE XXIV OF THE PARTIES' AGREEMENT PROVIDES
"SECTION 1. PROMOTIONS TO SUPERVISORY POSITIONS FOR WHICH UNIT
EMPLOYEES MAY BE ELIGIBLE
WILL BE MADE IN ACCORDANCE WITH ESTABLISHED POLICY AND PROCEDURES. A
COPY OF THE EMPLOYER'S
SUPERVISORY PROMOTION PLAN AND ANY CHANGES THERETO WILL BE FURNISHED
TO THE
UNION." (JT. EXH. 5).
RESPONDENT'S PROMOTION PLAN (JT. EXH. 4) COVERS BOTH SELECTION OF
EMPLOYEES "TO ACT IN OR TO BE PROMOTED TO FULL SUPERVISORY POSITIONS";
SPECIFICALLY PROVIDES FOR ON-THE-JOB TRAINING; AND RESPONDENT'S
ADDITION PAY ASSIGNMENT POLICY, BULLETIN NO. 60-29, SEPTEMBER 1, 1960
(JT. EXH. 9), PROVIDED FOR SELECTION AND TRAINING OF EMPLOYEES AS
SUPERVISORS. FOR ALL THE FOREGOING REASONS, I CONCLUDE THAT SUPERVISORY
(MANAGERIAL) TRAINEES ARE EXCLUDED FROM THE BARGAINING UNIT AND THAT THE
STATEMENT BY MR. BERRY TO SUPERVISORY TRAINEES DID NOT VIOLATE SECTION
19(A)(1) OF THE ORDER. ACCORDINGLY, AS THE MEETING OF JANUARY 13, 1978,
WAS NOT A FORMAL DISCUSSION WITHIN THE MEANING OF SECTION 10(E) OF THE
ORDER AND AS NO VIOLATION OF SECTION 19(A)(1) OR (6) HAS BEEN
ESTABLISHED I SHALL DISMISS THE COMPLAINT IN CASE NO. 22-08990(CA).
III. DID RESPONDENT VIOLATE SECTIONS 19(A)(1) AND (6) OF THE ORDER
ON JANUARY 19, 1978, BY
ITS REFUSAL TO BARGAIN ON SUCH MATTERS AS THE WEIGHTS, FACTORS,
SELECTION CRITERIA, EVALUATION
PROCESS TO BE USED IN FILLING THE POSITION OF ASSISTANT FOREMAN; THE
WORKING CONDITIONS,
PERSONNEL PRACTICES AFFECTING THE SELECTEES DOING TRAINING; ITS
DECISION, ANNOUNCED ON
DECEMBER 28, 1977, TO SELECT AND TRAIN 25 EMPLOYEES FOR THE POSITION
OF ASSISTANT FOREMAN,
RATHER THAN SIX OR SEVEN AS IT HAD PREVIOUSLY INFORMED COMPLAINANT ON
AUGUST 8, 1977; AND/OR
THE IMPACT AND IMPLEMENTATION OF RESPONDENT'S DECISION TO SELECT AND
TRAIN 25 EMPLOYEES?
ON, OR ABOUT, AUGUST 8, 1977, MR. NEIL E. MCGARRY, SUPERINTENDENT OF
THE PLATE PRINTING DIVISION, AND MR. REGONE MET WITH COMPLAINANT'S
EXECUTIVE COMMITTEE TO DISCUSS RESPONDENT'S INTENTION TO ANNOUNCE THE
POSITION OF ASSISTANT FOREMAN AND TO FILL THE POSITIONS THROUGH
PROMOTION PLAN B-69-28. AT THIS MEETING, COMPLAINANT'S EXECUTIVE
COMMITTEE WAS ADVISED OF RESPONDENT'S INTENT TO UTILIZE THE ASSESSMENT
CENTER. ARTICLE XXIV OF THE PARTIES' AGREEMENT IS ENTITLED "PROMOTIONS"
AND SECTION 1, SET FORTH HEREINABOVE, PROVIDED, INTER ALIA, THAT "A COPY
OF THE EMPLOYER'S SUPERVISORY PROMOTION PLAN AND ANY CHANGES THERETO
WILL BE FURNISHED TO THE UNION." SECTION 2, PROVIDES, IN PART, AS
FOLLOWS:
"SECTION 2
(A) IT IS UNDERSTOOD THAT:
1. SUCH POLICY, PLAN AND PROCEDURE CAN BE UNILATERALLY CHANGED BY
THE EMPLOYER AT ANYTIME.
2. NON-SELECTION FOR PROMOTION FROM A DULY CONSTITUTED REGISTER IS
NOT GRIEVABLE.
3. GRIEVABILITY IS LIMITED ONLY TO PROCEDURAL ERRORS.
. . . " (JT. EXH. 5, ART. XXIV).
THE SUPERVISORY VACANCY ANNOUNCEMENT (JT. EXH. 3) ISSUED ON AUGUST
31, 1977, AND UNDER "METHOD OF EVALUATION" SPECIFICALLY STATED,
"ASSESSMENT CENTER TECHNIQUES (WITH WRITTEN TESTS) OR SUPERVISORY
PERFORMANCE EVALUATION,
AS NEEDED, IN ACCORDANCE WITH THE PROVISIONS OF APPENDIX B
(REVISED)." (JT. EXH. 3).
A DECISION TO ESTABLISH A SUPERVISORY POSITION IS A RIGHT RESERVED TO
MANAGEMENT UNDER SECTION 11(B) OF THE ORDER. ALTHOUGH COMPLAINANT WAS
NOT PROVIDED WITH A COPY OF THE EVALUATION PLANS THAT WOULD BE USED
UNTIL SEPTEMBER 1977, THERE IS NO DOUBT THAT COMPLAINANT WAS ADVISED ON
AUGUST 8, 1977, AND AGAIN ON AUGUST 31, 1977, WHEN THE VACANCY
ANNOUNCEMENT WAS ISSUED, THAT THE ASSESSMENT CENTER TECHNIQUE /7/ WOULD
BE USED AND THAT COMPLAINANT WITH NOTICE OF THE CONTEMPLATED USE OF THE
ASSESSMENT CENTER TECHNIQUE MADE NO REQUEST TO BARGAIN ON THE IMPACT OR
IMPLEMENTATION OF THE TECHNIQUE. AS ARTICLE XXIV PROVIDES THAT
RESPONDENT MAY UNILATERALLY CHANGE ITS SUPERVISORY PROMOTION PLAN AT
ANYTIME AND THE ONLY REQUIREMENT IMPOSED IS THAT RESPONDENT PROVIDE A
COPY OF ANY CHANGE TO COMPLAINANT, RESPONDENT FULLY COMPLIED WITH THE
TERMS OF ITS NEGOTIATED AGREEMENT BY NOTIFYING COMPLAINANT THAT IT
INTENDED TO USE THE ASSESSMENT CENTER TECHNIQUE AND BY SUPPLYING
COMPLAINANT WITH A COPY OF THE EVALUATION PLAN. UNDER THE AGREEMENT,
RESPONDENT WAS NOT REQUIRED TO NEGOTIATE EITHER IMPACT OR IMPLEMENTATION
OF ITS DECISION TO USE THE ASSESSMENT CENTER TECHNIQUE FOR PURPOSES OF
EVALUATION; HOWEVER, EVEN IF IT WERE ASSUMED THAT RESPONDENT WOULD HAVE
BEEN OBLIGATED BY THE ORDER TO BARGAIN ON IMPACT OR IMPLEMENTATION,
COMPLAINANT, BY FAILING TO REQUEST NEGOTIATION AFTER NOTICE, ON AUGUST
8, 1977, THAT THE ASSESSMENT CENTER TECHNIQUE WOULD BE USED, WAIVED
WHATEVER RIGHT IT MIGHT HAVE HAD TO BARGAIN ON IMPACT AND IMPLEMENTATION
AND RESPONDENT'S REFUSAL ON JANUARY 19, 1978, TO BARGAIN ON THE IMPACT
AND IMPLEMENTATION OF THE ASSESSMENT CENTER TECHNIQUE WAS NOT A
VIOLATION OF SECTION 19(A)(6) OF THE ORDER. ALABAMA NATIONAL GUARD,
A/SLMR NO. 660, 6 A/SLMR 267(1976); DEPARTMENT OF AIR FORCE, VANDENBERG
AIR FORCE BASE, A/SLMR NO. 350, 4 A/SLMR 119(1974); DEPARTMENT OF AIR
FORCE, NORTON AIR FORCE BASE, A/SLMR NO. 261, 3 A/SLMR 175(1973).
FOR REASONS FULLY SET FORTH HEREINABOVE, THE POSITION OF ASSISTANT
FOREMAN IS A SUPERVISORY POSITION OUTSIDE THE BARGAINING UNIT;
EMPLOYEES SELECTED FOR TRAINING FOR THE POSITION OF ASSISTANT FOREMAN
WERE, DURING THEIR TRAINING, ACTING IN A MANAGERIAL CAPACITY OUTSIDE THE
BARGAINING UNIT; AND QUALIFIED EMPLOYEES WHEN SERVING AS ACTING
ASSISTANT FOREMEN WERE SUPERVISORS OUTSIDE THE BARGAINING UNIT. THE
COLLECTIVE BARGAINING AGREEMENT PROVIDES THAT PROMOTIONS TO SUPERVISORY
POSITIONS FOR WHICH UNIT EMPLOYEES MAY BE ELIGIBLE WILL BE MADE IN
ACCORDANCE WITH ESTABLISHED POLICY AND PROCEDURES; THAT A COPY OF THE
EMPLOYER'S SUPERVISORY PROMOTION PLAN AND ANY CHANGES WILL BE FURNISHED
TO COMPLAINANT; AND THAT EMPLOYER'S POLICY, PLAN AND PROCEDURE CAN BE
UNILATERALLY CHANGED BY THE EMPLOYER AT ANY TIME (JT. EXH. 5, ART.
XXIV). THE VACANCY ANNOUNCEMENT (JT. EXH. 3) SPECIFICALLY MADE
APPLICABLE RESPONDENT'S PROMOTION PLAN TO SELECT EMPLOYEES FOR FULL
SUPERVISORY POSITIONS, BULLETIN 69-28 (JT. EXH. 4) AND SPECIFICALLY
PROVIDED THAT PAY WOULD BE IN ACCORDANCE WITH BULLETIN 60-29 (JT. EXH.
9) WHEN REQUIRED TO ACT IN THE POSITION OF ASSISTANT FOREMEN.
RESPONDENT ACTED FULLY IN ACCORDANCE WITH THE TERMS OF ARTICLE XXIV OF
ITS COLLECTIVE BARGAINING AGREEMENT AND ITS REFUSAL, ON JANUARY 19,
1978, TO BARGAIN ON WEIGHTS, FACTORS, SELECTION CRITERIA, EVALUATION
PROCESS, ETC., TO BE USED IN FILLING THE POSITION OF ASSISTANT FOREMAN
AND/OR THE WORKING CONDITIONS, PERSONNEL POLICIES AND PRACTICES
AFFECTING THE SELECTEES DURING THEIR TRAINING, INASMUCH AS THESE
MATTERS, RELATED TO POSITIONS OUTSIDE THE BARGAINING UNIT, WAS NOT A
VIOLATION OF SECTION 19(A)(6) OF THE ORDER, OR DERIVATIVELY, OF SECTION
19(A)(1) OF THE ORDER. TEXAS ANG COUNCIL OF LOCALS, AFGE AND STATE OF
TEXAS NATIONAL GUARD, FLRC NO. 74A-71, 4 FLRC 154(1976); INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 1859 AND
MARINE CORPS AIR STATION AND NAVAL AIR REWORK FACILITY, CHERRY POINT,
N.C., FLRC NO. 77A-28 (FEB. 28, 1978) (REPORT NO. 145, MARCH 3, 1978).
AS TO THESE ALLEGATIONS, THE COMPLAINT WILL BE DISMISSED.
HOWEVER, FOR REASONS MORE FULLY SET FORTH HEREINAFTER, RESPONDENT
VIOLATED SECTION 19(A)(6) AND, DERIVATIVELY, SECTION 19(A)(1), OF THE
ORDER BY ITS REFUSAL TO BARGAIN, UPON COMPLAINANT'S TIMELY REQUEST, ON
ITS DECISION TO TRAIN 25 EMPLOYEES FOR THE POSITION OF ASSISTANT FOREMAN
AND/OR THE IMPACT AND IMPLEMENTATION OF THAT DECISION ON THE BARGAINING
UNIT.
WHEN RESPONDENT MET WITH COMPAINANT'S EXECUTIVE COMMITTEE IN AUGUST
1977, IT INFORMED THE UNION THAT IT INTENDED TO SELECT AND TRAIN SIX OR
SEVEN EMPLOYEES FOR THE SUPERVISORY POSITION OF ASSISTANT FOREMAN. ON,
OR ABOUT, DECEMBER 28, 1977, RESPONDENT INFORMED COMPLAINANT THAT THE
NUMBER WOULD BE 25, WHICH WAS NEARLY ONE-FOURTH OF THE ENTIRE BARGAINING
UNIT (22%). ON JANUARY 16, 1978, COMPLAINANT DEMANDED BARGAINING, INTER
ALIA, ON THE NUMBER TO BE TRAINED AND THE IMPACT AND EFFECT IT WOULD
HAVE ON THE BARGAINING UNIT, INCLUDING OVERTIME, SENIORITY, ETC.
ALTHOUGH COMPLAINANT ON JANUARY 16, 1978, ALSO SOUGHT TO BARGAIN ABOUT
OTHER MATTERS, AS TO WHICH RESPONDENT HAD NO OBLIGATION TO BARGAIN,
RESPONDENT, ON JANUARY 19, 1978, DECLINED ALL BARGAINING. IT IS
RECOGNIZED THAT RESPONDENT INFORMED COMPLAINANT ON JANUARY 3, 1978, THAT
THE 25 SELECTEES WOULD BE TRAINED IN THREE GROUPS TO MINIMIZE PRODUCTION
PROBLEMS. NEVERTHELESS, RESPONDENT'S ANNOUNCEMENT, ON DECEMBER 28,
1977, OF THE NUMBER TO BE SELECTED AND TRAINED HAD COME AS A SHOCK AND
SURPRISE TO ALL CONCERNED, INCLUDING THE SELECTEES. COMPLAINANT, IN
RELIANCE ON PRIOR ADVICE BY RESPONDENT THAT ONLY SIX OR SEVEN
SUPERVISORY POSITIONS WERE TO BE FILLED, QUESTIONED THE JUSTIFICATION
FOR TRAINING 25 EMPLOYEES AND VIEWED RESPONDENT'S ACTION, AS IT ASSERTED
IN THE COMPLAINT, AS AN ATTEMPT TO UNDERMINE THE STATUS OF COMPLAINANT
AS THE EXCLUSIVE REPRESENTATIVE. MOREOVER, IN VIEW OF THE ALREADY SHORT
SUPPLY OF PLATE PRINTERS, WHICH HAD CAUSED 12 HOUR SHIFTS AND A 7 DAY
OPERATION, COMPLAINANT WAS CONCERNED ABOUT THE IMPACT AND IMPLEMENTATION
OF THE DECISION ON THE BARGAINING UNIT. ALTHOUGH COMPLAINANT HAD NOT
REQUESTED NEGOTIATION ON THE IMPACT OF SELECTING SIX OR SEVEN EMPLOYEES
FOR TRAINING FOR THE POSITION OF ASSISTANT FOREMAN IN AUGUST 1977, WHEN
RESPONDENT NOTIFIED COMPLAINANT OF ITS INTENTION TO ANNOUNCE THE
POSITION OF ASSISTANT FOREMAN, RESPONDENT'S ANNOUNCEMENT ON DECEMBER 28,
1977, THAT 25 EMPLOYEES WERE TO BE SELECTED AND TRAINED WAS A VASTLY
DIFFERENT PROPOSAL THAN RESPONDENT HAD PRESENTED ON AUGUST 8, 1977, AND
I EXPRESSLY DO NOT FIND ANY WAIVER OF COMPLAINANT'S RIGHT TO NEGOTIATE
AS TO THE NUMBER OF TRAINEES ANNOUNCED BY RESPONDENT ON DECEMBER 28,
1977, OR OF ITS RIGHT TO NEGOTIATE AS TO THE IMPACT AND IMPLEMENTATION
OF THAT DECISION BECAUSE IT HAD NOT REQUESTED NEGOTIATION IN AUGUST
1977, AS TO A PROPOSAL VERY DIFFERENT IN ALL MATERIAL RESPECTS.
RESPONDENT'S REFUSAL TO BARGAIN ABOUT ITS DECISION TO TRAIN 25
EMPLOYEES FOR THE POSITION OF ASSISTANT FOREMAN AND/OR THE IMPACT AND
IMPLEMENTATION OF THAT DECISION VIOLATED SECTION 19(A)(6) OF THE ORDER
AND, ALSO, DERIVATIVELY, SECTION 19(A)(1) OF THE ORDER AND AN
APPROPRIATE ORDER WILL BE ISSUED.
ORDER
A. HAVING FOUND THAT NO VIOLATION OF THE ORDER HAS BEEN ESTABLISHED
IN CASE NO. 22-08990(CA) THE COMPLAINT IN THAT CASE IS DISMISSED; AND
HAVING FOUND THAT RESPONDENT DID NOT VIOLATE THE ORDER BY ITS REFUSAL TO
BARGAIN ON WEIGHTS, FACTORS SELECTION CRITERIA, EVALUATION PROCESS,
ETC., TO BE USED IN FILLING THE POSITION OF ASSISTANT FOREMAN AND/OR THE
WORKING CONDITIONS, PERSONNEL POLICIES AND PRACTICES AFFECTING THE
SELECTEES DURING THEIR TRAINING, AS ALLEGED IN CASE NO. 22-08989(CA)
SUCH PORTIONS OF THE COMPLAINT, AS TO WHICH NO VIOLATION HAS BEEN FOUND,
ARE DISMISSED; HOWEVER, AS A VIOLATION OF SECTIONS 19(A)(1) AND (6) OF
THE ORDER HAS BEEN FOUND AS TO A FURTHER ALLEGATION IN CASE NO.
22-08989(CA) THE FOLLOWING ORDER AS TO SUCH VIOLATION IS ISSUED.
B. PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, 29
C.F.R.SECTION 203.26(B), AND SECTION 2400.2 OF THE TRANSITION RULES AND
REGULATIONS, 5 C.F.R.SECTION 2400.2, FED. REG., VOL. 44, NO. 1, JANUARY
2, 1979, THE AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE
TREASURY, BUREAU OF ENGRAVING AND PRINTING, WASHINGTON, D.C. SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO CONSULT, CONFER, OR NEGOTIATE WITH THE WASHINGTON
PLATE PRINTERS UNION LOCAL NO. 2, INTERNATIONAL PLATE PRINTERS, DIE
STAMPERS AND ENGRAVERS UNION OF NORTH AMERICA, AFL-CIO, CONCERNING ITS
DECISION TO SELECT AND TRAIN 25 EMPLOYEES FOR THE POSITION OF ASSISTANT
FOREMAN AND/OR THE IMPACT AND IMPLEMENTATION OF THAT DECISION ON THE
BARGAINING UNIT.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER
11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST, NEGOTIATE WITH THE WASHINGTON PLATE PRINTERS UNION
LOCAL NO. 2, INTERNATIONAL PLATE PRINTERS, DIE STAMPERS AND ENGRAVERS
UNION OF NORTH AMERICA, AFL-CIO, CONCERNING ITS DECISION TO SELECT AND
TRAIN 25 EMPLOYEES FOR THE POSITION OF ASSISTANT FOREMAN AND/OR THE
IMPACT AND IMPLEMENTATION OF THAT DECISION ON THE BARGAINING UNIT.
(B) POST AT THE BUREAU OF ENGRAVING AND PRINTING, WASHINGTON, D.C.,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY
THE DIRECTOR, BUREAU OF ENGRAVING AND PRINTING, AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY OTHER MATERIAL.
(C) PURSUANT TO 29 C.F.R.SECTION 203.27 AND SECTION 2400.2 OF THE
TRANSITION RULES AND REGULATIONS, NOTIFY THE AUTHORITY IN WRITING WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 23, 1979
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 EXECUTIVE ORDER 11491, AS AMENDED
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH THE
WASHINGTON PLATE PRINTERS UNION LOCAL NO. 2, INTERNATIONAL PLATE
PRINTERS, DIE STAMPERS AND ENGRAVERS UNION OF NORTH AMERICA AFL-CIO,
CONCERNING OUR DECISION TO SELECT AND TRAIN 25 EMPLOYEES FOR THE
POSITION OF ASSISTANT FOREMAN AND/OR THE IMPACT AND IMPLEMENTATION OF
THAT DECISION ON THE BARGAINING UNIT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST, NEGOTIATE WITH THE WASHINGTON PLATE PRINTERS
UNION LOCAL NO. 2, INTERNATIONAL PLATE PRINTERS, DIE STAMPERS AND
ENGRAVERS UNION OF NORTH AMERICA, AFL-CIO, CONCERNING OUR DECISION TO
SELECT AND TRAIN 25 EMPLOYEES FOR THE POSITION OF ASSISTANT FOREMAN
AND/OR THE IMPACT AND IMPLEMENTATION OF THAT DECISION ON THE BARGAINING
UNIT.
BUREAU OF ENGRAVING AND PRINTING
DATED: . . . BY: . . .
DIRECTOR . . .
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 PROVISION, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, WASHINGTON REGIONAL OFFICE, FEDERAL LABOR RELATIONS
AUTHORITY, WHOSE ADDRESS IS ROOM 509, VANGUARD BUILDING, 1111-20TH
STREET N.W., WASHINGTON, D.C. 20036.
--------------- FOOTNOTES$ ---------------
/1/ BY LETTER OF JANUARY 21, 1980, THE COMPLAINANT REQUEST THAT
CERTAIN OF ITS EXCEPTIONS BE WITHDRAWN DUE TO AN INTERIM AGREEMENT
REACHED BETWEEN THE PARTIES. THIS REQUEST HAS BEEN TREATED AS A
MODIFICATION OF THE COMPLAINANT'S EXCEPTIONS.
/2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASES ARE DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASES HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/3/ THE ADMINISTRATIVE LAW JUDGE CONCLUDED THE COMPLAINT IN CASE NO.
22-08989(CA) ALSO ENCOMPASSED THE ALLEGATIONS THAT RESPONDENT REFUSED TO
NEGOTIATE REGARDING THE NUMBER OF EMPLOYEES TO BE SELECTED AND TRAINED
AND ON THE IMPACT AND IMPLEMENTING PROCEDURES OF THE SELECTION ON THE
ENTIRE UNIT IN VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER. THE
AUTHORITY DISAGREES. THUS, THE SUBJECT COMPLAINT CONTAINS NO SUCH
ALLEGATIONS AND THE RESPONDENT CLEARLY OBJECTED BOTH AT THE HEARING AND
IN ITS EXCEPTIONS TO THE CONSIDERATION OF THESE ALLEGATIONS WHICH THE
EVIDENCE REFLECTS WERE FIRST RAISED AT THE HEARING. ACCORDINGLY, NOTING
THAT THE COMPLAINT IN CASE NO. 22-08989(CA) WAS NOT AMENDED BY THE
PARTIES AT THE HEARING TO INCLUDE SUCH ALLEGATIONS, THE AUTHORITY HEREBY
CONCLUDES THE ALLEGATIONS SHOULD BE DISMISSED AS PROCEDURALLY DEFECTIVE
UNDER SECTION 203.3 OF THE ASSISTANT SECRETARY'S REGULATIONS. CF.
DEPARTMENT OF THE ARMY, HEADQUARTERS MILITARY TRAFFIC COMMAND, 2 FLRA
NO. 72, WHEREIN THE AUTHORITY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S
DETERMINATION THAT AN ALLEGATION BE DISMISSED FOR ESSENTIALLY THE SAME
REASON.
/4/ BASED ON PAST PRACTICE, THE RESPONDENT EMPLOYED A TWO-STAGE
SELECTION PROCEDURE FOR THE ASSISTANT FOREMAN POSITION. IT FIRST
SELECTED UNIT EMPLOYEES TO BE TRAINED AND SERVE IN AN ACTING CAPACITY.
AT SOME LATER UNANNOUNCED DATE IT PLANNED TO SELECT FULL-TIME ASSISTANT
FOREMEN FROM THE POOL OF ACTING ASSISTANT FOREMEN.
/5/ CF. U.S. AIR FORCE MILITARY AIRLIFT COMMAND, 76 MILITARY AIRLIFT
WING, 76 AIR BASE GROUP, ANDREWS AIR FORCE BASE, WASHINGTON, D.C., 2
FLRA NO. 83.
/6/ THE ADMINISTRATIVE LAW JUDGE'S FURTHER CONCLUSION, THAT THE
UNFAIR LABOR PRACTICE ALLEGATION OF CASE NO. 22-08989(CA) REGARDING THE
RESPONDENT'S REFUSAL TO BARGAIN ON THE SELECTION CRITERIA FOR FILLING
THE PERMANENT ASSISTANT FOREMAN POSITIONS SHOULD BE DISMISSED, IS
ADOPTED FOR THE REASONS STATED THEREIN.
/7/ MR. MCGARRY DESCRIBED THE ASSESSMENT CENTER TECHNIQUE AS FOLLOWS:
"THEY PARTICIPATE IN DISCUSSION GROUPS, SO EACH ONE IS GIVEN A
DIFFERENT ROLE TO PLAY AT A
MEETING . . . "
"ALL THE TIME THIS IS GOING ON, THERE ARE ASSESSORS AROUND THE ROOM
WATCHING THE
PERFORMANCE-- HOW THEY SPEAK, HOW THEY CARRY THEMSELVES AT A MEETING;
THEY LOOK FOR
FLEXIBILITY, LEADERSHIP, AND THINGS OF THAT NATURE." (TR. 627)