13:0203(39)CA - Government Printing Office and Joint Council of Unions, GPO -- 1983 FLRAdec CA
[ v13 p203 ]
13:0203(39)CA
The decision of the Authority follows:
13 FLRA No. 39 U.S. GOVERNMENT PRINTING OFFICE Respondent and JOINT COUNCIL OF UNIONS, GPO Charging Party Case No. 3-CA-549 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, Respondent and the General Counsel filed exceptions to the Judge's Decision with supporting briefs, and the Respondent filed an opposition to the General Counsel's exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendations, except as modified herein. The Judge found that the Respondent, U.S. Government Printing Office (GPO), violated section 7116(a)(1) and (5) of the Statute by failing to provide the Charging Party, Joint Council of Unions, GPO (Joint Council), as designated agent of its constituent locals in the Production Department, with adequate notice of management's decision to reorganize the Production Department so as to provide the Joint Council with an opportunity to negotiate concerning the procedures to be followed in implementing the reorganization (section 7106(b)(2)) or appropriate arrangements for adversely affected employees (section 7106(b)(3)). /1/ More specifically, the Judge found that GPO failed to satisfy its obligation to provide timely and sufficient notice of the reorganization "when it waited until Friday morning September 28 to announce that there would be a reorganization and it would be instituted on Monday October 1." He further found that GPO's refusal to delay the reorganization, as requested by the Joint Council, to allow the exclusive representatives an opportunity to determine what impact would be caused by the reorganization and to negotiate with respect thereto, was in derogation of GPO's obligation under section 7106(b)(3) and (2) of the Statute respectively, to negotiate the impact and implementation of its decision. In this latter regard, the Judge found that the General Counsel had met the burden of proving that GPO's reorganization resulted in actual substantial impact adversely affecting bargaining unit employees, as well as a reasonable likelihood of substantial adverse impact on them in the future. The Authority concludes, in agreement with the Judge's conclusion, that GPO failed to meet its statutory duty to negotiate concerning the impact and implementation of the reorganization in violation of section 7116(a)(1) and (5) of the Statute. Thus, GPO's notice to the Joint Council on a Friday that a major reorganization would be implemented the following Monday clearly was inadequate to permit the Joint Council to bargain, if it desired, concerning the procedures to be observed in implementing, and appropriate arrangements for employees adversely affected by, the reorganization. In this regard, the Authority notes particularly that GPO rejected the Joint Council's immediate request that implementation be delayed in order to permit negotiations concerning the reasonably foreseeable impact of the reorganization on the employees involved. In so concluding, the Authority emphasizes that where an agency in exercising a management right under section 7106 of the Statute, changes conditions of employment of unit employees as here, /2/ the statutory duty to negotiate comes into play if the change results in an impact upon unit employees or such impact was reasonably foreseeable. In such circumstances, where an agency exercises a management right but has failed to provide adequate prior notice thereof to the exclusive representative of its employees or has rejected a timely request for negotiations pursuant to section 7106(b)(2) and (3) of the Statute, /3/ the agency will be found to have violated section 7116(a)(1) and (5) of the Statute. /4/ In the instant case, the record fully supports the Judge's conclusion that some of the changes resulting from the reorganization (such as those concerning sick leave policy and the probe procedure) had an impact on employees, and in addition that it was reasonably foreseeable that the reorganization of the Production Department would have an impact by reducing promotional opportunities and eliminating jobs. Therefore, the Authority concludes that the Respondent's failure to provide adequate notice of such changes to the Joint Council constituted a violation of section 7116(a)(1) and (5) of the Statute. With regard to the remedy herein, the Judge ordered GPO to cease and desist from further implementing the reorganization of its Production Department without first notifying the Joint Council and affording it a reasonable opportunity to negotiate concerning the procedures to be observed in implementing, and appropriate arrangements for employees adversely affected by, the reorganization, and affirmatively ordered GPO to bargain with the Joint Council upon request and to post appropriate notices. The General Counsel has requested that the Authority issue a status quo ante remedy, while GPO opposes such request. The Authority concludes that a status quo ante remedy is not warranted. Thus, taking into consideration the various factors set forth in Federal Correctional Institution, 8 FLRA No. 111 (1982), the Authority concludes that an order requiring GPO to bargain upon request about impact and implementation will best effectuate the purposes and policies of the Statute. In this regard, the Authority notes the evidence in the record that the Respondent and the exclusive representative(s) of employees affected by the changes in sick leave and probe procedures resulting from the reorganization in October 1979 have reached a negotiated resolution of their differences in these areas. Further, the record discloses that, as subsequent technological changes were implemented in connection with the ongoing reorganization of GPO's operations, the Respondent engaged in negotiations regarding the changes. In these circumstances, and noting particularly that a status quo ante remedy would seriously disrupt the accomplishment of the Respondent's mission and the efficiency of its operations inasmuch as the reorganization was part of a long range plan which included substantial changes in plant and equipment now in place, the Authority shall adopt the Judge's order. ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the U.S. Government Printing Office shall: 1. Cease and desist from: (a) Any further implementation of the October 1, 1979 reorganization of the Production Department without first providing adequate notice to the Joint Council of Unions, GPO, the agent of the employees' exclusive bargaining representatives, and affording it an opportunity to negotiate on (1) the procedures to be observed in any further implementation of the reorganization, and (2) appropriate arrangements for employees who have been or may be adversely affected by the reorganization. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Upon request by the Joint Council of Unions, GPO, the agent of the employees' exclusive bargaining representatives, negotiate concerning (1) the procedures to be observed in implementing the reorganization of its Production Department, and (2) appropriate arrangements for employees who have been or may be adversely affected by the reorganization. (b) Post at all facilities wherein there are bargaining unit employees represented by constituent locals of the Joint Council, GPO, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Public Printer or his designee and shall be posted and maintained for a period of 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director of Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. Issued, Washington, D.C., September 30, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT further implement the October 1, 1979 reorganization of the Production Department without first providing adequate notice to the Joint Council of Unions, GPO, the agent of the employees' exclusive bargaining representatives, and affording it an opportunity to negotiate on (1) the procedures to be observed in any further implementation of the reorganization of the Production Department, and (2) appropriate arrangements for employees who have been or may be adversely affected by the reorganization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL, upon request by the Joint Council of Unions, GPO, the agent of the employees' exclusive bargaining representatives, negotiate concerning (1) the procedures to be observed in any further implementation of the reorganization of the Production Department, and (2) appropriate arrangements for employees who have been or may be adversely affected by the reorganization. (Agency or Activity) Dated: . . . (Signature) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8452. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 3-CA-549 Neal Fine, Esq. For the Respondent Lee Mingledorff, Esq. For the General Counsel Cornelius McIntyre For the Charging Party Before: FRANCIS E. DOWD Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute (the Statute), 92 Stat. 1191, 5 U.S.C. 7101 et seq. It was instituted by the issuance of a Complaint and Notice of Hearing on May 6, 1980 based upon a charge filed on October 1, 1979. The complaint alleges that the U.S. Government Printing Office (Respondent) unilaterally implemented a reorganization of its Production Department on October 1, 1979, thereby precluding bargaining over the impact and implementation of the reorganization with the Joint Council of Unions, GPO (Charging Party). Such conduct is alleged to be a violation of Sections 7116(a)(1) and (5) of the Statute. Respondent denies that it violated the Act and asserts that (1) it had no statutory obligation to negotiate with the GPO Joint Council of Unions since the Council is not a labor organization which is the exclusive representative of any GPO employees, and (2) it had no obligation to provide prior notice of its actions and the opportunity to negotiate because the "realignment" did not materially impact on the conditions of employment of GPO employees. At the hearing in Washington, D.C. all parties were afforded full opportunity to be heard, adduce evidence, examine and cross-examine witnesses, and argue orally. Thereafter, Respondent and the General Counsel filed briefs which have been duly considered. /5/ Upon consideration of the entire record in this case, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence presented at the hearing, I make the following findings of fact, conclusions of law and recommended order. Findings of Fact and Conclusions of Law A. Jurisdiction At all times material herein Respondent has been an agency within the meaning of Section 7103(a)(3) of the Statute (G.C. Exh. No. 1(c) and 1(d)). The Authority has jurisdiction in this matter pursuant to Section 7118 of the Statute. B. Status of the Joint Council 1. Mr. Cornelius McIntyre has been an offset pressman with the Respondent for 24 years. He is also the President of the Washington Printing and Graphics Communication Union, Local 1, and Chairman of the Joint Council of Unions, an organization consisting of 14 unions holding exclusive recognition for various units of employees of the Respondent. A description of the various units of recognition within Respondent's Production Department are contained in the Appendix attached to the complaint. The Joint Council's 14 constituent unions represent 85 to 95 percent of Respondent's employees at its central office. All seven craft unions in Respondent's Production Department belong to the Joint Council whose function is to coordinate the bargaining of its constituent locals into a single process so that such locals may bargain with management in a unified fashion regarding matters of overall impact on employees. 2. The testimony of McIntyre and Mr. Lawrence Kenelly, Respondent's Associate Director of Labor Relations and its Chief of Negotiations, establishes that Respondent and the Joint Council have dealt with one another on matters of overall concern since, at least, January 1978. More specifically, Respondent has dealt with the Joint Council on matters regarding performance ratings, Respondent's internal grievance procedure, late entrance passes, bulletin boards, proposed leave regulations, and agency instructions regarding occupational health and safety (G.C. Exh. 2, 3, 4, 8, 9, 10, 11). Since October 1978, Respondent and the Joint Council have been in the process of negotiating a master agreement for all 14 constituent locals of the Joint Council. In addition, the Joint Council consistently insisted during the period prior to the reorganization, that it was responsible for bargaining, on behalf of its locals, regarding matters of overall concern and overall impact (G.C. Exh. No. 13). C. The Decision to Reorganize the Production Department and Notification of this Decision to the Joint Council and the Union 1. Respondent admits that the reorganization of the Production Department had been a topic of high-level supervisory discussions since May of 1979. Nevertheless, it was the position of Mr. Johnson McRorie, Respondent's Production Manager and Head of the Production Department, that discussions with the Joint Council, or the affected labor organizations, could not take place until after the reorganization plan had been officially approved by the Public Printer. Such official approval did not occur until September 24, 1979. 2. At best, McIntyre and other local union officials only knew by rumor that "something" was to occur, but they did not know the extent or the details. In early or mid-September, Cornelius McIntyre had a conversation with Mr. Robert Thien, the Superintendent of Letterpress Division. Thien told McIntyre that the Offset Division and the Letterpress Division would be combined into one division, that he would be superintendent, and that he would be looking for the union's help. The information served to confirm rumors McIntyre had been hearing for some time. Thereupon, McIntyre went to see Joseph Amann, Director of Labor-Management Relations, to inquire further about the rumored reorganization. Amann indicated that he had limited knowledge of any proposed reorganization but assured McIntyre he would be notified in such event. McIntyre made clear to both Thien and Amann that the Council wanted to negotiate about any impact. Amann did not testify at the hearing. 3. On Thursday afternoon, September 27, Amann's secretary telephoned McIntyre to inform him of a meeting the next morning at 9:00 a.m. on the reorganization. He was requested to notify the unions representing employees in the Production Department. McIntyre then went to see Amann who said he'd just been notified that the reorganization was going into effect on Monday, October 1. Respondent did not notify individually any other unions. This was done by McIntyre; it was done at the request of Respondent; and I find that it was done in his capacity as Chairman of the Joint Council. 4. At the September 28 meeting, Production Manager Johnson McRorie passed out an organizational chart (G.C. Exh. No. 14) and stated that the reorganization was being put into effect on October 1. When McIntyre asked why that date had been selected, he was told by McRorie that "we have already changed the data over into the computer as to October 1st because that is the beginning of the fiscal year and that's the way it is." In response to inquiries about "impact," McRorie stated simply that there would be no impact. 5. McIntyre asked McRorie (1) to delay the reorganization so that the unions could study it and determine if there was an impact, and (2) if there was an impact, the union wanted to negotiate about it. McRorie replied that there was no need for delay because. in his opinion, there would be no impact. 6. At the conclusion of management's briefing the members of the Joint Council met and voted to authorize McIntyre to file the unfair labor practice charge herein. All the union presidents who testified /6/ substantiated the fact that McIntyre, as Chairman of the Joint Council, had the authority to request, on behalf of the Joint Council and its constituents locals, a delay in management's implementation of its reorganization plan and should management have agreed to impact and implementation negotiations, to have entered into such negotiations at that time or at a later time. 7. Later that day, McIntyre filled out and completed an unfair labor practice charge and sent it to the Federal Labor Relations Authority where it was docketed on October 1, 1980. 8. There is no dispute that the reorganization went into effect on October 1 as scheduled. D. Objectives of the Reorganization 1. Respondent, in order to demonstrate that the reorganization concept was really nothing new, introduced into evidence a July 24, 1973 memorandum from Production Manager Rothman to the Public Printer in which the combining of the press divisions is discussed at length, as well as the transfer of certain functions to the Electric Photocomposition Division. /7/ Although the recommendation was not adopted at that time, I note that the October 1, 1979 reorganization pretty much followed these 1973 recommendations. Further, I note that two reorganization objectives mentioned in the 1973 memorandum were as follows: (a) to eliminate much duplication of effort and (b) to reduce work schedules. 2. Respondent also introduced into evidence a memorandum (Resp. Exh. No. 7) dated September 20, 1979 purporting to answer some questions about the proposed reorganization asked by the Public Printer. In addition to saving money by eliminating certain supervisory positions, the reorganization of 1979 had the following additional objectives: (a) to achieve eventual labor savings through improved efficiency; (b) to reduce scheduling and other production problems; (c) to adapt more readily to changes in workload or technology; and (d) to realize other improvements in operating efficiency and economy. E. The Reorganization of October 1, 1981 1. According to Respondent, all that happened was that "a simple paper realignment of divisions and sections within the Production Department was effectuated." Indeed, Respondent argues that the term "paper reorganization" is applicable here because no employees were physically moved and no work was changed as of October 1, 1979. 2. In my opinion, the long planned reorganization was more extensive in scope than merely changing titles of the Deputy Production Managers. Indeed, it appears to me that the change of titles was a result of the reorganization because the new titles reflected the changes brought about by the transfer of functions performed by employees. Thus, the Deputy Manager (Electronics) was retitled Deputy Production Manager (Prepress) because certain prepress functions, including the Copy Preparation and Negative Sections, were transferred to him. An objective of this transfer, according to a September 12, 1979 memorandum of the Production Manager (Joint Exh. No. 2) was to "permit greater efficiencies and allow a smoother transition from hot metal to photocomposition processes." 3. Another aspect of the reorganization was discussed in the September 12, 1979 memorandum as follows: The existing Letterpress and Offset Division will be merged under one division entitled the Press Division which will also include the platemaking functions. The Letterpress and Offset Press sections will remain separate entities pending the outcome of the current court action involving the latter. This will greatly enhance the workload balancing problems encountered under separate press divisions and facilitate the transition from letterpress to offset printing. So, from the foregoing, we see that additional objectives of the reorganization were to "enhance the workload balancing problems" and to "facilitate the transition from letterpress to offset printing." This latter objective belies the contention of Respondent that the merger of the letterpress and offset divisions was intended to achieve a monetary savings by eliminating the job of one division superintendent. Saving the money paid to one managerial official was a byproduct or result of the reorganization, but it was not the main purpose. Merger of functions and phasing out letterpress printing were the real objectives. 4. Prior to the reorganization, the Letterpress Division had 5 sections. After the reorganization only two remained intact: Main Press and Postal Card. The remaining three (Electrotying, Photoengraving, Stereotyping) were consolidated into one section which was retitled Photopolymer, consisting of about 32 employees. 5. Prior to the reorganization, the Offset Division had 4 sections. Afterwards, only 2 remained: Offset Plate and Offset Press. The other two, Offset Copy Production and Offset Negative, together having about 223 employees, were transferred to the Deputy Production Manager (Prepress) and placed into the existing Electronic Photocomposition Division. 6. Prior to the reorganization, the Composing Division consisting of about 932 employees was one of four divisions reporting to the Deputy Production Manager (Printing). This entire division was transferred to the Deputy Production Manager (Electronics) who, as noted above, had part of his title changed from Electronics to Prepress. 7. The reorganization also resulted in the creation of a new division named the Production Support Division consisting of 149 employees in 6 sections. It appears that almost all of these employees were previously a "miscellaneous segment" reporting to the Deputy Production Manager (Printing) but now reporting directly to the Production Manager. The new division had a new section called Quality Control with 12 employees. 8. The employees who were immediately affected by the reorganization were those who reported to the same familiar job site on Monday but found themselves under a new superintendent or in a new division. F. Impact: Change in Policies and Procedures Experienced by Employees Transferred to a New Division and/or to a New Superintendent 1. In General. a. A major impact involved in the abolition of the Offset Press Division was the transfer of each section of the Offset Press Division to the Press and Electronic Photocomposition Divisions thus placing them under the control of a new superintendent with his own policies. The testimony of Sever, Lord, Valentine, Mandelblatt, and Allen establishes that there were significant differences, particularly from an employee standpoint, in the procedures, interpretation, and application of Government Printing Office policies and instructions in the Press Division and the Electronic Photocomposition Division compared with what had existed as policy and practices by the superintendent and foremen in the old Offset Division. Specific incidents are discussed hereinafter. 2. Change in Sick Leave Procedure. a. Mr. David Sever, President of the Washington Government Photo Offset Union, Local 538, and an offset platemaker/stripper in the Plate Section of the new Press Division testified that when the Plate Section was part of the Offset Division it was the practice of immediate supervisors to give employees 9 days of personal certification sick leave each year without subjecting them to discipline or challenge for abuse of leave. Personal certification sick leave constitutes leave when an employee presents no doctor's certificate but merely certifies that he was ill. According to Sever, soon after the reorganization he was instructed that his members no longer could take 9 days of personal certification sick leave and that 13 of his employees were being subjected to review and possible discipline because of their use of sick leave prior to the reorganization. Sever further testified that he filed 13 grievances with regard to these employees challenging the retroactive application of new and stricter standards of sick leave taken by employees when they were in the Offset Press Division. The policy of the new Press Division, a carryover from what had been practiced in the old Letterpress Division, was that an employee was allowed no specific number of personal certification sick leave. The grievances went to hearing and were eventually resolved. b. Mr. Sever's testimony is supported by the credited testimony of Mr. George Lord who stated that in June 1979 subsequent to being sworn in as Chapel Chairman for the Third Shift, the assistant foreman in charge of his section took him up to the night superintendent's office and introduced him to the superintendent. Upon returning to his desk the assistant foreman pulled out a letter (G.C. Exh. No. 15), and gave it to him stating that this was the Offset Division's policy on late and on sick leave personal certification. c. Further evidence of a change in sick leave policy comes from the testimony of Mr. Richard Valentine, a steward for the Graphics Arts International Union, Local 285, who represents people in the Negative Section of the Electronic Photocomposition Division, a section formerly in the Offset Division. He testified that upon their transfer to the Electronic Photocomposition Division, a supervisor notified employees that there would be a change in procedure for taking leave such as sick leave, emergency annual leave and tardiness leave. Under the old procedure in the Offset Division an employee was allowed to take 9 days of personal certification sick leave, emergency annual leave, and late leave. The new procedure in the Electronic Photocomposition Division, to the contrary, was that employees were only allowed to take 5 days of such leave without challenge by their supervisors. d. Mr. Frederick Allen, a printing plant worker and President of Respondent's Printing Plant Workers Union, supported this testimony when he testified that one of the major areas of change that resulted from the abolition of the Offset Division and the transfer of Offset Division personnel to the new Press Division was that the Press Division, headed by the former superintendent of the Letterpress Division, followed a stricter interpretation and application of GPO instructions regarding sick leave, work assignments, break periods, etc. According to Allen, the new policies of the Press Division were applied retroactively to employee-members of his bargaining unit who had taken leave consistent with the more liberal Offset Division practice and as a consequence were penalized retroactively for leave that had been taken and approved previously. e. In summary the change in sick leave policy affected members of the Printing Plant Workers Union and employees from the Plate and the Negative sections. The change was directly related to the transfer of Offset Division employees to EPD as well to the merger with Letterpress. Although the change was not plant-wide in scope, it certainly was not confined to one small section as alleged by Respondent. 3. Change in Probing In and Out Procedure a. The Probe Machine apparently is a combination of a time clock and a computer terminal. When an employee inserts his identification badge into the machine in the morning, he is in effect punching a time clock and recording his attendance. One of the effects of living in a computer age is that an employee no longer "punches" in and out rather, he "probes" in and out. Of course, one of the main purpose of the probe machine is to record other information. Thus, at the end of the day, an employee's production data can be recorded on the machine simply by inserting one's identification badge into the machine and at the same time pressing certain pre-programmed numbers and production codes. Use of the probe machine for this purpose serves to eliminate the need for handwritten reports on sheets of paper from each employee. b. Prior to reorganization, employees could begin probing out at 4:06 p.m. so as to be through by 4:30 p.m. As a result of the reorganization and the shift of employees from the Offset Division to the Electronic Photocomposition Division, under different ultimate supervision and different managerial policies, the employees had to change their departure probe from 4:06 p.m. to 4:15 p.m. to conform to the rest of their new division. Clearly, this was a change in working conditions. In addition, the employees had to probe out twice whereas, prior to the reorganization, they only probed out once. This was also a change in working conditions. As things worked out, the new departure probe time of 4:15 p.m. caused delays and disputes as employees leaving the job site competed for positions on the computer with the incoming shift. In addition, employees experienced a loss of cleanup time "on the clock." The resulting problem was eventually solved by changing the time to 4:10 p.m. The foregoing facts are based upon the testimony of Irwin Mandelblatt, a shop steward of GAU Local 285 and a copy prep journeyman stripper in the Electronics Photocomposition Division (EPD). His section formerly was part of the Offset Division. This testimony is corroborated by Mr. Richard Valentine, a stripper in the Offset Negative Section which was transferred from the Offset Division to EPD. c. Use of the probe machine was also related to another change as illustrated by the testimony of Mr. Sever. Prior to the reorganization Plate Section employees filed written reports of their work production. Afterwards, they were required to use the probe machine for this purpose. In its brief, Respondent described this as a minor change in the method of recording work. 4. Alleged Changes in a Training Program a. The General Counsel contends that a further consequence of the reorganization and the disestablishment of the Offset Division was established by Mr. Greer and Mr. Allen. Greer testified that during the time the Negative Section was in the Offset Division his union, the Graphic Arts Union, Local 285, negotiated a training program to furnish upward mobility for printing plant workers who were identified as Offset Photographers Assistants so that they could become offset Photographers Apprentices. According to Greer, he heard a rumor that employees in the training program would not be moved up to journeyman status as originally planned in the program. He thereupon went to the head of the Electronic Photocomposition Division who, according to Greer, told him that because of the excess of personnel now in the division he couldn't say with any reasonable degree of certainty that these people would continue to journeyman status in that program (Tr. 132, 142). This meeting was in February 1980, at least four months after the reorganization. On cross examination, Mr. Greer conceded that the excess of people had been there "for sometime" but asserted that the reorganization had a chilling effect on the training program. Mr. Wood denied telling Greer that employees would not reach journeyman status. b. Mr. Allen, the President of the Printing Plant Workers Union, testified that another aspect of the training program was that printing plant workers, who are semi-skilled employees, would not be assigned any further skilled duties normally within the jurisdiction of Greer's craft Union unless they were given an opportunity to enter into the training program which would lead eventually to the employees being given journeyman status within the Graphic Arts Union. According to Allen, this was being ignored by the new management. c. I can understand the concern expressed by Greer and Allen, and if the alleged change could be more specifically identified I would agree that an adverse impact was possible. But much of this testimony is based on speculation and feelings. As of the date of the hearing, 8 1/2 months had elapsed since the reorganization. Certainly, this was an ample period of time in which to gather evidence about specific changes in the training program adversely impacting on employees. Accordingly, I find that the General Counsel has not established by this evidence any adverse impact directly related to or resulting from the reorganization. 5. Alleged Changes in Emergency Snow Procedures a. I am not persuaded by the testimony of Mr. Richard Valentine that the reorganization resulted in a change of policy with respect to identifying asserted personnel for purposes of emergency snow conditions. Even if such a change occurred, the effect on employees was minimal and would not constitute adverse impact, in my opinion. G. Impact: Probable Changes Resulting From the Transfer of the Composing Division 1. As previously noted, the reorganization had purposes and objectives which were not to be achieved overnight. But there can be no question that the reorganization was an instrument for change. In terms of its immediate and eventual impact on employees, the most significant change was the transfer of the Composing Division from the Deputy Production Manager, Printing to the Deputy Manager, Prepress. Joint Exhibit No. 2 clearly establishes that the major purpose of this reorganization, combined with the transfer of the Offset Copy Preparation and Negative Sections to the Electronic Photocomposition Division was to promote greater efficiency and allow for a smoother transition of work from hot metal processes to photocomposition processes. A specific example of how this consolidation of work was to occur is found in Respondent's Exhibit No. 7, a letter from the Deputy Public Printer to the Public Printer responding to certain questions concerning the reorganization. Question No. 6 in this memo asks whether or not thought has been given to creating a common proof room. In response to this question the Deputy Public Printer states: The establishment of a single proof room is definitely one of the major objectives of the proposed reorganization. This section would combine main proof, EPD proof, patents proof, and job proof, and would be planned to become operational concurrently with the transition of the Congressional Record to Photocomposition. This change-over is planned for January 1981, when the first session of the Ninety-Seventh Congress convenes. (Resp. Exh. No. 7). 2. Mr. William Boarman, President of Columbia Typographical Union, #101, testified that prior to the reorganization his Union was the only craft Union in the Electronic Photocomposition Division and it had exclusive recognition for purposes of collective bargaining throughout the Division. As a result of the reorganization there are now two separate craft units with different rates of pay, etc. within the Electronic Photocomposition Division operating under the same division supervision. Thus, the General Counsel contends that a possible impact of the reorganization is that there is now a possibility for a requirement of a unit clarification regarding the jurisdiction of the two craft Unions in the Electronic Photocomposition Division. 3. Boarman also testified that promotional opportunities in the Electronic Photocomposition Division which were primarily, if not solely, filled by employees from his craft, are now filled in part by employees from an additional craft and thus, he asserts, there has been an impact on promotional opportunities for his people. 4. Now that the Deputy Production Manager for Prepress is in charge of the Electronic Photocomposition Division and the Composing Division, he has, as a result of his increased authority, began a program to combine the operations of both divisions in certain areas. Specifically, Boarman referred to the combining of the Proof and Copy Mark-up Sections in the Electronic Photocomposition Division with the Proof Section of the Composition Division (Resp. Exh. 7; Tr. 207, 215). According to Boarman, the result of this combination will be that some of the "up-rates", employees within his bargaining unit, will be classified "surplus" employees. Boarman complained that there had, at the time of the reorganization, been no negotiations to provide for the impact of such consolidation on employees. (See also G.C. Exh. No. 16). Also, according to Boarman, the Monotype Section in the Composing Division is scheduled, as a result of the consolidations made possible under this reorganization, to be closed down. The area where the Monotype Section is presently located, on the 7th Floor of the Government Printing Office, is to be renovated for a new combined Proof Room. Employees in the Monotype Section are to be moved to the Hand Section in the Composing Division which is located on the 6th Floor and "up-rate" employees in the Monotype Section and supervisors in that section will be declared "surplus" because "up-rate" bargaining unit positions in the Hand Section are already filled. Again there has been no negotiation on the impact and implementation of these changes which are closely related to the reorganization and are planned to inevitably flow from it. (See also G.C. Exh. No. 16). McRorie, Respondent's Production Manager, supported this contention by Mr. Boarman when he admitted that it is the intention of the Respondent to transfer all work eventually from the Composing Division to the Electronic Photocomposition Division and that one of the major results of the reorganization is that work can now easily be shifted by the Deputy Production Manager Prepress from the Composing Division to the Electronic Photocomposition Division. Elmo Wood also testified that the two divisions eventually will be "merged and become one." H. Impact: Changes Resulting From the Establishment of the Photopolymer Plate Section 1. Prior to the reorganization there were three separate sections: Electrotyping, Photoengraving, and Stereotyping. The reorganization had the effect of formally abolishing these individual sections, consolidating them altogether as one, and retitling the new section as the Photopolymer Plate Section. This was more than a change of name. As correctly pointed out by the General Counsel, and as any craft employee would readily know, the Respondent thereby implemented an "official" change in "status" of the Photoengraving Section from that of a section which did primarily photoengraving work to that of a section whose primary responsibility, and hence name, would be that of Photopolymer Plate Making. Not only were the employees in these three sections merged together and given a new name, but to add to the confusion, the Letterpress Division (of which it was part) was merged with the Offset Press Division. 2. The purpose of the reorganization was to greatly enhance the workload balancing problems encountered by having separate press divisions and to facilitate the transition of work from letterpress to offset printing. (Jt. Exh. No. 2). One of Respondent's exhibits, a letter from the Deputy Public Printer to the Public Printer contains the following statement: "The Photoengraving Section is to be renamed to Photopolymer Plate Section to more accurately indicate its primary function. This section will of course continue to produce magnesium cuts for envelope work and other metal engraving as long as they are needed. Consideration is being given to incorporating the Photopolymer Plate Section as a unit under the Offset Plate Section." (Resp. Exh. No. 7, p. 3). These two exhibits establish that the purpose and objective of the reorganization and the change in name from Photoengraving Section to that of Photopolymer Plate Section was to implement management's overall intention to change the way and manner in which work was done at the Agency. Thus management intended to merge the letterpress and offset press functions as a means of facilitating the transition of work from Letterpress to Offset Printing thus abolishing the need, eventually, to have a separate Photopolymer Plate Section. 3. With this as background one can more easily understand the testimony of Mr. John Greer, President, Graphic Arts Union, Local 285, and that of his Special Assistant Mr. Anthony Gonzales, that the change of the section's name from Photoengraving to that of Photopolymer Plate Section not only foretold the future but in and of itself constituted an impact on employees in that section. Greer and Gonzales established that there is at least 50 year history of tying employees' job classification to the title of the section in which they work, and as a consequence and because the rates of pay in this section are related to the rates of pay in private industry, anything that would support a change in the classification of employees from that of Offset Photographers to that of Photopolymer Platemakers has an actual as well as potential impact on employees in that section. Issues A. Whether there is any statutory prohibition to the filing of an unfair labor practice charge by the Joint Council? B. Whether the Joint Council herein was authorized to act as the bargaining agent for the exclusive representatives? C. Whether Respondent had an obligation to bargain because there was a reasonable likelihood that the reorganization would result in an adverse impact, immediately or in the future, on employees in the production department? D. Whether Respondent failed to provide the exclusive representatives with adequate notice of its decision to reorganize the production department? E. Whether Respondent refused to bargain with the Joint Council as the designated agent of the exclusive representatives? Discussion and Conclusions of Law A. Status of the Joint Council At the hearing Respondent challenged the right of the Joint Council to file an unfair labor practice charge. In its brief, Respondent contends that the Council is not a labor organization which is the exclusive representative of any employees in the Government Printing Office and, therefore, Respondent had no statutory obligation to negotiate with the Council. These contentions are without merit. Section 7118(a)(1) of the Statute and the implementing regulatory section, Section 2423.3 provide, in effect, that a charge may be filed by "any person," and Section 7103(a)(1) of the Statute provides that a person means "an individual, labor organization, or agency." Thus, the Statute requires that any individual or entity which is encompassed within the statutory definition of "person" set forth in Section 7103(a)(1) of the Statute may file a charge alleging an unfair labor practice under any subsection of Section 7116 of the Statute. Accordingly, any "employee" within the meaning of Section 7103(a)(2) of the Statute, and any "labor organization" within the meaning of Section 7103(a)(4) of the Statute has standing to file a charge alleging an unfair labor practice under Section 7116 of the Statute. The filing of such charge invokes the General Counsel's jurisdiction to investigate the unfair labor practice and, if timely filed, consider such charge on the merits. The evidence herein establishes that Mr. McIntyre is an employee of the Respondent, Chairman of the Joint Council, and President of one of its constituent locals. The evidence also establishes that the Joint Council is the designated agent of all seven Unions in the Production Department and had the function of representing the interests of such Unions in negotiations with management on matters of common concern. Finally, the evidence establishes that when McIntyre filed the charge herein, he had been specifically authorized by the membership of the Joint Council to do so. Accordingly, I conclude that the charge herein was properly filed whether it was filed by Mr. McIntyre as an individual, or by Mr. McIntyre as the Chairman of the Joint Council, the authorized representative of the seven constituent locals who had units of recognition in the affected Production Department. Respondent has offered nothing sufficient to challenge the authority of Mr. McIntyre, or the Joint Council, to act as agent for its constituent locals of the Council, as established by the Union presidents. Indeed, the evidence establishes that Respondent itself recognized the role of the Chairman McIntyre of the Joint Council when Mr. Amann's secretary called him on September 27 and requested him to notify the other unions of the next day's meeting to discuss the reorganization. I find and conclude that the Joint Council was the designated agent of its constituent locals in the Production Department and had authority to request Respondent to delay the reorganization and to negotiate impact and implementation of the reorganization decision. B. Other Pertinent Statutory Provisions 1. Section 7116(a) makes it an unfair labor practice for an agency - "to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter" and (5) "to refuse to consult or negotiate in good faith with a labor organization as required by this chapter." 2. Section 7106 (the Management Rights section) states as follows: (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- (1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; . . . (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- . . . (2) procedures which management officials of the agency will observe in exercising any authority under this section; or (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials. C. Contention of the Parties 1. There is no dispute that Respondent's decision to conduct a reorganization was a management right under Section 7106(a) of the Statute and not negotiable. However, the General Counsel contends that Respondent has an obligation to negotiate about Section 7106(b)(2) "procedures" and Section 7106(b)(3) "arrangements for employees adversely affected." 2. Respondent asserts in its brief that it is fully cognizant of its obligation to negotiate with an exclusive representative before it effectuates a decision which has adverse impact on employees within a bargaining unit. But in order to conclude that impact is "adverse," Respondent asserts that impact must be substantial and meaningful. More importantly, impact must be actual, not speculative. On this latter point, Respondent contends that about every act of management is of some interest to employees, but from this it does not necessarily follow that every act has a material and substantial impact on employees and their conditions of employment. With respect to the instant case, Respondent argues that the alleged change in sick leave policy and the actual change in probing in and out were relatively minor and insignificant matters which did materially impact on employees and therefore did not constitute adverse impact. With respect to the remainder of the General Counsel's case, Respondent asserts that the alleged impact is pure speculation and should be accorded no significance. 4. The General Counsel contends that the language of Section 7106(a) of the Statute establishes the "primacy of negotiated procedures over the exercise of management rights" by making subsection (a) subject to the provisions of subsection (b). The legislative history relied upon to support this argument are statements made by Congressman William Ford (124 Cong.Rec.H. 13607, Daily Ed., October 14, 1978). However, since these statements were made after the enactment of the Statute, they do not constitute evidence of Congressional intent. /8/ C. Nature of Impact 1. The central issue in this case resolves around the kind of impact to be shown, if any, and the nature of such impact. Section 7106(a) of the Statute has its genesis in Section 11(a) of the Executive Order 11491, as amended. Cases arising under the Executive Order and the Statute clearly demonstrate that an agency's obligation to negotiate is not intended to embrace every issue which is of general interest to employees but may only affect them indirectly or in an unsubstantial way. /9/ Thus, in cases arising under the Executive Order, a "substantial impact" test has come into existence and been applied uniformly in numerous cases. Indeed, the Assistant Secretary, in a case under the Order stated quite clearly that Section 11(a) (now Section 1706(a) under the Statute) encompassed matters which materially affect employees and have a substantial impact on personnel policies, practices and general working conditions. /10/ Complaints have been dismissed when the substantial impact test has not been met. In the present case, and since I am of the opinion that a substantial impact test should be applied to cases arising under the Statute, /11/ the issue is whether the substantial (or adverse) impact must actually be shown to have occurred (i.e. actual impact) or whether it is sufficient to show that it probably will occur at a future date. It is my conclusion that the legal principle to be applied to this case is as follows: An agency's obligation to negotiate is contingent upon first showing by a preponderance of the evidence that the unilateral change in conditions of employment has resulted or may reasonably be expected to result in substantial impact adversely affecting employees. Thus, the foregoing test encompasses both actual and probable impact, but in either case the impact must be "substantial" and must "result from" the change in question. Of course, the burden of proof would be with the General Counsel. 1. Actual impact. This may occur contemporaneously with the change or at a later date, but when it happens, it is specific and identifiable. It has really happened and there's no need for speculation. This is illustrated herein by the change in sick leave policy and the change in the probing in and out procedure. In disagreement with Respondent, I find that these changes had substantial impact on the affected employees. These changes occurred in close proximity to the date of the reorganization and resulted from the reorganization. The General Counsel attempted to show that the reorganization also resulted in changes in the upward mobility training program but, in my opinion, the evidence was insufficient to establish such a change and, therefore, the question of impact is not reached. The General Counsel also alleged that subsequent to the reorganization there were changes in the procedure for determining essential personnel in emergency snow conditions. Although these changes did occur after the reorganization, the evidence did not persuasively establish that the change resulted from the reorganization or that it materially affected employees in a meaningful way so as to warrant the conclusion that it constituted substantial or adverse impact. 2. Probable Impact. Not every change in conditions of employment results in an immediate impact of substantial nature. But the lack of a substantial impact should not preclude finding an obligation to negotiate. If an agency changes its RIF procedures, a union should not have to wait until an employee is terminated before requesting negotiations concerning the impact and implementation of the change. If an agency changes its promotion procedures, a union should not have to wait until an employee is refused promotion before insisting on negotiations. Whenever an agency institutes a change in conditions of employment without affording the exclusive representative an opportunity to request negotiations, the agency acts at its peril. In determining whether an agency has acted in derogation of its collective bargaining obligations, the question to be answered is simply this: Was there a reasonable likelihood /12/ that the change would result in a substantial impact adversely affecting employees, either immediately or in the future? Phrased in this manner, an agency may not escape its statutory obligation by asserting, as Respondent does herein, that there has been no impact-- yet. Nor can the General Counsel too easily satisfy its burden of proof by arguing that adverse impact "could" happen, "might" happen or is "possible" of happening at some vague indefinite time in the future. /13/ A fair compromise between these two extreme positions is to require the General Counsel, in the absence of actual substantial impact, to prove there was a reasonable likelihood of substantial impact resulting in the future from the agency's unilateral change. On balance, I believe this would be a fair but not onerous burden of proof. In my opinion the "reasonable likelihood" test is applicable to and very well illustrated by the facts of this case. Indeed, the Joint Council and its member unions were less concerned with the actual adverse impact (sick leave, changing the probe procedure, etc.) than they were with the probable and more serious adverse impact (loss of jobs, lower pay and fewer promotional opportunities) slated for the future. Respondent asserts that there is no hard evidence of future changes and that the General Counsel's case is built upon speculation by the Union witnesses who testified. I disagree. It is clear from the testimony of Respondent's own witnesses and documentary evidence as well, that elimination of jobs was a principal objective of the reorganization. The abolishment of sections and the merger of divisions were the first steps in the game plan, but the ultimate objectives were clear. Based upon my review and analysis of the entire record, I conclude that as a result of the reorganization of the production department there was a reasonable likelihood that promotional opportunities would be diminished and that employees would lose their jobs. There can be no question that such a result would adversely affect employees. Accordingly, Respondent had an obligation to negotiate the impact and implementation of its decision to institute the reorganization. The reasonable likelihood test that I have utilized in evaluating the evidence herein may sound new, but it is not. Rather, I am merely making explicit what has been implicit all along in decisions by the Assistant Secretary and the Authority. To illustrate this point, I refer to a recent decision by the Authority in San Antonio Air Logistics Center (AFLC), Kelly Air Force Base, Texas, 5 FLRA No. 22 (February 17, 1981). Such terminology as actual, immediate, probable, and reasonably likely were not expressly used in the decision, but here is what happened. The Activity in that case changed its appraisal Guidelines. While this did not have an immediate adverse impact, the eventual application of the guidelines to employees resulted in a lowering of scores, by the date of the hearing. But even without this evidence of actual impact at a later date, it seems clear that the very nature of the change carried with it a reasonable likelihood that employees' scores would be adversely affected because an underlying reason for the new Guidelines was to correct a problem of a disproportionate number of high scores the preceding year. In the case case, the Activity also cancelled certain GS-8 positions and replaced them with WG-11 positions and characterized this maneuver as the establishment of a new position rather than the reclassification of an old one. Although no employees suffered an immediate pay reduction, it was held that the change resulted in a lower pay scale. Thus, we see that the reason for finding substantial impact was not because any employees were, in fact, adversely affected but, rather, because there was a reasonable likelihood that employees would be adversely affected in the future by this change. Another case by the Authority is also important. Department of the Treasury, Internal Revenue Service, Jacksonville District, 3 FLRA No. 103 (July 17, 1980). There, the Respondent unilaterally adopted new time schedules for the processing of cases. The effect of the change was to reduce the optimum time frame for the timely processing of a case-- before it became overage-- from 18 to 12 months. There was no immediate adverse effect on employees and Respondent contended there was no actual impact because the new time frame had not been enforced. In rejecting this contention, the Administrative Law Judge stated as follows: The absence of enforcement of same carries little weight in the absence of any statement from the supervisory hierarchy assuring continuance of such practice. In the absence of such a statement the affected employees have no way of knowing what the future holds with respect to adherence to the March 14th memorandum. The Authority adopted the Administrative Law Judge's findings, conclusions, and recommendations. Turning back to the case before me, the Joint Council and its constituent locals were not really concerned with the changes in supervisory and managerial assignments. Rather they were concerned-- and with good reason-- that the abolishment of sections, merger of divisions and creation of the Photopolymer Section, were all leading in one direction: loss of jobs and lower pay. The reorganization was an integral and critical first step in the process and the Joint Council wanted to be in on the ground floor to negotiate probable impact before it was too late. Only by objecting in a timely manner could the unions avoid criticism at a later date that they had slept on their legal rights. Here, the unions, through the Joint Council, promptly filed an unfair labor practice charge but even this did not give the Respondent pause. The reorganization was instituted as scheduled. D. Adequacy of Respondent's Notice 1. The General Counsel contends that the failure to provide timely and sufficient notice of the decision in order to afford ample opportunity for the unions to study the reorganization plan prior to its implementation was an "ipso facto" violation, irrespective of any actual impact. I reject the contention that before an agency exercises any reserved management right it has an obligation to notify the union so that it may request bargaining about 7106(b)(2) procedures, irrespective of any showing of substantial impact. /14/ 2. My understanding of the law is that Respondent's obligation to provide adequate notice is contingent upon first establishing an obligation to bargain. /15/ In the present case, I have determined that the decision to reorganize the production department had (1) an actual adverse impact and (2) a reasonable likelihood of future adverse impact. Therefore, Respondent had an obligation to negotiate the impact and implementation of its decision. To fulfill this bargaining obligation, Respondent had an obligation to provide timely and sufficient notice. /16/ Clearly, the Respondent failed to satisfy this obligation when it waited until Friday morning September 28 to announce that there would be a reorganization and it would be instituted on Monday October 1. Furthermore, I conclude that Respondent, having already programmed its computer to the new setup, had no intention of even considering a delay in the reorganization. As Production Manager McRorie said to McIntyre "we have already changed the data over into the computer . . . and that's the way it is." 3. Respondent's inadequate notice and its refusal to delay the reorganization was in derogation of its statutory obligation to negotiate the "impact and implementation" of its decision. More specifically, in statutory terminology, Respondent had an obligation under Section 7106(b)(2) to negotiate the procedures to be followed in implementing the reorganization, and it had an obligation to negotiate under Section 7106(b)(3) appropriate arrangements for employees adversely affected by the reorganization. /17/ Accordingly, I conclude that Respondent violated Section 7116(a)(5) by its conduct. /18/ Moreover, it is well settled that a violation of any subsection of Section 7116(a) necessarily tends to interfere with, restrain, or coerce employees in the exercise of their rights assured by the Statute and therefore is also a violation of Section 7116(a)(1). /19/ Having found that Respondent has engaged in conduct violative of Sections 7116(a)(1) and (5) of the Act, I recommend that the Authority issue the following order designed to effectuate the purposes of the Federal Service Labor-Management Relations Statute. ORDER Pursuant to Section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and Section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the U.S. Government Printing Office shall: 1. Cease and desist from: (a) Any further implementation of the October 1, 1979 reorganization of the Production Department without first notifying the Joint Council of Unions, Government Printing Office, the agent of the employees' exclusive bargaining representatives, and affording it a reasonable opportunity to negotiate, to the extent consonant with law and regulations, on (1) the procedures to be observed in any further implementation of the reorganization, and (2) the arrangements for employees who have been or may be adversely affected by the reorganization. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action: (a) Upon request by the Joint Council of Unions, Government Printing Office, the agency of the employees' exclusive representatives, negotiate, to the extent consonant with law and regulations, (1) the procedures to be observed in implementing the reorganization of its Production Department, and (2) the arrangements for employees who have been or may be adversely affected by the reorganization. (b) Post at all facilities wherein there are bargaining unit employees represented by constituent locals of the Joint Council, copies of the attached Notice marked "Appendix a" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Public Printer and shall be posted and maintained for a period of 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places where notices to employees are customarily posted. The Public Printer shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material; and (c) Notify the Federal Labor Relations Authority, in writing, within 30 days from the date of this order as to what steps have been taken to comply herewith. FRANCIS E. DOWD Administrative Law Judge Dated: April 9, 1981 Washington, D.C. APPENDIX A NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT institute any further changes in personnel policies, practices, and working conditions as a result of the reorganization of the Production Department, without first notifying the Joint Council of Unions, Government Printing Office, the agent of the employees' exclusive bargaining representatives, and affording it an opportunity to negotiate, to the extent consonant with law and regulations, on (1) the procedures to be observed in any further implementation of the reorganization of the Production Department, and (2) the arrangements for employees who have been or may be adversely affected by the reorganization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL, to the extent consonant with law and regulation, afford the Joint Council of Unions the opportunity to negotiate concerning any changes affecting personnel policies, practices, or working conditions, related to the reorganization of the Production Department including (1) the procedures to be observed in any further implementation of the reorganization of the Production Department and (2) the arrangements for employees who have been or may be adversely affected by the reorganization. (Agency or Activity) Dated: . . . (Signature) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director for the Federal Labor Relations Authority whose address is: 1133 15th Street, NW., Suite 300, Washington, D.C. 20005 --------------- FOOTNOTES$ --------------- /1/ Section 7106(b) of the Statute provides in pertinent part: Sec. 7106. Management rights . . . . (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- (2) procedures which management officials of the agency will observe in exercising any authority under this section; or (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials. /2/ Section 7106(a)(1) provides in pertinent part: Sec. 7106. Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- (1) to determine the . . . organization . . . of the agency(.) /3/ The Authority finds it unnecessary, in the circumstances of this case, to distinguish between the nature of the bargaining obligations arising under section 7106(b)(2) and (3). See generally American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA No. 13 (1981), rev'd sub nom. American Federation of Government Employees, AFL-CIO, Local 2782 v. Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983) (wherein the Court described section 7106(b)(2) as a provision which was intended to "clarify" the dichotomy between management's substantive rights governed by section 7106(a) and matters of procedure, but described section 7106(b)(3) as a provision which was intended as an "exception" to or a "limit" on management's prerogatives set forth in section 7106(a)). /4/ This is not to say that an agency is required to notify the exclusive representative of its employees every time it decides to exercise a management right under section 7106 of the Statute. Thus, where the exercise of a management right has not changed conditions of employment so as to have an impact on bargaining unit employees and such impact cannot reasonably be foreseen, management's failure to have provided prior notice thereof to the exclusive representative will not be found to have violated section 7116(a)(1) and (5) of the Statute. See, e.g., Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 5 FLRA No. 45 (1981). /5/ In its brief Respondent takes exception to my prehearing ruling denying a Motion for More Definite Statement. The purpose of the motion was "to elicit specific information" because in civil litigation a "responding party is entitled to know upon what facts the complaining party is basing his allegations." To the extent that Respondent's motion is in the nature of a Request for a Bill of Particulars it was denied because the complaint, in my opinion, is sufficiently specific and detailed to apprise the Respondent of the issues and to enable Respondent to prepare for the hearing. To the extent that Respondent is seeking discovery of the General Counsel's evidence in advance of the hearing, I reaffirm my previous denial of the motion for the reasons set forth in General Counsel's opposition to the motion. /6/ Mr. McIntyre, President, Washington Printing and Graphic Communications Union, Local 1; Mr. Sever, President, Washington Government Photo Offset Union, Local 538; Mr. Greer, President, Graphic Arts Union, Local 285; Mr. Allen, President, Washington Printing Plant Workers Union, Local 713; and Mr. Boarman, President Columbia Typographical Union, # 101. /7/ Upon reconsideration, I reverse my ruling at the hearing and receive Resp. Exh. No. 6 into evidence. /8/ United States v. United Mine Workers of America, 330 U.S. 258 (1947); National Woodwork Mfgs. Ass'n v. N.L.R.B., 386 U.S. 639 (1967); Blanchette v. Connecticut Insurance Corps., 491 U.S. 102 (1974). /9/ Department of Defense, Air National Guard, 6 A/SLMR 591. /10/ Department of Defense, Air National Guard, 6 A/SLMR 591; Social Security Administration, 2 FLRA No. 27 (1979) Report No. 23. /11/ In a case decided under the Statute, the Authority has upheld the substantial impact requirement. See Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 5 FLRA No. 45 (March 20, 1981). /12/ Webster's New World Dictionary defines likelihood as "the fact of being likely to happen; probability." Used in this sense the word "likely" according to Webster's suggests "probability or an eventuality that can reasonably be expected." /13/ An agency should not be required to bargain about the impact and implementation of every management decision simply because there is a possibility, however remote and unrealistic, of adverse impact. Such a requirement would be unduly burdensome and could indirectly interfere with management's 1706(a) decisional authority by causing unreasonable delay or so constrict management's discretion as to effectively deny that right altogether. Report of the Federal Labor Relations Council, January 1970/December 1976 (FLRC 77-2). But see, Department of Health, Education and Welfare, Social Security Administration, BRSI, Northeastern Program Service Center, 8 A/SLMR 1237, at 1243, (1978), affirmed 1 FLRA 19, relied upon by the General Counsel to support a contention that "possible" impact is negotiable. /14/ In its brief (p. 18), the General Counsel contends that even if I find "no substantial adverse impact, there is . . . an obligation to negotiate procedures, and procedures (sic) for employees adversely affected if the adverse affect was at least de minimus." In my view, substantial impact is a precondition to triggering an agency's obligation under both Sections 7106(b)(2) and (3) in cases involving unilateral change. /15/ Department of Treasury, Internal Revenue Service, 7 A/SLMR 255. /16/ Federal Aviation Administration, 4 A/SLMR 497; Aircraft Fire and Rescue Division, Naval Air Station, Norfolk, Virginia, 3 FLRA No. 18; Department of the Treasury, 7 A/SLMR 421 (1977). /17/ Under the Executive Order, the terms "implementation" and "procedures" were used interchangeably. Department of the Treasury, 8 A/SLMR 1188, fn. 8 (1978). /18/ Where the exclusive representative has not been afforded reasonable notice of a proposed change, there is no requirement that a request for bargaining be made after the fact to establish a violation. Department of the Treasury, Internal Revenue Service, Austin Service Center, A/SLMR No. 1187 (1978). /19/ Small business Administration, 6 A/SLMR 350.