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