[ v23 p35 ]
23:0035(6)CA
The decision of the Authority follows:
23 FLRA No. 6
U.S. GOVERNMENT PRINTING OFFICE
Respondent
and
COLUMBIA TYPOGRAPHICAL UNION NO. 101
INTERNATIONAL TYPOGRAPHICAL UNION,
AFL-CIO
Charging Party
Case No. 3-CA-30465
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the
Respondent. The complaint alleged that the U.S. Government Printing
Office violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute) when on March 23, 1983,
it bypassed the Columbia Typographical Union No. 101, International
Typographical Union, AFL-CIO, the exclusive representative of certain of
its employees, by negotiating directly with a bargagining unit employee
an informal adjustment of her Equal Employment Opportunity complaint.
II. Background
The facts are set out in detail by the Judge and are not in dispute.
In sum, a bargaining unit employee applied for the position of Head
Deskman-in-Charge and was determined to be one of five best qualified
candidates. This position, while included in the bargaining unit, is a
bridge position for consideration with respect to supervisory positions.
Upon her nonselection for the position, the employee filed an Equal
Employment Opportunity (EEO) complaint alleging that she was not
selected because of her race and sex. The employee did not choose the
Union to represent her in her EEO complaint. On March 23, 1983, the
employee entered into an informal adjustment of her EEO complaint with
the Respondent which provided that she would be promoted to the next
available vacancy of a Head Deskman-in-Charge position. Within a few
days the Union learned of the settlement and requested a copy. The
Respondent provided the Union with a copy of the settlement on April 1,
1983.
III. Judge's Decision
The Judge concluded that the Respondent did not violate section
7116(a)(1) and (5) of the Statute by negotiating directly with a
bargaining unit employee an informal adjustment of her EEO complaint
based on the fact that "the meeting and 'negotiations' . . . concerned
an EEO complaint, pursuant to statutory procedures of the Equal
Employment Opportunity Commission (EEOC) . . ." In response to the
General Counsel's contention that the meeting with the employee
constituted the adjustment of a grievance, the Judge relied on the
Authority's holding in Bureau of Government Financial Operations,
Headquarters, 15 FLRA 423, 429 (1984), rev'd sub nom. National Treasury
Employees Union v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985), "that a
grievance within the meaning of section 7114(a)(2)(A) does not encompass
a statutory appeal . . ."
Although the bypass alleged in the complaint was related specifically
to the direct dealings between the bargaining unit employee and the
Respondent in settlement of the EEO complaint, the Judge concluded
further "that 'bypass' is sufficiently broad as to include all aspects
of the Respondent's duty to bargain with the Union . . ." In the Judge's
view, where a change in conditions of employment results from the
resolution of an EEO complaint, an agency is obligated to provide notice
to the exclusive representative not later than immediately after its
resolution. As he viewed the informal adjustment of the bargaining unit
employee's EEO complaint to have resulted in a change in conditions of
employment which was more than minor and isolated in character, the
Judge found that the Respondent's failure to provide immediate notice to
the exclusive representative of that change in conditions of employment,
even though the Respondent provided the Union with a copy of the
settlement upon the Union's request not more than a week later,
constituted a violation of section 7116(a)(1) and (5) of the Statute.
IV. Positions of the Parties
The General Counsel took the position before the Judge that where the
resolution of a unit employee's EEO complaint has a substantive impact
on the bargaining unit, the exclusive representative has the right to
receive notice and attend the meeting at which the resolution was
reached. Before the Judge, the Respondent argued essentially that no
provision of the Statute establishes a right for the exclusive
representative to be a party in the resolution of complaints filed as
statutory appeals under the regulations of the EEOC.
In its exceptions, the Respondent contended that the violation found
by the Judge was improper because it was neither alleged in the
complaint not litigated at the hearing. Specifically, the Respondent
asserted that neither the language of the complaint nor the supporting
arguments made by the General Counsel ever raised the issue that the
Respondent bypassed the Union solely by its failure to afford the Union
an opportunity to negotiate concerning the impact and implementation of
the EEO settlement agreement. In the Respondent's view, the sole issue
alleged, litigated and briefed by both parties was whether the
Respondent bypassed the Union by dealing directly with the EEO
complaintant.
The Respondent also excepted to the Judge's finding of a violation on
its merits, contending essentially that the General Counsel never
established that any existing condition of employment was changed or
that the settlement resulted in any foreseeable impact on bargaining
unit employees. Additionally, the Respondent argued that the Union
never requested bargaining after it had received a copy of the
settlement. /1/
V. Analysis
A. The Judge's Conclusion that the Complaint was
Sufficiently Broad to Encompass All Aspects of
Respondent's Duty to Bargain in Good Faith.
The Judge concluded that the complaint was sufficiently broad to
include all aspects of the Respondent's duty to bragain with the Union.
The Authority disagrees. The complaint neither alleged, nor did the
parties litigate at the hearing, whether the Respondent's failure to
provide notice to the Union of the informal adjustment of the EEO
complaint constituted an unfair labor practice. The clear basis for
both the unfair labor practice charge and the complaint, as indicated in
the positions taken by the General Counsel at the hearing and in the
brief to the Judge, was that the Respondent violated the Statute by
meeting directly with a bargaining unit employee and reaching a
settlement with that employee with respect to her EEO complaint of
discrimination, which the General Counsel characterized as the
resolution of her grievance without the presence of the exclusive
representative. Therefore, as the allegation that the Respondent failed
to provide the Union with notice of the settlement and an opportunity to
bargain was not encompassed by the complaint and thus was not before the
Judge, the Authority concludes that the violation found by the Judge in
this regard must be dismissed.
B. The Judge's Conclusion that Negotiating Directly with a
Bargaining Unit Employee over the Informal Adjustment of
an EEO Complaint did not Constitute a Bypass.
The Authority concludes, in agreement with the Judge, that the
Respondent, by meeting directly with a bargaining unit employee and
negotiating an informal adjustment of her EEO complaint, did not bypass
the exclusive representative in violation of section 7116(a)(1) and (5)
of the Statute. Thus, any employee is entitled to elect to pursue a
complaint of discrimination pursuant to and under the regulations of the
EEOC as provided by law. /2/ These regulations provide for an informal
adjustment process. /3/ The regulations of the EEOC also provide that
at any stage in the presentation of an EEO complaint, "the complainant
shall have the right to be accompanied, represented and advised by a
representative of his own choosing." /4/ Nowhere in those regulations is
there any provision for the exclusive representative's presence, unless
the exclusive representative is the complainant's designated
representative. The U.S. Court of Appeals for the District of Columbia
Circuit recognized the rights of the employee victim of discrimination
when it observed:
. . . Congress has explicitly decided that a conflict between
the identifiable victims of discrimination and the interests of
the bargaining unit must be resolved in favor of the former . . .
Similarly, a direct conflict between the rights of an exclusive
representative . . . and the rights of an employee victim of
discrimination should also presumably be resolved in favor of the
latter. (citation omitted; emphasis in original).
National Treasury Employees Union v. FLRA, 774 F.2d 1181, 1189 n. 12
(D.C. Cir. 1985). /5/
Therefore, an unfair labor practice cannot be found based solely upon
an agency's conduct in resolving an EEO complaint pursuant to the
regulations of the EEOC. Moreover, as the theory of bypass is premised
on a finding that agency management had dealt unlawfully with unit
employees concerning a matter over which the exclusive representative
has both the right and obligation to represent the employees, /6/ no
violation can be found in these circumstances. The bargaining unit
employee had elected to pursue her complaint of discrimination as an
appeal under the regulatory process of the EEOC, and the exclusive
representative had no statutory rights or obligations to represent her
in that process.
Furthermore, the Authority agrees with the Judge, as a statement of
general principle, that while a union has no right to participate in the
informal adjustment of an EEO complaint where a bargaining unit employee
has elected to pursue the complaint of discrimination under the EEOC
regulatory process, /7/ it may have a role if the settlement gives rise
to an impact on the bargaining unit. As the D.C. Circuit recognized in
a different context with reference to rights under section 7114 of the
Statute in National Treasury Employees Union v. FLRA, 774 F. 2d at 1188,
the resolution of such complaints could potentially affect all
bargaining unit employees in important ways, since a benefit or
opportunity granted to one employee can mean the loss of the same
benefit or opportunity for other employees. Accordingly, if the
adjustment of an EEO complaint results in a change of unit employees'
conditions of employment, the agency would have an obligation under the
Statute to give prompt notice of that change to the exclusive
representative of the unit employees and provide it with an opportunity
to bargain to the extent required by the statute. /8/ Of course, since
Congress has determined that the rights of identifiable victims of
discrimination must take priority over the interests of the bargaining
unit (744 F.2d at n. 12), an exclusive representative's right to bargain
upon receiving notice of an EEO complaint settlement cannot conflict
with or overturn the substance of such settlements. Since there is no
issue in this case concerning the exclusive representative's lack of
notice and an opportunity to bargain over the EEO complaint settlement,
it is unnecessary for the Authority to address Respondent's exceptions
on these grounds.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision, the positions of the parties and the entire
record, and adopts the Judge's findings, conclusions and recommended
Order only to the extent consistent with the above. We therefore
conclude that the Respondent did not violate section 7116(a)(1) and (5)
of the Statute by meeting directly with a bargaining unit employee and
negotiating the settlement of her EEO complaint. We conclude further
that the Judge's finding of a violation based on the Respondent's
failure to provide the Union with notice of a change in conditions of
employment must be reversed as that allegation was not encompassed by
the complaint before the Authority. Accordingly, the complaint shall be
dismissed in its entirety.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-30465 be, and it
hereby is, dismissed.
Issued, Washington, D.C. August 11, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-30465
U.S. GOVERNMENT PRINTING OFFICE
Respondent
and
COLUMBIA TYPOGRAPHICAL UNION NO. 101,
INTERNATIONAL TYPOGRAPHICAL UNION,
AFL-CIO
Charging Party
Neal H. Fine, Esquire
For the Respondent
Mr. William J. Boarman
For the Charging Party
Ana de la Torre, Esquire
Bruce D. Rosenstein, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judges
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /9/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns whether the
Government Printing Office (hereinafter also referred to as GPO or
Respondent) violated Section 16(a)(5), and derivatively Section
16(a)(1), of the Statute by informally adjusting an EEO Complaint of a
bargaining unit employee without affording the exclusive representative
notice of the change of conditions of employment which resulted
therefrom and opportunity to negotiate concerning appropriate
arrangements for bargaining unit employees adversely affected thereby.
This case was initiated by a charge filed on April 26, 1983 (G.C. Exh.
1(a)), which alleged violations of Sections 16(a)(1), (5) and (8) of the
Statute; the Complaint and Notice of Hearing issued on December 28,
1983 (G.C. Exh. 1(c)); the Complaint alleged violations only of
Sections 16(a)(5) and (1) and set the hearing for February 14, 1984,
pursuant to which a hearing was duly held on February 14, 1984, in
Washington, D.C., before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues, and to present oral argument.
At the close of the hearing, March 14, 1984, was fixed as the date for
mailing post hearing briefs which time was subsequently extended, upon
timely motion of Respondent, with which the other parties concurred, for
good cause shown, to April 16, 1984. Respondent and General Counsel
each filed an excellent brief on April 16, 1984, which have been
carefully considered. Upon the basis of the entire record, I make the
following findings and conclusions:
Findings
The facts are not disputed and briefly are as follows:
1. The Columbia Typographical Union No. 101 (hereinafter referred to
as the "Union") is the exclusive bargaining representative for a unit of
GPO's employees, including Video Keyboard Operators assigned to the
Electronic Photocomposition Division. GPO and the Union are parties to
a collective bargaining agreement (Jt. Exh 1(a)) and are also party to a
second but separate agreement negotiated between GPO and the Joint
Council of Unions of which the Union is a part (JT. Exh. 1(b)).
2. Ms. Sylvan W. Curtis is assigned as a Video Keyboard Operator in
the Electronic Photocomposition Division. In October, 1981, Ms. Curtis
had bid for a posted vacancy of Assistant Group Chief (now Head
Deskman-in-Charge) in the Video Keyboard Section; had been one of five
best qualified candidates; but was not selected. On May 20, 1982, Ms.
Curtis filed an equal employment opportunity (EEO) Complaint in which
she alleged that she had not been selected for the position of Assistant
Group Chief, now Head Deskman-in-Charge, because of her race and sex
(Union Exh. 1).
3. Ms. Curtis selected as her personal representative Mr. Jerry
Nash, an employee of GPO but neither a representative of the Union nor
an official of the Union.
4. In accordance with the applicable EEO regulations, GPO
Instruction 650.1c (Jt. Exh. 2) and 29 C.F.R. Part 1613 (Jt. Exh. 3),
Ms. Curtis' complaint was investigated and processed under GPO's EEO
procedures.
5. The Union was not given notice of Ms. Curtis' EEO Complaint.
6. On March 23, 1983, Ms. Curtis entered into an informal adjustment
/10/ agreement of her complaint (G.C. Exh. 4). The settlement agreement
was signed by the Complainant, Ms. Curtis; by her representative, Mr.
Jerry Nash; by Respondent's EEO Complaint Officer, Ms. Hazel Devers;
and by Respondent's representative, Mr. Thomas O. Magnetti. The Union
was not given notice of the settlement which, in part, provided that Ms.
Curtis would be promoted to the next available vacancy of a Head
Deskman-in-Charge position on any of the three shifts in the Video
Keyboard Section (G.C. Exh. 4, Par. 2).
7. During the latter part of March, 1983, shortly after its
execution, the Union learned of the settlement and by letter dated March
28, 1983 (G.C. Exh. 2) requested a copy of the "decision" which GPO
furnished by letter dated April 1, 1983 (G.C. Exh. 3).
8. The Union did not, after notice of the settlement, request
negotiations concerning the implementation or impact of the settlement
agreement (Tr. 23). As of the date of the hearing, Ms. Curtis had not
been promoted to the position of Head Deskman-in-Charge as there has
been no further vacancy in the Video Keyboard Section.
Conclusions
The Complaint alleges, in relevant part, that:
"On or about March 23, 1983, Respondent negotiated directly
with an employee an Informal Adjustment Agreement to resolve the
employee's complaint of discrimination." (G.C. Exh. 1(g), Par. 6).
"The employee referred to in Paragraph 6 above occupies a
position within the . . . unit . . ." (id., Par. 7)
"Respondent engaged in the conduct described in paragraph 6
above without acquiring the actual consent of the Union or an
express waiver of its rights under the Statute to exclusively
represent bargaining unit employees." (id., Par. 8)
"By the acts and conduct described in paragraph 6 above,
Respondent bypassed the Union and thereby failed or refused to
negotiate in good faith with the Union." (id., Par. 9)
"By the acts and conduct alleged above, Respondent has engaged
in . . . unfair labor practices in violation of section 7116(a)(1)
and (5). (id., Par. 10).
Although this case does not involve any allegation that the meeting
of March 23, 1983, was a formal discussion concerning, inter alia, a
"grievance", as set forth in Section 14(a)(2)(A) and defined in Section
3(a)(9) of the Statute, /11/ General Counsel, both at the hearing (see,
for example, Tr. 72, 75) and by brief (see, for example, General Counsel
Brief pp. 11, 12, 13), relied heavily on Internal Revenue Service,
Fresno Service Center, Fresno, California, 7 FLRA No. 54, 7 FLRA 371
(1981), set aside, 706 F.2d 1019 (9th Cir. 1983), which was premised on
Section 14(a)(2)(1) and the definition of Section 3(a)(9) of the
Statute. Indeed, General Counsel asserts that, ". . . since the forum
in the instant case remains within the jurisdiction of the Authority,
the Internal Revenue Service case, supra, remains binding precedent."
(General Counsel's Brief, p. 13; see, also, Tr. 72). After the hearing
and after briefs were submitted, the Authority, on August 1, 1984, in
Bureau of Government Financial Operations, Headquarters, 15 FLRA No. 87,
15 FLRA 423 (1984), reversed its analysis as set forth in Internal
Revenue Service, supra, and held in relevant part (Member Haughton
concurring in part and dissending in part) as follows:
". . . the United States Court of Appeals for the Ninth Circuit
reversed a decision of the Authority in which the Authority held
that a meeting to discuss an Equal Employment Opportunity (EEO)
complaint concerned a 'grievance' within the meaning of section
7114(a) since an EEO complaint fell within the broad definition of
section 7103(a)(9) of the Statute (footnote omitted). In its
decision, the Court, noting that the EEO complaint was filed
pursuant to statutory procedures of the Equal Employment
Opportunity Commission (EEOC), decided that the EEO claim of
discrimination did not constitute a 'grievance' within the meaning
of section 7114(a)(2)(A). In this regard the Court stated, ". . .
the EEOC procedures involved in this case are not controlled by 5
U.S.C. Section 7114(a)(2)(A) because they are separate and
distinct from the grievance process to which 5 U.S.C. Sections
7103 and 7114 are directed.' Thus, the Authority finds, based on
the distinctions in the Statute and its legislative history noted
above, and the Court decision in the IRS, Fresno, case, supra,
that a grievance within the meaning of section 7114(a)(2)(a) does
not encompass a statutory appeal (footnote omitted). In the
instant case, the meeting was held solely in connection with a
statutory appeal -- namely, an MSPB appeal. Accordingly, the
Authority concludes that the meeting did not concern a 'grievance'
within the meaning of section 7114(a)(2)(A) of the Statute." (15
FLRA at 429-430).
In this case, as the meeting and "negotiations" of March 23, 1983,
concerned an EEO complaint, pursuant to statutory procedures of the
Equal Employment Opportunity Commission (EEOC), GPO did not violate
Sections 16(a)(5) or (1) of the Statute by its failure to give the Union
notice of the meeting, by its failure to provide the Union with an
opportunity to be represented at the meeting, or by negotiating directly
with an employee an informal adjustment of her EEO complaint.
Nevertheless, Respondent GPO was not free to implement any change in
established conditions of employment, albeit that here the change
resulted from an agreement resolving an EEO complaint of discrimination,
without giving the Union notice of the change and an opportunity to
negotiate concerning appropriate arrangements for those employees
adversely affected as a result of Respondent GPO's action. Stated
otherwise, an agency is free to meet with an employee and/or his or her
designated representative to resolve, or to attempt to resolve, pursuant
to statutory procedures of the EEOC, an EEO complaint of discrimination
without notice to the exclusive bargaining representative; but if the
agency by its resolution of the EEO complaint /12/ takes action which
changes any established condition of employment of other bargaining unit
employees, it must give the exclusive bargaining representative notice
of the change of established condition(s) of employment and an
opportunity to negotiate concerning appropriate arrangements for those
employees adversely affected by its action. It is the agency's change
of conditions of employment which requires notice to the exclusive
bargaining representative and an agency may not change an established
condition of employment, even though it lawfully may agree to do so
pursuant to statutory procedures of the EEOC to resolve an EEO Complaint
of discrimination, without notice of the change to the exclusive
bargaining representative and affording the exclusive bargaining
representative an opportunity to negotiate concerning the impact and
implementation of said change, any more than an agency may not change an
established condition of employment pursuant to a reserved management
right without notice to the exclusive bargaining representative and
opportunity to negotiate concerning the impact and implementation of the
exercise of such management right. U.S. Government Printing Office, 13
FLRA No. 39, 13 FLRA 203 (1983); Department of the Treasury, Internal
Revenue Service, Jacksonville District, Jacksonville, Florida, 15 FLRA
No. 187 (1984). Notice of change of an established condition of
employment by the resolution of an EEO complaint of discrimination does
not necessarily require that the agency reveal the identity of the
aggrieved person (see, Jt. Exh. 2, p. 9, Par. 5 c); but to the extent
that it does, or may, then the provisions of EEOC with respect to
confidentiality must yield to the right of the exclusive bargaining
representative to notice of any change of a condition of employment and
its right, pursuant to the Statute, to negotiate concerning impact and
implementation of such change.
The position of Head Deskman-in-Charge is within the bargaining unit
represented by the Union and GPO's agreement to promote Ms. Curtis to
the next available vacancy foreseeably results in impact upon the
remaining bargaining unit members, as between 200 and 250 unit employees
will be rendered ineligible to apply for the next vacancy of Head
Deskman-in-Charge which, without posting, will automatically be awarded
to Ms. Curtis. Promotion to the Head Deskman-in-Charge position is one
of the few opportunities to open to journeyman unit employees to move
into better paying positions and ultimately to supervisory positions
(Tr. 18-20). As General Counsel notes, "The fact that these positions
are scarce is evidenced in that Ms. Curtis following almost twelve
months after entering into the settlement agreement, still remains in
the same position she held when she first applied for the head
deskman-in-charge position in 1981 (Tr. 18, Un. Exh. No. 1)" (General
Counsel's Brief, p. 4). Ms. Devers, Respondent's EEO Complaint Officer,
testified that EEOC had given her verbal guidance that,
". . . unless the settlement of the complaint is going to to
have an impact on the bargaining unit employee, then the union has
no right to be present at meetings with the complainant if they
are not the designated representative.
* * * *
"If the settlement of that complaint is going to result in a
change of working conditions, employment, the terms of their
employment, if it's going to affect more than one person than the
individual who we're dealing with who filed the complaint, then
there is no right, the union has no right to be there." (Tr. 46).
For reasons set forth above, the right of the Union to be present at
meetings with an EEO Complainant is properly governed by EEO procedures
(in passing, however, the record plainly shows that EEOC and Respondent
recognize that confidentiality is not absolute vis-a-vis the exclusive
bargaining representative). Here, we are concerned not with
Respondent's right to resolve an EEO complaint of discrimination without
the presence of the Union, but, rather, with the separate and distinct
right of the Union to notice of any change of conditions of employment
affecting other bargaining unit employees that results from such
resolution. Ms. Devers' testimony also fully supports, and by direct
inference concedes, General Counsel's assertion that resolution of an
EEO complaint of discrimination which affects other bargaining unit
employees results in an impact which is more than de minimis. cf.
Department of Health and Human Services, Social Security Administration,
Chicago Region, 15 FLRA No. 174 (1984). I conclude that Respondent's
agreement to promote Ms. Curtis to the next available vacancy of a Head
Deskman-in-Charge position changed an existing condition of employment
and that the change resulted in an impact upon unit employees which was
more than de minimis for the reason that, although only a single future
vacancy was thus encumbered, the removal of a promotion opportunity from
the established posting and bidding procedures impacted on the rights of
all other bargaining unit employees.
Here, Respondent changed an existing condition of employment on March
23, 1983, when it agreed to promote Ms. Curtis to the next available
vacancy of a Head Deskman-in-Charge position and Respondent, at that
point, failed to give the Union notice of the change of a condition of
employment. As Respondent lawfully resolved the complaint of
discrimination pursuant to statutory procedures of EEOC, unlike the
situation when an agency exercises a reserved management right pursuant
to Section 6 of the Statute where the agency is obligated to provide
adequate prior notice to the exclusive representative, Department of the
Treasury, Internal Revenue Service, Jacksonville District, Jacksonville,
Florida, supra, I conclude that where the change in condition of
employment results from the resolution of an EEO complaint, the agency
is obligated to provide notice to the exclusive representative not later
than immediately after its resolution of an EEO complaint which results
in a change of conditions of employment. This Respondent failed to do;
however, sometime thereafter the Union learned of the settlement by
overhearing a conversation among unit employees on the shop floor (Tr.
13-14), and the Union requested a copy of the settlement agreement on
March 28, 1983, which Respondent failed to provide the Union notice of
the change of a condition of employment resulting from its resolution of
the EEO complaint immediately after entering into the settlement
agreement and its violation is neither obviated nor absolved by the fact
that the Union subsequently learned of the settlement by "shop talk" or
by the fact that the agreement remained executory. But is the violation
found encompassed by the Complaint? The Charge (G.C. Exh. 1(a))
alleged, inter alia, that Respondent violated the Statute, ". . . by
bypassing . . . (the Union) by agreeing to promote Sylvan W. Curtis . .
. in a manner inconsistent with . . . (the Union's) contract and with
the Federal Merit Promotion Policy", which, in my opinion, encompassed
the violation found, i.e., the failure to give the Union notice of a
change of a condition of employment and an opportunity to negotiate
concerning appropriate arrangements for those employees adversely
affected. The Complaint, however, in quite different language alleges
that, by negotiating directly with an employee an Informal Adjustment
Agreement to resolve the employee's complaint of discrimination, ". . .
Respondent bypassed the Union and thereby failed or refused to negotiate
in good faith with the Union" (G.C. Exh 1(c), Par. 9); and, as the
Complaint proceeded on the theory that direct negotiation with an
employee of a settlement of an EEO complaint of discrimination violated
the statute, that by such conduct " . . . without acquiring the actual
consent of the Union or an express waiver of the right under the Statute
to exclusively represent bargaining unit employees" (G.C. Exh. 1(c),
Par. 8), Respondent violated Sections 16(a)(1) and (5) of the Statute.
Whether the violation found is encompassed by the allegations of the
Complaint turns, therefore, on the allegation that by negotiating the
Adjustment Agreement Respondent bypassed the Union and thereby failed or
refused to negotiate with the Union. If construed strictly, one could
conclude that the violation found was not encompassed by any allegation
of the Complaint since the Complaint was premised on the theory that,
because an EEO complaint was a "grievance" within the meaning of Section
3(a)(9) of the Statute, the exclusion of the Union from the negotiation
of the Adjustment Agreement violated the Statute. Although the bypass
alleged by the Complaint was of the negotiation of the Adjustment
Agreement, I conclude that "bypass" is sufficiently broad as to include
all aspects of Respondent's duty to bargain with the Union and
specifically that it encompassed Respondent's duty to give notice to the
Union of any change of conditions of employment resulting from the
resolution of the EEO complaint and an opportunity to negotiate
concerning appropriate arrangements for bargaining unit employees
adversely affected thereby. Accordingly, I find that Respondent
violated Sections 16(a)(1) and (5) of the Statute by its failure to give
the Union notice of the change in conditions of employment on March 23,
1983, which resulted from its resolution of Ms. Curtis' EEO complaint,
and affording the Union an opportunity to negotiate concerning
appropriate arrangements for bargaining unit employees adversely
affected thereby.
As Respondent violated Sections 16(a)(1) and (5) when it failed to
give the Union notice of the change in conditions of employment at, or
immediately after, its action which resulted in said change, the fact
that the Union did not request negotiations after it learned of the
Adjustment Agreement is not determinative with respect to whether a
violation occurred. Department of the Treasury, Internal Revenue
Service, Austin Service Center, Austin, Texas, A/SLMR No. 1142, 8 A/SLMR
1188 (1978); Internal Revenue Service (IRS) and Brooklyn District
Office, IRS, 2 FLRA No. 76, 2 FLRA 586 (1980); United States Department
of Justice, Immigration and Naturalization Service, Southern Region, El
Paso, Texas, 11 FLRA No. 27, 11 FLRA 90 (1983); Bureau of Land
Management, Richfield District Office, Richfield, Utah, 12 FLRA No. 133,
12 FLRA 686 (1983); U.S. Government Printing Office, 13 FLRA No. 39, 13
FLRA 203 (1983); Department of the Treasury, Internal Revenue Service,
Jacksonville District, Jacksonville, Florida, 15 FLRA No. 187 (1984).
Respondent's agreement to promote Ms. Curtis to the next available
vacancy remains executory, i.e., no vacancy has occurred and Ms. Curtis
has, therefore, not been offered promotion to Head Deskman-in-Charge.
Under the circumstances, General Counsel's request for an order
requiring present negotiations, upon request of the Union, concerning
appropriate arrangements for bargaining unit employees adversely
affected by the change in conditions of employment resulting from
Respondent's resolution of Ms. Curtis' EEO Complaint is appropriate and
will be granted. Present negotiations will effectuate the purposes and
policies of the Statute by assuring the Union's statutory rights and
will provide a meaningful remedy for the violation found to have been
committed. Department of the Treasury, Internal Revenue Service,
Jacksonville District, Jacksonville, Florida, supra.
Accordingly, having found that Respondent violated Sections 16(a)(1)
and (5) of the Statute, 5 U.S.C. Sections 7116(a)(1) and (5), it is
recommended that the Authority adopt the following:
ORDER
Pursuant to Section 18(a)(7) of the Statute, 5 U.S.C. Section
7118(a)(7), and Section 2423.29 of the Regulation, 5 C.F.R. Section
2423.29, the Authority hereby orders that the U.S. Government Printing
Office shall:
1. Cease and desist from:
(a) Failing and refusing to give the Columbia Typographical
Union No. 101, International Typographical Union, AFL-CIO, the
exclusive representative of its employees (hereinafter referred to
as the "Union"), notice of any change of conditions of employment
as the result of the settlement or adjustment, pursuant to the
statutory procedures of the Equal Employment Opportunity
Commission and/or Respondent's Equal Employment Opportunity
Regulations, immediately upon resolution of any EEO complaint of
discrimination which results in any change of conditions of
employment of any other bargaining unit employee and affording the
Union the opportunity to negotiate concerning appropriate
arrangements for bargaining unit employees adversely affected
thereby.
(b) In any like or related manner interfering with,
restraining, or coercing 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) Upon request, we will negotiate with the Union concerning
appropriate arrangements for employees who have been, or may be,
adversely affected by the change in conditions of employment which
resulted from the settlement, pursuant to statutory provisions, of
the Equal Employment Opportunity complaint of Ms. Sylvan W. Curtis
whereby Respondent agreed to promote Ms. Curtis to the next
available vacancy of a Head Deskman-in-Charge position on any of
the three shifts in the Video Keyboard Section.
(b) Post at all of its facilities wherein there are bargaining
unit employees represented by the Union 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 said 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.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: September 27, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) The Respondent also excepted to the Judge's statement that in
some circumstances the provisions of the EEOC with respect to
confidentiality, specifically the identity of the aggrieved person,
might have to yield to the right of the exclusive representative to
notice of a change in conditions of employment resulting from the
resolution of an EEO complaint of discrimination. Since no issue is
raised in this case concerning the disclosure of an EEO complainant's
identity, the Authority finds it unnecessary to address the Respondent's
exception to the Judge's statement. Nevertheless, the Authority would
give little weight to this exception as it is predicated on the
pre-complaint confidentiality requirements of the EEOC Regulations, 29
CFR Section 1613.213(a), while the facts of this case concern the
post-complaint settlement efforts of the parties involved and different
confidentiality requirements, 29 CFR Section 1613.217.
(2) 29 CFR Section Part 1613 was promulgated by the EEOC pursuant to
an express grant of authority contained in the Civil Rights Act of 1964,
42 U.S.C. Section 2000e-16(b)(1976). See also section 7121(d) of the
Statute.
(3) 29 CFR Section 1613.217 provides that "The agency shall provide
an opportunity for adjustment of the complaint on an informal basis
after the complainant has reviewed the investigative file." The same
EEOC regulation requires the agency to furnish the investigative file
promptly to "the complainant and the complainant's representative . . ."
(4) 29 CFR Section 1613.214(b).
(5) For examples of similar conflicts in the private sector resolved
in favor of the victim of discrimination over the exclusive
representative, see Alexander v. Gardner-Denver Co. 415 U.S. 36, 50-51
(1973), which held that the individual's right to equal employment
opportunities may not be waived in a collective bargaining agreement;
International Union of Electrical, Radio and Machine Workers v. NLRB,
648 F.2d 18, 26-27 (D.C. Cir. 1980), involving an individual EEO
complainant's paramount right to the privacy and confidentiality of his
or her EEO complaint over an exclusive representative's demand for a
copy of the complaint and the employee's identity; and Airline Stewards
and Stewardesses Association, Local 550, TWU, et al. v. American
Airlines, Inc., 490 F.2d 636, 642 (7th Cir. 1973), concerning the right
of individual class members in an EEO case to exclude themselves from
class actions brought by their exclusive representative.
(6) See Internal Revenue Service (District, Region, Office Units), 19
FLRA No. 48 (1985), petition for review filed sub nom. National Treasury
Fmployees Union v. FLRA, No. 85-1597 (D.C. Cir. Sept. 20, 1985).
(7) Of course, the union may be selected as the employee's personal
representative.
(8) Such prompt notice would also appear to satisfy a union's need to
understand the agency's application of policites affecting members of
the bargaining unit and to fulfill its role as the exclusive
representative. Thus, as noted by the United States Court of Appeals
for the District of Columbia Circuit in American Federation of
Government Employees, AFL-CIO, Local 1345 v. FLRA, No. 85-1378 (D.C.
Cir. 1986), "In order to fulfill this obligation (to represent
bargaining unit employees), it is axiomatic that (the union) must be
able to inform employees of the procedures to which they are entitled
and to communicate its willingness to enforce complicance with the
bargaining agreement." (footnote omitted) slip op. at 8. The Court also
noted that since the union represents all the members of the bargaining
unit and policies established in particular personnel actions may affect
employees beyond those immediately involved, management must provide
information that is relevant to the union's need to understand new
policies or the application of old policies that may affect members of
the bargaining unit. Slip op. at 8.
(9) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(a)(5) will be referred to, simply,
as "Section 16(a)(5)."
(10) Under the EEO regulations there is an informal complaint
procedure (Jt. Exh. 2) or precomplaint procedure (Jt. Exh. 3) and if the
allegation of discrimination is not resolved at this stage, a complaint
must be submitted in writing. Once a complaint is filed, there is
further provision for informal adjustment of the complaint (Jt. Exh. 2,
Par. 6 h; Jt. Exh. 3, Section 1613.217). Here, there was no adjustment
at the informal or precomplaint stage; a complaint was filed in writing
(Union Exh. 1); and the complaint was settled pursuant to the informal
adjustment procedures.
(11) Section 3(a)(9) "'grievance' means any complaint --
"(A) by any employee concerning any matter relating to the
employment of the employee;
"(B) by any labor organization concerning any matter relating
to the employment of any employee; or
"(C) by any employee, labor organization, or agency concerning
--
(i) the effect or interpretation, or a claim of breach, of a
collective bargaining agreement; or
(ii) any claimed violation, misinterpretation, or
misapplication of any law, rule, or regulation affecting
conditions of employment;" (5 U.S.C. Section 7103(a)(9)).
Section 14(a)(2) "An exclusive representative . . . 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 practices or other general condition of employment;" (5 U.S.C.
Section 7114(a)(2)(A)).
(12) It is immaterial whether such resolution occurs during the
"Informal Complaint Procedure" or during the "Formal Complaint
Procedure."
Dated: . . . By: (signature)
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
LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT fail or refuse to give the Columbia Typographical Union
No. 101, International Typographical Union, AFL-CIO, (hereinafter
referred to as the "Union") notice of any change of conditions of
employment as the result of the settlement or adjustment, pursuant to
statutory procedure of the Equal Employment Opportunity Commission
and/or Government Printing Office Equal Opportunity Regulations,
immediately upon resolution of any EEO complaint of discrimination which
results in any change of conditions of employment of any other
bargaining unit employee and affording the Union the opportunity to
negotiate concerning appropriate arrangements for bargaining unit
employees adversely affected thereby.
WE WILL, upon request, negotiate with the Union concerning
appropriate arrangements for employees who have been, or may be,
adversely affected by the change in conditions of employment which
resulted from the settlement, pursuant to statutory provisions, of the
Equal Employment Opportunity complaint of Ms. Sylvan W. Curtis whereby
the Government Printing Office agreed to promote Ms. Curtis to the next
available vacancy of a Head Deskman-in-Charge position on any of the
three shifts in the Video Keyboard Section.
WE WILL NOT in any like or related manner, interfer with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
(Agency or Activity)
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 question concerning this Notice of compliance
with any of its provisions, they may communicate directly with the
Regional Director of the 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.