23:0035(6)CA - Government Printing Office and Columbia Typographical Union No. 101 ITU -- 1986 FLRAdec CA



[ 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 con