28:0796(105)CA - Bureau of Engraving and Printing and IAM Lodge 2135 -- 1987 FLRAdec CA
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The decision of the Authority follows:
28 FLRA No. 105
BUREAU OF ENGRAVING AND PRINTING Respondent and LODGE 2135, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO Charging Party Case No. 3-CA-60538-1
The Administrative Law Judge issued the attached decision in this case, finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that the Respondent be ordered to take appropriate remedial action. The Respondent has filed exceptions to the Judge's decision.
Pursuant to section 2423.29 of our Regulations and section 7118 of the Federal Service Labor - Management Relations Statute (the Statute), we have reviewed the rulings of the Judge and find that no prejudicial error was committed. The rulings are affirmed. Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.
Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Statute, the Bureau of Engraving and Printing shall: [PAGE]
1. Cease and desist from:
(a) Stating to employees that if they or their bargaining representative continue to file grievances under the negotiated grievance procedure, it will contract out work performed by the employees.
(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) Post at its facilities in Washington, D.C., copies of the attached Notice on forms furnished by the Authority. Upon receipt of the forms, they shall be signed by the Chief of the Office of Engineering and be posted and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced, or covered.
(b) Notify the Regional Director of Region III, Federal Labor Relations Authority, within 30 days from the date of this Order, in writing, as required under section 2423.30 of the Authority's Regulations, of the steps it has taken to comply.
Issued, Washington, D.C., August 31, 1987
Jerry L. Calhoun Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY [ v28 p2 ]
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT make statements to employees that if they or their bargaining representative continue to file grievances under the negotiated grievance procedure, we will contract out work performed by our employees.
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.
______________________________ (Agency or Activity) Dated: _______________ By: _______________________________ (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: 1111 18th Street, NW., 7th Floor, P.O. Box 33578, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500. [PAGE]
BUREAU OF ENGRAVING AND PRINTING Respondent and LODGE 2135, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO Charging Party Case No.: 3-CA-60538-1 Steven Bodolay, Esq. Michael Devine, Esq. For the Respondent Phillip Boyer, Esq. For the General Counsel John F. Meese, Esq. For the Charging Party Before: WILLIAM NAIMARK Administrative Law Judge
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on November 26, 1986, by the Regional Director for the Federal Labor Relations Authority, Region III, a hearing was held before the undersigned on February 3, 1987 at Washington, D.C.
This case arose under the Federal Service Labor - Management Relations Statute, 5 U.S.C. 7101, et seq., (herein called the Statute). It is based on a charge filed on September 5, 1986 by Lodge 2135, International Association of Machinists and Aerospace Workers, AFL - CIO (herein called the Union) against Bureau of Engraving and Printing (herein called the Respondent). [PAGE]
The Complaint alleged, in substance, that on or about September 3, 1986, during a grievance meeting between officials of the Union and Respondent, a management official, George Shue, stated that if the Union persisted in filing grievances, he would contract out work now being performed by unit employees.
Respondent's Answer, dated December 9, 1986, denied the essential allegations in the Complaint as well as the commission of 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-examine witnesses. There-after, 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
l. At all times material herein the Union has represented, and has been the bargaining representative of, the Respondent's machinist employees in an appropriate unit of Respondent's employees.
2. At all times material herein the Union and Respondent were parties to a collective bargaining agreement covering the aforesaid unit employees. The agreement, which was in effect at all times material herein, set forth a negotiated grievance procedure for the filing of grievances with management.
3. In 1986 Respondent created the position of electro-mach, which was a combination of the skills of machinists and electricians. As a result thereof, management found it necessary to have a cross training program. Respondent attempted to effect an orderly transfer of information, which would also require machinists to train the electro-machinists regarding the operation of certain machines. Included in the group of machines were those manufactured by Goebel, a German company.
4. Opposition to the training of those employees in the new position was voiced by the Union. The latter was desirous of obtaining an increase in pay for the machinists [ v28 p2 ] by reason of the training to be done by them. Further, the Union was concerned that their work would be taken over by the electro-machinists and a loss of jobs might ensue.
5. On September 3, 1986 the Union filed two grievances relating to the training of the electro-machinists by the machinist employees. Both were sent to George Shue, Chief of the Office of Engineering, and each alleged violation of the bargaining agreement.
6. The first grievance (G.C. Exhibit No. 2) stated that the violation occurred by "requiring machinists to train electro-machinists without regard to the rate of pay for the trainers or how the training assignment should be made." As a remedy, the Union sought pay for all machinist trainers 25% over the base machinist rate, or assign an assistant foreman to train as was decided in the "Machine Tool Operators Training Program."
7. The second grievance (G.C. Exhibit No. 3) stated that the agreement was violated by requiring machinists to be assigned and/or run calls in areas designated as "electro-machinist" areas on evenings and midnight shifts. As a remedy, it sought that Respondent pay machinists the top step of the electro-machinist pay rate.
8. A grievance meeting was held on September 3, 1986 in Shue's office with respect to the two grievances filed that morning. Attending thereat on behalf of the Union were Joseph Hebda, President of the Union, and Gerald Taylor, Grievance Committee Chairman. Both Hebda and Taylor were machinists employed by Respondent. Attending the meeting on behalf of Respondent were George Shue, William Crown, Acting Superintendent of Construction and Maintenance, 1 and Don Dickerson, Employee Relations Specialist.
9. Record facts show that the subject of training electro-machinists was discussed. Management was attempting an orderly transfer of information from the machinists, who were knowledgeable, to the trainees in the electro-mach program. Shue mentioned that, while it was preferable to have the machinists do the training, he would have to contract with machinery representatives to provide assistance if the machinists wouldn't do the task. [ v28 p3 ]
10. Although a discussion took place with respect to the grievances filed by the Union, there is a sharp dispute as to certain alleged remarks made by Shue. According to Hebda, at the close of the discussion Shue became upset with the fact that the Union grieved the proposed training of electro-machinists by the machinist employees without some pay adjustment. Hebda testified that Shue said if the Union persisted in filing grievances, he would subcontract out their work to Goebel. 2 Union Representative Taylor testified that, at the meeting on September 3, 1986, Shue stated that if the Union continued filing grievances, there's a lot more work could be contracted out; that Goebel could come in and do the machinists work. Both Hebda and Taylor testified Shue became red-faced when making these statements.
11. Both Shue and Crown denied that Shue made any statements to the effect that if grievances continued to be filed by the Union, he would contract out the work. Shue testified he pointed out that Respondent needed the information transferral; that it was more efficient to have Union members take part in it; that if he couldn't get it done within the Bureau, he would have to contract with machinery representatives to come in and provide the needed technical assistance.
12. While a clear question of credibility exists herein, the undersigned credits the version as testified to by General Counsel's witnesses. Note is taken that Respondent failed to call as a witness Don Dickerson, its Employee Relations Specialist who was present at the September 3 meeting. Further, no explanation was offered as to its failure to do so. Unfair labor practice cases in the private sector have long recognized that an adverse inference may be raised by the failure of a party to produce available evidence. See International Association of Bridge, Structure and Ornamental Ironworkers, Local 600, 134 NLRB 301, 306; Liberty Work Company, Inc., 128 NLRB 160, 169-170. Since no explanation was offered by Respondent as to the reason why Dickerson did not testify, and it does not appear that he was unavailable, I draw an adverse inference by the failure to call this management official, who was present on September 3, to testify re the statements made at the meeting. Based on this failure, as well as the directness of the Union witnesses, the demeanor of all witnesses, [ v28 p4 ] and the record testimony, I find that Shue stated he would contract out the work of the machinists if the Union persisted in filing grievances. 13. Under date of September 5, 1986 Shue sent a memorandum to Hebda denying the grievances filed by the Union as aforesaid. In substance, the Union was advised that the duties which the machinists would be called upon to assume under the training program are customarily provided to a new machinist employee, and the routine activity is not deemed to violate the collective bargaining agreement.
In determining whether statements made by management to employees constitute an infringement of Section 7116(a)(1) under the Statute, the test is whether, under the circumstances, they tend to coerce or intimidate employees. Despite the intent of the employer, if the individual could reasonably infer coercion, statements made by managerial personnel will be deemed coercive. Objective standards must be the guidelines in making such determination. Department of the Treasury, United States Customs Service, Region IV, Miami, Florida, 19 FLRA 956; Internal Revenue Service Louisville District, 11 FLRA 290.
Turning to the case at bar, I am persuaded that the statements made by Shue, as heretofore found, would necessarily tend to intimidate or coerce the employees who were present at the meeting. As Union representatives, they could reasonably anticipate adverse affects if they, as stated by Shue, continued to file grievances. Subcontracting out work, which might be performed by machinists, would necessarily affect the employees' pay as well as their security. It is an obvious threat based on continuous use of the grievance procedure. A threat of this nature is inherently destructive of an employee's rights under Section 7102 of the Statute. Such interference with the right of an employee to file and process grievances under a negotiated grievance procedure is clearly violative of the Statute. United States Department of Treasury, Bureau of Alcohol, Tobacco and Firearms, Chicago, Illinois, 3 FLRA 724. Accordingly, I conclude Respondent did, on the basis of Shue's statements to employees Hebda and Taylor on September 3, 1986 re the filing of grievances, violate Section 7116(a)(1) of the Statute.
Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following: [ v28 p5 ]
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 Bureau of Engraving and Printing shall:
1. Cease and desist from:
(a) Stating to employees that if they or their bargaining representative continues to file grievances under the negotiated grievance procedure, it will contract out work performed by the employees.
(b) In any like or related manner interfering with, restraining o