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BAILEY v. DIMARIO

April 28, 1995

RONALD E. BAILEY, et al., Plaintiffs,
v.
MICHAEL DIMARIO, Public Printer of the United States, Defendant.



The opinion of the court was delivered by: GREENE

 Findings of Fact

 This action was commenced on August 16, 1991 by seventeen individual plaintiffs employed by the United States Government Printing Office ("GPO"). At the time the complaint was filed, the plaintiffs were all employed by GPO as Video Keyboard Operators in the Video Keyboard Section ("VKS") of the Electronic Photocomposition Division ("EPD").

 At the time the complaint was filed, the original defendant, Robert W. Houk, was the Public Printer at GPO, the agency's chief executive officer. At the time of trial, the present defendant, Michael F. DiMario, the Deputy Public Printer, was substituted as the name defendant by operation of Fed. R. Civ. P. 25(d). On November 23, 1993, Mr. DiMario became the Public Printer. By the time of trial, the claims of five defendants (Bailey, Boggins, Hawkins, Jordan, and Richardson) were dismissed.

 By the time of trial, plaintiffs Bell, Bullock, Haygan, and Nelson were promoted to journeyman positions after graduating from apprentice training programs in 1971, 1972, and 1973. Plaintiffs Hill and Turner became journeymen in 1981 as a result of their selection for and completion of a two-year training program to retrain Monotype Castermen for the journeyman position of Monotype Keyboard Operator. This program was the result of a settlement agreement in a Title VII class action against GPO known as Brewington, et al. v. Boyle, C.A. No. 78-1290 (D.D.C.) ("Brewington") and was agreed to by CTU. Plaintiffs Cave, Gay, Hill, Munford, Murriel, Rogers, Skipworth, and Turner formerly held the non-journeyman position of Monotype Casterman. They became journeymen at various times between October 16, 1983 and January, 1984 as a result of their selection for and completion of a two-year training program to retrain Monotype Castermen and other non-journeymen GPO employees for this journeyman position. Plaintiffs Cave, Gay, Hill, Munford, Murriel, Rogers, and Skipworth became Video Keyboard Operators upon their graduation from this program. Other than plaintiff Munford, none of the plaintiffs contend they suffered any economic harm as a result of purported discriminatory practices alleged in their complaint, and none seek monetary relief.

 On November 1, 1989, plaintiff Munford executed a Settlement Agreement, under which he was given the right to choose freely between two settlement options. After he executed the Settlement Agreement, GPO paid to plaintiff Munford, and he accepted, all monies due to him under the agreement. In neither his Informal EEO Complaint nor his Formal EEO Complaint, nor in his Affidavit before the EEO Investigator, did plaintiff Munford ever indicate that he was seeking back pay in what became this action. At trial, plaintiffs' counsel conceded to the Court that plaintiff Munford was not identified in the Complaint as an individual plaintiff who was seeking back pay.

 Plaintiffs were members of a class of GPO employees whose claims were prosecuted in a case known as MacRae v. McCormick, 458 F. Supp. 970 (D.D.C.) ("MacRae"). MacRae was prosecuted on behalf of

 
All current black employees of the Composing Division of the Government Printing Office in the metropolitan Washington, D.C. area who have applied for and have been, subsequent to March 24, 1972, or are being denied promotions, training opportunities, or transfers because of defendant's allegedly discriminatory practices and policies.

 Judgment in that case was entered for GPO "on all claims before the court." MacRae v. McCormick, 458 F. Supp. 970, 21 Fair Empl. Prac. Cas. (BNA) 100, 102, 110 (D.D.C. July, 1978), aff'd sub nom., McRae v. Boyle, No. 79-1753 (June 24, 1979).

 Plaintiffs Cave, Gay, Hill, Munford, Murriel, Rogers, Skipworth and Turner were Brewington class action members and considered themselves plaintiffs; as did most of the plaintiffs herein. The class in Brewington consisted of all past and present black employees of the GPO who have been employed as monotype castermen and have had their opportunities affected by GPO practices and policies, or have been reprised against for attempting to exercise their Title VII rights. The Brewington case was settled on March 26, 1979 and "all allegations and claims against the GPO" were withdrawn "with prejudice." The "Settlement Agreement and General Release" was individually signed by all of the plaintiffs and class members, other than plaintiff Murriel. Prior to their settlement, counsel for the Brewington class informed the Monotype Castermen that they would be unable to "sue the Government Printing Office for the conditions that were the basis of the Brewington case."

 The Columbia Typographical Union ("CTU") is a labor organization affiliated with the International Typographical Union ("ITU"). It is and has been throughout this litigation the collective bargaining representative for GPO employees holding journeyman printer positions. CTU was joined on May 21, 1993 as a non-aligned party in this case, in response to GPO's consent motion, pursuant to Fed. R. Civ. P. 19. Joinder was sought because "the central thrust of the complaint is a challenge to the use of a priority system as the means of assigning work on periodic bases to agency employees."

 Except for a night-shift differential of 15%, all journeymen printers within the CTU bargaining unit receive the same rate of pay. The collective bargaining agreement between GPO and CTU provides for a selection system for journeymen employees seeking transfers between shifts or to fill lateral vacancies within shifts which is based upon "priority." This system is contained in Article VII of the Memorandum of Understanding ("MOU") which provides, inter alia, that volunteers for transfers will be selected according to their continuous priority as journeymen in the GPO, provided they can meet the requirements for the position. The date than an employee became a journeyman at GPO is known as the journeyman "priority" date. The priority date reflects the date an individual commenced their job in EPD and does not reflect the number of years they may have been a journeyman printer working in another location or division at GPO or for another employer. Article VII of the MOU (journeyman priority) applies to all initial appointments, reinstatements, assignments, reassignments or vacancies.

 The term "hook work" refers to keyboarding work assignment involving mainly the in-putting of raw data onto the system. There are hook work assignments on each of the three shifts within VKS. Priority is not and has never been related to hook work.

 The title of "journeyman" is used throughout the world. It indicates that the individual has been thoroughly trained in the craft of printing. The journeyman priority concept in its present form was adopted by the CTU convention in 1896. A journeyman's "priority" is based upon the date that the journeyman printer began working at a particular location. Thus, when a journeyman leaves one location and moves to another, he does not carry the former priority date with him. Instead, he receives a new priority date at the new work site. The use of priority as a primary vehicle for making lateral shift and assignment decisions at GPO has been included in the parties' collective bargaining agreement in its present form since December, 1972.

 Plaintiffs make no claim that the priority system was developed to intentionally discriminate against them. Historically, at GPO, an individual's priority date represented the date on which that employee achieved journeyman status at GPO, either by way first hire in the case of an individual who was already a journeyman printer, or the date an individual completed a formal GPO apprenticeship training program. This was changed in the late 1980's or early 1990's when the ITU amended its constitution to provide that an individual's journeyman priority date should begin with the date they began their apprenticeship training program, rather than the date they completed the program. Insofar as CTU is a Local affiliated with the ITU, it subsequently amended its constitution and by-laws to conform to this change. This change was not retroactive, and affected only GPO employees who became journeymen after this change was adopted. If a GPO employee was already a journeyman at the time of this change, the employee, whether black or white, retained his or her original priority date. Plaintiffs were unaffected by this change, because their priority dates all precede this change in rules.

 An individual may achieve "journeyman" status, and thus priority, at GPO either because he or she is already a journeyman at the time he or she is hired, or because he or she becomes a journeyman after being employed by GPO either through a formal apprenticeship or through an apprenticeship training program for the graphic arts. An individual can make a formal application for a position in a GPO apprenticeship program, in response to an official "job announcement." Job announcements, in the form of letters or personnel bulletins were posted at GPO as well as published nationwide.

 Historically, selection for a position in the apprentice program at GPO has always been highly competitive. Traditionally applicants were required to pass a nationwide examination for apprenticeships in the graphic arts which was administered by the United States Civil Service Commission. This examination was open to "all interested persons regardless of race, religion, creed, sex or national origin." In addition to passing the examination with a minimum score of 70, applicants were required to obtain and submit formal supervisory recommendations. Successful candidates were ranked according to test scores and by supervisory recommendations and selected from a list beginning with the individual who ranked the highest and continuing seriatim down the list until the requisite number of positions were filled. An individual who was employed at GPO could be selected for one of several positions within the apprentice program that were set aside for GPO employees. These positions were competitive within GPO. The GPO employees seeking these positions were still required to take and pass the national examination and to submit the required application materials, including supervisory evaluations, in accordance with the official job announcement. All GPO employees who applied for these set aside apprentice positions were ranked based upon their test scores and upon rankings established by other factors such as supervisory recommendations. Based upon these factors, employees were rated "best qualified," "better qualified" and "qualified." An individual at GPO could also be selected for apprentice training. "Trainees" were selected as the result of their score on the examination and evaluations by their supervisors and were also ranked on a registry. As vacancies occurred, names were referred from the training registry in rank order beginning with the individual with the highest score. These lists contained as many as 200 names.

 A rank order list would normally remain effective for a period of about one year. It was used until another examination was given for the position. Once a new examination was given, the old list was abolished. CTU plays no role in determining whether an individual is accepted in the GPO apprenticeship program, and has never done so. For many years, the content and structure of the GPO journeyman printer apprentice program was the subject of periodically negotiated agreements between GPO and CTU, and was incorporated in the MOU. During this period, CTU participated in the structure of the GPO apprenticeship training program, and CTU's members (who were journeymen printers) were instructors and advisors in the apprentice program.

 The position of Monotype Casterman was a non-journeyman semi-skilled position in the Composing Room which involved operation of a monotype casting machine used to cast "hot metal" type. The Monotype Casterman position was never a journeyman position at GPO or in the printing industry in general. A Monotype Casterman was not trained in the full range of skills involved in the printing trade and was not able to perform any other position outside the Casting Room.

 Non-journeyman positions such as the Monotype Casterman were always paid on a different salary scale at GPO that was less than the journeyman wage scale, but higher than many others non-craft jobs. After December, 1973, the GPO paid the Monotype Casterman according to a wage scale based upon 70% of the journeyman wage scale. Monotype Casterman were selected for these positions based upon their scores on a written examination.

 The printing and graphic arts industry has changed substantially over the years, and the skills required to perform this craft have also undergone a sweeping change, as technology has revolutionized many aspects of the printing craft. Prior to the late 1970s and early 1980s, most printing was done using "hot type" or "hot metal," methods which have since been substantially phased out and replaced by electronic equipment known as "cold type." When the transition from "hot type" to "cold type" occurred, the job skills possessed by employees holding traditional journeyman positions as well as Monotype Casterman were not longer relevant or necessary at GPO's Composing Division. Primarily as a result of the transition from "hot type" to "cold type," GPO's Composing Division was replaced by the Electronic Photocomposition Division. Virtually every Composing Room employee was affected by the transitions and changes resulting from the new technology. At the time of trial, EPD employed only approximately 600 employees, while approximately 1,500 had been employed by the Composing Division when the transition began. The change in technology also meant that GPO did not hire anyone into EPD from the mid-1970s until 1987.

 Although the changes from hot metal composition to electronic photocomposition meant that much of the work to be done and prior training received by journeyman and non-journeyman employees was or would soon become obsolete at GPO, none of the approximately 1,500 working in the Composing Room at the time of transition from "hot type" to "cold type" lost their jobs.

 On October 4, 1982, after a lengthy period of negotiations, CTU and GPO agreed on a training program, applicable to all of the remaining Monotype Castermen, that enabled them to obtain training to become journeymen employees at GPO in the Video Keyboard Section. This October 4, 1982 agreement, which was sometimes known as the Video Keyboard Training Agreement, provided training for all non-journeyman employees whose work was being eliminated as the result of the transition from "hot type" to electronic data processing. It amended a prior training agreement dated December 23, 1981. It provided that any employee serving as of October 1, 1982 in the sub-craft positions of Monotype Casterman, Saw Operator, Slide Bank Operator, Sorts Casterman, Matrix Keeper, Spool Deskman or Monotype Machinist was eligible for training for reassignment as a Photocomposition Keyboard Operator Trainee provided that an application was submitted by October 17, 1982. Employees who successfully completed the training program were to be "assigned to the EPD Keyboard Section in accordance with Article VII of the Memorandum of Understanding."

 The journeyman priority system operates in the same manner on all three shifts within the EPD. The journeyman priority system operates in the same manner in the proof room as it does in VKS. The concept, role, and operation of the journeyman priority system is well known within the printing craft and among GPO employees.

 At GPO, priority lists are maintained by CTU for each applicable shift in EPD. The priority lists have also been posted by CTU on large bulletin boards located in each Section within the Composing Room and/or EPD. Each BPD Section is also known as a "Chapel" within CTU, a term which dates back to the days when printing was done in a church setting. A new priority list is generated each time there is a change of personnel by way of filing an opening or transferring to a different shift. That list is posted on the Section bulletin board, replacing the earlier priority list. In addition to the posted priority lists, also posted on Section bulletin boards are all notices of job openings and job opportunities which may be claimed by use of journeyman priority. All "Notices of Vacancy(ies)" refer to Article VII of the MOU and state, inter alia, that "Vacancy(ies) will be filled by priority from volunteers." An individual who wishes to volunteer for ("claim") a job opening or shift assignment which has been posted on the Section bulletin board must file a written claim for the position within 72 hours of the time the Notice has been posted. An individual who wishes to claim a vacant position on any shift may also submit transfer forms to the Chair of the Chairman's Chapel. These forms, which are effective for 90 days, are considered in the event a transfer opportunity arises during that period in the same manner as if an employee had filed a written claim within the 72 hour period after posting. If an employee who has completed a transfer form has the highest priority date of those filing written claims, and the appropriate job qualifications, then he or she will receive the position. Transfer requests must be renewed at the end of 90 days.

 In the event there are not enough volunteers to fill an opening on a shift, employees are drafted. Employees with the lowest priority in EPD are drafted first for the opening.

 Overtime assignments tend to occur most frequently on the second shift and on the third shift. Substantial hook work is required to be done by those who undertake overtime assignments; ranging between 50% and 90% of the work to be done on overtime. In this case, all of the plaintiffs have chosen voluntarily to work overtime assignments, knowing it would involve substantial hook work. Priority plays no role in an employee's selection for an overtime ...


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