09:0421(51)CA - Library of Congress and Congressional Research Employees Association (CREA), Independent -- 1982 FLRAdec CA



[ v09 p421 ]
09:0421(51)CA
The decision of the Authority follows:


 9 FLRA No. 51
 
 LIBRARY OF CONGRESS
 Respondent
 
 and
 
 CONGRESSIONAL RESEARCH
 EMPLOYEES ASSOCIATION (CREA),
 INDEPENDENT
 Charging Party
 
                                            Case No. 3-CA-582
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
 TO A REGIONAL DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN
 ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2429.1(A)).
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS
 SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, THE AUTHORITY
 FINDS:
 
    THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT LIBRARY OF CONGRESS
 (LIBRARY) VIOLATED SECTION 7116(A)(1) AND (5) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) BY REFUSING TO BARGAIN
 IN GOOD FAITH WITH THE CHARGING PARTY, CONGRESSIONAL RESEARCH EMPLOYEES
 ASSOCIATION (CREA), ON AND AFTER SEPTEMBER 10, 1979, CONCERNING CREA'S
 PROPOSED CHANGES IN THE LIBRARY'S FISCAL YEAR 1980 AFFIRMATIVE ACTION
 PLAN.
 
    AT ALL TIMES MATERIAL HEREIN, THE LIBRARY HAS RECOGNIZED CREA AS THE
 COLLECTIVE BARGAINING REPRESENTATIVE OF A UNIT OF ALL PROFESSIONAL AND
 NONPROFESSIONAL EMPLOYEES OF THE CONGRESSIONAL RESEARCH SERVICE, WITH
 THE USUAL STATUTORY EXCLUSIONS.  ON JUNE 22, 1979, THE LIBRARY SUBMITTED
 ITS PROPOSED AFFIRMATIVE ACTION PLAN FOR FISCAL YEAR 1980 TO CREA.  BY
 VIRTUE OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, THE LIBRARY WAS
 REQUIRED TO HAVE ITS 1980 AFFIRMATIVE ACTION PLAN IN PLACE BY OCTOBER 1,
 1979.  CREA RESPONDED WITH PROPOSALS CONCERNING THE AFFIRMATIVE ACTION
 PLAN ON SEPTEMBER 10, 1979, AND THE PARTIES MET ON SEPTEMBER 27 AND 28,
 AT WHICH TIMES THE LIBRARY CONSIDERED THE UNION PROPOSALS IN GOOD FAITH,
 BUT DECLINED TO NEGOTIATE WITH CREA BEFORE IMPLEMENTING ITS PLAN.  SINCE
 ON OR ABOUT SEPTEMBER 10, 1979, AND CONTINUING TO DATE, THE LIBRARY HAS
 REFUSED AND CONTINUES TO REFUSE TO BARGAIN IN GOOD FAITH CONCERNING THE
 CREA'S PROPOSED CHANGES IN THE FISCAL YEAR 1980 AFFIRMATIVE ACTION PLAN.
 
    WHILE CONCEDING THAT PROPOSALS RELATING TO DISCRIMINATION IN
 EMPLOYMENT ARE WITHIN THE SCOPE OF THE DUTY TO BARGAIN UNDER THE
 STATUTE, /1/ AND STIPULATING AS TO ITS REFUSAL TO BARGAIN, AS STATED
 ABOVE, THE LIBRARY RAISES THREE AFFIRMATIVE DEFENSES.  FIRST, THE
 LIBRARY CONTENDS THAT THE PARTIES' AGREEMENT, CONSISTENT WITH THEIR PAST
 PRACTICE, MERELY OBLIGATES THE LIBRARY TO CONFER WITH CREA ON ASPECTS OF
 THE LIBRARY'S AFFIRMATIVE ACTION PLANS AND TO CONSIDER IN GOOD FAITH ALL
 PROGRAMS PROPOSED BY CREA FOR INCLUSION THEREIN, BUT DOES NOT REQUIRE
 THE LIBRARY TO BARGAIN WITH CREA ABOUT SUCH PROPOSED PROGRAMS.  IN THIS
 REGARD, THE LIBRARY ASSERTS THAT ITS REFUSAL TO BARGAIN IS BASED UPON A
 REASONABLE INTERPRETATION OF THE PARTIES' AGREEMENT, AND THEREFORE IS
 NOT A CLEAR UNILATERAL BREACH OF CONTRACT SO AS TO SUPPORT AN UNFAIR
 LABOR PRACTICE FINDING BUT RATHER INVOLVES A DISPUTE OVER THE MEANING OF
 THE AGREEMENT WHICH IS APPROPRIATE FOR RESOLUTION BY AN ARBITRATOR.
 SECONDLY, IT IS ASSERTED THAT, "(W)HILE THE LIBRARY WOULD ORDINARILY BE
 OBLIGED TO BARGAIN WITH THE CREA ABOUT AFFIRMATIVE ACTION PLANS UNDER
 THE STATUTE (SEE AIR FORCE LOGISTICS COMMAND, SUPRA), THE CREA HAS MADE
 A CLEAR AND UNMISTAKABLE WAIVER OF THIS STATUTORY RIGHT." /2/ IN THIS
 CONNECTION, THE LIBRARY ASSERTS THAT, BY AGREEING TO ENGAGE IN INTEREST
 ARBITRATION, "CREA WAIVED ANY (SUCH STATUTORY) RIGHTS WHICH MIGHT BE
 DIMINISHED BY (THE) ARBITRATOR . . . ." FINALLY, THE LIBRARY CONTENDS
 THAT ITS AFFIRMATIVE ACTION PLAN FOR FISCAL YEAR 1980 CONTAINED NO
 PROPOSED CHANGES IN THE 1979 PLAN AND THEREFORE NO DUTY TO BARGAIN
 EXISTED WITH RESPECT TO CHANGES PROPOSED BY THE CREA.
 
    THE AUTHORITY FINDS THAT THE CONTENTIONS SET FORTH ABOVE CANNOT BE
 SUSTAINED, AND THEREFORE CONCLUDES THAT THE LIBRARY'S CONCEDED REFUSAL
 TO BARGAIN CONCERNING A NEGOTIABLE MATTER CONSTITUTES A VIOLATION OF
 SECTION 7116(A)(1) AND (5) OF THE STATUTE, AS ALLEGED.  THUS, AT THE
 TIME THAT CREA REQUESTED AND THE LIBRARY REFUSED TO NEGOTIATE CONCERNING
 THE AFFIRMATIVE ACTION PLAN FOR FISCAL YEAR 1980, THERE WAS NO AGREEMENT
 YET IN EFFECT BETWEEN THE PARTIES.  /3/ NOR DOES THE RECORD INDICATE
 THAT THE LIBRARY ASSERTED THE EXISTENCE OF AN AGREEMENT AS THE BASIS FOR
 REFUSING THE REQUEST BY CREA TO NEGOTIATE CONCERNING CHANGES IN THE
 AFFIRMATIVE ACTION PLAN FOR FISCAL YEAR 1980.  MOREOVER, THE LIBRARY'S
 APPARENT RELIANCE ON PAST PRACTICE AS THE BASIS FOR REFUSING TO BARGAIN
 WITH THE CREA CONCERNING THE FY 1980 AFFIRMATIVE ACTION PLAN IS
 SIMILARLY MISPLACED, NOTING PARTICULARLY THE PARTIES' STIPULATION THAT
 "(T)HE RESPONDENT NEGOTIATED WITH THE UNION OVER RESPONDENT'S PROPOSED
 CHANGES IN THE AFFIRMATIVE ACTION PLANS FOR FISCAL YEAR 1979 AND FISCAL
 YEAR 1978 . . . ."
 
    AS TO THE LIBRARY'S RELATED ARGUMENT THAT THE CREA WAIVED ITS RIGHT
 TO NEGOTIATE CONCERNING THE AFFIRMATIVE ACTION PLAN FOR FY 1980 BY
 SUBSEQUENTLY EXECUTING THE AGREEMENT PROPOSED BY THE INTEREST
 ARBITRATOR, THE AUTHORITY HAS PREVIOUSLY HELD THAT "A WAIVER WILL BE
 FOUND ONLY IF IT CAN BE SHOWN THAT THE EXCLUSIVE REPRESENTATIVE CLEARLY
 AND UNMISTAKABLY WAIVED ITS RIGHT TO NEGOTIATE." DEPARTMENT OF THE AIR
 FORCE, U.S. AIR FORCE ACADEMY, 6 FLRA NO. 100 (1981);  DEPARTMENT OF THE
 AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS, 5 FLRA NO. 2 (1981).  IN THE
 INSTANT CASE, THERE IS NOTHING IN THE RECORD TO INDICATE THAT CREA
 CONSCIOUSLY YIELDED ITS RIGHT TO NEGOTIATE CONCERNING THE 1980
 AFFIRMATIVE ACTION PLAN EITHER BY THEREAFTER EXECUTING AN AGREEMENT
 CONTAINING THE LANGUAGE SET FORTH AT N. 2, SUPRA, OR BY PREVIOUSLY
 AGREEING TO PARTICIPATE IN INTEREST ARBITRATION.
 
    FINALLY, WITH RESPECT TO THE ASSERTION THAT NO DUTY TO BARGAIN AROSE
 BECAUSE THE LIBRARY MADE NO CHANGE IN THE PREVIOUS AFFIRMATIVE ACTION
 PLAN, THE RECORD INDICATES THAT A NUMBER OF SUBSTANTIAL CHANGES WERE
 MADE.  /4/ IN ANY EVENT, THE LIBRARY'S CONTENTION THAT IT HAD NO DUTY TO
 BARGAIN WITH REGARD TO CHANGES IN CONDITIONS OF EMPLOYMENT PROPOSED BY
 THE CREA BUT ONLY WITH REGARD TO CHANGES PROPOSED BY THE LIBRARY IS
 CLEARLY INCONSISTENT WITH THE DEFINITION AND PURPOSE OF "COLLECTIVE
 BARGAINING" UNDER THE STATUTE, /5/ AND THEREFORE CANNOT BE SUSTAINED.
 
    ACCORDINGLY, AS THE LIBRARY HAS STIPULATED ITS REFUSAL TO BARGAIN ON
 THE MATTER AT ISSUE, THE AUTHORITY CONCLUDES THAT THE LIBRARY FAILED AND
 REFUSED TO NEGOTIATE WITH CREA FROM SEPTEMBER 10, 1979 IN VIOLATION OF
 SECTION 7116(A)(1) AND (5) OF THE STATUTE.
 
                                 ORDER /6/
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE RESPONDENT LIBRARY OF CONGRESS,
 WASHINGTON, D.C. SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) ESTABLISHING OR IMPLEMENTING CHANGES IN AFFIRMATIVE ACTION PLANS
 WITHOUT FIRST AFFORDING CONGRESSIONAL RESEARCH EMPLOYEES ASSOCIATION
 (CREA), INDEPENDENT, EXCLUSIVE REPRESENTATIVE OF A UNIT OF RESPONDENT'S
 EMPLOYEES, NOTICE AND OPPORTUNITY TO BARGAIN CONSONANT WITH THE
 OBLIGATIONS IMPOSED BY THE STATUTE.
 
    (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 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) UPON REQUEST OF THE CONGRESSIONAL RESEARCH EMPLOYEES ASSOCIATION
 (CREA), INDEPENDENT, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF THE
 RESPONDENT'S EMPLOYEES, BARGAIN CONSONANT WITH THE OBLIGATIONS IMPOSED
 BY THE STATUTE CONCERNING THE ESTABLISHMENT OF OR IMPLEMENTATION OF
 CHANGES IN AFFIRMATIVE ACTION PLANS.
 
    (B) POST AT ITS WASHINGTON, D.C. FACILITY 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
 LIBRARIAN OF CONGRESS, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL
 BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE LIBRARIAN OF CONGRESS SHALL TAKE REASONABLE
 STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
 BY ANY OTHER MATERIAL.
 
    (C) NOTIFY THE REGIONAL DIRECTOR OF REGION III, IN WRITING, WITHIN 30
 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO
 COMPLY HEREWITH.  
 
 ISSUED, WASHINGTON, D.C., JULY 13, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
            CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
 
                    HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT ESTABLISH OR IMPLEMENT CHANGES IN AFFIRMATIVE ACTION PLANS
 WITHOUT FIRST AFFORDING CONGRESSIONAL RESEARCH EMPLOYEES ASSOCIATION
 (CREA), INDEPENDENT, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF OUR
 EMPLOYEES, NOTICE AND OPPORTUNITY TO BARGAIN CONSONANT WITH THE
 OBLIGATIONS IMPOSED BY THE STATUTE.  WE WILL NOT IN ANY LIKE OR RELATED
 MANNER INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE EXERCISE
 OF THEIR RIGHTS ASSURED BY THE STATUTE.  WE WILL, UPON REQUEST OF THE
 CONGRESSIONAL RESEARCH EMPLOYEES ASSOCIATION (CREA), INDEPENDENT, THE
 EXCLUSIVE REPRESENTATIVE OF A UNIT OF OUR EMPLOYEES, BARGAIN CONSONANT
 WITH THE OBLIGATIONS IMPOSED BY THE STATUTE CONCERNING THE ESTABLISHMENT
 OF OR IMPLEMENTATION OF CHANGES IN AFFIRMATIVE ACTION PLANS.
 
                                  . . .
 
                           (AGENCY OR ACTIVITY)
 
 DATED:  . . . BY:  (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60
 CONSECUTIVE DAYS FROM THE DATE OF POSTING, AND MUST NOT BE ALTERED,
 DEFACED, OR COVERED BY ANY OTHER MATERIAL.  IF EMPLOYEES HAVE ANY
 QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ANY OF ITS
 PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR,
 REGION III, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:  1111
 18TH STREET, N.W., SUITE 700, WASHINGTON, D.C.  20036, AND WHOSE
 TELEPHONE NUMBER IS:  (202) 653-8452.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
 FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA
 603, 615-619 (1980), ENFORCED AS TO OTHER MATTERS SUB NOM. DEPARTMENT OF
 DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR.
 1981), CERT. DENIED SUB NOM. AFGE V. FLRA, 50 LW 3669 (1982).
 
    /2/ ARTICLE XI, SECTION 3 OF THE PARTIES' AGREEMENT PROVIDES AS
 FOLLOWS:
 
    SECTION 3.  THE LIBRARY AGREES TO MEET AT REASONABLE TIMES NORMALLY
 AT LEAST 90 DAYS PRIOR
 
    TO PROPOSED IMPLEMENTATION OF AFFIRMATIVE ACTION PLANS AND CONFER IN
 GOOD FAITH WITH RESPECT
 
    TO ASPECTS OF SUCH PLANS AND PROGRAMS WHICH AFFECT PERSONNEL POLICIES
 AND PRACTICES AND
 
    MATTERS AFFECTING WORKING CONDITIONS.  THE LIBRARY AGREES TO PROVIDE
 OPPORTUNITY FOR
 
    PARTICIPATION BY THE ASSOCIATION IN THE DEVELOPMENT OF ALL
 AFFIRMATIVE ACTION PLANS AND TO
 
    INSURE GOOD FAITH CONSIDERATION OF ALL SUGGESTED PROGRAMS PROPOSED BY
 THE ASSOCIATION FOR
 
    INCLUSION IN SUCH PLANS.  THE LIBRARY AGREES TO MEET REASONABLE
 REQUESTS FOR NON-PRIVILEGED
 
    AND NON-CONFIDENTIAL DATA RELEVANT AND NECESSARY TO ASSIST IN SUCH
 CONSIDERATIONS WITHIN
 
    REASONABLE TIME.
 
    /3/ THE RECORD INDICATES THAT THE AGREEMENT, INCLUDING ARTICLE XI,
 SECTION 3 UPON WHICH THE LIBRARY RELIES (SUPRA N. 2), WAS EXECUTED ON
 SEPTEMBER 20, 1979, AND ONLY BECAME EFFECTIVE 60 DAYS THEREAFTER.
 
    /4/ FOR EXAMPLE, THE LIBRARY'S PROPOSED 1980 AFFIRMATIVE ACTION PLAN
 CONTAINED TWO LESS TRAINING, APPRAISAL AND PROMOTION (TAP) POSITIONS
 THAN THE PLAN FOR FISCAL YEAR 1979, AND ALSO BEGAN A POLICY OF
 ALLOCATING 75% OF THE TUITION SUPPORT PROGRAM TO UNDERGRADUATES AND 25%
 TO GRADUATES.
 
    /5/ SECTION 7103(A)(12) OF THE STATUTE PROVIDES:
 
    SEC. 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
    (12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
 OBLIGATION OF THE
 
    REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
 EMPLOYEES IN AN APPROPRIATE
 
    UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
 BARGAIN IN A GOOD-FAITH
 
    EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
 EMPLOYMENT AFFECTING SUCH
 
    EMPLOYEES AND TO EXECUTE, IF REQUESTED BY EITHER PARTY, A WRITTEN
 DOCUMENT INCORPORATING ANY
 
    COLLECTIVE BARGAINING AGREEMENT REACHED, BUT THE OBLIGATION REFERRED
 TO IN THIS PARAGRAPH DOES
 
    NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR TO MAKE A
 CONCESSION(.)
 
    SEE, GENERALLY, SECTION 7101 OF THE STATUTE REGARDING THE FINDINGS
 AND PURPOSE OF CONGRESS RELATING TO COLLECTIVE BARGAINING FOR FEDERAL
 EMPLOYEES.
 
    /6/ INASMUCH AS THE LIBRARY'S AFFIRMATIVE ACTION PLAN FOR FISCAL YEAR
 1980 HAS EXPIRED, THE AUTHORITY FINDS T