15:0589(128)CA - Library of Congress and Congressional Research Employees Association -- 1984 FLRAdec CA



[ v15 p589 ]
15:0589(128)CA
The decision of the Authority follows:


 15 FLRA No. 128
 
 LIBRARY OF CONGRESS
 Respondent
 
 and
 
 CONGRESSIONAL RESEARCH EMPLOYEES
 ASSOCIATION
 Charging Party
 
                                            Case No. 3-CA-2540
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent, Library of
 Congress, had engaged in certain unfair labor practices alleged in the
 complaint, and recommending that it cease and desist therefrom and take
 certain affirmative action.  Thereafter, the Respondent filed exceptions
 to the Judge's Decision and the Charging Party, Congressional Research
 Employees Association, filed an opposition to the Respondent's
 exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order, as modified below.
 
    The complaint alleged, essentially, that the Respondent violated
 section 7116(a)(1) and (5) of the Statute by failing to provide the
 Charging Party with adequate notice and an opportunity to bargain
 concerning the decision to effect a change in the system of operating
 microwave ovens for use by unit employees as well as the procedures
 leading to the implementation of the change and its impact on adversely
 affected employees.
 
    The Judge found that Respondent is subject to provisions of the
 Randolph Sheppard Act, 20 U.S.C. 107 et seq., and implementing
 regulations of the Department of Health and Human Services, 45
 C.F.R.Part 1369, which provide for the operation of vending stands by
 the blind in Federal buildings.  Since 1945 the Respondent has been
 party to an agreement for a vending stand with The Vocational
 Rehabilitation Service of the District of Columbia (hereinafter District
 Enterprises for the Blind, Inc.).  The Judge found that a new vending
 company which had been contracted by the District Enterprises for the
 Blind, Inc. to provide food services in one of the Respondent's
 facilities housing approximately 3,000 employees, installed a system
 whereby tokens which were attached to certain food items purchased in
 the company's vending machines were needed to operate the microwave
 ovens.  Previously, a different vending company had provided microwave
 ovens which did not operate on a token system and which were used free
 of charge by unit employees who brought food from outside sources as
 well as by those employees who bought food from the vendor's machine.
 
    The Judge concluded, in essence, that the change to the token system
 of operation constituted a change in an established condition of
 employment and that the Respondent's failure to afford the Charging
 Party reasonable notice thereof and an opportunity to request
 negotiations concerning impact and implementation before the change was
 effectuated constituted a violation of section 7116(a)(1) and (5) of the
 Statute.  He found that while it was the new vending company which had
 effected the change in the method of microwave oven operation, the
 record clearly established that the Respondent could make requests and
 recommendations to the vending company regarding its services and in
 fact had done so in the past.
 
    In agreement with the Judge, the Authority finds that the change to
 the token system of operation from the use of microwave ovens by unit
 employees free of charge constituted a change in an established
 condition of employment.  The Respondent does not dispute that the
 introduction of the token system constituted a change in conditions of
 employment for unit employees but argues that it had no duty to bargain
 over changes in conditions of employment which are within the control of
 an independent party, in this case, the vending company.  However, the
 Authority has previously held, in situations where agencies have
 assertedly lacked control over the decision to effectuate various
 proposed changes in their employees' conditions of employment and have
 therefore contended that they had no bargaining obligation with regard
 to those changes, that the Statute requires these agencies to bargain to
 the extent of their discretion over such proposed changes even if that
 discretion is limited to making requests or recommendations to the
 entity which does have decision-making authority.  See American
 Federation of State, County and Municipal Employees, AFL-CIO, Local 2477
 and Library of Congress, Washington, D.C., 7 FLRA 578 (1982), enforced
 sub nom. Library of Congress v. Federal Labor Relations Authority, 699
 F.2d 1280 (D.C. Cir. 1983);  American Federation of Government
 Employees, AFL-CIO, Local 51 and Department of the Treasury, Bureau of
 the Mint, U.S. Assay Office, San Francisco, California, 9 FLRA 809
 (1982);  Internal Revenue Service, Chicago, Illinois, 9 FLRA 648 (1982);
  American Federation of Government Employees, AFL-CIO, Local 32 and
 Office of Personnel Management, Washington, D.C., 8 FLRA 409 (1982).  In
 the instant case, there is no indication in the record that the
 Respondent's ability to negotiate regarding the subject matter of access
 by employees to microwave ovens was precluded or limited by law or
 regulation.  Therefore, upon learning of the vending company's decision
 to install the token system of operating the microwave ovens, the
 Respondent was obligated to notify the Charging Party of the impending
 change and, upon request, bargain over the change in an established
 condition of employment-- i.e., continued access by unit employees to
 microwave ovens free of charge.  The Respondent's failure to fulfill its
 bargaining obligation in this regard over the change in microwave oven
 access, as well as the implementation of such change and the impact
 thereof on unit employees constituted a violation of section 7116(a)(1)
 and (5) of the Statute.  /1/
 
    The Authority further concludes that the Judge's finding of a section
 7116(a)(1) and (5) violation based on the Respondent's furnishing of
 false and misleading information to the Charging Party relative to the
 Respondent's role in effecting the installation of the token system is
 not properly before the Authority inasmuch as the complaint did not
 contain such an allegation, and the General Counsel never sought to
 amend the complaint at the hearing as permitted by section 2423.12(d) of
 the Authority's Rules and Regulations.  Accordingly, without passing on
 whether the Respondent's conduct would have constituted an additional
 unfair labor practice, the Authority cannot adopt this portion of the
 Judge's Decision.
 
    To remedy the unfair labor practice conduct herein, and noting
 particularly the Respondent's failure to bargain over the substance of
 the decision and the Judge's findings on the impact on unit employees,
 the Authority finds that it will effectuate the purposes and policies of
 the Statute to order a status quo ante remedy, i.e., restoration of the
 practice whereby unit employees have the use of a microwave oven free of
 charge.  In this regard, the Authority shall order the Respondent to
 restore, by whatever means it might find suitable consistent with
 applicable law and regulation, free access to a microwave oven for unit
 employees.  The Respondent has not contended that it would in any manner
 be precluded from complying with such an order.  See Internal Revenue
 Service, Los Angeles District, 10 FLRA 653 (1982).
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Library of Congress shall:
 
    1.  Cease and desist from:
 
    (a) Changing established conditions of employment concerning employee
 access to microwave ovens without first notifying the Congressional
 Research Employees Association, the exclusive representative of unit
 employees, and affording such representative the opportunity to bargain,
 to the extent of the Library's discretion under any applicable law or
 regulation, concerning the change, as well as the procedures to be
 observed in implementing the change, and on appropriate arrangements for
 employees adversely affected by the change.
 
    (b) In any like or related manner interfering with, restraining or
 coercing employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Consistent with applicable law and regulation, restore to unit
 employees access to a microwave oven free of charge in the James Madison
 Memorial Building.
 
    (b) Provide adequate notice to the Congressional Research Employees
 Association of any intended change concerning employee access to
 microwave ovens and, upon request, afford such representative the
 opportunity to bargain, to the extent of the Library's discretion under
 any applicable law or regulation, concerning the change, and on
 appropriate arrangements for employees adversely affected by such
 change, and procedures to be observed in implementing such change.
 
    (c) Post at the James Madison Memorial Building copies of the
 attached Notice on forms to be furnished by the Federal Labor Relations
 Authority.  Such forms shall be signed by the Librarian of Congress, or
 his designee, and shall be posted and maintained for 60 consecutive days
 thereafter, in conspicuous places, including all bulletin boards and
 other places where notices to employees are customarily posted.
 Reasonable steps shall be taken to insure that such Notices are not
 altered, defaced, or covered by any other material.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, 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.
 
    Issued, Washington, D.C., August 28, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, 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 change established conditions of employment concerning
 employee access to microwave ovens without first notifying the
 Congressional Research Employees Association, the exclusive
 representative of our employees, and affording such representative the
 opportunity to bargain, to the extent of our discretion under any
 applicable law or regulation, concerning the change, as well as the
 procedures to be observed in implementing such changes, and on
 appropriate arrangements for employees adversely affected by such
 changes.
 
    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.
 
    WE WILL, consistent with applicable law and regulation, restore to
 unit employees free access to a microwave oven in the James Madison
 Memorial Building.
 
    WE WILL provide adequate notice to the Congressional Research
 Employees Association of any intended change concerning employee access
 to microwave ovens and, upon request, afford such representative the
 opportunity to bargain, to the extent of our discretion under any
 applicable law or regulation, concerning the change, and on appropriate
 arrangements for employees adversely affected by such change, and
 procedures to be observed in implementing such change.
                                       (Activity)
                                       By:  (Signature) (Title)
 
    Dated:  . . .
 
    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 its provisions, they may communicate directly with the Regional
 Director, Region III, Federal Labor Relations Authority, whose address
 is:  P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone
 number is:  (202) 653-8507.
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 3-CA-2540
    Martin F. O'Donoghue, Jr., Esquire
    Jerry Greenwood
    For the Respondent
    Sarah P. Collins
    For the Charging Party
 
    Patricia M. Eanet, Esquire
    For the General Counsel
 
    Before:  GARVIN LEE OLIVER
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns an unfair labor practice complaint issued by
 the Regional Director, Region Three, Federal Labor Relations Authority,
 Washington, D.C., against the Library of Congress (Respondent).  The
 complaint alleged, in substance, that Respondent violated sections
 7116(a)(1) and (5) of the Federal Service Labor-Management Relations
 Statute, 5 U.S.C. 7101 et seq. (the Statute), by failing and refusing to
 provide the Congressional Research Employees Association adequate notice
 and an opportunity to negotiate the substance, impact, and procedures
 leading to the implementation of a token system for use of the microwave
 ovens in the employees' lounges.  Respondent denied the allegation.
 
    A hearing was held in this matter in Washington, D.C.  The
 Respondent, Charging Party, and the General Counsel were represented and
 afforded full opportunity to be heard, adduce relevant evidence, examine
 and cross-examine witness, and file post-hearing briefs.  Based on the
 entire record herein, including my observation of the witnesses and
 their demeanor, the exhibits and other relevant evidence adduced at the
 hearing, and the briefs, I make the following findings of fact,
 conclusions of law, and recommendations.
 
                             Findings of Fact
 
    The Congressional Research Employees Association (Charging Party or
 Union), a labor organization within the meaning of section 7103(a)(4) of
 the Statute, is the exclusive representative of an appropriate unit of
 Respondent's employees.  Respondent and the Union are parties to a
 collective bargaining agreement which became effective September 20,
 1979.  Article XXVII, Section 3, Cafeterias and Snack Bars, provides, in
 part, as follows:
 
          A. Where the Library provides cafeteria service, vending
       machine areas or snack bar service, it will negotiate with the
       food service contractors to maintain and, to the extent funds are
       available, attempt to provide the best possible services
       consistent with the needs of Library employees and Library users.
       (Joint Ex. 1, p. 69).
 
    Respondent, Library of Congress, an agency within the meaning of
 Section 7103(a)(3) of the Statute, is subject to the terms and
 provisions of the Randolph Sheppard Act, 20 U.S.C. 107 et seq., as
 amended, and implementing regulations of the Department of Health and
 Human Services, 45 C.F.R.Part 1369, which provide for the operation of
 vending stands by the blind in Federal buildings.  Pursuant to the Act,
 the Library of Congress entered into an agreement on July 24, 1945
 whereby the Vocational Rehabilitation Service of the District of
 Columbia (hereinafter District or District Enterprises for the Blind,
 Inc.) licenses blind persons to operate a vending stand in the Library
 of Congress.  The licensing agreement is for an indefinite term.  Under
 the terms of the 1945 Agreement, the District agreed to replace any
 operator whose service becomes unsatisfactory.  The District further
 agreed that, upon request of the Library at any time, it will remove the
 stand.  (Tr. 26, 33;  Respondent's Exhibit 1).
 
    The Library of Congress can also make requests or recommendations to
 District Enterprises for the Blind, Inc. and to the operator licensed by
 the District concerning products, services, and equipment installed in
 its employee lounges.  However, the Library cannot require changes in
 such matters.  (Tr. 46, 64-65, 78-79).
 
    In July or August of 1980 two vending machine lounges for the use of
 employees and the public opened on the second and fourth floors in the
 James Madison Memorial Building of the Library of Congress.  The Library
 has 3,000 employees in the building.  The District of Columbia granted a
 license to United Vending to operate these two stands.
 
    United Vending had microwave ovens available adjacent to its vending
 machines.  There were no signs or other indications that only persons
 purchasing food from the vending machines could use the microwave ovens.
  (Tr. 60).  /2/ Employees used the microwave ovens on the second and
 fourth floors of the James Madison Building, at no cost, to heat food
 bought from the vending machines, or brought from home, or any other
 source.  (Tr. 14, 34).  One particular employee, who did not purchase
 products from the vending machines in part because he ate only kosher
 food, regularly brought food from home for his lunch, which he heated in
 the microwave ovens.  (Tr. 18-20).
 
    In the fall of 1980 the Library of Congress experienced problems with
 the vending service of United Vending due to continuing refund
 difficulties and vending machine failures.  The Library requested that
 District Enterprises for the Blind, Inc. require United Vending to
 provide a vending attendant on the premises.  The Library threatened to
 otherwise demand that the operator be changed.  Later, in December 1980,
 the Library met with the president of United Vending to discuss specific
 arrangements for such an attendant and the attendant's duties.  (Tr. 37,
 Respondent's Ex. 2, 3).
 
    The vending machine service provided by United Vending still proved
 highly unsatisfactory to the Library of Congress.  Therefore, in
 December 1980, Mr. Donald Jones, building manager for the Library of
 Congress and liaison with contractors who operate the cafeteria and
 snack bars in Library buildings, requested District of Columbia
 Enterprises for the Blind to cancel its license with United Vending and
 replace it with another vendor.  This action was taken under the terms
 of the 1945 Agreement, as noted, which provide that the District will
 remove an operator in the event of unsatisfactory service.  (Tr. 21,
 37-38, Respondent's Ex. 2, 3).
 
    The Library suggested and/or recommended to Mr. Herb Shieber, general
 manager of District Enterprises for the Blind, that it would like to see
 ARA Services replace United Vending.  ARA Services already operated the
 cafeteria and snack bar under a direct contract with the Library in the
 James Madison Memorial Building.  The Library felt that the chances of
 improved service with ARA Services would be much greater, in part,
 because of the Library's ready access to ARA Services due to the
 cafeteria contract.  Mr. Shieber agreed to consider ARA Services.  (Tr.
 39).
 
    Subsequently, on February 6, 1981, Mr. Jones of the Library was
 invited by District Enterprises to attend a contract negotiation meeting
 between ARA and District Enterprises in order to ensure that the service
 areas the Library was interested in would be covered satisfactorily in
 the contract, e.g. refunds, hours, refills, maintenance.  Mr. Jones
 expressed the Library's preference concerning cans instead of cups for
 soft drinks, which were ultimately provided.  The matter of microwave
 ovens was not discussed.  At the conclusion of the meeting, Mr. Jones
 understood that the District would contract with ARA for the vending
 lounges in the James Madison Memorial Building.  (Tr. 39-41).
 
    Mr. Jones first became aware that ARA Services would install a token
 system for use of its microwave ovens on February 10, 1981.  He attended
 a food conference at the Pentagon and was informed by the general
 manager of ARA that the token system would be used by ARA in the
 Library's vending lounges.  Under the token system, the microwave ovens
 can only be started by use of a token, which ARA attaches to compatible
 products in its vending machines.  A product must be purchased from the
 vending machine in order to obtain the token to operate the microwave
 oven.  The system effectively prevents use of ARA's microwave ovens
 without obtaining the token through purchases of compatible products
 from ARA's vending machines.  (Tr. 42-43).
 
    On or about May 13, 1981 Union president Sarah Collins received a
 memorandum, dated May 6, 1981, from Martin F. O'Donoghue, Chief, Labor
 Relations Office, advising, in part, that District Enterprises for the
 Blind had contracted with another company to take over the second and
 fourth floor vending machine service as of May 15 or 16, 1981.  At the
 same time, Union president Collins was also furnished a copy of a
 memorandum from Gerald Garvey, chief of the building management
 division, to Martin O'Donoghue, chief of the labor relations office,
 which stated, inter alia, that the Library's building management
 division had requested that the vending company install a token system
 and that the labor organization should be advised accordingly.  The
 memorandum also stated, in part, that, "Although this system would
 prevent employees from placing food bought outside of the vending area
 into the ovens, the benefits of the increased safety factor far outweigh
 any staff inconveniences." (Joint Ex. 2).
 
    The unrebutted testimony of the Library's witnesses, Mr. Jones and
 Mr. Garvey, discloses that the building management division did not, in
 fact, request installation of the token system.  Mr. Jones and Mr.
 Garvey thought the token system was a very good idea and decided to make
 this misstatement of fact to the Union in order to "take the heat off
 ARA." ARA had been subject to considerable recent criticism by the
 Library staff and Unions, because it had made two price increases for
 products in the cafeteria and snack bar.  Mr. Jones and Mr. Garvey
 thought the token system was a good idea because of two previous smoke
 alarm incidents involving the microwaves.  An employee had tried to dry
 a pair of gloves in the microwave, and another smoldered a product by
 repeated use of the microwave.  (Tr. 66-68;  75-78).
 
    The memorandum constituted the Union's first notice both of the
 existence of such a token system and of the possibility of its
 implementation.  Following receipt of the memorandum, Collins telephoned
 Garvey to obtain more information and left a message for him.  Garvey
 did not return the call.  (Tr. 15-16;  Joint Ex. 2, 3).
 
    On May 15, 1981 ARA took over the operation of the Library's two
 vending machine lounges on the second and fourth floors of the James
 Madison Memorial Building and installed the token system for use of its
 microwave ovens.  Employees who are not vending machine purchasers can
 no longer use the microwave ovens without have a token.  The only change
 for vending machine purchasers is that, instead of being able to use the
 microwave for an unlimited amount of time, the purchaser is limited by
 the token system to use for three minutes or less.  This period of time
 is compatible with the required heating of vending machine products.
 (Tr. 43, 78).
 
    After the change was made, the Union president received copies of a
 petition signed by over 100 employees.  The petition, sent to the
 Library, objected to the installation of the token-operated microwave
 ovens machines and threatened a voluntary boycott of all vending
 machines "if the situation is not remedied expeditiously." (Tr. 16;
 General Counsel's Ex. 2).  The Union's unfair labor practice charge
 followed.  (General Counsel's Ex. 1(a)).
 
               Discussion, Conclusions, and Recommendations
 
    The General Counsel alleges that the Library unilaterally changed a
 term and condition of employment, the use of microwave ovens in two
 employee lounges, without providing the Union adequate notice, or an
 opportunity to bargain over the substance, impact, and implementation of
 the change.
 
    The Library defends on the grounds that the microwave ovens are the
 property, and are under the complete dominion and control, of a third
 party, ARA Services, an independent, private sector employer.  The
 Library claims that, since the token system is beyond the Library's
 control and authority to determine, it is not a condition of employment
 over which there is a duty to bargain, relying on AFGE National Council
 of Meat Graders and U.S. Department of Agriculture, Food Safety and
 Quality Service, Meat Grading Branch, FLRC No. 77A-63, 6 FLRC 464
 (1978).  /3/ The Library asserts that the implementation did not involve
 the exercise of any authority by the Library requiring impact and
 implementation bargaining under section 7106(b)(2) and (3).  The Library
 also claims that no change in working conditions occurred when ARA
 Services installed the token system for microwave ovens.
 
    The duty to negotiate in good faith under the Statute requires that a
 party afford the exclusive representative notice of proposed changes and
 an opportunity to negotiate prior to making changes in established
 conditions of employment during the term of a collective bargaining
 agreement.  Department of the Air Force, Scott Air Force Base, Illinois,
 5 FLRA No. 2 (1981).
 
    Where an agency has chosen to make available on site food services
 for its employees, such as cafeteria service, vending machine areas, or
 snack bar service, aspects of this service, which directly affect
 working conditions, i.e., its adequacy and responsiveness to, or impact
 on, the demonstrated needs of bargaining unit employees, may reasonably
 be considered conditions of employment about which the agency and the
 exclusive representative should bargain.  Cf. Federal Employees Metal
 Trades Council of Charleston, FLRC No. 72A-27, 1 FLRC 416 (1973);
 Department of the Navy, Portsmouth Naval Shipyard, A/SLMR No. 508, 5
 A/SLMR 247 (1975);  Ford Motor Company v. NLRB, 99 S.Ct. 1842, 101 LRRM
 2222 (U.S., 1979).  The facts and circumstances of this case demonstrate
 that the food service provided here, microwave ovens for employees' use
 in heating food in employee vending machine lounges, was an established
 past practice affecting the working conditions of unit employees.  It
 was, therefore, a condition of employment within the meaning of section
 7103(a)(14).  The change that was made, a change from unrestricted use
 of the microwave ovens by employees for heating food to a system
 requiring a token for the use of such ovens, constituted a change in an
 established condition of employment.
 
    The change had no substantial impact on employees who purchase food
 from the vending machines, since they obtain tokens permitting their
 continued use of the microwave ovens for appropriate amounts of time.
 However, the change did have a substantial adverse impact on
 non-purchasing employees who previously were able to use microwave ovens
 to heat food brought from home or from other sources.  /4/
 
    The Library's position that the third party's (ARA Services) decision
 to install a token system for use of the microwave ovens did not involve
 the exercise of any authority by the Library requiring bargaining with
 the Union is not supported by the record.  The record shows that it was
 the Library's exercise of its contractual right with the District to
 demand the replacement of a vending machine operator as unsatisfactory
 which resulted in the change of operators and in the new operator's
 immediate change in the method of operating the microwave ovens.
 
    The Library's exercise of its contractual right to demand the
 replacement of the vending machine operator as unsatisfactory was a
 reserved right of management under section 7106(a)(2)(B) "to make
 determinations with respect to contracting out(.)" However, such right
 is subject to negotiations, pursuant to section 7106(b)(2) and (3),
 concerning the procedures which management officials will observe in
 exercising its authority and appropriate arrangements for employees
 adversely affected by the exercise of its authority.  See National
 Federation of Federal Employees, Local 1167 and Department of the Air
 Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air
 Force Base, Florida, 6 FLRA No. 105 (1981) at 6 FLRA 581-583.  To the
 extent that an agency has discretion with respect to a matter affecting
 conditions of employment of its employees, that matter is within the
 duty to bargain consistent with law, rules, and regulations, even if
 such discretion is limited merely to making recommendations.  Cf.
 American Federation of State, County and Municipal Employees, AFL-CIO,
 Local 2477, et al and Library of Congress, Washington, D.C., 7 FLRA No.
 89 (1982) at 7-11;  National Treasury Employees Union, Chapter 6, and
 Internal Revenue Service, New Orleans District, 3 FLRA No. 118 (1980) at
 12-13.
 
    The record shows that the Library can, and has, made requests and
 recommendations to the District and to the operator concerning vending
 machine products and services.  The Library has monitored the service
 provided by the operator, requested the District to correct the service
 deficiencies of the operator, discussed service arrangements directly
 with the operator, demanded that the District replace an operator for
 unsatisfactory service, and had considerable input in the negotiations
 between the District and the operator for the type of services it wanted
 for its employees.  The collective bargaining agreement reflects that,
 with regard to vending machine areas, the Library has undertaken to
 "negotiate with the food service contractors to maintain and, to the
 extent funds are available, attempt to provide the best possible
 services consistent with the needs of Library employees and Library
 users." Thus, the Library has not maintained a "hands off" relationship
 with the District, or the vending machine operator, concerning vending
 machine services for its employees over the years, and to require it to
 bargain on this matter would not be futile.  Cf. Ford Motor Co. v. NLRB,
 supra, 101 LRRM at 2223.
 
    It is concluded that when the Library learned in February 1981 that
 ARA Services would be installing a token system for operation of the
 microwave machines, which, if implemented without other arrangements
 being made, would change established conditions of employment, the
 Library was obligated to afford the Union reasonable notice of the
 proposed change and, upon request, an opportunity to negotiate, to the
 extent consonant with law and regulation, prior to the change in an
 established condition of employment being made.  Respondent's failure to
 do so violated sections 7116(a)(1) and (5) of the Statute, as alleged.
 /5/
 
    The May 13, 1981 notice provided was inadequate to allow bargaining
 prior to the implementation of the change on May 15, 1981.  It is also
 apparent that a great deal of confusion was caused the Union by the
 Library's erroneous and misleading advice on May 13, 1981 that the
 Library had requested installation of the token system.  This furnishing
 of false and misleading information to the Union violated the Library's
 duty to negotiate in good faith and was also violative of 7116(a)(1) and
 (5) of the Statute, as alleged.
 
    As part of the remedy for the unfair labor practice, the General
 Counsel requests removal of the token system and a return to the prior
 use of microwave ovens pending good faith negotiations with the Union.
 As noted, the Library does not have control over the equipment installed
 by ARA Services and may only make requests and recommendations with
 respect to the service.  However, there is nothing to preclude the
 Library from taking whatever steps are appropriate to restore and
 maintain established conditions of employment for unit employees.
 Therefore, in order not to interfere with, or unduly disrupt the
 existing contractual relationship, it is recommended that Respondent be
 ordered to restore, by whatever means it may find suitable, microwave
 ovens, under appropriate safety conditions, convenient to the second and
 fourth floor employee vending lounges in the James Madison Building, for
 the use, without charge, of those employees who bring their lunches or
 otherwise secure food from sources other than the vending machines.
 This remedy will amount to a return to the status quo ante for the
 affected employees.
 
    Based on the foregoing findings of fact and conclusions, it is
 recommended that the Authority issue the following Order:
 
                                   Order
 
    Pursuant to section 2423.29 of the rules and regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Library of Congress shall:
 
    1.  Cease and desist from:
 
          (a) Changing established conditions of employment concerning
       employee use of microwave ovens, or otherwise changing established
       past practices affecting the working conditions of unit employees,
       without first notifying Congressional Research Employees
       Association, or any other exclusive bargaining representative of
       its employees, and affording such representative the opportunity
       to negotiate in good faith on such matters to the extent consonant
       with law and regulation.
 
          (b) Furnishing Congressional Research Employees Association, or
       any other exclusive representative of its employees, false and
       misleading information concerning changes in established condition
       of employment.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to carry out the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Restore microwave ovens, under appropriate safety
       conditions, convenient to the second and fourth floor employee
       vending lounges in the James Madison Memorial Building, for the
       use, without charge, of those employees who bring their lunches or
       otherwise secure food from sources other than the vending
       machines.
 
          (b) Notify the Congressional Research Employees Association, or
       any other exclusive bargaining representative of its employees, of
       any proposed change concerning employee use of microwave ovens, or
       any other change in established past practices affecting the
       working conditions of unit employees, and, upon request, afford
       such representative the opportunity to negotiate in good faith on
       such matters to the full extent consonant with law and regulation.
 
          (c) Post at its facilities copies of the attached Notice marked
       "Appendix" on forms to be furnished by the 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 shall take reasonable steps to
       insure that such notices are not altered, defaced, or covered by
       any other material.
 
          (d) Pursuant to 5 C.F.R. 2423.30 notify the Regional Director,
       Federal Labor Relations Authority, Region Three, Washington, D.C.,
       in writing, within 30 days from the date of this order, as to what
       steps have been taken to comply herewith.
 
                                       GARVIN LEE OLIVER
                                       Administrative Law Judge
 
    Dated:  February 3, 1982
    Washington, D.C.
 
 
                                 APPENDIX
 
  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 change established conditions of employment concerning
 employee use of microwave ovens, or otherwise change established past
 practices affecting the working conditions of unit employees, without
 first notifying Congressional Research Employees Association, or any
 other exclusive bargaining representative of our employees, and
 affording such representative the opportunity to negotiate in good faith
 on such matters to the extent consonant with law and regulation.
 
    WE WILL NOT furnish Congressional Research Employees Association, or
 any other exclusive representative of our employees, false and
 misleading information concerning changes in established condition of
 employment.
 
    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.
 
    WE WILL restore microwave ovens, under appropriate safety conditions,
 convenient to the second and fourth floor employee vending lounges in
 the James Madison Memorial Building, for the use, without charge, of
 those employees who bring their lunches or otherwise secure food from
 sources other than the vending machines.
 
    WE WILL notify the Congressional Research Employees Association, or
 any other exclusive bargaining representative of its employees, of any
 proposed change concerning employee use of microwave ovens, or any other
 change in established past practices affecting the working conditions of
 unit employees, and, upon request, afford such representative the
 opportunity to negotiate in good faith on such matters to the full
 extent consonant with law and regulation.
                                       (Agency or Activity)
                                       By:  (Signature)
 
    Dated:  . . .
 
    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, Federal Labor Relations Authority, Region Three,
 whose address is 1111 18th Street, NW, Suite 700, Washington, DC 20036
 and whose telephone number is (202) 653-8452.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Authority finds it unnecessary to pass upon the Judge's
 conclusion that the replacement of the predecessor vending company
 constituted the exercise of a reserved management right under section
 7106(a)(2)(B) of the Statute "to make determinations with respect to
 contracting out."
 
 
    /2/ Microwave ovens located in the canteen lounges of two other
 Library of Congress buildings are maintained by other vendors behind a
 counter, where some food service is also prepared by attendants.  (Tr.
 52, 60, 72).
 
 
    /3/ The AFGE National Council of Meat Graders case involved a union
 proposal that, in plants where meat graders work in front of conveyor
 chains, the speed at which carcasses move on the conveyor chains be
 limited.  The Council held that, as chain speeds are under the control
 of private sector management, and are not within the authority of the
 agency to determine, the proposal was not within the scope of bargaining
 under Executive Order 11491, as amended.  6 FLRC at 475-476.
 
 
    /4/ Respondent's witnesses denied that they knew employees were using
 the microwave ovens to heat food from non-vending machine sources and
 testified that such use was unauthorized.  However, as found above, the
 microwave ovens were so