23:0352(49)CO - AFSCME Local 2910 and Library of Congress -- 1986 FLRAdec CO



[ v23 p352 ]
23:0352(49)CO
The decision of the Authority follows:


 23 FLRA No. 49
 
 AMERICAN FEDERATION OF STATE, COUNTY,
 AND MUNICIPAL EMPLOYEES, LOCAL 2910,
 AFL-CIO
 Respondent
 
 and
 
 THE LIBRARY OF CONGRESS
 Charging Party
 
                                            Case No. 3-CO-50030
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practices alleged in the complaint and recommending
 that the complaint be dismissed in its entirety.  Thereafter, the
 General Counsel filed exceptions to the Judge's Decision and the
 Respondent filed a brief in opposition to such 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 adopts the Judge's
 findings, conclusions and recommendation that the complaint be
 dismissed.
 
    In agreement with the Judge we find no showing that the contractual
 provision permitting union participation on the panel interferes with
 any employee rights under the Statute.  Nor was the Respondent in
 violation of the Statute when in the selection of its own
 representative, it established a policy of only nominating union members
 for selection and service on such panels.  Accordingly, we find that the
 Respondent did not violate sections 7116(b)(1) and (8) of the Statute by
 confining its nominees to rating panels to unit employees who were union
 members.  We note that the parties may clarify the matter in future
 negotiations.
 
    While the Judge did not specifically resolve the General Counsel's
 argument regarding an independent violation of section 7116(b)(1), the
 Judge, as noted by the General Counsel, nonetheless made the necessary
 factual findings regarding this issue.  Based on such findings, the
 Authority concludes that the Respondent did not violate the Statute when
 it informed a unit employee that it would only nominate union members to
 be panel members.  In the Authority's view, the pronouncement of this
 lawful policy did not interfere with, restrain or coerce employees in
 the exercise of statutory rights.  Accordingly, we find that the
 Steward's statement was not violative of section 7116(b)(1).
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CO-50030 be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., September 23, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 3-CO-50030
 
    AMERICAN FEDERATION OF STATE,
    COUNTY AND MUNICIPAL EMPLOYEES,
    LOCAL 2910, AFL-CIO
         Respondent
 
                                    and
 
    THE LIBRARY OF CONGRESS
         Charging Party
 
    Peter A. Sutton, Esquire
    For the General Counsel
 
    James Mundy, Esquire
    For the Respondent
 
    Before:  BURTON S. STERNBURG
    Administrative Law Judge
 
                                 DECISION
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101 et seq. and the Rules and Regulations issued thereunder.
 
    Pursuant to an amended charge first filed on May 15, 1985, by The
 Library of Congress (hereinafter called the Library), a Complaint and
 Notice of Hearing was issued on July 31, 1985, by the Regional Director
 for Region III, Federal Labor Relations Authority, Washington, D.C.  The
 Complaint alleges that the American Federation of State, County and
 Municipal Employees, Local 2910, AFL-CIO (hereinafter called the
 Respondent or guild), violated Sections 7116(a)(1) and (8) of the
 Federal Service Labor-Management Relations Statute (hereinafter called
 the Statute), by virtue of its action in denying non-union unit
 employees the opportunity to serve on "Qualifications Rating Panels."
 
    A hearing was held in the captioned matter on September 26, 1985, in
 Washington, D.C.  All parties were afforded the full opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The General Counsel and the
 Respondent submitted post-hearing briefs on October 28, and October 25,
 1985, respectively, which have been duly considered.  /1/
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact, /2/
 conclusions, and recommendations.
 
                             Findings of Fact
 
    The Guild has, for many years, been recognized as the exclusive
 representative of approximately 1300 professional employees at the
 Library.  The Guild's current collective-bargaining was negotiated in
 March 1983 and expires in March 1987.  The Guild's 1983-1987 negotiated
 agreement replaced the Guild's initial collective-bargaining agreement
 with the Library which had been negotiated in 1978.
 
    Article XI of the Guild's current negotiated agreement entitled
 "Merit Employment and Promotions" addresses the procedures which the
 Library will follow in making employment and promotion decisions
 affecting positions within the Guild's bargaining unit.  The purpose of
 Article XI is to ensure that merit principles are applied in an
 equitable manner to all applicants and to ensure that the Library
 selects the best qualified candidates for unit position vacancies.
 
    Section 9(A) of Article XI provides that whenever there are six (6)
 or more eligible applicants for an announced unit position vacancy, the
 Library will convene a qualifications rating panel.  The function of a
 qualifications rating panel is to rate the applicants for a unit
 position in accordance with prescribed ranking factors, i.e., the
 qualifications rating panel develops a best qualified list and refers
 the names of the five best qualified applicants to the Library's
 selecting official.  The final selection is made by the Library's
 selecting official.
 
    Pursuant to Section 9(B) of Article XI, the Library's rating panels
 consist of three (3) members.  Two of the members are from the Library's
 managerial and supervisory staff.  The third member is a bargaining unit
 employee.  In order to become eligible to serve on a rating panel, a
 bargaining unit employee must first receive training on rating panel
 procedures from the Library's Recruitment and Placement (R & P) Office.
 In this latter respect, Section 9(B) of Article XI states that:  "Panel
 members from the unit will be nominated by the Guild for training on
 official time and selected from the Guild lists of nominees." This
 particular language was carried over from the Guild's 1978 negotiated
 agreement with the Library.  The only difference between the two
 agreements is that the current agreement contains a provision whereby
 the Library agrees to rotate service on the rating panels among the
 eligible unit employees nominees who have received the qualifying
 training after being specifically nominated by the Guild for such
 training.
 
    From 1979 to the present, the Guild has been submitting the names of
 unit employees to the Library's R & P Office for the required rating
 panel training.  Since the Guild nominates unit employees for rating
 panel training on an on-going basis and since once unit employees have
 been trained they are eligible for rating panel service as long as they
 remain employed by the Library, the Library's R & P Office has developed
 a cumulative listing of unit employees qualified for rating panel
 service.  As of May 1985, there were approximately 271 Guild unit
 employees who were eligible for rating panel service.
 
    The Library's R & P Office provides the names of Guild unit employees
 eligible for rating panel service to the various department heads in the
 Library.  /3/ Whenever there is a vacancy for a Guild unit position and
 there are the requisite number of qualified applicants, six or more,
 Library management at the department level where the position is located
 consults the lists of eligible panel members and decides which three (3)
 members will serve on the rating panel.
 
    On or about April 15, 1985, bargaining unit employee Linda Miller
 telephoned Guild Chief Steward Josie Hawkins and requested to be
 nominated for training and service on the Library's rating panels.  Ms.
 Miller was quite familiar with the duties and requirements of several
 unit position vacancies in her work area and she believed she would be a
 good candidate to serve as the unit employee member on any of the rating
 panels.  Ms. Miller expressed this information to Ms. Hawkins and asked
 if the Guild would nominate her for training and service on the rating
 panels.  Ms. Hawkins asked Ms. Miller if she was a Guild member.  Ms.
 Miller replied she was not.  Ms. Hawkins then informed Ms. Miller that
 it was the Guild's policy to only nominate dues-paying members for
 training and service on the Library's rating panels.
 
    Following this conversation with Ms. Hawkins, Ms. Miller spoke with
 Mr. Donald Panzera, a former Guild official and chief negotiator of the
 Guild's current negotiated agreement.  Ms. Miller recounted her
 conversation with Ms. Hawkins to Mr. Panzera.  Unaware that the Guild
 had adopted such a members-only policy, Mr. Panzera contacted Ms.
 Hawkins in an attempt to help Ms. Miller get on the Guild's list of
 nominees.  Ms. Hawkins confirmed to Mr. Panzera that the Guild had
 adopted a members-only policy but agreed to look into the Miller matter
 and call Mr. Panzera back.  On May 3, 1985, Ms. Hawkins telephoned Mr.
 Panzera and suggested that Mr. Panzera contact the Guild's President
 Mary Ann Joyce, which Mr. Panzera proceeded to do that day.  Ms. Joyce
 informed Mr. Panzera that the Guild was in the process of deleting the
 names of all non-members from the Guild's list of nominees and that in
 the future the Guild would only nominate Guild members for service on
 the Library's rating panels.  Ms. Joyce further stated that the Guild
 would only consider nominating a non-member unit employee if there were
 no other members available in a particular department or section.
 
    On May 6, 1985, Respondent's President Joyce forwarded to the
 Library's R & P Office a listing containing the names of 118 unit
 employees, effective from that day forward, which was to be used as the
 Guild's nominees for rating panel service.  Respondent's May 6, 1985,
 list of nominees consisted solely of unit employees who were dues-paying
 members of Respondent.  As had been indicated to Mr. Panzera,
 Respondent's May 6, 1985 list of nominees removed from consideration for
 rating panel service the names of approximately 153 unit employees who
 were presently qualified for rating panel service solely on the basis
 that these employees were not dues-paying members of Respondent.  In
 this regard, Respondent's President Joyce testified that she was
 personally aware of who was a dues-paying member of Respondent;  that
 she was aware that as of April 1985, there were approximately 281 Guild
 unit employees who were eligible for rating panel service, and that she
 prepared Respondent's May 6, 1985 list of 118 nominees with the specific
 purpose of removing the non-union member unit employees from
 consideration by the Library for rating panel service.  Respondent's
 President Joyce defended her purging of all the non-union member unit
 employees qualified for rating panel service as a means of remedying her
 perception that the Library had discriminated against Guild members in
 the past in its selection of qualified unit employees for service on the
 qualification rating panels.  Respondent has not, however, filed any
 grievances over the Library's selection of unit employees to serve on
 the qualifications rating panels.
 
    The Library has continued to utilize the complete listing of the
 approximately 281 unit employees who are eligible to serve on rating
 panels.
 
                        Discussion and Conclusions
 
    The General Counsel takes the position that the Guild's May 6, 1985,
 policy of only nominating dues paying members of the Guild's bargaining
 unit for service on the Library's rating panel constitutes an unlawful
 discriminatory representational practice against the non-union members
 of the Guild's bargaining unit in violation of Sections 7116(b)(1) and
 (8) of the Statute.
 
    According to the General Counsel, Article XI of the contract dealing
 with nominations by the Guild to the qualification rating panels
 constitutes a negotiated contractual benefit for all unit employees
 irrespective of union membership.  In such circumstances, the Guild's
 denial of such contractual benefit because of non-membership in the
 Guild constitutes "invidious discrimination" in "defiance of the
 mandates of Section 7114(a)(1)," which requires a union to represent all
 bargaining unit members equally and without regard to labor organization
 membership.  In support of its position the General Counsel relies in
 the main on the Authority's decision in National Treasury Employees
 Union, 10 FLRA 519, aff'd, 721 F.2d 1402.
 
    In support of his position that Section XI of the contract
 established a benefit for all unit employees, irrespective of union
 affiliation, the General Counsel points to the wording of various other
 provisions of the contract and notes that such provisions clearly state
 that the rights set forth run solely to the Guild as the unit
 representative, while in Section XI there is no clear statement that the
 nominated employee is to be a representative of the Guild.
 
    The Guild on the other hand takes the position that the unit
 employees designated by the Guild for training and subsequent service on
 the qualification rating panels serve as the Guild representative on
 such panels in that they are there to ensure that "merit principles are
 applied in an equitable manner." In such circumstances, since they are
 to be representatives of the Union, the Union is free to select only
 unit members who are members of the Union to serve on the rating panels.
 
    It is well settled that a union is obligated to represent all unit
 members equally and without regard to union affiliation.  It is equally
 well settled that a union is entitled to select its own representatives.
  To the extent that a union limits its representatives to union members,
 it could hardly be argued that it was discriminating against non-union
 unit members in violation of Section 7114(a)(1) of the Statute.
 
    Inasmuch as it appears that all parties to the instant proceeding
 recognize the above conclusions as the current state of the law,
 resolution of the instant controversy turns on whether Section XI of the
 collective bargaining agreement constitutes a contract benefit for unit
 employees or confers a right of representation on the rating panels to
 the Guild.
 
    Contrary to the contention of the General Counsel, I can not agree
 that Section XI of the collective bargaining agreement establishes a
 contract benefit for all unit employees.  In fact I can not see where
 service on a rating panel is beneficial to any employee, save several
 hours release from their normal daily duties.
 
    In the absence of any bargaining history supporting a contrary
 conclusion, I find that section XI of the collective bargaining
 agreement was designed to confer upon the Guild the right to have a
 representative on the rating panel to ensure that merit principles are
 applied in an equitable manner, etc.  To the extent that other
 provisions of the collective bargaining contract may spell out the
 Guild's representational rights in other areas in clearer or less
 ambiguous terms, such fact does not require a contrary conclusion.  If
 the Guild's nominee was not to serve as the Guild's representative on
 the rating panel, I question why the Guild was given the power to
 nominate panel members.
 
    Having concluded that the nominees to rating panels serve as Guild
 representatives on such panels, I find that the Guild did not violate
 Sections 7116(a)(1) and (8) of the Statute by confining the nominees to
 unit employees who were Guild members.  Accordingly, it is hereby
 recommended that the Authority adopt the following Order dismissing the
 Complaint in its entirety.
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the Complaint in Case No. 3-CO-50030 should
 be, and hereby, is dismissed in its entirety.
 
                                       /s/ BURTON S. STERNBURG
                                       Administrative Law Judge
 
    Dated:  December 3, 1985
    Washington, D.C.
 
 
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) In the absence of any objection, General Counsel's Motion to
 Correct Transcript, should be, and hereby is, granted.
 
    (2) All parties agree that the facts for the most part are not in
 dispute.
 
    (3) The Library's R & P Office also provides the Library's department
 heads with the names of all managerial and supervisory staff who are
 qualified for qualific