LIBRARY OF CONGRESS WASHINGTON, D.C. and LOCAL 2910, AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, AFL-CIO

 

In the Matter of

LIBRARY OF CONGRESS

WASHINGTON, D.C.

 

and

LOCAL 2910, AMERICAN FEDERATION OF

STATE, COUNTY, AND MUNICIPAL

EMPLOYEES, AFL-CIO

Case No. 96 FSIP 29

ARBITRATOR’S OPINION AND DECISION

BACKGROUND

    Local 2910, American Federation of State, County, and Municipal Employees, AFL-CIO (Union or Guild) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, between it and the Library of Congress, Washington, D.C. (Employer or Library). After investigation of the request for assistance, with their concurrence, the Panel first directed the parties to work on 7 of 28 articles in dispute arising from negotiations over a successor collective bargaining agreement (CBA) with the Collaboration and Alternative Dispute Resolution (CADR) Program of the Federal Labor Relations Authority (FLRA) in a two-step process: They would (1) receive training in interest-based bargaining and (2) work with CADR personnel in facilitated interest-based dispute resolution. During the CADR process, the parties resolved most of the items included from the original list of seven articles. Subsequently, following receipt of the parties’ status report and the Union’s withdrawal of four matters over which a negotiability appeal was to be filed, the Panel ordered mediation-arbitration on a final-offer selection (issue-by-issue) basis with the undersigned. A hearing was held with the parties on September 10 through 12, 1996. At the outset, the undersigned engaged in mediation efforts to assist the parties; these efforts resulted in the resolution of parts or all of six articles. All or parts of nine articles remain unresolved. In mid-October, 1996, the parties submitted brief written statements in support of their positions on these articles, and their final proposals.

    The Employer’s primary mission is to make its resources available to Congress and to the American people, and to sustain and preserve a universal collection of knowledge and creativity for future generations. The Union represents 1,440 bargaining-unit employees who work as catalogers, reference librarians, computer analysts, and specialists in acquisition and interpretation of collections; many have Master of Library Science, Master’s, and Ph.D. degrees; some have law degrees. The parties are covered by a CBA which continues to cover conditions of employment until a successor agreement is implemented.

ISSUES AT IMPASSE

    The parties remain at impasse over the issues presented below which were submitted for arbitration.

1. ARTICLE 2, MANAGEMENT RIGHTS, SECTION 3 (PART).

    a. The Employer's Position

    The Library's proposal is the current contract language:

Unless waived in this Agreement and/or in midterm bargaining Agreements, the obligation to meet, consult, and bargain does not include the following matters: numbers, types and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or the technology, methods and means of performing work. This does not preclude the Parties from negotiating procedures.

    b. The Union's Position

    The Union's proposal is:

Nothing in this Agreement shall preclude the Library and the Guild from negotiating, at the Library's election, on the numbers, types and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or the technology, methods and means of performing work. Nor does anything in this agreement preclude the Parties from negotiating procedures.

Conclusions

    The Union disclaims any interpretation of its language as constituting a waiver of management rights under Section 7106(b)(1), and includes the language "at the Library's election." The Library is not covered by Executive Order 12871. There being no substantive difference in the two proposals and no actual need for new language (e.g., problems under the old language) demonstrated by the Union, the Arbitrator adopts the Library's language.

2. ARTICLE 3, EMPLOYEE RIGHTS, SECTION 1.

    a. The Employer's Position

    The Library's proposal is:

The Library recognizes the rights of employees specified in this Agreement as well as those rights contained in applicable LCRs [Library of Congress Regulations] including but not limited to, 2010.3.1 (Resolution of Problems, Complaints, and Charges of Discrimination in Library Employment Opportunity Program), 2023-1 (Personal Conduct and Personal Activities of the Staff of the Library of Congress: Purpose, Policy, and General Standards of Conduct), and 2023-2 (Conduct in Official Positions).

The Library originally had no language but offered the above counterproposal in response to the Union's assertion that while other processes do provide protection from the types of actions listed in its proposal (e.g., the grievance procedure handles "complaints concerning any matter relating to a condition of employment" of an employee), employees do not always know that. The Library thinks the Union language is overly vague and may encourage grievances.

    b. The Union's Position

    The Union's proposal reads:

The Parties agree that employees have the right to be treated with dignity and respect and that no employee shall have to tolerate harassment (including sexual harassment), abusive language, intimidation, discrimination, or reprisal of any sort.

The Union maintains that its language is a needed acknowledgment of protections that exist in law and regulation, and that clear language will be a deterrent to improper behavior. Testimony was offered describing an office culture where harassment and reprisal occur. At the same time, in one incident described where employees protested a supervisor's conduct, the supervisor was ultimately removed.

Conclusions

    The Arbitrator adopts the Library's language. There was no evidence that employees have not been able to successfully use established procedures for redressing the kinds of supervisory/ management conduct raised by the Union. In fact, there was evidence to the contrary. The Library agreed that conduct like sexual harassment, intimidation, and reprisal are cognizable under existing procedures. The Arbitrator believes the Library's language addresses the concern that employees have notice in the contract of the scope of protections they enjoy. The Union has the ability to educate its bargaining unit about how existing rules and prohibitions apply to specific types of conduct. The Arbitrator has considered other negotiated agreements submitted by the Union in support of its position. There are significant differences in wording in many cases (e.g., the Local 2477 contract). The Arbitrator is of the view that the breadth of the Union's language coupled with a "right", has the potential to worsen, rather than improve, employee/supervisor, labor/management relationships, particularly if the language is ordered by a third party and is not the product of mutual agreement and understanding between union and employer. There is no "quick fix" for an unhealthy work culture, if that is what exists. A pattern of egregious behavior that perhaps might justify taking the risk of ordering such language simply was not demonstrated.

3. ARTICLE 3, EMPLOYEE RIGHTS, SECTION 6.

    a. The Employer's Position

    The Library is proposing a change from the status quo, namely, eliminating an administrative hearing procedure resulting in a binding decision by a hearing officer, and adding adverse actions to the negotiated grievance procedure. Specifically, the Library: (1) deletes from Article III current language stating that "decisions of hearing officers on appeals of adverse actions taken under LCR 2020-3 shall be final and binding upon the parties. This section is not applicable to bargaining-unit employees of the Law Library"; and (2) in corresponding proposals for Article 42 (Negotiated Grievance Procedure) and 43 (Arbitration), drops the current exclusion of adverse actions from the grievance procedure (Article 42, Section 3, omits (e), and provides for an election between filing a grievance or an appeal in an adverse action case and Article 43, adds a new section 3). The Library's argument for this change is that it currently has no procedure for gaining review of the hearing officer's decisions, which it would have from the FLRA, as other Federal agencies do, if adverse actions went through the grievance procedure.

    b. The Union's Position

    The Union's final proposal modifies its previous proposal which reflected current contract language providing that adverse actions are excluded from the grievance procedure, and employees receive a binding decision by a hearing officer under LCR 2020-13. The final proposal language provides for overlapping coverage of adverse action appeals by the negotiated grievance procedure and the hearing procedure of LCR 2020-3, and an election by the appealing employee. The hearing officer decision remains final and binding except when the Librarian determines that such decision is contrary to applicable law, rule, or regulation; in which case, that determination is made "subject to" the negotiated grievance procedure. For the Union the issue is cost. The administrative process is fully paid by the Library while the grievance procedure contains a "loser pays" provision. But its final proposal is intended to address the Library's concern about unreviewable decisions.

Conclusions

    The Arbitrator adopts the Union's final proposal. The Arbitrator is unwilling to change the status quo to make the negotiated grievance procedure the sole binding appeal process for adverse actions in the face of the "loser pays" provision, believing that the coupling of those two provisions does not reflect prevailing practice in the Federal sector and places the Union in a very difficult stance with respect to its duty of fair representation. The Union language provides for an avenue of review for hearing officer decisions that approximates the FLRA standard of review desired by the Library. There are very few adverse action cases in this bargaining unit.

4. ARTICLE 3, EMPLOYEE RIGHTS: SECTION 7(D)[GUILD]; SECTION 6 (PART) [LIBRARY].

    a. The Employer's Position

The Library's proposal is for 15 hours of official time for an employee to prepare for a dispute resolution proceeding, in addition to the following procedure:

All time spent pursuant to this section shall be recorded on a form by the supervisor of the employee and initialed by the employee and his/her supervisor. The form shall specify the purpose for which the time is being used.

    b. The Union's Position

    The Union proposes "reasonable time" for dispute resolution preparation, and cited a specific instance when preparation for the dispute resolution process exceeded 15 hours.

Conclusions

    Preparation time for dispute resolution procedures is being added to an existing list of procedures for which the current contract and the new agreement provide specified amounts of official time. The other procedures have these preparation times: 24 hours for a grievance or appeal, 36 hours for a discrimination complaint, 10 hours for appealing a performance rating. The Library's added record-keeping requirement seeks additional accountability for use of official time but does not change what is agreed to be the current situation that supervisory permission to use official time for ADR preparation is required.

    The Arbitrator adopts the Library's proposal, finding most persuasive the hourly limits that the parties have agreed to for other procedures, and being unconvinced that something about the dispute resolution process demands an open-ended preparation time that has not been accorded in other instances. The Library's proposed record-keeping procedure is not onerous.

5. ARTICLE 3. SERVICES FOR VISUALLY HANDICAPPED AND/OR DEAF EMPLOYEES: SECTION 16(c)[UNION]; SECTION 15 (c)[LIBRARY].

    The parties agree on language that says the Library "will make available qualified persons to interpret for deaf employees and to read for visually handicapped employees" to accomplish official work. The disagreement is about the Union's additional language which the Library opposes.

    a. The Union's Position

    The Union's language is:

The Library shall provide assistance upon request when requests for such assistance are made to the Library at least 48 hours in advance.

The rationale is that there should be a time limit on management's response to employee requests, and greater use of in-house resources to respond to requests.

    b. The Employer's Position

    Flexibility is needed because it can take 2 weeks to secure an interpreter from the outside.

Conclusions

    The Arbitrator adopts the Library's proposal in the absence of demonstrated need for the time limit and questions about the feasibility of a 48-hour limit that went unanswered.

6. ARTICLE 5. GUILD RIGHTS, SECTION 10.

    The only disputed language remaining in Article 5 concerns excused absences for Union officials and stewards for training. The parties agree to keep existing language providing that in the first year of the contract up to 24 hours of Guild-sponsored training will be authorized. The dispute concerns the subsequent contract years. The parties' CBA has for 10 years provided another 8 hours of such training.

    a. The Union's Position

    The Union proposes to increase this amount to 16 hours, arguing that the status quo has been unchanged for many years, and that the Union should have the discretion as to how to use its training hours. It makes joint training (with management) an option, not a requirement.

    b. The Employer's Position

    The Library's proposal allows for an additional 8 hours if it is for joint (labor-management) training entered into by mutual consent.

Conclusions

    The Arbitrator adopts the Union's proposal. The changes in the labor-management environment justify some increase in Union training time. While encouraging the parties to engage in joint training, the Arbitrator believes that joint efforts bear fruit only if both parties desire them.

7. ARTICLE 6. GUILD REPRESENTATION, SECTION 3(D).

    a. The Union's Position

    The Union proposes the following new language:

Guild representatives are authorized a reasonable amount of time to prepare for consultation with management.

The Union's primary justification for this language is a Memorandum of Understanding (MOU) entered into between the Library and the Union in 1991, on the subject of Consultative Management, a broad concept that involves both the Union and employees in a variety of consultative processes, formal and informal. The MOU states that "an adequate number of people and time to do consultation will be provided for."

    b. The Employer's Position

    The Library opposes the language because there is no accountability for the amount of official time used, which is a major concern.

Conclusions

    Elsewhere in the contract, notably in Article 9 covering mid-term bargaining, agreed upon during mediation, the parties directly addressed the Employer's concern about accountability. No similar accommodation is made here by the Union. Nothing was offered about any difficulties that have been actually encountered in having sufficient time for Union representatives to engage in consultation. Considering this, the Arbitrator does not adopt the Union's proposal.

8. ARTICLE 17. PERFORMANCE EVALUATION, SECTION 14.

    a. The Employer's Position

    The Library's proposed language is:

The provisions of this article may be reopened by either party during calendar year 1997.

Management has been introducing a new performance management system for supervisory staff with the intention of introducing it into the non-supervisory ranks in 1997. These changes have not been part of this contract negotiation. The Library does not want to wait 3 years to introduce the changes.

    b. The Union's Position

    The Union has no corresponding language. The Union's final position states that it is "silent" on the Library's reopener language.

Conclusions

    In the absence of a showing or argument of how the reopener (under the described circumstances) would be deleterious, the Arbitrator adopts the Library's proposal.

9. MERIT SELECTION PLAN. SECTION VI, SUBSEC. c(2) (LIBRARY).

    a. The Employer's Position

    The Library proposes to drop an existing provision for a reconsideration opportunity for applicants initially found not minimally qualified or not meeting all conditions of the vacancy announcement. The Library is implementing a computer-assisted program for reviewing applications (the MARS Program) making unnecessary this procedure which was intended to uncover errors in (human) judgment, particularly staffing specialists interpreting qualifications from Form SF-171 applications. Because of the type of positions being filled, the nature of the credentials needed, and the kind of information provided on the SF-171, interpretation is often necessary and the potential for errors high. With MARS, the SF-171 is no longer the critical document. A new supplemental qualifications statement (Form c) developed by OPM is computer-read, and a list of those minimally qualified, in rank order, is produced. This eliminates the need for the staffing specialist role and for a ranking panel.

    This change in the merit selection procedure makes obsolete the reconsideration step, the continuance of which would serve only to needlessly add time and work. The goal of the new process is to dramatically reduce the time it takes the Library to fill positions under merit selection. With regard to computer error, the Library has requested that OPM do a 100-percent review by staff, comparing SF-171 forms to the Form c. This process will not catch situations when errors in completing the application forms (mechanical mistakes, leaving off a signature) cause the computer to rate an application as unqualified. But employees will be trained in completing the Form c.

    b. The Union's Position

    The Union proposal retains the existing procedure for reconsideration which requires notification to an applicant of an inadequate application/lack of minimum qualifications and allows applicants to request consideration when they have been deemed unqualified because of failure to meet the requirements of the vacancy announcement (including failing to complete the application fully), or a finding that they lack minimum qualifications. The period for requesting reconsideration is 7 days from notification. This opportunity for review is essential in the existing system because of the numerous errors made concerning qualifications. Unit employees view reconsideration as valuable and beneficial, and would see its elimination as significant. Introduction of the MARS system is in flux and it is too early to make a change such as eliminating reconsideration.

Conclusions

    At the time of the mediation effort in this proceeding, the parties were in disagreement as to whether or not agreement on implementing MARS was reached in earlier dispute resolution efforts: the Library maintains that it was negotiated; the Union insists that MARS must still be negotiated. That there are bargaining obligations is not disputed. Also, it was not established that under management's timetable all bargaining-unit positions would be under MARS at the effective date of this contract; nor did there appear to be certainty about how all aspects of MARS would work. With the record in this state, it would be operating in a vacuum to eliminate the reconsideration language from the contract -- with possibly non-sensical or unintended consequences as a result. The parties can revisit this issue during or after resolving their dispute over the MARS program. The Arbitrator adopts the Union's proposal.

10. ARTICLE 20. DETAILS, SECTION 12 [GUILD].

    a. The Union's Position

    The Union's final proposal represents a modification of its earlier proposal which was a detailed set of requirements to "address the impact and implementation" of details involving two or more employees. The language now before the Arbitrator is:

    The parties will meet, consult, and bargain over the impact and implementation of the detailing of two or more employees either to similar assignments or to form temporary new teams whenever such actions have more than de minimis impact. Such bargaining shall be without regard to the withdrawal of specific proposals during term negotiations since the Parties agree that no rights were waived thereby.

    b. The Employer's Position

    The Library opposes the Union proposal in its entirety. It objects to the proposal as unnecessary because the impact of details is addressed elsewhere in the contract and is burdensome because an obligation to bargain every detail of two or more employees fails to respond to the need for flexibility and speed that is the very reason details are used. The second sentence is opposed as simply opening the door to the Union re-proposing the elaborate procedures that were originally in its proposal on this Article.

Conclusions

    In its written arguments, the Library expresses concern that the Union language would circumvent the zipper clause agreed to in Article 9. In its written response the Union states: "The Guild's Section 12 would not enable it to bargain over matters already specified elsewhere in the contract." At the same time, the Library asserts: "While we acknowledge the possibility that a specific detail could conceivably raise an issue not already addressed elsewhere in the contract, we maintain that the likelihood of this happening is not great."

    The Arbitrator's conclusion from these statements is that the opening created by the Union's language is not so large. Furthermore, the Library's concern with the extent and length of midterm bargaining has been taken seriously in these negotiations as reflected in the fact that Article 9 on Midterm bargaining, which at one time loomed as the Library's highest priority, was resolved in this mediation. The Union's expressed motive for altering its proposal, both in its latest written arguments and when modified language was first offered during mediation, was to take into account the Library's concerns about undue and unwarranted delay and expenditure of resources. The Arbitrator also notes the absence of examples of delayed and defeated detail plans, in contrast to the evidence offered concerning protracted midterm bargaining. In light of all of these factors, the Arbitrator adopts the Union proposal.

11. ARTICLE 26. FLEXIPLACE.

    a. The Union's Position

    In these contract negotiations the Union is seeking establishment of a flexiplace program at the Library. The Union's final proposal is for an 18-month flexiplace pilot program to cover a minimum of 5 percent of the bargaining unit covering all categories of employees and a cross-section of series and positions. A joint labor-management committee is established to provide on-going evaluation and to review and report on the pilot which is to be continued if there is joint agreement, or the subject referred for midterm bargaining. The flexiplace program is to be implemented in 90 days from the effective date of the agreement.

    Along with testimony describing the history of flexiplace in the Government and at the Library, the Union placed in the record a number of reports and guidelines, a study on the subject done within the Library in 1992, evidence concerning several individuals' experience with the existing "work-at-home" policy, and copies of flexiplace agreements in other collective bargaining contracts.

    b. The Employer's Position

    The Library opposes the Union's proposal and has no counterproposal on a flexiplace program. The Library's opposition is based on its estimate of the costliness of the program, the scope of the bargaining unit covered, the heightened concern with the security of the Library collection and materials being catalogued for the collection and for the copyright office, and limits on management's decision-making respecting the pilot. In this regard, the Library has raised the non-negotiability of sections 8 and 9 of the Union's last proposal.

    The Library offered testimony and other evidence concerning the security at the Library and the political sensitivity of that issue, and about economic issues raised, in particular, by the newer technology required for such work as cataloging, as well as other costs that could be incurred in a flexiplace program.

Conclusions

    This being a final-offer arbitration, it is "all-or-nothing" with respect to the Union's proposal. After carefully considering the record and arguments made, the Arbitrator has determined not to adopt the Union's final proposal based on the following considerations.

    While it is true that Government policy statements strongly support flexiplace, they make plain that flexiplace is a "management option" (to quote OPM), not an employee right, with implementation only justified by tangible benefits to the agency. As a pilot, to test whether such benefits would accrue to the Library, the Union's proposed pilot suffers from being too long (most of the other examples it cited were 6 months, the longest 12 months), and too broad (again, the other pilots cited are more limited and focused within work organizations or job categories). The final proposal does allow management to "demonstrate" operational considerations for excluding categories of positions, but the 5 percent remains as a fixed minimum. And, the requirement to "demonstrate" grounds for an exception is an invitation for continuing disputes and litigation, easily predictable from the nature of the relationship between these parties.

    At bottom, the Arbitrator is not satisfied that the Union proposal adequately recognizes the security issues (e.g., posing a daunting challenge to letting catalogers or copyright examiners take home uninventoried, or irreplaceable materials, or materials for which a "chain-of-custody" is essential), or cost issues (such as the expense of new bibliographic workstations, not a factor in 1992, for instance). The 1992 Special Project Study recommended much more narrowly drawn pilots, and that was before security became a major issue and before significant technological changes in cataloging. The parties have not demonstrated a collective bargaining relationship that the Arbitrator is confident can support a joint, good faith effort to work through these tough issues together.

    The Arbitrator believes that flexiplace is a concept that could be put to some good use at the Library, and views as regrettable that these parties have been unable to take even the first step in testing it. But the Union's proposal is fraught with the potential for unintended consequences, and costs, and continuing conflict. The stakes are high enough that, in this Arbitrator's view, implementing flexiplace at the Library at this juncture is going to require a joint buy-in and the collaboration of the parties on a much more careful introduction.

12. ARTICLE 31. PROFESSIONAL DEVELOPMENT AND TRAINING, SECTION 1(c).

    The sole issue here concerns the amount of official time to be granted to members of the Professional Policies and Development Committee ("Committee") established by Article 31.

    a. The Union's Position

    The Union proposes a "reasonable amount of time." The Committee has expanded duties under the new agreement (addressing staff and professional utilization) with the same number of members. Past operations have been hampered by inadequate time to address the issues presented.

    b. The Employer's Position

    The Library proposes: "time off from regular duties, not to exceed forty (40) hours annually." This is the status quo. The Library opposes an open-ended grant of official time which is difficult to administer. An hourly limit eliminates contentiousness between employee and supervisor. This Committee is advisory, only. It does not make policy or get into operational issues. At times it has not been active.

Conclusions

    Under Article 31, the Committee is to meet monthly to consider and make recommendations to the Library on current and future career development and training programs, policies and procedures, and on implementing Article 31. Section 4(A) lists some specific possible program initiatives for the Committee to consider and also charges the Committee with developing a survey form and guidelines for a staff skills database. The evidence does not demonstrate that the Committee has ever functioned to the limits permitted under the current language and the Arbitrator is unpersuaded that the Union's change is needed to permit the Committee to carry out the obligations imposed by Article 31. The Arbitrator adopts the Employer proposal.

AWARD

    The parties shall adopt the following:

1. ARTICLE 2. MANAGEMENT RIGHTS, SECTION 3:

    The Employer's proposal.

2. ARTICLE 3. EMPLOYEE RIGHTS, SECTION 1:

    The Employer's proposal.

3. ARTICLE 3. EMPLOYEE RIGHTS, SECTION 6:

    The Union's proposal.

4. ARTICLE 3. EMPLOYEE RIGHTS, SECTION 7:

    The Employer's proposal.

5. ARTICLE 3. EMPLOYEE RIGHTS, SECTION 15C:

    The Employer's proposal.

6. ARTICLE 5. GUILD RIGHTS, SECTION 10:

    The Union's proposal.

7. ARTICLE 6. GUILD REPRESENTATION, SECTION 3(D):

    The Union shall withdraw its proposal.

8. ARTICLE 17. PERFORMANCE EVALUATION, SECTION 14:

    The Employer’s proposal.

9. MERIT SELECTION PLAN. SECTION VI, c(2):

    The Union's proposal.

10. ARTICLE 20. DETAILS, SECTION 12:

    The Union's proposal.

11. ARTICLE 26. FLEXIPLACE:

    The Union shall withdraw its proposal.

12. Article 31. PROFESSIONAL DEVELOPMENT AND TRAINING. SECTION 1C:

    The Employer's p