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