09:0421(51)CA - Library of Congress and Congressional Research Employees Association (CREA), Independent -- 1982 FLRAdec CA
[ v09 p421 ]
09:0421(51)CA
The decision of the Authority follows:
9 FLRA No. 51
LIBRARY OF CONGRESS
Respondent
and
CONGRESSIONAL RESEARCH
EMPLOYEES ASSOCIATION (CREA),
INDEPENDENT
Charging Party
Case No. 3-CA-582
DECISION AND ORDER
THIS MATTER IS BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
TO A REGIONAL DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN
ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2429.1(A)).
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS
SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, THE AUTHORITY
FINDS:
THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT LIBRARY OF CONGRESS
(LIBRARY) VIOLATED SECTION 7116(A)(1) AND (5) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) BY REFUSING TO BARGAIN
IN GOOD FAITH WITH THE CHARGING PARTY, CONGRESSIONAL RESEARCH EMPLOYEES
ASSOCIATION (CREA), ON AND AFTER SEPTEMBER 10, 1979, CONCERNING CREA'S
PROPOSED CHANGES IN THE LIBRARY'S FISCAL YEAR 1980 AFFIRMATIVE ACTION
PLAN.
AT ALL TIMES MATERIAL HEREIN, THE LIBRARY HAS RECOGNIZED CREA AS THE
COLLECTIVE BARGAINING REPRESENTATIVE OF A UNIT OF ALL PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEES OF THE CONGRESSIONAL RESEARCH SERVICE, WITH
THE USUAL STATUTORY EXCLUSIONS. ON JUNE 22, 1979, THE LIBRARY SUBMITTED
ITS PROPOSED AFFIRMATIVE ACTION PLAN FOR FISCAL YEAR 1980 TO CREA. BY
VIRTUE OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, THE LIBRARY WAS
REQUIRED TO HAVE ITS 1980 AFFIRMATIVE ACTION PLAN IN PLACE BY OCTOBER 1,
1979. CREA RESPONDED WITH PROPOSALS CONCERNING THE AFFIRMATIVE ACTION
PLAN ON SEPTEMBER 10, 1979, AND THE PARTIES MET ON SEPTEMBER 27 AND 28,
AT WHICH TIMES THE LIBRARY CONSIDERED THE UNION PROPOSALS IN GOOD FAITH,
BUT DECLINED TO NEGOTIATE WITH CREA BEFORE IMPLEMENTING ITS PLAN. SINCE
ON OR ABOUT SEPTEMBER 10, 1979, AND CONTINUING TO DATE, THE LIBRARY HAS
REFUSED AND CONTINUES TO REFUSE TO BARGAIN IN GOOD FAITH CONCERNING THE
CREA'S PROPOSED CHANGES IN THE FISCAL YEAR 1980 AFFIRMATIVE ACTION PLAN.
WHILE CONCEDING THAT PROPOSALS RELATING TO DISCRIMINATION IN
EMPLOYMENT ARE WITHIN THE SCOPE OF THE DUTY TO BARGAIN UNDER THE
STATUTE, /1/ AND STIPULATING AS TO ITS REFUSAL TO BARGAIN, AS STATED
ABOVE, THE LIBRARY RAISES THREE AFFIRMATIVE DEFENSES. FIRST, THE
LIBRARY CONTENDS THAT THE PARTIES' AGREEMENT, CONSISTENT WITH THEIR PAST
PRACTICE, MERELY OBLIGATES THE LIBRARY TO CONFER WITH CREA ON ASPECTS OF
THE LIBRARY'S AFFIRMATIVE ACTION PLANS AND TO CONSIDER IN GOOD FAITH ALL
PROGRAMS PROPOSED BY CREA FOR INCLUSION THEREIN, BUT DOES NOT REQUIRE
THE LIBRARY TO BARGAIN WITH CREA ABOUT SUCH PROPOSED PROGRAMS. IN THIS
REGARD, THE LIBRARY ASSERTS THAT ITS REFUSAL TO BARGAIN IS BASED UPON A
REASONABLE INTERPRETATION OF THE PARTIES' AGREEMENT, AND THEREFORE IS
NOT A CLEAR UNILATERAL BREACH OF CONTRACT SO AS TO SUPPORT AN UNFAIR
LABOR PRACTICE FINDING BUT RATHER INVOLVES A DISPUTE OVER THE MEANING OF
THE AGREEMENT WHICH IS APPROPRIATE FOR RESOLUTION BY AN ARBITRATOR.
SECONDLY, IT IS ASSERTED THAT, "(W)HILE THE LIBRARY WOULD ORDINARILY BE
OBLIGED TO BARGAIN WITH THE CREA ABOUT AFFIRMATIVE ACTION PLANS UNDER
THE STATUTE (SEE AIR FORCE LOGISTICS COMMAND, SUPRA), THE CREA HAS MADE
A CLEAR AND UNMISTAKABLE WAIVER OF THIS STATUTORY RIGHT." /2/ IN THIS
CONNECTION, THE LIBRARY ASSERTS THAT, BY AGREEING TO ENGAGE IN INTEREST
ARBITRATION, "CREA WAIVED ANY (SUCH STATUTORY) RIGHTS WHICH MIGHT BE
DIMINISHED BY (THE) ARBITRATOR . . . ." FINALLY, THE LIBRARY CONTENDS
THAT ITS AFFIRMATIVE ACTION PLAN FOR FISCAL YEAR 1980 CONTAINED NO
PROPOSED CHANGES IN THE 1979 PLAN AND THEREFORE NO DUTY TO BARGAIN
EXISTED WITH RESPECT TO CHANGES PROPOSED BY THE CREA.
THE AUTHORITY FINDS THAT THE CONTENTIONS SET FORTH ABOVE CANNOT BE
SUSTAINED, AND THEREFORE CONCLUDES THAT THE LIBRARY'S CONCEDED REFUSAL
TO BARGAIN CONCERNING A NEGOTIABLE MATTER CONSTITUTES A VIOLATION OF
SECTION 7116(A)(1) AND (5) OF THE STATUTE, AS ALLEGED. THUS, AT THE
TIME THAT CREA REQUESTED AND THE LIBRARY REFUSED TO NEGOTIATE CONCERNING
THE AFFIRMATIVE ACTION PLAN FOR FISCAL YEAR 1980, THERE WAS NO AGREEMENT
YET IN EFFECT BETWEEN THE PARTIES. /3/ NOR DOES THE RECORD INDICATE
THAT THE LIBRARY ASSERTED THE EXISTENCE OF AN AGREEMENT AS THE BASIS FOR
REFUSING THE REQUEST BY CREA TO NEGOTIATE CONCERNING CHANGES IN THE
AFFIRMATIVE ACTION PLAN FOR FISCAL YEAR 1980. MOREOVER, THE LIBRARY'S
APPARENT RELIANCE ON PAST PRACTICE AS THE BASIS FOR REFUSING TO BARGAIN
WITH THE CREA CONCERNING THE FY 1980 AFFIRMATIVE ACTION PLAN IS
SIMILARLY MISPLACED, NOTING PARTICULARLY THE PARTIES' STIPULATION THAT
"(T)HE RESPONDENT NEGOTIATED WITH THE UNION OVER RESPONDENT'S PROPOSED
CHANGES IN THE AFFIRMATIVE ACTION PLANS FOR FISCAL YEAR 1979 AND FISCAL
YEAR 1978 . . . ."
AS TO THE LIBRARY'S RELATED ARGUMENT THAT THE CREA WAIVED ITS RIGHT
TO NEGOTIATE CONCERNING THE AFFIRMATIVE ACTION PLAN FOR FY 1980 BY
SUBSEQUENTLY EXECUTING THE AGREEMENT PROPOSED BY THE INTEREST
ARBITRATOR, THE AUTHORITY HAS PREVIOUSLY HELD THAT "A WAIVER WILL BE
FOUND ONLY IF IT CAN BE SHOWN THAT THE EXCLUSIVE REPRESENTATIVE CLEARLY
AND UNMISTAKABLY WAIVED ITS RIGHT TO NEGOTIATE." DEPARTMENT OF THE AIR
FORCE, U.S. AIR FORCE ACADEMY, 6 FLRA NO. 100 (1981); DEPARTMENT OF THE
AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS, 5 FLRA NO. 2 (1981). IN THE
INSTANT CASE, THERE IS NOTHING IN THE RECORD TO INDICATE THAT CREA
CONSCIOUSLY YIELDED ITS RIGHT TO NEGOTIATE CONCERNING THE 1980
AFFIRMATIVE ACTION PLAN EITHER BY THEREAFTER EXECUTING AN AGREEMENT
CONTAINING THE LANGUAGE SET FORTH AT N. 2, SUPRA, OR BY PREVIOUSLY
AGREEING TO PARTICIPATE IN INTEREST ARBITRATION.
FINALLY, WITH RESPECT TO THE ASSERTION THAT NO DUTY TO BARGAIN AROSE
BECAUSE THE LIBRARY MADE NO CHANGE IN THE PREVIOUS AFFIRMATIVE ACTION
PLAN, THE RECORD INDICATES THAT A NUMBER OF SUBSTANTIAL CHANGES WERE
MADE. /4/ IN ANY EVENT, THE LIBRARY'S CONTENTION THAT IT HAD NO DUTY TO
BARGAIN WITH REGARD TO CHANGES IN CONDITIONS OF EMPLOYMENT PROPOSED BY
THE CREA BUT ONLY WITH REGARD TO CHANGES PROPOSED BY THE LIBRARY IS
CLEARLY INCONSISTENT WITH THE DEFINITION AND PURPOSE OF "COLLECTIVE
BARGAINING" UNDER THE STATUTE, /5/ AND THEREFORE CANNOT BE SUSTAINED.
ACCORDINGLY, AS THE LIBRARY HAS STIPULATED ITS REFUSAL TO BARGAIN ON
THE MATTER AT ISSUE, THE AUTHORITY CONCLUDES THAT THE LIBRARY FAILED AND
REFUSED TO NEGOTIATE WITH CREA FROM SEPTEMBER 10, 1979 IN VIOLATION OF
SECTION 7116(A)(1) AND (5) OF THE STATUTE.
ORDER /6/
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE RESPONDENT LIBRARY OF CONGRESS,
WASHINGTON, D.C. SHALL:
1. CEASE AND DESIST FROM:
(A) ESTABLISHING OR IMPLEMENTING CHANGES IN AFFIRMATIVE ACTION PLANS
WITHOUT FIRST AFFORDING CONGRESSIONAL RESEARCH EMPLOYEES ASSOCIATION
(CREA), INDEPENDENT, EXCLUSIVE REPRESENTATIVE OF A UNIT OF RESPONDENT'S
EMPLOYEES, NOTICE AND OPPORTUNITY TO BARGAIN CONSONANT WITH THE
OBLIGATIONS IMPOSED BY THE STATUTE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST OF THE CONGRESSIONAL RESEARCH EMPLOYEES ASSOCIATION
(CREA), INDEPENDENT, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF THE
RESPONDENT'S EMPLOYEES, BARGAIN CONSONANT WITH THE OBLIGATIONS IMPOSED
BY THE STATUTE CONCERNING THE ESTABLISHMENT OF OR IMPLEMENTATION OF
CHANGES IN AFFIRMATIVE ACTION PLANS.
(B) POST AT ITS WASHINGTON, D.C. FACILITY COPIES OF THE ATTACHED
NOTICE ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS
AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
LIBRARIAN OF CONGRESS, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE LIBRARIAN OF CONGRESS SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR OF REGION III, IN WRITING, WITHIN 30
DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., JULY 13, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT ESTABLISH OR IMPLEMENT CHANGES IN AFFIRMATIVE ACTION PLANS
WITHOUT FIRST AFFORDING CONGRESSIONAL RESEARCH EMPLOYEES ASSOCIATION
(CREA), INDEPENDENT, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF OUR
EMPLOYEES, NOTICE AND OPPORTUNITY TO BARGAIN CONSONANT WITH THE
OBLIGATIONS IMPOSED BY THE STATUTE. WE WILL NOT IN ANY LIKE OR RELATED
MANNER INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE EXERCISE
OF THEIR RIGHTS ASSURED BY THE STATUTE. WE WILL, UPON REQUEST OF THE
CONGRESSIONAL RESEARCH EMPLOYEES ASSOCIATION (CREA), INDEPENDENT, THE
EXCLUSIVE REPRESENTATIVE OF A UNIT OF OUR EMPLOYEES, BARGAIN CONSONANT
WITH THE OBLIGATIONS IMPOSED BY THE STATUTE CONCERNING THE ESTABLISHMENT
OF OR IMPLEMENTATION OF CHANGES IN AFFIRMATIVE ACTION PLANS.
. . .
(AGENCY OR ACTIVITY)
DATED: . . . BY: (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60
CONSECUTIVE DAYS FROM THE DATE OF POSTING, AND MUST NOT BE ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL. IF EMPLOYEES HAVE ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ANY OF ITS
PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR,
REGION III, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 1111
18TH STREET, N.W., SUITE 700, WASHINGTON, D.C. 20036, AND WHOSE
TELEPHONE NUMBER IS: (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA
603, 615-619 (1980), ENFORCED AS TO OTHER MATTERS SUB NOM. DEPARTMENT OF
DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR.
1981), CERT. DENIED SUB NOM. AFGE V. FLRA, 50 LW 3669 (1982).
/2/ ARTICLE XI, SECTION 3 OF THE PARTIES' AGREEMENT PROVIDES AS
FOLLOWS:
SECTION 3. THE LIBRARY AGREES TO MEET AT REASONABLE TIMES NORMALLY
AT LEAST 90 DAYS PRIOR
TO PROPOSED IMPLEMENTATION OF AFFIRMATIVE ACTION PLANS AND CONFER IN
GOOD FAITH WITH RESPECT
TO ASPECTS OF SUCH PLANS AND PROGRAMS WHICH AFFECT PERSONNEL POLICIES
AND PRACTICES AND
MATTERS AFFECTING WORKING CONDITIONS. THE LIBRARY AGREES TO PROVIDE
OPPORTUNITY FOR
PARTICIPATION BY THE ASSOCIATION IN THE DEVELOPMENT OF ALL
AFFIRMATIVE ACTION PLANS AND TO
INSURE GOOD FAITH CONSIDERATION OF ALL SUGGESTED PROGRAMS PROPOSED BY
THE ASSOCIATION FOR
INCLUSION IN SUCH PLANS. THE LIBRARY AGREES TO MEET REASONABLE
REQUESTS FOR NON-PRIVILEGED
AND NON-CONFIDENTIAL DATA RELEVANT AND NECESSARY TO ASSIST IN SUCH
CONSIDERATIONS WITHIN
REASONABLE TIME.
/3/ THE RECORD INDICATES THAT THE AGREEMENT, INCLUDING ARTICLE XI,
SECTION 3 UPON WHICH THE LIBRARY RELIES (SUPRA N. 2), WAS EXECUTED ON
SEPTEMBER 20, 1979, AND ONLY BECAME EFFECTIVE 60 DAYS THEREAFTER.
/4/ FOR EXAMPLE, THE LIBRARY'S PROPOSED 1980 AFFIRMATIVE ACTION PLAN
CONTAINED TWO LESS TRAINING, APPRAISAL AND PROMOTION (TAP) POSITIONS
THAN THE PLAN FOR FISCAL YEAR 1979, AND ALSO BEGAN A POLICY OF
ALLOCATING 75% OF THE TUITION SUPPORT PROGRAM TO UNDERGRADUATES AND 25%
TO GRADUATES.
/5/ SECTION 7103(A)(12) OF THE STATUTE PROVIDES:
SEC. 7103. DEFINITIONS; APPLICATION
(A) FOR THE PURPOSE OF THIS CHAPTER--
(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH
EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH
EMPLOYEES AND TO EXECUTE, IF REQUESTED BY EITHER PARTY, A WRITTEN
DOCUMENT INCORPORATING ANY
COLLECTIVE BARGAINING AGREEMENT REACHED, BUT THE OBLIGATION REFERRED
TO IN THIS PARAGRAPH DOES
NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR TO MAKE A
CONCESSION(.)
SEE, GENERALLY, SECTION 7101 OF THE STATUTE REGARDING THE FINDINGS
AND PURPOSE OF CONGRESS RELATING TO COLLECTIVE BARGAINING FOR FEDERAL
EMPLOYEES.
/6/ INASMUCH AS THE LIBRARY'S AFFIRMATIVE ACTION PLAN FOR FISCAL YEAR
1980 HAS EXPIRED, THE AUTHORITY FINDS THAT IT WOULD NOT EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE TO ISSUE A STATUS QUO ANTE ORDER
HEREIN. RATHER, THE AUTHORITY WILL ORDER THE LIBRARY TO BARGAIN, UPON
REQUEST, CONCERNING THE ESTABLISHMENT OF, OR IMPLEMENTATION OF CHANGES
IN, AFFIRMATIVE ACTION PLANS AFFECTING EMPLOYEES IN THE BARGAINING UNIT
EXCLUSIVELY REPRESENTED BY THE CREA.