09:0427(52)CA - Library of Congress and Library of Congress Professional Guild, Local 2910, AFSCME -- 1982 FLRAdec CA



[ v09 p427 ]
09:0427(52)CA
The decision of the Authority follows:


 9 FLRA No. 52
 
 LIBRARY OF CONGRESS
 Respondent
 
 and
 
 LIBRARY OF CONGRESS PROFESSIONAL
 GUILD, LOCAL 2910, AMERICAN
 FEDERATION OF STATE, COUNTY AND
 MUNICIPAL EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-624
 
                            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 (GUILD) SINCE SEPTEMBER 10, 1979,
 IN REGARD TO THE GUILD'S PROPOSED CHANGES IN THE LIBRARY'S FISCAL YEAR
 1980 AFFIRMATIVE ACTION PLAN.
 
    AT ALL TIMES MATERIAL HEREIN, THE LIBRARY HAS RECOGNIZED THE GUILD AS
 THE EXCLUSIVE BARGAINING REPRESENTATIVE OF A UNIT OF ITS PROFESSIONAL
 EMPLOYEES, AND HAS BEEN A PARTY TO A COLLECTIVE BARGAINING AGREEMENT
 WITH THE GUILD COVERING SUCH UNIT.  ON JUNE 22, 1979, THE LIBRARY
 SUBMITTED ITS PROPOSED FISCAL YEAR 1980 AFFIRMATIVE ACTION PLAN TO THE
 GUILD.  ON JUNE 29, THE GUILD REQUESTED THAT THE LIBRARY BEGIN
 NEGOTIATIONS ON THE SUBJECT, AND, ON SEPTEMBER 10, SUBMITTED ITS
 PROPOSAL CONCERNING THE FISCAL YEAR 1980 AFFIRMATIVE ACTION PLAN AND
 AGAIN REQUESTED NEGOTIATIONS.  THE PARTIES MET ON SEPTEMBER 27 AND 28,
 1979;  THE LIBRARY CONSIDERED THE GUILD'S PROPOSALS IN GOOD FAITH, BUT
 DECLINED TO NEGOTIATE WITH THE GUILD BEFORE IMPLEMENTING ITS 1980
 AFFIRMATIVE ACTION PLAN ON OCTOBER 1, AS REQUIRED BY LAW.  SINCE ON OR
 ABOUT SEPTEMBER 10, 1979, AND CONTINUING TO DATE, THE LIBRARY HAS
 REFUSED AND CONTINUES TO REFUSE TO NEGOTIATE REGARDING THE GUILD'S
 PROPOSED CHANGES IN THE FY 1980 AFFIRMATIVE ACTION PLAN.  HOWEVER, THE
 LIBRARY DID NEGOTIATE WITH THE GUILD CONCERNING PROPOSED CHANGES IN THE
 AFFIRMATIVE ACTION PLANS FOR FISCAL YEARS 1979 AND 1978.
 
    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 CONCERNING THE FISCAL
 YEAR 1980 AFFIRMATIVE ACTION PLAN, THE LIBRARY RAISES THREE SPECIFIC
 DEFENSES.  FIRST, THE LIBRARY CONTENDS THAT THE PARTIES' AGREEMENT ONLY
 ACCORDS THE GUILD A RIGHT TO BARGAIN CONCERNING THE LIBRARY'S CHANGES IN
 AFFIRMATIVE ACTION PLANS WHEREAS CHANGES INITIATED BY THE GUILD MAY NOT
 BE CONSIDERED, /2/ AND THAT THE DISPUTE SHOULD BE RESOLVED THROUGH
 ARBITRATION AND NOT AN UNFAIR LABOR PRACTICE PROCEEDING BECAUSE THIS IS
 AN ARGUABLE INTERPRETATION OF THE AGREEMENT.  SECONDLY, THE LIBRARY
 ASSERTS THAT THE GUILD HAS UNMISTAKABLY WAIVED ITS RIGHTS UNDER THE
 STATUTE TO BARGAIN ABOUT AFFIRMATIVE ACTION PLANS BECAUSE OF THE
 LANGUAGE IN THE PARTIES' AGREEMENT (N. 2, SUPRA) AND BY VIRTUE OF PAST
 CONDUCT.  IN THE LATTER REGARD, THE LIBRARY ARGUES THAT IN FISCAL YEARS
 1979 AND 1978 THE PARTIES BARGAINED OVER PLANS PROPOSED BY THE LIBRARY
 AND INCORPORATED CHANGES THERETO SUGGESTED BY THE GUILD.  FINALLY, THE
 LIBRARY CONTENDS THAT IT PROPOSED NO CHANGES IN THE PREEXISTING
 AFFIRMATIVE ACTION PLAN FOR FISCAL YEAR 1980, AND THEREFORE HAD NO DUTY
 TO BARGAIN WITH THE GUILD DURING THE LIFE OF THE EXISTING AGREEMENT.
 
    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, THE
 LIBRARY'S FIRST CONTENTION TO THE EFFECT THAT THE EXISTING AGREEMENT
 BETWEEN THE PARTIES PRECLUDED BARGAINING ON GUILD-INITIATED PROPOSED
 CHANGES IN THE LIBRARY'S AFFIRMATIVE ACTION PLAN IS, IN EFFECT, A
 RESTATEMENT OF THE SECOND ARGUMENT THAT THE GUILD CLEARLY WAIVED THE
 RIGHT TO BARGAIN CONCERNING AFFIRMATIVE ACTION PLANS BY VIRTUE OF
 LANGUAGE IN THE AGREEMENT AND THE GUILD'S PRIOR CONDUCT.  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, NEITHER
 THE LANGUAGE OF THE AGREEMENT NOR THE GUILD'S PRIOR CONDUCT IN
 RESPONDING TO THE LIBRARY'S PROPOSED CHANGES IN THE PREVIOUS AFFIRMATIVE
 ACTION PLAN RATHER THAN INITIATING PROPOSED CHANGES OF ITS OWN
 DEMONSTRATES THAT THE GUILD CONSCIOUSLY YIELDED ITS RIGHT TO NEGOTIATE
 CONCERNING THE FISCAL YEAR 1980 AFFIRMATIVE ACTION PLAN.  SIMILARLY, THE
 LIBRARY'S CONTENTION THAT IT HAD NO DUTY AND THE GUILD HAD NO RIGHT TO
 BARGAIN BECAUSE THE LIBRARY PROPOSED NO CHANGES IN THE FISCAL YEAR 1979
 AFFIRMATIVE ACTION PLAN CANNOT BE SUSTAINED.  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.  IN ANY EVENT, SUCH AN ASSERTION IS
 CLEARLY INCONSISTENT WITH THE DEFINITION AND PURPOSE OF "COLLECTIVE
 BARGAINING" UNDER THE STATUTE.  SEE LIBRARY OF CONGRESS, 9 FLRA NO. 51
 (1982).  /3/
 
    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 THE GUILD FROM SEPTEMBER 10, 1979 IN VIOLATION
 OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.
 
                                 ORDER /4/
 
    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 AFFIRMATIVE ACTION PLANS WITHOUT
 FIRST AFFORDING LIBRARY OF CONGRESS PROFESSIONAL GUILD, LOCAL 2910,
 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO,
 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
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) UPON REQUEST OF THE LIBRARY OF CONGRESS PROFESSIONAL GUILD, LOCAL
 2910, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,
 AFL-CIO, THE