[ v23 p352 ]
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 qualifications rating panel service.