[ 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 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 LIBRARY OF CONGRESS PROFESSIONAL GUILD, LOCAL
2910, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,
AFL-CIO, 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 EMPLOYEES IN THE EXERCISE OF
THEIR RIGHTS ASSURED BY THE STATUTE. WE WILL, UPON REQUEST OF THE
LIBRARY OF CONGRESS PROFESSIONAL GUILD, LOCAL 2910, AMERICAN FEDERATION
OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, 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.
. . .
(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) 653-8507.
--------------- FOOTNOTES$ ---------------
/1/ IN STATING THAT THE MATTER AT ISSUE IS GENERALLY NEGOTIABLE, THE
LIBRARY REFERS TO THE AUTHORITY'S DECISION IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 603, 615-19 (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/ THE PERTINENT PROVISION OF THE COLLECTIVE BARGAINING AGREEMENT,
ARTICLE IX, SECTION 3, READS AS FOLLOWS:
SECTION 3. THE PARTIES RECOGNIZE AND UNDERSTAND THE REQUIREMENTS
IMPOSED ON THE LIBRARY BY
THE EQUAL OPPORTUNITY ACT OF 1972. IT IS UNDERSTOOD AND AGREED THAT
THE LIBRARIAN OF CONGRESS
IS, BY THAT ACT, ASSIGNED THE RESPONSIBILITY FOR CARRYING OUT ALL
EQUAL EMPLOYMENT PLANS AND
PROGRAMS OF THE LIBRARY.
THE LIBRARY AGREES TO MEET AT REASONABLE TIMES, NORMALLY AT LEAST 90
DAYS PRIOR TO THE
IMPLEMENTATION OF THE PLANS, TO CONFER IN GOOD FAITH WITH RESPECT TO
ALL ASPECTS OF SUCH PLANS
AND PROGRAMS WHICH AFFECT PERSONNEL POLICIES AND MATTERS AFFECTING
WORKING CONDITIONS IN THE
LIBRARY, OF UNIT EMPLOYEES. THE LIBRARY AGREES TO PROVIDE MAXIMUM
OPPORTUNITY FOR
PARTICIPATION BY THE GUILD IN THE DEVELOPMENT OF ALL AFFIRMATIVE
ACTION PLANS AND TO INSURE
FULL CONSIDERATION OF ALL SUGGESTED PROGRAMS PROPOSED BY THE GUILD
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 A
REASONABLE TIME.
/3/ IN SO CONCLUDING, THE AUTHORITY FINDS IT UNNECESSARY TO DECIDE
WHETHER THE GUILD WOULD HAVE HAD THE RIGHT TO NEGOTIATE CONCERNING
CHANGES IN THE FISCAL YEAR 1980 AFFIRMATIVE ACTION PLAN IF THE PARTIES
HAD REACHED AN AGREEMENT ON SUCH A PLAN FOR THE DURATION OF THEIR
CONTRACT AND FEDERAL LAW DID NOT REQUIRE THE LIBRARY TO IMPLEMENT AN
AFFIRMATIVE ACTION PLAN BY OCTOBER 1 OF EACH YEAR. IN ADDITION, THE
AUTHORITY FINDS IT UNNECESSARY TO DECIDE WHETHER, OR TO WHAT EXTENT, THE
LIBRARY MADE CHANGES IN THE PREEXISTING AFFIRMATIVE ACTION PLAN.
/4/ 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 GUILD.