23:0352(49)CO - AFSCME Local 2910 and Library of Congress -- 1986 FLRAdec CO
[ v23 p352 ]
23:0352(49)CO
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.