United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
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In the Matter of LIBRARY OF CONGRESS WASHINGTON, D.C. |
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and LOCAL 2477, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO
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Case No. 01 FSIP 6
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DECISION AND ORDER
The Library of Congress, Washington, D.C. (Employer or Library) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and Local 2477, American Federation of State, County and Municipal Employees, AFL-CIO (Union).
After investigation of the request for assistance, which concerned disputes over 54 provisions within 12 articles of a successor collective-bargaining agreement (CBA), the Panel directed the parties to participate in an informal conference with a Panel representative for the purpose of resolving four articles, Article 11 (Employee Rights); Article 14 (Equal Employment Opportunity); Article 25 (Hours of Work); and Article 43 (Performance Awards).(1) The parties were advised that if no settlement were reached, the representative would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Pursuant to this procedural determination, Panel Member Marvin Johnson conducted an informal conference with the parties on February 20 and 21, 2001, in the Panel’s offices in Washington, D.C. During those sessions, the parties were able to resolve in its entirety Article 25, Hours of Duty, as well as several provisions within the other disputed articles. However, at the close of the proceeding, the parties remained at impasse over four provisions. Member Johnson has reported to the Panel, and it has now considered the entire record, including the parties’ written post-conference statements in support of their final offers on the issues.
BACKGROUND
The Employer has several missions; among the more significant, it serves Congress, academia, and library communities by cataloguing books and maps; it serves as the national library and the official repository for books and documents in the United States; it also includes the Copyright Office and the national library for the blind and handicapped. There are approximately 1,400 nonprofessional employees in the bargaining unit. Typical employee positions are library technician, clerk, and secretary. The majority of bargaining-unit employees are stationed in the Madison, Jefferson, and Adams Buildings on Capitol Hill. The parties’ current CBA, which was to have expired in November 1995, has been continued until a successor agreement is implemented.
ISSUES AT IMPASSE
The parties disagree over one provision within Article 11, Employee Rights, Section 23, (teleworking task force); two provisions in Article 14, Equal Employment Opportunity, Sections 7 and 10; and Article 43, Performance Awards.
1. Article 11, Hours of Work, Section 23 (Teleworking)
a. Employer’s Position
The Employer proposes the following wording:
In an effort to determine the benefits which may accrue to the Library and to employees by establishing Teleworking, the parties will establish a joint task force. Teleworking is defined as a flexible work arrangement that allows employees to work offsite for some part of their workweek.
The provision is a prefatory statement which sets forth the parties’ objective in establishing a task force to study teleworking. It defines the term "teleworking" for employees so that they are clear on its meaning. Most significantly, the proposed wording makes no judgements or predictions as to the findings of the task force.
b. Union’s Position
The Union proposes the following wording:
LC management and Local 2477 jointly recognize the mutual benefits of a flexible workplace program for the Library and its employees. In recognizing these benefits, both parties also acknowledge the needs of the Library to accomplish its mission.
Wording which presupposes that teleworking would be of mutual benefit to employees and management should be included in the introductory statement. In this regard, legislation and Government-wide policy on family-friendly workplaces already have reached that conclusion.
CONCLUSIONS
After considering the parties’ positions, we conclude that the dispute over this issue is best resolved by requiring that both proposals be withdrawn. In our view, if the parties cannot voluntarily reach an accord with respect to a "philosophy" on the matter of a teleworking task force, then we see no need to impose one upon them. In this regard, during the informal conference the parties agreed on the parameters for the task force. The elimination of their proposed prefatory statements would not affect the agreed-upon language. Accordingly, we shall order the parties to withdraw their proposals.
2. Article 14, Equal Employment Opportunity, Section 7
a. Employer’s Position
The Employer proposes to include wording which states that "(t)he Library acknowledges its responsibility to evaluate the effectiveness of management officials who are charged with implementing provisions of the Equal Employment Opportunity Act of 1972." The proposed provision, along with the parties’ agreed-upon wording in Article 14, Section 1, to "promote actively the goal of equal employment opportunity," and the requirement in every manager’s position description to insure that "the Library’s commitment to eliminate discrimination . . . is carried out in all aspects of personnel management" adequately addresses the Union’s desire that managers be held accountable for the success of the Equal Employment Opportunity (EEO) program.
b. The Union proposes the following:
In accordance with Article 36, Accountability, the Library will evaluate the effectiveness of this Article, and/or the Library’s EEO program. Evaluations will be conducted in accordance with Article 3, Library/Union Cooperation Committee. The Union and management will be given written notification upon completion of a review of alleged violation. Notification will include: a summary of the allegations, a statement of facts gathered, an outline of action taken, and expected results. Violation of this Article or the Library’s EEO program will be subject to recommendations made by the committee and approved by the Library.
The proposed provision would enhance oversight of, and accountability for, the parties’ commitment to promote the goals of the EEO laws. In this regard, it would require the Employer to take seriously violations of EEO laws, the parties’ agreement on EEO matters, and Library regulations concerning EEO and non-discrimination, by holding managers and supervisors accountable. Furthermore, having the parties’ Library/Union Cooperation Committee evaluate the effectiveness of the Library’s EEO program and Article 14 (EEO), establishes a needed oversight mechanism which has been absent for the past 5 years due to the vacant management position responsible for oversight (Associate Librarian for Management). The parties would be able to utilize a previously agreed-upon joint standing committee to ensure the Employer’s commitment to a workplace that is free of discriminatory practices. There is a need for the provision because, according to the Union, there has been an increase in the number of managers and supervisors who are "repeat offenders" in terms of violating EEO laws, regulations, and relevant EEO provisions of the parties’ CBA. This suggests that greater vigilance may be required, because the Employer may not be taking adequate corrective action to stem the trend of "repeat offenders." Finally, input by a joint committee may focus management on the seriousness of the problem.
CONCLUSIONS
Having carefully considered the parties’ proposals and positions on this issue, we find that the matter should be resolved on the basis of compromise wording. An examination of the record reveals that the parties already have agreed to contract provisions which provide for oversight and evaluation of the Library’s EEO program. In our view, additional procedures are not required, particularly in the absence of any evidence in the record that certain managers repeatedly are found in violation of EEO requirements. Therefore, rather than create another avenue of review, we shall order the parties to adopt wording which provides that "(i)n accordance with Article 36, Accountability, and Sections 10 and 11(2) below, the Library will provide the Union with a copy of its evaluation/review of the Library’s EEO Program and discuss the results with the Union." Our approach pulls together wording of related sections of the parties’ CBA that provide for oversight and commitment to the parties’ EEO goals. Additionally, we believe that it should serve to emphasize the parties’ commitment to oversight and accountability.
3. Article 14, Equal Employment Opportunity, Section 10
a. Employer’s Position
The Employer proposes that Section 10 provide as follows:
At the time the formal complaint is filed, the agency will issue a letter to the employee acknowledging that the employee has the right to sue in Federal court after 180 days, if the complaint has not been satisfactorily resolved. Additionally, the Library will issue another notice to the complainant of the right to sue in Federal court at the end of the 180-day period, if no settlement or final agency decision has been rendered.
This wording would provide complainants with two notices of their right to sue in Federal court in the event that a final agency decision (FAD) is not issued or a settlement is not reached within 180 days of the filing of the formal complaint.
b. Union’s Position
The Union proposes the following:
Pursuant to Section 11 of LCR 2010-3.1, and consistent with Section 717 of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. Section 2000e-16, the Librarian will issue a final agency decision on a complaint of discrimination to the Equal Employment Opportunity Complaints Office (EEOCO). In the event the complainant has requested a hearing in order to appeal to the EEOCO Chief’s decision under Section 9 of LCR 2010-3.1, the 180 days may be extended for not more than an additional 90 days after notice to the complainant and the Union.
The intent of the provision is to help quicken the process utilized by the Employer for its investigation of formal complaints of discrimination and help ensure that an FAD on the complaint is issued by the Librarian within a reasonable period of time. According to the Union, the Employer has an "abysmal" record for failing to timely investigate formal complaints of discrimination and it takes the Employer months, and sometimes years, before a contract investigator is even assigned to the case. Although complainants can "go to court" if the Library takes no action on the complaint after 180 days, this is not a realistic option for most employees because they cannot afford to have an attorney represent them in a civil case. Almost all employees who utilize agency procedures for resolving the EEO complaints are not represented by counsel. These employees would benefit greatly from more expeditious treatment of the complaints, as the proposal would require. Complaints that are investigated quickly have a greater chance of being resolved; moreover, complainants have more faith in a process if they know that their issues are being addressed in a timely manner.
CONCLUSIONS
Upon careful and complete consideration of the parties’ proposals and positions on this matter, we are persuaded that their dispute should be resolved on the basis of a modified version of the Employer’s proposal. Preliminarily, we note that the Union’s allegations regarding the Employer’s failure to investigate formal complaints of discrimination in a timely manner is largely unsupported by evidence. Even assuming the allegations are true, however, we fail to see how the proposed wording would have the effect of quickening the formal complaint investigation process, as intended by the Union. Moreover, to the extent that the Union is alleging that the Employer is failing to abide by its own EEO regulations, there appear to be more effective ways of enforcing the regulations than by the adoption of the wording it proposes.
An examination of the Employer’s EEO regulations, LCR 2010-3.1 (April 20, 1983), does not indicate that, as part of the procedural requirements, individual EEO complainants are notified that 180 days after filing a formal complaint they may initiate civil litigation. The Employer’s proposal would inform employees of this right by including a reference to it in the parties’ CBA. Accordingly, we shall impose the Employer’s proposal, with the second sentence restructured, as set forth in our Order below, to make clear to the parties that there is only one 180-day period, which runs from the filing of the formal complaint, after which the complainant may elect to initiate a law suit in Federal court.
4. Article 43, Performance Awards
a. Employer’s Position
The Employer proposes that the performance awards article include only a reference to the current awards program as outlined in its regulations, LCR 2017-3, Suggestion and Incentive Awards Program, and a listing of the types of awards for which cash allotments may be made (i.e., invention or suggestion awards, special achievement awards, and on-the-spot awards). The article also would inform employees that non-cash honorary awards are available, including time-off awards, which the parties have agreed to elsewhere in the successor CBA. The provision would put employees on notice of the existence of certain types of awards available to them that are described in greater detail in the Employer’s regulations. The proposed provision would retain the current comprehensive awards system under which significant amounts of money have been distributed annually to employees. There is no demonstrated need to change from the current practices because data maintained by the Employer indicates that, over the past 3 years, 30 percent of all bargaining-unit employees have received cash awards under this system and that the dollar amount of awards has been increasing annually. Furthermore, the parties already have added to the awards system by agreeing to an article concerning time-off awards.
The Union’s proposal would be administratively burdensome to implement because it would require a new mechanism for tracking awards completely foreign to the Library. Furthermore, with respect to that aspect of the Union’s proposal which mandates an award for a certain level of performance, it is substantively identical to a proposal found nonnegotiable by the Federal Labor Relations Authority (FLRA) in American Federation of State, County and Municipal Employees, AFL-CIO, Locals 2477 and 2910 and Library of Congress, 17 FLRA 786 (1985) because it would interfere with management’s right to direct work by setting the level of reward for successful performance. Moreover, even if the matter were negotiable, the Union has not laid any foundation for the range of money to be awarded by the Employer.
b. Union’s Position
Essentially, the Union proposes that, with the exception of special achievement awards which would continue pursuant to existing regulations, the parties should implement a new performance awards program. In this regard, within 90 days of implementation of the successor CBA, all bargaining-unit employees would be divided into "pay-deciding units" (PDU) for awards purposes; each PDU would be under a Pay Deciding Official, unless the parties agree otherwise. Within 30 days of the issuance of awards, the Union would be notified of the amount of money in the annual awards budget for each PDU. The Employer would be required to fully utilize the awards budget. An employee who receives an annual performance rating of "outstanding" would receive a performance award and/or quality step increase; an employee rated "excellent" normally would receive a performance award. Furthermore, employees within the same PDU who are at the same grade level and receive equivalent performance ratings could expect to receive similar awards. The amount of performance awards would be as follows: For an "outstanding" rating, an employee would receive between $500 and $2,000; for an "excellent" rating, an employee would receive between $400 and $1,500. Performance awards would be presented to employees within 60 days of receipt of their performance ratings, but in no event later than the end of the fiscal year. The Union would be notified of the awards decisions for each PDU, with the information to include the grade, series, performance rating, and award received, if any, for each employee in the PDU.
Employees should have an awards system that is "based solely on their performance;" currently, the parties lack such a system and, increasingly, a performance rating of "outstanding" is not accompanied by monetary recognition. Moreover, the number of employees who have received quality step increases (QSI) over the past 5 years has been declining, with Union members particularly hard hit by the dwindling numbers of QSI awards.(3) The new awards system would help to ensure that outstanding and excellent performance is rewarded, thereby establishing a link between pay and performance. Rewarding good performers may help the Employer retain its best employees. The proposed awards system is identical to that found in the 1992 CBA between the Department of Labor and Local 12, American Federation of Government Employees, AFL-CIO, except that the Union’s proposal does not seek awards for performance that is rated "satisfactory."
CONCLUSIONS
After carefully considering the parties’ proposals and positions on this issue, we conclude that there is insufficient evidence in the record to establish that the current awards system should be altered.(4) It is well established that the party proposing to change the status quo bears the initial burden of demonstrating the need to do so. In this case, the only documentary evidence in the record supports the Employer’s position that a substantial number of unit employees have received cash awards over the past 3 years, and that the dollar amounts of awards have been increasing. Moreover, even if there had been a significant showing on the part of the Union that the current awards system is inadequate, we would not necessarily favor imposing an entirely new system which has no foundation in the parties’ past practices. Nevertheless, we are sympathetic to the Union’s concern that there may be decreasing numbers of awards given to employees who earn performance ratings of "outstanding." Thus, although the parties shall be ordered to adopt the Employer’s proposal on this article, we also shall require that the article be supplemented with wording, as set forth in the Order below, that the Union be provided with information concerning performance ratings and the distribution of awards. In our view, the Union should have access to such information so that it can monitor the awards program and, if necessary, discuss with the Employer any issues which arise concerning the program’s fairness and effectiveness.
ORDER
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:
1. Article 11, Hours of Work, Section 23 (Teleworking)
The parties shall withdraw their proposals.
2. Article 14, Equal Employment Opportunity, Section 7
The parties shall adopt the following compromise wording:
In accordance with Article 36, Accountability, and Sections 10 and 11 below,(5) the Library will provide the Union with a copy of its evaluation/review of the Library’s EEO Program and discuss the results with the Union.
3. Article 14, Equal Employment Opportunity, Section 10
The parties shall adopt the following modified version of the Employer’s proposal:
At the time the formal complaint is filed, the agency will issue a letter to the employee acknowledging that the employee has the right to sue in Federal court after 180 days, if the complaint has not been satisfactorily resolved. Additionally, at the end of the 180-day period, the Library will issue another notice to the complainant of the right to sue in Federal court, if no settlement or final agency decision has been rendered.
4. Article 43, Performance Awards
The parties shall adopt the following modified version of the Employer’s proposal:
The Library agrees to continue its present awards program as outlined in LCR 2017-3, Suggestion and Incentive Awards Program, which provides for cash and/or honorary awards for:
1. Invention or Suggestion 2. Special Achievement 3. On-the Spot Awards 4. Honorary Awards for Meritorious, Superior and Distinguished Service.The parties have agreed to a separate article for Time-Off Awards.
The Library will provide the Union with an annual summary of awards given to bargaining-unit employees, including, at a minimum, the number of bargaining-unit employees; the number of awards given to them; the percentage of bargaining-unit employees receiving awards; the award amounts; and the number of awards given broken down by grades, departments, and performance ratings of the recipients.
By direction of the Panel.
H. Joseph Schimansky
Executive Director
April 2, 2001
Washington, D.C.
1. With respect to all other unresolved issues, the parties accepted the Panel’s recommendation that they be submitted to an individual of their choice for mediation/arbitration.
2. Our references in the compromise wording to Sections 10 and 11, refer to the wording in the parties’ current CBA which is being rolled over into a successor agreement. The parties appear to be using different section numbers for Article 14 as it is to appear in the successor CBA; the appropriate section numbering will be determined when the parties edit the successor CBA for publication.
3. The Union did not submit any documentary evidence in support of these contentions.
4. Since we are resolving the issue on the basis of a modified version of the Employer’s proposal, it is unnecessary to address further the Employer’s negotiability arguments with respect to the Union’s proposal.
5. These section numbers may have to be modified by the parties to comport with the ordering of the sections in their successor Article 14.