[ v15 p589 ]
15:0589(128)CA
The decision of the Authority follows:
15 FLRA No. 128
LIBRARY OF CONGRESS
Respondent
and
CONGRESSIONAL RESEARCH EMPLOYEES
ASSOCIATION
Charging Party
Case No. 3-CA-2540
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent, Library of
Congress, had engaged in certain unfair labor practices alleged in the
complaint, and recommending that it cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent filed exceptions
to the Judge's Decision and the Charging Party, Congressional Research
Employees Association, filed an opposition to the Respondent's
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 hereby adopts the
Judge's findings, conclusions and recommended Order, as modified below.
The complaint alleged, essentially, that the Respondent violated
section 7116(a)(1) and (5) of the Statute by failing to provide the
Charging Party with adequate notice and an opportunity to bargain
concerning the decision to effect a change in the system of operating
microwave ovens for use by unit employees as well as the procedures
leading to the implementation of the change and its impact on adversely
affected employees.
The Judge found that Respondent is subject to provisions of the
Randolph Sheppard Act, 20 U.S.C. 107 et seq., and implementing
regulations of the Department of Health and Human Services, 45
C.F.R.Part 1369, which provide for the operation of vending stands by
the blind in Federal buildings. Since 1945 the Respondent has been
party to an agreement for a vending stand with The Vocational
Rehabilitation Service of the District of Columbia (hereinafter District
Enterprises for the Blind, Inc.). The Judge found that a new vending
company which had been contracted by the District Enterprises for the
Blind, Inc. to provide food services in one of the Respondent's
facilities housing approximately 3,000 employees, installed a system
whereby tokens which were attached to certain food items purchased in
the company's vending machines were needed to operate the microwave
ovens. Previously, a different vending company had provided microwave
ovens which did not operate on a token system and which were used free
of charge by unit employees who brought food from outside sources as
well as by those employees who bought food from the vendor's machine.
The Judge concluded, in essence, that the change to the token system
of operation constituted a change in an established condition of
employment and that the Respondent's failure to afford the Charging
Party reasonable notice thereof and an opportunity to request
negotiations concerning impact and implementation before the change was
effectuated constituted a violation of section 7116(a)(1) and (5) of the
Statute. He found that while it was the new vending company which had
effected the change in the method of microwave oven operation, the
record clearly established that the Respondent could make requests and
recommendations to the vending company regarding its services and in
fact had done so in the past.
In agreement with the Judge, the Authority finds that the change to
the token system of operation from the use of microwave ovens by unit
employees free of charge constituted a change in an established
condition of employment. The Respondent does not dispute that the
introduction of the token system constituted a change in conditions of
employment for unit employees but argues that it had no duty to bargain
over changes in conditions of employment which are within the control of
an independent party, in this case, the vending company. However, the
Authority has previously held, in situations where agencies have
assertedly lacked control over the decision to effectuate various
proposed changes in their employees' conditions of employment and have
therefore contended that they had no bargaining obligation with regard
to those changes, that the Statute requires these agencies to bargain to
the extent of their discretion over such proposed changes even if that
discretion is limited to making requests or recommendations to the
entity which does have decision-making authority. See American
Federation of State, County and Municipal Employees, AFL-CIO, Local 2477
and Library of Congress, Washington, D.C., 7 FLRA 578 (1982), enforced
sub nom. Library of Congress v. Federal Labor Relations Authority, 699
F.2d 1280 (D.C. Cir. 1983); American Federation of Government
Employees, AFL-CIO, Local 51 and Department of the Treasury, Bureau of
the Mint, U.S. Assay Office, San Francisco, California, 9 FLRA 809
(1982); Internal Revenue Service, Chicago, Illinois, 9 FLRA 648 (1982);
American Federation of Government Employees, AFL-CIO, Local 32 and
Office of Personnel Management, Washington, D.C., 8 FLRA 409 (1982). In
the instant case, there is no indication in the record that the
Respondent's ability to negotiate regarding the subject matter of access
by employees to microwave ovens was precluded or limited by law or
regulation. Therefore, upon learning of the vending company's decision
to install the token system of operating the microwave ovens, the
Respondent was obligated to notify the Charging Party of the impending
change and, upon request, bargain over the change in an established
condition of employment-- i.e., continued access by unit employees to
microwave ovens free of charge. The Respondent's failure to fulfill its
bargaining obligation in this regard over the change in microwave oven
access, as well as the implementation of such change and the impact
thereof on unit employees constituted a violation of section 7116(a)(1)
and (5) of the Statute. /1/
The Authority further concludes that the Judge's finding of a section
7116(a)(1) and (5) violation based on the Respondent's furnishing of
false and misleading information to the Charging Party relative to the
Respondent's role in effecting the installation of the token system is
not properly before the Authority inasmuch as the complaint did not
contain such an allegation, and the General Counsel never sought to
amend the complaint at the hearing as permitted by section 2423.12(d) of
the Authority's Rules and Regulations. Accordingly, without passing on
whether the Respondent's conduct would have constituted an additional
unfair labor practice, the Authority cannot adopt this portion of the
Judge's Decision.
To remedy the unfair labor practice conduct herein, and noting
particularly the Respondent's failure to bargain over the substance of
the decision and the Judge's findings on the impact on unit employees,
the Authority finds that it will effectuate the purposes and policies of
the Statute to order a status quo ante remedy, i.e., restoration of the
practice whereby unit employees have the use of a microwave oven free of
charge. In this regard, the Authority shall order the Respondent to
restore, by whatever means it might find suitable consistent with
applicable law and regulation, free access to a microwave oven for unit
employees. The Respondent has not contended that it would in any manner
be precluded from complying with such an order. See Internal Revenue
Service, Los Angeles District, 10 FLRA 653 (1982).
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Library of Congress shall:
1. Cease and desist from:
(a) Changing established conditions of employment concerning employee
access to microwave ovens without first notifying the Congressional
Research Employees Association, the exclusive representative of unit
employees, and affording such representative the opportunity to bargain,
to the extent of the Library's discretion under any applicable law or
regulation, concerning the change, as well as the procedures to be
observed in implementing the change, and on appropriate arrangements for
employees adversely affected by the change.
(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) Consistent with applicable law and regulation, restore to unit
employees access to a microwave oven free of charge in the James Madison
Memorial Building.
(b) Provide adequate notice to the Congressional Research Employees
Association of any intended change concerning employee access to
microwave ovens and, upon request, afford such representative the
opportunity to bargain, to the extent of the Library's discretion under
any applicable law or regulation, concerning the change, and on
appropriate arrangements for employees adversely affected by such
change, and procedures to be observed in implementing such change.
(c) Post at the James Madison Memorial Building copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Such forms shall be signed by the Librarian of Congress, or
his designee, and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards and
other places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, 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., August 28, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 change established conditions of employment concerning
employee access to microwave ovens without first notifying the
Congressional Research Employees Association, the exclusive
representative of our employees, and affording such representative the
opportunity to bargain, to the extent of our discretion under any
applicable law or regulation, concerning the change, as well as the
procedures to be observed in implementing such changes, and on
appropriate arrangements for employees adversely affected by such
changes.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, consistent with applicable law and regulation, restore to
unit employees free access to a microwave oven in the James Madison
Memorial Building.
WE WILL provide adequate notice to the Congressional Research
Employees Association of any intended change concerning employee access
to microwave ovens and, upon request, afford such representative the
opportunity to bargain, to the extent of our discretion under any
applicable law or regulation, concerning the change, and on appropriate
arrangements for employees adversely affected by such change, and
procedures to be observed in implementing such change.
(Activity)
By: (Signature) (Title)
Dated: . . .
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 its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone
number is: (202) 653-8507.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-2540
Martin F. O'Donoghue, Jr., Esquire
Jerry Greenwood
For the Respondent
Sarah P. Collins
For the Charging Party
Patricia M. Eanet, Esquire
For the General Counsel
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region Three, Federal Labor Relations Authority,
Washington, D.C., against the Library of Congress (Respondent). The
complaint alleged, in substance, that Respondent violated sections
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101 et seq. (the Statute), by failing and refusing to
provide the Congressional Research Employees Association adequate notice
and an opportunity to negotiate the substance, impact, and procedures
leading to the implementation of a token system for use of the microwave
ovens in the employees' lounges. Respondent denied the allegation.
A hearing was held in this matter in Washington, D.C. The
Respondent, Charging Party, and the General Counsel were represented and
afforded full opportunity to be heard, adduce relevant evidence, examine
and cross-examine witness, and file post-hearing briefs. Based on the
entire record herein, including my observation of the witnesses and
their demeanor, the exhibits and other relevant evidence adduced at the
hearing, and the briefs, I make the following findings of fact,
conclusions of law, and recommendations.
Findings of Fact
The Congressional Research Employees Association (Charging Party or
Union), a labor organization within the meaning of section 7103(a)(4) of
the Statute, is the exclusive representative of an appropriate unit of
Respondent's employees. Respondent and the Union are parties to a
collective bargaining agreement which became effective September 20,
1979. Article XXVII, Section 3, Cafeterias and Snack Bars, provides, in
part, as follows:
A. Where the Library provides cafeteria service, vending
machine areas or snack bar service, it will negotiate with the
food service contractors to maintain and, to the extent funds are
available, attempt to provide the best possible services
consistent with the needs of Library employees and Library users.
(Joint Ex. 1, p. 69).
Respondent, Library of Congress, an agency within the meaning of
Section 7103(a)(3) of the Statute, is subject to the terms and
provisions of the Randolph Sheppard Act, 20 U.S.C. 107 et seq., as
amended, and implementing regulations of the Department of Health and
Human Services, 45 C.F.R.Part 1369, which provide for the operation of
vending stands by the blind in Federal buildings. Pursuant to the Act,
the Library of Congress entered into an agreement on July 24, 1945
whereby the Vocational Rehabilitation Service of the District of
Columbia (hereinafter District or District Enterprises for the Blind,
Inc.) licenses blind persons to operate a vending stand in the Library
of Congress. The licensing agreement is for an indefinite term. Under
the terms of the 1945 Agreement, the District agreed to replace any
operator whose service becomes unsatisfactory. The District further
agreed that, upon request of the Library at any time, it will remove the
stand. (Tr. 26, 33; Respondent's Exhibit 1).
The Library of Congress can also make requests or recommendations to
District Enterprises for the Blind, Inc. and to the operator licensed by
the District concerning products, services, and equipment installed in
its employee lounges. However, the Library cannot require changes in
such matters. (Tr. 46, 64-65, 78-79).
In July or August of 1980 two vending machine lounges for the use of
employees and the public opened on the second and fourth floors in the
James Madison Memorial Building of the Library of Congress. The Library
has 3,000 employees in the building. The District of Columbia granted a
license to United Vending to operate these two stands.
United Vending had microwave ovens available adjacent to its vending
machines. There were no signs or other indications that only persons
purchasing food from the vending machines could use the microwave ovens.
(Tr. 60). /2/ Employees used the microwave ovens on the second and
fourth floors of the James Madison Building, at no cost, to heat food
bought from the vending machines, or brought from home, or any other
source. (Tr. 14, 34). One particular employee, who did not purchase
products from the vending machines in part because he ate only kosher
food, regularly brought food from home for his lunch, which he heated in
the microwave ovens. (Tr. 18-20).
In the fall of 1980 the Library of Congress experienced problems with
the vending service of United Vending due to continuing refund
difficulties and vending machine failures. The Library requested that
District Enterprises for the Blind, Inc. require United Vending to
provide a vending attendant on the premises. The Library threatened to
otherwise demand that the operator be changed. Later, in December 1980,
the Library met with the president of United Vending to discuss specific
arrangements for such an attendant and the attendant's duties. (Tr. 37,
Respondent's Ex. 2, 3).
The vending machine service provided by United Vending still proved
highly unsatisfactory to the Library of Congress. Therefore, in
December 1980, Mr. Donald Jones, building manager for the Library of
Congress and liaison with contractors who operate the cafeteria and
snack bars in Library buildings, requested District of Columbia
Enterprises for the Blind to cancel its license with United Vending and
replace it with another vendor. This action was taken under the terms
of the 1945 Agreement, as noted, which provide that the District will
remove an operator in the event of unsatisfactory service. (Tr. 21,
37-38, Respondent's Ex. 2, 3).
The Library suggested and/or recommended to Mr. Herb Shieber, general
manager of District Enterprises for the Blind, that it would like to see
ARA Services replace United Vending. ARA Services already operated the
cafeteria and snack bar under a direct contract with the Library in the
James Madison Memorial Building. The Library felt that the chances of
improved service with ARA Services would be much greater, in part,
because of the Library's ready access to ARA Services due to the
cafeteria contract. Mr. Shieber agreed to consider ARA Services. (Tr.
39).
Subsequently, on February 6, 1981, Mr. Jones of the Library was
invited by District Enterprises to attend a contract negotiation meeting
between ARA and District Enterprises in order to ensure that the service
areas the Library was interested in would be covered satisfactorily in
the contract, e.g. refunds, hours, refills, maintenance. Mr. Jones
expressed the Library's preference concerning cans instead of cups for
soft drinks, which were ultimately provided. The matter of microwave
ovens was not discussed. At the conclusion of the meeting, Mr. Jones
understood that the District would contract with ARA for the vending
lounges in the James Madison Memorial Building. (Tr. 39-41).
Mr. Jones first became aware that ARA Services would install a token
system for use of its microwave ovens on February 10, 1981. He attended
a food conference at the Pentagon and was informed by the general
manager of ARA that the token system would be used by ARA in the
Library's vending lounges. Under the token system, the microwave ovens
can only be started by use of a token, which ARA attaches to compatible
products in its vending machines. A product must be purchased from the
vending machine in order to obtain the token to operate the microwave
oven. The system effectively prevents use of ARA's microwave ovens
without obtaining the token through purchases of compatible products
from ARA's vending machines. (Tr. 42-43).
On or about May 13, 1981 Union president Sarah Collins received a
memorandum, dated May 6, 1981, from Martin F. O'Donoghue, Chief, Labor
Relations Office, advising, in part, that District Enterprises for the
Blind had contracted with another company to take over the second and
fourth floor vending machine service as of May 15 or 16, 1981. At the
same time, Union president Collins was also furnished a copy of a
memorandum from Gerald Garvey, chief of the building management
division, to Martin O'Donoghue, chief of the labor relations office,
which stated, inter alia, that the Library's building management
division had requested that the vending company install a token system
and that the labor organization should be advised accordingly. The
memorandum also stated, in part, that, "Although this system would
prevent employees from placing food bought outside of the vending area
into the ovens, the benefits of the increased safety factor far outweigh
any staff inconveniences." (Joint Ex. 2).
The unrebutted testimony of the Library's witnesses, Mr. Jones and
Mr. Garvey, discloses that the building management division did not, in
fact, request installation of the token system. Mr. Jones and Mr.
Garvey thought the token system was a very good idea and decided to make
this misstatement of fact to the Union in order to "take the heat off
ARA." ARA had been subject to considerable recent criticism by the
Library staff and Unions, because it had made two price increases for
products in the cafeteria and snack bar. Mr. Jones and Mr. Garvey
thought the token system was a good idea because of two previous smoke
alarm incidents involving the microwaves. An employee had tried to dry
a pair of gloves in the microwave, and another smoldered a product by
repeated use of the microwave. (Tr. 66-68; 75-78).
The memorandum constituted the Union's first notice both of the
existence of such a token system and of the possibility of its
implementation. Following receipt of the memorandum, Collins telephoned
Garvey to obtain more information and left a message for him. Garvey
did not return the call. (Tr. 15-16; Joint Ex. 2, 3).
On May 15, 1981 ARA took over the operation of the Library's two
vending machine lounges on the second and fourth floors of the James
Madison Memorial Building and installed the token system for use of its
microwave ovens. Employees who are not vending machine purchasers can
no longer use the microwave ovens without have a token. The only change
for vending machine purchasers is that, instead of being able to use the
microwave for an unlimited amount of time, the purchaser is limited by
the token system to use for three minutes or less. This period of time
is compatible with the required heating of vending machine products.
(Tr. 43, 78).
After the change was made, the Union president received copies of a
petition signed by over 100 employees. The petition, sent to the
Library, objected to the installation of the token-operated microwave
ovens machines and threatened a voluntary boycott of all vending
machines "if the situation is not remedied expeditiously." (Tr. 16;
General Counsel's Ex. 2). The Union's unfair labor practice charge
followed. (General Counsel's Ex. 1(a)).
Discussion, Conclusions, and Recommendations
The General Counsel alleges that the Library unilaterally changed a
term and condition of employment, the use of microwave ovens in two
employee lounges, without providing the Union adequate notice, or an
opportunity to bargain over the substance, impact, and implementation of
the change.
The Library defends on the grounds that the microwave ovens are the
property, and are under the complete dominion and control, of a third
party, ARA Services, an independent, private sector employer. The
Library claims that, since the token system is beyond the Library's
control and authority to determine, it is not a condition of employment
over which there is a duty to bargain, relying on AFGE National Council
of Meat Graders and U.S. Department of Agriculture, Food Safety and
Quality Service, Meat Grading Branch, FLRC No. 77A-63, 6 FLRC 464
(1978). /3/ The Library asserts that the implementation did not involve
the exercise of any authority by the Library requiring impact and
implementation bargaining under section 7106(b)(2) and (3). The Library
also claims that no change in working conditions occurred when ARA
Services installed the token system for microwave ovens.
The duty to negotiate in good faith under the Statute requires that a
party afford the exclusive representative notice of proposed changes and
an opportunity to negotiate prior to making changes in established
conditions of employment during the term of a collective bargaining
agreement. Department of the Air Force, Scott Air Force Base, Illinois,
5 FLRA No. 2 (1981).
Where an agency has chosen to make available on site food services
for its employees, such as cafeteria service, vending machine areas, or
snack bar service, aspects of this service, which directly affect
working conditions, i.e., its adequacy and responsiveness to, or impact
on, the demonstrated needs of bargaining unit employees, may reasonably
be considered conditions of employment about which the agency and the
exclusive representative should bargain. Cf. Federal Employees Metal
Trades Council of Charleston, FLRC No. 72A-27, 1 FLRC 416 (1973);
Department of the Navy, Portsmouth Naval Shipyard, A/SLMR No. 508, 5
A/SLMR 247 (1975); Ford Motor Company v. NLRB, 99 S.Ct. 1842, 101 LRRM
2222 (U.S., 1979). The facts and circumstances of this case demonstrate
that the food service provided here, microwave ovens for employees' use
in heating food in employee vending machine lounges, was an established
past practice affecting the working conditions of unit employees. It
was, therefore, a condition of employment within the meaning of section
7103(a)(14). The change that was made, a change from unrestricted use
of the microwave ovens by employees for heating food to a system
requiring a token for the use of such ovens, constituted a change in an
established condition of employment.
The change had no substantial impact on employees who purchase food
from the vending machines, since they obtain tokens permitting their
continued use of the microwave ovens for appropriate amounts of time.
However, the change did have a substantial adverse impact on
non-purchasing employees who previously were able to use microwave ovens
to heat food brought from home or from other sources. /4/
The Library's position that the third party's (ARA Services) decision
to install a token system for use of the microwave ovens did not involve
the exercise of any authority by the Library requiring bargaining with
the Union is not supported by the record. The record shows that it was
the Library's exercise of its contractual right with the District to
demand the replacement of a vending machine operator as unsatisfactory
which resulted in the change of operators and in the new operator's
immediate change in the method of operating the microwave ovens.
The Library's exercise of its contractual right to demand the
replacement of the vending machine operator as unsatisfactory was a
reserved right of management under section 7106(a)(2)(B) "to make
determinations with respect to contracting out(.)" However, such right
is subject to negotiations, pursuant to section 7106(b)(2) and (3),
concerning the procedures which management officials will observe in
exercising its authority and appropriate arrangements for employees
adversely affected by the exercise of its authority. See National
Federation of Federal Employees, Local 1167 and Department of the Air
Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air
Force Base, Florida, 6 FLRA No. 105 (1981) at 6 FLRA 581-583. To the
extent that an agency has discretion with respect to a matter affecting
conditions of employment of its employees, that matter is within the
duty to bargain consistent with law, rules, and regulations, even if
such discretion is limited merely to making recommendations. Cf.
American Federation of State, County and Municipal Employees, AFL-CIO,
Local 2477, et al and Library of Congress, Washington, D.C., 7 FLRA No.
89 (1982) at 7-11; National Treasury Employees Union, Chapter 6, and
Internal Revenue Service, New Orleans District, 3 FLRA No. 118 (1980) at
12-13.
The record shows that the Library can, and has, made requests and
recommendations to the District and to the operator concerning vending
machine products and services. The Library has monitored the service
provided by the operator, requested the District to correct the service
deficiencies of the operator, discussed service arrangements directly
with the operator, demanded that the District replace an operator for
unsatisfactory service, and had considerable input in the negotiations
between the District and the operator for the type of services it wanted
for its employees. The collective bargaining agreement reflects that,
with regard to vending machine areas, the Library has undertaken to
"negotiate with the food service contractors to maintain and, to the
extent funds are available, attempt to provide the best possible
services consistent with the needs of Library employees and Library
users." Thus, the Library has not maintained a "hands off" relationship
with the District, or the vending machine operator, concerning vending
machine services for its employees over the years, and to require it to
bargain on this matter would not be futile. Cf. Ford Motor Co. v. NLRB,
supra, 101 LRRM at 2223.
It is concluded that when the Library learned in February 1981 that
ARA Services would be installing a token system for operation of the
microwave machines, which, if implemented without other arrangements
being made, would change established conditions of employment, the
Library was obligated to afford the Union reasonable notice of the
proposed change and, upon request, an opportunity to negotiate, to the
extent consonant with law and regulation, prior to the change in an
established condition of employment being made. Respondent's failure to
do so violated sections 7116(a)(1) and (5) of the Statute, as alleged.
/5/
The May 13, 1981 notice provided was inadequate to allow bargaining
prior to the implementation of the change on May 15, 1981. It is also
apparent that a great deal of confusion was caused the Union by the
Library's erroneous and misleading advice on May 13, 1981 that the
Library had requested installation of the token system. This furnishing
of false and misleading information to the Union violated the Library's
duty to negotiate in good faith and was also violative of 7116(a)(1) and
(5) of the Statute, as alleged.
As part of the remedy for the unfair labor practice, the General
Counsel requests removal of the token system and a return to the prior
use of microwave ovens pending good faith negotiations with the Union.
As noted, the Library does not have control over the equipment installed
by ARA Services and may only make requests and recommendations with
respect to the service. However, there is nothing to preclude the
Library from taking whatever steps are appropriate to restore and
maintain established conditions of employment for unit employees.
Therefore, in order not to interfere with, or unduly disrupt the
existing contractual relationship, it is recommended that Respondent be
ordered to restore, by whatever means it may find suitable, microwave
ovens, under appropriate safety conditions, convenient to the second and
fourth floor employee vending lounges in the James Madison Building, for
the use, without charge, of those employees who bring their lunches or
otherwise secure food from sources other than the vending machines.
This remedy will amount to a return to the status quo ante for the
affected employees.
Based on the foregoing findings of fact and conclusions, it is
recommended that the Authority issue the following Order:
Order
Pursuant to section 2423.29 of the rules and regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Library of Congress shall:
1. Cease and desist from:
(a) Changing established conditions of employment concerning
employee use of microwave ovens, or otherwise changing established
past practices affecting the working conditions of unit employees,
without first notifying Congressional Research Employees
Association, or any other exclusive bargaining representative of
its employees, and affording such representative the opportunity
to negotiate in good faith on such matters to the extent consonant
with law and regulation.
(b) Furnishing Congressional Research Employees Association, or
any other exclusive representative of its employees, false and
misleading information concerning changes in established condition
of employment.
(c) In any like or related manner interfering with,
restraining, or coercing its 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 carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Restore microwave ovens, under appropriate safety
conditions, convenient to the second and fourth floor employee
vending lounges in the James Madison Memorial Building, for the
use, without charge, of those employees who bring their lunches or
otherwise secure food from sources other than the vending
machines.
(b) Notify the Congressional Research Employees Association, or
any other exclusive bargaining representative of its employees, of
any proposed change concerning employee use of microwave ovens, or
any other change in established past practices affecting the
working conditions of unit employees, and, upon request, afford
such representative the opportunity to negotiate in good faith on
such matters to the full extent consonant with law and regulation.
(c) Post at its facilities copies of the attached Notice marked
"Appendix" on forms to be furnished by the 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 shall take reasonable steps to
insure that such notices are not altered, defaced, or covered by
any other material.
(d) Pursuant to 5 C.F.R. 2423.30 notify the Regional Director,
Federal Labor Relations Authority, Region Three, Washington, D.C.,
in writing, within 30 days from the date of this order, as to what
steps have been taken to comply herewith.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: February 3, 1982
Washington, D.C.
APPENDIX
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 change established conditions of employment concerning
employee use of microwave ovens, or otherwise change established past
practices affecting the working conditions of unit employees, without
first notifying Congressional Research Employees Association, or any
other exclusive bargaining representative of our employees, and
affording such representative the opportunity to negotiate in good faith
on such matters to the extent consonant with law and regulation.
WE WILL NOT furnish Congressional Research Employees Association, or
any other exclusive representative of our employees, false and
misleading information concerning changes in established condition of
employment.
WE WILL NOT, in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL restore microwave ovens, under appropriate safety conditions,
convenient to the second and fourth floor employee vending lounges in
the James Madison Memorial Building, for the use, without charge, of
those employees who bring their lunches or otherwise secure food from
sources other than the vending machines.
WE WILL notify the Congressional Research Employees Association, or
any other exclusive bargaining representative of its employees, of any
proposed change concerning employee use of microwave ovens, or any other
change in established past practices affecting the working conditions of
unit employees, and, upon request, afford such representative the
opportunity to negotiate in good faith on such matters to the full
extent consonant with law and regulation.
(Agency or Activity)
By: (Signature)
Dated: . . .
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, Federal Labor Relations Authority, Region Three,
whose address is 1111 18th Street, NW, Suite 700, Washington, DC 20036
and whose telephone number is (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ The Authority finds it unnecessary to pass upon the Judge's
conclusion that the replacement of the predecessor vending company
constituted the exercise of a reserved management right under section
7106(a)(2)(B) of the Statute "to make determinations with respect to
contracting out."
/2/ Microwave ovens located in the canteen lounges of two other
Library of Congress buildings are maintained by other vendors behind a
counter, where some food service is also prepared by attendants. (Tr.
52, 60, 72).
/3/ The AFGE National Council of Meat Graders case involved a union
proposal that, in plants where meat graders work in front of conveyor
chains, the speed at which carcasses move on the conveyor chains be
limited. The Council held that, as chain speeds are under the control
of private sector management, and are not within the authority of the
agency to determine, the proposal was not within the scope of bargaining
under Executive Order 11491, as amended. 6 FLRC at 475-476.
/4/ Respondent's witnesses denied that they knew employees were using
the microwave ovens to heat food from non-vending machine sources and
testified that such use was unauthorized. However, as found above, the
microwave ovens were so used, there were no signs restricting such use,
and Respondent's memorandum sent to the Union stated, in part, "Although
this system would prevent employees from placing food bought outside the
vending area into the ovens, the benefits of the increased safety factor
far outweigh any staff inconveniences." Accordingly, I conclude that
management knew of such use and that there was a reasonable likelihood
that the change would have an adverse impact on employees who used the
microwaves to heat food from other sources.
/5/ The complaint does not address issues of whether the Union was
entitled to earlier notice of the Library's decision to request a new
vendor, whether the Union had a right to be present or take part in the
Library's negotiations with third parties, i.e. the District and/or ARA
Services, or whether the Union was entitled to an opportunity to
negotiate concerning the position the Library would take at these
earlier stages. See Department of the Navy, Portsmouth Naval Shipyard,
supra, 5 A/SLMR at 253.