09:0136(16)CA - HUD and AFGE -- 1982 FLRAdec CA
[ v09 p136 ]
09:0136(16)CA
The decision of the Authority follows:
9 FLRA No. 16
DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO
Charging Party
Case No. 3-CA-581
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
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, THE CHARGING PARTY AND THE GENERAL COUNSEL,
THE AUTHORITY FINDS:
IT IS ALLEGED THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5)
OF THE STATUTE /1/ BY UNILATERALLY IMPLEMENTING PAID PARKING THROUGHOUT
THE DEPARTMENT WITHOUT BARGAINING WITH THE UNION CONCERNING THE IMPACT
OF THE PAID PARKING PROGRAM ON BARGAINING UNIT EMPLOYEES AND THE METHODS
AND PROCEDURES TO BE USED IN IMPLEMENTING THE PAID PARKING PROGRAM WHICH
WERE NOT MANDATED BY THE GOVERNMENT-WIDE RULES AND REGULATIONS ON PAID
PARKING. THE RESPONDENT DENIES THAT IT COMMITTED ANY UNFAIR LABOR
PRACTICE SINCE ITS PROPOSED REGULATIONS WERE MANDATED BY GOVERNMENT-WIDE
RULES AND REGULATIONS, SPECIFICALLY OMB CIRCULAR A-118 AND FEDERAL
PROPERTY MANAGEMENT REGULATIONS TEMPORARY REGULATION D.65. IT ARGUES
THAT PAID PARKING IS A MATTER OVER WHICH THE AGENCY DOES NOT HAVE
DISCRETION, AND IS THEREFORE OUTSIDE OF THE AGENCY'S DUTY TO BARGAIN
UNDER THE STATUTE. ACCORDINGLY, THE QUESTION IS WHETHER THE RESPONDENT
HAD A DUTY TO PROVIDE NOTICE TO THE UNION AND AFFORD THE UNION AN
OPPORTUNITY TO BARGAIN OVER THE IMPLEMENTATION AND THE IMPACT OF ITS
PROPOSED RULES AND REGULATIONS ON PAID PARKING PRIOR TO THE ISSUANCE
THEREOF.
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, IS THE
EXCLUSIVE REPRESENTATIVE OF A CONSOLIDATED UNIT OF THE RESPONDENT'S
EMPLOYEES. ON AUGUST 13, 1979, THE OFFICE OF MANAGEMENT AND BUDGET
(OMB) ISSUED TO THE HEADS OF EXECUTIVE DEPARTMENTS OMB CIRCULAR A-118
WHICH ESTABLISHED A GOVERNMENT-WIDE POLICY CONCERNING THE ACQUISITION
AND ALLOCATION OF FEDERAL PARKING FACILITIES AND THE DETERMINATION OF
CHARGES TO BE PAID BY FEDERAL EMPLOYEES FOR THE USE OF SUCH PARKING. ON
SEPTEMBER 6, GSA ISSUED FPMR TEMPORARY REGULATION D-65, EFFECTIVE
NOVEMBER 1, WHICH IMPLEMENTED OMB CIRCULAR A-118, INCLUDING THE
PROVISION THEREIN REQUIRING THE ASSESSMENT AND COLLECTION OF PARKING
FEES PURSUANT TO A MANDATORY FEE SCHEDULE.
ON OCTOBER 17, 1979, THE RESPONDENT FORWARDED TO THE UNION A DRAFT
COPY OF PROPOSED REGULATIONS TO IMPLEMENT THE GOVERNMENT-WIDE PAID
PARKING PROGRAM. BY LETTER DATED OCTOBER 24, THE UNION REQUESTED A
MEETING WITH THE RESPONDENT "TO NEGOTIATE ON THIS ISSUE AS SOON AS
PRACTICABLE." ON NOVEMBER 1, THE RESPONDENT IMPLEMENTED ON A
DEPARTMENT-WIDE BASIS THE PROPOSED PARKING REGULATIONS WHICH IT HAD SENT
TO THE UNION. ON THAT SAME DAY, THE RESPONDENT ANSWERED THE UNION'S
LETTER OF OCTOBER 24, STATING THAT ALTHOUGH THERE WAS A REQUIREMENT TO
IMPLEMENT THE GSA PARKING REGULATIONS AS OF NOVEMBER 1, 1979, IT WOULD
"NEGOTIATE ON ANY MATTERS ON WHICH THE AGENCY HAS DISCRETION AND WHICH
ARE SUBJECT TO UNION PURVIEW." NO NEGOTIATIONS CONCERNING THE IMPACT AND
IMPLEMENTATION OF THE RESPONDENT'S PARKING REGULATIONS WERE HELD PRIOR
TO THE IMPLEMENTATION OF THE REGULATIONS, AND AT NO TIME DID THE
RESPONDENT MAKE A REQUEST TO A GOVERNMENT AGENCY FOR A DELAY IN THE
IMPLEMENTATION DATE OF THE PAID PARKING PROGRAM AT THE RESPONDENT'S
LOCATIONS.
THE DUTY OF AN AGENCY TO NEGOTIATE WITH AN EXCLUSIVE REPRESENTATIVE
UNDER THE STATUTE EXTENDS TO THE CONDITIONS OF EMPLOYMENT AFFECTING
EMPLOYEES IN AN APPROPRIATE UNIT EXCEPT AS PROVIDED OTHERWISE BY FEDERAL
LAW AND REGULATION, INCLUDING GOVERNMENT-WIDE REGULATION. /2/ THAT IS,
UNDER THE STATUTE, IF A PROPOSED MATTER RELATES TO THE CONDITIONS OF
EMPLOYMENT OF AN APPROPRIATE UNIT OF EMPLOYEES IN AN AGENCY AND IS NOT
INCONSISTENT WITH LAW OR REGULATION-- I.E., IS WITHIN THE DISCRETION OF
AN AGENCY-- IT IS WITHIN THE SCOPE OF BARGAINING WHICH IS REQUIRED OF
THAT AGENCY. /3/ ACCORDINGLY, WHILE OMB CIRCULAR A-118 AND FPMR
TEMPORARY REGULATION D-65 WERE GOVERNMENT-WIDE REGULATIONS IN EFFECT
WHEN THE FOREGOING EVENTS OCCURRED, THE RESPONDENT NEVERTHELESS HAD A
DUTY TO BARGAIN WITH THE UNION TO THE EXTENT OF ITS DISCRETION IN
IMPLEMENTING THE GOVERNMENT-WIDE PAID PARKING PROGRAM-- I.E., TO THE
EXTENT NOT INCONSISTENT WITH SUCH REGULATIONS. /4/ INASMUCH AS THE
STIPULATED FACTS SET FORTH ABOVE INDICATE THAT THE RESPONDENT
IMPLEMENTED ITS INTERNAL RULES AND REGULATIONS CONCERNING THE PAID
PARKING PROGRAM WITHOUT FIRST AFFORDING THE UNION AN OPPORTUNITY TO
NEGOTIATE WITH RESPECT THERETO, AS PREVIOUSLY REQUESTED BY THE UNION,
THE AUTHORITY FINDS THAT THE RESPONDENT THEREBY VIOLATED SECTION
7116(A)(1) AND (5) OF THE STATUTE AS ALLEGED IN THE COMPLAINT. /5/
WITH REGARD TO AN APPROPRIATE ORDER TO REMEDY SUCH UNFAIR LABOR
PRACTICE, HOWEVER, THE AUTHORITY CONCLUDES THAT, INASMUCH AS THERE IS NO
REGULATION IN EFFECT AT THIS TIME REQUIRING THE COLLECTION OF PARKING
FEES, /6/ IT IS UNNECESSARY TO ORDER THAT THE RESPONDENT NEGOTIATE
REGARDING THIS MATTER.
ORDER
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 DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING OR REFUSING TO GIVE NOTICE TO AND, UPON REQUEST, BARGAIN
WITH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS EMPLOYEES, BEFORE
IMPLEMENTATION OF ANY PAID PARKING PROGRAM WHICH MAY BE ESTABLISHED BY
GOVERNMENT-WIDE RULE AND REGULATION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE
ANY EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSE AND POLICIES OF THE STATUTE:
(A) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE ON FORMS TO
BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIVING
SUCH FORMS, THEY SHALL BE SIGNED BY AN APPROPRIATE OFFICIAL OF THE
RESPONDENT AND SHALL BE POSTED AND MAINTAINED BY SUCH OFFICIAL FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN
BOARDS AND ALL 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 OTHER MATERIAL.
(B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION III, IN WRITING,
WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS ARE BEING
TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., JUNE 23, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
OPINION OF LEON B. APPLEWHAITE, MEMBER:
ALTHOUGH I AM IN AGREEMENT WITH MY FELLOW MEMBERS AS TO THE
DISPOSITION OF THIS CASE, I FEEL THAT ONE ADDITIONAL POINT SHOULD BE
ADDRESSED. SPECIFICALLY, IN THE AREA OF REMEDY, THE MONIES PAID TO THE
AGENCY PURSUANT TO THE UNILATERAL IMPLEMENTATION OF PARKING FEES,
NEITHER THE ISSUE OF THE VALIDITY OF THE ACTUAL AMOUNT CHARGED NOR THE
ISSUE OF THE LEGALITY OF THE IMPLEMENTATION OF SUCH A CHARGE WAS BEFORE
THE AUTHORITY IN THIS CASE. THEREFORE, THE AUTHORITY APPROPRIATELY DID
NOT MAKE ANY FINDINGS AS TO THESE ISSUES. IT SHOULD BE NOTED THAT IN
CONJUNCTION WITH THESE ISSUES, IT IS INAPPROPRIATE FOR THE AUTHORITY TO
MAKE ANY STATEMENT OR GIVE ANY GUIDANCE AS TO THE USE OR RETURN OF SUCH
MONEY. ALL OF THESE ISSUES WERE MORE APPROPRIATELY PRESENTED TO AND
ADDRESSED BY THE CIRCUIT COURT OF APPEALS.
ISSUED, WASHINGTON, D.C., JUNE 23, 1982
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 FAIL OR REFUSE TO GIVE NOTICE TO AND, UPON REQUEST,
BARGAIN WITH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, BEFORE IMPLEMENTATION OF
ANY PAID PARKING PROGRAM WHICH MAY BE ESTABLISHED BY GOVERNMENT-WIDE
RULE OR REGULATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
(AGENCY)
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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION III, WHOSE
ADDRESS IS: 1111 18TH STREET, NW., WASHINGTON, D.C. 20036 AND WHOSE
TELEPHONE NUMBER IS (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7116(A)(1) AND (5) OF THE STATUTE PROVIDES:
SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
ORGANIZATION AS REQUIRED
BY THIS CHAPTER;
/2/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE
OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
7103(A)(12) AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF THE
STATUTE:
SEC. 7103. DEFINITIONS; APPLICATION
. . . .
(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH
EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH
EMPLOYEES . . .
. . . .
(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS . . .
/3/ NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL REVENUE
SERVICE, NEW ORLEANS DISTRICT, 3 FLRA NO. 118 (1980).
/4/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2151 AND GENERAL SERVICES ADMINISTRATION, NATIONAL CAPITAL REGION,
WASHINGTON, D.C., 7 FLRA NO. 79 (1981).
/5/ SEE GENERAL SERVICES ADMINISTRATION, 6 FLRA NO. 77 (1981).
/6/ DURING THE PENDENCY OF THE INSTANT CASE BEFORE THE AUTHORITY, THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RULED THAT THE
PAID PARKING PLAN, AS EMBODIED IN OMB CIRCULAR A-118, WAS INVALID, AND
ORDERED THAT THE GSA REGULATION BE SET ASIDE AND ITS ENFORCEMENT
PERMANENTLY ENJOINED. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, ET. AL. V. FREEMAN, 510 F.SUPP. 596 (D.D.C. 1981).
THEREAFTER, GSA REVISED THE REGULATION TO SUSPEND THE COLLECTION OF
PARKING FEES IN ACCORDANCE WITH THE INJUNCTION. (46 F.R. 40191 (1981)).
THE DISTRICT COURT'S DECISION WAS SUBSEQUENTLY REVERSED. AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, ET. AL. V. CARMEN, CIVIL
ACTION NO. 81-1244 (D.C. CIR. DEC. 15, 1981). HOWEVER, PRESIDENT REAGAN
HAS STATED THAT THE COLLECTION OF PARKING FEES WILL NOT BE REINSTATED.
STATEMENT BY THE PRESIDENT ON PARKING FEES FOR FEDERAL EMPLOYEES, 17
WEEKLY COMP. OF PRES. DOC. 1378 (DEC. 17, 1981)).