[ v25 p843 ]
25:0843(70)CA
The decision of the Authority follows:
25 FLRA No. 70
UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
AND UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
HOUSTON DISTRICT
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 222
Charging Party
Case No. 6-CA-30144
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by both the
Respondent and the Charging Party. The General Counsel and the Charging
Party filed oppositions to the Respondent's exceptions and the
Respondent filed an opposition to the Charging Party's exceptions. The
complaint in this case alleged that the Respondent violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute) by failing and refusing to negotiate in good faith
regarding employee parking at the Respondent's Briarpark facility and by
refusing to negotiate concerning the payment by employees for parking
and the reservation of parking spaces.
II. BACKGROUND
The facts are set out in the Judge's Decision. Briefly, they
indicate that the Respondent notified the Charging Party of a planned
relocation of employees of the Houston District Office. As relevant to
this case, the relocation involved moving approximately 750 employees
working at two separate locations to a third location, known as the
Briarpark Office. Following notification to the Charging Party and
receipt of its proposals, the parties bargained and reached agreement on
various issues pertaining to the relocation. A separate interim
agreement was later reached regarding employee parking at the Briarpark
Office. Subsequent negotiations on the parking issue resulted in
agreement being reached on all but two of the Charging Party's
proposals. In their final form, these proposals provided as follows:
Section 2
To the extent it has legal authority to do so the Agency will
provide these rental spaces to employees at a cost not to exceed
the amount charged by Allright (or other parking management
company) to administer the parking facility. To the extent the
Agency has no legal authority to provide parking in the above
manner the rental cost of the parking to employees will not exceed
the cost to the Agency for securing such parking.
Section 4
All parking spaces not reserved for visitors parking or
government vehicles parking will be available to bargaining unit
employees on a first come first serve basis, except that the
Agency may reserve spaces for the District Director and the
Assistant District Director.
The Respondent argued with regard to Section 2 that no change in
working conditions of employees relocating to the Briarpark Office had
occurred since the Respondent had not previously undertaken to pay for
employee parking at the locations from which the employees moved.
Additionally, the Respondent argued that although there are limited
circumstances in which employee parking can be paid by virtue of an
agency regulation, the authority to authorize such payment rests with
the Regional Commissioner of the Internal Revenue Service (IRS), and not
at the district level. Therefore, the Respondent maintained that this
matter could not be locally negotiated. As to Section 4, the Respondent
essentially argued that reservation of parking spaces was outside its
control.
III. Administrative Law Judge's Decision
The Judge found first that the Respondent was obligated to bargain
over parking arrangements for employees since parking was a matter that
was substantially affected by the relocation of employees to the
Briarpark Office. He noted that the relocation of employees was a
change in conditions of employment that had "foreseeable and real impact
on employees" and that the impact "was clearly more than de minimis."
The Judge rejected the arguments made by the Respondent and found that
the Respondent was obligated to bargain over both of the Charging
Party's proposals. The Judge concluded that the Respondent's failure to
do so constituted a violation of section 7116(a)(1) and (5) of the
Statute.
As a remedy, the Judge recommended that the Authority order the
Respondent, among other things, to bargain upon request and to reach
agreement with the Union concerning the impact of the move and office
consolidation including, to the extent permitted by law and regulation,
the Union's proposals concerning payment for parking and parking space
allocation.
IV. Positions of the Parties
In its exceptions to the Judge's Decision, the Respondent argues
that: (1) it did not fail to bargain in good faith; (2) the proposals
did not concern conditions of employment of unit employees; (3) no
change occurred giving rise to a bargaining obligation; (4) even if a
change occurred, there was no impact or the impact was de minimis; (5)
the payment for employee parking is contrary to Federal statute; (6)
such payment along with the reservation of parking spaces is
inconsistent with Government-wide regulations; (7) payment for employee
parking violates the agency's right to determine its budget; and (8)
such payment is inconsistent with the statutory requirement for an
efficient Government. The Respondent also excepts to the Judge's
failure to pass on its assertion that the Charging Party's attorney
acted improperly under the Texas Code of Professional Responsibility by
appearing both as a witness at the unfair labor practice hearing and as
a signatory to the post-hearing brief. The Respondent has therefore
requested that the Authority reverse the unfair labor practice findings
of the Judge on this basis or, alternatively, to remand the case to the
Judge for a redetermination of his factual findings, while discounting
the attorney's testimony.
The Charging Party excepts to the Judge's remedy. /1/ The Charging
Party argues that the only appropriate remedy is one which directs the
parties to negotiate an agreement that will be given retroactive effect.
The Respondent opposed the Charging Party's request and noted also that
if a violation is found, the Judge's remedy should be affirmed except
for that portion which requires the parties to reach agreement.
V. Analysis
We agree with the Judge's conclusion that the Respondent unlawfully
refused to bargain concerning Sections 2 and 4. We wish, however, to
comment more specifically on certain of the Judge's findings and on
several of the arguments raised by the Respondent.
First, we find that the relocation of employees to the Briarpark
Office constituted a change in conditions of employment of unit
employees which gave rise to a bargaining obligation. The Judge found
that the impact of the relocation was clearly more than de minimis. He
noted in this connection that the relocation affected the transportation
and parking facilities of employees and therefore had an impact and a
foreseeable impact on the employees' travel arrangements to their place
of employment. The Respondent argues, contrary to the Judge, that
Section 4 did not have an impact on unit employees or, if it did, the
impact was de minimis and did not give rise to a bargaining obligation.
We have recently reassessed and modified the de minimis standard
previously used in determining whether a change in conditions of
employment requires bargaining. In Department of Health and Human
Services, Social Security Administration, 24 FLRA No. 42 (1986),
petition for review filed sub nom. American Federation of Government
Employees, Local 1760 v. FLRA, No. 86-1702 (D.C. Cir. Dec. 17, 1986), we
held that the facts and circumstances presented in each case will be
carefully considered and principal emphasis will be placed on the nature
and extent of the effect or reasonably foreseeable effect of the change
on unit employees' conditions of employment. We also noted that
equitable considerations will be taken into account in balancing the
various interests involved.
The thrust of the Respondent's argument here is that the reservation
of spaces for the director and his staff does not have an impact on
bargaining unit employees. However, the question is whether the effect
or reasonably foreseeable effect of the change on unit employees was
such as to create a bargaining obligation. The change in this case was
the relocation of unit employees to a new facility. In determining that
this change gave rise to a bargaining obligation, we note, as did the
Judge, that the relocation was a permanent change which involved a move
from locations where parking had been provided free of charge or, where
a variety of parking arrangements and modes of public transportation had
been available, to a location where such was not the case. Unit
employees were therefore required to adopt new transportation and/or
parking arrangements. Clearly, there was a concern about preserving as
many parking spaces as possible for use by unit employees. We therefore
find that the effect and reasonably foreseeable effect of the change was
such as to give rise to an obligation on the Respondent to bargain.
The Respondent also argues that Sections 2 and 4 are contrary to
Federal law and Government-wide rules and regulations. As to Section 2,
the Respondent claims that payment for employee parking constitutes
reimbursement for employee commuting expenses which is inconsistent with
5 U.S.C. Section 5704. The Respondent also argues that such payment
violates General Services Administration (GSA) Government-wide
regulations in that neither the IRS nor the Department of Treasury had
the authority to procure parking.
The Judge correctly ruled that the proposal was within the duty to
bargain. He found, and we agree, that the Charging Party was not
seeking to have the Respondent reimburse the employees' commuting costs.
Rather, the Charging Party was seeking to have the Respondent provide
free or low cost parking. The Respondent conceded during bargaining
with the Charging Party that there are limited circumstances in which
the cost of employee parking can be paid as outlined in Internal Revenue
Manual 1(14)(50). While the Respondent argued that the authorization of
such payment rests with IRS' Regional Commissioner, a level above the
Houston District which itself did not have discretion to negotiate for
payment of parking, the Judge rejected such assertion as a basis for
refusing to bargain. We agree. Notwithstanding any delegation of
bargaining to parties at the local level, section 7114(b)(2) of the
Statute provides that "(t)he duty of an agency and an exclusive
representative to negotiate in good faith . . . shall include the
obligation . . . to be represented at the negotiations by duly
authorized representatives prepared to discuss and negotiate on any
condition of employment(.)" See, for example, Department of the Army,
Fort Greely, Alaska, 23 FLRA No. 105 (1986).
As to the Respondent's assertion that it lacked authority to procure
parking, it is noted that parking had already been procured by GSA. The
Charging Party's proposals concerned the payment for such spaces and a
determination as to the number of spaces that would be available for
bargaining unit employees. We note, moreover, that the Comptroller
General has determined that in certain circumstances, agencies may
request GSA to procure space for employee parking; further, where such
space is procured, agencies can use appropriated funds to reimburse GSA
for the cost of leased parking accommodations. /2/
The Respondent also argues that Section 4 is inconsistent with 41 CFR
101.20-117-2, which the Respondent argues concerns assignment of carpool
parking. More particularly, the Respondent argues that the proposal
would circumvent priority requirements for handicapped persons and those
in carpools. The Judge noted that this argument had not been raised
earlier and there was no evidence to establish that there was a need for
such priority parking at the Briarpark Office or that the Charging Party
would have refused to set aside parking spaces for such employees. In
our view, the proposal, on its face, is not inconsistent with the cited
regulation. There is no indication in the record that the Charging
Party intended to interfere with the application of the regulation or
that the proposal was in any way designed to deny priority consideration
to such groups of employees.
Next, the Respondent argues that the proposal concerning paid parking
violated management's right to determine its budget. More particularly,
the Respondent maintains that the proposal would prescribe the program
and cost to be inserted in its budget and that neither the General
Counsel nor the Charging Party offered any evidence that paying for
parking would have the benefits needed to outweigh the increase in
costs.
In our view, the proposal does not directly interfere with the
agency's right to determine its budget. Under the test set forth in
American Federation of Government Employees, AFL-CIO and Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604
(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, 455 U.S. 995 (1982), we find that the
proposal does not require the Respondent to include a particular program
or operation in its budget since the Respondent had already procured
parking spaces for use by unit employees. Moreover, the proposal does
not specify the dollar amount that would be absorbed by the Respondent
and it would be impossible to determine this amount since: (1) the
proposal contains several options by which the cost of parking will be
offset by the Respondent, and (2) it is not known what costs are already
being absorbed by the Respondent for the 650 spaces which had already
been leased by GSA. Moreover, the Respondent's assertion that no
compensating benefits have been demonstrated misconceives the test to be
applied. As the Authority stated in Wright-Patterson, supra at 608:
"Only where an agency makes a substantial demonstration that an increase
in costs is significant and unavoidable and is not offset by
compensating benefits can an otherwise negotiable proposal be found to
violate the agency's right to determine its budget under section 7106(a)
of the Statute." The Respondent has not made such a demonstration here.
See also Federal Employees Metal Trades Council, AFL-CIO and Department
of the Navy, Mare Island Naval Shipyard, Vallejo, California, 25 FLRA
No. 31 (1987), slip op. at 8.
Likewise, we reject the Respondent's assertion that payment for
parking would be inconsistent with the statutory requirement for an
efficient Government. The Respondent's contention does not take into
account such considerations as attracting and maintaining a workforce
where public transportation is not readily available and where parking
represents costs to employees. While it is certainly not the
responsibility of the Respondent to transport employees to and from the
workplace, the proposal on payment for parking is merely designed to
offset some of the costs connected with the relocation of employees to
the Briarpark Office. There is no obligation to agree to the proposal;
the obligation is to bargain, which the Respondent failed to do.
Finally, regarding the Respondent's arguments concerning the conduct
of the Charging Party's attorney under the Texas Code of Professional
Responsibility, we note first that nothing contained in our Rules and
Regulations operates to preclude the attorney in question from appearing
as a witness and testifying in the instant unfair labor practice
proceeding. Further, our Rules and Regulations operates to preclude the
attorney in question from appearing as a witness and testifying in the
instant unfair labor practice proceeding. Further, our Rules and
Regulations grant wide discretion to Administrative Law Judges to
determine who may testify or participate in a hearing, as well as the
extent of such participation. See section 2423.16 relating to the
"Rights of Parties" at hearings and section 2423.19 concerning the
"Duties and Powers of the Administrative Law Judge." Under the
circumstances presented in this case, there is no basis on which to
conclude that the Judge's determination to allow the attorney to testify
was improper. Moreover, the Authority is empowered to enforce the
provisions of the Statute, not a State Code of Professional
Responsibility. Therefore, the Authority finds that the relief
requested by the Respondent is not warranted.
VI. Remedy
To remedy the unlawful refusal to bargain, the Judge recommended that
the Respondent be ordered to bargain and reach agreement concerning the
two proposals. The Charging Party has also requested that whatever
agreement is reached be given retroactive effect.
We find for the reasons stated in Environmental Protection Agency and
American Federation of Government Employees, 21 FLRA No. 98 (1986), that
a prospective bargaining order will best effectuate the purposes and
policies of the Statute. Such an order is an adequate remedy and does
not restrict the parties' ability to address the effects on unit
employees of changes already made. Rather, such an order best affords
the parties the flexibility to bargain freely with regard to how the
Respondent's actions have affected unit employees, and the opportunity
to provide retroactive application of any agreement. See Veterans
Administration, Washington, D.C. and Veterans Administration Medical and
Regional Office Center, Fargo, North Dakota, 24 FLRA No. 3 (1986).
As to that portion of the Judge's remedy which would order the
parties to reach agreement, we find that such an order is inconsistent
with section 7103(a)(12) of the Statute. That section provides, in
pertinent part, that collective bargaining means "the performance of the
mutual obligation . . . to . . . bargain in a good-faith effort to reach
agreement . . .but the obligation does not compel either party to agree
to a proposal or to make a concession(.)" See U.S. Department of Labor,
Washington, D.C. and U.S. Department of Labor, Region VII, Occupational
Safety and Health Administration and Office of the Assistant Secretary
for Administration and Management, Kansas City, Missouri, 19 FLRA No.
102 (1985). In the absence of agreement, either party may request
assistance from the Federal Service Impasses Panel.
VII. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge made at the hearing and find that no prejudicial error was
committed, and affirm those rulings. We have considered the Judge's
Decision, the positions of the parties and the entire record, and adopt
the Judge's findings, conclusions, and recommended order as modified
above.
Therefore, we conclude that the Respondent violated section
7116(a)(1) and (5) of the Statute by failing to bargain with the
Charging Party concerning its proposals related to the relocation of
employees.
ORDER
The United States Department of the Treasury, Internal Revenue
Service and United States Department of the Treasury, Internal Revenue
Service, Houston District shall:
1. Cease and desist from:
(a) Refusing to bargain with the National Treasury Employees Union
and National Treasury Employees Union, Chapter 222, the exclusive
representative of its employees, concerning the proposals on payment for
employee parking and reserved parking spaces, which relate to the
relocation of employees to the Briarpark Office.
(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, bargain with the National Treasury Employees Union
and National Treasury Employees Union, Chapter 222, concerning the
proposals on payment for employee parking and reserved parking spaces.
(b) Post at its facilities at the Houston District 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
District Director and shall be posted and maintained for 60 consecutive
days thereafter, in conspicuous places, including bulletin boards and
other places where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that such Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with it.
Dated, Washington, D.C., February 20, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, 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 refuse to bargain with the National Treasury Employees
Union and National Treasury Employees Union, Chapter 222, the exclusive
representative of our employees, concerning the proposals on payment for
employee parking and reserved parking spaces, which relate to the
relocation of employees to the Briarpark Office.
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, upon request, bargain with the National Treasury Employees
Union and National Treasury Employees Union, Chapter 222, concerning the
proposals on payment for employee parking and reserved parking spaces.
(Activity)
Dated: . . . By: (Signature) (Title)
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 for the Federal Labor Relations Authority whose address is:
Federal Office Building, 525 Griffin Street, Suite 926, Dallas, TX
75202, and whose telephone number is: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 6-CA-30144
UNITED STATES DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE and UNITED STATES
DEPARTMENT OF THE TREASURY INTERNAL
REVENUE SERVICE, HOUSTON DISTRICT
Respondents
and
NATIONAL TREASURY EMPLOYEES UNION and
NATIONAL TREASURY EMPLOYEES UNION, Chapter 222
Charging Party
William F. Burbach, Esq.
For Respondents
Robert V. Robertson, Esq.
For Charging Party
John M. Bates, Esq.
For General Counsel, FLRA
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. Section 7101 et seq.
(hereinafter referred to as the Statute), and the Rules and Regulations
of the Federal Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV,
Section 2410, et seq.
An unfair labor charge was filed on February 28, 1983 and Amended on
August 15, 1983 by National Treasury Employees Union (hereinafter called
NTEU) and NTEU Chapter 222 alleging that U.S. Treasury Department,
Internal Revenue Service (hereinafter called IRS) and IRS Houston
District Office /3/ violated Sections 7116(a)(1) and (5) of the Statute
by failing and refusing to negotiate in good faith concerning employee
parking at the new Briarpark Office. Based upon the foregoing, on
August 23, 1983, the General Counsel of the FLRA, by the Director of
Region 6, issued a Complaint and Notice of Hearing. Respondents filed a
timely Answer denying that they had violated the Statute.
A hearing was held before the undersigned in Houston, Texas.
Respondents, Charging Party and General Counsel of the FLRA were
represented and afforded full opportunity to be heard, to examine and
cross-examine witnesses, to introduce evidence and to argue orally. The
parties entered into stipulations and entered joint exhibits into
evidence. Post hearing briefs were filed and have been fully
considered.
Based upon the entire record in this matter, the stipulations, my
observation of the witnesses and their demeanor, and from my evaluation
of the evidence, I make the following:
Findings of Facts
At all times material herein NTEU has been the collective bargaining
representative for a nationwide unit of IRS' professional and
non-professional employees located in the IRS District Offices, Regional
Offices and National Office, with certain exceptions not here relevant.
At all times material herein, IRS and NTEU have been parties to a
national collective bargaining agreement, herein called the NORAD,
covering IRS' national office, and Regional and District Offices. The
employees of the IRS Houston District Office are included within the
nationwide collective bargaining unit and are covered by the NORAD.
NTEU Chapter 222 is the local representative for NTEU for representing
employees located in the IRS Houston District Office.
In October, 1981, the IRS Houston District Office submitted to the
General Services Administration (GSA) specifications for a new
headquarters office, consolidating IRS Houston District Office
headquarters. A facility was located at the corner of Briarpark and
Richmond Streets, hereinafter called the Briarpark office.
In September 1982, IRS Houston District Office notified NTEU Chapter
222 of the planned relocation of employees. The consolidation was to
take place in two steps. First, about 400 employees of IRS Houston
District Office located in the downtown Federal Building and all 350
employees located in a second office, known as the Westpart office, were
to be moved to the Briarpark office. Secondly the remaining employees
at the Federal Building were to be relocated to the Westpark office.
/4/
On September 23, 1982, NTEU Chapter 222's attorney, B. Craig Deats,
wrote IRS Houston District Office Director Arturo Jacobs a letter
informing him that NTEU Chapter 222 wished to negotiate regarding the
impact and implementation of the relocation and also requesting certain
information relating to the relocation. On October 12, 1982, Jacobs
responded with a letter which supplied some of the requested
information. With respect to parking at the Briarpark office, IRS
Houston District Office's letter indicated that there would be parking
for 100 vehicles for official use and visitors at the facility and that
an additional 550 parking spaces would be available to employees on a
rental basis with a charge of $10 to $15 per month for uncovered spaces
and $20 to $25 per month for covered spaces. The letter also indicated
that a parking survey was planned to determine the demand for available
parking spots. With respect to bus service, the letter indicated that
bus service was available from the downtown terminal only, with a one
way trip taking between 45-60 minutes.
After receiving the letter from IRS Houston District, on November 3,
1982 NTEU Chapter 222 submitted 26 proposals including two, Articles 20
and 21, which dealt with parking at the Briarpark office. NTEU Chapter
222's cover letter stated that the proposals were not meant "in any way
to limit the union's ability to submit additional different proposals at
the bargaining table (NORAD, Article 39, Section 3.C.2.e.)." /5/
Representatives of NTEU Chapter 222 and IRS Houston District met on
November 8, 1982 regarding the relocation. The NTEU Chapter 222
representatives asked numerous questions regarding how the Briarpark
parking facility was going to operate since the information with respect
to parking supplied by Respondent in its October 12, 1982 response to
the union's request for information was incomplete. Since the
information supplied by IRS Houston District indicated that there would
be a range in the rental fees charged employees for both covered and
uncovered parking spaces, the union asked what the exact fees would be
and whether or not they would escalate. NTEU Chapter 222 also inquired
as to what would happen if more employees wanted uncovered parking than
was available, or whether there would be enough parking of any kind
available for those employees who wanted to avail themselves of it.
Another item of information which was requested by NTEU Chapter 222 was
a copy of the lease between the landlord and GSA. In addition, NTEU
Chapter 222 requested that it be provided with the results of the
parking survey of employees which was mentioned in IRS Houston
District's October 12 letter. IRS Houston District's representatives
responded that they did not have the requested information. Therefore,
since IRS Houston District was unable to supply the information
requested by NTRU Chapter 222 regarding parking at Briarpark, NTEU
Chapter 222 requested that the issue of parking be deferred until Harold
Crowley, IRS Houston District's Facilities Management Director and a
member of the negotiating team, briefed NTEU Chapter 222 regarding
exactly how the parking arrangement at Briarpark would work. IRS
Houston District office agreed to defer the negotiation of the parking
issue until the requested information was supplied.
The parties then negotiated with respect to all other aspects of the
relocation. Additional negotiating sessions were held on November 15 and
16, 1982. By the conclusion of the session on November 16, 1982,
agreement had been reached on all issues pertaining to the relocation,
except for the parking issues, which had been deferred. The parties
then agreed to execute an agreement regarding the relocation which would
include all issues with the exception of parking. The parties further
agreed that after Crowley briefed NTEU Chapter 222 regarding the parking
arrangements NTEU Chapter 222 would submit additional proposals
regarding parking and negotiate this item as a separate issue. Craig
Deats, who was NTEU Chapter 222's chief spokesman, stated during the
session that it was the union position that the entire issue of parking
was open, including the issue of payment for parking. Chuck Peterson,
IRS Houston District's chief spokesman, acknowledged Deat's remark and
agreed to follow that procedure.
On November 15, 1982, Crowley in his capacity as Acting Chairman of
the Internal Revenue Employees Association, executed a temporary
agreement with Allright Parking, which included a fifteen-day
termination clause. This agreement was entered into so that the
employees starting work at Briarpark would have on-site parking
available. /6/
On December 6, 1982, Jacobs sent Deats the Memorandum of Agreement
regarding the relocation of employees to the Briarpark office which
embodied the agreements reached during the November 15th and 16th
meetings. Thereafter, on December 9, 1982, Deats signed the Memorandum
of Agreement and returned it to Jacobs. With the agreement Deats
enclosed a cover letter which stated that he wished to emphasize that
the parties agreed during negotiations to table all articles pertaining
to parking at the Briarpark office with the understanding that NTEU
Chapter 222 would submit parking proposals after receiving a briefing
from Crowley detailing the manner in which management proposed to handle
the parking situation. Deats pointed out that at the time of the
negotiations many details of the parking situation had yet to be
resolved. Furthermore, Deats stated that NTEU Chapter 222 still wished
to negotiate concerning the parking arrangement prior to implementation
of the office relocation.
Thereafter, on or about January 5, 1983, Jacobs contacted Ovalle and
asked him if he could get the union's negotiating team together. Jacobs
explained that IRS Houston District urgently needed to deal with
Allright Auto Parking to manage the parking facility at Briarpark. The
parties then met on January 6, 1983. At this session, IRS Houston
District provided some incomplete data pertaining to the employee
parking survey. The results of this survey indicated that the demand
for parking spaces at Briarpark far exceeded the spaces that were going
to be available, particularly with respect to uncovered parking. The
parties then proceeded to negotiate regarding parking proposals which
IRS Houston District presented. Eventually, the negotiators reached an
interim agreement regarding parking at Briarpark. The interim agreement
provided that one flat rate fee would be charged for all parking spaces,
both covered and uncovered. It was further agreed that the amount of
the fee would be $20 and that $15 of this amount would go to the
landlord and $5 would go to Allright. The agreement also provided that
all parking would be on a first come first serve basis, except for 14
parking spaces which would be reserved for the District Director and his
staff. Finally, Respondent agreed to provide a policeman at starting
and quitting time in order to alleviate traffic problems. The agreement
was interim in nature. NTEU Chapter 222 made it clear that it intended
to submit proposals for a permanent parking arrangement very shortly,
and the District Director assured NTEU Chapter 222 that there was an
urgent need for the interim agreement so that IRS Houston District could
contract with Allright. Ovalle made it clear that the agreement was
interim in nature and that NTEU Chapter 222 would submit proposals for a
permanent agreement shortly. IRS Houston District agreed that the
agreement was an interim one /7/ and would only remain in effect until a
permanent parking agreement was arrived at.
On January 17, 1983, Ovalle gave Labor Relations Specialist Dick
Wallace 11 parking proposals. On January 26, 1983, the parties met to
negotiate a permanent parking agreement for the Briarpark office. At
this session, agreement was reached regarding all of the NTEU Chapter
222's proposals except for articles two, four, and seven. Article two
provided as follows:
Parking space will be provided to employees at Briarpark on a
rental basis. The cost to employees for rental of parking spaces
at the Briarpark facility will not exceed the amount charged by
All-Rite (or other parking management company) to administer the
parking facility.
Article four provided as follows:
No employee, whether within or without the bargaining unit will
be provided with free or reduced-rate parking, nor with a reserved
space, unless all employees are provided with same.
IRS Houston District took the position at the January 26, 1983
bargaining session with respect to the proposed article two that it
could not agree because under General Service Administration regulations
it could not pay for employee parking. With respect to article four it
took the position that a section of the space handbook portion of the
Internal Revenue Manual provided that Respondent could reserve up to 10
percent of available parking spaces for management. IRS Houston
District proposed that in this instance it reserve 14 spaces for the
District Director and his staff rather than the entire 10 percent. NTEU
Chapter 222 did not agree. On January 27, 1983, Ovalle had a
conversation with Wallace during which Wallace again reiterated the
position, regarding union proposal number two, that IRS Houston District
could not pay for employee parking under GSA regulations. In regard to
proposal number four pertaining to the reservation of spaces, Wallace
stated that it was nonnegotiable the way it was written. During this
conversation, Ovalle also again requested a copy of the lease agreement
between GSA and the landlord for the Briarpark facility. On or about
January 31, 1983, Deats also called Wallace in an effort to clarify
management's position regarding the parking issues. In regard to the
payment for employee parking issue, Wallace stated that he knew of no
specific authority that allowed Respondent to pay for employee parking.
In regard to the reservation of spaces issue, Wallace stated that the
NTEU Chapter 222 proposal was of questionable negotiability since
management had the right under the Internal Revenue Manual to reserve up
to 10 percent of the spaces for managers and that he felt that IRS had a
management right to reserve spaces for managers. However, when Deats
inquired as to whether IRS Houston District was declaring the proposal
to be nonnegotiable Wallace declared that this was not the case and he
was just saying there was some question. Deats indicated that he felt
that article four could be redrafted to meet some of Wallace's
objections.
Thereafter, on or about February 2, 1983, Ovalle presented Wallace
with new proposals regarding union proposals two, four, and seven.
Ovalle also indicated to Wallace that he wished to schedule another
negotiating session as soon as possible in order to bring the
negotiations to a conclusion. The new proposal regarding the payment
for employee parking provided:
To the extent it has legal authority to do so the agency will
provide these rental spaces to employees at a cost not to exceed
the amount charged by Allright (or other parking management
company) to administer the parking facility. To the extent the
agency has no legal authority to provide parking in the above
manner the rental cost of parking to employees will not exceed the
cost to the agency for securing such parking.
The new proposal regarding the reservation of spaces provided:
All parking spaces not reserved for visitors parking or
government vehicles parking will be available to bargaining unit
employees on a first come first serve basis, except that the
agency may reserve spaces for the District Director and the
Assistant District Director.
A second negotiating session regarding the issue of parking at
Briarpark was then scheduled for February 10, 1983. At the opening of
the session, Respondent's negotiators presented the union with the
portion of the Briarpark lease agreement which pertained to parking.
/8/ Ovalle recognized after examination of the portion of the lease
which related to parking that some of the information regarding parking
which had been submitted in IRS Houston District's October 12, 1982
response to NTEU Chapter 222's request for information was inconsistent
with the terms of the lease, such as the amount of rental fees to be
charged. Ovalle also observed that certain other items of information
which NTEU Chapter 222 had requested and which IRS Houston District had
claimed it did not possess at the time of the relocation negotiations in
November 1982, such as escalation of the rental fees, were covered in
the lease. During the negotiating session, IRS Houston District took
the position, with respect to the union's new proposal relating to
payment for employee parking, that under GSA regulations IRS could not
pay for employee parking. With respect to the new proposal regarding
reservation of spaces, IRS Houston District stated that it could not
agree to the proposal because this was a matter which was reserved to
the landlord and was therefore a matter outside of IRS Houston
District's control. Also at this session NTEU Chapter 222 submitted a
written request for six items of information relating to the parking
situation at Briarpark. The first item requested was a copy of the
specific law or statute which prohibits GSA or any other Federal agency
from paying for employee parking. In response to this question, IRS
Houston District's representatives admitted that a section of the
Internal Revenue Manual gave the IRS Regional Commissioner the power to
pay for employee parking. However, IRS Houston District's negotiators
stated that the Regional Commissioner would not pay for employee
parking. The second item of information which was requested was a copy
of the tentative agreement between IRS Houston District and Allright
parking. IRS Houston District's representatives replied that as soon as
they obtained a copy of the agreement they would provide it. The third
item of information requested IRS Houston District to clarify what
responsibility it had or GSA had for parking spaces which were not
rented. Crowley responded that if spaces were not rented they would
revert to the landlord. The fourth item requested that IRS Houston
District provide a copy of any agreement whereby the landlord granted to
an employee the right to solicit or reserve a parking space. IRS
Houston District's representatives answered this question by stating
that there was no agreement regarding this matter and that the right
rested with the landlord. The fifth item of information requested a
copy of the agreement between GSA and the landlord whereby GSA agreed to
pay for the 100 visitor and official vehicle spaces. IRS Houston
District agreed to provide a copy of the agreement if it succeeded in
obtaining one. Item number six asked if the NTEU Chapter 222 could
negotiate directly with the landlord to administer the 550 employee
parking spaces. IRS Houston District's negotiators indicated they would
get back to NTEU Chapter 222 regarding this item of information.
Following the negotiating session, Ovalle called Douglas Tollett, one of
the owners of the Briarpark office, and during this conversation Tollett
informed Ovalle that contrary to the information he had been given
during the negotiating session if parking spaces were not rented they
would not revert to the landlord.
On February 16, 1983, Ovalle called Wallace to arrange for another
negotiating session for February 22, 1983. Following Ovalle's call to
Wallace, Deats received a phone call from IRS Houston District's chief
spokesman, Peterson. In this conversation, Peterson stated that IRS
Houston District was more or less set in its position on the remaining
proposals and he was not sure there would be much movement at another
negotiating session. Peterson reaffirmed that IRS did have the
discretion at the regional level to authorize payment for employee
parking but that such authority existed at the regional level and so IRS
Houston District lacked the discretion to negotiate at the district
level. Deats replied that there was a national bargaining agreement and
a national unit and that Peterson was negotiating for IRS. He pointed
out that the only reason they were negotiating at the local level was
that the collective bargaining agreement set up that procedure. /9/ In
regard to the reservation of spaces issue, Peterson stated that IRS
Houston District had no discretion to negotiate regarding this issue
because the landlord had ultimate control over whether or not spaces
would be reserved. Deats replied that IRS Houston District had
discretion to ask the landlord to reserve spaces and that he did not
believe the landlord would reserve any spaces unless so requested.
Deats then stated that he felt there was room for movement and suggested
that the parties meet again. Peterson replied once again that he felt
the positions were firmly fixed. Thereupon Deats indicated that even if
the positions were fixed as long as IRS Houston District was not
declaring the union's proposals to be nonnegotiable the parties had to
meet again for the purpose of getting mediation and arranging impasse
procedures. At that point, Deats and Peterson agreed to hold another
negotiating session on February 22, 1983. At the start of the February
22, 1983 negotiating session some remaining problems with respect to
articles five and seven were resolved. The parties then turned their
attention to resolution of article two, payment for employee parking,
and article four, reservation of parking spaces. With respect to
article two, IRS Houston District adopted the position initially that it
had no discretion to negotiate the payment of employee parking at the
district level since that authority rested at the regional level. Deats
reiterated the NTEU Chapter 222 position that there was a national
bargaining unit and that IRS was obligated to have negotiators at the
bargaining table who could negotiate for it. At that point, Wallace
articulated a new position which had not been raised in any previous
bargaining session. He stated that he thought there might not be an
obligation to negotiate concerning the payment of parking because there
had been no change as to paid parking. Wallace explained that this
position was based upon the fact that IRS Houston District had never
undertaken the obligation to pay for employee parking at the downtown
office or at the Westpark office. Deats replied that there were
definitely changes regarding the employment conditions of bargaining
unit employees. With respect to article four, IRS Houston District took
the position that it needed to reserve spaces for the District
Director's staff so that if the District Director wanted to meet with
his Division Chief and that Division Chief was in another office he
could find a parking space without any difficulty. Deats responded by
saying that he was not sure that need outweighed the need of employees
to have parking spaces available. At that point, IRS Houston District
took the position that in any event since the building owner controlled
the parking lot and made the decision regarding whether or not to
reserve spaces that IRS Houston District did not have the discretion to
negotiate regarding article four. Deats replied that it was his
understanding of the law that IRS Houston District was obligated to
negotiate if it had discretion to do so, and in this instance Respondent
had the discretion to request the landlord to reserve spaces or not to
reserve spaces. The parties then recessed the negotiating session while
they took a lunch break. When the negotiators returned, Wallace
informed the NTEU Chapter 222 negotiators that after much soul searching
they had decided that there had been no change regarding the payment of
parking and therefore they would not negotiate regarding the NTEU
Chapter 222's proposal. IRS Houston District negotiators also took the
position that they were not going to negotiate regarding the issue of
reservation of spaces. Also, at this negotiating session, at Deats'
request, IRS Houston District provided the NTRU Chapter 222 with a copy
of the Internal Revenue Manual, section 482(2)(a), which authorized IRS
to pay for employee parking at the level of the Regional Commissioner.
This section provides as follows:
Vehicle parking may be provided for employee use only after
official use requirements have been met and when it is determined
by the Regional Commissioner or Assistant Commissioner (RM) for
National Office installations, to be necessary to the operational
effectiveness of the Service. This includes necessary parking
requirements for executive personnel and persons who are assigned
unusual hours as authorized in Temporary FPMR P-65. This
determination may be designated to District Directors and Service
Center Directors.
In addition, at this session, IRS Houston District provided the NTEU
Chapter 222 with a copy of the agreement between the Internal Revenue
Employees Association and Allright Auto Parks, Inc. The date on the
agreement was November 15, 1982, and the agreement was signed by
Crowley, as Acting Chairman of the Association. Deats pointed out that
the date on the agreement indicated that it had been entered into prior
to January 6, 1983, when NTEU Chapter 222 agreed to the interim parking
agreement on the basis of the District Director's assurance to Ovalle
that such an agreement was necessary in order to allow IRS Houston
District to contract with Allright.
Following the conclusion of the February 22, 1983 negotiating
session, the union and Respondent exchanged position letters regarding
their respective versions of what had taken place during the
negotiations. NTEU Chapter 222's letter, dated February 23, 1983 stated
that at the last negotiation session IRS Houston District "declared that
it had no obligation to negotiate the remaining two proposals placed on
the table by NTEU . . . " The letter asserted that management had stated
that it had no obligation to negotiate concerning payment of employee
parking because the agency "is not altering that practice with regard to
parking at Briarpark . . . " Further, the letter asserts, that IRS
Houston District's team stated that "it had no obligation to negotiate
the second union proposal, dealing with the agency's reservation of 14
spaces for upper level managers, because the agency cannot control the
reservation of spaces at the facility since such control is left with
the lessor . . . . " The letter advised to IRS Houston District that an
unfair labor practice had been filed and that if IRS feels the letter
mistates its position, it should so advise NTEU Chapter 222.
By letter Dated March 16, 1983, IRS Houston District responded to the
February 23, 1983 letter. The letter states in part:
The position of the Agency regarding NTEU proposals on
Briarpark Office parking was misstated in your February 23,
letter. To clarify the matter, the Agency's position regarding its
bargaining obligation is summaried below:
NTEU Proposal: "To the extent it has legal authority to do so,
the Agency will provide these rental spaces at a cost not to
exceed the amount charged by Allright (or other parking management
company) to administer the parking facility. To the extent the
Agency has no legal authority to provide parking in the above
manner the rental cost of the parking to employees will not exceed
the cost to the Agency for securing such parking."
Agency Position: (1) The Agency does not currently pay nor has
it previously undertaken the financial obligation of paying for
employee parking at its Downtown and Westpark Offices. Therefore,
no change in working conditions has occurred or is proposed for
those employees relocating to the Briarpark Office. (2) There
arelimited circumstances in which the cost of employee parking can
be paid by the Agency as outoined in Internal Revenue Manual (IRM)
1(14)50. A copy of this provision was furnished to NTEU during
negotiations. The authority to authorize such payment rests with
the IRS Regional Commissioner.
It is our position that the delegated authority to negotiate a
local agreement does not supersede this delegation of authority,
and therefore, the Houston District cannot locally negotiate such
payment.
NTEU Proposal: "All parking spaces not reserved for visitors
parking or government vehicles parking will be available to
bargaining unit employees on a first come first-serve basis,
except that the Agency may reserve spaces for the District
Director and the Assistant District Director."
Agency Position: This proposal deals with a matter outside of
the control of the Agency. The lease agreement between General
Services Administration (GSA) and Berne Associates clearly
specifies the retained right of the lessor to designate employee
and guest parking.
Discussion and Conclusions of Law
When an employer makes a change in conditions of employment, even
when it need not bargain about the change itself, it must bargain about
the means for implementing the change and the reasonably foreseeable
impact upon the employees, so long as any such impact is more than de
minimis. Cf. United States Department of Treasury, Bureau of Alcohol,
Tobacco, and Firearms, Washington, D.C. and Central Region, 16 FLRA No.
73 (1984). In the subject case the consolidation of the IRS District
Office and the relocation of the facilities and employees from the
downtown Federal Building and Westpark to Briarpark, was such a change
in employment conditions that had foreseeable and real impact on
employees. This impact was clearly more than de minimis. Those
employees moving from Westpark were moving from a facility where they
had parking provided at no expense to them and those moving from the
Federal Building were moving from a facility that had extensive bus
service and a variety of daily, weekly and monthly parking facilities
available in the area. The Briarpark office was a substantial distance
from both the Federal Building and Westpark offices, had only bus
transportation from downtown Houston and had a very limited variety of
parking arrangements available in the vicinity of the Briarpark office.
Thus the moving of employees to the new facility would foreseeably, and
in fact did, have an impact on the employees' travel arrangements to
their place of employment. In these circumstances I conclude that the
parking arrangement that is available to the employees is a matter about
which IRS Houston District was obliged to bargain. It was a matter that
was substantially affected by the move of the employees.
NTEU Chapter 222 made a number of proposals concerning the impact of
the move and the parties reached agreement on all but two. These two
are the subject of this proceeding and in the final form, as submitted
by the NTEU Chapter 222, were: /10/
Section 2
To the extent it has legal authority to do so the Agency will
provide these rental spaces to employees at a cost not to exceed
the amount charged by Allright (or other parking management
company) to administer the parking facility. To the extent the
Agency has no legal authority to provide parking in the above
manner the rental cost of the parking to employees will not exceed
the cost to the Agency for securing such parking.
Section 4
All parking spaces not reserved for visitors parking or
government vehicles parking will be available to bargaining unit
employees on a first come first serve basis, except that the
agency may reserve spaces for the District Director and the
Assistant District Director.
During this course of bargaining concerning Section 2 and its
predecessors, /11/ IRS Houston District first contended that it would
violate GSA or other regulations for IRS Houston District to pay for
employee parking spaces. Only after repeated requests from NTEU Chapter
222 did IRS Houston District at the February 10, 1983 meeting, refer the
union to Internal Revenue Manual, which authorizes the Regional
Commissioner to determine whether to pay for the employee parking. In
its final response to the proposal IRS Houston District, in its March
16, 1983 letter, explained that it would not bargain because the
"agency" had not paid for employee parking and therefore there had been
no change in working conditions when the employees were relocated to the
Briarpark office. Further the IRS Houston District Office contended
that the IRM only authorized payment for employee parking in limited
circumstances, that this determination rests with the IRS Regional
Commissioner and that the "delegated authority to negotiate a local
agreement does not supersede this delegation . . . and therefore the
Houston District cannot locally negotiate such payment."
It is concluded that IRS Houston District failed and refused to
bargain in good faith with NTEU Chapter 222 concerning the provision of
paid parking for employees transferred to the Briarpark Office. In this
regard I rely inter alia, upon the fact that initially IRS Houston
District originally took the position that it was not able to agree to
the proposal because IRS could not lawfully pay for employee parking and
then, later during bargaining, switched reasons and stated that it would
not bargain about paying for employee parking spaces because there had
been no change in working conditions with respect to paying for employee
parking and because IRS Houston District did not have authority to agree
to pay for such parking, that such authority lay with the Regional
Commissioner. /12/
These final reasons relied upon by IRS Houston District did not
justify its refusal to bargain concerning the NTEU Chapter 222 proposal
concerning the payment for employee parking. As discussed above, as a
result of the transferring of employees from the two offices to the
Briarpark Office there was a substantial impact on the employees. They
were affected by the move with respect to the availability of parking
and public transportation. The test is the impact upon the employees,
not whether the employer who effected the underlying change subsequently
does anything differently. Thus it is irrelevant that IRS Houston
District had never paid for employee parking. The determining factor is
that the change, the move, had impact on employees, or would foreseeably
have an impact on employees. However, it is noted, IRS Houston District
was, through GSA, etc., setting new parking arrangements. Thus it is
clear, as a result of the move, the employees were affected and the
provision of paid parking facilities was one way of softening the impact
of the move on the employees. /13/
Similarly, the IRS Houston District contention that it could not
bargain about the paid parking proposal because the discretion to pay
for employee parking was placed with the Regional Commissioner and that
is a level above the IRS Houston District Office, does not justify its
refusal to negotiate. The NTEU recognition is for a nationwide unit,
but NTEU and IRS, agreed in Article 39 Section 3 of the NORAD that where
there is a change affecting one location, the parties will bargain at
the local level concerning the change. Both parties, at the national
level, agreed to delegate to their local representatives the authority
to bargain concerning the local changes. Such an arrangement is common
and sensible because it permits both sides to delegate the authority to
bargain to representatives that have the most knowledge and
understanding of the local office and changes. However, it is clear
that the negotiators are bargaining as representatives of their
respective national organizations. Both sides, by the NORAD, therefore
agree to delegate to their local representatives adequate authority to
negotiate concerning all relevant matters. In such circumstances IRS
can not, after agreeing to local negotiations for local changes,
delegate the necessary authority to its local representatives.
Similarly it can not require the local NTEU representative to locate and
identify the appropriate level at which to bargain concerning each
different proposal depending upon the level at which IRS, internally,
delegated the discretion to negotiate the matters involved. Such an
arrangement not only clearly violates the IRS' contractual undertaking,
but it would totally frustrate any reasonable collective bargaining
relationship. IRS Houston District, as the local representative, was
responsible for either making sure that either it had the delegated
authority from the Regional Commissioner to negotiate concerning the
payment for employment parking or that the Regional Commissioner was
represented at the bargaining. Accordingly IRS Houston District is not
permitted to refuse to bargain about payment for employee parking
because the discretion to pay lies with Regional Commissioner.
Respondents contend that the payment for employee parking by IRS is
nonnegotiable because it would obligate the IRS to reimburse employees
for increased commuting costs. See American Federation of Government
Employees, AFL-CIO and General Services Administration, 9 FLRA No. 108
(1982) and National Treasury Employees Union and Department of the
Treasury, Internal Revenue Service, 9 FLRA No. 88 (1982) and National
Federation of Federal Employees, Local 29 and U.S. Army Engineer
District, Kansas City, Missouri, 13 FLRA No. 4 (1983). These cases are
inapposite with respect to the subject case. NTEU Chapter 222 is
requesting that management provide free or low priced parking for
employees, not that it reimburse employees for commuting costs. The IRM
specifically recognized that IRS can, in certain situations provide free
or reduced rate parking. Further the final proposal was phrased in
terms that IRS will provide the parking spaces to the extent permitted
by law or at a cost not to exceed the amount charged by the management
company, to the extent IRS has the authority to do so. Thus both the
subject of the proposal and the language of the proposal were negotiable
and IRS Houston District was obligated under the Statute to bargain with
NTEU Chapter 222 concerning its pay parking proposal. Cf. United States
Department of Labor, Case No. 7-CA-40017(1)(2)(3) and (4), OALJ 85-011
(November 14, 1984) and the cases cited therein.
Respondents' further contention that the pay parking proposal was
nonnegotiable because GSA regulations provided that only GSA could
secure parking and IRS had no such authority, is rejected. The proposal
did not involve IRS securing or going out and leasing space, but rather
that IRS pay for the spaces already leased by GSA. Hence the proposal
sought IRS' agreement to pay (in whole or in part) for spaces already
leased by GSA. /14/ Similarly I reject the contention that this subject
proposal was nonnegotiable because it interfered with the IRS' right to
determine its own budget. In effect it is contended that because the
proposal would cost money, it inters with the budget determination.
/15/ A great many proposals that unions traditionally make agencies
agree to cost money. Cf. American Federation of Government Employees,
AFL-CIO and Air Force Logistics Command Wright-Patterson Air Force Base,
Ohio, 2 FLRA 604 (1980). Finally all the other various arguments made
Respondents to justify its refusal to bargain about the pay parking
proposal are rejected.
With respect to the proposal concerning assignment of parking spaces,
NTEU Chapter 222 had a real interest in assuring that the maximum number
of spaces were available for employees. Thus for all the reasons set
forth in connection with the pay parking proposal it is concluded that
the assignment of parking spaces proposal deals with conditions of
employment and deals with an appropriate subject of bargaining. See
Veterans Administration Medical Center, Northport, N.Y., Case No.
2-CA-793, OALJ 82-63 (1982) and the analysis therein. Respondents
contend that the parking assignment proposal violates 41 C.F.R.
101-20.117-2 which sets forth parking priorities for the handicapped and
to encourage car pools. The record fails to establish that these
matters were even raised, that there were in fact handicapped employees
or car pools or that NTEU Chapter 222 would not have agreed to setting
aside parking spaces for such employees. In the absence of any showing
that there were any employees in the priority categories, it can not be
concluded that the proposal violated any government wide regulation.
Finally IRS Houston District contends that the reservation of parking
spaces was solely within the control of the lessor and that therefore
IRS Houston District did not have the authority to agree to the
proposal. During negotiations NTEU Chapter 222 representative Deats
specifically proposed that the proposal could be changed to provide IRS
Houston District would ask to have the parking places not be assigned.
Further whether the 10 or 14 or none of the 550 spaces were specifically
assigned would be of no real interest to the lessor, rather it appears
that the spaces that were assigned, were assigned at the request of IRS
Houston District. Thus it is clear that IRS Houston District was being
asked to agree only to what it could agree to and to use its best
efforts to achieve what was agreed to.
Finally Respondents contend that NTEU Chapter 222 did not, in light
of its overall conduct, bargain in good faith and therefore relieved IRS
Houston District from its obligation to bargain in good faith. The
record establishes just the contrary. NTEU Chapter 222 appeared eager
to negotiate and bargain concerning the impact and implementation of the
move. It tried to cooperate and meet when convenient for IRS Houston
District. NTEU Chapter 222 made proposals and new proposals and agreed
to a long number of items. However, it was continually frustrated in
its attempts to obtain from IRS Houston District various information and
documents relating to the parking arrangements and needs. NTEU Chapter
222 agreed to meet and agreed to an interim arrangement concerning
parking because IRS Houston District stated it needed such an agreement.
Nevertheless NTEU Chapter 222 continued to be frustrated in obtaining
information and in getting IRS Houston District to bargain about the two
outstanding parking proposals. Instead IRS Houston District had
continued to change its reasons for refusing to negotiate concerning the
two parking proposals in question.
In light of all of the foregoing, I conclude that Respondents failed
and refused to bargain in good faith with NTEU Chapter 222 concerning
the two parking proposals, and thereby violated Sections 7116(a)(1) and
(5) of the Statute.
Because the changes affecting employees were the result of the move
and involved the establishment of a new parking system, rather than the
changing of an existing system, I conclude that neither a status quo
ante nor a reimbursement remedy would be appropriate. Cf. United
States Department of the Treasury, Bureau of Alcohol, Tobacco and
Firearms, Washington, D.C. and the Central Region, 16 FLRA No. 74
(1984).
Having concluded that Respondents violated Sections 7116(a)(1) and
(5) of the Statute, I recommend that the Authority issue the following:
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 United States Department of the
Treasury, Internal Revenue Service and United States Department of the
Treasury, Internal Revenue Service, Houston District, shall:
1. Cease and desist from:
(a) Failing and refusing, upon request, to bargain with
National Treasury Employees Union and National Treasury Employees
Union Chapter 222, the exclusive collective bargaining
representatives of its employees, concerning the impact and
implementation of the consolidation and move of the Houston
District, including, to the extent permitted by law and
regulation, National Treasury Employees Union Chapter 222's
proposals involving payment for parking and parking space
allocations.
(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 by the Statute.
(a) Upon request bargain and reach agreement with National
Treasury Employees Union and National Treasury Employees Union
Chapter 222, concerning the impact of the move and consolidation
of the Houston District, including, to the extent permitted by law
and regulation, National Treasury Employees Union Chapter 222's
proposals involving payment for parking and parking space
allocations.
(b) Post at its facilities in the Houston District 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 Respondents 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.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, in writing,
within 30 days from the date of this Order, as to what steps are
being taken to comply herewith.
/s/ SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: December 24, 1984
Washington, DC
--------------- FOOTNOTES$ ---------------
(1) In both its post-hearing brief and its Opposition to Respondent's
Exceptions, the Charging Party requested that it be awarded attorney
fees and costs in accordance with the Equal Access to Justice Act, 5
U.S.C. Section 504 (EAJA), and the Authority's Rules and Regulations.
The Judge did not rule upon this request, and his failure to do so was
not excepted to. Therefore, this issue is not properly before us in
this proceeding. We do note, however, that our regulations provide that
awards of attorney fees under the EAJA are available only to a
respondent, other than the United States, who prevails against the
General Counsel in an unfair labor practice proceeding. The Charging
Party in this case clearly was not the respondent. See United States
Department of the Treasury, Internal Revenue Service and Internal
Revenue Service, Austin District, 23 FLRA No. 100 (1986), petition for
review filed, No. 86-1712 (D.C. Cir. Dec. 22, 1986).
(2) See unpublished Comptroller General Decision B-162021 (July 6,
1977); 55 Comp. Gen. 1197 (1976); and 49 Comp. Gen. 476 (1970).
(3) IRS and IRS Houston District will hereinafter be referred to,
collectively, as Respondents.
(4) On or about October 14, 1982 GSA signed a lease with the owners
of the Briarpark office, which provided that the landlord would make 650
parking spaces available for official, guest and employee use. 514
spaces were to be provided at the Briarpark office and 136 were to be
within 3 blocks of the office. The lease provided that the spaces for
employees was to be paid through an employee association and, for the
first two years, covered spaces were to cost $20 per month and uncovered
spaces were to cost $10 per month. For the second five years covered
spaces were to cost $30 per month and uncovered spaces were to cost $20
per month.
(5) Article 39, Section 3.C.2.e. provides:
No new proposals nor changes in the substance of the original
proposals shall be submitted by either party after the first day
of negotiations;
(6) Crowley contends that he informed Union President Tony Ovalle of
the arrangements with Allright during a November 15, 1982 meeting of
employees. Ovalle denies this information was disseminated at the
November 15 meeting. In this regard I credit Ovalle because his version
is more consistent with the surrounding circumstances and subsequent
events than is Crowley's.
(7) Although Respondents' witnesses at hearing confirmed that the
agreement reached on January 6 was an interim agreement, they testified
that they did not expect to receive additional proposals from the union
at a later date. Rather, they apparently thought that the union team
merely wanted to get the "approval" of Deats, the union attorney, before
formalizing the agreement -- i.e., reducing it to writing. At the same
time, however, the Respondents' witnesses admitted that the union did
not in any way indicate during the session that the terms of the interim
agreement would bind them, or that final negotiations would be limited
to topics not covered by the interim agreement. Respondents' witnesses
admitted that there were in fact no limits on the union's rights in
negotiating a final parking agreement. It is thus unclear upon what the
IRS Houston District's team based its assumption that the negotiations
were more or less completed, especially since it had not yet provided
NTRU Chapter 222 with all the requested information concerning parking.
In this regard it is noted that the parties subsequently met to discuss
Union proposals concerning parking, with no apparent protest by IRS
Houston District that the parking issues had been settled.
(8) Ovalle had already obtained a copy of that portion of the lease
several days earlier from GSA because his previous requests that
Respondent submit the lease to the union had not resulted in production
of the document.
(9) Article 39 of the NORAD provides, in part:
Section 3
A. The Employer will give the NTEU National President advance
notice of any proposed changes in the conditions of bargaining
unit employees employment. Normally the Employer will provide
three weeks notice of such changes and the Union will make any
proposals it intends to make before the end of the notice period.
The Employer will furnish notice to the National President either
by certified mail or by hand delivery.
B. 1. Where the Employer proposes to make a change in the
conditions of employment that is limited just to one appointing
office, (e.g., district, region, headquarters) the notice
described in Section 3A above may be given to the local chapter
president or joint council chairperson. This does not include the
right to give the local offices notice of region-wide changes or
changes implemented locally, but on a varied basis because the
local management officials were given discretion to make changes
within certain boundaries. Furthermore, this right to give local
notice does not apply to any pilot projects or studies being
conducted in just one appointing office.
(10) These are the proposals in their final forms. During the course
of negotiations the proposals changed in form and substance.
(11) In its earlier forms Section 2 provided that IRS Houston
District will provide the parking spaces at no substantial charge to the
employees.
(12) It must be noted that after NTEU Chapter 222 changed the pay
parking proposal to meet the objection that it would be unlawful for the
agency to pay for employee parking, by adding that any such payment
would be to the extent permitted by law, IRS Houston District changed
the grounds for its refusal to bargain concerning the proposal.
(13) Respondents contend that paid parking is not a working condition
and hence there is no obligation to bargain about it. However, this
misconstrues the law. The obligation to bargain arises from the change
in the condition of employment, i.e. the move, and the parking proposals
involve minimizing the impact of the change on the employees. The
impact itself, however, need not be a condition of employment. However,
in the subject case parking is in fact a condition of employment. Any
change in the manner in which parking was provided to unit employees is
a condition of employment and therefore is negotiable. See e.g. United
States Department of Labor, Case No. 7-CA-40017(1)(2)(3)(4), OALJ 85-011
(1984) and the cases cited therein; and Veterans Administration Medical
Center, Northport, NY, Case No. 2-CA-793, OALJ 82-63 (1982).
(14) 41 C.F.R. Section 101-17.101-6 relied upon by Respondents deal
with the authority to procure space not the authority to pay for space.
(15) I reject Respondents factual allegation that Deats asked for a
line item in the IRS budget specifically referring to this parking.
Such allegation is totally inconsistent with all the surrounding
circumstances and discussions and makes no real sense.
APPENDIX
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 STATUTE
We hereby notify our employees that:
WE WILL NOT fail and refuse, upon request, to bargain with National
Treasury Employees Union and National Treasury Employees Union Chapter
222, the exclusive collective bargaining representatives of our
employees, concerning the impact and implementation of the consolidation
and move of the IRS Houston District, including, to the extent permitted
by law and regulation, National Treasury Employees Union Chapter 222's
proposals concerning payment for parking and parking space allocations.
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 bargain, upon request, with National Treasury Employees Union
and National Treasury Employees Union Chapter 222, concerning the impact
and implementation of the consolidation and move of the IRS Houston
District, including, to the extent permitted by law and regulation,
National Treasury Employees Union Chapter 222's proposals concerning
payment for parking and parking space allocations.
(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 of the Federal Labor Relations Authority, Region VI,
whose address is: P.O. Box 2640, Dallas, TX 75221, and whose telephone
number is: (214) 767-4996.