U. S. Department of Transportation, Federal Aviation Administration, Northwest Mountain Region, Renton, Washington and National Air Traffic Controllers Association

[ v55 p293 ]

55 FLRA No. 46

U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
NORTHWEST MOUNTAIN REGION
RENTON, WASHINGTON
(Respondent)

and

NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION (Charging Party)

DE-CA-60714

_____

DECISION AND ORDER

March 3, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the exceptions. [n2] 

      The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with a final and binding arbitration award. The Judge concluded that the Respondent violated the Statute as charged, and granted the General Counsel's proposed remedy.

      Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt, for the reasons discussed below, the Judge's findings, conclusions, and recommended Order as modified herein.

II.     Background and Judge's Decision

A.     Background

      The facts are fully set forth in the attached Judge's decision and are briefly summarized here. The Denver International Airport (DIA) replaced an existing airport where air traffic controllers worked prior to DIA's opening. This case concerns a dispute over the location of automobile parking spaces for air traffic controllers at the new airport.

      On October 4, 1990, the Respondent executed a lease agreement with the City and County of Denver (hereinafter "Denver") providing for "[e]ighty parking spaces for Government personnel in a parking area located in close proximity to the ATCT [Air Traffic Control Tower] that is mutually acceptable to the Government and the Lessor." Joint Exhibit 6 (hereinafter Arbitrator's Award) at 7. In 1992, the Union submitted formal bargaining proposals regarding parking accommodations for unit employees at the new DIA. In late February of 1994, the Respondent notified unit employees that parking at the new DIA would consist of uncovered spaces located at some distance from the terminal. The Union later filed a grievance. It contended that the Respondent violated the terms of Article 70 of the parties' collective bargaining agreement and FAA Order 4665.3 by providing inadequate parking and failing to make every reasonable effort to locate the employee parking area as close to the ATCT as possible. [n3]  The Respondent denied the grievance, claiming that the existing parking complied with the collective bargaining agreement. The parties then submitted the matter to arbitration.

      The arbitration hearing was held on January 18, 1996, and Arbitrator Lindauer's decision is dated April 12, 1996. The Arbitrator held that the leased area of 80 outdoor parking spaces, located more than two miles away from the Respondent's facility, was not adequate parking and violated FAA Order 4665.3A and Article 70. The Arbitrator also found that the Agency violated FAA Order 4665.3B, which superseded Order 4665.3A, but he did not rely on the later Order because it was not controlling at the time the Agency executed the lease for parking. [ v55 p294 ]

      As a remedy, the Arbitrator ordered the Agency to obtain thirty spaces in the second level of the inside parking structure at the west end of the east terminal, as the Union requested. The Arbitrator retained jurisdiction for sixty days to resolve any dispute arising out of implementation of the Order.

      The Respondent did not file exceptions to the award. Also, the Respondent did not return to the Arbitrator seeking to explain any problems in implementing the award. Upon receipt of the award, the Respondent informed Denver's representatives of the decision in order to address the possibility of compliance. On May 1, 1996, the Respondent met with Denver representatives and discussed the possibility of acquiring thirty indoor parking spaces. Denver's agent, the Deputy Director of Aviation/Operations at DIA, made clear "right up front" that the Respondent could not feasibly acquire thirty inside parking spaces without giving up all of its outside parking. In a May 24, 1996, meeting with the Respondent's representative, the Deputy Director proposed a "final outcome" as a "solution" to the Respondent's problem: exchange its current lease of eighty outdoor parking spaces for the same number of indoor spaces. On June 6, 1996, Denver issued a letter of confirmation of its May 24 offer. Denver later proposed exchanging the Respondent's outdoor spaces for eighty-five indoor spaces.

      In the meantime, on May 28, 1996, the Union filed an unfair labor practice charge with the Denver Regional Director. The Regional Director issued a complaint based on the Respondent's failure to comply with the award.

B.     Judge's Decision

      The Judge held that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to comply with an arbitration award that had become final and binding. For this proposition, the Judge cited United States Department of the Treasury, Internal Revenue Service, Austin Compliance Center, Austin, Texas, 44 FLRA 1306, 1315 (1992) (IRS Austin), reconsideration denied, 45 FLRA 525 (1992), and U.S. Customs Service, Washington, D.C., 39 FLRA 749, 757-58 (1991) (Customs Service). In reaching this result, the Judge cited the well-established principle that an award is "final and binding" when no timely exceptions are filed or when timely exceptions are denied by the Authority. As support, the Judge relied on U.S. Department of the Air Force, Carswell Air Force Base, Texas, 38 FLRA 99, 104 (1990) (Carswell). The Judge concluded that it was too late for the Respondent to collaterally attack the arbitration award because it had not filed exceptions. The Judge cited as authority U.S. Department of Veterans Affairs Medical Center, Allen Park, Michigan, 49 FLRA 405, 426 (1994), and United States Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151, 153-54 (1984)(Wright-Patterson), affirmed sub nom. Department of the Air Force v. FLRA, 775 F.2d 727 (6th Cir. 1985).

      The Judge emphasized that the record showed that the Respondent knew as early as May 1, 1996, prior to the expiration of the 30-day time limit for filing exceptions to the award, that it could not acquire the indoor parking spaces in the area of the garage as specified in the award. The Judge noted that the Respondent never accepted "the City and County of Denver's stated `best' offer with respect to compliance with the arbitrator's award even though [Denver's] offer has remained open at all times." Judge's Decision at 7.

      According to the Judge, the Respondent did not take the affirmative measures at its disposal to resolve the problem of specific compliance: it could have filed exceptions to the arbitrator's award, but did not; it had sixty days to request the arbitrator to clarify the award, but did not; it could have conferred with the Union during its negotiations with Denver, but did not. The Judge found the Respondent could not use Denver's position as a reason for not complying with the award "[without] tak[ing] any of the foregoing measures to resolve the issue." Id. at 10.

      In terms of a remedy, the Judge recognized that in cases such as this one, the Authority will traditionally order compliance with the terms of the arbitrator's award. The Judge found that such a remedy would be futile in this case because Denver would not make available thirty parking spaces in the specific location awarded by the Arbitrator. Instead, the Judge found that the remedy requested by the General Counsel, that the Respondent be ordered to accept Denver's "standing offer" to provide eighty reserved indoor parking spaces on the first level of the northeast corner of the east terminal of DIA, at no cost to the employees, was appropriate. Id. at 13. In reaching this decision, the Judge discussed and applied F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149 (1996) (F.E. Warren).

      As to the lawfulness of the remedy, the Judge noted that the Respondent had not argued that the remedy would be contrary to law, and the Judge knew of no reason why it would be unlawful. Judge's Decision at 12 n.12. The Judge specifically discussed Department of the Army, United States Army Commissary, Fort Benjamin Harrison, Indianapolis, et al. v. FLRA, 56 F.3d [ v55 p295 ] 273 (D.C. Cir. 1995) (Department of the Army v. FLRA), and Immigration and Naturalization Service, Los Angeles District, Los Angeles, California, 52 FLRA 103 (1996) (INS), in terms of the applicability of the doctrine of sovereign immunity to this case. In the Judge's view, the Respondent is not immune from the remedy imposed in this case, as it would effectuate the purposes and policies of the Statute.

III.     Positions of the Parties

A.     Respondent's Exceptions

      The Respondent contends, first, that it did not commit an unfair labor practice, noting that it had been attempting to comply with a "clear and unambiguous" award. Brief to Exceptions at 4. According to the Respondent, the Union's filing of the unfair labor practice charge was premature because the Respondent did not have "sufficient opportunity" to negotiate with Denver. Id. The Respondent states that "[t]he length of time it takes an agency to comply with an award depends on the complexity of achieving that award[,]" and cites Department of Health and Human Services, Social Security Administration, 22 FLRA 270 (1986) (SSA), in support. Id.

      The Respondent also maintains that the Judge's conclusions that the Respondent should have involved the Union in its discussions and notified the Arbitrator of compliance problems, are not supported by law or the record. Rather, the Respondent contends that the evidence indicates the Union would not have been willing to assist in negotiations because it chose to file its unfair labor practice charge before expiration of the arbitrator's sixty-day period of retained jurisdiction over the matter. Furthermore, the Respondent states that it would have been premature to return to the Arbitrator within sixty days, given the ongoing nature of the negotiations with Denver. The Respondent maintains that it did not accept Denver's proposal because it "d[id] not satisfy the intent and scope of the arbitration award." Id. at 5. The Respondent adds that, to the extent there is a suggestion that the Respondent should have sought clarification from the Arbitrator, the Authority may wish to remand the award to the arbitrator for such clarification at this time.

      Second, the Respondent contends that the Judge's order is contrary to law and public policy. According to the Respondent, the Judge erred in characterizing Denver's proposal for alternative parking as an "offer" because the cost of installation of the electronic equipment (approximately $200,000) was "indefinite and tentative . . . . " Id. at 6. In addition, the Respondent asserts that Denver's later statement that 85 parking spaces were available, not 80 spaces as the Judge ordered, underscores the fact that no clear offer was made.

      The Respondent also argues that the Judge's remedy would require a greater expenditure of funds for more parking spaces than the Arbitrator ordered. The Respondent points out that the cost of acquiring 80 parking spaces is potentially $330,000 for the first year and $130,000 thereafter, and that the difference in cost between the 80 spaces ordered by the Judge and the 85 spaces offered by Denver is in excess of $8,000 per year. Id. The Respondent claims, citing F.E. Warren, that remedies for unfair labor practices may not be punitive, although the Respondent makes no claim that the Judge's remedy in this case is punitive. The Respondent asserts that it would have been required to obtain only 30 indoor parking spaces in order to comply with the award. In addition, the Respondent states that adoption of the Judge's remedy, which exceeds the requirements of the number of spaces needed for the bargaining unit, would be "tantamount" to "modify[ing] the bargaining unit contract . . . [and] contrary to public policy and unsupported by legal authority." Id. at 7. The Respondent adds that "[i]f the agency wanted to expend funds to acquire parking spaces which exceeded its maximum requirements, it would not have the legal authority to do so." Id. at 7-8.

      The Respondent argues that any remedy that would "require the expenditure of Agency funds for reimbursement for parking" must be supported by statutory authority and that such authority does not exist. Id. at 7. In support, the Respondent cites INS, 52 FLRA 103. The Respondent claims that the Statute does not authorize the granting of "money damages[,]" which is the nature of the remedy ordered by the Judge. Brief to Exceptions at 8. Citing to Department of the Army v. FLRA, 56 F.3d 273, the Respondent maintains that sovereign immunity bars the Authority from affirming the Judge's remedy.

      Finally, the Respondent requests that, if the Authority finds that an unfair labor practice has been committed, the appropriate remedy would be a posting at the Denver Air Traffic facility.

B.     General Counsel's Opposition

      The General Counsel contends that the Authority will not allow an agency to defend its failure to implement an arbitrator's award on grounds that should have been raised as exceptions to the award under section 7122 of the Statute. The General Counsel argues that [ v55 p296 ] the Respondent is barred from collaterally attacking the award and that the Respondent's failure to implement the award constitutes an unfair labor practice. In this regard, the General Counsel asserts that the Respondent's attempt to use Denver's negotiation position as a defense is an illegal collateral attack on the arbitration award.

      As to the Judge's remedial order, the General Counsel notes that the Respondent's regulation, FAA Order 4665.3B, authorizes the expenditure of funds to pay for parking. The General Counsel further argues the Judge's order is not a form of money damages, which distinguishes this case from INS. Rather, the Judge's remedy is an order for specific relief, which is not barred by the doctrine of sovereign immunity. According to the General Counsel, "[e]ven though complying with said order may result in the agency's expenditure of funds, this does not convert a remedy for specific performance into an award of monetary damages." General Counsel's Opposition at 10-11. If this were not the case, "an agency could never be ordered to take any affirmative action as a remedy if said action resulted in the expenditure of funds." Id. at 11. The General Counsel also asserts that Denver made a valid offer to provide parking and that the Respondent's arguments to the contrary are "specious." Id.

      The General Counsel requests that the Authority strike the Respondent's references to the cost of complying with the Judge's order on the basis that the cost figures are unsupported by the record. As grounds for the request, the General Counsel cites Antilles Consolidated Education Association, (OEA/NEA), San Juan, Puerto Rico, 36 FLRA 776, 785 (1990) (Antilles), and United States Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection Quarantine, 26 FLRA 630 (1987) (APHIS).

IV.     Analysis and Conclusions

A.     The Judge correctly concluded that the Respondent did not comply with the arbitration Award

      As noted previously, it is well established that, under section 7122(b) of the Statute, an agency must take the action required by an arbitrator's award when that award becomes "final and binding." The award becomes "final and binding" when there are no timely exceptions filed under section 7122(a) of the Statute or when timely filed exceptions are denied by the Authority. Carswell, 38 FLRA 99; U.S. Department of Health and Human Services, Health Care Financing Administration, 35 FLRA 491, 494-95 (1990). Disregard of an unambiguous award is an unfair labor practice under section 7116(a)(1) and (8) of the Statute. IRS Austin, 44 FLRA at 1315; Customs Service, 39 FLRA at 757-58.

      The Arbitrator's award in this case was dated April 12, 1996. There is no dispute that the award is clear and unambiguous. It is undisputed that the Respondent did not file exceptions within 30 days of that date. Consequently, the award became final and binding and the Respondent was required under the Statute to comply with the award.

      The only issue for resolution by the Judge was whether the Respondent had failed to comply with the Arbitrator's final award. Based upon a preponderance of the evidence, the Judge correctly concluded that the Respondent violated the Statute, as alleged.

      The Authority will not review the merits of an arbitration award in a ULP proceeding. See, e.g., United States Army Adjutant General Publications Center, St. Louis, Missouri, 22 FLRA 200, 206 (1986). As the Authority has repeatedly stated, to allow a respondent to litigate matters that go to the merits of the award would circumvent Congressional intent with respect to statutory review procedures and the finality of arbitration awards. See, e.g., Wright-Patterson, 15 FLRA 151. See also Department of Health and Human Services, Social Security Administration, 41 FLRA 755, 765-66 (1991), enforced sub nom. Department of Health and Human Services v. FLRA, 976 F.2d 1409 (D.C. Cir. 1992) (under section 7122 of the Statute, arguments that go to the merits of an arbitration award are not litigable in a ULP proceeding brought to enforce the award).

      In enforcing Wright-Patterson, the court in Department of the Air Force explained that, "[s]ince the award becomes final and must be implemented if the parties fail to file an exception within the required period, the necessary implication is that a party can no longer challenge the award by any means. It has become final for all purposes." 775 F.2d at 735 (emphasis added). In U.S. Department of Justice v. FLRA, 792 F.2d 25 (2d Cir. 1986), an unfair labor practice case, the Second Circuit refused to indirectly review the Authority's decision that denied exceptions to an arbitrator's award. In reaching this decision, the court noted from the legislative history that it was the "intent of the House . . . to make clear that the awards of arbitrators, when they become final, are not subject to further review by any other authority or administrative body . . . . " 792 F.2d at 29. The court ruled that in view of the language of the Statute and the legislative history, Congress did not intend indirect review of arbitration awards. The court further ruled that such indirect review "runs counter to public policy." Id. The court [ v55 p297 ] noted that such indirect review could result in excessive delay and expense contrary to the public policy underlying arbitration awards that favors quick, definite, and inexpensive resolution of labor disputes.

      The Respondent defends its noncompliance with the terms of the award on several grounds. The first set of arguments, addressed immediately below, relate both to Respondent's alleged inability to comply with the award and to its efforts to comply. The second set of arguments relate to the Judge's remedy. Those arguments are addressed in Part B, below.

      In claiming that it did not commit an unfair labor practice, the Respondent contends that it made attempts to comply with the award, but that Denver would not allow it to comply. These arguments, in effect, challenge the Arbitrator's final and binding award and, therefore, are not properly before us in this proceeding. In essence, the Respondent raises the same claim asserted by the agency in exceptions to an award in U.S. Immigration and Naturalization Service and American Federation of Government Employees, AFL CIO, Local 1917, 20 FLRA 391 (1985). In that case, the arbitrator directed the agency to take specific actions that were within the purview of GSA, the New Jersey/New York Port Authority, and the airlines at JFK International Airport. The agency claimed that the award was deficient because the agency did not have the authority to take the actions ordered by the arbitrator or to compel GSA, the Port Authority, or the airlines to take such actions. The Authority found that the award was deficient because the arbitrator could not direct the agency to take actions that were within the purview of a third party. As the Respondent's arguments similarly concern its authority to comply with the award, such arguments constitute a collateral attack on the award and will not be reviewed by the Authority in a proceeding to enforce the award. [n4] 

      The Respondent chose not to file exceptions to the Arbitrator's award, despite the fact that it was aware of the difficulties in implementing the award during the 30-day period in which exceptions could have been filed. See Judge's Decision at 9. Consequently, the award became final and binding. The Respondent cannot now be permitted to attack the award in this unfair labor practice proceeding because permitting such an attack would nullify the statutory scheme Congress created. As the Judge correctly found, the Respondent's claim that it is not able to comply with the award constitutes an impermissible collateral attack on the award itself, and we reject it as such.

      We also reject the Respondent's claims that it should be relieved of liability because the ULP charge allegedly was filed prematurely, or because the Respondent was attempting to comply within a context that it claims to be complex. Specifically, the Respondent excepts to the Judge's statements directed to its failure to seek the Arbitrator's assistance and its failure to consult with the Union regarding alternative solutions to the award, stating that such communications would have been futile. In support of its claims, the Respondent relies upon SSA, 22 FLRA 270, wherein the Authority dismissed a complaint alleging, in part, that an agency failed to comply with an arbitration award. In SSA, the Authority adopted the administrative law judge's decision that, in light of all the facts and circumstances presented, the agency had acted promptly in implementing the award. Those facts and circumstances included compliance with various actions, not all of which had clear time frames. SSA is factually distinguishable from the instant case for several reasons. First, the arbitrator in that case issued both an interim award and, five months later, a final award. The bifurcation of the award created difficulties in implementation. Second, the agency promptly complied with the only portion of the award that had a clear time frame. Third, compliance with the final award was complicated by the agency's compliance with the interim award. Here, as noted, compliance with the award, which concededly was "clear and unambiguous" was never achieved. Brief to Exceptions at 4. Accordingly, non-compliance is not excused by the circumstances of this case. [n5]  [ v55 p298 ]

B.     The Judge's remedy is consistent with law                                                                        and public policy

      The Respondent raises a number of arguments that contest the Judge's recommended remedy. These arguments focus on the claimed absence of a clear offer having been made by Denver and claims that the Judge's remedy is not consistent with the terms of the award and requires an increased expenditure of funds. [n6]  As to the latter argument, the Respondent maintains that there is no statutory authorization to reimburse employees for parking and that the doctrine of sovereign immunity bars the payment of money damages in this case.

      The claim regarding the absence of a clear offer is predicated on two points: (1) the cost of installing electronic equipment as being an approximate cost; and (2) the discrepancy between the 85 parking spaces offered by Denver and the 80 spaces the Judge ordered the Respondent to obtain. We reject this claim. The Judge clearly ordered the Respondent to accept the offer that had been made by Denver on June 6, 1996. That offer consisted of 80 spaces at an approximate cost of $200,000 to install the electronic equipment. Although the Director of Aviation/Operations later revised the number of parking spaces to 85, there is no indication in the record that Denver would be unable to provide 80 parking spaces. As to the installation cost, the record reflects that Denver reduced the actual cost of about $476,000 to about $200,000. There should be no doubt, even in the absence of an actual "to the penny" amount, of what the cost of installation would be. Consequently, the terms of the offer are sufficiently clear to enable the Respondent to comply.

      We also reject the Respondent's claims that the doctrine of sovereign immunity bars the imposition of a remedy for money damages and that there is no statutory authority to require reimbursement for parking.

      As noted in INS, 52 FLRA 103, the United States is immune from liability for money damages under the doctrine of sovereign immunity. Lane v. Pena, 518 U.S. 187 (1996). The Respondent argues that the Judge's remedy involves money damages. However, the remedy in this case does not involve money damages. In Department of the Army, United States Army Commissary, Fort Benjamin Harrison, Indianapolis, et al. v. FLRA, 56 F.3d 273 (D.C. Cir. 1995), vacating in part 48 FLRA 6 (1993) (Department of the Army v. FLRA), the court discussed the difference between money damages and equitable relief. In that case, the Authority directed an agency to reimburse employees for all monies lost or interest charged as a result of a failure to bargain over the agency's change in pay lag policy. The court vacated the Authority's money judgment on grounds that such a remedy was compensation for consequential losses and was therefore money damages barred by the Government's sovereign immunity. 56 F.3d at 276. The court characterized "money damages" as a payment to a plaintiff of a sum of money for "something lost in consequence of the defendant's act," and as a substitute for a suffered loss in an action at law for damages. Id. at 276 (citations omitted) (emphasis added). On the other hand, the remedy in an equitable action "`attempt[s] to give the plaintiff the very thing to which he was entitled." Id. (quoting Bowen v. Massachusetts, 487 U.S. 879, 895 (1988) (Bowen) and citing Maryland Department of Human Resources v. Department of Health and Human Services, 763 F.2d 1441, 1446 (D.C. Cir. 1985)). The court recognized that a monetary award can be either legal or equitable in nature. See also Bowen, 487 U.S. at 893 ("The fact that a judicial remedy may require one party to pay money to another is not a sufficient reason to characterize the relief as `money damages.'").

      The relief ordered by the Judge directed the Respondent to obtain parking spaces for unit employees in a different location than had been made available by the Respondent. Insofar as the remedy directed the [ v55 p299 ] Respondent to provide parking at no cost to employees, the specific remedy may be characterized as equitable in nature. Consequently, the Respondent's reliance on Department of the Army v. FLRA, to support its contention that a remedy of money damages cannot be sustained in this case, is misplaced.

      Furthermore, since the Respondent was not directed to reimburse employees for any expenses, this case is distinguishable from INS, 52 FLRA 103. In that case, the respondent was found to have violated the Statute by discontinuing its practice of providing free parking on its property without fulfilling its bargaining obligations. As a consequence of the respondent's action, employees incurred expenses charged by parking garages and lots, and the General Counsel requested the imposition of a make-whole remedy. The Authority found that, in the absence of any statutory authority permitting such a remedy, the doctrine of sovereign immunity barred the requested relief. The Authority instead ordered the respondent to restore the practice of providing parking on the respondent's property.

      Although the Respondent argues that the Authority cannot impose "a monetary claim" for parking without statutory authority, there is no contention that the Respondent is not authorized to procure parking for its employees, even if it involves an expenditure of money. Brief to Exceptions at 7. Indeed, no one questioned the Respondent's authority to enter into the leasing arrangement that required it to procure employee parking at DIA. The General Counsel states that the Respondent's own regulation, FAA Order 4665.3B, authorizes the expenditure of funds to pay for parking. Specifically, that regulation states, in pertinent part, that "nothing in this order shall preclude the expenditure of funds to provide reasonable parking accommodations at FAA facilities." See note 2, supra.

      Also, Federal statute provides the Respondent with general procurement authority to acquire leased property. 49 U.S.C. § 40110 sets forth the general procurement authority of the FAA Administrator as follows:

§ 40110. General procurement authority
(a)     General.--In carrying out this part, the Administrator of the Federal Aviation Administration--
(1) to the extent that amounts are available for obligation, may acquire services or, by condemnation or otherwise, an interest in property, including an interest in airspace immediately adjacent to and needed for airports and other air navigation facilities owned by the United States Government and operated by the Administrator[.]

      Under the Federal Property Management Regulations promulgated by GSA, "[a]cquisitions of leased space by agencies possessing independent statutory authority to acquire such space are not subject to GSA approval or authority." 41 C.F.R. § 101-18.102. Additionally, "all agencies" are authorized to acquire certain types of space, including "garage space" which "may be leased only on a fiscal year basis[.]" 41 C.F.R. § 101-18.104-2.                                                                  

      Although Title 49 contains no explicit reference to parking, the Comptroller General found that the FAA was authorized to expend money to procure employee parking based on the language of an earlier version of Title 49, a predecessor regulation to FAA Order 4665.3B, and GSA regulations. In Matter of Federal Aviation Administration and Professional Air Traffic Controllers Organization, 55 Comp. Gen. 1197 (1976), the FAA Administrator sought a determination as to whether it could lawfully comply with arbitration awards requiring the FAA to expend money to procure parking for employees at three separate air traffic control sites. In each case, the arbitrator found that the FAA had violated the terms of a collective bargaining agreement that, in part, obligated the FAA to provide adequate employee parking and required the FAA to be bound by the provisions of an FAA order. That order set forth the FAA's policy of providing free or low cost parking for employees. Also in each case, the FAA did not control the parking at the facilities, but was required to negotiate parking accommodations with the airport authorities. The Comptroller General rejected the FAA's position that it lacked the authority to make expenditures, and its reliance on Comptroller General and GSA rulings "that are concerned with the normal situation where agencies have no independent authority to lease space and consequently must rely on GSA to procure the space and accommodations they require." 55 Comp. Gen. at 1200. Rather, the Comptroller General stated that FAA had independent authority, under 49 U.S.C. § 1344(C) to acquire various interests in property, including special purpose space delegated by GSA. That delegation, in turn, included space for employee parking.

      In this case, GSA has authorized agencies to procure garage space. That, coupled with FAA's authority to obligate funds for interests in property leads us to find that the Respondent has the authority to expend money to comply with the Judge's remedy. [n7] 

      Finally, the Respondent's claims that the Judge's remedy requires a greater expenditure of funds than [ v55 p300 ] would have been required by the Arbitrator's award and does not otherwise satisfy the terms of the award are essentially claims that the Judge lacked the authority to modify the terms of the award. There is no basis for this claim. The Judge recognized that compliance with the precise terms of the award was not possible given "the City and County of Denver's stated unwillingness to permit the FAA to obtain permanent parking spaces in the location specified by the arbitrator in his award." Judge's Decision at 10. Consequently, in fashioning an appropriate remedy, the Judge examined the remedy the General Counsel requested in relation to the standards for nontraditional remedies set forth in F.E. Warren, 52 FLRA 149.                                                   

      In F.E. Warren, the Authority discussed its approach to evaluating requests for nontraditional remedies. The Authority concluded that nontraditional remedies must satisfy the same broad objectives that the Authority described in United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 444-45 (1990). That is, assuming that there are no legal or public policy objections to a proposed, nontraditional remedy, the questions are whether the remedy is reasonably necessary and would be effective to "recreate the conditions and relationships" with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct. Id. As these questions are essentially factual, the Authority evaluates them, as it does with other factual questions, by considering the record evidence, arguments to the judge, and any exceptions to the judge's decision.

      Applying F.E. Warren, the Authority finds that -- with a change that contemplates the effect of the passage of time -- the Judge's remedy is appropriate. First, the remedy is reasonably necessary to effect compliance with a final and binding arbitration award in which the Respondent was found to have violated the parties' collective bargaining agreement by failing to procure adequate parking for unit employees. Furthermore, the underlying dispute in this case has existed since 1992 when the Union sought to bargain over parking prior to construction of the DIA. In light of the Respondent's dilatory conduct in meeting its contractual obligation to find adequate parking, or in satisfying the Arbitrator's award, the Judge's order is a reasonable solution to a long-standing problem.

      In addition, the remedy effectively recreates the conditions and relationships that would have existed had there been no unfair labor practice. Although the Judge's remedy does not contain the same precise terms as the Arbitrator's award, the Judge determined that his order would "effectuate compliance with the terms of the arbitrator's award to the maximum extent possible in view of the parking difficulties that exist at the airport of which the arbitrator was unaware." Judge's Decision at 13. The record supports the Judge's conclusion that the remedy would place the parties in essentially the same position that would have existed had the Respondent not committed the unfair labor practice. Finally, the remedy effectuates the broad policies of the Statute, including the deterrence of future violative conduct. Requiring the Respondent to implement the Judge's order is consistent with the requirement, set forth in section 7122(b) of the Statute, that parties comply with final and binding arbitration awards. In this case, such a remedy also signals that agencies are required to comply with terms contained in collective bargaining agreements that are negotiated in good faith. Additionally, this remedy will deter future parties to arbitration from failing to comply with final and binding awards and reduce any incentive that may exist to employ dilatory tactics in complying with an award.

      We will order compliance with the Arbitrator's award and will modify the Judge's Order to an extent that permits its acceptance of an alternative offer by Denver that accomplishes compliance with the Arbitrator's award. Specifically, the Respondent will be required to comply with the Arbitrator's award by acquiring from the City and County of Denver 30 indoor parking spaces for use by bargaining unit employees at no cost to them. The Respondent must comply with the Arbitrator's award, even if doing so necessitates acquiring more than 30 spaces, such as through acceptance of the offer of 80 or 85 spaces, or more, or acquiring spaces in a different, but substantially equivalent location. The Respondent must comply within 60 days. [ v55 p301 ]

      For the reasons set forth above, we conclude that the Respondent's noncompliance with the Arbitrator's award violates section 7116(a)(1) and (8) of the Statute. Accordingly, we deny the Respondent's exceptions and adopt the Judge's remedial order, as modified.

V.     Order

      Pursuant to section 2423.41(c) of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Transportation, Federal Aviation Administration, Northwest Mountain Region, Renton, Washington, shall:

      1.     Cease and desist from:

      (a)     Failing to comply with the final and binding award of Arbitrator Eric B. Lindauer dated April 12, 1996, directing the Respondent to obtain reserved indoor parking spaces for use by its air traffic controllers at no cost to them.

      (b)     In any like or related manner interfering with, restraining or coercing bargaining unit employees in the exercise of rights assured them by the Statute.

      2.     Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

      (a)     Comply with the Arbitrator's award by acquiring from the City and County of Denver 30 indoor parking spaces for use by bargaining unit employees at no cost to them. The Respondent must comply with the Arbitrator's award, even if doing so necessitates acquiring more than 30 spaces, such as through acceptance of the offer of 80 or 85 spaces, or more, or acquiring spaces in a different, but substantially equivalent location. The Respondent must comply within 60 days.

      (b)     Post at Respondent's Denver facility copies of the attached Notice To All Employees on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by Respondent's Regional Administrator of Northwest Mountain Region, and shall be posted at that facility 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.

      (c)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Denver Region, Federal Labor Relations Authority, 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, in writing, within 30 days from the date of this order, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Department of Transportation, Federal Aviation Administration, Northwest Mountain Region, Renton, Washington, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify bargaining unit employees that:

WE WILL NOT fail to comply with the final and binding award of Arbitrator Eric B. Lindauer dated April 12, 1996, directing us to obtain reserved indoor parking spaces for use by air traffic controllers at no cost to them.

WE WILL NOT in any like or related manner interfere with, restrain or coerce bargaining unit employees in the exercise of rights assured them by the Statute.

WE WILL comply with the Arbitrator's award by acquiring from the City and County of Denver 30 indoor parking spaces for use by bargaining unit employees at no cost to them. We will comply with the Arbitrator's award, even if doing so necessitates acquiring more than 30 spaces, such as through acceptance of the offer of 80 or 85 spaces, or more, or acquiring spaces in a different, but substantially equivalent location. We will comply within 60 days.

      _______________________

      (Agency or 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 of the Federal Labor Relations Authority, Denver Regional Office, whose address is Denver Region, Federal Labor Relations Authority, 1244 Speer Boulevard, Suite 100, Denver, CO 80204-3581, and whose telephone number is (303) 844-5224. [ v55 p302 ]


APPENDIX

FAA Order No. 4665.3A provides, in pertinent part:

4.     Policy.

. . . .
(2)     Employee Parking. Adequate parking accommodations shall be provided for the privately-owned vehicles of FAA employees engaged in the maintenance and operation of agency technical facilities.
(a)     On Airports. Adequate parking accommodations for FAA employees in close proximity to FAA technical facilities is considered to be an integral part of the facility.
1.     Project approvals for new facilities shall be withheld, and start of construction of new facilities shall be delayed until adequate employee parking arrangements are made for all FAA technical facilities located on airports.
2.     No new leases, permits or other real estate instruments are to be executed, or existing ones modified without the inclusion of specific statements assuring adequate employee parking accommodations at all technical facilities located on airports.                     

5.     Determining Adequacy of Parking.

(a)     Responsibility. Regional and Center Directors are responsible for determining the adequacy of parking accommodations for official and employee parking on a site-by-site basis.
(b)     Factors to be considered. In pursuing the objective of providing parking accommodations close to a facility at no or very minimal costs to the employees, a firm but reasonable and responsible position must be taken. Some considerations are:
(1)     Parking accommodations should be at least equal to those provided the employees of the airport owner/operator.
(2)     The distance between the parking area and facility should take into account weather conditions and personal safety factors. A reasonable distance may be 500 feet, depending on the specific circumstances at a given location. Generally, an employee should not have to resort to another means of transportation (e.g., shuttle buses) to reach the facility from the parking area. But the availability of this type of transportation must be considered in arriving at a final decision on the adequacy question.

6.     Correction of Deficiencies

....
(2)     FAA Controlled Space.
(b)     Employee Parking at Technical Facilities. A maximum effort shall be made to negotiate for adequate employee parking. In the event these efforts fail, the Regional Director may approve the expenditure of FAA funds to obtain temporary relief for the problem until such time as parking accommodations can be obtained from the airport owner/sponsor, or, in the case of off airport sites, until parking accommodations can be acquired.
FAA Order No. 4665.3B states, in pertinent part:
6.     Policy.          It shall be the policy of FAA to obtain, to the extent possible, adequate free parking for official and employee vehicles at all FAA facilities. Managers responsible for implementing the provisions of this order should exercise reasonable judgment in assessing the parking requirement at their facilities as compared to the additional costs that may be incurred in implementing the provisions of this order. The following guidelines shall apply in implementing this policy.
(b)     FAA - Provided Space. Adequate parking for official and employee vehicles shall be provided at the time a facility is initially constructed or leased. If parking requirements change, new parking requirements will be provided in accordance with paragraph 10. At some FAA facilities and duty stations, especially at airports, adequate free parking is not available and commercial parking is exceedingly expensive. In these instances, every reasonable effort shall be made to obtain parking that is at least equivalent to the parking accommodations provided to employees of the airport or commercial [ v55 p303 ] entities in the nearby area. In some instances this may result in employees parking at satellite parking facilities located some distance from their facility or duty station and utilizing a shuttle bus service to reach their facility or duty station. In order to determine the adequacy of parking facilities of this type, facility managers should carefully evaluate the frequency of the shuttle service, safety of employees at satellite parking facilities, and costs of acquiring alternative parking accommodations located closer to the FAA facility or duty station.

. . . .

9.     Funding.          Although it is the policy of the FAA to make every attempt to secure parking accommodations for official and employee vehicles at no cost whenever possible, nothing in this order shall preclude the expenditure of funds to provide reasonable parking accommodations at FAA facilities. At both GSA- and FAA-approved facilities, the cost for providing parking accommodations should be included in the rent. If it becomes necessary to install electrical outlets for engine block heaters at existing parking facilities, every effort should be made to have the lessor install the electrical outlet and amortize the installation cost over the term of the lease agreement. If installation of electrical outlets is necessary at FAA-provided facilities, funding for the installation should be obtained through the normal budget process by the parent division of the field office that will benefit from the installation. At collocated offices and facilities, a proportional share of the cost to install electrical outlets should be agreed to by the parent divisions of the collocated offices and facilities.

10.     Responsibilities.

. . . .
(c)     Regional division managers are responsible for determining the adequacy of parking at field facilities that fall within their operational jurisdictions. When parking accommodations are found to be inadequate, regional division managers will initiate requests for any funding needed to correct the parking inadequacies through the normal budget process. Upon receipt of funds, regional division managers will initiate requests to regional Logistics division managers. The Logistics managers are responsible for acquiring adequate parking accommodations through new or modification of existing lease agreements, new construction, or through contracts with commercial parking facilities.

11.     Contractual Requirements. Nothing in this order shall be construed to supersede, waive, or otherwise impact the requirements of any contractual agreement between the FAA and any other employee bargaining unit.


Phyllis N. Segal, Chair, concurring:

      I concur in the majority's decision that the Respondent violated the Statute by failing to comply with the Arbitrator's award in this case. I am writing separately because I would not reach, and do not join in the majority's disposition of, the Respondent's sovereign immunity exception.

      The Respondent's sovereign immunity exception, which is framed specifically in response to the remedy recommended by the Judge, is stated two ways. See Exceptions at 6-8.

      First, the Respondent claims that the Judge's recommended remedy -- requiring the Respondent to acquire 80 parking spaces --is inconsistent with and exceeds the requirements of the award, and that the Authority lacks power to "impose a monetary claim against the Agency." Id. at 7. For reasons stated in the majority opinion, the Authority is not adopting the Judge's recommended remedy in this case. Instead, the Authority orders only that the Agency comply with the Arbitrator's award. Although such compliance may necessitate the Respondent's acceptance of an offer for more than 30 parking spaces -- possibly even the previous offer of 80 spaces -- we are not ordering acceptance of any particular offer. As the Authority is not ordering adoption of the Judge's recommended remedy, the Respondent's objection to the remedy on the grounds of sovereign immunity has been rendered moot.

      Second, the Respondent claims that the "award[,] which requires the agency to pay for parking . . . clearly constitute[s] a form of money damages," and that the doctrine of sovereign immunity bars the Authority "from affirming the requested remedy." Id. at 8. It is unclear whether this claim, expressly framed in terms of the "award," is intended to reiterate the argument addressed above regarding the Judge's recommended remedy. Insofar as it simply reiterates that argument, it also is moot. Insofar as the claim is intended to raise sovereign immunity as a bar to compliance with the award itself, I would find that it constitutes a collateral attack on the award and, for reasons fully stated in the majority opinion regarding collateral attacks, Majority Opinion at 8-10 & n.4, is improper on that basis.


File 1: Authority's Decision in 55 FLRA No. 46 and the Opinion of Chair Segal
File 2: ALJ's Decision


Footnote # 1 for 55 FLRA No. 46 - Authority's Decision

   Chair Segal's concurring opinion is set forth at the end of this decision.


Footnote # 2 for 55 FLRA No. 46 - Authority's Decision

   The Union also filed an unsolicited supplemental submission for the Authority's consideration. On June 12, 1998, the Authority ruled that the document would not be considered as part of the record.


Footnote # 3 for 55 FLRA No. 46 - Authority's Decision

   Article 70 provides, in part:

70.6 When parking is under the Employer's control, every reasonable effort shall be made to provide safe and appropriately lighted, adequate parking at no cost to the employee. . . . When parking is not under the control of the Employer, every reasonable effort will be made to obtain parking as close to the facility as possible.

Arbitrator's Award at 3-4.

      The Arbitrator addressed whether the Respondent violated FAA Order 4665.3A and FAA Order 4665.3B. The relevant text of the FAA Orders is set forth in the Appendix to this decision.


Footnote # 4 for 55 FLRA No. 46 - Authority's Decision

   Private sector cases under section 301 of the Labor-Management Relations Act strongly support the principle that a court will not allow a respondent to raise a claim that an award is not enforceable because it directs the respondent to take action that is beyond the respondent's power and ability to do, when the respondent could have raised the defense within the prescribed period. For example, in Service Employees International Union, Local No. 36, AFL-CIO v. Office Center Services, Inc. 670 F.2d 404 (3d Cir.1982), the Third Circuit addressed an employer's appeal of a District Court grant of summary judgment affirming an arbitration award. In the District Court proceeding, the union had sought enforcement of an arbitration award rendered in its favor, when the employer had let lapse the applicable period for moving to vacate the award. The employer had argued as an affirmative defense, along with other defenses, that the award was not enforceable because it directed the employer to take action that was beyond its power and ability. In affirming summary judgment, the Appeals Court held that the employer's failure to raise its affirmative defenses in an action to vacate, modify, or correct the award barred raising them in a subsequent proceeding to enforce the award. Likewise, under the facts of the instant case, the Respondent may not defend its failure to comply with the award, in a ULP proceeding to enforce the award, on grounds that implementation is impossible.


Footnote # 5 for 55 FLRA No. 46 - Authority's Decision

   As there is no dispute that the award in this case is clear and unambiguous, there is no need to remand the award for clarification, as the Respondent suggested.


Footnote # 6 for 55 FLRA No. 46 - Authority's Decision

   In its opposition, the General Counsel requests that the Authority strike the Respondent's references to the cost of complying with the Judge's order on the basis that the cost figures are unsupported by the record. We deny the General Counsel's request. The Authority has declined to consider evidence in support of a party's position where the information contained therein was available prior to an arbitration or unfair labor practice hearing or prior to the issuance of a decision by an arbitrator or judge. See, e.g., U.S. Agency for International Development and American Federation of Government Employees, Local 1534, 53 FLRA 187, 187-88 n.2 (1997); U.S. Department of Transportation, Washington, D.C., 47 FLRA 110, 119-20 (1993). On the other hand, the Authority has considered evidence addressing whether an award is deficient. See, e.g., U.S. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California and American Federation of Government Employees, Local 1857, 50 FLRA 96, 99 (1995); U.S. Department of Justice, Immigration and Naturalization Service, El Paso, Texas and American Federation of Government Employees, National Border Patrol Council, Local 1929, 40 FLRA 43, 51-52 (1991).

      Although the Respondent was aware that the offer made by Denver would require an expenditure of funds, the cost figures and related arguments are directed toward compliance with the Judge's remedy and to alleged deficiencies in that remedy. As such, the specific arguments could not have been presented in the proceedings before the Judge. Therefore, the General Counsel's reliance on Antilles, 36 FLRA 776, and APHIS, 26 FLRA 630, is misplaced. In those cases, the Authority appropriately declined to consider documents that were not raised in proceedings before the judge, as required by section 2429.5 of the Authority's Regulations. There was no contention or finding in those cases that the evidence could not have been presented to the judge.


Footnote # 7 for 55 FLRA No. 46 - Authority's Decision

   This case is not unlike Authority decisions ordering affirmative action by a respondent that, as a consequence, require an expenditure of funds. For example, in Federal Deposit Insurance Corporation v. FLRA, 977 F.2d 1493 (D.C. Cir. 1992) (FDIC v. FLRA), enforcing Federal Deposit Insurance Corporation and National Treasury Employees Union, Chapter 244, 41 FLRA 273 (1991), the court upheld the Authority's remedial order, which required the agency to reimburse employees who paid an increased percentage premium into a health insurance plan as a result of the agency's unilateral change in policy. The court stated that "when an agency makes unilateral changes and refuses to bargain over them, the typical remedy is for the FLRA to order a `make whole' or status quo ante remedy." FDIC v. FLRA, 977 F.2d at 1498. See also Federal Aviation Administration Northwest Mountain Region, Renton, Washington, 51 FLRA 35 (1995) (Authority issued a retroactive bargaining order requiring the agency to negotiate with the union over interior workplace furnishings at Denver International Airport and remove the currently installed furnishings if neces