12:0650(129)CA - Marshals Service and AFGE, International Council of Marshals Service Locals -- 1983 FLRAdec CA
[ v12 p650 ]
12:0650(129)CA
The decision of the Authority follows:
12 FLRA No. 129 UNITED STATES MARSHALS SERVICE Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, INTERNATIONAL COUNCIL OF MARSHALS SERVICE LOCALS Charging Party Case No. 3-CA-1086 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record in this case, including the stipulation of facts, accompanying exhibits and the contentions of the parties, the Authority finds: The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) failing and/or refusing to negotiate over its decision to release to the Government Services Administration (GSA) parking spaces used by unit employees. The Respondent argues that no bargaining obligation existed inasmuch as the release of parking spaces to GSA was consistent with existing agency policy regarding space allocation, and that even if a bargaining obligation existed, the Charging Party (the Union) essentially waived its bargaining rights by failing to act in a timely manner. The Union represents a worldwide unit of nonprofessional employees of the U.S. Marshals Service, including intermittent and term deputies. On October 16, 1979, the Respondent's Director sent a message to all U.S. Marshals advising them that employee parking would no longer be provided free of charge in accordance with policy recently established by the Office of Management and Budget (OMB Circular A-118), and that the Respondent would be releasing all excess parking spaces to GSA effective November 1, 1979. /1/ Subsequently, on November 13, 1979, the Respondent notified the Union of its intention to release spaces other than the following: one per government owned/leased vehicle; one per privately owned vehicle of the U.S. Marshal at district level; and one visitor space. The Union thereafter requested bargaining concerning the release of parking spaces then being used by bargaining unit employees and stated its expectation that the Respondent would pay travel and per diem expenses for the Union's negotiators. A dispute then arose between the parties (which is not at issue herein) concerning the payment of travel and per diem expenses. Thereafter, the Union again requested negotiations. No negotiations were apparently held. Shortly thereafter, in January 1980, the Respondent released parking spaces at various locations to GSA. The parties stipulated that five bargaining unit employees lost their parking spaces as a result. /2/ Additionally, in November 1979, the U.S. Marshal at Indianapolis released parking spaces occupied by five unit employees. During mid-term bargaining on matters not at issue herein, in February 1980, the Union submitted an unspecified proposal concerning employee parking. The Respondent refused to bargain on the basis that the release of parking spaces had already been implemented. The Authority has previously addressed the issue of agency control over the relinquishment of parking spaces used by unit employees. In National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980), the Authority determined that agencies maintain discretion to determine whether to relinquish unneeded or underutilized parking spaces. The Authority further held that, to the extent that agencies maintain discretion over matters affecting conditions of employment of unit employees, such as the relinquishment of parking spaces, such matters are within the agency's duty to bargain. Accordingly, in the instant case, the Authority finds that the Respondent was obligated to bargain with the Union concerning the decision to relinquish parking spaces, and that its failure to do so constitutes a violation of section 7116(a)(1) and (5) of the Statute. The Respondent argues, in this regard, that the release of parking spaces did not effect a change in working conditions but, rather, was simply a reaffirmation of existing agency policy as set forth in Section 490 of the U.S. Marshals Service Manual, /3/ an internal agency regulation. As to this latter contention, there is no evidence in the record to indicate, and no allegation by the Respondent, that its decision to release certain parking spaces was required by the internal regulation. Moreover, it was neither asserted nor established that the regulation in question falls within the meaning of section 7117(a)(2) and (3) of the Statute /4/ so as to bar negotiations-- i.e., that the regulation was issued at the level of the agency or primary national subdivision and a compelling need exists therefor. See Defense Logistics Agency (Cameron Station, Virginia), et al., 12 FLRA No. 86 (1983). As to the Respondent's contention that the release of parking spaces did not effect a change in working conditions, the Authority finds, as stipulated by the parties, that unit employees at various locations lost the use of their parking spaces following the issuance of the Respondent's October 16 message to U.S. Marshals which addressed the release of excess parking spaces. This clearly constitutes a change in conditions of employment affecting unit employees. Moreover, the record further indicates that five additional employees lost the use of their parking spaces in Indianapolis sometime in November 1979, following receipt of the October 16 message by the U.S. Marshal for that district. The Respondent argues, in connection with this latter situation, that the spaces in question had previously been released in June 1979; that the Respondent neither knew of nor consented to any informal arrangement which may have existed between the local U.S. Marshal and GSA to retain the spaces; and that, therefore, the Respondent was not responsible for the actions of the local U.S. Marshal. The Authority finds this argument to be without merit. The Authority has previously held that the acts and conduct of agency management at a level lower than the level of exclusive recognition may form the basis of a violation of the Statute where lower level agency management acts as the agent of management at the level of exclusive recognition. Department of Health and Human Services, Social Security Administration, Office of Program Operations and Field Operations, Sutter District Office, San Francisco, California, 5 FLRA No. 63 (1981). On this same basis, the Authority finds that the release of parking spaces in Indianapolis, which was precipitated by the Respondent's October 16 message, was also violative of the Statute. As to the Respondent's assertion that the Union waived any bargaining rights it might have had by failing to act in a timely manner, the Authority finds that the Union did in fact make several timely bargaining requests prior to the release of the parking spaces. Therefore, this contention of the Respondent must also be rejected. While the Respondent's failure and refusal to bargain with the Union concerning the decision to relinquish the parking spaces then being used by bargaining unit employees constituted a violation of section 7116(a)(1) and (5) of the Statute, the Authority finds that a status quo ante order would not be appropriate to remedy such unfair labor practice inasmuch as the parking spaces have already been released to GSA and the authority for acquiring replacement spaces rests not with the Respondent but with GSA. However, in order to remedy the unfair labor practice conduct herein, the Authority shall order the Respondent (1) to make every effort to reacquire the parking spaces, including requesting, through appropriate channels and in accordance with applicable regulations, that GSA replace the parking spaces formerly occupied by unit employees at various locations throughout the Respondent's facilities; and (2) to bargain with the Union, to the extent consonant with applicable GSA regulations, concerning the reallocation of its parking spaces for use by unit employees. 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 Marshals Service shall: 1. Cease and desist from: (a) Releasing parking spaces used by unit employees without first affording the American Federation of Government Employees, AFL-CIO, International Council of Marshals Service Locals, the employees' exclusive representative, the opportunity to bargain concerning such a decision. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Make every effort to reacquire the parking spaces, including but not limited to requesting, through appropriate channels and in accordance with applicable regulations, that the General Services Administration replace the parking spaces which had been used by unit employees in the Northern District of Texas, the Northern District of California, Idaho, the Western District of Louisiana, and Indianapolis, and which were relinquished to GSA in November 1979 and January 1980 without bargaining in good faith with the employees' exclusive representative concerning the decision to do so. (b) Bargain, upon request of the American Federation of Government Employees, AFL-CIO, International Council of Marshals Service Locals, and to the extent consonant with applicable regulations of the General Services Administration, concerning the reallocation of its parking spaces for use by unit employees. (c) Post at its facilities 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 Director, U.S. Marshals Service, or his designee, 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 insure that such Notices are not altered, defaced, or covered by any other material. (d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. Issued, Washington, D.C., August 25, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT release parking spaces used by unit employees without first affording the American Federation of Government Employees, AFL-CIO, International Council of Marshals Service Locals, the exclusive representative of our employees, the opportunity to bargain concerning such a decision. 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 make every effort to reacquire the parking spaces, including but not limited to requesting, through appropriate channels and in accordance with applicable regulations, that the General Services Administration replace the parking spaces which had been used by unit employees in the Northern District of Texas, the Northern District of California, Idaho, the Western District of Louisiana, and Indianapolis, and which were relinquished to GSA in November 1979 and January 1980 without bargaining in good faith with the employees' exclusive representative concerning the decision to do so. WE WILL bargain, upon request of the American Federation of Government Employees, AFL-CIO, International Council of Marshals Service Locals, and to the extent consonant with applicable regulations of the General Services Administration, concerning the reallocation of our parking spaces for use by unit employees. (Agency) Dated: . . . By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8452. --------------- FOOTNOTES$ --------------- /1/ The matter of no longer providing parking free of charge is not at issue herein. /2/ Two of these employees were located in the Northern District of Texas; and one in the Northern District of California, Idaho and the Western District of Louisiana, respectively. /3/ Section 490 of the U.S. Marshals Service Manual provides, in relevant part, as follows: 10. Parking: A. One (1) parking space is authorized for each government vehicle assigned to each district as is one parking space for the use of the U.S. Marshal. Such spaces will be arranged for through the local GSA Buildings Manager and will be at the expense of the United States Marshals Service. Usually, Government-owned or controlled space will be provided as close to the U.S. Marshals Office as possible. Should government space be unavailable, GSA should arrange for the monthly leasing of commercial space sufficient to meet the basic needs of each office. If GSA is unable to assist you in arranging such space, you are to contact the Administrative Services Division, USMS, Space Control Officer for advice and guidance in obtaining same. In any event, Standard Form 81 must be completed and submitted to the Space Control Officer before contracting for parking spaces. Any space acquired should be at a central location near the U.S. Marshals Office and afford protection from pilferage or malicious damage to vehicles. /4/ Section 7117(a)(2) and (3) provides as follows: Sec. 7117. Duty to bargain in good faith; compelling need; duty to consult . . . . (2) The duty to bargain in good faith shall, to the extent not inconsistent with Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection only if the Authority has determined under subsection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation. (3) Paragraph (2) of the subsection applies to any rule or regulation issued by any agency or issued by any primary national subdivision of such agency, unless an exclusive representative represents an appropriate unit including not less than a majority of the employees in the issuing agency or primary national subdivision, as the case may be, to whom the rule or regulation is applicable.