Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina (Respondent) and National Association of Government Employees, Local R5-136, SEIU, AFL-CIO (Charging Party/Union)

[ v58 p432 ]

58 FLRA No. 104

DEPARTMENT OF VETERANS AFFAIRS
RALPH H. JOHNSON MEDICAL CENTER
CHARLESTON, SOUTH CAROLINA
(Respondent)

and

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES,
LOCAL R5-136, SEIU, AFL-CIO
(Charging Party/Union)

AT-CA-00101
AT-CA-00198

_____

DECISION AND ORDER

April 1, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      These consolidated complaints are before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel did not file an opposition to the Respondent's exceptions.

      The complaints allege that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain in good faith over the Charging Party's proposals concerning parking at the facility. The complaints also allege that the Respondent unilaterally changed a condition of employment by permitting patients to park in the employee parking lot. The Judge concluded that the Respondent violated the Statute as alleged and, among other things, ordered a return to the status quo ante.

      Upon consideration of the Judge's decision and the entire record, we conclude, for the reasons discussed below, that the Respondent did not commit the unfair labor practices alleged in the complaints. Accordingly, we will dismiss the complaints.

II.     Background and Judge's Decision

      The Respondent notified the Charging Party of its intention to make changes "to the `Employee Parking Lot' and Bravo Street." Judge's Decision at 3 (quoting Jt. Exh. 3). The notice also stated:

These changes are scheduled to go into effect after completion of replacement of the underground storage tanks. The reason for the proposed changes is to provide additional patient parking and to preclude traffic congestion on Bravo Street.

Id. Attached to the notice was a revised parking policy for the Medical Center (Policy No. 132-99-06) and a schematic of the parking lot at the rear of the Respondent's facility, which showed areas designated for parking, including areas for employees, patients, physicians, visitors, and volunteers, and the number of parking spaces available for each designation. See Jt. Ex. 4 and 11.

      Seven days later, the Charging Party proposed that "`all conditions of employment remain status quo'" and requested to negotiate over the proposed changes. Judge's Decision at 4 (quoting Jt. Ex. 5). The Charging Party requested that the Respondent provide certain information and stated that it would submit additional proposals once it received the information. Approximately fifteen days after receiving the requested information, the Charging Party submitted additional proposals, which the Respondent declared untimely under Article 11, § 2B. of the parties' collective bargaining agreement. [n2] 

      While the information request was pending, the Charging Party discovered that the Respondent was permitting patients to park in the employee parking lot at the rear of the Respondent's facility. The Respondent had formerly rented a lot that contained between 50 and 100 spaces that was used by patients, among others. However, the Respondent lost the lease for this lot, which "led to between 20 and 40 patients, at any given time, circling [its facility] looking for . . . parking spaces. Judge's Decision at 6. "Because of this increase, [the Respondent] decided to `start parking patients in the employee parking lot.'" Judge's Decision at 6 (quoting Tr. at 56). Soon after discovering the Respondent was permitting patients to park in this parking [ v58 p433 ] lot, the Charging Party filed an unfair labor practice charge.

      Subsequently, the General Counsel issued two complaints alleging that the Respondent violated § 7116(a)(1) and (5) of the Statute by: (1) refusing to bargain in good faith by declaring the Charging Party's proposals to be untimely; declaring that no further action was required on the Charging Party's proposals; and declaring that Respondent intended to proceed with implementation of the changes in parking without negotiation; and (2) permitting patients to park in the employee parking lot without notifying the Charging Party and giving it an opportunity to negotiate as required by the Statute.

      The Judge found that under the Authority's longstanding precedent, employee parking is a negotiable condition of employment. Therefore, the Judge rejected the Respondent's claim that the changes to employee parking were de minimis, stating that "when a decision to change a condition of employment is itself negotiable, the level of impact of that change on bargaining unit employees is irrelevant." Id. at 7 (citing 92 Bomb Wing, Fairchild Air Force Base, Spokane, Wash., 50 FLRA 701, 703 (1995)). In so doing, the Judge found that the Respondent's argument concerning mission necessity "entirely misses the point." Id. at 7 n.3. According to the Judge, the complaints were "not about Respondent's duties to its patients, but . . . Respondent's legal obligation to comply with the Statute when making changes in conditions of employment . . . ."  Id.

      With respect to the first complaint, the Judge concluded that the Charging Party's proposal to maintain the status quo satisfied its contractual obligation to submit proposals within fifteen days of notification of changes in conditions of employment. In reaching this conclusion, the Judge rejected the Respondent's argument that the proposal was not "viable," finding that neither the parties' agreement nor past practice requires that proposals be "viable," only that they be negotiable. The Judge found, in this regard, that status quo proposals, as a general matter, are negotiable. The Judge also concluded that the Charging Party's additional proposals were timely under the parties' agreement. Therefore, the Judge concluded that the Respondent violated its statutory obligation to bargain over the Charging Party's proposals.

      Turning to the second complaint, the Judge rejected the Respondent's argument that there was an established past practice of allowing patients to park in the employee parking lot. In particular, the Judge found that the Respondent had not previously permitted patients to park in the employee parking lot, and even assuming it had, the Charging Party was unaware of, and did not acquiesce in, the practice. The Judge concluded that the Respondent violated the Statute by unilaterally changing a condition of employment when it began permitting patients to park in the employee lot.

      Based on these findings, the Judge concluded that the Respondent violated § 7116(a)(1) and (5) of the Statute and ordered the Respondent to rescind all changes to, and negotiate over, its parking policies and practices.

III.     Respondent's Exceptions  [n3] 

      With respect to the first complaint, the Respondent excepts to the Judge's conclusion that it is irrelevant whether the impact on bargaining unit employees is de minimis when the decision to change a condition of employment is substantively negotiable. In support of this argument, the Respondent relies on § 7117(d)(2)(A) of the Statute, which requires "that a labor organization having consultative rights . . . be informed of any substantive change in conditions of employment." Exceptions at 5 (emphasis added). According to the Respondent, "substantive" does not mean "any" change. Id.

      The Respondent also excepts to the Judge's finding that the Charging Party's request to maintain the status quo satisfied its obligation under Article 11, § 2 of the parties' agreement. Specifically, the Respondent asserts that "the [U]nion's proposals were not timely in accordance with Article 11, Section 2 of the Master Agreement . . . . The [U]nion's sole `proposal' . . . which . . . met the 15-day contractual time limit was the statement `the [U]nion proposes that all conditions of employment remain status quo.'" Exceptions at 6 (emphasis omitted). According to the Respondent, the Charging Party's memorandum requesting maintenance of the status quo was merely an information request that indicated an intent to submit future proposals. The Respondent asserts that although the Charging Party submitted this memorandum containing the status quo request prior to the fifteen day contractual requirement for submission of proposals, the evidence does not show that the "parties reached a mutual agreement to extend the time frame for [submitting additional] proposals[;]" that the Respondent treated the Union's August proposal as an information request and "properly declared [ v58 p434 ] the [U]nion's substantive proposals dated November 17, 1999, [additional proposals] untimely . . . ." Id. at 12, 13.

      The Respondent contends, therefore, that as the proposals were not submitted in accordance with the time frame established by the parties' agreement, they were untimely. In support of this contention, the Respondent relies on United States Dep't of the Air Force, Air Force Materiel Command, 55 FLRA 10 (1998) (Materiel Command), and Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1532 (1996) (Materiel Command I).

      With respect to the second complaint, the Respondent argues that the Judge erred in finding that there was no past practice of permitting patients to park in the employee parking lot. According to the Respondent, testimony of its witnesses established that there was such a past practice since 1996. The Respondent also argues that the second complaint should be dismissed for "`mission necessity' reasons." Exceptions at 18. The Respondent claims that adequate patient parking is essential to the hospital's mission, and that the Authority should consider mission necessity in determining an agency's obligation to bargain.

IV.     Analysis and Conclusions

A.     The Respondent Did Not Violate the Statute as Alleged in Case No. AT-CA-00101

      When a respondent claims as a defense to an alleged unfair labor practice that a specific provision of the parties' collective bargaining agreement permits its actions, the Authority, including its administrative law judges, will determine the meaning of the provision at issue and resolve the unfair labor practice complaint accordingly. See IRS, Wash., D.C., 47 FLRA 1091, 1103 (1993) (IRS). When a judge's interpretation of the meaning of an agreement is challenged on exceptions, the Authority determines whether the judge's interpretation is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts. See id. at 1111. The Authority has applied this standard of review in cases challenging a judge's determination of the timeliness of a proposal under a collective bargaining agreement. See, e.g., United States Dep't of Justice, INS, Wash., D.C., 52 FLRA 256, 261 (1996). The Authority has held that in interpreting an agreement, the "focus" must remain "on [the] interpretation of the express terms of [the] collective bargaining agreement." IRS, 47 FLRA at 1110 (quoting United States Dep't of HHS v. FLRA, 976 F.2d 229, 235 (4th Cir. 1992)).

      The issue to be resolved in this case is whether the Judge's interpretation of the parties' agreement is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts.

      The General Counsel alleged that the Respondent refused to bargain in good faith by declaring the Union's proposals to be untimely, declaring that no further action was required with respect to the proposals, and declaring that the Respondent intended to proceed with implementation of the changes in parking without negotiation. The Judge found a violation on all counts. The Respondent expressly argues that the Charging Party failed to satisfy the time requirements for submission of its proposals under Article 11, § 2 of the parties' agreement because the memorandum requesting to maintain the status quo was merely an information request that indicated an intent to submit future proposals and the proposals submitted after the Union received certain information were untimely under the parties' agreement. The Judge rejected this contention, finding that the request to maintain the status quo constituted a negotiable proposal that gave rise to an obligation to bargain and that the additional proposals were timely. For the following reasons, we find that the Respondent did not violate the Statute as alleged.

      Article 11, § 2 of the agreement clearly specifies that proposals will be forwarded within 15 days following notification of a management change and that bargaining will normally commence within 10 days thereafter. The Respondent argued before the Judge and the Authority that nothing in that provision authorizes the Union to have additional time--beyond 15 days--to submit proposals. The Respondent also argued that the provision does not condition the submission of timely proposals on the receipt of information.

      We agree and find in agreement with the Respondent, that the proposals submitted by the Union outside of the contractual 15-day period were untimely filed under that negotiated provision. As there is no assertion or evidence that the parties agreed to an extension of time to allow the Union to submit proposals after the contractual 15-day period, we find that the Respondent did not violate the Statute by refusing to bargain over untimely submitted proposals. See, e.g., Materiel Command (agency that implemented proposed changes after a union failed to offer proposals within a 15-day contractual deadline or an agreed-upon extension date did not violate the Statute). [ v58 p435 ]

      As for the status quo proposal, we find that it was timely submitted under the contract. However, we find that the Respondent did not fail to fulfill its bargaining obligation for the following reasons. First, the record establishes that changes identified in management's notice to the Union were not made until after the Union submitted its untimely proposals. In this respect, the Union president testified that, "[i]t was after we received the information and we submitted our proposals that they made changes." Tr. at 24. Although there was no actual bargaining with respect to the status quo proposal, the Respondent, in fact, complied with the proposal because it maintained the status quo well beyond the contractual period authorizing bargaining. In addition, no additional proposals were offered during the contractual 15-day period.

      Furthermore, the status quo proposal contemplates that some future bargaining by the parties would occur. However, as mentioned above, there is no assertion or evidence that the parties agreed to an extension of time to allow the Union to submit proposals after the 15-day period. Thus, there was nothing further to bargain and the Respondent had no obligation to maintain the status quo until a non-existent bargaining obligation was concluded.

      Accordingly, based on the above, we find that the Respondent did not violate the Statute as alleged with respect to this complaint. [n4] 

B.     The Respondent Did Not Violate the Statute as Alleged in Case No. AT-CA-00198

      We find for the reasons expressed below that the Respondent had no duty to bargain over its decision to permit patients to park in the employee parking lot.

      The General Counsel alleged that the Respondent violated the Statute by permitting patients to park in an employee parking lot without notifying the Union and giving it an opportunity to bargain as required by the Statute. The Respondent argued that the complaint should be dismissed because the decision to permit patients to park in an employee parking lot was based on mission necessity. As the Respondent explained, "having convenient parking for patients is a business necessity and a priority. Respondent's raison d'ete [sic] is to treat patients, not park employees." Respondent's Post-Hearing Brief at 4. [n5] 

      The Respondent acknowledged that, as a general matter, parking for employees is substantively bargainable. In fact, that is why the Respondent gave notice to the Union of those changes that could affect employee parking. However, the Respondent did not concede that parking for patients was substantively bargainable. Instead, the Respondent argued that "parking availability for patients at the VA is directly linked to quality of patient care and its mission." Exceptions at 18. Long-standing Authority precedent holds that the designation by the Department of Veterans Affairs as to which of its parking facilities will be used to accommodate its patient clientele involves the means of performing work under § 7106(b)(1) of the Statute. See AFGE, AFL-CIO, Local 3399, 9 FLRA 1022 (1982) (AFGE). Although the Respondent did not expressly cite this decision, the arguments that it made, both before the Judge and the Authority, were more than sufficient to invoke a claim under § 7106(b)(1) of the Statute. Consistent with AFGE, and the Respondent's arguments, we find that patient parking at the Respondent's facility is a matter encompassed by § 7106(b)(1) of the Statute. As such, there was no obligation to bargain over the decision to permit patients to park in the employee parking lot.

      Where, as here, the substance of the decision is not itself subject to negotiation, an agency is nonetheless obligated to bargain over the impact and implementation of that decision, if the resulting change has more than a de minimis effect on bargaining unit employees. See United States Dep't of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-08 (1986). See also Patent Office Professional Assoc., 56 FLRA 69, 86 (2000). Because the Judge found that the Respondent was obligated to bargain over the decision to allow patients to park in the employee parking lot, he did not address whether the Respondent was obligated to bargain over the impact and implementation of that decision. For the reasons explained below, we find that the General Counsel failed to establish that bargaining [ v58 p436 ] unit employees were adversely affected by the decision to allow patients to park in the employee parking lot.

      Initially, we note that the issue of whether there was an obligation to bargain impact and implementation was presented to the Judge. In this respect, the Respondent argued that, "the General Counsel has not shown any . . .  adverse impact on bargaining unit employees regarding their ability to park at the facility." Respondent's Post-Hearing Brief at 4. The record fully supports this claim.

      Testimony from several witnesses shows that there were many empty parking spaces available in the employee lot, even after most employees had parked their vehicles and reported to work. For example, when questioned about the availability of space in the employee parking lot, the operations officer, whose duties include parking and traffic enforcement, stated that "[y]es, we would normally have a lot of spaces to the rear of the parking lot. . . . Most of the employees are parked after . . . a quarter to nine, 9:00, the majority of them." Tr. at 45. He further testified that he directed patients to park in the employee lot during the peak clinic times, when patients "would be going around in circles," "say around 9:00 and 10:30 in the morning[.]" Id. at 42. A former supervisory police officer at the medical facility similarly testified that "[t]he employees generally start work between 8:00 and 8:30 in the morning. We never started parking patients into the employee parking lot until between 9:00 and 9:30, and at that time there were ample spaces available in the back because the employees generally all parked towards the front." Id. at 63. Finally,