United States of America 

BEFORE THE FEDERAL SERVICE IMPASSES PANEL 

In the Matter of  DEPARTMENT OF COMMERCE PATENT AND TRADEMARK OFFICE ARLINGTON, VIRGINIA
and CHAPTER 243, NATIONAL TREASURY   EMPLOYEES UNION	Case No. 03 FSIP 162

  

DECISION AND ORDER

     The Department of Commerce, Patent and Trademark Office (PTO), Arlington, Virginia (Employer or Agency), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and Chapter 243, National Treasury Employees Union (NTEU or Union). 

    After investigation of the request for assistance, which concerns PTO’s decision to consolidate and relocate its offices from Crystal City to the “Carlyle Campus” in Alexandria, Virginia,[1]/ the Panel determined that the issues at impasse should be resolved through an informal conference with Panel Member Joseph C. Whitaker.  The parties were informed that if no settlement was reached, Member Whitaker would notify the Panel of the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse.  After considering this information, the Panel would resolve the dispute by taking whatever action it deems appropriate, which could include the issuance of a binding decision.

    In accordance with the Panel’s procedural determination, Member Whitaker conducted an informal conference with the parties on April 1, 2004.  Agreement was reached on the issue of furniture, and the Union withdrew its proposals on two other topics.  At the end of the meeting, the parties submitted their final offers on the issues that remain in dispute.  The parties also filed brief post-conference statements of position in support of their final offers.  Member Whitaker has reported to the Panel and it has now considered the entire record, including the parties’ post-conference statements of position. 

BACKGROUND

    The Employer’s mission is to issue patents and register trademarks.  The Union represents a bargaining unit consisting of approximately 1,310 non-professional employees in General Schedule (GS) pay grades 3 through 12.  Most of the employees provide administrative or technical support for patent examiners and patent attorneys.  The parties recently renegotiated their master collective bargaining agreement. 

ISSUES AT IMPASSE

    The only issues that remain in dispute concern the daily and hourly rates that unit employees should pay to park at the Carlyle Campus.

 POSITIONS OF THE PARTIES 

 1.   The Employer's Position

The Employer proposes the following wording:

The initial daily parking rate at Carlyle shall be $8.00 for USPTO employees with validation.  Hourly parking will be available at a rate of $3.00/hour for USPTO employees.

 

Its proposed daily and hourly parking rates are comparable to, and in most cases lower than, those charged at commercial lots in the vicinity of the Carlyle Campus, and are reasonable, given the options most bargaining-unit employees have at their current location in Crystal City, Virginia.  In this regard, only one garage (at the North/South Tower in Crystal City) offers a lower daily rate (an “early bird special” of $6), and its location requires most unit employees who park to take a shuttle to get to the 16 other buildings in Crystal City.  The proposed rates also are identical to those currently being paid by employees represented by the Patent Office Professional Association (POPA), PTO’s largest labor organization. 

    The Union’s proposed daily rate, on the other hand, “is so low that the many employees who take advantage of the Agency’s flexible schedules and work fewer than 5 weekdays each week will have no incentive to purchase monthly parking and, instead, will opt to pay the low daily rate.”  This is because the Union has already agreed to the same monthly parking rate ($100) and hours of free parking that apply to POPA employees.  As a result, the adoption of the Union’s proposal would “preclude the Agency from meeting its operating costs.”  The same is true of the Union’s proposed hourly rate.  Finally, PTO is offering parking at Carlyle “as a convenience, not a right, and employees have many other low-cost options for commuting to work via public transportation.”  

2.   The Union's Position 

The Union’s proposal is as follows: 

The daily rate for bargaining unit members shall not exceed $6.00 a day.  The hourly rate for bargaining unit members shall not exceed $1.50 an hour. 

Its proposed daily rate is justified because it is “in line with the previously available daily rate” at the North/South Tower, and its proposed hourly rate is justified because it is “double the previous hourly rate.”  Any presumption on the part of the Employer that the rates already agreed to by POPA should apply to all PTO employees, regardless of bargaining unit, should be rejected.  Chapter 243 employees are paid less than similarly-graded employees represented by POPA, who receive a special pay rate 22 percent higher than GS employees, so lower daily and hourly parking rates are warranted on this basis.  Similarly, the Employer’s argument that its proposed rates should be adopted because they are comparable to those charged at nearby garages also should be rejected.  The nearby garages set their rates “based upon market forces of supply and demand with a goal of maximizing profitability,” while the price of the garage at Carlyle “is fixed in the lease.”  In conjunction with the fact that PTO is not “in the business of making a profit, especially off its own employees,” there is no reason that the same market rate should apply to the PTO’s garage.  

CONCLUSION

    Having carefully considered the evidence and arguments presented by the parties, we are persuaded that the Employer’s proposal provides the better basis for resolving the dispute.  In our view, the Union has not demonstrated the need for treating the members of this bargaining unit differently from all other PTO employees.  Given that the parties already have agreed to a monthly rate of $100, a daily rate of $6 would discourage employees from purchasing the monthly parking permits the Employer relies on to ensure adequate income to meet its operating expenses.  The fact that one commercial parking garage at Crystal City offers a daily “early bird” rate of $6 is insufficient to overcome this serious defect in the Union’s position.  Administering multiple parking rates for different PTO employees also would be burdensome, and is unjustified in light of the reasonableness of the rates proposed by the Employer.  Accordingly, we shall order the adoption of the Employer’s proposal.  

ORDER 

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the following: 

The parties shall adopt the Employer’s proposal. 

By direction of the Panel.

H. Joseph Schimansky
Executive Director

 
June 17, 2004
Washington, D.C.