United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE ROCKY MOUNTAIN DISTRICT SALT LAKE CITY OFFICE SALT LAKE CITY, UTAH
and CHAPTER 17, NATIONAL TREASURY  EMPLOYEES UNION	Case No. 97 FSIP 74

 

DECISION and ORDER

    Chapter 17, National Treasury Employees Union (Union) 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 the Department of the Treasury, Internal Revenue Service, Rocky Mountain District, Salt Lake City Office, Salt Lake City, Utah (Employer).

    After the investigation of the request for assistance, the Panel determined that the dispute, which concerns employee parking, should be resolved through an informal conference between a Panel representative and the parties. If no settlement were reached, the Panel representative was to notify the Panel of the status of the dispute; the notification would include the final offers of the parties and the representative's recommendation for resolving the matter. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Pursuant to the Panel's determination, Panel Representative (Staff Attorney) Gladys M. Hernandez met with the parties on July 16, 1997, at the Employer’s offices in Salt Lake City, Utah, but to no avail. At the conclusion of the meeting, the parties agreed to meet jointly with Zions Securities Corporation (ZSC or Zions), the owner and operator of the parking facilities at issue, in an attempt to get it to lower parking rates to an amount acceptable to the Union. The meeting took place on July 21. The rates, terms and conditions proposed by the parties were not acceptable to ZSC.⁽¹⁾ Zions made a counter offer that was not acceptable to the Union so the matter remains unresolved. Ms. Hernandez has reported to the Panel, and it has now considered the entire record.⁽²⁾

BACKGROUND

    The Employer is 1 of 33 offices in the IRS’s Rocky Mountain District, which covers a 5-State area. Its mission is to administer and enforce the internal revenue laws and related statutes. The Union represents 171 bargaining-unit employees who are part of a nationwide, consolidated unit of 98,000. They work as revenue officers and agents, taxpayer services representatives, tax auditors and examiners, and accounting aides at pay grades GS-3 through -13. The parties are covered by a master collective bargaining agreement (MCBA) known as NORD IV which is due to expire on June 30, 1998; during a recent reopener period, the parties at the national level agreed to mid-term revisions. While there are some local agreements on particular subjects, there is no supplemental agreement.

    By way of background, the dispute arose during negotiations over the relocation of the Employer’s offices to Social Hall Plaza, a new high-rise building located in Salt Lake City’s main downtown business district. The move took place sometime in June 1996. The Employer did not pay for employees’ parking at the previous facility located approximately 7 miles from the new one. Monthly rates paid by employees at that facility at the time of the move were $12 for uncovered parking and $18 for covered parking; the building garage was owned and operated by the lessor. The new offices at Social Hall Plaza are leased from Zions which also owns and operates all the commercial parking garages in the downtown area, including the garage in Social Hall Plaza, Eagle Gate across the street,⁽³⁾ and the Delta Center about 1 mile away.⁽⁴⁾ At present, about 107 unit employees pay to park at Zions’ garages; the great majority of them (65) park at Social Hall Plaza. In July 1997, the monthly rates were as follows: $60 at Social Hall Plaza, $50 at Eagle Gate levels 1 through 8, and $35 at Eagle Gate levels 9 and 10;⁽⁵⁾ it is the parking rate at Social Hall Plaza which appears to be at the heart of the dispute.

ISSUE AT IMPASSE

    The parties disagree over what the parking rates charged employees should be at specified parking facilities.

POSITIONS OF THE PARTIES

1. The Employer's Position

    Essentially, the Employer proposes to request GSA to ask Zions to implement the parking rates, terms, and conditions offered during the July 21 meeting. Basically, those rates, terms, and conditions are as follows: (1) a $5 monthly credit is to be given to each unit employee who purchases a monthly parking pass at any Zions parking garage for a 1-year period commencing September 1, 1997;⁽⁶⁾ (2) annual rate increases are to be capped at 5 percent, except in those years where inflation exceeds 8 percent, when it will be capped at the inflation rate; (3) Zions will guarantee 175 monthly parking passes for Eagle Gate levels 9 and 10 until October 1, 1997, and thereafter only a number for which there is a demand; and (4) in May 1998, rates are to be increased at Social Hall Plaza, Eagle Gate levels 1 through 8, and Eagle Gate levels 9 and 10 by $5, $4, and $3, respectively. This proposal represents Zions’ July 21 counter offer to the parties.⁽⁷⁾ It provides the "best possible" rates, terms, and conditions which the Employer could obtain for employees after "vigorous[] and repeated[] negotiations" with Zions, which has a monopoly on parking facilities in the area. The rates are reasonable particularly when compared to those paid by Federal employees in other metropolitan areas, e.g., Denver where other employees of the IRS Rocky Mountain District pay from $150 per month for the most convenient parking to $60 per month for parking "many blocks outside the main downtown business area." Also, the more affordable parking is located directly across the street from the offices, making it "close and convenient" and not "remote" as the Union argues. With regard to the price increase clauses, they too are reasonable given that Zions has not increased prices since the move in June 1996. Moreover, this proposal is consistent with earlier Panel decisions where it rejected proposals for subsidized employee parking at commercial facilities;⁽⁸⁾ in fact, in IRS, Salt Lake City, an earlier case involving the same parties, the Panel rejected a Union proposal for the Employer to continue to provide free parking by leasing space from the lessor, and reimburse employees for parking expenses incurred after the practice was terminated. It is also in line with IRS policy (IRM 1(14)481(3)) not to provide employees with paid parking where there is mass transit⁽⁹⁾ and commercial parking available, as is the case in Salt Lake City. Contrary to the Union’s argument, the Employer did not enter into an "informal agreement" with the Union to provide parking at $25 per month; rather, as set forth in a July 1994 memorandum to unit employees from the then Union president and IRS District Director, the Employer simply committed "to provide parking at a reasonable rate ($25 to $35) [and] within a reasonable distance" from the office. Finally, other "equities" dictate the adoption of its proposal; among these are: (1) the availability of a flexiplace program which allows employees to work at home; (2) the Employer’s reimbursing employees for parking expenses incurred when using their cars for business purposes; (3) a long-standing practice of the Employer not paying for employee parking; and (4) a pending reduction in force, "the first in IRS history," because of "budgetary concerns."

    Since the Employer cannot control the rates charged by Zions and Zions is unwilling to reduce its rates any further (most particularly for Social Hall Plaza), adoption of the Union’s proposal would require the Employer to subsidize employee parking.⁽¹⁰⁾ However, it is prohibited by law and IRS regulations from using appropriated funds to pay for parking for its employees except in limited circumstances.⁽¹¹⁾ Such circumstances are not present in this case; in fact, the Employer has determined that it is not necessary to subsidize parking to maintain its operational efficiency, which is proved by its experience in its first year at Social Hall Plaza. The Union’s proposal, therefore, is illegal and cannot be adopted. With regard to the MCBA provision which the Union cites, it only requires that the Employer bargain over parking, and does not compel that parking be subsidized when it would violate the law. As for the Union’s comparability evidence, while the Employer does provide free parking to employees at its offices in Boise, Idaho and Helena, Montana, the circumstances in those offices are different. In the Boise office, it determined that providing free parking was necessary to avoid a significant impairment of operational efficiency because there was no other parking available in the area; in the case of Helena, the office is located in a GSA-controlled Federal building were the Employer is required to pay for a "proportionate share of parking spaces" in the building. With regard to the Department of Veterans Affairs (VA) cases decided by the Panel and cited by the Union in support of its proposal, they are "not on point."⁽¹²⁾ In this regard, those cases did not deal with commercial parking facilities, but rather concerned parking facilities owned and/or operated by the VA where, pursuant to 38 U.S.C. § 8109, they were required to charge parking fees under specific circumstances. The Panel has never "imposed rates" in a case such as this where a commercial facility is concerned.

    Finally, on the matter of the $10 adjustment related to the parking expenses employees have incurred in the last year, that part of the Union’s proposal is illegal under the Federal Labor Relations Authority’s (Authority) recent decision in Immigration and Naturalization Service, Los Angeles District, Los Angeles, California and American Federation of Government Employees, Local 505, AFL-CIO, 52 FLRA 103, 105 (1996) (INS, Los Angeles District), petition for review filed, No. 96-70913 (9th Cir. Oct. 30, 1996).⁽¹³⁾ It is also unwarranted in this case. In this regard, the Panel has ordered such an adjustment only in SSA, Evansville District Office, where the employer had failed to comply with earlier negotiated agreements; the special circumstances in SSA, Evansville District are not present in this case.

2. The Union's Position

    Basically, under the Union’s proposal, parking spaces are to be made available to unit employees in the numbers and at the monthly rates that follow: Eagle Gate levels 1 through 8, 15 spaces at $45; Eagle Gate levels 9 and 10, 60 spaces at $30; and Social Hall Plaza, 90 spaces at $50 and 5 at $90. These rates would be fixed for a 36-month period commencing on the date of the parties’ parking agreement. The proposal also provides for: (1) price increases only every 24 months and limited to the lesser of 5 percent or the average CPI rate for the preceding 24-month period; (2) parking spaces to be made available to new unit employees; and (3) the Employer to give each employee who relocated, drives to work, and incurs parking expenses a monthly rate adjustment of $10 for the number of months employees paid higher rates during the time period beginning on June 21, 1996, and ending on the date of the parking agreement. Contrary to the Employer’s argument, this proposal is legal. In this regard, the proposal does not require the Employer to reimburse employees for parking. Rather, it requires the Employer to acquire parking through the lease with Zions at the rates and with the terms proposed. This amounts to negotiating over parking fees and not commuting expenses. The Authority has determined that parking fees are a negotiable condition of employment.⁽¹⁴⁾ Furthermore, under Article 11, Section 11, of the MCBA, parking, including fees, is an appropriate subject of bargaining when an office relocates. Finally, the Employer may pay for parking because it has already determined that doing so is necessary to "avoid an impairment of [the] Agency’s operational efficiency." This determination was made by the Employer when it subsidized the lower parking rates in Lease Supplement 1, dated April 20, 1995;⁽¹⁵⁾ the basis for that determination was the "confidential information carried back and forth" by revenue officers and agents. On the merits, this proposal is consistent with the rates set forth in Lease Supplement 1, and an earlier "verbal agreement" between the parties. The amount of money that the Employer may have to pay Zions to agree to these rates would be "minuscule" when compared to its rent payment.⁽¹⁶⁾ It is fair to require the Employer to subsidize these lower rates because it provides free downtown parking to employees of the Boise and Helena offices which are "similar" to the Salt Lake City Office "in size and type." Also, no free or lower cost parking is available elsewhere in the vicinity of the office; in this regard, the Delta Center is not a viable alternative because it is located in an unsafe area about 1 mile from the Employer’s office, and parking in residential areas is not convenient and may not be possible without a city parking sticker. Nor is metered on-street parking a viable alternative because it requires employees to stop work every 1 to 2 hours to feed the meter or risk a $10 parking ticket. This proposal is also consistent with earlier Panel decisions where lower parking rates than those proposed by employers were ordered.⁽¹⁷⁾ Since the Employer misled the Union to its detriment by not giving it notice of the changes in the lease (most particularly the changes in rates between Lease Supplements 1 and 2), and dragged on parking negotiations for almost 1 year during which any "leverage" it had with Zions disappeared, the $10 monthly adjustment for the specified number of months is appropriate. Contrary to the Employer’s argument, this adjustment does not concern a reimbursement of parking expenses as money damages and, therefore, is not prohibited under the Authority’s decision in INS, Los Angeles District. Also, granting such an adjustment is consistent with the Panel’s decision in SSA, Evansville District Office.

    As for the Employer’s proposal, it violates its earlier "verbal agreement" with the Union to provide "plenty of close and convenient parking at [] $25 per month" and its July 1994 commitment to provide convenient parking at $25 to $35 per month; this is because, for employees who have to carry lap-top computers and briefcases around with them as part of their jobs, the only convenient parking is at Social Hall Plaza. The greater cost of parking under the Employer’s proposal amounts to a cut in pay which will cause employees "unwarranted financial hardships." It is not fair to compare rates in Salt Lake City with those in other major cities such as Denver where rates may be higher but employees receive a higher locality pay adjustment. Finally, the rate increase clauses are unacceptable because they: (1) provide for an increase of 8 percent or more, which is more than double the combined CPI for 1996 and 1997, in a short period of time, and (2) "are more precipitous than anything [that management] proposed before."

CONCLUSIONS

    After thorough consideration of the evidence and arguments on the issue at impasse, we are persuaded that the Employer’s proposal should be adopted. Preliminarily, we note that our decision in this case is based solely on an assessment of the merits of the dispute.⁽¹⁸⁾ In this regard, the Panel is being asked to set the parking rates to be charged employees at certain commercial garages, i.e., those that are neither owned nor operated by the Employer. The Employer’s proposal sets forth rates, terms and conditions to which the owner of the garages and the building housing the Employer’s offices is amenable, while the Union’s have been specifically rejected. In light of this, we believe that adoption of the Union’s proposal would likely require the Employer to subsidize parking either through lease concessions or reimbursements to employees. Such subsidies are inappropriate under the circumstances presented. In our view, the availability of parking at the upper levels of Eagle Gate for under $40 a month provides employees with reasonably affordable parking in close proximity to the office. Any inconvenience employees may suffer by having to park in that garage across the street from the office to obtain the least expensive rate does not support parking subsidies, in whatever form or amount, at the Social Hall Plaza garage preferred by most employees. Moreover, the Employer’s proposed rate increase schedule appears to be fair because it provides for the first such increase in the almost 2-year period that has passed since the relocation. The Union’s proposal, on the other hand, which would require the expenditure of an unknown amount of money to pay for employee parking, appears unwarranted given that: (1) the Employer did not pay for parking at the previous office location; (2) employees have available to them adequate and low-cost (even at the $300-plus annual rate) public transportation, and may work at home; (3) parking expenses are reimbursable when employees use their cars for business purposes; and (4) no empirical evidence was presented showing that paid parking is necessary for operational efficiency. For these reasons, 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 pursuant to the Panel's regulations, 5 C.F.R. § 2471.6 (a)(2), the Federal Service Impasses Panel under § 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

September 30, 1997

Washington, D.C.

 

1.Basically, the parties’ proposal to ZSC would establish the following monthly rates: Social Hall Plaza and Eagle Gate levels 1 through 8 ($50), Eagle Gate level 9 ($35), and level 10 ($30). These rates would be in place for a 2-year period. Rate increases would be allowed only every 2 years and the new rates charged would always be $10 less than the market rates.

2.Subsequent to their July 21 meeting with Zions, at Ms. Hernandez’s request, the parties submitted to the Panel their final proposals as well as summary position statements and rebuttals.

3.Ms. Hernandez reported to the Panel that she and the parties’ representatives walked from the third floor of Social Hall Plaza to Eagle Gate level 10 and then drove down to the street level all in less than 8 minutes. She noted that, while this occurred after business hours, in good weather conditions, and with no one weighted down with brief cases, lap-top computers, and printers, in less than these optimum conditions the travel time should not be substantially greater.

4.The parking rate at Delta Center is $25 per month. It is accessible to the office by free shuttle bus service; the parties indicated at the informal conference that the nearest bus stop to the office is about 1 ½ blocks away.

5.It may be, however, that the rates proposed by the Employer have been implemented; in this regard, during Ms. Hernandez’s teleconference with the parties to discuss their July 21 meeting with Zions, the Employer indicated that it would be asking the General Services Administration (GSA) to take appropriate action to "consummate" its July 21 deal with Zions for “fear that it [would] evaporate."

6.In her affidavit discussing the July 21 meeting with Zions, a Union negotiator states that these credits total $7,000 which just happens to be the amount of a credit which the Employer has with Zions. The Employer does not discuss this matter in any of its submissions.

7.At the conclusion of the informal conference, the Employer had submitted another proposal which provided for: (1) a $5 reduction in the current parking rates at Eagle Gate, and (2) fixed rates for 2 years after which annual increases would be calculated based on the consumer price index (CPI). According to the Employer, that proposal represented an earlier "verbal agreement" it had reached with Zions; apparently, it was never implemented.

8.See Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Indianapolis, Indiana and Chapter 224, National Treasury Employees Union, Case No. 93 FSIP 39 (May 20, 1993), Panel Release 343; Department of Health and Human Service, Social Security Administration, San Diego District Office, San Diego, California and Local 3879, American Federation of Government Employees, AFL-CIO, Case No. 91 FSIP 140 (December 6, 1991), Panel Release No. 321; Department of Health and Human Services, Social Security Administration, Evansville District Office, Evansville, Indiana and Department of Health and Human Services, Social Security Administration, Cleveland Teleservice Center, Lakewood, Ohio and Local 3448, American Federation of Government Employees, AFL-CIO, Case Nos. 91 FSIP 9 and 91 FSIP 18 (August 22, 1991)(SSA, Evansville District Office), Panel Release No. 316; Department of the Treasury, Internal Revenue Service, Brooklyn District Office, Brooklyn, New York and Chapter 53, National Treasury Employees Union, Case No. 90 FSIP 161 (December 27, 1990), Panel Release No. 304; and Department of the Treasury, Internal Revenue Service, Salt Lake District, Salt Lake City, Utah and National Treasury Employees Union, Case No 83 FSIP 97 (June 21, 1984)(IRS, Salt Lake District), Panel Release No. 225.

9.The Union negotiated with the Utah Transportation Authority the availability of low cost bus passes ($120 to $150 per year) for 1 year; thereafter, the cost of passes would increase to $300-plus per year.

10.The Employer implies that it would have to pay Zions in exchange for its charging the Union’s rates or reimburse unit employees the difference.

11.Matter of: Subsidized Parking for Employees of the U.S. Mint, 72 Comp. Gen. 139, 141; Matter of: Use of Appropriated Funds to Pay Commercial Parking Costs of Severely Disabled Employees, March 26, 1984, 63 Comp. Gen. 270, 272; 49 Comp. Gen. 476, 480; and 43 Comp. Gen. 131, 132. Under Agency regulations, IRM 1(14)482(2)(a), the Employer may provide employees with parking only when "necessary for the operational effectiveness of the service."

12.The Union cites Department of Veterans Affairs, Veterans Affairs Medical Center, Detroit, Michigan and Local 933, American Federation of Government Employees, AFL-CIO, Case No. 96 FSIP 113 (August 19, 1996)(Chair Betty Bolden, Arbitrator), Panel Release No. 390; and Department of Veterans Affairs, Washington, D.C. and National VA Council, American Federation of Government Employees, AFL-CIO, Case Nos. 90 FSIP 57 and 90 FSIP 32 (March 30, 1990), Panel Release No. 292.

13.We note that in this case the Authority determined that there is no statutory authority to order, as a remedy for an unfair labor practice, the reimbursement of parking expenses incurred as a result of an employer’s actions in violation of the Statute; specifically, the Authority found that the Federal Government is immune from liability for money damages under the doctrine of sovereign immunity, and there is no statute which unambiguously grants a waiver for the particular damages awarded.

14.In support of this argument it cites U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, AFL-CIO, 44 FLRA 988, 994-98 (1992); Service Employees International Union, Local 200-B and U.S. Department of Veterans Affairs Medical Center, Syracuse, New York, 44 FLRA 821, 828-33 (1992)(Proposals 1, 2, and 4); United States Immigration and Naturalization Service and American Federation of Government Employees, AFL-CIO, Local 1917, 43 FLRA 3, 8-10 (1991); U.S. Department of the Air Force, Williams Air Force Base, Chandler, Arizona and American Federation of Government Employees, Local 1776, AFL-CIO, 38 FLRA 549, 550 (1990); Philadelphia Naval Base, Philadelphia Naval Station and Philadelphia Naval Shipyard and Philadelphia Metal Trades Council and Planners, Estimators, Progressmen and Schedulers, Local 2, 37 FLRA 79, 87 (1990); and United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Houston District and National Treasury Employees Union and National Treasury Employees Union, Chapter 22, 25 FLRA 843, 846-50 (1987)(Section 2)(IRS, Houston District).

15.This Supplement provided for Zions to make available 330 parking spaces for employees at monthly rates ranging from $25 at the top levels of Eagle Gate to $50 at Social Hall Plaza. Also, it fixed prices and provided for increases as proposed by the Union. According to the Employer, these rates were obtained by applying an "illusory credit" it had with Zions related to its decision not to have raised flooring built on the fourth floor. This credit dissipated when it decided not to lease the fourth floor. It contends that, even if it would have decided to retain the fourth floor, a new supplement would have had to be negotiated anyway because GSA’s contracting officer illegally used the credit to subsidize employee parking. The Union’s position is that the Employer negotiated away the lower parking rates for a reduction in rent.

16.The Union estimates the amount at $162,000 over the 15-year term of the lease; it calculates the amount by subtracting the Union’s rates from the rates that Zions would agree to on July 21 (Employer’s proposal).

17.See supra note 12.

18.We find, however, that the Authority cases cited by the Union do not overcome the legal question raised by the Employer. In this regard, with the exception of IRS, Houston District, they concerned employer-operated or controlled parking facilities where the employer had been providing free or low-cost parking, which is not the situation in this case. As for IRS, Houston District, 25 FLRA at 844, the proposal in question merely required the employer to provide parking spaces at a cost not to exceed that charged by the "parking management company" and only "to the extent it ha[d] legal authority to do so;" clearly, it is not substantively the same as the Union’s proposal.