National Treasury Employees Union and NTEU Chapter 70 (Union) and Department of the Treasury, Internal Revenue Service, Atlanta Service Center, Georgia (Agency)

 



[ v08 p37 ]
08:0037(8)NG
The decision of the Authority follows:


 8 FLRA No. 8
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 70
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE,
 ATLANTA SERVICE CENTER, GEORGIA
 Agency
 
                                            Case No. 0-NG-354
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
 AND RAISES THE QUESTION OF THE NEGOTIABILITY OF FIVE UNION PROPOSALS
 DEALING WITH THE AGENCY'S DECISION TO INSTITUTE A CARPOOL PROJECT.
 
                             UNION PROPOSAL 1
 
    IF A SITUATION DEVELOPS AMONG CARPOOLERS IN WHICH CERTAIN MEMBERS OF
 THE POOL ARE ADVISED
 
    THAT DUE TO A LACK OF WORK ON A PARTICULAR DAY THEY MUST LEAVE WORK,
 THE EMPLOYER WILL MAKE A
 
    GOOD FAITH EFFORT TO FIND THE EMPLOYEE(S) ALTERNATIVE WORK TO PERFORM
 FOR THE REMAINDER OF
 
    THEIR SHIFT.  IF ALTERNATIVE WORK CANNOT BE FOUND, MANAGEMENT WILL
 PROVIDE THAT EMPLOYEE(S)
 
    ALTERNATIVE TRANSPORTATION HOME.
 
                             UNION PROPOSAL 2
 
    ACTUAL MILEAGE PER GALLON OF THE CAR UTILIZED SHOULD BE CONSIDERED IN
 DETERMINING WHO
 
    RECEIVES A RESERVED PARKING SPACE.  PEOPLE WHO DRIVE CARS WITH EPA
 MILEAGE RATINGS OF 25 MILES
 
    PER GALLON OR MORE WILL BE ENTITLED TO A RESERVED PARKING SPACE
 REGARDLESS OF WHETHER THEY
 
    CARPOOL.  HOWEVER, THESE INDIVIDUALS WILL ALSO BE ENCOURAGED TO
 CARPOOL.
 
                             UNION PROPOSAL 3
 
    PRIORITIES FOR RESERVED PARKING SPACES WILL BE ASSIGNED ACCORDING TO
 THE FOLLOWING:
 
    1.  ACTUAL MILEAGE PER GALLON OF THE CAR UTILIZED SHOULD BE
 CONSIDERED IN DETERMINING WHO
 
    RECEIVES A RESERVED PARKING SPACE.  PEOPLE WHO DRIVE CARS WITH EPA
 MILEAGE RATINGS OF 25 MILES
 
    PER GALLON OR MORE WILL BE ENTITLED TO A RESERVED PARKING SPACE
 REGARDLESS OF WHETHER THEY
 
    CARPOOL.  HOWEVER, THESE INDIVIDUALS WILL ALSO BE ENCOURAGED TO
 CARPOOL.
 
    2.  PRIORITY WILL BE GIVEN BASED ON THE NUMBER OF PEOPLE IN THE CAR
 AND THE EPA MILEAGE PER
 
    GALLON.  THIS WILL BE DETERMINED BY CONSIDERING THE NUMBER OF
 EMPLOYEES IN THE CARPOOL AND
 
    DIVIDING THAT NUMBER BY THE EPA MILEAGE PER GALLON, TO DETERMINE THE
 MILEAGE PER GALLON PER
 
    INDIVIDUAL IN A CARPOOL. CARPOOLS WITH HIGHER MILEAGE PER GALLON PER
 INDIVIDUAL WILL RECEIVE
 
    PRIORITY OVER THOSE CARPOOLS WITH LESS MILEAGE PER INDIVIDUAL PER
 GALLON.  PRIORITY IS DEFINED
 
    BY USING DISTANCE FROM THE BUILDING TO THE PARKING SPACE.
 
                             UNION PROPOSAL 4
 
    IE:  CARS GETTING EPA MILEAGE OF 25 MILES A GALLON OR MORE WILL BE
 ASSIGNED TO RESERVED
 
    SPACES CLOSEST TO BUILDING, THEN EPA MILEAGE AND NUMBER OF EMPLOYEES
 IN CARPOOL WILL BE
 
    ASSIGNED SPACES AFTER EPA MILEAGE OF 25 MILES OR MORE HAVE BEEN
 ASSIGNED.
 
                             UNION PROPOSAL 5
 
    PENALTIES IMPOSED BY THE CARPOOLING COMMITTEE REGARDING SUSPENSION OF
 PARKING PRIVILEGES
 
    WILL FIRST BE DISCUSSED WITH THE UNION.
 
    UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
 PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 WITH RESPECT TO UNION PROPOSAL 1, A DISPUTE BETWEEN THE PARTIES EXISTS
 AS A RESULT OF THE AGENCY'S CONTENTION THAT THE PROPOSAL DOES NOT DEAL
 WITH MATTERS IMPACTED BY THE CARPOOL PROJECT.  THUS, THE AUTHORITY FINDS
 THAT THE DISPUTE WITH REGARD TO THIS PROPOSAL IS IMPROPERLY BEFORE US AS
 A NEGOTIABILITY ISSUE TO BE RESOLVED PURSUANT TO SECTION 7117 OF THE
 STATUTE.  RATHER, IT SHOULD HAVE BEEN PROCESSED THROUGH THE UNFAIR LABOR
 PRACTICE PROCEDURES OF THE STATUTE, SEE, E.G., AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1931 AND DEPARTMENT OF THE NAVY,
 NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, 2 FLRA 181(1979);  NATIONAL
 TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, U.S. CUSTOMS
 SERVICE, WASHINGTON, D.C., 3 FLRA 330(1980).
 
    UNION PROPOSALS 2, 3 AND 4 PROVIDE THAT RESERVED PARKING WILL BE
 ALLOCATED ON THE BASIS OF ONE CRITERION, THAT IS, THE EPA MILEAGE RATING
 OF THE AUTOMOBILE INVOLVED.  IN CONTRAST, GOVERNMENT-WIDE REGULATIONS,
 NAMELY, OMB CIRCULAR A-118 AND FPMR TEMPORARY REGULATION D-65 /1/
 ESTABLISH THAT PARKING WILL BE ASSIGNED IN PRIORITY ORDER TO HANDICAPPED
 EMPLOYEES, TO EXECUTIVE PERSONNEL AND OTHER INDIVIDUALS ASSIGNED UNUSUAL
 HOURS, TO VANPOOLS AND TO CARPOOLS BASED SOLELY ON THE NUMBER OF CARPOOL
 MEMBERS.  THUS, CONTRARY TO THE UNION'S CONTENTION THAT THE PROPOSALS
 ONLY WOULD AUGMENT GOVERNMENT-WIDE REGULATIONS, PROPOSALS 2, 3 AND 4, AS
 DRAFTED, CONFLICT WITH THE AFOREMENTIONED GOVERNMENT-WIDE REGULATIONS
 AND, THEREFORE, ARE NOT WITHIN THE DUTY TO BARGAIN UNDER SECTION
 7117(A)(1) OF THE STATUTE.  /2/ SEE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2151 AND GENERAL SERVICES ADMINISTRATION,
 NATIONAL CAPITAL REGION, WASHINGTON, D.C., 7 FLRA NO. 79(1982).
 
    FINALLY, WITH REGARD TO UNION PROPOSAL 5, THE UNION SEEKS ONLY TO
 NEGOTIATE THE RIGHT TO DISCUSS THE PENALTIES TO BE IMPOSED PRIOR TO THE
 IMPOSITION OF SUCH PENALTIES.  CONSEQUENTLY, THE PROPOSAL IS A
 NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE /3/ WHICH
 DOES NOT PREVENT THE AGENCY FROM ACTING AT ALL WITH RESPECT TO
 DISCIPLINING EMPLOYEES /4/ OR LIMITING THE PENALITIES THE AGENCY MAY
 IMPOSE UNDER APPLICABLE RULES AND REGULATIONS.  NOR DOES THE PROPOSAL
 REQUIRE THE AGENCY TO TAKE ANY ACTION INCONSISTENT WITH THE PRIVACY ACT,
 5 U.S.C.  552A(1976), SINCE IT DOES NOT REQUIRE THE RELEASE OF NAMES OF
 INVOLVED EMPLOYEES.  THUS, CONTRARY TO THE AGENCY'S ASSERTIONS, THIS
 PROPOSAL IS WITHIN THE DUTY TO BARGAIN.
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE UNION'S
 PETITION FOR REVIEW RELATING TO UNION PROPOSALS 1 THROUGH 4 BE, AND IT
 HEREBY IS, DISMISSED.  IT IS FURTHER ORDERED THAT THE AGENCY SHALL UPON
 REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING
 UNION PROPOSAL 5.  /5/
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
 
                        RONALD W.HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ PARAGRAPH 8 OF OMB CIRCULAR A-118 ADDRESSES THE ALLOCATION AND
 ASSIGNMENT OF PARKING FACILITIES, AND STATES IN PART, THAT "(TO)
 MAXIMIZE THE EFFICIENT UTILIZATION OF AVAILABLE PARKING SPACES,
 ASSIGNMENTS OF SPACES TO FEDERAL EMPLOYEES SHALL BE ON THE BASIS OF THE
 REGULATIONS PROMULGATED BY GSA (FPMR 101-20.111 AND 101-20.117), AS
 AMENDED TO COMPLY WITH THIS CIRCULAR."
 
    PARAGRAPH 8 OF GSA'S IMPLEMENTING REGULATION, FPMR TEMPORARY
 REGULATION D-65, AS AMENDED, SETS FORTH CERTAIN PRIORITIES FOR THE
 ASSIGNMENT OF PARKING SPACES TO EMPLOYEES.  PARAGRAPH 8 STATES AS
 FOLLOWS:
 
    8.  PRIORITIES FOR EMPLOYEE PARKING.  AGENCIES SHALL ENCOURAGE THE
 CONSERVATION OF ENERGY
 
    BY TAKING POSITIVE ACTION TO INCREASE CARPOOLING.
 
    A.  ASSIGNMENT OF SPACES.  IN MEETING THEIR RESPONSIBILITIES TO
 PROMOTE CARPOOLING,
 
    AGENCIES SHALL ASSIGN EMPLOYEE PARKING AS FOLLOWS:
 
    (1) HANDICAPPED EMPLOYEES . . .
 
    (2) A GOAL OF NOT MORE THAN 10 PERCENT OF THE TOTAL SPACES AVAILABLE
 ON AN AGENCYWIDE BASIS
 
    (EXCLUDING THE SPACES ASSIGNED TO SEVERELY HANDICAPPED EMPLOYEES) TO
 EXECUTIVE PERSONNEL
 
    AND/OR PERSONS WHO ARE ASSIGNED UNUSUAL HOURS.  EXECUTIVE PERSONNEL
 SHOULD MAKE EVERY EFFORT
 
    TO CARPOOL.
 
    (3) VANPOOLS.
 
    (4) CARPOOLS BASED ON THE NUMBER OF MEMBERS.
 
    /2/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH
 
    SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
 GOVERNMENT-WIDE RULE OR
 
    REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
 REGULATION ONLY IF THE RULE
 
    OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
 
    /3/ SECTION 7106(B) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM NEGOTIATING--
 
   *          *          *          *
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION(.)
 
    /4/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT
 DIX, NEW JERSEY, 2 FLRA 152(1979), ENFORCED SUB NOM. DEPARTMENT OF
 DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR.
 1981).
 
    /5/ IN FINDING UNION PROPOSAL 5 NEGOTIABLE, THE AUTHORITY MAKES NO
 JUDGMENT AS TO ITS MERITS.