09:0136(16)CA - HUD and AFGE -- 1982 FLRAdec CA



[ v09 p136 ]
09:0136(16)CA
The decision of the Authority follows:


 9 FLRA No. 16
 
 DEPARTMENT OF HOUSING
 AND URBAN DEVELOPMENT
 Respondent
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-581
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
 AND REGULATIONS (5 CFR 2429.1(A)).
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS
 SUBMITTED BY THE RESPONDENT, THE CHARGING PARTY AND THE GENERAL COUNSEL,
 THE AUTHORITY FINDS:
 
    IT IS ALLEGED THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5)
 OF THE STATUTE /1/ BY UNILATERALLY IMPLEMENTING PAID PARKING THROUGHOUT
 THE DEPARTMENT WITHOUT BARGAINING WITH THE UNION CONCERNING THE IMPACT
 OF THE PAID PARKING PROGRAM ON BARGAINING UNIT EMPLOYEES AND THE METHODS
 AND PROCEDURES TO BE USED IN IMPLEMENTING THE PAID PARKING PROGRAM WHICH
 WERE NOT MANDATED BY THE GOVERNMENT-WIDE RULES AND REGULATIONS ON PAID
 PARKING.  THE RESPONDENT DENIES THAT IT COMMITTED ANY UNFAIR LABOR
 PRACTICE SINCE ITS PROPOSED REGULATIONS WERE MANDATED BY GOVERNMENT-WIDE
 RULES AND REGULATIONS, SPECIFICALLY OMB CIRCULAR A-118 AND FEDERAL
 PROPERTY MANAGEMENT REGULATIONS TEMPORARY REGULATION D.65.  IT ARGUES
 THAT PAID PARKING IS A MATTER OVER WHICH THE AGENCY DOES NOT HAVE
 DISCRETION, AND IS THEREFORE OUTSIDE OF THE AGENCY'S DUTY TO BARGAIN
 UNDER THE STATUTE.  ACCORDINGLY, THE QUESTION IS WHETHER THE RESPONDENT
 HAD A DUTY TO PROVIDE NOTICE TO THE UNION AND AFFORD THE UNION AN
 OPPORTUNITY TO BARGAIN OVER THE IMPLEMENTATION AND THE IMPACT OF ITS
 PROPOSED RULES AND REGULATIONS ON PAID PARKING PRIOR TO THE ISSUANCE
 THEREOF.
 
    THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, IS THE
 EXCLUSIVE REPRESENTATIVE OF A CONSOLIDATED UNIT OF THE RESPONDENT'S
 EMPLOYEES.  ON AUGUST 13, 1979, THE OFFICE OF MANAGEMENT AND BUDGET
 (OMB) ISSUED TO THE HEADS OF EXECUTIVE DEPARTMENTS OMB CIRCULAR A-118
 WHICH ESTABLISHED A GOVERNMENT-WIDE POLICY CONCERNING THE ACQUISITION
 AND ALLOCATION OF FEDERAL PARKING FACILITIES AND THE DETERMINATION OF
 CHARGES TO BE PAID BY FEDERAL EMPLOYEES FOR THE USE OF SUCH PARKING.  ON
 SEPTEMBER 6, GSA ISSUED FPMR TEMPORARY REGULATION D-65, EFFECTIVE
 NOVEMBER 1, WHICH IMPLEMENTED OMB CIRCULAR A-118, INCLUDING THE
 PROVISION THEREIN REQUIRING THE ASSESSMENT AND COLLECTION OF PARKING
 FEES PURSUANT TO A MANDATORY FEE SCHEDULE.
 
    ON OCTOBER 17, 1979, THE RESPONDENT FORWARDED TO THE UNION A DRAFT
 COPY OF PROPOSED REGULATIONS TO IMPLEMENT THE GOVERNMENT-WIDE PAID
 PARKING PROGRAM.  BY LETTER DATED OCTOBER 24, THE UNION REQUESTED A
 MEETING WITH THE RESPONDENT "TO NEGOTIATE ON THIS ISSUE AS SOON AS
 PRACTICABLE." ON NOVEMBER 1, THE RESPONDENT IMPLEMENTED ON A
 DEPARTMENT-WIDE BASIS THE PROPOSED PARKING REGULATIONS WHICH IT HAD SENT
 TO THE UNION.  ON THAT SAME DAY, THE RESPONDENT ANSWERED THE UNION'S
 LETTER OF OCTOBER 24, STATING THAT ALTHOUGH THERE WAS A REQUIREMENT TO
 IMPLEMENT THE GSA PARKING REGULATIONS AS OF NOVEMBER 1, 1979, IT WOULD
 "NEGOTIATE ON ANY MATTERS ON WHICH THE AGENCY HAS DISCRETION AND WHICH
 ARE SUBJECT TO UNION PURVIEW." NO NEGOTIATIONS CONCERNING THE IMPACT AND
 IMPLEMENTATION OF THE RESPONDENT'S PARKING REGULATIONS WERE HELD PRIOR
 TO THE IMPLEMENTATION OF THE REGULATIONS, AND AT NO TIME DID THE
 RESPONDENT MAKE A REQUEST TO A GOVERNMENT AGENCY FOR A DELAY IN THE
 IMPLEMENTATION DATE OF THE PAID PARKING PROGRAM AT THE RESPONDENT'S
 LOCATIONS.
 
    THE DUTY OF AN AGENCY TO NEGOTIATE WITH AN EXCLUSIVE REPRESENTATIVE
 UNDER THE STATUTE EXTENDS TO THE CONDITIONS OF EMPLOYMENT AFFECTING
 EMPLOYEES IN AN APPROPRIATE UNIT EXCEPT AS PROVIDED OTHERWISE BY FEDERAL
 LAW AND REGULATION, INCLUDING GOVERNMENT-WIDE REGULATION.  /2/ THAT IS,
 UNDER THE STATUTE, IF A PROPOSED MATTER RELATES TO THE CONDITIONS OF
 EMPLOYMENT OF AN APPROPRIATE UNIT OF EMPLOYEES IN AN AGENCY AND IS NOT
 INCONSISTENT WITH LAW OR REGULATION-- I.E., IS WITHIN THE DISCRETION OF
 AN AGENCY-- IT IS WITHIN THE SCOPE OF BARGAINING WHICH IS REQUIRED OF
 THAT AGENCY.  /3/ ACCORDINGLY, WHILE OMB CIRCULAR A-118 AND FPMR
 TEMPORARY REGULATION D-65 WERE GOVERNMENT-WIDE REGULATIONS IN EFFECT
 WHEN THE FOREGOING EVENTS OCCURRED, THE RESPONDENT NEVERTHELESS HAD A
 DUTY TO BARGAIN WITH THE UNION TO THE EXTENT OF ITS DISCRETION IN
 IMPLEMENTING THE GOVERNMENT-WIDE PAID PARKING PROGRAM-- I.E., TO THE
 EXTENT NOT INCONSISTENT WITH SUCH REGULATIONS.  /4/ INASMUCH AS THE
 STIPULATED FACTS SET FORTH ABOVE INDICATE THAT THE RESPONDENT
 IMPLEMENTED ITS INTERNAL RULES AND REGULATIONS CONCERNING THE PAID
 PARKING PROGRAM WITHOUT FIRST AFFORDING THE UNION AN OPPORTUNITY TO
 NEGOTIATE WITH RESPECT THERETO, AS PREVIOUSLY REQUESTED BY THE UNION,
 THE AUTHORITY FINDS THAT THE RESPONDENT THEREBY VIOLATED SECTION
 7116(A)(1) AND (5) OF THE STATUTE AS ALLEGED IN THE COMPLAINT.  /5/
 
    WITH REGARD TO AN APPROPRIATE ORDER TO REMEDY SUCH UNFAIR LABOR
 PRACTICE, HOWEVER, THE AUTHORITY CONCLUDES THAT, INASMUCH AS THERE IS NO
 REGULATION IN EFFECT AT THIS TIME REQUIRING THE COLLECTION OF PARKING
 FEES, /6/ IT IS UNNECESSARY TO ORDER THAT THE RESPONDENT NEGOTIATE
 REGARDING THIS MATTER.
 
                                   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 DEPARTMENT OF HOUSING AND URBAN
 DEVELOPMENT SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING OR REFUSING TO GIVE NOTICE TO AND, UPON REQUEST, BARGAIN
 WITH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE
 EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS EMPLOYEES, BEFORE
 IMPLEMENTATION OF ANY PAID PARKING PROGRAM WHICH MAY BE ESTABLISHED BY
 GOVERNMENT-WIDE RULE AND REGULATION.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE
 ANY EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSE AND POLICIES OF THE STATUTE:
 
    (A) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE ON FORMS TO
 BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIVING
 SUCH FORMS, THEY SHALL BE SIGNED BY AN APPROPRIATE OFFICIAL OF THE
 RESPONDENT AND SHALL BE POSTED AND MAINTAINED BY SUCH OFFICIAL FOR 60
 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN
 BOARDS AND ALL 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 OTHER MATERIAL.
 
    (B) 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 ARE BEING
 TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., JUNE 23, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
    OPINION OF LEON B. APPLEWHAITE, MEMBER:
 
    ALTHOUGH I AM IN AGREEMENT WITH MY FELLOW MEMBERS AS TO THE
 DISPOSITION OF THIS CASE, I FEEL THAT ONE ADDITIONAL POINT SHOULD BE
 ADDRESSED.  SPECIFICALLY, IN THE AREA OF REMEDY, THE MONIES PAID TO THE
 AGENCY PURSUANT TO THE UNILATERAL IMPLEMENTATION OF PARKING FEES,
 NEITHER THE ISSUE OF THE VALIDITY OF THE ACTUAL AMOUNT CHARGED NOR THE
 ISSUE OF THE LEGALITY OF THE IMPLEMENTATION OF SUCH A CHARGE WAS BEFORE
 THE AUTHORITY IN THIS CASE.  THEREFORE, THE AUTHORITY APPROPRIATELY DID
 NOT MAKE ANY FINDINGS AS TO THESE ISSUES.  IT SHOULD BE NOTED THAT IN
 CONJUNCTION WITH THESE ISSUES, IT IS INAPPROPRIATE FOR THE AUTHORITY TO
 MAKE ANY STATEMENT OR GIVE ANY GUIDANCE AS TO THE USE OR RETURN OF SUCH
 MONEY.  ALL OF THESE ISSUES WERE MORE APPROPRIATELY PRESENTED TO AND
 ADDRESSED BY THE CIRCUIT COURT OF APPEALS.
 
    ISSUED, WASHINGTON, D.C., JUNE 23, 1982
 
                        LEON B. APPLEWHAITE, 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 FAIL OR REFUSE TO GIVE NOTICE TO AND, UPON REQUEST,
 BARGAIN WITH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, BEFORE IMPLEMENTATION OF
 ANY PAID PARKING PROGRAM WHICH MAY BE ESTABLISHED BY GOVERNMENT-WIDE
 RULE OR REGULATION.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
 
                                 (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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION III, WHOSE
 ADDRESS IS:  1111 18TH STREET, NW., WASHINGTON, D.C. 20036 AND WHOSE
 TELEPHONE NUMBER IS (202) 653-8452.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7116(A)(1) AND (5) OF THE STATUTE PROVIDES:
 
    SEC. 7116.  UNFAIR LABOR PRACTICES
 
    (A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR AN AGENCY--
 
    (1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
 EXERCISE BY THE EMPLOYEE OF
 
    ANY RIGHT UNDER THIS CHAPTER;
 
    (5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
 ORGANIZATION AS REQUIRED
 
    BY THIS CHAPTER;
 
    /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.
 
    THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
 REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
 7103(A)(12) AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF THE
 STATUTE:
 
    SEC. 7103.  DEFINITIONS;  APPLICATION
 
   .          .          .          .
 
 
    (12) "COLLECTIVE BARGAINING" ME