09:0325(39)CA CNA VS VA -- 1982 FLRAdec CA



[ v09 p325 ]
09:0325(39)CA
The decision of the Authority follows:


9 FLRA NO. 39

VETERANS ADMINISTRATION CENTRAL OFFICE,
VETERANS ADMINISTRATION MEDICAL CENTER
LONG BEACH

                    Respondent

          and

CALIFORNIA NURSES' ASSOCIATION

                    Charging Party

Case No. 8-CA-269

VETERANS ADMINISTRATION CENTRAL OFFICE,
VETERANS ADMINISTRATION MEDICAL CENTER
WADSWORTH

                    Respondent

          and

CALIFORNIA NURSES' ASSOCIATION

                    Charging Party

Case No. 8-CA-270

VETERANS ADMINISTRATION CENTRAL OFFICE,
VETERANS ADMINISTRATION HOSPITAL BRENTWOOD

                    Respondent

          and

CALIFORNIA NURSES' ASSOCIATION

                    Charging Party

Case No. 8-CA-271

VETERANS ADMINISTRATION CENTRAL OFFICE,
VETERANS ADMINISTRATION MEDICAL CENTER
LONG BEACH

                    Respondent

          and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 541

                    Charging Party

Case No. 8-CA-286

[ v9 p325 ]

VETERANS ADMINISTRATION CENTRAL OFFICE,
VETERANS ADMINISTRATION MEDICAL CENTER
LONG BEACH

                    Respondent

          and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 541

                    Charging Party

Case No. 8-CA-287

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.

Upon consideration of the entire record in this case, including the parties' stipulation of facts, accompanying exhibits, and briefs submitted by the Respondents and the General Counsel, the Authority finds:

It is alleged that the Respondents violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) 1 by conducting a parking survey pursuant to OMB Circular A-118, without notification to the California Nurses' Association (Association) and the National Federation of Federal Employees, Local 541 (NFFE), exclusive representatives of units of Respondents' employees, and without affording the Association and NFFE an opportunity to negotiate over the manner and means by which the surveys were to be conducted, and by issuing a memorandum establishing a parking fee [ v9 p326 ] and a mandatory method of collecting the parking fee without notification to the Association and NFFE and without affording them an opportunity to negotiate the substance, impact and implementation of the method of collection.

The parties stipulate that the Respondent Veterans Administration Central Office conducted parking fee surveys (mandated by Government-wide rules and regulations, specifically OMB Circular A-118 and Federal Property Management Regulations Temporary Regulation D-65) for the Respondents, and that the Respondents did not afford the Association or NFFE an opportunity to negotiate over the manner and means by which the surveys were to be conducted, and thereafter informed employees of the fees established by the survey.

The Central Office published VA Circular 00-79-54, entitled Federal Employee Parking, which was intended to implement OMB Circular A-118, previously issued, and was designed to require the assignment of a commercial value to government-controlled parking space. The VA Circular established policy on an Agency-wide basis with regard to parking space charge assessments. The Medical centers herein had no discretion regarding the method by which parking fees would be collected. Thereafter, the Central Office informed its employees by memorandum that payment of parking fees would be made through payroll deductions. It did not afford the Association or NFFE notice of such decision or an opportunity to request negotiations as to the impact and/or implementation of the announced method of fee collection.

The Respondents contend, in summary, that: (1) their conduct does not constitute a violation of the Statute in that there was no obligation to negotiate with regard to the conducting of the survey inasmuch as such action was dictated by Government-wide and higher agency regulations; (2) the conducting of the survey did not affect working conditions; and (3) the Central Office met any obligation owed to NFFE by engaging in consultation with NFFE's national office. 2 [ v9 p327 ]

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. 3 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. 4 Accordingly, while OMB Circular A-118 and FPMR Temporary Regulation D-65 were Government-wide regulations in effect when the foregoing events occurred, the Respondents nevertheless had a duty to [ v9 p328 ] bargain with the Association and NFFE to the extent of their discretion in implementing the Government-wide paid parking program--i.e., to the extent not inconsistent with such regulations. 5 Inasmuch as the stipulated facts set forth above indicate that the Respondents implemented internal rules and regulations concerning the paid parking program without first affording the Association and NFFE an opportunity to negotiate with respect thereto, as previously requested by the, the Authority finds that the Respondents thereby violated section 7116(a)(1) and (5) of the Statute as alleged in the complaint. 6

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, 7 it is unnecessary to order that the Respondents 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 Veterans Administration Central Office; Veterans Administration Central Office, Veterans Administration Medical Center Long Beach; Veterans Administration Central Office, Veterans Administration Medical Center Wadsworth; Veterans Administration Central Office, Veterans Administration Hospital Brentwood, shall: [ v9 p329 ]

1. Cease and desist from:

(a) Failing or refusing to give notice to and, upon request, bargain with the California Nurses' Association and the National Federation of Federal Employees, Local 541, the exclusive bargaining representatives of their 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 interfering with, restraining, or coercing 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 their 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 appropriate officials of the Respondents and shall be posted and maintained by such officials 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 2423.20 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, 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 30, 1982

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member 8

FEDERAL LABOR RELATIONS AUTHORITY [ v9 p330 ]

                       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 California Nurses' Association and the National Federation of Federal Employees, Local 541, the exclusive representatives 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.

Dated: ___________ By: ________________________________________
                         Director, Veterans Administration
                         Central Office (Signature)

                        _______________________________________
                         Director, Veterans Administration
                         Medical Center Long Beach (Signature)

                        _______________________________________
                         Director, Veterans Administration
                         Medical Center, Wadsworth (Signature)

                        _______________________________________
                         Director, Veterans Administration
                         Hospital Brentwood (Signature)

[ v9 p331 ]

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 VIII, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, and whose telephone number is: (213) 688-3805. [ v9 p332 ]

VETERANS ADMINISTRATION CENTRAL OFFICE,
VETERANS ADMINISTRATION MEDICAL CENTER
LONG BEACH

                   Respondent

         and

CALIFORNIA NURSES' ASSOCIATION

                   Charging Party

Case No. 8-CA-269
9 FLRA No. 39

VETERANS ADMINISTRATION CENTRAL OFFICE,
VETERANS ADMINISTRATION MEDICAL CENTER
WADSWORTH

                   Respondent

         and

CALIFORNIA NURSES' ASSOCIATION

                   Charging Party

Case No. 8-CA-270

VETERANS ADMINISTRATION CENTRAL OFFICE,
VETERANS ADMINISTRATION HOSPITAL BRENTWOOD

                   Respondent

         and

CALIFORNIA NURSES' ASSOCIATION

                   Charging Party

Case No. 8-CA-271

VETERANS ADMINISTRATION CENTRAL OFFICE,
VETERANS ADMINISTRATION MEDICAL CENTER
LONG BEACH

                   Respondent

         and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 541

                   Charging Party

Case No. 8-CA-286

[ v9 p ]

VETERANS ADMINISTRATION CENTRAL OFFICE,
VETERANS ADMINISTRATION MEDICAL CENTER
LONG BEACH

                   Respondent

         and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 541

                   Charging Party

Case No. 8-CA-287

ORDER DENYING MOTION FOR RECONSIDERATION

This matter is before the Authority on a "request for review and clarification" filed by the Respondent Agency (Veterans Administration Central Office) of the Authority's Decision and Order in Veterans Administration Central Office, Veterans Administration Medical Center Long Beach, et al., 9 FLRA No. 39 (1982). 9 In that Decision, the Authority found that the Central Office and the Medical Centers involved had violated section 7116(a)(1) and (5) of the Statute and stated that, while in the circumstances no present order to negotiate was being issued, copies of the Notice attached to the Decision and Order are to be posted at the Central Office and at the Medical Centers specified; that is, Long Beach, Wadsworth and Brentwood. For the reason set forth below, the motion must be denied.

Section 2429.17 of the Authority's Rules and Regulations, effective September 10, 1981, provides, in pertinent part:

2429.17 Reconsideration.

After a final decision or order of the Authority has been issued, a party to the proceeding before the Authority who can establish in its moving papers extraordinary circumstances for so doing, may move for reconsideration of such final decision or order. The motion shall be filed within ten (10) days after service of the Authority's decision or order. . . . [ v9 p2 ]

The Authority's Decision and Order was dated and served upon the Respondents by mail on June 30, 1982. Therefore, under section 2429.17, and sections 2429.21 and 2429.22 which are also applicable to computation of the time limit here involved, a motion for reconsideration to be timely was due in the National Office of the Authority before the close of business on July 15, 1982. Since the Respondent Agency's motion was not filed until July 30, 1982, it is clearly untimely and must be denied. 10

Accordingly, IT IS ORDERED that the Respondent Agency's motion for reconsideration in this case be, and it hereby is, denied.

For the Authority.

Issued, Washington, D.C., November 10, 1982

James J. Shepard, Executive Director [ v9 p3 ]

FOOTNOTES

Footnote 1 Section 7116(a)(1) and (5) provides: (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 the chapter; (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.)

Footnote 2 Contrary to this contention, the Authority finds that notice to NFFE's national office, pursuant to section 7113 of the Statute (National Consultation Rights), did not satisfy the Respondents' obligation under section 7117 of the Statute to bargain with the exclusive representative, NFFE Local 541, to the extent that such matters are herein found to be negotiable.

Footnote 3 Section 7117(a)(1) of the Statute provides as follows: 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: 7103. Definitions; application (12) "collective bargaining" means the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees . . . . (14) "conditions of employment" means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions . . . .

Footnote 4 National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA No. 118 (1980).

Footnote 5 See, e.g., American Federation of Government employees, AFL-CIO, Local 2151 and General Services Administration, National Capital Region, Washington, D.C., 7 FLRA No. 79 (1981).

Footnote 6 See General Services Administration, 6 FLRA No. 77 (1981).

Footnote 7 During the pendency of the instant case before the Authority, the United States District Court for the District of Columbia ruled that the paid parking plan, as embodied in OMB Circular A-118, was invalid, and ordered that the GSA regulation be set aside and its enforcement permanently enjoined. American Federation of Government Employees, AFL-CIO, et. al. v. Freeman, 510 F. Supp. 596 (D.D.C. 1981). Thereafter, GSA revised the regulation to suspend the collection of parking fees in accordance with the injunction. (46 F.R. 40191 (1981)). The District Court's decision was subsequently reversed. American Federation of Government Employees, AFL-CIO, et. al. v. Carmen, Civil Action No. 81-1244 (D.C. Cir. Dec. 15, 1981). However, President Reagan has stated that the collection of parking fees will not be reinstated. Statement by the President on Parking Fees for Federal Employees, 17 Weekly comp. of Pres. Doc. 1378 (Dec. 17, 1981).

Footnote 8 Member Applewhaite, while in agreement with his fellow members as to the disposition herein, additionally notes his separate opinion in Department of Housing and Urban Development, 9 FLRA No. 16 (1982), that it would be inappropriate for the Authority to make any findings or statements, or to give any guidance, as to a money remedy, issues which in his opinion were more appropriately presented to and addressed by the Circuit Court of Appeals.

Footnote 9 Inasmuch as the Agency's motion herein essentially seeks to have the Authority reconsider the findings in the above-captioned case, such motion shall be treated as a motion for reconsideration under section 2429.17 of the Authority's Rules and Regulations.

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