12:0650(129)CA - Marshals Service and AFGE, International Council of Marshals Service Locals -- 1983 FLRAdec CA



[ v12 p650 ]
12:0650(129)CA
The decision of the Authority follows:


 12 FLRA No. 129
 
 UNITED STATES MARSHALS SERVICE
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, INTERNATIONAL
 COUNCIL OF MARSHALS SERVICE LOCALS
 Charging Party
 
                                            Case No. 3-CA-1086
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the 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
 stipulation of facts, accompanying exhibits and the contentions of the
 parties, the Authority finds:
 
    The complaint alleges that the Respondent violated section 7116(a)(1)
 and (5) of the Federal Service Labor-Management Relations Statute (the
 Statute) failing and/or refusing to negotiate over its decision to
 release to the Government Services Administration (GSA) parking spaces
 used by unit employees.  The Respondent argues that no bargaining
 obligation existed inasmuch as the release of parking spaces to GSA was
 consistent with existing agency policy regarding space allocation, and
 that even if a bargaining obligation existed, the Charging Party (the
 Union) essentially waived its bargaining rights by failing to act in a
 timely manner.
 
    The Union represents a worldwide unit of nonprofessional employees of
 the U.S. Marshals Service, including intermittent and term deputies.  On
 October 16, 1979, the Respondent's Director sent a message to all U.S.
 Marshals advising them that employee parking would no longer be provided
 free of charge in accordance with policy recently established by the
 Office of Management and Budget (OMB Circular A-118), and that the
 Respondent would be releasing all excess parking spaces to GSA effective
 November 1, 1979.  /1/ Subsequently, on November 13, 1979, the
 Respondent notified the Union of its intention to release spaces other
 than the following:  one per government owned/leased vehicle;  one per
 privately owned vehicle of the U.S. Marshal at district level;  and one
 visitor space.  The Union thereafter requested bargaining concerning the
 release of parking spaces then being used by bargaining unit employees
 and stated its expectation that the Respondent would pay travel and per
 diem expenses for the Union's negotiators.  A dispute then arose between
 the parties (which is not at issue herein) concerning the payment of
 travel and per diem expenses.  Thereafter, the Union again requested
 negotiations.  No negotiations were apparently held.  Shortly
 thereafter, in January 1980, the Respondent released parking spaces at
 various locations to GSA.  The parties stipulated that five bargaining
 unit employees lost their parking spaces as a result.  /2/ Additionally,
 in November 1979, the U.S. Marshal at Indianapolis released parking
 spaces occupied by five unit employees.  During mid-term bargaining on
 matters not at issue herein, in February 1980, the Union submitted an
 unspecified proposal concerning employee parking.  The Respondent
 refused to bargain on the basis that the release of parking spaces had
 already been implemented.
 
    The Authority has previously addressed the issue of agency control
 over the relinquishment of parking spaces used by unit employees.  In
 National Treasury Employees Union, Chapter 6 and Internal Revenue
 Service, New Orleans District, 3 FLRA 748 (1980), the Authority
 determined that agencies maintain discretion to determine whether to
 relinquish unneeded or underutilized parking spaces.  The Authority
 further held that, to the extent that agencies maintain discretion over
 matters affecting conditions of employment of unit employees, such as
 the relinquishment of parking spaces, such matters are within the
 agency's duty to bargain.  Accordingly, in the instant case, the
 Authority finds that the Respondent was obligated to bargain with the
 Union concerning the decision to relinquish parking spaces, and that its
 failure to do so constitutes a violation of section 7116(a)(1) and (5)
 of the Statute.  The Respondent argues, in this regard, that the release
 of parking spaces did not effect a change in working conditions but,
 rather, was simply a reaffirmation of existing agency policy as set
 forth in Section 490 of the U.S. Marshals Service Manual, /3/ an
 internal agency regulation.  As to this latter contention, there is no
 evidence in the record to indicate, and no allegation by the Respondent,
 that its decision to release certain parking spaces was required by the
 internal regulation.  Moreover, it was neither asserted nor established
 that the regulation in question falls within the meaning of section
 7117(a)(2) and (3) of the Statute /4/ so as to bar negotiations-- i.e.,
 that the regulation was issued at the level of the agency or primary
 national subdivision and a compelling need exists therefor.  See Defense
 Logistics Agency (Cameron Station, Virginia), et al., 12 FLRA No. 86
 (1983).  As to the Respondent's contention that the release of parking
 spaces did not effect a change in working conditions, the Authority
 finds, as stipulated by the parties, that unit employees at various
 locations lost the use of their parking spaces following the issuance of
 the Respondent's October 16 message to U.S. Marshals which addressed the
 release of excess parking spaces.  This clearly constitutes a change in
 conditions of employment affecting unit employees.  Moreover, the record
 further indicates that five additional employees lost the use of their
 parking spaces in Indianapolis sometime in November 1979, following
 receipt of the October 16 message by the U.S. Marshal for that district.
  The Respondent argues, in connection with this latter situation, that
 the spaces in question had previously been released in June 1979;  that
 the Respondent neither knew of nor consented to any informal arrangement
 which may have existed between the local U.S. Marshal and GSA to retain
 the spaces;  and that, therefore, the Respondent was not responsible for
 the actions of the local U.S. Marshal.  The Authority finds this
 argument to be without merit.  The Authority has previously held that
 the acts and conduct of agency management at a level lower than the
 level of exclusive recognition may form the basis of a violation of the
 Statute where lower level agency management acts as the agent of
 management at the level of exclusive recognition.  Department of Health
 and Human Services, Social Security Administration, Office of Program
 Operations and Field Operations, Sutter District Office, San Francisco,
 California, 5 FLRA No. 63 (1981).  On this same basis, the Authority
 finds that the release of parking spaces in Indianapolis, which was
 precipitated by the Respondent's October 16 message, was also violative
 of the Statute.  As to the Respondent's assertion that the Union waived
 any bargaining rights it might have had by failing to act in a timely
 manner, the Authority finds that the Union did in fact make several
 timely bargaining requests prior to the release of the parking spaces.
 Therefore, this contention of the Respondent must also be rejected.
 
    While the Respondent's failure and refusal to bargain with the Union
 concerning the decision to relinquish the parking spaces then being used
 by bargaining unit employees constituted a violation of section
 7116(a)(1) and (5) of the Statute, the Authority finds that a status quo
 ante order would not be appropriate to remedy such unfair labor practice
 inasmuch as the parking spaces have already been released to GSA and the
 authority for acquiring replacement spaces rests not with the Respondent
 but with GSA.  However, in order to remedy the unfair labor practice
 conduct herein, the Authority shall order the Respondent (1) to make
 every effort to reacquire the parking spaces, including requesting,
 through appropriate channels and in accordance with applicable
 regulations, that GSA replace the parking spaces formerly occupied by
 unit employees at various locations throughout the Respondent's
 facilities;  and (2) to bargain with the Union, to the extent consonant
 with applicable GSA regulations, concerning the reallocation of its
 parking spaces for use by unit employees.
 
                                   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 United States Marshals Service shall:
 
    1.  Cease and desist from:
 
    (a) Releasing parking spaces used by unit employees without first
 affording the American Federation of Government Employees, AFL-CIO,
 International Council of Marshals Service Locals, the employees'
 exclusive representative, the opportunity to bargain concerning such a
 decision.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Make every effort to reacquire the parking spaces, including but
 not limited to requesting, through appropriate channels and in
 accordance with applicable regulations, that the General Services
 Administration replace the parking spaces which had been used by unit
 employees in the Northern District of Texas, the Northern District of
 California, Idaho, the Western District of Louisiana, and Indianapolis,
 and which were relinquished to GSA in November 1979 and January 1980
 without bargaining in good faith with the employees' exclusive
 representative concerning the decision to do so.
 
    (b) Bargain, upon request of the American Federation of Government
 Employees, AFL-CIO, International Council of Marshals Service Locals,
 and to the extent consonant with applicable regulations of the General
 Services Administration, concerning the reallocation of its parking
 spaces for use by unit employees.
 
    (c) Post at its facilities copies of the attached Notice on forms to
 be furnished by the Federal Labor Relations Authority.  Upon receipt of
 such forms, they shall be signed by the Director, U.S. Marshals Service,
 or his designee, and shall be posted and maintained for 60 consecutive
 days thereafter, in conspicuous places, including bulletin boards and
 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 any other material.
 
    (d) 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 have been
 taken to comply herewith.  
 
 Issued, Washington, D.C., August 25, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, 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 release parking spaces used by unit employees without first
 affording the American Federation of Government Employees, AFL-CIO,
 International Council of Marshals Service Locals, the exclusive
 representative of our employees, the opportunity to bargain concerning
 such a decision.  WE WILL NOT in any like or related manner interfere
 with, restrain, or coerce our employees in the exercise of their rights
 assured by the Federal Service Labor-Management Relations Statute.  WE
 WILL make every effort to reacquire the parking spaces, including but
 not limited to requesting, through appropriate channels and in
 accordance with applicable regulations, that the General Services
 Administration replace the parking spaces which had been used by unit
 employees in the Northern District of Texas, the Northern District of
 California, Idaho, the Western District of Louisiana, and Indianapolis,
 and which were relinquished to GSA in November 1979 and January 1980
 without bargaining in good faith with the employees' exclusive
 representative concerning the decision to do so.  WE WILL bargain, upon
 request of the American Federation of Government Employees, AFL-CIO,
 International Council of Marshals Service Locals, and to the extent
 consonant with applicable regulations of the General Services
 Administration, concerning the reallocation of our parking spaces for
 use by unit employees.
                                       (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
 questions concerning this Notice or compliance with any of its
 provisions, they may communicate directly with the Regional Director,
 Region III, Federal Labor Relations Authority, whose address is:  P.O.
 Box 33758, Washington, D.C.  20033-0758 and whose telephone number is:
 (202) 653-8452.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The matter of no longer providing parking free of charge is not
 at issue herein.
 
 
    /2/ Two of these employees were located in the Northern District of
 Texas;  and one in the Northern District of California, Idaho and the
 Western District of Louisiana, respectively.
 
 
    /3/ Section 490 of the U.S. Marshals Service Manual provides, in
 relevant part, as follows:
 
          10.  Parking:
 
          A. One (1) parking space is authorized for each government
       vehicle assigned to each district as is one parking space for the
       use of the U.S. Marshal.  Such spaces will be arranged for through
       the local GSA Buildings Manager and will be at the expense of the
       United States Marshals Service.  Usually, Government-owned or
       controlled space will be provided as close to the U.S. Marshals
       Office as possible.  Should government space be unavailable, GSA
       should arrange for the monthly leasing of commercial space
       sufficient to meet the basic needs of each office.  If GSA is
       unable to assist you in arranging such space, you are to contact
       the Administrative Services Division, USMS, Space Control Officer
       for advice and guidance in obtaining same.  In any event, Standard
       Form 81 must be completed and submitted to the Space Control
       Officer before contracting for parking spaces.  Any space acquired
       should be at a central location near the U.S. Marshals Office and
       afford protection from pilferage or malicious damage to vehicles.