16:0928(125)CA - IRS and NTEU -- 1984 FLRAdec CA
[ v16 p928 ]
The decision of the Authority follows:
16 FLRA No. 125 INTERNAL REVENUE SERVICE Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 3-CA-1073 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in the unfair labor practices alleged in the complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, both the Respondent and the Charging Party filed exceptions to the Judge's Decision and the Charging Party filed an opposition to the Respondent's exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions /1/ and Recommended Order, except as modified herein. The Judge ordered, among other things, that the Respondent bargain, upon request, with the Union over the Respondent's parking regulation. However, inasmuch as there is no regulation in effect at this time requiring the collection of parking fees, /2/ it is unnecessary to order that the Respondent negotiate with the Union regarding this matter at the present time. Moreover, in agreement with the Judge, the Authority finds that granting the Union's request that employees be reimbursed for all parking fees collected pursuant to the regulation is not warranted in these circumstances. ORDER Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the Internal Revenue Service shall: 1. Cease and desist from: (a) Unilaterally implementing parking regulations and refusing to bargain on request with the National Treasury Employees Union, its employees' exclusive representative, concerning the impact and implementing procedures with regard to such regulations. (b) Unilaterally eliminating employee parking spaces without providing the National Treasury Employees Union an opportunity to bargain concerning the impact and implementing procedures with regard to such change. (c) 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 Federal Service Labor-Management Relations Statute: (a) Upon request meet and negotiate to the extent consonant with law and regulation with the National Treasury Employees Union concerning the elimination of employee use of parking spaces effective on or after November 1, 1979. (b) Post at its facilities nationwide 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 Commissioner of the Internal Revenue Service, or his designee, and shall be posted and maintained 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 any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, 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., December 18, 1984 /s/ Henry B. Frazier III Henry B. Frazier III, Acting Chairman /s/ Ronald W. Haughton Ronald W. Haughton, 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 unilaterally implement parking regulations and refuse to bargain on request with the National Treasury Employees Union, our employees' exclusive representative, concerning the impact and implementing procedures with regard to such regulations. WE WILL NOT unilaterally eliminate employee parking spaces without providing the National Treasury Employees Union an opportunity to bargain concerning the impact and implementing procedures with regard to such change. 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 upon request meet and negotiate to the extent consonant with law and regulation with the National Treasury Employees Union concerning the elimination of employee use of parking spaces effective on or after November 1, 1979. (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 its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region III, whose address is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8456. --------- FOLLOWS ----------- Respondent and NATIONAL TREASURY EMPLOYEES UNION, Charging Party Case No. 3-CA-1073 Michael Sussman, Attorney for Respondent Eric J. Genser, Attorney for the General Counsel Federal Labor Relations Authority Mark Maxin Representative for the Charging Party Before: Isabelle R. Cappello Administrative Law Judge DECISION This is a proceeding under the Federal Service Labor-Management Relations Statute, 92 Stat. 1191 (1978), 5 U.S.C. 7101 et seq. (Supp. III 1979) (hereinafter referred to as the "Statute"), and the rules and regulations issued thereunder and published at 45 Fed.Reg. 3482 et seq., 5 C.F.R. 2421 et seq. Based on a Charge filed on April 7, 1980, the Regional Director of the Federal Labor Relations Authority (hereinafter, the "Authority"), Region III, issued a Complaint and Notice of Hearing dated December 31, 1980. The Complaint alleges that the Internal Revenue Service (hereinafter, "IRS") has violated Sections 7116(a)(1) and (5) of the Statute, /3/ by releasing parking spaces at IRS's Canton, Ohio, facility without bargaining with National Treasury Employees Union ("NTEU") over the substance of the decision, and by implementing changes in employee parking procedures without bargaining with NTEU over the impact and implementation of the changes. A hearing was held on the matter in Washington, D.C., on March 12, 1981. The parties appeared, put on evidence, and examined and cross-examined witnesses. On April 22, 1981, NTEU submitted a brief, in the form of a letter. On April 27, the General Counsel and IRS submitted their briefs. Based on the record made at the hearing, my observation of the witnesses, and the briefs, the following findings and conclusions are made and order recommended. Findings of Fact /4/ 1. It is admitted that IRS is an "agency" within the meaning of the Statute. It is also admitted that NTEU is a "labor organization," within the meaning of the Statute, and is recognized by IRS as the exclusive representative of certain of its employees at offices throughout the country. Issues involving more than one office are bargained at the national level of IRS and NTEU. At all times pertinent to this proceeding, Susan Barliant and Jean Savage have represented IRS, and Frank Ferris has represented NTEU concerning national-level, bargaining issues. These representatives have weekly dealings with each other, meeting about once a month and corresponding or talking by phone in between meetings. 2. In April 1979, President Carter announced a new policy on parking for Federal employees. On April 6, 1979, the Office of Management and Budget ("OMB") sent to all heads of departments and agencies, and employee unions, a draft circular, the stated purpose of which was to establish the new policy governing the acquisition and allocation of parking facilities, and the establishment and determination of charges to be paid for parking by Federal employees. The draft provided that the General Services Administration ("GSA") should issue implementing regulations, and that agencies should "issue such instructions as may be needed to implement the provisions of this Circular and regulations issued by GSA." (R1.7, paragraph 5(b)(4)). The draft provided that agencies should collect fees "effective October 1, 1979." (R1.7 paragraph 8(b)(3)). It was stipulated that NTEU was sent a copy of this draft circular. 3. On August 13, OMB issued Circular No. A-118 to all heads of departments and agencies. Its purpose is as stated in the draft. See finding 2, above. It states that it incorporates many of the comments received from agencies and unions following circulation of the April 6 draft. It places a number of responsibilities upon agency heads. For example, agency heads are instructed "to institute more effective carpooling incentives." (GC 2.2) Agency contracting officers are to amend lease contracts to accomplish the new policies. (GC 2.4, paragraph 5) Acquisition of new parking facilities are to be consistent with the new policies and based upon analysis of public transportation and carpooling projected to be reasonably available or feasible, with such analyses to be initiated by agency heads and conducted by GSA. (GC 2.4, paragraph 7) Agency heads are given responsibility for allotting parking spaces, based on new priorities, and with some discretion "to assign a limited number of convenient parking spaces to certain executive personnel and employees with unusual hours . . . " (GC 2.5, paragraph 8) Agency heads are allowed to conduct their own appraisals of fair parking fees. (GC 2.8, paragraph 10b(4)) Agency heads are to implement an effective mechanism for deterring abuse of parking space assignments made to the handicapped, vanpools and carpools. (GC 2.8, paragraph 10b(7)) OMB set November 1 as the issuance date for "(f)inal agency regulations," and October 1 as the date for GSA regulations. (GC 2.10, paragraph 15) 4. On September 6, GSA issued Temporary Regulation D-65, in which it prescribes policies and procedures for the assignment of Federal employee parking spaces and the assessment of charges for the use of these spaces. The regulation was made effective as of November 1. The regulation specifically provides that, upon request by agencies, "parking spaces not required for 'official' parking may be used for EMPLOYEE parking," for which a monthly fee of not less than $10 a month must be assessed, unless a waiver is obtained under OMB Circular A-118 (GC 3.3, paragraph 7b). 5. On September 26, IRS sent a letter to Robert Tobias, NTEU's Executive Vice-President and General Counsel. The letter advised him of the OPM and GSA issuances and forwarded copies of them. /5/ The letter states that the new policy on parking would be implemented on November 1. (R 2.2) The letter also states that: "After all OMB and GSA documents have been issued, a Manual Supplement will be developed (by IRS) to address specific parking allocation and fee collection procedures to be utilized throughout the Service." (R 2.2, last paragraph) The letter concludes with the advice: "If you have any comments regarding the new federal parking regulations, please refer them to Jean Savage or Susan Barliant at 376-0575 not later than October 12, 1979." (R 2.3) Ms. Savage prepared the September 26 letter so that IRS "might comply with our requirement under CSRA (i.e., the Statute) to notify the union about changes that would be affecting employees working conditions." (TR 130) 6. On October 5, Mr. Ferris and Ms. Savage were having a telephone conversation about a mid-term bargaining issue concerning voucher examiners. She recalls bringing up the matter of the parking situation and mentioning the September 26 letter addressed to Mr. Tobias, with its October 12 deadline. She recalls Mr. Ferris indicating that he thought he had seen it, would ask Mr. Tobias about it, and "would get back to us." (TR 137) She recalls telling Mr. Ferris that IRS was anxious to move on the parking matter because of the mandated November 1 implementation date. When Mr. Savage had not heard back from Mr. Ferris by October 17, she made an assumption that NTEU did not desire to bargain on the parking regulations. 7. Mr. Ferris could not recall the October 5 conversation with Ms. Savage, but did not deny that it could have taken place. Ms. Barliant testified that Ms. Savage told her about it. Ms. Savage put notes on the conversation in a file. On October 17, not having heard from Mr. Ferris by the October 12 deadline set in the letter, she read her notes, and typed up their substance. Such is not an unusual practice because, as she explained, memories grow dim, and cases are frequently transferred from one person to another. Ms. Savage appeared sure of her facts, gave her testimony in a positive and direct manner, and was corroborated, to a certain extent. I found Ms. Savage to be a credible witness; and I accept, as true, the facts to which testified, as set out in finding 6, above. 8. By early October, several local chapters of NTEU, apparently aware of the OMB and GSA issuances, were working to obtain waivers of parking fees at their IRS field offices. Provisions for waivers are contained in the OMB and GSA issuances here involved. 9. By October 24, IRS had drafted its revised intra-agency parking regulations, in response to the OMB Circular. A copy of the draft was never sent to NTEU because of Ms. Savage's assumption that NTEU was not interested in bargaining over the issue. On November 6, they were issued as a Manual Transmittal, pursuant to what IRS refers to as the OMB and GSA "guidelines." (GC 5.4, paragraph 481(3)) Basically the IRS regulations track and clarify the OMB and GSA guidelines. Some clarifications not explicitly found in the OMB and GSA guidelines are: no payroll deductions being allowed for parking-fee collections; no discount or refund of fees being allowed to accommodate absences of the permit holder; and a mandatory penalty being imposed for an employee committing enumerated violations with respect to the parking program. 10. Mr. Ferris, Ms. Savage and Ms. Barliant met on November 7, to discuss several mid-term issues. Mr. Ferris brought up the non-agenda subject of parking, said he had been hearing from several NTEU chapters about changes taking place in the field, and inquired as to whether there were some nationwide regulations on the matter. The IRS representatives replied that nationwide changes were taking place, and that NTEU had received written notification of them. When Mr. Ferris replied that he knew of no such notice, Ms. Savage left the room and returned with a copy of the September 26 letter and the OMB and GSA issuances. She did not give him a copy of the November 6 IRS Manual Transmittal detailing how the new policy on employee parking would be implemented at IRS locations nationwide, or tell him that such an IRS document had been issued. When Mr. Ferris raised some questions about parking, Ms. Savage referred him only to the OMB Circular and the September 26 letter. The answers to his particular questions were to be found in the OMB and GSA issuances, and the September 26 letter. 11. Subsequent to the November 7 meeting, Mr. Ferris claims that he checked with NTEU officials, as well as various NTEU files, and found no record or indication that NTEU had ever received the September 26 letter. I credit his testimony on this point. He appeared to be candid and forthright, in testifying. What IRS characterizes as his nonresponsiveness was simply an unwillingness to be led, on cross-examination. The fact that he could not recall the October 5 conversation with Ms. Savage about parking (see findings 6 and 7 above) is believable, since she interjected the parking matter into a conversation dealing with an entirely different matter. 12. On November 14, Mr. Ferris sent a letter to Ms. Barliant which contained certain proposals concerning the parking program, and a request to negotiate. The NTEU proposals were to waive parking fees, wherever permitted, and to conform at once to the OMB Circular mandate in regard to priorities in assigning close-in parking spaces. The letter stated NTEU's objections to establishing a bargaining position until NTEU received a draft, manual supplement, or other policy document from IRS from which NTEU could see how IRS was proposing to use its discretionary powers. 13. On December 13, IRS gave NTEU a copy of its November 6 Manual Transmittal. Ms. Savage apologized for not sending it to NTEU earlier. She explained that the failure was due to a clerical error. Ms. Savage informed NTEU that IRS would not negotiate with NTEU about the parking regulations in the Manual Transmittal. 14. Pursuant to the new policy on parking, parking fees have been implemented at IRS's Cincinnati, Ohio, and Austin, Texas, Service Centers. Implementation at Cincinnati took place in November. There is no evidence as to when implementation occurred at Austin. 15. On November 1, at its Canton, Ohio, Regional Office, IRS ceased its practice of allowing bargaining-unit employees the use of 15 parking spaces at the building. Some 30 bargaining-unit employees had been using the spaces, for their private cars, when scheduled for an official business trip to conduct field audits. Now these employees must find parking spaces in commercial lots. There is one such lot, charging $10 a month, within one block of the IRS Canton office. Employees are reimbursed for parking their cars, in commercial lots, on those days when they use them for official business. Reimbursement is obtained through submission of monthly travel vouchers. IRS still controls the 15 vacated spaces at its Canton office building. Even if employees had been allowed continued use of the 15 spaces, the employees would have had to pay $10 a month, under the OMB and GSA issuances, on a reimbursable basis. At present, IRS pays $16.50 a month to GSA for each of the spaces, but is not allowing any employee use of them. /6/ On October 31, an IRS agent of the Cleveland, Ohio, District Office informed an agent of NTEU that it would be "releasing parking spaces" at various locations within the Cleveland District. The Canton office is such a location. On November 6, a local agent of NTEU requested an opportunity to negotiate over this matter. Such bargaining has not taken place. 16. GSA Temporary Regulation D-65, in paragraph 12a, makes agencies responsible for assigning parking spaces of employees and, in paragraph 8a, specifically provides that: If necessary for operational purposes, an agency may issue on a fee basis a limited number of parking permits to individuals who regularly use their privately owned vehicles for Government business. (GC 3.4) Regular use is defined as being 12 or more workdays a month for which reimbursement is made for mileage and parking fees under Government travel regulations. Discussion and Conclusions 1. The parking regulations. The parties agree that IRS was obliged to bargain with NTEU over the impact and implementation of its parking regulations, though not over their subject matter. Their agreement correctly reflects the state of the law. It is also well established that agencies must give adequate notice to the exclusive representative of their employees, and an opportunity to bargain, before implementing any changes in conditions of employment, such as parking. See e.g. Department of the Air Force, Scott Air Force Base, 5 FLRA No. 2 (1981), statutory obligations when it failed to give NTEU such notice and opportunity. IRS's main contention is that the notice it gave NTEU of the OMB and GSA "guidelines" (to use IRS's own characterization) was sufficient notice to allow NTEU to make a responsible input into the IRS parking plan, which was drawn from and integrally a part of the OMB and GSA issuances. See RBr 8-13. This argument ignores the fact that IRS, itself, as well as OMB, enunciated clearly that IRS would be issuing implementing regulations clarifying how it would exercise its responsibilities, at its facilities. Even had NTEU learned of the OMB and GSA guidelines in time to make meaningful proposals to IRS, it was still entitled to a bargaining opportunity when it was presented with IRS's own proposals. IRS has never given such an opportunity to NTEU. NTEU did not waive its bargaining rights by failing to meet the deadline set by IRS in its September 26 letter forwarding the OMB and GSA guidelines. Such a waiver must be "clear and unmistakable." See pages 1 and 3 of the Scott decision cited above, 5 FLRA No. 2. All the chief spokesman of NTEU ever indicated to IRS was that he would be getting back to IRS, after he located the September 26 letter. The deadline would, understandably, mean little to NTEU, as it had every reason to believe that it would receive a copy of IRS's own proposals before its bargaining proposals would have to be formulated. Instead of jumping to the conclusion that NTEU was not interested in bargaining about the parking matter, because it had allowed IRS's deadline to pass, IRS's labor relations officer could have inquired of NTEU's interest, in one of her frequent contacts with NTEU's chief spokesman. This would have been a simple, reasonable action to have taken. Instead, IRS's labor relations officer spent her time making a written record of NTEU's failure to meet an IRS-imposed deadline. See finding 7, above. The record evidence leaves the impression that IRS, hard-pressed to meet the OMB deadline, was overly anxious to assume that NTEU was not going to exercise bargaining rights, and complicate further the ability of IRS to get its regulations out in time. OMB imposed no penalty on an agency's failure to meet its deadline; and IRS did fail to meet it. Of course, the OMB-established deadline was no excuse for IRS to cut off NTEU's bargaining rights granted by the Statute. IRS also takes the position that no change of substantial impact resulted from its parking regulations. A "substantial impact rule" is applied to failure-to-bargain situations, before an unfair labor practice is found. See page 3 of the decision of Judge Randolph D. Mason in Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, adopted by the Authority in 5 FLRA No. 45 (March 20, 1981). The evidence here established that paid-parking programs have been instituted at IRS's Cincinnati, Ohio, and Austin, Texas, Service Centers. It also establishes just how IRS will be allotting parking spaces at all future acquired facilities. Indeed, one whole section of the IRS regulations is devoted to "Procedure for Acquiring New or Additional Space." (GC 5.4) Thus, the regulations have a nationwide scope, with future impact not yet clearly ascertainable. Given the fact that IRS can exercise considerable discretion over how rates are determined and how it allots and manages the space it acquires (see finding 3, above), it is impossible to conclude that the IRS parking regulations will have no substantial and possibly adverse impact upon its employees. No working condition is as liable to touch a sensitive nerve, in employees, as access to parking spaces for their cars. How IRS is going to acquire space and allot and charge for it cannot be passed off as a matter of no substance. 2. The release of 15 parking spaces at IRS's Canton, Ohio office building. IRS gave a local NTEU official one day's notice before it stopped its practice of allowing bargaining-unit employees the use of 15 spaces, at its Canton, Ohio, office building. IRS does not argue that such notice was adequate. It clearly was not. IRS argues, instead, that there was "no net effect" on the employees formerly using these spaces because they were only allowed to use them when scheduled for field trips, and now, when scheduled for field trips, the employees are reimbursed, monthly, for any parking fees incurred in commercial lots, at least one of which is within a block of the building. See RBr 17-19. Having to look for space in commercial lots, walk to the office on days of inclement weather, and wait for a period of up to one month for reimbursement of monies expended, add up to a substantial, adverse effect on employees, contrary to IRS's view of the matter. Furthermore, IRS had left these spaces unused for over three months, as of the date of the hearing, and denied NTEU the opportunity to bargain over use of them by carpools, handicapped employees, and employees with unusual hours-- all options left to IRS by OMB. See finding 3, above. This denied NTEU an opportunity to demonstrate its clout and bargain for such use of these spaces by employees. Instead, IRS made NTEU look ineffectual to members of the bargaining unit, thereby discouraging employees from exercising their right to join a labor organization and be represented by it. See Section 7102 of the Statute. The record made in this proceeding establishes, by a preponderance of the evidence, that IRS's unilateral actions in imposing revised parking regulations, and eliminating employee use of parking spaces, at Canton, Ohio, has had, or will have a reasonable likelihood of adversely affecting employees, in a substantial degree, and denied them the right, under Section 7102 of the Statute, to freely join a labor organization and to engage in collective bargaining with respect to conditions of employment through chosen representatives. IRS thereby committed unfair labor practices within the meaning of Section 7116(a)(1) and (5) of the Statute. 3. The remedy The General Counsel seeks a nationwide posting of an order "fully remedial of all unlawful conduct, including a specific order to IRS to bargain, upon request by the Union, on all changes made with respect to employee parking to the extent consonant with applicable laws and regulations." (GCBr 10) Such a remedy is appropriate. IRS parking regulations apply to all its facilities, throughout the country. While a release of parking spaces was shown only at one facility, other releases may have since occurred and, given IRS's position on not negotiating such changes, would have occurred unilaterally. The cease-and-desist order, as well as the bargaining order, should therefore apply to all such unilateral changes. Remittal of parking fees, urged by NTEU at pages 4 through 6 of its letter-brief, will not be ordered. /7/ IRS had no choice in the collection of the parking fees which, as all parties agree, was not bargainable, under Section 7117(a)(1) of the Statute, as it was mandated by a Government-wide rule. The only case cited by NTEU, in which a "make whole" remedy was imposed as to parking fees, involved an increase in fees ordered by an authority within a single department, and is thus distinguishable from the situation here. See DOT, et al., A/SLMR No. 1062 (1978), cited in footnote 9 of NTEU's letter-brief. Ultimate Findings and Order Internal Revenue Service has violated Section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute, as alleged in the Complaint. Accordingly, the following remedial action shall be taken by the Internal Revenue Service: 1. Cease and desist from: (a) Interfering with, restraining and coercing its employees in the exercise of their rights under the Federal Service Labor-Management Relations Statute by unilaterally implementing parking regulations and eliminating employee use of parking spaces, and refusing to bargain with the National Treasury Employees Union concerning such regulations and changes to the extent consonant with the law and Government-wide rules and regulations. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action: (a) Upon request, meet and negotiate with the National Treasury Employees Union concerning IRS Manual Transmittal 1(14)50, dated November 6, 1979, and elimination of employee use of parking spaces effective on or after November 1, 1979, specifically including, but not limited to the elimination of employee use of spaces at the Internal Revenue Service building at Canton, Ohio. (b) Post, at all its offices nationwide, copies of the attached Notice, marked "Appendix," on a form to be furnished by the Federal Labor Relations Authority. Upon receipt of such form, the Director of the Internal Revenue Service shall sign the Notice and direct that copies be posted and maintained, for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places where notices are customarily posted. The Director shall take reasonable steps to insure that such Notices are not altered, defaced, or covered by any other material. (c) Notify the Federal Labor Relations Authority, in writing, within 30 days of this Order, as to what steps have been taken to comply with its provisions. /s/ Isabelle R. Cappello Isabelle R. Cappello Administrative Law Judge Dated: August Washington, D.C. APPENDIX 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, upon request, negotiate in good faith with the National Treasury Employees Union, concerning parking regulations and elimination of employee use of parking spaces, to the extent consonant with law and Government-wide rules and regulations. WE WILL NOT implement parking regulations, or eliminate employee use of parking spaces without negotiating in good faith with the National Treasury Employees Union, to the extent consonant with law and Government-wide regulations. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of rights assured by the Federal Service Labor-Management relations Statute. Agency or Activity Dated: By: Signature --------------- FOOTNOTES$ --------------- /1/ In agreement with the Judge's conclusion, the Authority finds that Respondent's unilateral implementation of the revised parking regulation and elimination of employee parking spaces had a reasonably foreseeable impact which was more than de minimis on bargaining unit employees. See U.S. Government Printing Office, 13 FLRA No. 39 (1983); and Department of Health and Human Services, Social Security Administration, Chicago Region, 15 FLRA No. 174 (1984). /2/ 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, 669 F.2d 815 (D.C. Cir. 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. 1161 (Dec. 17, 1981). /3/ Section 7116(a) provides, in pertinent part, that 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; . . . (and) (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter . . . " /4/ Dates referred to in these findings are in 1979 unless otherwise specified. Abbreviations used in these findings are as follows: "GC" refers to the exhibits of the General Counsel and "R" to those of IRS, with multipage exhibits referenced by the exhibit number, followed by the page number. "GCBr" refers to the brief of the General Counsel. "RBr" refers to the brief of IRS. "UBr" refers to the brief of NTEU. "TR" refers to the transcript. Respondent's unopposed Motion to Correct Hearing Transcript is granted; and the following corrections made: Page 141, Line 14, As stated "Acquired", As Corrected "Required." Page 195, Line 18, As stated "36", As Corrected "56." /5/ Paragraph 9 of the Complaint alleges that this letter was sent to NTEU. IRS admitted paragraph 9, in its Answer. The issue is, therefore, taken as settled, for purposes of this proceeding. The General Counsel's treatment of the matter, as unsettled, is rejected. See, e.g., GCBr 2, 3, and 5, and TR 87 and 102. /6/ Apparently IRS intends to turn the 15 spaces back to GSA, but is precluded from doing so without first bargaining with the NTEU. See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA No. 118 (7/30/80). /7/ Restitution of the fees may, nevertheless, be made, pursuant to an order of Judge Harold H. Greene, in American Federation of Government Employees, AFL-CIO, et al. v. R. G. Freeman III, Civil Action No. 79-2955, in the United States District Court for the District of Columbia. On March 3, 1981 Judge Greene ordered the parties to file briefs on the issue of restitutive relief, after declaring GSA Temporary Regulation D-65 was not issued pursuant to legitimate statutory or other authority and is unlawful. The possibility of such relief being ordered by a Federal judge is not, however, the ground upon which the relief is being denied in this proceeding. Judge Greene's decision on the illegality of the GSA regulations is apparently being appealed.