16:1007(134)CA AFGE, LOCAL 1917 VS JUSTICE, INS -- 1984 FLRAdec CA



[ v16 p1007 ]
16:1007(134)CA
The decision of the Authority follows:


16 FLRA NO. 134

U.S. IMMIGRATION AND
NATURALIZATION SERVICE

     Respondent

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1917, AFL-CIO

     Charging Party

Case No. 2-CA-20427

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, the U.S. Department of Justice filed exceptions on behalf of the Respondent, and briefs were filed by the Department of Justice, the Charging Party and the General Counsel. 1

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 [ v16 p1007 ] 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 2 and Recommended Order. The Authority notes, in agreement with the Judge, that a status quo ante remedy is appropriate in the circumstances where the decision itself was within the duty to bargain. See Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 16 FLRA No. 99 (1984); Department of Transportation, Federal Aviation Authority, Washington, D.C., and its Chicago Airways Facilities Sector, 16 FLRA No. 71 (1984).

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 U.S. Immigration and Naturalization Service shall:

1. Cease and desist from:

(a) Changing policies governing employee parking at the Brooklyn, New York Service Processing Center without first affording the American Federation of Government Employees, Local 1917, AFL - CIO, the employees' exclusive collective bargaining representative, notice and an opportunity to bargain concerning any proposed change in such policies.

(b) Refusing to bargain with the American Federation of Government Employees, Local 1917, AFL - CIO, the employees' exclusive collective bargaining representative, concerning any change in policies governing employee parking at the Brooklyn, New York Service Processing Center.

(c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Rescind the changes in the policy governing employee parking at the Brooklyn, New York Service Processing Center effectuated in April 1982, whereby parking spaces for employee parking were reduced from 16 spaces, and return to the policy in effect prior thereto. [ v16 p1008 ]

(b) Upon request, bargain with the American Federation of Government Employees, Local 1917, AFL - CIO, the employees' exclusive collective bargaining representative, concerning any proposed change in policy regarding employee parking at the Brooklyn, New York Service Processing Center.

(c) Post at its Brooklyn, New York Service Processing Center, or at any successor location, 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 District Director for the New York District, or his designee, and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all 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 II, 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 24, 1984

Henry B. Frazier III, Acting Chairman

Ronald W. Haughton, Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v16 p1009 ]

                         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 change policies governing employee parking at the Brooklyn, New York Service Processing Center without first affording the American Federation of Governing Employees, Local 1917, AFL - CIO, the employees' exclusive collective bargaining representative, notice and an opportunity to bargain concerning any proposed change in such policies.

WE WILL NOT refuse to bargain with the American Federation of Government Employees, Local 1917, AFL - CIO, the employees' exclusive collective bargaining representative, concerning any change in policies governing employee parking at the Brooklyn, New York Service Processing Center.

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 rescind the changes in the policy governing employee parking at the Brooklyn, New York Service Processing Center effectuated in April 1982, whereby parking spaces for employee parking were reduced from 16 spaces, and return to the policy in effect prior thereto. [ v16 p1010 ]

WE WILL, upon request, bargain with the American Federation of Governing Employees, Local 1917, AFL - CIO, the employees' exclusive collective bargaining representative, concerning any proposed change in policy regarding employee parking at the Brooklyn, New York Service Processing Center.

                                _______________________________
                                          (Activity)

Dated:_____________________  By:_______________________________
                                  (Signature)        (Title)

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, Region II, Federal Labor Relations Authority whose address is: 26 Federal Plaza, Room 241, New York, New York 10278 and whose telephone number is: (212) 264-4934. [ v16 p1011 ]

U.S. IMMIGRATION AND NATURALIZATION SERVICE

     Respondent

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1917, AFL-CIO

     Charging Party

Case No. 2-CA-20427

Joseph L. Mangiulli
         For the Respondent

Sheldon Dorn
         For the Charging Party

Steven Sharfstein, Esq.
         For the General Counsel

Before:  SALVATORE J. ARRIGO
         Administrative Law Judge

Statement of the Case

This is a proceeding under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101 et seq.

Upon an unfair labor practice charge filed by the American Federation of Government Employees, Local 1917, AFL - CIO (herein referred to as the Union) on May 19, 1982 against the U.S. Immigration and Naturalization Service (herein referred to as Respondent), the General Counsel of the Authority, by the Acting Regional Director of Region II, issued a Complaint and Notice of Hearing on September 30, 1982. The Complaint alleged that in April 1982 Respondent withdrew parking spaces which had [ v16 p1012 ] been available for unit employee's use without providing the Union with notice and an opportunity to negotiate on the substance and impact of the decision, and at all times thereafter refused to negotiate with the Union on the change, thereby violating section 7116(a)(1) and (3) of the Statute.

A hearing on the Complaint was conducted on January 12, 1983 at which time all parties were represented and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by Respondent and the General Counsel and have been duly considered.

Upon the entire record in this matter, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following:

Findings of Fact

At all times material herein the Union has been the exclusive collective bargaining representative for various of Respondent's employees located in Respondent's New York District.

Approximately 85 full-time employees, including deportation officers, are employed at Respondent's Brooklyn, New York Service Processing Center (the Center herein). The Center also serves as a detention facility for aliens in Respondent's custody. Directly behind the Center is a vacant space which extends to another building, the Cumberland Hospital. The vacant space is enclosed on the remaining two sides by a fence. One fence contains an entrance way at which is posted a guard employed by Respondent. Stretching between the Center and the Hospital, about three-fourth's of the distance from the entrance to the far fence 3 is another fence with two large gates which, when the gates are opened, forms a partially enclosed area within the space between the Center and the Hospital. Since at least 1976 the entire area has been jointly used by the Center and the Hospital as a parking lot. However, it is undisclosed who, in fact, owns the area.

In front of the Center is a parking area with approximately 25 parking spaces, half of which are used by service vehicles and supervisory parking and the other half used for employee parking. In 1976 the rear lot was used by very few employees and double and triple parking and general overcrowding was occurring in the front lot. In late 1976 one of Respondent's managers, either Francis Davison the facility chief, or the deportation officer Supervisor, Robert Schmidt, suggested to bargaining unit employee Richard Beiber that he and fellow deportation officers should start using the rear parking lot to relieve the [ v16 p1013 ] congestion in the front lot. Thereafter, the 35 parking spaces in the rear lot were "open to all" employees and Beiber and other employees began parking in the lot.

Approximately 3 years later (1979) Beiber was informed by deportation officer Supervisor Schmidt that an agreement had been reached with Cumberland Hospital regarding the use of the rear parking lot. The space adjacent to Cumberland Hospital would be reserved for parking by Cumberland Hospital employees and the space adjacent to the Center would continue to be used by center employees. Accordingly, from 1979 to April 1982, 16 parking spaces were available and used for parking by Center employees. 4 The area within the 18 foot high fence and the fence with the gates provided eight parking spaces for Cumberland Hospital employees and five spaces for Center personnel.

In March 1982 Respondent determined that an outdoor recreation area was needed for detainees at the Center. According to Respondent, the decision was made based upon the increase of long term detention at the Center; to comply with the "spirit" of a court stipulation; 5 and for "humanitarian reasons." Respondent decided to use a portion of the rear lot for this purpose and accordingly, Respondent effectuated an arrangement whereby Cumberland Hospital abandoned use of the fenced area with the gate and Respondent surrendered to the Hospital various parking spaces in the lot which were previously available to Center employees. 6 Accordingly, sometime in April 1982 Respondent notified its employees that the fenced portion of the rear parking lot would henceforth be used as a recreation yard for alien detainees and no parking was thereafter permitted in that location. In the remaining area, four parking spaces were retained for Center employees and the remaining spaces were turned over to Cumberland Hospital for use by its employees. Within 30 to 45 [ v16 p1014 ] days after this action, the Center further reduced available parking for its employees by parking two "deadlined" service vehicles in the lot in such a manner that three parking spaces were taken thus leaving only one space left for use by Center employees. 7

Since April 1982 the fenced portion of the parking lot has been used only as a recreation yard for detainees. The gates between the remaining parking lot and the recreation yard have been closed and locked and a volley ball net has been hung between the opposing fences. No other improvements or modifications have been made in the area. 8

Respondent's action of virtually closing the rear parking area has impacted adversely on employees. Thus, since parking in the rear lot has been curtailed, the employees have returned to parking in the front lot thereby increasing congestion in that lot with attendant dents, scrapes and scratches to employees' vehicles. If employees park their vehicles in the streets around the Center, the vehicles are open to vandalism. Further, street parking is subject to "no parking" and "alternate side" parking regulations.

By letter to Respondent dated May 12, 1982, the Union alleged Respondent's conduct resulted in a change in employee's working conditions at the Center and requested bargaining on the matter. By letter to the Union dated May 18, 1982 Respondent refused to negotiate on the issue. In its reply Respondent acknowledged that "(e)mployees at (the Center) have been permitted to park at the facility subject to availability of space" when Respondent "was not using the space in question and did not object to employees parking in that area." However, Respondent maintained that the space "has never been designated for employee parking" and therefore contended that no change in conditions of employment occurred.

Discussion and Conclusions

It is well settled that a term and condition of employment is [ v16 p1015 ] established where it is shown that a practice was consistently exercised for a substantial period of time with the employer's knowledge and consent. Department of the Navy, Naval Underwater Systems Center, Newport Naval Base, 3 FLRA 413 (1980); and Social Security Administration, Mid-America Service Center, Kansas City, Missouri, 9 FLRA 229 (1982).

Respondent contends that no change in terms and conditions of employment occurred pointing to the continued use of the parking lot by employee Beiber before and after the parking lot was "redesigned." In furtherance of this argument Respondent's representative states in his brief that "no evidence or testimony was presented that employees as a whole were affected."

I reject both Respondent's contention and argument in support thereof. Thus the record herein clearly reveals, as specifically found above, that with regard to the area in the rear of Respondent's facility: from 1976 to 1979, 35 parking spaces were available for employees' use; from 1979 to 1982, 16 parking spaces were available for employees' use; employees in fact utilized this parking area; Respondent was aware of such use and in fact encouraged such use; and after its actions in April 1982, only one parking space was available for employee use.

In the circumstances herein I conclude that the availability of 16 parking spaces for employees' use was a term and condition of employment for unit employees. Accordingly, I conclude that Respondent's withdrawal of those parking spaces from use by unit employees, without providing the Union notice and an opportunity to negotiate on the decision and the procedures which management would observe in reducing the number of spaces available to employees, and appropriate arrangements for employees adversely affected by such action, and its subsequent refusal to bargain on the matter, violated section 7116(a)(1) and (5) of the Statute. 9

In view of the entire foregoing I recommend that the Authority issue the following:

ORDER

Pursuant to section 2430.20 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the U.S. Immigration and Naturalization Service shall: [ v16 p1016 ]

1. Cease and desist from:

(a) Changing policies governing employees parking at the Brooklyn, New York Service Processing Center without first affording the American Federation of Government Employees, Local 1917, AFL - CIO, the employees' exclusive collective bargaining representative, notice and an opportunity to bargain, consonant with the obligations imposed by the Statute, concerning any proposed change in such policies.

(b) Refusing to bargain with the American Federation of Government Employees, Local 1917, AFL - CIO concerning any change in policies governing parking employees parking at the Brooklyn, New York Service Processing Center.

(c) In any like or related manner, interfering with, restraining, or coercing 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) Rescind the changes in the policy governing employees parking in the rear of the Brooklyn, New York Service Processing Center effectuated in April 1982 whereby parking spaces for employee parking were reduced from 16 spaces and return to the policy in effect prior thereto.

(b) Upon request, bargain with the American Federation of Government Employees, Local 1917, AFL - CIO, the employees exclusive collective bargaining representative, concerning any proposed change in policy regarding employee parking at the Brooklyn, New York Service Processing Center.

(c) Post at all its Brooklyn, New York Service Processing Center, 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 District Director for the New York District and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The District Director shall take reasonable steps to [ v16 p1017 ] 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 Acting Regional Director, Region II, Federal Labor Relations Authority, 26 Federal Plaza, Room 24-102, New York, New York 10278.

SALVATORE J. ARRIGO
Administrative Law Judge

Dated:  June 28, 1983
        Washington, DC

[ v16 p1018 ]

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-MANAGEMENT RELATIONS STATUTE
                  WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT change policies governing employees parking at the Brooklyn, New York Service Processing Center without first affording the American Federation of Government Employees, Local 1917, AFL - CIO, the employees' exclusive collective bargaining representative, notice and an opportunity to bargain, consonant with the obligations imposed by the Statute, concerning any proposed change in such policies.

WE WILL NOT refuse to bargain with the American Federation of Government Employees, Local 1917, AFL - CIO concerning any change in policies governing parking employees' vehicles at the Brooklyn, New York Service Processing Center.

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 rescind the changes in the policy governing employees parking in the rear of the Brooklyn, New York Service Processing Center effectuated in April 1982 whereby parking spaces for employee parking were reduced from 16 spaces and we will return to the policy in effect prior thereto.

WE WILL upon request, bargain with the American Federation of Government Employees, Local 1917, AFL - CIO, the employees exclusive collective [ v16 p 1019] bargaining representative, concerning any proposed change in policy regarding employee parking at the Brooklyn, New York Service Processing Center.

                                      _________________________
                                           (Agency/Activity)

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 Acting Regional Director, Region II, Federa