19:0846(102)CA - Labor, Washington, DC and DOL Region VII, Occupational Safety and Health Administration and Office of the Assistant Secretary for Administration and Management, Kansas City, MO and National Council of Field Labor Locals, AFGE -- 1985 FLRAdec CA



[ v19 p846 ]
19:0846(102)CA
The decision of the Authority follows:


 19 FLRA No. 102
 
 U.S. DEPARTMENT OF LABOR, WASHINGTON,
 D.C. AND U.S. DEPARTMENT OF LABOR,
 REGION VII, OCCUPATIONAL SAFETY AND
 HEALTH ADMINISTRATION AND OFFICE OF
 THE ASSISTANT SECRETARY FOR ADMINIS-
 TRATION AND MANAGEMENT, KANSAS CITY,
 MISSOURI
 Respondent
 
 and
 
 NATIONAL COUNCIL OF FIELD LABOR
 LOCALS, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 7-CA-40017 
                                                            (1)(2)(3)(4) 
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices alleged in the complaint, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Exceptions to the Judge's Decision were
 filed by the Respondent.
 
    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 and recommended Order as modified below.
 
    The Judge found that the refusal to bargain over the termination of
 individual assignments of government-owned vehicles and the release of
 parking spaces used by unit employees violated section 7116(a)(1) and
 (5) of the Statute.
 
    Subsequent to the issuance of the Judge's Decision herein, the
 Authority issued decisions in U.S. Department of Labor, Occupational
 Safety and Health Administration, Chicago, Illinois, 19 FLRA No. 60
 (1985), and U.S. Department of Labor, Washington, D.C. and Employment
 Standards Administration, Region 8, Denver, Colorado, 19 FLRA No. 65
 (1985).  Those cases addressed the obligation of management to bargain
 over the termination of individual government-owned vehicle assignments
 to bargaining unit employees of the same agency and represented by the
 same union /1/ as involved herein, and dealing with the same collective
 bargaining agreement and essentially the same arguments as are raised
 herein.  In those cases, the Authority determined that the union had not
 clearly and unmistakably waived its right to bargain over procedures and
 appropriate arrangements for unit employees adversely affected by the
 termination of individual vehicle assignments and that the refusals to
 bargain therefore were violative of the Statute.  For the reasons more
 fully set forth in those decisions, the Authority finds in the instant
 case that the Respondent's refusal to bargain over procedures and
 appropriate arrangements for unit employees adversely affected by the
 termination of individual vehicle assignments violated section
 7116(a)(1) and (5) of the Statute.  With respect to the bargaining
 obligation over the substance of the termination, the Authority
 concludes, consistent with its decision in Employment Standards
 Administration, supra, that the union had contractually waived its right
 to bargain over the decision concerning the assignment of such vehicles,
 and that the Respondent therefore was not obligated to bargain in this
 regard.  /2/
 
    With respect to the Judge's finding of a violation based on the
 refusal to bargain over the substance of, and procedures and appropriate
 arrangements for unit employees adversely affected by, the release of
 parking spaces, the Authority agrees that such conduct violated section
 7116(a)(1) and (5) of the Statute.  /3/
 
    To remedy the unfair labor practices, the Judge recommended that the
 Respondent be ordered to bargain and reach agreement concerning the
 changes;  that employees be made whole for losses incurred as a result
 of the changes;  and that the Respondent make every effort to reacquire
 the released parking spaces.  The Authority shall modify that portion of
 the Judge's remedy which would require the parties to reach agreement,
 as such an order would be inconsistent with section 7103(a)(12) of the
 Statute which states in pertinent part that "the obligation (to bargain)
 . . . does not compel either party to agree to a proposal or to make a
 concession(.)" See Occupational Safety and Health Administration, supra.
  Rather, the Authority shall modify the Judge's order so as to require
 the Respondent to bargain, upon request, over procedures and appropriate
 arrangements for unit employees adversely affected by the termination of
 individual vehicle assignments.  In agreement with the Judge, the
 Authority finds that it will further effectuate the purposes and
 policies of the Statute to order, to the extent that it is consistent
 with law and regulation, that the Respondent make whole any employees
 for losses incurred as a result of the termination of individual vehicle
 assignments, and as a result of the release of parking spaces used by
 bargaining unit employees, to the extent that they have not already been
 reimbursed;  to order that the Respondent make every effort to reacquire
 the parking spaces used by unit employees;  and to order that the
 Respondent bargain, upon request and to the extent consonant with
 applicable regulations, concerning the reallocation of its parking
 spaces for use by unit employees.  Occupational Safety and Health
 Administration, supra;  Employment Standards Administration, supra.  See
 also United States Marshals Service, 12 FLRA 650 (1983).
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the U.S. Department of Labor, Washington, D.C. and U.S. Department
 of Labor, Region VII, Occupational Safety and Health Administration and
 Office of the Assistant Secretary for Administration and Management,
 Kansas City, Missouri shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to bargain with the National Council of
 Field Labor Locals, American Federation of Government Employees,
 AFL-CIO, or its designated representative, concerning procedures and
 appropriate arrangements for unit employees adversely affected by the
 termination of individual vehicle assignments.
 
    (b) Releasing parking spaces used by bargaining unit employees
 without first affording the National Council of Field Labor Locals,
 American Federation of Government Employees, AFL-CIO, or its designated
 representative, the opportunity to bargain concerning such decision.
 
    (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 Statute:
 
    (a) Upon request, bargain with the National Council of Field Labor
 Locals, American Federation of Government Employees, AFL-CIO, or its
 designated representative, concerning procedures and appropriate
 arrangements for unit employees adversely affected by the termination of
 individual vehicle assignments.
 
    (b) Consistent with law and regulation, make whole unit employees for
 losses incurred as a result of the termination of individual vehicle
 assignments, and as a result of the release of parking spaces used by
 bargaining unit employees, to the extent they have not already been
 reimbursed.
 
    (c) 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 Wichita, Kansas and Kansas City, Missouri offices and
 which were relinquished to the General Services Administration in
 October and November 1983 without bargaining in good faith with the
 employees' exclusive representative concerning the decision to do so.
 
    (d) Bargain, upon request of the National Council of Field Labor
 Locals, American Federation of Government Employees, AFL-CIO, or its
 designated representative, 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.
 
    (e) Post at its facilities in St. Louis, Missouri, Wichita, Kansas
 and Kansas City, Missouri, 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 Regional Administrator, Office
 of the Assistant Secretary for Administration and Management, Region
 VII, or a designee, and shall be posted and maintained for 60
 consecutive days thereafter, including bulletin boards and other places
 where notices to employees are customarily posted.  Reasonable steps
 shall be taken to ensure that such Notices are not altered, defaced, or
 covered by any other material.
 
    (f) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VII, 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., August 19, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., 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 bargain with the National Council of Field
 Labor Locals, American Federation of Government Employees, AFL-CIO, or
 its designated representative, concerning procedures and appropriate
 arrangements for unit employees adversely affected by the termination of
 individual vehicle assignments.  WE WILL NOT release parking spaces used
 by bargaining unit employees without first affording the National
 Council of Field Labor Locals, American Federation of Government
 Employees, AFL-CIO, or its designated representative, the opportunity to
 bargain concerning such 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, upon request, bargain with the National
 Council of Field Labor Locals, American Federation of Government
 Employees, AFL-CIO, or its designated representative, concerning
 procedures and appropriate arrangements for unit employees adversely
 affected by the termination of individual vehicle assignments.  WE WILL,
 consistent with law and regulation, make whole any employees for losses
 incurred as a result of the termination of individual vehicle
 assignments, and as a result of the release of parking spaces used by
 bargaining unit employees, to the extent that they have not already been
 reimbursed.  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 Wichita, Kansas and Kansas City, Missouri, offices and
 which were relinquished to the General Services Administration in
 October and November 1983 without bargaining in good faith with the
 exclusive representative of our employees concerning the decision to do
 so.  WE WILL, upon request, bargain with the National Council of Field
 Labor Locals, American Federation of Government Employees, AFL-CIO, or
 its designated representative, and to the extent consonant with
 applicable regulations of the General Services Administration,
 concerning the reallocation of parking spaces for use by unit employees.
                                       (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 VII,
 Federal Labor Relations Authority, whose address is:  1531 Stout Street,
 Suite 301, Denver, Colorado 80202 and whose telephone number is:  (303)
 837-5224.
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                      Case No. 7-CA-40017(1)(2)(3)(4)
 
    James E. Culp, Esq.
       For the Respondents
 
    James J. Gonzales, Esq.
       For the General Counsel
 
    Before:  ELI NASH, JR.
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
 U.S.C. 7101, et seq.  It was instituted by the Regional Director of the
 Seventh Region of the Federal Labor Relations Authority by the issuance
 of a Complaint and Notice of Hearing dated December 30, 1983.  A
 Complaint was issued following an investigation of unfair labor practice
 charges filed on October 17, 1983, and amended on December 21, 1983, by
 the National Council of Field Labor Locals, American Federation of
 Government Employees, AFL-CIO, herein referred to as the Charging Party
 or the Union.  The Complaint alleges that the U.S. Department of Labor,
 Washington, D.C., herein called Respondent DOL and the U.S. Department
 of Labor, Region VII, Occupational Safety and Health Administration and
 Office of the Assistant Secretary for Administration and Management,
 herein called Respondent Kansas City or Respondent OSHA, and herein
 collectively called Respondents engaged in certain unfair labor
 practices within the meaning of section 7116(a)(1) and (5) of the
 Statute, by unilaterally changing the working conditions of unit
 employees by terminating the individual assignment of government-owned
 vehicles, herein called GOVs, to employees and terminating the parking
 of employees' privately-owned vehicles, herein called POVs, in
 government-leased space, without first bargaining with the Union
 concerning these changes.
 
    In its Answer, Respondent essentially denied the commission of any
 unfair labor practices.
 
    A hearing was held in Kansas, Missouri, at which the parties were
 represented by counsel and afforded full opportunity to adduce evidence
 and call, examine, and cross-examine witnesses and argue orally.  /4/
 Timely filed briefs have been duly considered.
 
    Upon consideration of the entire record in this case, including my
 evaluation of the testimony and evidence presented at the hearing, and
 from my observation of the witnesses and their demeanor, I make the
 following findings of fact, conclusions of law, and recommended order.
 
                             Findings of Fact
 
    A. Background;  Practice and Procedures Concerning Government-Owned
 Vehicles Assignment and Parking of Employees Privately-Owned Vehicles.
 
    At all times material herein, the Union has been recognized as the
 exclusive representative of all employees of Respondent DOL stationed
 throughout the nation in its field duty stations, excluding certain
 groups of employees not relevant to this proceeding.  Included within
 the above-described bargaining unit are compliance officers employed by
 Respondent Kansas City in its Occupational Safety and Health
 Administration Offices in Wichita, Kansas, Kansas City, Missouri, and
 St. Louis, Missouri Area Offices, respectively.
 
    The Union is composed of all American Federation of Government
 Employees locals within Respondent DOL and the National Council
 executive board membership is elected by the respective presidents of
 the various locals.  The Union and Respondent DOL negotiated a
 collective bargaining agreement covering all bargaining unit employees
 which originally became effective on August 17, 1978.  The parties
 subsequently agreed to extend, and supplement that collective bargaining
 agreement through August, 1984, consequently it remained in effect at
 all times material herein.  Under Articles 3, 7 and 41, the Union and
 Respondent DOL both delegated to their respective representatives in the
 various regions, including management and union representatives in
 Respondent Kansas City's region, the authority and responsibility for
 conducting negotiations concerning matters which affect personnel
 policies, practices or conditions of employment within their particular
 region.
 
    Within Respondent Kansas City's region, Roger Jackson, a compliance
 officer, is the designated regional representative and point of contact
 for the Union;  Roger Clark is the Regional Administrator for OSHA;  and
 Gerald Dillon is the Regional Administrator for the Office of the
 Assistant Secretary for Administration and Management (OASAM).
 
    It is uncontroverted in the record that a regular practice and
 procedure existed, from at least 1977 through May, 1983, involving the
 individual assignment of GSA vehicles to OSHA compliance officers and
 the cost-free parking of POVs by compliance officers on
 government-leased premises at the Kansas City, St. Louis and Wichita
 Area Offices.  Throughout this entire period safety inspector or
 industrial hygienist compliance officers employed in the above-named
 offices would execute an agency form every 6 months and elect either to
 use a GSA vehicle or a POV for their official travel.  A compliance
 officer who requested the use of a GSA vehicle would be individually
 assigned such a vehicle, that compliance officer would then keep that
 same vehicle for several months or even years for individual official
 use;  would continually store extensive quantities of personally
 accountable bulky, expensive and heavy inspection equipment and supplies
 in that vehicle;  would have priority to use that vehicle, would have
 standing authorization to park that vehicle at home under appropriate
 circumstances;  and finally, would be responsible for knowing and
 maintaining the operating condition of the vehicle.  The above procedure
 and practice of assigning GSA vehicles on an individual basis was
 clearly known to and encouraged by management until early 1983.
 Approximately 8 to 10 of the 15-20 compliance officers in the Wichita
 Area Office were individually assigned GSA vehicles from 1977-1983;
 about 10 to 12 of the 16 compliance officers in the Kansas City Area
 Office were individually assigned GSA vehicles from 1977-1983;  and, all
 of the 12 compliance officers in the St. Louis Area Office used
 individually assigned GSA cars since 1977.
 
    During this same period of time, there was also an established
 practice in which compliance officers in these three area offices were
 furnished adjacent leased parking facilities at no charge for their
 individually assigned GSA and POVs.  In the Kansas City Area Office
 there were 21 magnetic cards available to and used by the 16 compliance
 officers, secretaries and managers until October, 1983 to either park
 GSA vehicles or their POVs at a commercial parking facility at no cost.
 /5/ Those compliance officers who elected to use GSA vehicles for
 official travel had to pay to park their POVs at this leased facility,
 but compliance officers who elected to use their POVs for official
 travel parked cost-free at the facility.
 
    Respondents' Kansas City compliance officers perform official travel
 on an average of 10 to 19 work days per month and those who elected to
 use POVs for official travel were also entitled to park those POVs at no
 cost on government-leased premises even on days during which no official
 travel was performed.  The outlined practice existed at both the Kansas
 City and Wichita Area Offices since 1977, and the St. Louis Area Office
 since at least 1980.  Like their counterparts who stored inspection
 equipment in their individually assigned GSA vehicles, compliance
 officers who elected to use POVs for official travel could store
 extensive amounts of business-related inspection equipment in their
 POVs.  This and the proximate parking of their vehicles permitted all
 compliance officers, safety inspectors and industrial hygienists alike,
 to be prepared to leave their respective offices on a moment's notice in
 response to an unplanned imminent danger inspection requirement.
 
    In the Wichita Area Office, there were about 21 leased parking slots
 adjacent to the office facility which compliance officers, managers, and
 clerical employees used to park the 8 or so GSA vehicles which were
 individually assigned to compliance officers, the POVs used by
 compliance officers for official travel, and the POVs belonging to the
 Area Director, secretaries, and other compliance officers.
 Approximately 22 employees, including 14 compliance officers, were
 specifically authorized by their Area Directors, during the times in
 question, Roger Clark or Jeff Spahn to park either a GSA vehicle or POV
 at no charge in a designated set of parking spaces.
 
    The practice of parking POVs at no cost in leased parking facilities
 was terminated by Respondents during the period between March, 1980 and
 March, 1981 in response to OMB Circular A-118 and GSA Federal Property
 Management Regulations (FPMR), Temporary Regulation D-65.  Prior to
 implementing and collecting monthly parking fees from the compliance
 officers, Respondent OSHA sought in 1980 to exempt compliance officers
 from the OMB policy of charging fees to federal employees who parked
 POVs on federally leased or owned premises.  Respondent OSHA also sought
 to continue its practice of furnishing convenient cost-free parking on
 the basis that compliance officers " . . . are required to carry between
 $1100 and $5400 worth of equipment in their (privately owned) vehicles
 in order to respond to an emergency inspection with as little waste of
 time as possible, and to permit the (compliance officers) to park in a
 controlled lot for security reasons . . . " These monthly parking fees
 were collected directly from compliance officers until around March,
 1981, at which time they were refunded and the practice and policy of
 providing at no cost to compliance officers government-leased facilities
 in which to park their POVs was reinstituted.
 
    As a result of the termination of the POV parking practice compliance
 officers are now required to pay $15 per month in Wichita and about $20
 per month in Kansas City for commercial parking of POVs when used for
 official travel.  They also were not reimbursed by management for the
 cost of such parking when traveling in the field on inspections.  At
 most, a compliance officer could only seek reimbursement for additional
 expenses attributable to leaving and returning to (in-and-out) the
 office during the day on official business.  Although a compliance
 officer who tries to rent parking space by the day does not suffer the
 loss of the monthly rental when traveling in the field for extended
 periods of time, he or she does not have a reserved parking space
 available, as before, upon return from an in-and-out field trip.
 
    The 1983 termination of the practice of assigning GSA vehicles to
 compliance officers on an individual basis and the implementation of a
 pooling procedure also effectively ended the compliance officers'
 practice of storing all of their work equipment in their individually
 assigned GSA vehicles.  Under the newly implemented procedures,
 personally accountable work equipment could not be stored in a pooled
 vehicle since several employees are required to use the same vehicle and
 each has his or her own equipment to transport.  The result of the
 change is that, compliance officers now must spend 1 to 2 hours loading
 and unloading extensive amounts of equipment to and from the pooled GSA
 vehicles for each field trip or in town inspection.  The change in
 practice seemingly reduces employee productivity, increases the risk of
 personal injury and property damage, adversely affects the scheduling of
 investigations, and adds to the delay in responding to an imminent
 danger.  In the Wichita Area Office, the pooled GSA cars were located
 several blocks from the office in what was described as an undesirable
 area without providing for the health and safety of its female
 compliance officers early in the morning or late in the afternoon.
 
    B.  Alleged Unilateral Changes
 
    On March 25, 1983, Mr. Jackson received two memoranda dated March 18,
 1983, signed by Regional Administrators, Dillon and Clark, respectively.
  The Clark memorandum which was directed to Respondent OSHA's Personnel
 Officer, Douglas E. Wischropp, requested that the Union be notified,
 pursuant to the parties' agreement concerning mid-term changes in
 conditions of employment, practices and procedures, that all GSA
 government-owned vehicles GOVs assigned to OSHA offices were to be
 pooled, that privately-owned vehicles POVs would not be allowed to
 occupy GOV parking spaces when in use, and that parking space leases
 based on former GOV totals be renegotiated.  Regional Administrator
 Dillon, the spokesman for Respondent Kansas City for collective
 bargaining purposes, transmitted Clark's memorandum to Mr. Jackson with
 a statement that Clark's memorandum was for information only and that
 the matter of GSA car usage was not negotiable as to substance, impact,
 and/or implementation.  While Clark may have recognized the possibility
 of a mid-term bargaining obligation, clearly management had no intention
 of negotiating with the Union.
 
    The Union requested negotiations on the changes in practices and
 procedures as described in Clark's memorandum, and rejected Dillon's
 opinion that these matters were not negotiable on April 11, 1983.
 Management did not reject the Union's bargaining demand as untimely.
 
    Thereafter, on April 25, 1984, Mr. Jackson met with Clarence (Bud)
 Schwein, Respondent Kansas City's labor relations officer, who works
 directly for Regional Administrators Dillon, Clark and for Bill Tucker,
 Respondent OSHA's Management Officer.  Mr. Jackson was informed by
 management that it felt the changes in practice concerning the
 procedures for assigning and using GSA cars could be imposed without
 negotiations because of a split in decisions of Administrative Law
 Judges of the Federal Labor Relations Authority and that the cases were
 still unresolved before the Authority.  /6/ During this same discussion,
 management indicated that it felt that some aspects of the POV parking
 issue were indeed negotiable and could be addressed at the next
 quarterly labor-management relations (LMR) meeting with Regional
 Administrators Dillon and Clark which was scheduled to take place on May
 25.
 
    The Union, in anticipation of negotiations on some of these matters
 at the June 9 quarterly LMR meetings repeated its bargaining demands,
 submitted advance agenda proposals calling for the negotiation of
 Regional Administrator Clark's changes in past practices concerning POV
 parking and the polling of GSA cars and prepared bargaining proposals.
 However, at the general June LMR meeting between Jackson and the
 Regional Administrators, Jackson was informed that management considered
 the past practice concerning POV parking to be illegal and therefore it
 would not negotiate over the termination of that practice in any manner
 whatsoever.  The Union continued to insist upon bargaining over the
 changes in the practices and procedures concerning the assignment of GSA
 cars and the parking of POVs.
 
    At the June 10 LMR meeting between Jackson and Clark, while
 discussing the procedures management intended to use to pool GSA cars,
 Schwein commented to Jackson that Respondent DOL felt that in some
 aspects the change in parking practices were negotiable and as to those
 aspects Respondent would after identifying those items negotiate.
 
    Around May 30, 1983, Respondent Kansas City's, St. Louis Area Office
 informed all compliance officers who are then using individually
 assigned GSA vehicles that they must decide within 15 minutes whether to
 begin using GOVs from a motor pool or pooling arrangement, or begin
 using their own POVs for government-related business.  Four compliance
 officers decided to use a GSA pool car.  Management then instructed all
 those employees to whom a GSA vehicle was assigned individually to
 remove their equipment and belongings from their vehicles.  All but 3
 GOVs which were to be used by employees in the St. Louis Area Office on
 a pool basis were then surrendered to GSA.  Implementation of new
 procedures concerning the practice of assigning GSA vehicles to
 compliance officers in the St. Louis Area Office on an individual basis
 became effective on June 1, 1983.  St. Louis Area Office employees,
 however, continued to park their POVs at no charge.
 
    Between June 10, 1983, and the next quarterly LMR meetings on August
 18 and 31, the Union renewed its bargaining demands and submitted
 proposals concerning the changes in practices which Respondent Kansas
 City intended to implement.  Management however, did not respond to
 these proposals, and during the August 18 LMR meeting Regional
 Administrator Dillon refused to negotiate on these matters because of
 Clark's absence.  At this meeting the Union proposed that the parties
 agree that there would be no changes implemented concerning POV parking
 practices until negotiations had been completed.  Regional Administrator
 Dillon laughed at this proposal, said it was in a wrong format, and
 refused to negotiate on it.  Subsequently, on August 22 the Union
 renewed its bargaining requests and asked Dillon to clarify management's
 position that some aspects of changes in the POV parking practices would
 be negotiable.  On August 31, 1983, Jackson met with Regional
 Administrator Clark for the OSHA LMR quarterly meeting.  At that meeting
 management noted that the pooling of GSA cars had been completed in the
 St. Louis Area Office and that plans for similar changes at the Kansas
 City and Wichita Area Offices were already in progress.  There were no
 negotiations over the change in the pooling of GSA cars or in the
 planned changes concerning POV parking practices.
 
    Kansas City Area Office compliance officers were informed on August
 31 at a staff meeting that GSA car pooling would be implemented and all
 parking facility access cards were to be turned in by the next day
 September 1.  The changes however, were not implemented by management
 until October 3, 1983, at which time employees also no longer were
 permitted to park their POVs at no charge on the leased premises.
 Kansas City Area Office employees were required to turn in their
 individually assigned GSA cars, and to begin using 2 or 3 GSA cars in a
 pooled arrangement.
 
    Sometime later, on October 28, 1983, Regional Administrator Dillon
 responded to the Union's proposals of August.  In that response, inter
 alia Respondent Kansas City stated that the leasing of or reimbursement
 for parking spaces for employee POVs at the Kansas City and Wichita Area
 Offices was not a condition of employment subject to negotiation, and
 that the termination of leased parking spaces used by compliance
 officers was not subject to bargaining since the Union, "in having
 agreed to the contents of Article 17, has unequivocally and completely
 waived its rights to negotiate at mid-term on all GSA car matters."
 Respondent's conceded, at the hearing that there "is no article that
 specifically governs the practice of parking personal vehicles on
 government property."
 
    On October 31, 1983, employees in the Wichita Area Office were told
 that the number of GSA vehicles then individually assigned to compliance
 officers, would be reduced from 4 to 2 and would be pooled at a garage
 located 8 blocks from the office, and that the practice of providing
 parking for employees' POVs would terminate as of November 1, 1983.
 These changes were implemented in Wichita on November 1, 1983, prior to
 bargaining with the Union.
 
    In December, 1983, the scheduled November LMR took place.  Then the
 Union submitted another proposal concerning changes in the POV parking
 practices.  Management subsequently determined once again that the
 impact and implementation of the changes concerning POV parking was
 negotiable.  Management subsequently informed the Union that it would
 negotiate such limited matters on the impact and implementation of POV
 parking at the November LMR quarterly meeting.  However, management did
 not negotiate the matter at the December meeting as proposed.
 
    Sometime around January 5, 1984, Respondent Kansas City provided the
 Union with a counter-proposal concerning the parking of employee's POVs.
  Despite these post-implementation overtures, management refused to
 bargain, upon request, prior to the change in and implementation of
 practices concerning the assignment and pooling of GSA cars or the
 parking of employees' POVs on leased facilities.
 
    C. Respondent's View of the Bargaining History of the 1978 Contract.
 
    Respondents declare that between July, 1977 and May, 1978, the Union
 expressly and unequivocally waived all rights to negotiate over the
 substance, impact, or implementation of the several changes implemented
 herein.  Specifically, Robert Hastings, Director of Labor-Management
 Relations since June 1977, expressed his belief that the provisions of
 what are now Articles 2, 17, and 41 of the current collective bargaining
 agreement constitute an express contractual waiver by the Union on the
 premise that Article 17 specifically addresses the practices, policies,
 and employment conditions changed by management and that Article 2 was
 intended to end all unwritten past practices which predated the 1978
 contract.  Further, Hastings stated that in 1978 the Union acceded to
 management's insistence in Article 17, Section 1 that employees "may,"
 rather than "will," be assigned GSA vehicles for official travel.
 
    Mr. Hastings testified that management considered the decision
 whether to use government vehicles for official travel to be part of the
 technology of performing work, that it was management's option to
 determine whether employees used a GOV or public transportation, that
 management would not negotiate over a significant budgetary such as
 involved here and that management would not give up any authority in
 this matter.  Mr. Hastings stated that by agreeing to Article 17,
 Section 1, the Union waived any right to bargain again with regard to
 the subject of GSA cars.  Although acknowledging that he was not aware
 of those practices and policies concerning GSA vehicle usage which had
 developed during the term of the contract in the Respondent Kansas City
 region, he stated that Respondent OSHA should have been aware.  However,
 Hastings stated that he believed that Articles 2 and 17 also waived the
 Union's right to bargain over the substance, impact and implementation
 of any change by management in the assignment of GSA vehicles.
 
    Although Hastings eagerly described his recollection of DOL's intent,
 stance, interpretation, belief, and thrust concerning the negotiations
 and Articles 2, 17, and 41, he also acknowledged that he could not
 provide the Administrative Law Judge with a detailed discussion or
 detailed quote of what actually had been discussed in 1978 during
 negotiations, that he had no contemporaneously written memoranda of
 those negotiations, and that he has never exchanged with the Union the
 few personal notes he made of those negotiations.  Moreover, Mr.
 Hastings admitted that during negotiations the Union steadfastly
 insisted that management must negotiate during the term of the contract
 in advance of " . . . any proposed change in conditions of employment,
 in personnel policies and practices that was not mandated by a change in
 law . . . " Mr. Hastings also testified that there is no provision in
 the parties' contract which specifically governs the procedures and
 practices concerning the parking of POVs on government property.
 
    D.  Contract Articles
 
    The collective bargaining agreement in Article 2, Sections (1), (5),
 and (6) provides as follows:
 
          Section 1-- Precedence of Laws and Regulations
 
          Section 1 - Precedence of Laws and Regulations
 
          In the administration of all matters covered by this Agreement,
       officials and employees are governed by existing or future laws
       and regulations of appropriate authorities including policies set
       forth in the Federal Personnel Manual;  by published
       Department/Agency policies and regulations in existence at the
       time this Agreement was approved;  and by subsequently published
       Department/Agency policies and regulations required by law or by
       the regulations of appropriate authorities.
 
          Section 5-- Management Proposals for Change During the Term of
       the Agreement
 
          (A) Management agrees to transmit to the NCFLL proposed changes
       relating to personnel policies, practices, and matters affecting
       working conditions of bargaining unit employees, or which impact
       on them, proposed during the terms of this Agreement and not
       covered by this Agreement, as far in advance as possible.
 
          (B) Upon receipt of such a proposed change from Management, the
       NCFLL may, within 15 working days, request negotiations concerning
       the proposed change.
 
          (C) Upon timely request from the NCFLL, the parties shall meet
       and confer within 30 calendar days concerning any negotiable
       aspects of the proposed change and/or its impact on bargaining
       unit employees.
 
          (D) Any changes of regulations or amendments to this Agreement
       which are negotiated and agreed to pursuant to this Section will
       be duly executed by the parties and will become an integral part
       of this Agreement and subject to all of the terms and conditions
       of this Agreement.
 
          Section 6-- Past Practices
 
          It is agreed and understood that any prior benefits and
       practices and understandings which have been reduced to writing
       and were mutually acceptable to the parties and which are not
       specifically covered by the Agreement or in conflict with it since
       the granting of exclusive recognition shall not be changed unless
       mutually agreed to by the parties.
 
          Article 17 provides, in part that:
 
          GSA VEHICLES OR LEASED VEHICLES
 
          Section 1-- Assignment of GSA Vehicles or Leased Vehicles
 
          (A) Employees may be assigned GSA vehicles or leased vehicles
       in accordance with GSA usage objectives which for passenger
       carrying vehicles is a minimum of 3,000 miles per quarter or
       12,000 miles per year.
 
          (B) GSA or leased vehicles may be made available by the
       supervisor to those employees who do not wish to drive their POV
       and are required to travel on official business on a daily or
       almost daily basis and/or there is no public transportation
       available, or when an employee is required to carry heavy and/or
       bulky equipment for the performance of his/her job.
 
          (C) It is agreed and understood that no employee shall be
       required to provide a privately owned vehicle for use on
       Department business or to maintain a privately owned vehicle as a
       condition of employment.
 
          Section 2-- Use of GSA Vehicles
 
          In accordance with GSA requirements that Government-owned or
       leased vehicles be used only for official purposes, vehicles
       assigned to employees on either a specific trip or regular basis
       may be parked at or near the employee's residence during non-duty
       hours only if the employee is required by his/her supervisor to
       travel to a temporary duty post in the morning or return home at
       night without first reporting to his/her duty station, and/or
       supervisor has determined that it is more advantageous to the
       Government to do so.  In such event the supervisor will give the
       employee prior written approval to park the Government-owned or
       leased vehicle at or near his/her residence during non-duty hours.
 
          Section 3-- Unsafe Vehicles
 
          Any GSA vehicle or leased vehicle which is reported to be
       unsafe by the operator shall be returned immediately to GSA or the
       leasing company (or such facility contacted for instructions) for
       repair or replacement.  If the vehicle cannot be repaired or
       replaced, the employee will, as soon as practicable (within an
       hour if possible), provide the supervisor with an estimate of the
       situation and obtain appropriate instructions.
 
          Article 41 provides as follows:
 
          Section 1-- Authority of Master Agreement
 
          The Department and the NCFLL agree that this Agreement is a
       master Agreement and that any supplemental agreements shall not
       delete, modify, or otherwise nullify any provision, policy, or
       procedure in this Agreement;  nor shall any provision in a
       supplemental agreement be in conflict with or duplicate any
       provision of this Agreement, statute or regulation of the
       Department or higher authority.  All supplemental agreements shall
       be a part of and subject to the terms and control of this
       Agreement and shall simultaneously terminate with this Agreement.
 
          Section 2-- Appropriate Matters for Local Negotiation
 
          Matters appropriate for negotiations at the local union level
       are those within the scope of bargaining under the Executive Order
       and within the authority of a regional agency head.  These matters
       do not include subject matter such as:
 
          (A) Subject matter already contained in this Agreement;
 
          (B) Interpretation and application of this Agreement;  or,
 
          (C) Subject matter that has been the subject of bargaining at
       the national level.
 
          Section 3-- Resolution of Local Negotiation Disputes
 
          Disputes between the local parties over whether agreement
       proposals or counterproposals are subject to local union
       negotiations will be referred to the Office of Labor-Management
       Relations and the NCFLL Executive Committee.  When a dispute has
       been submitted to OLMR and the NCFLL, local level negotiations
       will be suspended on the issue pending final determination of the
       dispute.  If the OLMR and NCFLL cannot resolve the dispute, either
       party may submit the matter to the Federal Labor Relations Council
       in accordance with its rules and regulations.
 
                         Analysis and Conclusions
 
    Respondents maintain that they had no duty to conduct bargaining over
 the substance and impact and implementation of the assignment of GSA
 cars since their actions did not unilaterally change any conditions of
 employment;  the collective bargaining agreement contains a clear and
 express waiver by the Union of any right to negotiate concerning the
 impact and implementation of any changes in assignment of GSA cars;
 and, there is no clear and patent breach of the contract.  Respondents
 further assert that they had no duty to bargain over the substance of
 the termination of the leasing of privately-owned parking spaces.
 Finally, Respondents contend that the Union waived its right to bargain
 over impact and implementation of the termination of leased parking
 spaces.
 
    The General Counsel argues that the decision to terminate and change
 the practice and policies concerning the individual assignment of
 government cars to compliance officers and the use of government-leased
 space to park employees privately-owned vehicles is negotiable as to
 substance, impact and implementation.  Further, the General Counsel
 maintains that Respondents' failure to bargain in good faith concerning
 the substance, impact and implementation of the decision to change the
 practices concerning the individual assignment of GSA cars to compliance
 officers and the use of pre-paid government-leased space to park
 employees' privately-owned vehicles violated the Statute.  The General
 Counsel also contends that the Union did not clearly and unmistakably
 waive its statutory right to bargain over the substance, impact and
 implementation of the changes in practices concerning the individual
 assignment of government vehicles and the parking of employees'
 privately-owned vehicles on pre-paid government-leased space.  Moreover,
 the General Counsel asserts that Respondents' failure to bargain in good
 faith prior to implementing the changes involving conditions of
 employment was not justified by any meritorious defense, federal law or
 government-wide rule or regulation.
 
    As already noted, the issues herein are almost identical to those
 decided by my colleagues, Judges Cappello and Chaitovitz.  /7/
 
    In the Chicago case, Judge Chaitovitz rejected Respondent's
 contention that it had no obligation to bargain because its new or
 changed policy with respect to the use of GSA cars was "consistent" with
 the collective bargaining agreement and Chapter 400 DLMS-7.  /8/ He
 found no waiver of the right to bargain over the impact and
 implementation of the change.
 
    Judge Chaitovitz also rejected Respondent's argument concerning "past
 practices" under Article 2 of the collective bargaining agreement.
 Further, he accepted the General Counsel's argument that Respondent's
 action constituted a "clear and patent breach" since in his view the
 change was "far reaching" and by its nature undermined the basic
 collective bargaining relationship established by the Statute.
 
    To the contrary, Judge Cappello concluded that the 1978 contract
 reserved to management complete discretion as to the assignment of
 vehicles to employees who needed to perform their duties, the decision
 here at issue, to terminate the assignments, did not constitute a
 bargainable change in working conditions.  Judge Cappello's view is that
 Article 2 constituted a clear and unmistakable waiver by the Union of
 its bargaining rights over the matter of car assignments, including the
 institution of pooling in lieu of the individual assignment of GSA cars.
  Judge Cappello's further view was that Article 2 of the 1978 agreement
 allowed (by agreement of the parties) past practices, not relevant to
 writing, and specifically covered by the Agreement, to be changed
 without mutual agreement of the parties.
 
    Since the contractual provisions involved are almost identical and
 since my colleagues differed substantially, I am placed in the
 unfortunate position of disagreeing with one of them.
 
    Articles 2 and 17 are contended to constitute a clear and express
 waiver by the Union of any right to negotiate concerning the impact and
 implementation of any changes in the assignment of GSA vehicles.  The
 multitude of cases dealing with waivers in the Federal Sector indicate
 that for a waiver of a statutory right to exist, there must be clear and
 unmistakable conduct evidencing an intent to waive a right to negotiate.
  See Department of the Air Force, U.S. Air Force Academy, 6 FLRA 548
 (1981);  Department of the Air Force, Scott Air Force Base, Illinois, 5
 FLRA 9 (1981).  The waiver of a statutory right will not be inferred,
 but must have been consciously yielded.  Social Security Administration,
 Mid-America Service Center, Kansas City, Missouri, 9 FLRA 229 (1982);
 Library of Congress, 9 FLRA 421, 423 (1982).  Also, it has been held
 that the waiver of a statutory right exists only when specific contract
 language limits the right of the union.  Department of the Army,
 Portsmouth Naval Shipyard, 4 FLRA 619 (1980);  Nuclear Regulatory
 Commission, 8 FLRA 715 (1982).
 
    Respondents' assertion of a bargaining waiver is based on its
 understanding of those articles as related by testimony of the Director
 of Labor-Management Relations, Mr. Hastings.  Considering that
 testimony, it is still my view that neither of those articles expressly
 waived any rights which the Union has under the Statute.  Furthermore,
 Mr. Hastings and labor relations officer Schwein admitted that nothing
 in the contract specifically pertained to the practice of parking POVs
 on government-leased space, and that management was obligated to bargain
 over the changes in the parking practices.  In the absence of a
 self-evident waiver in the contract, it is necessary to evaluate prior
 negotiations to determine whether the Union consciously yielded or
 clearly and unmistakably waived its interest in the matter.  See, The
 Bunker Hill Company, 208 NLRB No. 17, 208 NLRB 27, 33 (1973).  It must
 be noted in this instance that the negotiations over the 1978 contract,
 which remains in effect even today, occurred prior to the passage of the
 Statute.  It is dubitable, in my opinion, that a party could clearly and
 expressly waive a statutory right which did not exist at the time of
 negotiations.  Compare, Nuclear Regulatory Commission, supra, 8 FLRA 715
 (1982).
 
    Regarding the content of Articles 2 and 17, relied on by Respondent
 to establish a waiver, Mr. Hastings testified that he did not recall
 specific statements by the Union negotiators and had no memoranda
 contemporaneously prepared during negotiations which document a clear
 and unmistakable waiver by the Union.  Thus, Mr. Hastings testified only
 as to management's intent, stance, belief and interpretation concerning
 those negotiations.  Even his testimony suggests that the Union
 adamantly insisted that management bargain prior to implementing any
 changes in practices, personnel policies, or conditions of employment,
 during the term of the contract.  He therefore, stated that management
 had to compromise in Article 2, Section 6 on its insistence that all
 past practices existing prior to the contract be terminated.  Whether
 the instant practices existed prior to the contract is not controlling,
 for the record clearly demonstrates that Respondent OSHA initiated and
 continued the practices during the term of the contract.  Even if
 pre-existing practices had expired with the 1978 contract, it is clear
 that the practices terminated in 1983 arose during and pursuant to the
 contract.
 
    Similarly, it is doubtful that the Union would waive its right to
 negotiate whether Respondents "will," as opposed to "may," use GSA cars
 in the accomplishment of its mission.  As Mr. Hastings emphasized, the
 decision of whether to use GSA cars as part of the technology in
 performing work, in the absence of an established practice, is a
 discretionary management right.  This emphasis on the use of the term
 "may," in Article 17, Section 1(A) and (B), to establish a waiver of the
 Union's right to negotiate, is misplaced.  If the decision to use GSA
 cars concerns the technology of performing work, then under Section
 7106(b)(1) the prerogative to negotiate that decision does not belong to
 the Union.  However, once Respondent Kansas City elected to use GSA cars
 and to permit the practice of individually assigning such cars to
 compliance officers, it becomes the Union's right to negotiate any
 changes in that practice.  Finally, once Respondent Kansas City decided
 to provide pre-paid parking for the POVs used by compliance officers for
 official travel, it also became the Union's obligation to negotiate any
 changes in that condition of employment.  Department of Housing and
 Urban Development, 9 FLRA 136 (1982);  U.S. Marshals Service, supra, 12
 FLRA 650.
 
    I, therefore, agree with Judge Chaitovitz that the Union has nowhere
 stated that it gives up or waives its statutory right to bargain over
 the impact and implementation of the subject change.  Since a waiver of
 any statutory right must be clear and unmistakable there is no waiver
 here.  Furthermore, even if the contract could be construed as a waiver
 of whatever right the Union might have had concerning the decision to
 change the assignment of GSA cars and leased space for POVs, it did not
 waive its right to bargain concerning the impact and implementation of
 any such decision to change the use of GSA vehicles or leased parking.
 The interpretation relied on by Respondent would make Article 2, Section
 5 of the collective bargaining agreement dealing with changes in working
 conditions, totally meaningless.  In sum, I conclude that the bargaining
 history as related by Mr. Hastings is unpersuasive to establish a clear
 and unmistakable waiver.
 
    Accordingly, it is concluded that no credible basis exists to find
 that the Union clearly, expressly and unmistakably waived its right to
 negotiate over the substance, impact and implementation of the changes
 in conditions of employment which Respondent Kansas City unilaterally
 implemented.
 
    Also, in agreement with Judge Chaitovitz, I reject Respondent's
 argument that Article 2, Section 6 of the contract, entitled "Past
 Practices", the practices of assigning cars to individual employees and
 leasing spaces was not a past practice because it was not in writing.
 As Judge Chaitovitz notes:
 
          ". . . this position rests on a misinterpretation and
       misapplication of the clear language of the contract and a further
       erroneous assumption that because AFGE and Respondent used the
       term "past practice" in the contract, that phrase has the same
       meaning when used by the FLRA in interpreting the Statute.
       Article 2 Section 6 of the contract merely provides that if the
       parties have any local or side agreements, that are not in
       conflict with the National Agreement, the side and local
       agreements remain in full force and effect unless the parties
       mutually agree to a change or modification.  Article 2 Section 6
       of contract does not attempt to deal with existing working
       conditions that have not been reduced to writing and incorporated
       into a written agreement.  Such existing working conditions are
       not subject to Article 2 Section 6 of the contract and accordingly
       are governed by the Statute, as interpreted by the FLRA, and by
       Article 2 Section 5 of the Contract."
 
    The General Counsel maintains that two distinct but related practices
 existed within Respondent OSHA from 1977 to 1983.  They were, of course:
  (a) using and individually assigning GSA vehicles to compliance
 officers and (b) parking of government leased space at no cost to those
 POVs used by compliance officers to perform official business.  In order
 for a past practice to mature into a condition of employment, it must be
 consistently exercised for an extended period of time with the knowledge
 and acquiescence or approval of management.  Social Security
 Administration, Mid-America Program Service Center, Kansas City,
 Missouri, 9 FLRA 229 (1982);  U.S. Nuclear Regulatory Commission, 6 FLRA
 18 (1981).  The General Counsel asserts that the two practices here did
 mature into conditions of employment, which, as a rule, cannot be
 changed by management absent agreement or impasse following good faith
 bargaining.  U.S. Air Force, AFLC, Wright-Patterson AFB, Ohio, 5 FLRA
 288 (1981);  Office of Program Operations, Field Operations, Social
 Security Administration, San Francisco Region, 9 FLRA 73 (1982).
 
    With regard to the practice involving parking of POVs on
 government-leased space, there is precedential authority to conclude
 that established pre-paid privileges are clearly working conditions
 which may not be changed unilaterally.  National Treasury Employees
 Union, Chapter 6, and Internal Revenue Service, New Orleans District, 3
 FLRA 747 (1980);  General Services Administration, Region 3, Public
 Buildings Service, Center Support Field Office, A/SLMR No. 583, 5 A/SLMR
 706 (1975).  Therefore, an agency must negotiate prior to exercising its
 discretion under Federal Property Management Regulations whether to
 relinquish parking space or to retain it, especially where employees use
 POVs and need to have POVs available for use in performing official
 duties.  See, Internal Revenue Service, 3 FLRA 747;  U.S. Marshals
 Service, 12 FLRA 650 (1983).  Also, management may not change employment
 conditions so as to implement paid parking without bargaining with the
 Union.  Department of Housing and Urban Development, 9 FLRA 136 (1982);
 General Services Administration, Region 7, 10 FLRA 649 (1982);
 Department of Transportation, Federal Aviation Administration, Dulles
 International Airport, A/SLMR No. 1062, 8 A/SLMR 674 (1978).
 
    Concerning the practice of individually assigning GSA vehicles to
 compliance officers, the General Counsel does not contend that an agency
 must necessarily negotiate over the means and technology of accompanying
 its mission.  This is particularly so where the use of agency facilities
 or equipment by employees has not become a condition of employment and
 the agency chooses not to transform such a privilege into a right by
 negotiating over its discretion in this regard.  Department of the
 Treasury, Internal Revenue Service, Cleveland, Ohio, 3 FLRA 655 (1980);
 Nuclear Regulatory Commission, 6 FLRA 18 (1981).
 
    The testimony of Mr. Hastings concerning Article 17 revealed
 management's perception that the decision of whether GSA vehicles are to
 be used in conducting official business as a discretionary one
 concerning the technology of accomplishing the agency's mission.  Those
 negotiations over this article demonstrates that the parties considered
 the use of GSA or other vehicles by bargaining unit employees for
 official travel to be a negotiable matter.
 
    While Article 17, Section 1 retained the agency's discretion to
 determine whether GSA vehicles would be used by employees for official
 travel, that provision is moot for the purposes of this case because
 Respondent Kansas City has already exercised that discretion and has
 decided that GSA vehicles would be used by employees for official
 travel.  That discretion was exercised knowingly during the term of the
 parties' collective bargaining agreement for an extended period and a
 distinct and uniform practice developed over a period of 5 years
 pursuant to Article 17, Section 1.  Respondent Kansas City did not
 decide to change the technology of performing work, i.e. to no longer
 use GSA cars, but merely changed the practice and procedure concerning
 the way the GSA cars would be assigned.  These procedures concerning use
 of a permanently assigned GSA car are negotiable.  American Federation
 of Government Employees, Local 2272 and Department of Justice, U.S.
 Marshals Service, District of Columbia, 9 FLRA 1004, 1017, 1018 (1982).
 
    In order to change practices and procedures which have matured into a
 condition of employment, management must bargain over substance, as well
 as impact and implementation, to the extent not inconsistent with
 government-wide regulations or law.  This applies equally to changes in
 the practices of assigning GSA cars, using POVs for official travel, and
 providing pre-paid parking to compliance officers who use their POVs for
 official travel.  Veterans Administration Central Office, Veterans
 Administration Medical Center, Long Beach, 9 FLRA 326 (1982);  U.S.
 Department of Justice, Immigration and Naturalization Service, 9 FLRA
 253, 257 (1982);  American Federation of Government Employees, AFL-CIO,
 Local 2151 and General Services Administration, National Capital Region,
 Washington, D.C., 7 FLRA 535 (1981);  General Services Administration, 6
 FLRA 430 (1981).
 
    On March 25, 1983, Respondent Kansas City informed the Union that it
 intended to implement changes regarding the GSA vehicles and noted that
 the changes were non-negotiable with regard to substance, impact and
 implementation.  This action clearly manifested an intention not to
 bargain over the matter.  Nonetheless, the Union initiated bargaining
 demands on April 11, 1983, and persisted in those demands even beyond
 the implementation of the changes.  The matter was discussed with the
 Union at quarterly LMR meetings where the Union revealed its concern
 over the changes.  Respondents' affirmatively declining to negotiate
 does not satisfy its obligation to bargain.  Library of Congress, 9 FLRA
 427 (1982).  Management unilaterally implemented these changes in
 practice prior to negotiating to impasse or agreement or pursuing
 negotiability determinations as required by the Statute.  See, U.S. Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA
 288 (1981);  Social Security Administration, supra, 9 FLRA 73 (1982).
 Management simply refused to bargain, and consequently violated Section
 7116(a)(1) and (5) of the Statute by unilaterally relinquishing pre-paid
 parking spaces used by compliance officers and terminating the practice
 of individually assigning GSA cars to compliance officers.  U.S.
 Marshals Service, supra, 12 FLRA 650;  U.S. Department of Justice,
 Immigration and Naturalization Service, supra, 9 FLRA at 292.
 
    The past practice regarding the assignment and utilization of GSA
 vehicles of unit employees was thus substantially changed.  Absent any
 privilege, Respondents would be required to notify the Union concerning
 the anticipated change and, upon request, to bargain with the Union
 concerning the decision, its impact and its implementation.  cf.
 Department of the Treasury, Internal Revenue Service, Jacksonville
 District, 3 FLRA 631 (1980);  Internal Revenue Service and Brookhaven
 Service Center, 4 FLRA 185 (1980).
 
    I also reject Respondents' argument that there is no clear and patent
 breach of the agreement herein.  That question was also before Judge
 Chaitovitz who resolved it in the following manner:
 
          "OSHA's refusal to bargain with AFGE concerning the impact of
       such an important and far reaching change as the assignment of GSA
       cars was such a clear and patent breach of the collective
       bargaining agreement that, by its nature, it undermined the basic
       collective bargaining relationship established by the Statute."
 
    Normally a mere allegation of breach of contract is not an unfair
 labor practice and the parties must resort to the procedures provided
 for contract interpretation and enforcement.  cf. Iowa National Guard
 and National Guard Bureau, 8 FLRA 500 (1982).  Here I view the breach,
 in refusing to negotiate particularly on impact and implementation, as
 basically undermining the collective bargaining relationship between the
 parties and as such clear and patent.  Accordingly, Respondents' refusal
 to bargain was violative of section 7116(a)(1) and (5) of the Statute.
 
    Finally, I agree with the General Counsel with regard to the POVs,
 that Respondents' contention that this practice was illegal and it lacks
 authority to independently lease space for the purpose of providing
 community parking lacks merit.  Respondent offered no evidence to
 establish the illegality nor did it show any federal law or
 government-wide regulation which was inconsistent with the practice.
 Indeed the evidence demonstrates that it was not illegal for Respondent
 Kansas City to furnish cost-free government-leased space to compliance
 officers to park the POVs which they used for official travel.  See,
 American Federation of Government Employees, AFL-CIO v. Freeman, 510
 F.Supp. 596 (D.D.C. 1981);  U.S. Marshals Service, supra, 12 FLRA at
 650, Veterans Administration Central Office, 9 FLRA 326;  National
 Treasury Employees Union, Chapter 6, supra, 3 FLRA at 748 (1980).
 
    OMB Circular A-118, which imposed parking fees in 1980 and ultimately
 was rescinded, recognized that federal agencies do furnish cost-free
 parking to employees.  That circular merely attempted to collect a
 parking fee for the purpose of reducing traffic congestion and air
 pollution.  Further, under 5 USC Section 5704, it is indeed legal for an
 agency to compensate an employee, who is authorized to use his POV on
 official business, for POV parking expenses incurred through a monthly
 parking lease.
 
    Decision of the Comptroller General, B-162021, 51 Comp.Gen. 79 (1979)
 cited by both the General Counsel and Respondent establishes that an
 agency may even compensate the employee for those weekends and holiday
 periods included within a parking lease at his agency's headquarters.
 Id.  Where an employee performs frequent official travel by POV and
 usually carries business related supplies and materials between the
 office and the car, the Comptroller General has noted that the use of
 free parking space located more remotely from the office would
 invariably entail a loss of productive time, the cost of which would
 exceed the cost of parking incurred at facilities near the office.  Id;
 Decisions of the Comptroller General, B-162021, 47 Comp.Gen. 219 (1967).
  None of these decisions bar Respondents from using the GSA leased
 parking.
 
                                  Remedy
 
    The General Counsel requests that Respondents be ordered, upon
 request, (a) to bargain and reach agreement with the Union concerning
 the substance, impact and implementation of the change in practice of
 individually assigning GSA cars to compliance officers and of providing
 government-leased parking for POVs used for official travel, (b) to make
 whole any employee for any loss incurred as a result of these changes
 during the period from June 1, 1983 until the date agreement is reached,
 (c) to make every effort to reacquire the parking spaces, including but
 not limited to requesting that the General Services Administration
 replace the parking spaces which had been used by compliance officers to
 park those POVs used for official travel, in the Wichita, Kansas and
 Kansas City, Missouri Area Offices, and which were relinquished to GSA
 during the period from July through November, 1983, without first
 bargaining in good faith with the Union.  I agree that in the total
 circumstances of this matter the remedy recommended by the General
 Counsel would be not only be meaningful but would fully address the
 violations found herein.  It is, therefore, recommended that such a
 remedy would be necessary in order to effectuate the purposes and
 policies of the Statute.
 
    Having found and concluded that Respondents violated sections
 7116(a)(1) and (5) of the Statute, I recommend that the Authority issue
 the following:  /9/
 
                                   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 Department of Labor,
 Washington, D.C. and Region VII, Occupational Safety and Health
 Administration, and Office of the Assistant Secretary for Administration
 and Management, Kansas City, Missouri, shall:
 
          1.  Cease and desist from:
 
          (a) Failing and refusing, upon request, to bargain with
       National Council of Field Labor Locals, American Federation of
       Government Employees, AFL-CIO the exclusive collective bargaining
       representative of its employees, concerning the impact and
       implementation of any change in the assignment of government-owned
       vehicles to employees.
 
          (b) Releasing parking spaces used by bargaining unit employees
       without first affording the National Council of Field Labor
       Locals, American Federation of Government Employees, AFL-CIO, the
       exclusive representative to our employees, the opportunity to
       bargain concerning such a decision.
 
          (c) In any like or related manner interfere with, restrain, or
       coerce any employee in the exercise of right assured by the
       Statute.
 
          2.  Take the following affirmative action in order to
       effectuate the purpose and policies by the Statute.
 
          (a) Upon request bargain and reach agreement with National
       Council of Field Labor Locals, American Federation of Government
       Employees, AFL-CIO concerning the impact of the change in the
       assignment of government-owned vehicles to employees instituted in
       March 1983 and, make whole any employee for any loss he might have
       incurred because of the change in assignment of government-owned
       cars for the period from March 18, 1983 until the date agreement
       is reached.
 
          (b) 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 Wichita, Kansas and Kansas
       City, Missouri OSHA Area Offices and which were relinquished to
       GSA in October and November 1983 without bargaining in good faith
       with the employees' exclusive representative concerning the
       decision to do so.
 
          (c) Upon request of the National Council of Field Labor Locals,
       American Federation of Government Employees, AFL-CIO bargain to
       the extent consonant with applicable regulations of the General
       Services Administration, concerning the reallocation of our
       parking spaces for use by unit employees.
 
          (d) Upon request, bargain and reach agreement with National
       Council of Field Labor Locals, American Federation of Government
       Employees, AFL-CIO, concerning the substance, impact and
       implementation of the termination of the individual assignment of
       government-owned vehicles to employees instituted in 1983, and
       make whole any employee for any loss he might have incurred
       because of the changes in the assignment of government-owned
       vehicles and in the availability of GSA parking for POVs for the
       period from that termination until the date agreement is reached.
 
          (e) Post at its facilities in Kansas City Missouri, St. Louis
       Missouri and Wichita Kansas 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 ensure that such notices are not altered,
       defaced, or covered by other material.
 
          (f) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region VII, in writing,
       within 30 days from the date of this Order, as to what steps are
       being taken to comply herewith.
 
                                       ELI NASH, JR.
                                       Administrative Law Judge
 
 Dated:  November 14, 1984
         Washington, D.C.
 
 
 
                                APPENDIX A
 
                          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
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT fail and refuse, upon request to bargain with National
 Council of Field Labor Locals, American Federation of Government
 Employees, AFL-CIO, the exclusive collective bargaining representative
 of our employees, concerning the substance, impact and implementation of
 the termination of the individual assignment of government-owned
 vehicles to employees.  WE WILL NOT release parking spaces used by unit
 employees without first affording the National Council of Field Labor
 Locals, American Federation of Government Employees, AFL-CIO, 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
 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 Wichita, Kansas and Kansas City, Missouri OSHA Area
 Offices and which were relinquished to GSA in October and November 1983,
 without bargaining in good faith with the employees' exclusive
 representative concerning the decision to do so.  WE WILL bargain, upon
 request of the National Council of Field Labor Locals, American
 Federation of Government Employees, AFL-CIO to the extent consonant with
 applicable regulations of the General Services Administration,
 concerning the reallocations of our parking spaces for use by unit
 employees.  WE WILL, upon request, bargain and reach agreement with
 National Council of Field Labor Locals, American Federation of
 Government Employees, AFL-CIO, concerning the substance, impact and
 implementation of the termination of the individual assignment of
 government-owned vehicles to employees instituted in 1983, and make
 whole any employee for any loss he might have incurred because of the
 changes in the assignment of government-owned vehicles and in the
 availability of GSA-leased parking for POVs for the period from that
 termination until the date agreement is reached.
                                       (Agency or Activity)
 
 Dated:  . . .  By:  (Signature) This Notice must remain posted for sixty
 (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 of
 the Federal Labor Relations Authority, Region VII, whose address is:
 1531 Stout Street, Suite 301, Denver, Colorado 80202 and whose telephone
 number is:  (303) 837-5224;  FTS:  327-5224.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Charging Party in Occupational Safety and Health
 Administration, supra, and the Charging Party here, are the same.  The
 Charging Party in Employment Standards Administration, supra, is Local
 898.  Both are affiliated with the American Federation of Government
 Employees, AFL-CIO.
 
 
    /2/ Accordingly, to the extent that the Judge herein concluded that
 the Respondent was obligated to bargain over the substance of the
 termination of individual vehicle assignments, such conclusion is not
 adopted.
 
 
    /3/ In so finding, the Authority rejects the Respondent's argument
 that the Union's bargaining request was untimely.
 
 
    /4/ The General Counsel's uncontested Motion for correction of the
 transcript is granted.
 
 
    /5/ Also monthly parking tags were issued to these employees.  The
 card functioned only in an in-out sequence and therefore remained with
 an assigned GSA car which might be parked overnight in the facility.  A
 card used by a compliance officer who did not elect to use a GSA vehicle
 for official travel would be kept by that compliance officer at all
 times.
 
 
    /6/ U.S. Department of Labor, Occupational Safety and Health
 Administration, Chicago, Illinois and National Council of Field Labor
 Locals, American Federation of Government Employees, AFL-CIO,
 OALJ-82-126, Case No. 5-CA-978 (ALJ Chaitovitz, August 31, 1982);  U.S.
 Department of Labor, Washington, D.C., and Employment Standards
 Administration, Region 8, Denver, Colorado, and American Federation of
 Government Employees, AFL-CIO, Local 898, OALJ-83-62, Case No. 7-CA-1109
 (ALJ Cappello, March 7, 1983).
 
 
    /7/ U.S. Department of Labor, Occupational Safety and Health
 Administration, Chicago, Illinois and National Council of Field Labor
 Locals, American Federation of Government Employees AFL-CIO,
 OALJ-82-126, Case No. 5-CA-978, supra;  U.S. Department of Labor,
 Washington, D.C., and Employment Standards Administration Region 8,
 Denver, Colorado, and American Federation of Government Employees,
 AFL-CIO, Local 898, OALJ-83-62, Case No. 7-CA-1109, supra.
 
 
    /8/ Chapter 400 of the Department of Labor Regulations (DLMS-7
 Chapter 400) had been in effect prior to the negotiations of the
 collective bargaining agreement between DOL and the Union.  DLMS-7
 Chapter 400 paragraphs 411 and 434(a) provide:
 
          411 Criteria for GSA Car Assignments.  Considering direct and
       indirect costs to the DOL, assignment of GSA cars to individual
       drivers is advantageous only when an average of more than 1,000
       miles per month of official travel can be anticipated.  Cars
       normally will not be assigned to employees unless this level of
       utilization can be anticipated.  Exceptions may be made for
       drivers who use cars for official business at least daily or
       almost daily, or when trips of more than 10 days are made by
       drivers who do not meet the 1,000 miles-per-month official travel
       requirement.  Vacations or other leave do not affect this
       determination nor will temporary details of work assignments
       terminate eligibility for the use of a GSA vehicle unless these
       exceed the period allowed or remaining on the current DL Form
       1-289.  Employees may be assigned a GSA car if their supervisors
       certify, and provide written justification, that a compelling
       official need overrides the 1,000-miles requirement, and an
       overall savings to the Government is clearly indicated.  DOL
       Agency Administrative Officers must approve or disapprove these
       exceptions for National Office employees, and Regional DOL Agency
       Heads must approve or disapprove these exceptions for field
       employees.  Copies of the justification for these exceptions will
       accompany the request to the organization acquiring the car (the
       RAMO in the field or the Division of Supply and Property
       Management, Office of Administrative Services, DAPS, OASAM, for
       the National Offices).
 
          434 Identification of Vehicles.  All vehicles are to be
       identified in accordance with GSA regulations, except unmarked
       vehicles used where identification would be contrary to the public
       interest.  Identification plates are furnished by the GSA.
 
          a.  Authorization for use of unmarked vehicles has been granted
       for inv