29:0250(25)NG NFFE, LOCAL 1943 VS NAVY, NAS, JACKSONVILLE



[ v29 p250 ]
29:0250(25)NG
The decision of the Authority follows:


29 FLRA NO. 25

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1943

     Union

     and

NAVAL AIR REWORK FACILITY, NAVAL
AIR STATION, JACKSONVILLE, FLORIDA

     Agency

Case No. 0-NG-1359

DECISION AND ORDER ON NEGOTIABILITY ISSUES 1

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of two proposals.

II. Procedural Background

In its Statement of Position, the Agency noted that changes were imminent in the Federal Property Management Regulations (FPMRs) concerning parking, and that the changes might affect the disposition of the Union's negotiability appeal. While the Union's Petition for Review was pending before the Authority, the FPMRs were revised. Based on the changes in the FPMRs, the Agency requested permission to file a Supplemental Statement of Position addressing the applicability of the new regulations to the Union's proposals. Thereafter, the Union filed a supplemental submission seeking to withdraw its petition for review as to all but two of its proposals and further explaining its position as to the remaining two proposals. Pursuant to section 2424.8 of the Authority's Rules and Regulations, we have considered the parties' supplemental submissions. We will not consider the portions of the Union's appeal which were withdrawn. 

III. Proposals

Proposal 1

Section 1(a)(3). Van Pools. A van Pool is defined as, a group of 8 to 15 persons using a van, specifically designed to carry passengers, for transportation to and from work in a single, daily round trip. This vehicle excludes automobiles, buses, or commercially operated van pools.

(4) Carpools with four or more occupants.

(5) Other carpools.

Proposal 2

Section 1(D). To facilitate enforcement of provisions hereinabove described, management agrees to furnish parking decals as follows:

(1) Those individuals entitled to reserve parking shall be issued yellow decals with each decal having a "unique" numerical or alphabetical code.

(2) Those individuals who are authorized to park in a reserve area shall be issued green decals with each decal having a "unique" numerical or alphabetical code.

A. Positions of the Parties

The Agency contends that these proposals are not negotiable because, to the extent that the priorities established by Proposals 1 and 2 apply to employees outside the bargaining unit, they involve a permissive subject of bargaining concerning which the Agency has elected not to bargain. The Union disputes the Agency's contentions and asserts that: (1) Proposal 1 is intended to apply only insofar as the regulations establish a priority for van and car pooling; and (2) Proposal 2 concerns only the issuance of decals and is intended to distinguish an employee entitled to a reserved parking space from an employee who is restricted to general parking on a "first-come, first-served" basis. 

B. Analysis and Conclusions

Under the Federal Property Management Regulations (FPMRs), parking spaces not required for official needs may be used for employee parking. 41 C.F.R. 101-20.104-2(a). The regulations state that space available for employee parking is to be allocated on an equitable basis. Id. at 101-20.104-2(c). The regulations establish priorities for the allocation and assignment of employee parking spaces. In particular, the regulations establish a priority for vanpools and carpools as a group, after spaces have been assigned to severely handicapped employees, executive personnel and persons who work unusual hours. Id. at 101-20.104-2(d). The Union's proposals further define the priorities for vanpools and carpools within that group. Proposal I gives vanpools priority over carpools with 4 or more occupants and gives carpools with 4 or more occupants priority over other carpools. Proposal 2 simply provides for the use of color-coded decals as a method of identifying which vehicles are entitled to reserved spaces and which vehicles must find parking as available.

The Agency does not contend that these proposals violate the FPMRs. The only issue is whether these proposals are outside the duty to bargain because they concern conditions of employment of nonunit employees.

In our view, these proposals would have only a limited and indirect effect on the conditions of employment of nonunit employees. The FPMRs require the Agency to assign parking to all employees in accordance with specific priorities. Thus, the Agency is able to provide parking spaces for nonunit employees only if those employees fall within the priority categories. Moreover, the regulations require that parking spaces be assigned equitably. These proposals do not grant or deny parking spaces to nonunit employees; they merely establish the general conditions under which parking spaces will be assigned to employees who apply and how those employees who are assigned spaces under the proposed priorities are to be identified. Therefore, these proposals do not directly determine nonunit employees' conditions of employment.

We find that Proposals 1 and 2 in this case are similar to Proposal 1 in Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 and Naval Underwater Systems Center, Newport, Rhode Island, 28 FLRA No. 54 (1987). In that case, we found that a proposal which was intended to govern the division of workspace between unit and nonunit employees had only a limited and indirect effect on the conditions of employment of nonunit employees. In particular, we found that while the proposal would limit the space into which nonunit employees could be assigned, it stopped short of determining their workspace assignments.

Proposals 1 and 2 in this case do not directly determine whether or not nonunit employees will be assigned parking spaces. It is not uncommon for collective bargaining proposals to have an effect on nonunit employees. However, not every effect is sufficient to remove a proposal from the duty to bargain. In a similar context, we have noted that some collective bargaining proposals may impose costs on an agency, but not every such cost, by itself, is sufficient to render otherwise negotiable proposals nonnegotiable. See, for example, Lexington - Blue Grass Army Depot, Lexington, Kentucky and American Federation of Government Employees, AFL - CIO, Local 894, 24 FLRA No. 6 (1986). In this case, negotiations over the priorities for the assignment of employee parking spaces to unit employees may indirectly affect nonunit employees' access to parking, but that indirect effect in our view is not sufficient to preclude bargaining. For the reasons set forth above, we find that Proposals 1 and 2 have only an indirect effect on nonunit employees' conditions of employment and therefore are within the Agency's duty to bargain under the Statute.

Furthermore, even assuming that Proposal 1 directly determines the conditions of employment of nonunit employees, we would find that the assignment of parking spaces does not concern a vital interest of those employees and therefore is within the duty to bargain. See American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 25 FLRA No. 82 (1987) (Member Frazier dissenting). In Department of Labor, we held that although proposals concerning the location of employee office space affected the conditions of employment of nonunit employees, they were nevertheless negotiable because they did not concern matters of vital interest to those employees. We distinguished the competitive area proposal in American Federation of Government Employees, Local 32, AFL - CIO and Office of Personnel Management, 22 FLRA No. 49 (1986), petition for review filed sub nom. American Federation of Government Employees Local 32 v. FLRA, No. 86-1447 (D.C. Cir. August 11, 1986), because that proposal concerned whether and in what position nonunit employees would be retained in the Federal service, a matter we found to concern those employees' vital interests. We find that access to employee parking spaces, like the location of employee offices, is not a matter which is a vital interest of nonunit employees as compared to whether they will be retained in the Federal service.

IV. Order

The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning Proposals 1 and 2. 2

Issued, Washington, D.C., September 30, 1987

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

Member Frazier, concurring in part and dissenting in part:

The proposals in this case concern employee parking. One of the proposals would establish priorities among van pools and carpools in the allocation of Agency parking space. The other proposal would require the Agency to issue color-coded parking decals.

I agree with my colleagues that the parking decal proposal is negotiable. As to the proposal establishing priorities for parking spaces, to the extent that the proposal would apply only to parking spaces for unit employees, I would find it negotiable. However, insofar as the proposal also establishes the criteria under which nonunit employees would compete for parking spaces, I find, contrary to the determination of the other Members, that the proposal is outside the Agency's duty to bargain.

The Union's parking priority proposal clearly has a direct effect on the working conditions of unit employees. The proposal establishes the substantive essentials of the system by which those employees will compete for Agency parking spaces. Under the Union's proposal, employees in van pools have priority over carpools of four persons or more, which in turn have priority over smaller carpools.

The Union's proposal has equal application to nonunit employees, and consequently has an equally direct effect on their working conditions. Such a proposal, "so intrinsically related to the working conditions of nonunit employees so as to directly determine and prescribe their conditions of employment," is not within an agency's duty to bargain. American Federation of Government Employees, Local 32, AFL - CIO and Office of Personnel Management, 22 FLRA No. 49, slip op. at 7 (1986). Compare U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local No. 3412, 24 FLRA No. 47 (1986), where the Authority determined that an arbitrator exceeded his authority in requiring the provision of acoustic screens for unit and nonunit employees without distinction.

Moreover, as to my colleagues' alternative rationale finding that the conditions under which employees compete for parking spaces does not concern a "vital interest" of those employees, application of such a vague concept is contrary to fundamental principles incorporated in the Statute. See American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 25 FLRA No. 82 (1987) (Member Frazier, dissenting). 

This case is distinguishable from Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 and Naval Underwater Systems Center, Newport, Rhode Island, 28 FLRA No. 54 (1987) (Proposal 1), on which my colleagues rely. Proposal 1 in that case determined the manner in which unit employees would bid for offices. Under the proposal, unit employees would compete for offices on the basis of grade and seniority. After this process was completed, the remaining office space would be allocated among nonunit personnel as the agency determined. Finding the proposal negotiable, the Authority held that while the proposal "would limit the space into which (nonunit personnel) could be assigned," "(i)t stops well short of actually determining their workspace assignments or prescribing the manner in which such assignments would be made." Id., slip op. at 3. In contrast to Naval Underwater Systems Center, the parking priority proposal in this case would "prescribe the manner" in which parking assignments would be made for nonunit employees.

For these reasons, I respectfully dissent from my colleagues' determination that the union's proposal establishing parking space priorities for unit and nonunit employees alike has only an indirect and limited affect on the conditions of employment of nonunit employees and is negotiable.

Issued, Washington, D.C., September