31:1088(88)CA - Navy, Naval Supply Center, San Diego, CA and AFGE Local 1399 -- 1988 FLRAdec CA
[ v31 p1088 ]
The decision of the Authority follows:
31 FLRA No. 88 DEPARTMENT OF THE NAVY UNITED STATES NAVAL SUPPLY CENTER SAN DIEGO, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1399, AFL-CIO Charging Party Case No. 8-CA-70084
I. Statement of the Case
This unfair labor practice case is before the Authority based on exceptions to the attached Administrative Law Judge's Decision filed by the Counsel for the General Counsel. The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (6) of the Federal Service Labor - Management Relations Statute (the Statute) by: (1) unilaterally converting 11 employee parking spaces to reserved parking while the matter was pending before the Federal Mediation and Conciliation Service (FMCS); (2) refusing to cooperate in impasse proceedings as required by section 7119 of the Statute; and (3) refusing to bargain in good faith with the American Federation of Government Employees, Local 1399, AFL - CIO (the Union) over the change.
The Judge found that nothing in the Statute or the parties' collective bargaining agreement prohibited the Agency from implementing the change while the dispute was pending before the FMCS. The Judge also found that even if the Statute imposed that prohibition, the Union had a reasonable opportunity to contact the FMCS prior to the implementation of the change and that it failed to invoke the services of the FMCS until after the change was implemented. He concluded that the Respondent had not violated section [PAGE] 7116(a)(1), (5) and (6) of the Statute and recommended that the complaint be dismissed.
For the reasons stated below, we find that the Respondent did not commit the unfair labor practices alleged in the complaint.
The facts, more fully set forth in the Judge's Decision, are summarized below.
By letter dated October 2, 1986, the Respondent notified the Union that it intended to convert 11 of the 150 employee parking spaces to reserved parking effective the week of October 13, 1986. The Respondent also notified the Union that if it wanted to bargain over the impact and implementation of the change, it should submit proposals for bargaining by October 8, 1986. By letter dated October 6, 1986, the Union requested certain information about the change from the Respondent and indicated that after receipt of the information, it would comment or request negotiations. The Union requested that the change not be implemented until after the parties reached an agreement through negotiations. The Respondent furnished the requested information on October 16 and the parties met to negotiate on October 29.
The Union proposed that: (1) the Respondent provide the employees with 11 parking spaces equal in size and location to the 11 spaces that were to be converted to reserved parking; (2) parking continue on a first-come, first-serve basis; and (3) the parking spaces be reserved only for handicapped persons. ALJ Decision at 4-5. The Respondent proposed that the 11 parking spaces were to be converted to reserved parking for managerial personnel. ALJ Decision at 5.
After discussing the proposals, the parties agreed that they were at impasse. ALJ Decision at 5. The Respondent advised the Union that its offer was its final one and that it intended to implement the change in the parking spaces. The Union responded that it intended to contact the FMCS for assistance; the Respondent stated it would also contact the FMCS. ALJ Decision at 5. By letter dated October 29, 1986, the Union (1) requested that the Respondent not implement the change since the parties were at impasse and (2) advised the Respondent that it intended to seek resolution of the dispute through the FMCS or the Federal Service Impasses Panel (the Panel). ALJ Decision at 5. The Respondent replied in a letter dated October 30, 1986, that the proposed change in parking spaces would be implemented on November 10, 1986. [ v31 p2 ] ALJ Decision at 6. The Respondent converted the 11 parking spaces to reserved on November 10, 1986. ALJ Decision at 6.
The record reflects that the Union attempted to contact the FMCS by telephone several times between October 30 and November 10. However, it did not reach an FMCS representative and did not make a formal request for assistance, either orally or in writing, until November 13, 1986. ALJ Decision at 6.
III. Administrative Law Judge's Decision
The Judge noted that use of parking spaces by employees is a condition of employment and that an agency is obligated to bargain over proposed changes in the parking spaces utilized by employees. He further noted that in this case, the parties did negotiate over the proposed changes until they reached impasse. The Judge, therefore, framed the issue for resolution as "the rights and responsibilities of the parties after the impasse between them." ALJ Decision at 7.
In resolving the issue, the Judge recognized that while an impasse is pending before the Panel, an agency must maintain the status quo to the maximum extent practicable, that is, to the extent consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action is deemed appropriate. ALJ Decision at 7. However, the Judge noted that "(i)t has not been held that section 7116(a)(6), which refers to impasse procedures and decisions, also encompasses impasse disputes pending before the FMCS." ALJ Decision at 7. The Judge specifically rejected the General Counsel's contention that the FMCS and the Panel are "equatable." ALJ Decision at 7. The Judge noted that the FMCS does not make final and binding determinations and that the parties are not required to cooperate in FMCS proceedings. ALJ Decision at 7. Accordingly, the Judge concluded that, absent a contractual obligation, the Respondent was not required to maintain the status quo while a dispute over a change in conditions of employment was pending before the FMCS. ALJ Decision at 8.
The Judge then analyzed Article 5 of the parties' agreement. 1 The Judge found that Article 5 does not address: (1) which party has the obligation to contact the [ v31 p3 ] FMCS; (2) the manner in which the services of the FMCS will be requested; and (3) whether the status quo will be maintained while the dispute is pending before the FMCS. ALJ Decision at 8. He further found that since Article 5 of the agreement does not address the parties' obligations, it is subject to "arguable interpretation, (and) the parties may be constrained to seek remedial relief via the grievance and arbitration procedure in the collective bargaining agreement." ALJ Decision at 8. The Judge also found that the Respondent had not clearly and unmistakably waived its right to implement the change. ALJ Decision at 8-9.
The Judge further found that, assuming that the statutory obligation to maintain the status quo applied to disputes pending before the FMCS, the Union had a reasonable opportunity to contact the FMCS prior to the Respondent's implementation of the change and that it failed to invoke the services of the FMCS until after the change was implemented. ALJ Decision at 9. He concluded that the Respondent had not violated section 7116(a)(1), (5) and (6) of the Statute and recommended that the complaint be dismissed. ALJ Decision at 10.
IV. Positions of the Parties
The General Counsel contends that the Judge erred in finding that: (1) the Respondent did not violate the Statute by implementing the change in a condition of employment while the matter was pending before the FMCS; (2) the Respondent had not waived its right to implement changes until it sought assistance from the FMCS; and (3) the parties' agreement does not preclude the Respondent from implementing a change in a condition of employment until the negotiation impasse has been resolved by the FMCS and/or the Panel. The General Counsel argues that under Article 5 of the parties' agreement, the Respondent must maintain the status quo [ v31 p4 ] pending resolution of the negotiation impasse by the FMCS and/or the Panel. The General Counsel argues that because the negotiation impasse had not been resolved by either the FMCS or the Panel, negotiations between the parties were ongoing. Therefore, the Respondent was precluded from implementing the proposed change in the number of reserved parking spaces.
The Respondent contends that the General Counsel has misinterpreted the parties' agreement. The Respondent argues that Article 5 applies only to negotiation impasses that arise as a result of term negotiations; it does not apply to impasses that arise as a result of mid-term negotiations. The Respondent further argues that even if Article 5 did apply, it does not address the obligations of the parties upon reaching an impasse and that the Judge was correct in his determinations. The Respondent also argues the Union did not request assistance from either the FMCS or the Panel in a timely manner.
The Authority previously has held that the duty to bargain under the Statute requires that the parties meet their obligation to negotiate prior to making a change in an established condition of employment, absent a clear and unmistakable waiver of that bargaining right. For example, Department of the Treasury, Bureau of Alcohol Tobacco and Firearms, 18 FLRA 466 (1985). Where the parties have negotiated in good faith and have reached an impasse in their negotiations, section 7119 of the Statute provides that the FMCS shall provide services and assistance in the resolution of negotiation impasses. Section 7119 further provides that if voluntary arrangements, including the services of the FMCS or any other third-party mediation, fail to resolve a negotiation impasse, either party may request the Panel to consider the matter.
The Authority has held that once the parties have reached an impasse in their negotiations and one party timely invokes the services of the Panel, the status quo must be maintained to the maximum extent possible, that is, to the extent consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action is deemed appropriate. U.S. Department of Housing and Urban Development and U.S. Department of Housing and Urban Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435, 436-37 (1986); Bureau of Alcohol, Tobacco and Firearms, 18 FLRA at 469. [ v31 p5 ]
In this case, the parties negotiated in good faith over the impact and implementation of the proposed change in the parking places until they agreed that they were at impasse. At that time, the Union informed the Respondent that it intended to invoke the services of the FMCS. The Respondent did not preclude the Union from invoking the services of the FMCS or the Panel, but rather agreed with the Union that the services of the FMCS might be necessary to resolve the impasse. The Respondent also advised the Union that it intended to implement the proposed change on November 10, 11 days later. After being informed of the intended implementation date, the Union did not request a postponement of the implementation for the purpose of seeking assistance with the impasse, did not indicate to the Respondent that filing with the FMCS or the Panel was imminent and did not invoke the services of the FMCS or the Panel.
We find that in these circumstances, the Union had a reasonable opportunity to invoke the services of the FMCS or the Panel after the parties reached an impasse in their negotiations on October 29, 1986, and that, after it received the Respondent's notice of its intention to implement the change on November 10, 1986, it delayed filing a request for assistance until 3 days after the change was implemented. We conclude that the Respondent did not violate the Statute by implementing the change 11 days after the parties agreed that they were at impasse in negotiations. For example, U.S. Customs Service, 16 FLRA 198 (1984); Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 16 FLRA 217 (1984).
The Judge specifically found that Article 5 of the parties' agreement was subject to "arguable interpretation" and that the proper avenue to determine the meaning of Article 5 was through the grievance and arbitration procedure in the parties' collective bargaining agreement. The General Counsel excepts to the Judge's finding and argues that Article 5 of the parties' agreement requires that the status quo must be maintained pending resolution of the negotiation impasse by the FMCS and/or the Panel. The Respondent argues in support of the Judge's finding that, even if the Union had contacted the FMCS in a timely manner, Article 5 does not address the obligations of the parties after an impasse is reached and does not preclude the Respondent from implementing a change in conditions of employment while the matter is pending before the FMCS.
We agree with the Judge that the essence of the dispute involves different and supportable interpretations of the parties' agreement. It is well established that an alleged [ v31 p6 ] unfair labor practice which involves different and supportable interpretations of a collective bargaining agreement is not appropriate for resolution under unfair labor practice procedures. Immigration and Naturalization Service and Immigration and Naturalization Service, Newark District, 30 FLRA 486, 489 (1987). In such cases, the aggrieved party's remedy is through the negotiated grievance procedures of the agreement rather than through the Authority's unfair labor practice procedures. 30 FLRA at 490.
In regard to the General Counsel's argument that the Respondent waived its right to implement any change in a condition of employment while the matter was pending before the FMCS by virtue of having agreed to Article 5, we find that because Article 5 is susceptible to arguable interpretations, the Respondent did not clearly and unmistakably waive its right to implement the change.
Accordingly, we shall dismiss the complaint.
The complaint in this case is dismissed. 2
Issued, Washington, D.C., March 30,1988.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY [ v31 p2 ]DEPARTMENT OF THE NAVY UNITED STATES NAVAL SUPPLY CENTER, SAN DIEGO, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1399, AFL-CIO Charging Party Case No. 8-CA-70084 Hans P. T. von Nostitz For the Respondent Jonathan Levine, Esq. For the General Counsel Before: WILLIAM NAIMARK Administrative Law Judge
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on April 9, 1987, by the Regional Director for the Federal Labor Relations Authority, Region VIII, a hearing was held before the undersigned on May 19, 1987 at San Diego, California.
This is a proceeding which arose under the Federal Service Labor - Management Relations Statute, 5 U.S.C. 7101, et seq., (herein called the Statute). It is based on a first amended charge filed on April 6, 1987 by the American Federation of Government Employees, Local 1399, AFL - CIO (herein called the Union) against Department of the Navy, United States Naval Supply Center, San Diego, California (herein called the Respondent).
The Complaint alleged, in substance, that on or about October 29, 1986 the Union and Respondent bargained to impasse re a proposal by Respondent to convert eleven [PAGE] employee parking spaces to reserved parking; that the union submitted the matter to the Federal Mediation and Conciliation Service (FMCS) on November 7, 1986; that on or about November 10, 1986 Respondent unilaterally changed working conditions by converting the eleven employee parking spaces to reserved parking while the matter was before FMCS - all in violation of 7116(a)(1), (5) and (6) of the Statute.
Respondent's Answer, dated April 23, 1987, admits that the parties bargained to impasse re the conversion of the eleven employee parking spaces. It denies that the matter was submitted to FMCS and that the change was made while the issue was pending before that body. Further, the commission of any unfair labor practices was denied.
All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed with the undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the union has been the exclusive representative of all employees of the Naval Supply Center at San Diego, California excluding management officials, supervisors, guards and employees engaged in Federal personnel work in other than a purely clerical capacity.
2. Respondent and the union are parties to a collective bargaining agreement which, by its terms, has been effective since December 30, 1977, and said agreement has continued in effect at all times relevant herein.
3. The aforesaid collective bargaining agreement provides, inter alia, as follows: 3 [ v31 p2 ]
Section 1: After genuine negotiation sessions in which all proposals and issues have been discussed and there is no further reasonable prospect that the negotiation dispute can be resolved by the Parties, the Parties agree that the services and assistance of the Federal Mediation and Conciliation Service will be requested.
Section 2: When voluntary arrangements, including the services of the Federal Mediation and Conciliation Service, fail to resolve a negotiation impasse, either Party may request the Federal Service Impasse Panel to consider the matter in accordance with section 17, E. 0. 11491, . . .
4. The four principal facilities of Respondent are located at the Naval Station (32nd Street), Broadway, North Island, and Point Loma.
5. Record facts show that, at all times relevant herein, there were about 250 parking spaces at the Naval Station. Approximately 100 of these were reserved, 4 and the remaining 150 were set aside for unit employees. 5 The 250 spaces were situated adjacent to a fence that bordered the main road next to the facility. The most desired parking spaces were located near the entry gate because they provided quicker access to and from the work areas. The parking spaces at the Naval Station have been utilized by three shifts of employees on a first-come, first-serve basis. [ v31 p3 ]
6. In a letter dated October 2, 1986. 6 John A. Evans, Deputy Director, Transportation Department, notified Larry Cooper, President of the Union, that Respondent intended to convert eleven parking spaces at the Naval Station facility, between buildings 63 and 322, to reserve parking only. The change would be effected on or about the week of October 13-17. Evans also apprised the Union that if it desired to bargain on the impact thereof, proposals should be submitted by October 8.
7. By a reply letter dated October 6 the Union requested certain information in respect to the proposed change. It also indicated that upon receipt of the information the Union would comment and/or request negotiations, and management was requested not to implement the change until an agreement is finalized after negotiations.
8. On October 16 Cooper met with Evans and Robert Cannon, Labor Relations specialist for Respondent. Cooper expressed concern about the parking problem at the Naval Station, and called attention to the new Nistar Building within the complex which added 80 more employees. Evans stated the eleven spaces were needed for the benefit of the government; that managers who used privately owned vehicles and went down Broadway on official business had a problem finding a parking space upon their return. In addition to making several suggestions re taking spaces elsewhere, Cooper informed management that the Union wanted to bargain on the matter.
9. Respondent furnished the data requested by the Union in a letter dated October 17 from Cannon. The latter also set forth the titles of those who would occupy the eleven reserved spaces, and a date of October 22 was suggested for negotiations.
10. A meeting was held on October 29. In attendance thereat were Cooper and Roger Grainger, Chief Steward, for the Union with Evans and Hans P. T. von Nostitz, Director, Labor and Employee Relations for the Respondent. The Union suggested, in the main, that the Agency provide the employees with eleven parking spaces equal in size and location to the eleven spaces it would take away; that parking continue on first-come, first-serve basis and spaces be reserved only [ v31 p4 ] for handicapped persons. Respondent's counterproposals called for continuing the aforesaid basis of reserving parking spaces but not permitting employees to park in reserved spaces at any time. It adhered to the proposal to take eleven spaces for managerial personnel.
After the discussion re the proposals advanced by each party, both the Union and Respondent agreed they were at impasse. A colloquy ensued between Cooper and von Nostitz regarding the matter. 7 The Director stated it was his final offer and the Agency would implement it anyway. Cooper replied that von Nostitz knew the procedures, and the Union would bring in a third party to get the problem resolved. Respondent's representative told Cooper that the latter could file an unfair labor practice, that he didn't care. Cooper commented he would contact the FMCS for assistance, and von Nostitz said he would do so also.
11. Upon the close of the meeting between the parties on October 29, von Nostitz picked up the phone at his desk and said he would call "Jack". 8 When Cooper asked him how he knew that Jack would handle this case, the Director replied that Jack handles all Naval Supply Center's mediation situations. Cooper stated he would contact FMCS and talk to whomever they assign to the case. 9
12. By letter dated October 29 Cooper wrote von Nostitz and requested that, in view of the impasse, Respondent not implement the proposed change by taking away eleven parking spaces for employees until an agreement is reached. Further, he stated that the Union intended to seek resolution through the FMCS and/or the Federal Service Impasses Panel. [ v31 p5 ]
13. von Nostitz replied in a letter dated October 30 wherein he advised Cooper that the Center intended to convert and designate the eleven parking spaces to reserve parking effective November 10.
14. On October 30, and several times before November 13, Cooper telephoned FMCS and left a message on the answering machine that assistance was needed in view of the impasse on the parking issue after negotiations.
15. Respondent converted the eleven parking spaces for employees to reserve parking on November 10.
16. FMCS representative Bates contacted Cooper on November 13 to inquire about the problem. The Union representative explained the situation re parking to Bates. The latter asked whether the Agency implemented the change, and Cooper told him it had been done. Cooper also advised Bates that an unfair labor practice charge had been filed by the Union.
17. A formal request for FMCS assistance re the impasse was made in a letter from Cooper to Commissioner Brame. The said letter was postmarked November 13, although the date appearing thereon was November 7. 10
18. Under date of April 15, 1987 an Fmcs representative wrote von Nostitz a letter in reply to the latter's correspondence dated March 30, 1987. In response to the Center's request for information, FMCS advised that it received a written request from the Union on November 17; that their records show an oral notice was received from both parties on November 13 which date is entered in the FMCS record as "date of receipt".
In asserting that Respondent has violated Section 7116(a)(1) and (5) of the Statute, General Counsel contends that the unilateral implementation of the change herein was in contravention of the requirement in the contract that assistance be sought from the FMCS. It is argued that Respondent waived its right to implement the change until it first sought aid of FMCS, and that implementation under these circumstances was an unfair labor practice. [ v31 p6 ]
General Counsel further contends that Respondent failed to provide the Union with a reasonable time to seek FMCS service; that the Respondent implemented the change while the matter was before FMCS, and the status quo should be maintained in the manner as is required when, after impasse, the matter is pending with the Federal Service Impasses Panel. Thus, it is averred Respondent, by implementing the change without affording the Union the time to seek FMCS assistance, has violated 7116(a)(1), (5) and (6) of the Statute.
It is quite clear that an agency is obliged to bargain over proposed changes in parking spaces utilized by employees. The use of parking spaces by employees is a condition of employment, and any elimination thereof has an impact upon them which is more than de minimis. Internal Revenue Service, 16 FLRA 928; U.S. Marshals Service, 12 FLRA 650. In the case at bar, however, the parties did negotiate the proposed changes, and neither disputes the fact that negotiations took place until they reached an impasse. The issue herein turns on the rights and responsibilities of the parties after the impasse between them.
Decisional law in the public sector makes it clear that while a negotiation dispute is pending before the Federal service impasses Panel, certain obligations are imposed upon an agency. The latter may not, during such pendency, implement an intended change which is the focus of such dispute. If such implementation occurs under those circumstances, the agency will have violated Section 7116(a)(1), (5) & (6) of the Statute unless an "overriding exigency" is present. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466; Department of the Treasury, Internal Revenue Service, Brookhaven Service Center, A/SLMR No. 859. In the case herein General Counsel argues that (a) the same decisional law should apply where, as here, the matter in dispute is pending before the FMCS; (b) Respondent did not afford the Union a reasonable time to seek the assistance of FMCS.
It has not been held that 7116(a)(6), which refers to impasse procedures and decisions, also encompasses impasse disputes pending before FMCS. I rejected the contention that FMCS and FSIP are equatable, noting that FMCS is not called upon to make a final or binding determination, and that neither party is obliged to "cooperate" in procedures established by FMCS. See Social Security Administration Office of Hearings and Appeals, OALJ-86-44, (adopted, without exceptions, by the Authority on June 27, 1987). Thus, I [ v31 p7 ] would not agree that Respondent would be required, in the absence of a contractual obligation so imposed, to maintain status quo in regard to any intended change while a dispute as to such matter is pending before the FMCS.
Stress is laid by the General Counsel upon its position that, under the collective bargaining agreement, Respondent is required to seek assistance from FMCS after an impasse, and that no change in the parking space allotment was proper until that body entertained the dispute. It is true that the contract does provide, under Article 5, that the parties will request the services of FMCS after they have been unable to resolve a negotiation dispute. Nevertheless, it is not clear that the obligation is imposed upon Respondent initially or that both parties must concur, nor does the contractual clause provide in what manner such services shall be requested. Further, it is not provided that no change shall be initiated, after impasse, while the dispute is before FMCS. Article 5 of the contract leaves unanswered the obligations of the parties in this regard, and the parties may well differ in their conclusions as to each one's respective responsibilities thereunder. Thus, Respondent may well take the position that there is no condition precedent requiring it to place the matter before FMCS and refrain from effecting the change until that body hears the dispute. Since the clause in Article 5 is subject to arguable interpretation, the parties may be constrained to seek remedial relief via the grievance and arbitration procedure in their collective bargaining agreement. See Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operation, New York Region, 21 FLRA 422. Accordingly, Respondent would not have violated the Statute. 11
While it appears that Respondent did not contact FMCS until November 13, which is subsequent to the implementation of the change on November 10, I conclude that the agreement does not expressly interdict any changes until the agency refers the matter to FMCS. Neither do I conclude that, as General Counsel insists, the Respondent clearly waived its right to implement changes until it sought assistance from [ v31 p8 ] FMCS. A waiver can only be established by clear and unmistakable conduct. Internal Revenue Service (District, Region, National Office Units), 16 FLRA 904. Article 5 in the parties agreement contains no language which establishes a waiver, nor can one reasonably be inferred from that provision.
Consideration has been given to General Counsel's contention that the policy set forth in Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, supra should be applied when a party invokes the processes of either FSIP or FMCS. It is maintained, in line with such argument, that Respondent did not provide the Union with a reasonable time to seek the services of FMCS. Hence, General Counsel insists, a violation occurred by implementing the change in parking spaces.
Assuring arguendo such policy is equally applicable as contended, I cannot conclude that the Union made a proper request of the FMCS for assistance that would, in such event, require Respondent to withhold implementation of the change re the parking spaces, or that Respondent failed to give the Union a reasonable opportunity to seek such assistance before making the change. The record does show that the Union President attempted to contact FMCS on October 29 but was unable to do more than leave a message on the answering machine. It also appears that he left a similar message two other times before November 13 since no representative of FMCS could be contacted on the phone. Record facts reflect that it was not until November 13 that the parties communicated with the Mediation Service, and that is the date which FMCS establishes as the "date of receipt" of a request for assistance. Moreover, the letter written by the Union to FMCS was not postmarked until November 13, and did not reach that body until November 17.
Despite the attempt by the Union to get in touch with FMCS by phone, it must be concluded that the dispute was not brought before the Mediation Service until at least November 13. This is acknowledged by the Service. It was not established whether the FMCS office was open so that the Union would have been able to invoke its assistance by appearing thereat. Moreover, the letter to FMCS was not postmarked by the Union until after the parking space change was implemented. Since eleven days elapsed from the date of impasse (October 29) until the implementation, I conclude the Union was afforded sufficient time to invoke the Services of FMCS; that it did not make a proper request until November 13; and that Respondent did not fail to give [ v31 p9 ] the Union a reasonable opportunity to do so. See U.S. Customs Service, 16 FLRA 198.
The record reveals that, although Respondent stated it intended to implement the change in parking spaces apart from resorting to FMCS, it did negotiate the matter with the Union. Impasse was reached over the issue, and the Respondent did not implement the change until eleven days thereafter. In view thereof, together with the foregoing conclusions, I am persuaded that Respondent was under no obligation to defer implementation until the dispute was determined by FMCS, nor did the employer fail to provide the Union with a reasonable opportunity, if required, to invoke the services of the Mediation Service.
Accordingly, I conclude Respondent has not violated Section 7116(a)(1), (5) and (6) of the Statute, and it is recommended that the Authority issue the following:
It is hereby ordered that the Complaint in Case No. 8-CA-70084 be, and the same hereby is, dismissed.WILLIAM NAIMARK Administrative Law Judge Dated: September 11, 1987 Washington, D.C.
Footnote 1 Article 5 of the parties' agreement provides: Section 1: After genuine negotiation sessions in which all proposals and issues have been discussed and there is no further reasonable prospect that the negotiation dispute can be resolved by the Parties, the Parties agree that the services of the Federal Mediation and conciliation service will be requested. Section 2: When voluntary arrangements, including the services of the Federal Mediation and Conciliation Service, fail to resolve a negotiation impasse, either party may request the Federal Service Impasses Panel to consider the matter in accordance with Section 17, E.O. 11491 . . . .
Footnote 2 In view of this decision, we do not find it necessary to address the other issues raised by the parties in this case.
Footnote 3 The agreement contains a grievance clause (Article 8) which provides, under section 9. for grieving matters of interpretation or application of the agreement. It also provides for binding arbitration (Article 9) when a grievance is not resolved.
Footnote 4 About 80 of this group were allocated for Customer Service, with most of the remainder reserved for handicapped persons or security.
Footnote 5 While Respondent disputes the number available to employees, I credit the testimonies of union representatives Larry Cooper and Roger Grainger in regard to the number of spaces which were reserved and those available to employees. Grainger's account thereof was based, according to his testimony, on a survey made by him and three different stewards of the Union.
Footnote 6 Unless otherwise indicated, all dates hereinafter mentioned occur in 1986.
Footnote 7 The facts as recited herein regarding this conversation on October 29 represent the credited version thereof. The testimonies of Cooper and Grainger were corroborative in regard to the relevant statements. Deputy Director Evans did not testify at the hearing herein.
Footnote 8 "Jack" refers to Jack Bates, an FMCS representative.
Footnote 9 Although von Nostitz denies he told Cooper that he would contact Bates at FMCS, I credit the Union representative's account of the exchange in regard thereto. No finding is made, since there are no facts in support thereof, that von Nostitz did telephone Bates on October 29.
Footnote 10 The request for FMCS assistance from the Union was not received by FMCS until November 17.
Footnote 11 It is recognized that patent breaches of bargaining agreements, if serious or flagrant, may be deemed violative of 7116(a)(1) and (5). However, such instances do not involve issues of differing and arguable interpretations of contractual provisions. Defense Depot Tracy, 16 FLRA 1083.