34:1107(169)AR - - HHS, SSA, Chicago, IL and AFGE Local 1395 - - 1990 FLRAdec AR - - v34 p1107



[ v34 p1107 ]
34:1107(169)AR
The decision of the Authority follows:


34 FLRA No. 169

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

CHICAGO, ILLINOIS

(Agency)

AND

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1395

(Union)

0-AR-1600

DECISION AND ORDER

February 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator George Jacobs filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator found that the Agency violated the parties' collective bargaining agreement by failing to provide secure and adequate parking spaces for bargaining unit employees when it relocated its offices. For the reasons discussed below, we conclude that the Arbitrator's award is contrary to 41 C.F.R. § 101-18.101(a) and (c), which pertains to property leasing. Therefore, the Arbitrator's award is set aside.

II. Background and Arbitrator's Award

In 1984, the Agency informed the General Services Administration (GSA) that its lease for office space was expiring and was not renewable. The Agency requested that GSA acquire a new location for the Agency. The Agency provided GSA with its space requirements, including a requirement for 62 employee and visitor parking spaces. GSA obtained another location for the Agency.

In March 1987, the Agency relocated its office from a shopping center location at 500 South Racine Street to 120 South Sangamon Street. Under the new lease, GSA obtained five parking spaces. However, none of the five parking spaces was designated by the Agency for bargaining unit employees' use. In contrast, at the previous location the employees enjoyed the use of 450 shopping center parking spaces free of charge.

The Union filed a grievance asserting that the Agency's refusal to provide secure and adequate parking near the new office location violated the parties' collective bargaining agreement. The Union requested "that Management provide free parking such as that being provided at the current Racine Ave. location." Award at 3. Before the Arbitrator, the Union asserted that "the Agency's refusal to provide secure and adequate parking near the Sangamon facility is in error, and [the Union] seeks an Award affirming that position, and ordering the Employer to bargain over the five (5) parking spaces in the (Sangamon) area, and to provide parking for its employees in compliance with the Agreement." Id. at 4.

The Arbitrator stated that this case "involves the question of the Employer's obligation to provide, or continue to provide parking space availability for the covered bargaining unit employees, and whether the discontinuation of the number of spaces constituted a violation of the Agreement." Id. at 2. The Arbitrator determined that the Agency violated the collective bargaining agreement by not providing secure and adequate parking at the Agency's new location. Id. at 10. According to the Arbitrator, the facility at South Racine had "secure, adequate, and convenient parking," and the new facility at South Sangamon Street did not. Id. at 7. The Arbitrator noted that Article 13, Section 2 of the parties' collective bargaining agreement stated that "[t]he employer agrees to continue to provide secure, adequate, convenient parking." Id. at 3.

In order to interpret Article 13, Section 2, the Arbitrator applied the past practice provision in Article 1, Section 2. Article 1, Section 2 provides that "any prior benefits and practices . . . in effect on the effective date of this agreement . . . which are not specifically covered by this agreement and do not detract from it shall not be changed except in accordance with 5 USC 71." Id. at 4. The Arbitrator indicated that Article 1, Section 2 was applicable because Article 13, Section 2 did not include details about the Agency's obligation to provide parking. Id. at 7. According to the Arbitrator, "interpretation [could] only be accomplished by reviewing the administration" of Article 13, Section 2. Id. In his review of the Agency's administration of Article 13, the Arbitrator found that it was "clear that the employees had adequate, secure parking at Racine which was provided by virtue of the facility being located in a shopping center where such parking was available." Id.

The Arbitrator found that limited parking was available on the street and in commercial lots around the new location and that crime was "a definite possibility." Id. at 8. Hence, the Arbitrator concluded that the new location did not have adequate, secure, or convenient parking. Id. The Arbitrator stated that "[t]here was nothing placed in the record to show that the parking situation was changed pursuant to 5 USC 71." Id. at 9. In addition, the Arbitrator concluded that the Agency failed to prove its claim that parking was under the control of GSA and that the Agency "had nothing to say about the parking at the new location." Id.

As his award, the Arbitrator stated that "[t]he Grievance filed on behalf of the covered employees is sustained, and the remedy requested is likewise sustained." Id. at 10.

III. Positions of the Parties

The Agency asserts that the Arbitrator's award: (1) does not draw its essence from the parties' collective bargaining agreement; (2) conflicts with Government-wide regulations which give GSA exclusive authority to acquire space, including parking, for the Agency; (3) inhibits the Agency's authority to determine its mission under section 7106(a)(1) of the Statute; and (4) is based on two nonfacts--the erroneous presumption that the Agency had "provided" parking for its employees at the former location and the finding that providing parking was a "past practice" of the Agency which was not changed pursuant to Chapter 71 of Title 5. Agency's Exceptions at 1-2. Additionally, the Agency asserts that the Union waived its bargaining rights concerning parking when Union officials withdrew their parking proposal from negotiations with the Agency prior to relocation. Id. at 15-16.

The Union claims that the Agency's exceptions were not filed timely. Union's Opposition at 1. The Union asserts that the Arbitrator properly interpreted Article 13, Section 2 and Article 1, Section 2 of the collective bargaining agreement concerning the Agency's obligation to provide parking and continue prior parking benefits. Id. at 2. The Union argues that the Agency has the power through GSA to lease parking to meet its obligation under the agreement. Id. The Union also asserts that the Union withdrew the issue of parking from its negotiations concerning the relocation of the office without prejudice. Id. at 3.

Finally, the Union describes incidents of violent acts against employees and attributes these incidents to employees being required to park their cars in unsafe areas around the Agency's new location. The Union argues that because of these incidents, the Agency should balance its mission with the health and safety of its employees who must carry out the Agency's mission. The Union asserts that the Agency "should do everything in it's [sic] power to abate unsafe conditions." Id. at 4.

IV. Preliminary Matter

In its opposition to the Agency's exceptions, the Union asserts that the Agency's exceptions filed on August 15, 1988, were untimely and should be dismissed. We find that the Agency's exceptions were filed timely.

The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served. 5 U.S.C. § 7122(b) and 5 C.F.R. § 2425.1(b). The date of service is the day the matter is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). If exceptions are filed by mail, 5 days are added to the prescribed filing period. 5 C.F.R. § 2429.22. Furthermore, if the deadline occurs on a weekend or a holiday, the filing deadline becomes the next business day. 5 C.F.R. § 2429.21. See U.S. Immigration and Naturalization Service and American Federation of Government Employees, Local 1917, 33 FLRA 843 (1988).

In this case, the Arbitrator's award was issued on July 8, 1988, and mailed to the parties. The filing deadline is calculated as 30 days from July 8 with an additional 5 days for mailing, which is August 13. However, because August 13, fell on a Saturday, the effective deadline became Monday, August 15, which is the date on which the Agency filed its exceptions. Therefore, the Agency's exceptions were timely filed.

V. Analysis and Conclusion

We note first that, as his award, the Arbitrator stated only that "[t]he Grievance filed on behalf of the covered employees is sustained, and the remedy requested is likewise sustained." Award at 10. In its grievance, the Union requested the Agency to "provide free parking such as that being provided at the current Racine Ave. location." Id. at 3. In its position before the Arbitrator, however, the Union requested the Agency "to bargain over the five (5) parking spaces in the (Sangamon) area, and to provide parking for its employees in compliance with the Agreement." Id. at 4. Thus, it is unclear whether the Arbitrator ordered the Agency only to provide free parking, as requested by the Union in its grievance, or to bargain over the five parking spaces in addition to providing free parking, as requested by the Union in its position before the Arbitrator.

The Agency interprets the Arbitrator's remedy only to require it to provide free parking. Exceptions at 2. The Agency's interpretation of the Arbitrator's award is consistent with the relief sought by the Union in its grievance. Further, the Agency's interpretation of the award was not objected to by the Union in its opposition. Accordingly, we adopt the Agency's interpretation of the award for the purposes of this decision.

We agree with the Agency's assertion that GSA property management regulations, 41 C.F.R. § 101-18.101(a) and (c), prevented the Agency from acquiring employee parking at the new location. We note that the Authority previously has found that GSA Federal Property Management Regulations, as codified at title 41 of the Code of Federal Regulations, constitute Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. See Coordinating Committee of Unions and Department of the Treasury, Bureau of Engraving and Printing, 29 FLRA 1436, 1440 (1987); American Federation of Government Employees, AFL-CIO, Local 644 and Department of Labor, Mine Safety and Health Administration, 27 FLRA 375, 385 (1987).

41 C.F.R. § 101-18.101(a) provides that:

GSA will perform all functions of leasing building space, and land incidental thereto, for Federal agencies except as provided in this Subpart 101-18.1.

41 C.F.R. § 101-18.101(c) states, in pertinent part:

Officials or employees of agencies for which GSA will acquire leased space shall at no time, before or after a space request is submitted to GSA or after a lease agreement is made, directly or indirectly contact lessors, offerors, or potential offerors for the purpose of making oral or written representation or commitments or agreements with respect to the terms of occupancy of particular space, tenant improvements, alterations and repairs, or payment for overtime services, unless authorized by the Director of the Space Management Division in the responsible GSA regional office.

These regulations require that GSA act as an exclusive leasing agent for other Federal agencies. Agencies are prohibited from attempting to acquire leased space unless authorized to do so by GSA. 41 C.F.R. § 101-18.101(c). GSA has sole discretion to contract with lessors for leased space. Unless authorized by GSA, agencies may not independently engage in lease negotiations. See American Federation of Government Employees, Local 644, AFL-CIO and U.S. Department of Labor, Occupational Safety and Health Administration, 21 FLRA 658, 664-65 (1986) (agency lacked GSA authorization to acquire parking under Temp. Reg. D-69, which was replaced by Subchapter D of Chapter 41 including 41 C.F.R. § 101-18.101(a) and (c) of the Federal Property Management Regulations).

Contrary to the specific requirements and limitations of these regulations, the Arbitrator's award requires the Agency to provide employee parking. The Agency, however, was not authorized by GSA to acquire parking and, therefore, was prohibited from acquiring employee parking spaces. GSA retained sole discretion to contract with lessors for leased space including parking spaces.

Because GSA had sole discretion to acquire parking space, the Agency's obligation to provide parking was limited to requesting space from GSA. We note that prior to relocation, the Agency requested that GSA acquire 62 parking spaces for the Agency's employees. In view of GSA regulations, the Agency acted to the full extent of its authority. The Arbitrator's award, therefore, requires the Agency to engage in conduct which is contrary to regulation.

Under section 7122(a) of the Statute, the Authority will set aside an arbitration award that is contrary to law, rule, or regulation. The Arbitrator's determination that the Agency must provide employee parking at the South Sangamon Street location conflicts with Government-wide regulations as set forth in 41 C.F.R. § 101-18.101(a) and (c). Accordingly, the Arbi