37:0079(4)CA

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37:0079(4)CA
The decision of the Authority follows:


37 FLRA No. 4

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

PHILADELPHIA NAVAL BASE

PHILADELPHIA NAVAL STATION

AND PHILADELPHIA NAVAL SHIPYARD

(Respondents)

and

PHILADELPHIA METAL TRADES COUNCIL

(Charging Party)

2-CA-80468

PHILADELPHIA NAVAL BASE

PHILADELPHIA NAVAL STATION

AND PHILADELPHIA NAVAL SHIPYARD

(Respondents)

and

PLANNERS, ESTIMATORS, PROGRESSMEN

AND SCHEDULERS ASSOCIATION

LOCAL 2

(Charging Party)

2-CA-80475

DECISION AND ORDER

September 7, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached Decision in the above-entitled consolidated proceeding. The Judge found that the Respondents violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing working conditions of bargaining unit employees by implementing a policy of prohibiting employee parking in certain parking spaces without first giving notice to the Philadelphia Metal Trades Council, AFL-CIO (MTC) and the Planners, Estimators, Progressmen and Schedulers Association, Local 2 (PEPS) and affording them an opportunity to bargain over the change. The Judge also found that Respondents Philadelphia Naval Base (the Base) and Philadelphia Naval Station (the Station) violated the Statute by interfering with the collective bargaining relationships between the Respondent Philadelphia Naval Shipyard (the Shipyard) and MTC and PEPS. The Respondents filed exceptions to the Judge's Decision and the General Counsel filed an opposition to the exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with our decision.

We conclude, in agreement with the Judge and based on his rationale, that the Shipyard violated section 7116(a)(1) and (5) of the Statute as alleged. However, for the following reasons we conclude, contrary to the Judge, that the Base and the Station did not violate the Statute as alleged, and we will dismiss the complaint as to those Respondents.

II. Facts

At all times material to this case, MTC and PEPS have been the exclusive bargaining representatives of certain employees of the Shipyard. During this time, there was "no direct collective bargaining relationship between MTC or PEPS and [the] Naval Base or [the] Naval Station." Judge's Decision at 3.

There are approximately 40 separate Navy activities located at the Philadelphia Naval Installation (the Installation), including the Base, the Station, and the Shipyard activities. The function of the Base is to oversee all the operations of the Installation. The Station performs support functions for the activities at the Installation and generally administers control over the properties that make up the Installation.

The major function of the Shipyard is to repair ships. However, one of its auxiliary functions is to administer and enforce parking rules and regulations for all the activities at the Installation. Although the personnel who enforce the parking rules and regulations are organizationally within the Command Security Office headed by an individual who reports to both the Shipyard and the Base, these personnel are employees of the Shipyard.

One of the parking areas used by Shipyard employees is designated as Area 74. Building 1032, which is contiguous to Area 74, was occupied by private banks from 1963 until September 1988. During that time, through agreements between the banks and the Base or the Shipyard, certain parking spaces in three rows of parking adjacent to Building 1032 were reserved for use by bank personnel and bank patrons. In September 1988, the Base moved its base library into Building 1032. In conjunction with the move, the three rows of parking were restriped, and new signs were placed in the rows designating the 21 spaces in the three rows as reserved for library patrons. Included in the 21 spaces were 11 spaces in row two that became the center of dispute in this case.

The complaint alleges that the Shipyard violated section 7116(a)(1) and (5) of the Statute by eliminating these 11 spaces without giving MTC and PEPS prior notice and an opportunity to bargain over the substance and the impact and implementation of the change, and that the Base and the Station violated section 7116(a)(1) and (5) of the Statute by interfering with the bargaining relationships between the Shipyard and MTC and PEPS.

III. Administrative Law Judge's Decision

The Judge found that the availability of parking facilities to unit employees is a condition of employment that management was not free to change without first giving MTC and PEPS notice and an opportunity to bargain over the change. Judge's Decision at 7. The Judge also found that to require management to bargain over the use of the particular spaces in dispute would not be inconsistent with any Government-wide rule or regulation. Id. at 7-9.

The Judge noted that the ownership and administration of the property on which the disputed parking spaces are located shifted among the Base, the Station and the Shipyard over the years. The administration of parking facilities has been the responsibility of the Shipyard. The Judge also found that the ownership, control, and administration of the parking areas can be and has been easily transferred among the Respondents. The Judge rejected the Shipyard's contention that it was without authority to bargain about the use of the disputed spaces because it did not control the spaces. Id. at 9-11.

The Judge found that, prior to September 1988, signs in the parking area did not make it clear which spaces were not to be used for employee parking, and that there was no evidence that employees, or MTC or PEPS, were ever advised that employees were not allowed to park there. Id. at 11. The Judge found that the employees had been parking in the 11 spaces openly for a number of years and that the Respondents were aware of this practice. Id. He concluded that parking in those spaces "was a past practice and, because it involved employee parking, a condition of employment, it was an existing condition of employment at the time" the change in policy took place. Id. The Judge found that the Shipyard was therefore obliged to notify MTC and PEPS about the change and to bargain with them to the extent of its discretion about the substance of the change. He found that "it is not clear that [the] Shipyard either did not have discretion to bargain over the disputed spaces, or could not easily have obtained such authority." Id. at 12.

The Judge found that although the Shipyard had the obligation to bargain, it did not have sole discretion concerning the elimination of the spaces. He noted that the Base had "removed the spaces in dispute from [the] Shipyard's control and gave control over them to [the] Naval Station. Similarly [the] Naval Station operated the library on behalf of the Naval Base." Id. at 12. Therefore, the Judge concluded that, by failing to authorize the Shipyard to bargain over the change, or to provide the Shipyard with a representative who was authorized to so bargain, the Base and the Station violated section 7116(a)(1) and (5) of the Statute by interfering with the Shipyard's bargaining relationships with MTC and PEPS. Id. The Judge noted that "[i]n the subject case the Naval Station and Naval Base are not necessarily parent or superior with respect to [the] Shipyard. Rather the three activities are cooperating equals." Id.

Finally, the Judge rejected the Respondents' argument that because the change had only a de minimis effect on the bargaining unit employees, the Respondents should not be found to have violated the Statute. The Judge stated that because the obligation was to bargain over the substance of the change and not merely over the impact of the change, the extent of the impact is not a consideration and is not a defense to an unfair labor practice. He found, however, that if the extent of the impact were a relevant consideration, he would find that the elimination of the disputed parking spaces had more than a de minimis impact on the unit employees. Id. at 13.

The Judge found that a status quo ante remedy was appropriate. He ordered the Respondents to rescind the policy of prohibiting employee parking in the disputed spaces and to give MTC and PEPS prior notice and an opportunity to bargain over any intended change in conditions of employment. Id. at 13-15.

IV. Positions of the Parties

A. Respondents' Exceptions

The Respondents contend that the Judge erred in concluding that: (1) a past practice existed whereby employees were permitted to park in the 11 disputed spaces; (2) parking in the disputed spaces was a condition of employment of unit employees; (3) the Shipyard violated the Statute by failing to notify and bargain with MTC and PEPS concerning the alleged change as to the use of the disputed spaces; and (4) the Base and the Station violated the Statute by interfering with the bargaining relationship between the Shipyard and MTC and PEPS. Exceptions at 1-2.

As to the first issue, the Respondents contend that in order to show a past practice as to the disputed spaces it would have to be shown that the use of the spaces by employees was consistently exercised for an extended period of time and that responsible management officials knowingly acquiesced in the practice. Id. at 4. The Respondents argue that the testimony showed only that the use of the spaces by employees was infrequent and, therefore, that the Judge incorrectly found that there was a "consistent" practice. Id. at 4-5. The Respondents also argue that the evidence does not support a finding that management knowingly allowed a practice of using the disputed spaces. In particular, the Respondents noted the testimony of their witnesses that they were not aware of the practice of Shipyard employees regularly parking in the bank parking area other than when they were using bank services. Further, they noted that it would have been difficult to know whether Shipyard employees were illegally parked because security police did not normally patrol parking lots and issued tickets only when they received a specific complaint. Id. at 5-7. Accordingly, the Respondents assert that the Judge "failed to properly consider the facts in the case with respect to whether a true practice existed, and that he failed to apply the appropriate case law applicable to the determination of whether an established practice existed." Id. at 7.

As to the second issue, the Respondents contend that the Judge erred in finding that the use of the 11 disputed spaces constituted a past practice that had become a condition of employment of unit employees. The Respondents argue first that because the spaces had been designated for the use of patrons of the banks and later of the library, the spaces fall under the category of the "official needs" of the agency and the Judge was, therefore, incorrect in finding that bargaining over the use of the spaces would not be inconsistent with Government-wide regulations. Id. at 7-8. Secondly, the Respondents contend that the Judge erred in finding that the use of the spaces "had become a condition of employment of Shipyard employees." Id. at 9, emphasis in original. The Respondents argue that the Judge did not establish the existence of a past practice and that because the Shipyard did not have control over the spaces in question, the Shipyard cannot be found to have allowed the use of the spaces. Id. Accordingly, the Respondents argue, the Judge "incorrectly determined that parking in the bank parking area ripened into a condition of employment for employees in the Shipyard bargaining units." Id.

As to the Shipyard's alleged duty to bargain, the Respondents acknowledge that "once a condition of employment has become established, [an agency] may not change it without first providing the opportunity to negotiate." Id. at 10. The Respondents argue, however, that because the facts in this case do not establish that the Shipyard knowingly allowed the use of the disputed parking spaces, or that the Shipyard had control over the spaces, or that any real change as to the use of the spaces by Shipyard employees took place, the Shipyard cannot be found to have violated the Statute. Id.

Finally, the Respondents contend that neither the Base nor the Station interfered with the bargaining relationship between the Shipyard and MTC and PEPS. The Respondents dispute the Judge's finding that the Base removed the spaces in dispute from the Shipyard's control and gave them to the Station, noting that the transfer occurred in 1983, well before the events in this case. The Respondents state that the Base and the Station are not in the same chain of command as the Shipyard, and argue that there is no evidence to demonstrate that the Base or the Station: (1) are at a higher level of command than the Shipyard; (2) have any authority over the Shipyard with regard to the matter at issue; or (3) directed the Shipyard not to bargain over the matter. Id. at 12.

The Respondents note the Authority's decision in Headquarters, Defense Logistics Agency, Washington, D.C., 22 FLRA 875 (1986) (Defense Logistics Agency). In that case, the Authority held that organizational entities of the same agency but not in the same chain of command may be found to violate section 7116(a)(1) of the Statute if it is shown that they have unlawfully interfered with the protected rights of employees other than their own, but may not be found to violate section 7116(a)(5) where there is no collective bargaining relationship with the exclusive representative of those other employees. Id. at 12-13, referencing Defense Logistics Agency, 22 FLRA at 883. The Respondents argue, accordingly, that because there is no bargaining relationship between the Base or the Station and MTC and PEPS, the Base and the Station can not be found to have violated section 7116(a)(5). Id. at 13. Additionally, the Respondents argue that "as there was no interference with the bargaining relationship between [the] Shipyard and [MTC and PEPS] since [the use of the parking spaces] did not involve a condition of employment," the Base and the Station also could not have violated section 7116(a)(1). Id.

B. The General Counsel's Opposition

The General Counsel contends that the availability of parking facilities is a condition of employment that an agency cannot change without first giving the exclusive representative of its employees notice and an opportunity to bargain over the substance as well as the impact and implementation of the change. General Counsel's Brief at 9. The General Counsel argues that even if the Shipyard did not cause the change in the availability of parking spaces, the Shipyard had an obligation to bargain about the change with regard to the disputed parking spaces in this case, at least to the extent of its discretion, and that it was "not at all clear that the Shipyard lacked discretion to control the decision to make the change." Id. at 10.

The General Counsel urges that because the change eliminated 11 parking spaces from an area that frequently was filled, the change was not de minimis but rather had a substantial impact on bargaining unit employees. Moreover, the General Counsel argues that because the Shipyard's obligation was to bargain on the substance of the change and not merely the impact and implementation of the change, the extent of the impact was not a valid consideration in deciding the unfair labor practice. Id. at 11.

In view of the Shipyard's responsibility to enforce parking policies at the entire Installation, the evidence that no employee ever received a warning or a parking citation for improper parking, and the testimony as to employees' open use over a long period of time of the spaces, the General Counsel argues that the Shipyard's awareness of the practice was clear. Id. Accordingly, the General Counsel contends that the Shipyard, by failing to give MTC and PEPS notice and an opportunity to bargain over the change, violated section 7116(a)(1) and (5) of the Statute. Id. at 12.

The General Counsel notes that the Base is the owner of all the property at the Installation, and that the Station exercises administrative control over the property, especially the property on which the disputed parking spaces are located. Given the Base's ownership of the property and the Station's administrative control thereof, the General Counsel argues that, by marking the disputed spaces as reserved for the use of library patrons without first ensuring that the Shipyard fulfilled its bargaining obligations with MTC and PEPS, the Base and the Station interfered with the bargaining relationship between the Shipyard and MTC and PEPS, in violation of section 7116(a)(1) and (5) of the Statute. Id. at 12-13.

V. Analysis and Conclusions

A. The Past Practice

As stated above, the ownership and administration of the property on which the disputed parking spaces are located shifted among the three Respondents over the years. However, the administration and enforcement of the parking rules and regulations was at all times material to this case the responsibility of the Shipyard. Also, the parking personnel (part of the Command Security Office that reports to the Base and the Shipyard) have at all times material to this case been employees of the Shipyard.

The record demonstrates that the tenant banks of Building 1032 on occasion had brought to the attention of the Base or the Station the use of the disputed parking spaces by other than bank patrons. The Base and the Station reported this to parking personnel, who sometimes ticketed cars in the areas reserved for bank patrons. However, the record does not establish that Shipyard employees' cars were ticketed because they had parked in the disputed spaces. Indeed, the Judge found that there was no evidence that either the employees or MTC or PEPS were told such parking was improper. The record also does not establish that the Base or the Station was made aware by the Shipyard or the parking personnel that Shipyard employees were not ticketed or told that the use of the disputed spaces was improper.

Based on the above, we find, in agreement with the Judge, that there was a past practice by the Shipyard of allowing Shipyard employees to use the disputed parking spaces. We find also that the Shipyard had acquiesced in the employees' use of the spaces and was aware that a change took place when the spaces were marked and reserved for use only by library patrons. However, also based on the above, we find, contrary to the Judge, that the record does not demonstrate that either the Base or the Station was aware of or acquiesced in the past practice or was aware that marking the spaces as reserved for library patrons constituted a change in the Shipyard's past practice.

B. Providing the Parking Spaces Was a Negotiable Condition of Employment

The Judge found that "absent any other limitation, the providing of parking to employees is a condition of employment and is, accordingly, negotiable[.]" Judge's Decision at 7. The Judge noted that "[t]his does not constitute a finding that there was an existing or past practice of providing parking[.]" Id. at 7 n.1. The Judge recognized that "the mere existence of some past practice can not make something a condition of employment[.]" Id.

In disagreement with the Respondents, we find that the Judge did not find that a past practice had "ripened into" a condition of employment. Rather, the Judge properly applied Authority precedent in finding that the subject matter of the dispute was a condition of employment. U.S. Customs Service, Washington, D.C., 29 FLRA 307 (1987); and American Federation of Government Employees, Local 644, AFL-CIO and U.S. Department of Labor, Occupational Safety and Health Administration, 21 FLRA 658, 663-65 (1986). In agreement with the Judge, and based on his reasoning, we find that the use of the disputed parking spaces by employees was a condition of employment at the time the change in practice took place.

C. The Shipyard Violated the Statute

We have agreed with the Judge that the Shipyard knowingly allowed its employees to use the disputed parking spaces and was aware that a change in this practice took place when the spaces were marked and reserved for use only by library patrons. Because the change was a change in a negotiable condition of employment, the Shipyard was required to give prior notice of the change and an opportunity to bargain over the change to MTC and PEPS. We also agree that while the Shipyard did not have sole discretion over the elimination of the disputed parking spaces, it was obligated to bargain with MTC and PEPS to the extent of the Shipyard's discretion. It was the Shipyard's responsibility to fulfill its duty to bargain or to seek the necessary authorization from the Station and the Base to do so. See Defense Logistics Agency, 22 FLRA at 879-80. In agreement with the Judge, and based on his reasoning, we also find that to bargain over the use of the spaces would not be inconsistent with Government-wide regulations.

Accordingly, in agreement with the Judge, we find that the Shipyard violated section 7116(a)(1) and (5) of the Statute by failing in its duty to give prior notice to MTC and PEPS and an opportunity to bargain over the change in the use of parking spaces.

D. The Base and the Station Did Not Violate the Statute

The bargaining relationship in this case is between the Shipyard and MTC and PEPS. Because there was no bargaining relationship between the Base or the Station and MTC or PEPS, and because the Base and the Station are neither in the same chain of command with the Shipyard nor at a higher level of command, the Base and the Station cannot be found to have violated section 7116(a)(5) of the Statute. See Defense Logistics Agency. However, we must still decide whether the Base or the Station violated section 7116(a)(1). In Defense Logistics Agency, the Authority held that "organizational entities of the same agency not in the same 'chain of command' as the entity at the level of exclusive recognition may commit violations of section 7116(a)(1) of the Statute if they are found to have unlawfully interfered with the protected rights of employees other than their own by taking action which conflicts with the bargaining relationship between the parties at the level of exclusive recognition." 22 FLRA at 883.

We have found above that the Base and the Station were not aware of and did not acquiesce in the Shipyard's practice of allowing the disputed spaces to be used by Shipyard employees, and that neither of them was made aware that marking the spaces as reserved for library patrons constituted a change in the Shipyard's past practice. Moreover, there is no showing that the Base or the Station directed or controlled how the Shipyard enforced parking regulations with regard to the disputed spaces, or that either was asked and refused to grant authorization to bargain, or ordered the Shipyard not to bargain over the change. We find that the record does not demonstrate that either the Base or the Station took any action which interfered with the bargaining relationships between the Shipyard and MTC and PEPS. Compare Defense Logistics Agency, where organizational entities not in the same chain of command were found to have taken action that directly interfered with the bargaining relationship between the parties at the level of exclusive recognition. 22 FLRA at 883-85.

Because there was no bargaining relationship between the Base or the Station and MTC or PEPS, we will dismiss the section 7116(a)(5) allegations of the complaint as to those Respondents. Because the General Counsel has not demonstrated that the Base or the Station unlawfully interfered with the bargaining relationships between the Shipyard and MTC and PEPS, we find that neither the Base nor the Station interfered with the protected rights of the Shipyard's employees in this case. Accordingly, we will also dismiss the section 7116(a)(1) allegations of the complaint as to the Base and the Station.

E. The Remedy

The Judge found that a status quo ante remedy was appropriate, and he ordered all the Respondents to take certain action. While we find that only the Shipyard violated the Statute, and we will order action to be taken only by the Shipyard, we find that a status quo ante remedy is appropriate.(*)

Where, as here, management has changed a negotiable condition of employment without fulfilling its obligation to bargain on that change, the Authority will grant a status quo ante remedy in the absence of special circumstances. A return to the status quo ante effectuates the purposes and policies of the Statute and ensures that the obligation to bargain is not rendered meaningless. The Respondents have not asserted or established any special circumstances to show that a status quo ante remedy is unwarranted in this case. See United States Army Adjutant General, Publication Center, St. Louis, Missouri, 35 FLRA 631, 634-35 (1990); and Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 35 FLRA 153, 155-56 (1990).

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Philadelphia Naval Shipyard shall:

1. Cease and desist from:

(a) Unilaterally changing working conditions of unit employees by implementing a policy of prohibiting employee parking in parking spaces located in the second row of spaces from Building 1032, the library, at the Philadelphia Naval Installation, without first giving notice and affording an opportunity to negotiate over the substance of the change to the Philadelphia Metal Trades Council, AFL-CIO, and the Planners, Estimators, Progressmen and Schedulers Association, Local 2, the exclusive representatives of its employees.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Rescind the policy of prohibiting employee parking in the parking spaces located in the second row from Building 1032, the library, at the Philadelphia Naval Installation.

(b) Notify the Philadelphia Metal Trades Council, AFL-CIO, and the Planners, Estimators, Progressmen and Schedulers Association, Local 2, exclusive representatives of employees of the Philadelphia Naval Shipyard, of any intended changes in conditions of employment, including changes in parking policies, and afford them the opportunity to negotiate over the changes.

(c) Post at its facilities throughout the Philadelphia Naval Installation 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 Commanding Officer of the Philadelphia Naval Shipyard and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

The allegations of the complaint as to the Philadelphia Naval Base and the Philadelphia Naval Station are dismissed.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change working conditions of unit employees by implementing a policy of prohibiting employee parking in parking spaces located in the second row of spaces from Building 1032, the library, at the Philadelphia Naval Installation, without first giving notice and affording an opportunity to negotiate over the substance of the change to the Philadelphia Metal Trades Council, AFL-CIO, and the Planners, Estimators, Progressmen and Schedulers Association, Local 2, the exclusive representatives of our employees.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL rescind the policy of prohibiting employee parking in the parking spaces located in the second row of spaces from Building 1032, the library, at the Philadelphia Naval Installation.

WE WILL notify the Philadelphia Metal Trades Council, AFL-CIO, and the Planners, Estimators, Progressmen and Schedulers Association, Local 2, exclusive representatives of employees of the Philadelphia Naval Shipyard, of any intended changes in conditions of employment, including changes in parking policies, and afford them the opportunity to negotiate over the changes.

______________________________________
(Philadelphia Naval Shipyard)

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 any of its provisions, they may communicate directly with the Regional Director, Region II, Federal Labor Relations Authority, whose address is: 26 Federal Plaza, Room 3700, New York, NY 10278, and whose telephone number is: (212) 264-4934.




FOOTNOTES:
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*/ Also, in order to conform with the Authority's