44:0821(68)NG - - SEIU, Local 200-B and VAMC, Syracuse, NY - - 1992 FLRAdec NG - - v44 p821



[ v44 p821 ]
44:0821(68)NG
The decision of the Authority follows:


44 FLRA No. 68

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

SERVICE EMPLOYEES INTERNATIONAL UNION

LOCAL 200-B

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

SYRACUSE, NEW YORK

(Agency)

0-NG-1895

DECISION AND ORDER ON NEGOTIABILITY ISSUES

April 16, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of six proposals regarding a parking facility at the Veterans Affairs Medical Center in Syracuse, New York.

Proposal 1 states that parking fees will not exceed $2.00 per month per employee or carpool. Proposal 2 allows employees who are on regular rotating shifts and who carpool to pay $2.00 per month and to use the same key card on any shift. Proposal 3 provides that security guards will not be responsible for ticket distribution or cashier duties at the parking garage. Proposal 4 states that employees using the garage on a daily basis will pay no more than $1.00 per day. Proposal 5 relates to the use of a key card. Proposal 6 requires the Agency to reimburse all parking fees collected from employees before negotiations with the Union began.

For the following reasons, we find that Proposals 1, 2 and 4 are negotiable because they do not interfere with management's right to determine its budget under section 7106(a)(1) of the Statute. Proposal 3 is nonnegotiable because it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Proposal 5 is negotiable because it is not inconsistent with any law, rule or regulation. Proposal 6 is nonnegotiable because it is inconsistent with law under section 7117(a)(1) of the Statute.

II. Procedural Issues

The Agency claims that the petition for review is deficient because it was not timely served on the Agency head. According to the Agency, its allegation of nonnegotiability was served on the Union on November 7, 1990, and, under the Authority's Rules and Regulations, the petition for review had to be served on all parties, including the Secretary of Veterans Affairs, on or before November 26, 1990. The Agency argues, therefore, that the petition for review was filed beyond the time limit set forth in section 2424.3 of the Rules and Regulations and should be dismissed.

Under section 2424.4(b) of the Rules and Regulations, a petition for review must be served on an agency head and on the principal agency bargaining representative. Section 2429.27(c) of the Rules and Regulations requires that a signed and dated statement of service be included with a petition for review. The record reveals that the Union's petition was filed with the Authority on November 15, 1990. On November 27, 1990, the Authority advised the Union that the petition was procedurally deficient because it did not include a signed statement of service showing service on the Agency head or a designee. In accordance with section 2424.4(c)(1) of the Rules and Regulations, the Union was given an opportunity to correct the deficiency by filing a statement of service with the Authority not later than December 10, 1990, showing service of the petition on the Agency's principal bargaining representative. The Union complied with the Authority's order on December 3, 1990, by filing the requisite statement of service. Because the Union timely cured the deficiencies in its petition, as ordered by the Authority, we deny the Agency's motion to dismiss. See National Association of Government Employees, Local R1-25 and Veterans Administration Medical Center, Brockton, Massachusetts, 23 FLRA 266 (1986).

The Agency also contends that the Union's initial failure to serve the petition on the Agency head prejudiced the Agency and made it impossible for the Agency to respond in a timely fashion. We disagree. Under section 2424.6(a) of the Rules and Regulations, an agency's statement of position must be filed with the Authority within 30 days after the date of receipt of a petition for review by an agency head. Where a petition contains procedural deficiencies, an agency ordinarily has 30 days to file its statement of position from the date it received the perfected petition. Here, as noted, the Union timely cured the deficiencies in its petition. Thereafter, the Agency requested and was granted a 9-day extension of time to file its statement of position. The Authority's records reveal that the Agency timely filed its statement of position. Accordingly, we conclude that the Union's initial failure to serve the Agency head with a copy of the petition did not prejudice the Agency and that the Agency had sufficient time to file and, in fact, did timely file its statement of position. See American Federation of Government Employees, Local 1513 and U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak Harbor, Washington, 41 FLRA 589, 591 (1991).

III. Background

By statute, the Secretary of Veterans Affairs (Secretary or VA) is authorized to acquire, construct or alter parking facilities to accommodate vehicles at Department of Veterans Affairs medical centers (VAMCs). 38 U.S.C.A. § 8109 (1991) (the parking law).(1) More specifically, section 8109(d)(1) requires the Secretary to collect parking fees at each VAMC where parking facilities are acquired, constructed or altered after September 30, 1986, at a cost exceeding $500,000. The Secretary must prescribe a fee schedule that is "reasonable under the circumstances." 38 U.S.C.A. § 8109(d)(2). The fees collected at these parking facilities are to be deposited into a revolving fund created by the parking law to offset the costs of acquisition, construction and alteration,(2) of parking facilities at VAMCs. 38 U.S.C.A. § 8109(h). The revolving fund also may be supplemented with congressional appropriations. 38 U.S.C.A. § 8109(g).

Pursuant to the parking law, the VA promulgated regulations for determining parking fees at VAMCs. The regulations provide that "[a]ll parking fees shall be set at a rate which shall be equivalent to one-half of the appropriate fair rental value . . . for the use of equivalent commercial space in the vicinity of the medical facility . . . ." 53 Fed. Reg. 25,490 (July 7, 1988), codified at 38 C.F.R. § 1.303(b) (1991).

On or about April 1, 1990, the Agency began operating a parking garage at its VAMC in Syracuse, New York. The parking garage was constructed at a cost of $7.8 million. Following VA regulations, the Agency contracted for a survey of commercial parking rates in the immediate area of the Syracuse VAMC. The survey showed that the fair rental value for garage parking in the vicinity of the Syracuse VAMC was $55.00 per month; $4.50 per day; and $1.50 per hour. Pursuant to this survey, the Secretary set the parking rates at the Syracuse VAMC at $27.50 per month; $2.25 per day; and $0.75 per hour.

Subsequently, the Union requested to bargain on six proposals related to parking at the Syracuse VAMC. The Agency responded that the establishment of parking fees was governed by law and that the proposals were not negotiable. The Union then filed the instant petition for review.

IV. Proposals 1, 2 and 4

Proposal 1

Parking fees will not exceed $2.00 per month per employee or carpool.

Proposal 2

Employees on regular rotating shifts who carpool

will pay $2.00 per month and can use the same card

key on any shift.

Proposal 4

Employees using the garage on a daily basis will pay no more than one dollar per day.

A. Positions of the Parties

1. Agency

The Agency argues that the proposals interfere with management's right to determine its budget under section 7106(a)(1) of the Statute. According to the Agency, parking at the Syracuse VAMC is governed by 38 U.S.C.A. § 8109 and is "self-financing and separate from the normal budgetary process." Statement of Position at 9. The Agency further contends that because the acquisition, construction and alteration of parking garages commenced after September 30, 1986, must be financed through the revolving fund, section 8109 "transforms the revolving fund into the VA's budget for such parking facilities." Id. at 12. The Agency also states that the only funds available for maintaining other VAMC garages that have free or low-cost parking fees are the fees collected pursuant to the parking law. The Agency claims that the Union's proposals for low-cost parking would result in an annual loss of $127,502 to the revolving fund. As a consequence, the Agency argues that the condition of parking garages will deteriorate. To avoid such deterioration, the Agency adds that it would have to make separate requests to Congress for appropriations to maintain the parking garages. The Agency asserts that requesting additional appropriations from Congress contradicts the intent of Congress "to make the construction, acquisition and maintenance of VA parking garages self-financing[,]" and would shift the financial burden to the taxpayer. Id. at 14.

Additionally, the Agency asserts that the Secretary's duty to charge parking fees is mandatory under 38 U.S.C.A. § 8109 and that the Secretary has sole authority to determine the fee structure. Therefore, the Agency claims that management's right to determine its budget in this case is protected under Federal labor law and is expressly placed within the Secretary's sole authority by section 8109. The Agency argues that any proposals which interfere with the Agency's "duty to ensure adequate financial support of its parking facilities are unlawful." Id. at 17.

With respect to its assertion that the proposals interfere with the Agency's right to determine its budget, the Agency contends that the test for determining whether a proposal interferes with that right, as established in American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), aff'd as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982) (Wright-Patterson), does not apply in this case. The Agency claims that the Wright-Patterson test applies only to proposals requiring expenditures from the budget and does not contemplate proposals affecting the revenue-raising ability of the Agency. Consequently, the Agency argues that the Authority should not apply Wright-Patterson in this case.

However, the Agency further argues that if the Authority applies Wright-Patterson, the proposals nonetheless fail to satisfy the test. The Agency claims, first, that the proposals prescribe a particular amount to be allocated to the budget. The Agency states that the established fee of $27.50 per month would provide $137,000 annually to the revolving fund, whereas the Union's proposed fee of $2.00 per month would provide only $10,008. Therefore, the Agency claims that the proposals will effectively prescribe the use of $127,502 annually in Agency funds for expenditures relating to VAMC parking facilities. Because the amount generated for the revolving fund under the proposals would be less than the amount generated by the fees set by the Agency, the Agency claims that it will be forced to use existing monies in the revolving fund to finance projects that otherwise would be funded from the parking fees.

The Agency also claims that the proposals will result in significant and unavoidable costs that are not offset by compensating benefits. The Agency asserts that adoption of the proposals would significantly reduce the revenue generated for the revolving fund, which supports 172 VAMCs. The Agency states that as of September 30, 1990, the revolving fund contained $280,738 and that the amount generated by the Union's proposals would only increase the fund to $290,746. In contrast, the fees set by the Agency would increase the revolving fund to $418,358. Consequently, the Agency states that the reduced revenue would create additional expenses for the Agency and "not result in any compensating monetary benefits to the VA." Statement of Position at 20.

The Agency also objects to the burden placed on agencies to disprove monetary benefits of proposals and to establish that increased costs of proposals will not be offset by intangible factors. Alternatively, the Agency claims that no intangible benefits will accrue if employees are charged lower parking fees. Rather, the Agency notes that employees have monthly parking fees automatically deducted from their paychecks and claims that if the employees are charged the fees set by the Secretary, the employees will have improved attendance and productivity because they "will be less likely to forfeit their investment . . . ." Id. at 23.

2. Union

The Union acknowledges that conditions of employment that are specifically provided for by Federal statute are excluded from negotiation. However, the Union claims that the establishment of particular parking fees is not specifically provided for by 38 U.S.C.A. § 8109. Rather, the Union argues that section 8109 leaves the establishment of parking fees to the discretion of the Secretary and, therefore, that the Agency should be required to bargain over those fees. The Union argues that, to be relieved of its obligation to bargain, the Agency must demonstrate that the regulation setting the proposed fees is an Agency regulation for which there is a compelling need. According to the Union, the Agency has not shown that the regulation meets any of the criteria for establishing a compelling need set forth in part 2424.11 of the Authority's Rules and Regulations.

The Union also asserts that Congress did not intend that the parking fees collected and deposited in the revolving fund would be the sole source of revenue to finance the construction and maintenance of parking garages at VAMCs. The Union notes that the Agency may request appropriations from Congress to finance parking garage construction and maintenance costs. The Union further argues that it is highly unlikely that a Federal agency would "select low paid [F]ederal health care employees to take substantial cuts in pay to finance [F]ederal capital expenditures." Response at 6.

Finally, contrary to the Agency's contention that the proposals would result in significant and unavoidable costs that are not offset by compensating benefits, the Union argues that excessive parking fees are "counter-productive to the mission of the Agency." Id. at 7. The Union claims that the Agency's parking fee does not consider the low salaries of the employees, the lack of public transportation in Syracuse, the existence of a nearby private hospital that offers free parking to its employees, or the fact that no parking fees have been charged in the past. The Union also asserts that parking fees may increase recruiting costs to the Agency, result in lower morale among the employees, and cause higher turnover. In this connection, the Union notes a decision of the Federal Service Impasses Panel (FSIP) adopting a union proposal to retain free parking at a VAMC parking facility. Department of Veterans Affairs, Washington, D.C. and National VA Council, American Federation of Government Employees, AFL-CIO Case Nos. 90 FSIP 32, 90 FSIP 37 (March 30, 1990). In that decision, the FSIP found that the savings to employees resulting from free parking and the consequent benefits to employee morale outweighed the loss of fees to the VA.

B. Analysis and Conclusions

For the following reasons, we conclude that Proposals 1, 2 and 4 are negotiable and do not interfere with the Agency's right to determine its budget under section 7106(a)(1) of the Statute.

Initially, we note the Agency's contention that because, by law, the Secretary is obligated to charge fees, the Secretary has the sole authority to determine the fee structure. We disagree. In our view, section 8109 does not mandate that the Secretary set a specific fee at VAMC parking facilities covered by the parking law. Rather, the statute gives the Secretary discretion "to establish fees which . . . are reasonable under the circumstances." 38 U.S.C.A. § 8109(d)(2). In the absence of any evidence in the statute that the Secretary's discretion in this regard was intended to be exclusive and unfettered, Authority precedent establishes that the Secretary may exercise this discretion through the collective bargaining process. See, for example, National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 41 FLRA 1057, 1062 (1991), petition for review filed sub nom. U.S. Department of the Army, Red River Army Depot, Texarkana, Texas v. FLRA, No. 91-1472 (D.C. Cir. Sept. 26, 1991). See also Department of Veterans Affairs, Veterans Administration Medical Center, Veterans Canteen Service, Lexington, Kentucky, 44 FLRA 162 (1992).

We also reject the Agency's argument that requesting additional appropriations for expenses relating to VAMC parking garages would be inconsistent with congressional intent that the acquisition, construction, and maintenance of parking garages be self-financing. The Agency itself notes, in this regard, that if the revolving fund contains insufficient funds, the Agency may request appropriations from Congress for construction and maintenance expenses.

Additionally, we note that while the Secretary, by regulation, has established that parking fees shall be set at one-half the fair rental value of equivalent commercial space in the vicinity of VAMCs, the Agency makes no argument that the regulation is a Government-wide regulation or an agency regulation for which there is a compelling need. Therefore, we need not address the Union's arguments that no compelling need exists for the regulation.

With respect to its budget argument, we reject the Agency's contention that the test set forth in Wright-Patterson is inapplicable to this case because the revolving fund is a revenue-raising mechanism. In our view, the budget test is as applicable in this circumstance as it is with regard to bargaining proposals involving nonappropriated fund activities, which also are revenue-raising entities. See, for example, National Association of Government Employees, Local R4-26 and U.S. Department of the Air Force, Langley Air Force Base, Virginia, 40 FLRA 118, 126 (1991) (Langley Air Force Base) (agency explains that nonappropriated fund instrumentality system is self-financing); American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, Air Logistics Center, Sacramento, California, 36 FLRA 894 (1990). Therefore, we find no basis on which to distinguish this case from Wright-Patterson, as suggested by the Agency.

Turning to Wright-Patterson, we note that in that decision the Authority established two separate tests for determining whether a proposal interferes with management's right to determine its budget. Under the first test, an agency must demonstrate that the proposal prescribes the particular programs or operations the agency will include in its budget or prescribes the amount to be allocated in the budget for them. The second test requires that an agency substantially demonstrate that the proposal entails an increase in costs that is significant and unavoidable and is not offset by compensating benefits. In applying these tests to the facts of this case, we find that the Agency has not established that the proposals interfere with the Agency's right to determine its budget.

1. The Agency Has Not Satisfied the First Budget Test

The first budget test is a narrow one. It withdraws from bargaining only those proposals addressed to the budget per se, not those that would result in expenditures by an agency and, consequently, merely have some effect on the budget process. See Tidewater Virginia Federal Employees Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 37 FLRA 938, 947 (1990). Proposals that simply have cost ramifications cannot be said to inject a union directly into the budget formulation process that is protected from bargaining under the first budget test. Id.

The proposals in this case do not involve the Union in the budgetary process itself but are limited to requiring the Agency to make reduced rate parking available to employees who park in the Syracuse VAMC garage. The proposals neither prescribe a program or operation to be included in the Agency's budget nor an amount to be included in the Agency's budget. The proposals leave to the Agency the judgment as to how to accommodate the fees established by the proposals relative to the construction and maintenance costs at various VAMC parking facilities. For example, section 8109(g) of the parking law authorizes the use of appropriated funds to finance the construction, alteration, and acquisition of parking garages in addition to the parking fees established and collected under section 8109(c). As previously noted, the Agency concedes that, if the revolving fund contains insufficient funds, the Agency may request appropriations from Congress for construction and alteration expenses.

In sum, we find that, under the first budget test, the proposals do not interfere with the Agency's right to determine its budget under section 7106(a)(1) of the Statute.

2. The Agency Has Not Satisfied the Second Budget Test

As stated above, a proposal may also be found nonnegotiable if it results in a significant and unavoidable increase in costs that is not offset by compensating benefits.(3) The mere fact that a proposal may increase costs, however, is not sufficient to establish that it is a significant amount for purposes of the budget test. See Fort Stewart Schools v. FLRA, 495 U.S. 641, 653 (1990). The Agency asserts that implementing the Union's reduced parking fees will create additional operating expenses for the Agency that are not offset by compensating benefits and will generate reduced revenues for the revolving fund. We find that the Agency has failed to satisfy the second budget test.

As noted earlier, the Agency states that as of September 30, 1990, the revolving fund contained $280,738 in parking fees, which the Agency terms the relevant budget for assessing the negotiability of the proposals. According to the Agency, its proposed parking fee structure would add $137,000 annually to the revolving fund, based on the use of 417 parking spaces at VAMC Syracuse, raising the total amount in the revolving fund, as of that date, to $418,358. By contrast, the Agency claims that, under the Union's proposals, parking fees would contribute only $10,008 to the revolving fund, bringing the total amount in the fund to $290,746. The Agency argues that the difference in the contribution to the revolving fund of $127,502 is a significant proportion of the revolving fund. The Agency states that the fund must support 172 VAMCs and that, as a result of the proposals, only $290,746 would be available for operations at all the VAMC parking facilities.

It is clear that, under the Union's proposals, the amount of revenue generated for the revolving fund would be less than the amount generated under the Agency's fee structure. However, we do not view the diminution in contributions to the revolving fund as presenting the type of significant costs that would render the proposals nonnegotiable. The Agency argues that, under section 8109(h)(3)(A) of the parking law, only money from the revolving fund may be used to construct, acquire or alter parking garages. However, based on the information provided in the record, it does not appear that sufficient funds could be generated for the revolving fund for these purposes based solely on the fees charged for parking. In this regard, we note that the imposition of fees is not mandatory at all VAMC parking facilities. Rather, fees are mandatory at those facilities that were constructed after September 30, 1986, at a cost exceeding $500,000, or acquired by lease at a cost exceeding $100,000, and at those facilities involving alteration at a cost exceeding $500,000. See 38 U.S.C.A. § 8109(d). The imposition of fees at other facilities is discretionary. See 38 U.S.C.A. § 8109(e). In fact, the Agency states that, at present, there are only 5 parking garages out of 172 facilities at which it has implemented parking fees. The Agency also states that the construction cost of the parking garage at the Syracuse facility was $7.8 million. Under these circumstances, it is not clear that an additional $127,502 in the revolving fund would be a significant factor in supporting the construction, acquisition or alteration of parking facilities at any one of the VAMCs, let alone all 172 VAMCs, as argued by the Agency. Rather, that amount is relatively modest when compared with the construction costs at a single parking facility. Therefore, not only has the Agency failed to establish that the increase in costs would be significant, but the available evidence suggests the contrary.

Having found that the proposals would not result in significant and unavoidable costs, it is unnecessary to address whether there are offsetting compensating benefits. See Langley Air Force Base, 40 FLRA at 133-34 (in light of finding that proposals did not entail significant increase in costs, there was no need to address whether costs of proposals were unavoidable or were not offset by compensating benefits).

For the reasons set forth above, we conclude that Proposals 1, 2 and 4 do not interfere with the Agency's right to determine its budget under section 7106(a) of the Statute. We note also that Proposal 2, in addition to establishing a parking fee for carpools, also provides that employees on regular rotating shifts who carpool can use the same card key on any shift. Although the Union did not provide any explanation as to the meaning of this portion of the proposal, it appears that it is designed to accomodate employees who work on rotating shifts and who would be able to use the same card on each shift, rather than having to obtain a different card for each shift. As the Agency did not make any arguments regarding this part of Proposal 2, and as it does not appear to be contrary to any law, rule or regulation, we find that Proposal 2 is negotiable in its entirety.

In reaching our conclusion that Proposals 1, 2 and 4 are negotiable, we note that a finding of negotiability means only that a proposal is within the duty to bargain and could legally be implemented. A party is not bound to accept the proposal of another party but is free to reject it or seek to modify it during the bargaining process. An agency has no obligation to abandon what it believes to be the best interests of the agency merely because it must negotiate on a proposal. Should the parties be unable to reach agreement, their concerns can be presented to the FSIP in a proceeding pursuant to section 7119 of the Statute. See National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 414 (1990).

V. Proposal 3

Security guards will not be responsible for cashiering or ticket distribution duties related to the parking garage.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 3 interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute because it would prohibit the Agency from assigning various duties to security guards. The Agency argues that the Authority has held nonnegotiable proposals that prevent an agency from requiring employees to perform certain duties when those duties are not within the employees' regular field of work or are not appropriate to the employees' positions. The Agency asserts, although neither conceding nor denying that it anticipates assigning cashiering and ticket distribution duties to the security guards, that because the proposal would preempt the Agency's ability to assign certain duties to the security guards, it interferes with management's right to assign work.

2. Union

The Union argues that the proposal is negotiable because assigning cashiering duties to security guards will have an adverse effect on the health and safety of the employees. The Union asserts that there are high levels of violent outbreaks in emergency rooms and psychiatric wards and that if security guards are assigned to cashiering duties in the parking garage they will spend less time patrolling the VAMC, "leav{ing} staff and lone security officers in eminent danger . . . ." Response at 9.

B. Analysis and Conclusions

For the following reasons, we conclude that the proposal directly and excessively interferes with the Agency's right to assign work. The right to assign work under section 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what position the duties will be assigned. See National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 399 (1990). By expressly precluding the Agency from assigning cashiering or ticket distribution duties to security guards, Proposal 3 directly interferes with management's right to assign work.

This does not end our inquiry, however. Although the Union did not specifically state that its proposal was intended as an arrangement, where, as here, a proposal is clearly designed to offer benefits or protections to employees adversely affected by the exercise of a management right, we will assess whether the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. See Federal Professional Nurses Association, Local 2707 and U.S. Department of Health and Human Services, Division of Federal Employee Occupational Health, Region III, 43 FLRA 385, 393 (1991). To determine whether a proposal constitutes an appropriate arrangement, we must decide whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right, and whether the proposal is appropriate because it does not excessively interfere with the exercise of a management right. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986). For the reasons set forth below, we conclude that the proposal excessively interferes with the exercise of management's right to assign work.

The Union states that the proposal will enable the security guards to devote their time to patrolling the VAMC to ensure the safety of employees, including security officers on lone patrol. We find that the proposal thus constitutes an arrangement for employees adversely affected by management's right to assign work.

We further find, after balancing the competing interests of the Agency in being able to assign work and the safety considerations as they relate to employees, that the proposal would excessively interfere with the exercise of management's right to assign work. In terms of the benefits that would be afforded to employees under the proposal, it is clear that security guards who may be assigned cashiering and/or ticket distribution duties in the parking garage will not be available to patrol the VAMC on a full-time basis. Thus, there would be an effect on the security guards' ability to assist employees and staff personnel with volatile situations that may occur in the emergency rooms and psychiatric wards.

At the same time, however, the Union's proposal would impose an absolute restriction on the Agency's ability to assign certain duties to the security guards. We view this intrusion on the exercise of management's right as outweighing the benefits inuring to employees. In this regard, there is no evidence in the record that security guards would spend such an inordinate amount of time on cashiering and ticket distribution duties, if so assigned, that the amount of time available to perform patrol and other security-related duties would be significantly reduced. We note that if security guards are assigned to perform cashiering or ticket distribution duties, and such duties are performed in or around the parking garage, it is possible that the presence of the guards would enhance the safety of those using the parking garage. Accordingly, on balance, we conclude that the proposal, which would totally prevent the Agency from assigning certain duties to security guards, excessively interferes with the Agency's right to assign work, and is nonnegotiable. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Louisville, Kentucky, 39 FLRA 1169, 1180-82 (1991), vacated and remanded as to other matters sub nom. U.S. Department of Defense, Defense Mapping Agency, Louisville, Kentucky v. FLRA, No. 91-1217 (D.C. Cir. Feb. 28, 1992) (proposal that would completely prohibit management from assigning certain tasks to unit employees found to excessively interfere with management's right to assign work). Compare Overseas Education Association and Department of Defense Dependents Schools, 39 FLRA 153, 164-65 (1991) (proposal requiring agency to make every reasonable effort to assign lunchroom monitoring duties to aides rather than to teachers found to constitute a negotiable appropriate arrangement).

VI. Proposal 5

Multiple cars may be registered to one key card but only one card is applicable to any one parking slot at a given time.

A. Analysis and Conclusions

By its plain wording, the proposal would allow more than one vehicle to be registered to a key card, although that card could only be used with one parking space at any given time. The Union did not explain the meaning of the proposal nor did the Agency make any specific arguments regarding Proposal 5 in its statement of position. Rather, in its allegation of nonnegotiability with regard to all six proposals, the Agency responded, generally, that parking fees at VAMC Syracuse are governed by law and that the Agency's obligation to bargain was limited to impact and implementation matters.

In our view, the proposal does not appear to be contrary to any law, rule or regulation. Rather, the proposal appears to contemplate that the holder of a key card, either a single employee or a carpool, could drive different vehicles to work on different days. The proposal simply permits more than one vehicle to be registered to a key card and acknowledges that only one parking space is available per key card. Under these circumstances, we conclude that Proposal 5 is negotiable.

VII. Proposal 6

All fees collected from bargaining unit members that were charged without first negotiating with the Union will be reimbursed.

A. Positions of the Parties

1. Agency

The Agency contends that requiring the Agency to reimburse parking fees already paid is nonnegotiable because it is contrary to 38 U.S.C.A. § 8109(d)(1)(A). The Agency argues that "{s}ection [8109] states that the Secretary shall collect parking fees" and, therefore, that that section leaves no discretion to the Secretary to reimburse fees paid prior to bargaining with the Union. Statement of Position at 26 (emphasis in original). Additionally, the Agency claims that section 8109 requires the Secretary to establish fee schedules that are reasonable under the circumstances, and that the Agency's regulations provide that the parking fees at VAMCs will be set at one-half of the fair rental value for the use of equivalent commercial space in the vicinity. Following these requirements, the Agency argues that the fees set by the Secretary are "reasonable to adequately subsidize" the revolving fund. Id. at 27.

The Agency also argues that reimbursing fees already paid would, in effect, require the Agency to provide free parking to employees for the period of time between the opening of the garage and the implementation of the proposal. The Agency assumes that because the proposal makes no provision for the deduction of any fee that eventually might be set from the amount to be reimbursed, such fees would not be deducted. Therefore, the Agency concludes that it will have provided employees with free parking, contrary to the requirement in section 8109 that the Secretary collect parking fees.

Finally, the Agency asserts that Proposal 6 is nonnegotiable because there is no statute authorizing any funds to reimburse employees for parking fees already paid. According to the Agency, the Authority has held that proposals requiring an Agency to obligate funds that have not been appropriated for the proposed purpose are unlawful unless the Agency has specific authority to obligate funds in advance of appropriations. Because the revolving fund is committed to the acquisition, construction and maintenance of parking garages, the Agency argues that there are no funds specifically authorized to reimburse employees for parking fees.

2. Union

The Union argues that the establishment of parking fees is not specifically provided for by Federal law, and that section 8109 leaves the establishment of those fees to the discretion of the Secretary. The Union maintains that the Agency should have bargained with the Union before imposing parking fees. As the Agency did not bargain over the parking fees, the Union claims that all the parking fees collected by the Agency should be refunded to bargaining unit employees and that interest on such amounts should also be paid. The Union argues that such a remedy is not unreasonable because the Agency failed to meet its obligation to bargain and collected the parking fees unlawfully.(4)

B. Analysis and Conclusions

The Union clearly states that Proposal 6 would require the Agency to reimburse all parking fees collected from bargaining unit employees and to pay interest on the monies returned. We find that the proposal is inconsistent with 38 U.S.C.A. § 8109(c)(3) and, therefore, that it is outside the duty to bargain under section 7117(a)(1) of the Statute.

Under section 8109(c)(3), the Secretary is required to collect fees for parking at the Agency's parking garage. By requiring that all fees be reimbursed, the proposal would have the effect of providing free parking. As such, the proposal is inconsistent with law. We note that there is nothing in the proposal to suggest that it would require only reimbursement of the difference between the fees actually charged and the fees that ultimately would be negotiated. To the contrary, the Union's position is that all monies would have to be returned to employees. For this reason, the proposal is distinguishable from the arbitral remedy that was sustained by the Authority in U.S. Department of Veterans Affairs Medical Center, Atlanta, Georgia and National Federation of Federal Employees, Local 2102, 44 FLRA No. 37 (1992). That case involved an interpretation of a portion of the VA parking regulation that establishes how the Secretary will survey comparable commercial parking rates in order to determine the fee structure for VAMC parking garages. The Authority upheld the arbitrator's finding that the establishment of parking rates at the particular VAMC was not in accordance with the regulation. The Authority also sustained the award insofar as it directed the imposition of fees in accordance with the regulation and the reimbursement of fees to employees, under prescribed conditions, if the fees that should have been charged were lower than the fees actually charged.

Having found that Proposal 6 is inconsistent with Federal law, we need not address whether the proposal is an appropriate arrangement under section 7106(b)(3). Section 7106(b)(3) applies to the exercise of management's rights under section 7106 of the Statute and does not make negotiable a matter that, as here, is inconsistent with law under section 7117(a)(1) of the Statute. See National Federation of Federal Employees, Local 1214 and Department of the Army, Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1196-97 (1991). Additionally, in light of our conclusion, we need not address the Agency's additional contention regarding the use of appropriated funds.

VIII. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on Proposals 1, 2, 4 and 5.(5) The petition for review as to Proposals 3 and 6 is dismissed.

APPENDIX

The relevant provisions of 38 U.S.C.A. § 8109 provide:

(c)(1) Except as provided in paragraph (2) of this subsection, each employee, visitor, and other individual having business at a medical facility for which parking fees have been established under subsection (d) or (e) of this section shall be charged the applicable parking fee for the use of a parking facility at such medical facility.

(2) A parking fee shall not be charged under this subsection for the accommodation of any vehicle used to transport to or from a medical facility--

(A) a veteran or eligible person in connection with such veteran or eligible person seeking examination or treatment; or

(B) a volunteer worker (as determined in accordance with regulations which the Secretary shall prescribe) in connection with such worker performing services for the benefit of veterans receiving care at a medical facility.

(3) The Secretary shall collect (or provide for the collection of) parking fees charged under this subsection.

(d)(1) For each medical facility where funds from the revolving fund described in subsection (h) of this section are expended for--

(A) a garage constructed or acquired by the Department at a cost exceeding $500,000 (or, in the case of acquisition by lease, $100,000 per year); or

(B) a project for the alteration of a garage at a cost exceeding $500,000,

the Secretary shall prescribe a schedule of parking fees to be charged at all parking facilities used in connection with such medical facility.

(2) The parking fee schedule prescribed for a medical facility referred to in paragraph (1) of this subsection shall be designed to establish fees which the Secretary determines are reasonable under the circumstances.

(e) The Secretary may prescribe a schedule of parking fees for the parking facilities at any medical facility not referred to in subsection (d) of this section. Any such schedule shall be designed to establish fees which the Secretary determines to be reasonable under the circumstances and shall cover all parking facilities used in connection with such medical facility.

(f) The Secretary may contract (by lease or otherwise) for the operation of parking facilities at medical facilities under such terms and conditions as the Secretary prescribes and may do so without regard to laws requiring full and open competition.

(g) Subject to subsections (h) and (i) of this section, there are authorized to be appropriated such amounts as are necessary to finance (in whole or in part) the construction, alteration, and acquisition (including site acquisition) of parking facilities at medical facilities.

(h)(1) Amounts appropriated pursuant to subsection (g) of this section and parking fees collected under subsection (c) of this section shall be administered as a revolving fund and shall be available without fiscal year limitation.

(2) The revolving fund shall be deposited in a checking account with the Treasurer of the United States.

(3)(A) Except as provided in subparagraph (B) of this paragraph, no funds other than funds from the revolving fund may be expended for the construction, alteration, or acquisition (including site acquisition) of a garage at a medical facility after September 30, 1986.

(B) Subparagraph (A) of this paragraph does not apply to the use of funds for investigations and studies, surveys, designs, plans, working drawings, specifications, and similar actions not directly involved in the physical construction of a structure.

(i)(1) The expenditure of funds from the revolving fund may be made only for the construction, alteration, and acquisition (including site acquisition) of parking facilities at medical facilities and may be made only as provided for in appropriation Acts.

(2) For the purpose of section 8104(a)(2) of this title, a bill, resolution, or amendment which provides that funds in the revolving fund (including any funds proposed in such bill, resolution, or amendment to be appropriated to the revolving fund) may be expended for a project involving a total expenditure of more than $2,000,000 for the construction, alteration, or acquisition (including site acquisition) of a parking facility or facilities at a medical facility shall be considered to be a bill, resolution, or amendment making an appropriation which may be expended for a major medical facility project.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The statute establishing the parking law, which was originally codified at 38 U.S.C. § 5009, is now codified at 38 U.S.C.A. § 8109 (West 1991), Pub. L. 102-40, 105 Stat. 238, 239 (May 7, 1991). For decision-making purposes, all references to the provisions of the parking law have been renumbered accordingly. Additionally, the relevant text of 38 U.S.C.A. § 8109 appears in an Appendix to this decision.

2. 38 U.S.C.A. § 8101(1) defines the term "alter" as "repair, remodel, improve, or extend such medical facility." Section 8101(3), in turn, defines "medical facility" to include garages and parking facilities. Based on these definitions, and the parties' contentions addressed below, the term alteration obviously encompasses the maintenance of parking facilities for such items as repairs.

3. We express no view on the continued viability of the second budget test or on whether the "compensating benefits" portion of the test should include monetary be