44:0988(81)CA - - DOL, Washington, DC and AFGE Local 12 - - 1992 FLRAdec CA - - v44 p988

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44:0988(81)CA
The decision of the Authority follows:


44 FLRA No. 81

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF LABOR

WASHINGTON, D.C.

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 12, AFL-CIO

(Charging Party)

3-CA-00464

DECISION AND ORDER

April 28, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel did not file an opposition to the Respondent's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing changes in parking garage operations without negotiating over the substance, impact and implementation of the changes. The Judge found that the Respondent violated the Statute and recommended a status quo ante remedy, including make whole relief for bargaining unit employees.

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, as modified below.

II. Background

The Union is the exclusive representative of a unit of approximately 4,000 of the Respondent's employees in the Washington, D.C., metropolitan area. The Respondent is the principal occupant of the Frances Perkins Building located at 200 Constitution Avenue, N.W., Washington, D.C. Under a delegation of authority from the General Services Administration, the Respondent operates three underground parking garages in the Perkins Building. Approximately 805 of the 1,029 parking spaces are reserved for the Respondent's employees. Approximately 630 of the 805 parking spaces are allotted for general employee use, such as carpools and van pools.

In the fall of 1989, the Respondent and the Union met at one of the parties' quarterly labor-management relations committee meetings to discuss a variety of issues. During the meeting, the Respondent informed the Union that it wanted to raise the fee charged for parking permits at the Perkins Building. The Union responded that it would not agree to any parking fee increase without bargaining on the subject. The Respondent's Director for Employee and Labor Management Relations advised the Union that management did not consider that the subject of parking fees was negotiable. No further action on the subject of parking fees was taken by either party until April 1990.

On April 9, 1990, the Respondent issued a memorandum to employees announcing changes in parking garage operations. The memorandum stated that effective May 1, 1990, the hours of operation of the parking garages would be extended and that the monthly fee for parking permits would increase from $10.30 to $16.80. Another change in operations, not referenced in the memorandum but also instituted by the Respondent, related to the purchase of parking permits on a quarterly, rather than a monthly, basis. The Respondent notified the Union of the changes in hours of operation and fees by issuing a memorandum to the Union president on April 10, 1991. The Union thereupon filed an unfair labor practice charge.

III. Administrative Law Judge's Decision

The Judge found that parking arrangements for unit employees are conditions of employment, and that management was not free to make changes in those arrangements without giving the Union an opportunity to bargain over the substance, impact, and implementation of the changes. The Judge also found that parking arrangements and parking costs are of vital concern to employees and are within the Respondent's duty to bargain. The Judge rejected the Respondent's argument that parking fees are employee commuting expenses which the Respondent is prohibited by law from paying. The Judge found that parking was already being provided by the Respondent and that the Union simply was "seeking lower priced parking for bargaining unit employees, instead of the parking fee unilaterally implemented by Respondent." Judge's Decision at 8.

Additionally, the Judge rejected the Respondent's argument that there was no duty to bargain because the change in parking garage operations had a de minimis effect on the bargaining unit. The Judge stated that the extent of the effect was irrelevant because the changes in parking arrangements were substantively negotiable. The Judge further found no evidence to establish that the Respondent was precluded from bargaining over the changes.

The Judge also addressed and rejected several contentions made by the Respondent concerning an asserted waiver of the Union's right to bargain. First, the Judge rejected the Respondent's argument that it had no duty to bargain over the change in parking arrangements because the Union did not request to negotiate after it received notice of the changes on April 10 and prior to implementation of the changes on May 1. The Judge found that the April 9 announcement to employees "presented the Union with a fait accompli." Id. at 6. The Judge further found that the April 10 "after-the-fact notice" to the Union did not satisfy the Respondent's obligation to notify the Union and provide it with an opportunity to bargain before implementing the changes. Id.

Second, the Judge found that the Union did not waive its right to bargain after a representative of the Respondent mentioned the proposed fee increase in the 1989 labor management relations committee meeting. The Judge found that the Union did not have actual notice of the changes in parking operations until after the announcement had been made to unit employees. As to the limited matter of an increase in parking fees, the Judge determined that the Respondent's statement at the meeting that "'they were going to raise the fee[]'" was not sufficient notice of the change because it gave no other details regarding the change, such as when the increase in fees would be implemented. Id. at 7. Moreover, the Judge concluded that, in view of the statement by the Respondent's official that the matter was not negotiable, a request for negotiations at that time would have appeared "futile or pointless." Id. As a consequence, the Judge found that the Union was effectively prevented from negotiating prior to the announced changes.

Finally, the Judge rejected the Respondent's contention that the Union waived its bargaining rights by failing to raise the issue of parking fees as an agenda item at any of the parties' mid-term bargaining sessions, either before or after the Union was notified of the proposed change in fees. The Judge found that there had been no clear and unmistakable waiver on the Union's part. The Judge noted the absence of clear evidence that, prior to the change, the Union was advised that the increase, in fact, would occur, when it would occur, and the amount of the increase. Additionally, the Judge found that, apart from the fee increase, the matter of frequency of collection of the fees appeared not to have been the subject of negotiations at all.

Based on the foregoing, the Judge concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute.(*) To remedy the Respondent's unlawful conduct, the Judge found that, in the absence of special circumstances, a status quo ante remedy was appropriate. In so recommending, the Judge addressed and rejected the Respondent's contentions that: (1) the increased parking fees did not constitute backpay but, rather, were fees paid to a contractor over whom the Authority has no jurisdiction; and (2) the Authority lacks "restitutionary power to order their repayment." Id. at 9. The Judge reasoned that the Respondent was obligated to bargain "at least to the extent it was able[.]" Id. Noting that the Authority fashions remedies in order to effectuate the purposes and policies of the Statute, and that such remedies include make whole orders where a refusal to bargain results in "an elimination or reduction in pay, allowances or differentials[,]" the Judge ordered the Respondent to make unit employees whole and to rescind the changes in parking arrangements. Id.

IV. Respondent's Exceptions

The Respondent contends that the Judge erred in concluding that: (1) the subject of parking fees is negotiable; (2) there was a change in conditions of employment; (3) the Union did not waive its right to bargain when it was given notice of Respondent's intentions and failed to request bargaining; and (4) a status quo ante remedy is appropriate.

The Respondent maintains that while the availability of parking can become a condition of employment, the only change at issue in this case is the parking fee, and not the availability of parking. The Respondent asserts that neither the extended hours of operation nor the change to a quarterly permit adversely affected employees. Instead, the Respondent argues that such changes were beneficial or had a limited effect on employees. Consequently, the Respondent argues that there was no duty to bargain over such changes. The Respondent also contends that parking fees do not involve conditions of employment because the fees are commuting expenses that must be borne by employees and commuting is a non-work activity performed in a non-duty status.

Additionally, relying on Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986), the Respondent claims that parking fees do not concern conditions of employment of bargaining unit employees and there is no connection between the fee paid by those who park in the garage and the employment relationship of bargaining unit employees. The Respondent states that the purpose of operating the parking garage is to benefit all workers in the commuting area, not only the Respondent's employees, and that the parking garage provides only an indirect benefit to the Respondent's employees. The Respondent maintains, in this regard, that it is "mere happenstance" that the parking garages are located in the Perkins Building. Exceptions at 13.

The Respondent further argues that the increase in the parking fee is nonnegotiable because it applies to both bargaining unit and non-bargaining unit employees, but does not "vitally affect" the working conditions of the bargaining unit. Exceptions at 10. The Respondent asserts that only one-third of carpool members using the parking garage are bargaining unit employees, and that an estimated increase in cost per employee per month of $1.27 is too insubstantial to vitally affect the working conditions of the bargaining unit.

In support of its exception that the fee increase did not constitute a change in conditions of employment, the Respondent contends that employees have always paid the cost of operating the garages, even though there have been fluctuations in the fee charged for parking. The Respondent also notes that an independent contractor, rather than the Respondent, retains all monies collected from the purchase of parking permits, and that such monies cover the contractor's operating costs.

The Respondent also contests the Judge's findings that the Union's conduct did not constitute a waiver. The Respondent maintains that after the Union was notified of the fee increase at the labor management relations committee meeting in the fall of 1989, the Union had an obligation to place the subject on the agenda at an upcoming mid-term bargaining committee meeting if it wished to negotiate over the proposed change. The Respondent states that because the Union failed to do so, the Respondent concluded that the Union did not wish to bargain. The Respondent also disputes the Judge's finding that the notice provided to the Union was insufficient. According to the Respondent, the specific information cited by the Judge as not having been provided to the Union was unnecessary to enable the Union to make an appropriate bargaining request.

Finally, the Respondent excepts to the status quo ante remedy. The Respondent argues that make whole relief would create a windfall for employees because they have benefitted from the fee increase, notably, in the form of guard service provided in the garage. The Respondent also argues, as it had previously, that it does not retain fees paid for parking but, rather, that all fees are retained by the independent contractor to cover both its cost of operations and its profit. The Respondent also claims that the increased parking fee does not constitute a loss of pay and that the Judge erred in granting a backpay award to employees. In support, the Respondent relies on Garbacz v. United States, 656 F.2d 628 (Ct. Cl. 1981). The Respondent further maintains that the Judge's Order requires the Respondent to bargain over pay, a matter that is excluded from bargaining, and requires the Respondent to reimburse employees' commuting costs, which is contrary to law. The Respondent relies on National Treasury Employees Union and Family Support Administration, Department of Health and Human Services, 30 FLRA 677 (1987) (Health and Human Services), and the Comptroller General decision cited therein. Alternatively, the Respondent argues that if a status quo ante remedy is found appropriate, the parties should be directed to return to the status quo as of May 1, 1990, to bargain from that date, and to determine the amount due employees based on the results of that bargaining.

V. Analysis and Conclusions

We agree with the Judge's finding that the Respondent was obligated to bargain over the changes in parking garage operations and that its failure to do so violated section 7116(a)(1) and (5) of the Statute.

A. The Changes in Parking Garage Operations Were Negotiable Conditions of Employment

It is well established that the provision of parking facilities for bargaining unit employees is a condition of employment within the meaning of section 7103(a)(14) of the Statute. See United States Immigration and Naturalization Service, 43 FLRA 3 (1991) (Member Armendariz dissenting as to the remedy); U.S. Department of the Air Force, Williams Air Force Base, Chandler, Arizona, 38 FLRA 549 (1990); Philadelphia Naval Base, Philadelphia Naval Station and Philadelphia Naval Shipyard, 37 FLRA 79 (1990). In this case, the Judge found, and we agree, that the Respondent was obligated to bargain over the substance of the changes, as well as their impact and implementation. We also agree, for the reasons set forth by the Judge, that the Union did not waive its right to bargain over the changes. Additionally, we find, as did the Judge, that the changes effected by the Respondent involved several matters, not simply the fee increase as claimed by the Respondent. The Respondent's contention that the changes in parking garage operations, other than the fee increase, did not give rise to a bargaining obligation because those changes did not adversely affect any employees or had a de minimis effect, cannot be sustained. Where, as here, there is an obligation to bargain over the substance of a change, the effect of the change on working conditions is not relevant. See National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 396 (1990).

We also reject the Respondent's reliance on Health and Human Services and its argument that reimbursement for parking is contrary to law because parking is a commuting activity. In its decision in Health and Human Services, the Authority examined relevant provisions of law and a decision of the Comptroller General in finding nonnegotiable a proposal that would have required reimbursement of employee commuting expenses. The Authority distinguished its holding from prior cases in which unions sought to continue the availability of free or low cost parking spaces for employees. We find that the matter of the fee increase for bargaining unit employees relates to the continued availability of low cost parking for those employees and constitutes a negotiable condition of employment. See, for example, Philadelphia Naval Base, Philadelphia Naval Station and Philadelphia Naval Shipyard, 37 FLRA 79, 87 (1990) (providing parking for employees is a condition of employment). Therefore, we find that the parking fee at issue in this case does not concern employee commuting expenses. See also United States Department of the Treasury, Internal Revenue Service, 25 FLRA 843, 846-48 (1987), aff'd sub nom. National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc), in which the Authority addressed, in part, an agency's refusal to bargain over payment by employees for parking following an office relocation. The Authority rejected the agency's argument that a proposal designed to ensure that employee parking expenses not exceed a certain level constituted reimbursement of employee commuting expenses. Instead, the Authority found that the proposal sought to provide free or low cost parking and was within the duty to bargain.

Finally, we note that in finding that the parking arrangements constituted a condition of employment, the Judge determined that such matters were of vital concern to unit employees. In its exceptions, the Respondent claims that the parking fee increase is too insubstantial to vitally affect the working conditions of unit employees. Also, the Respondent claims that the parking garage provides benefits to all workers in the commuting area, not simply the Respondent's employees.

We find that the vitally affects test is not applicable to the issues in this case. Subsequent to the Judge's decision, the United States Court of Appeals for the District of Columbia Circuit examined the Authority's application of its vitally affects test. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, No. 91-1123 (D.C. Cir. Jan. 14, 1992) (Cherry Point). The court expressed the view that such a test is appropriately used to define "subjects not normally seen to be within the compass of mandatory bargaining . . . ." Cherry Point, slip op. at 10. The court also stated, however, that the test is not implicated where a matter, otherwise within the mandatory scope of bargaining, would "have some impact on persons outside the bargaining unit." Id. at 11 (emphasis in original).

We have determined that the changes in parking garage operations were substantively negotiable, that is, they were within the compass of mandatory bargaining. Consequently, there is no basis on which to apply a vitally affects test here. See also National Association of Government Employees, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 43 FLRA 1331, 1348 (1992) (relating to proposals involving establishment of cafeteria and provision and quality of food services at employees' place of work).

B. A Status Quo Ante Remedy, Including Make Whole Relief, is Appropriate

In agreement with the Judge, we find that a status quo ante remedy, including make whole relief for bargaining unit employees, is warranted. 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. See, for example, U.S. Department of Labor, Washington, D.C., 38 FLRA 899, 913 (1990).

The Respondent claims that the restitution awarded by the Judge confers a windfall on bargaining unit employees because an independent contractor, rather than the Respondent, retains the fees paid for parking and because the employees received a benefit from the increased fee in the form of guard service. The Respondent also claims that the Judge's Order erroneously granted backpay to employees, improperly directed the Respondent to bargain over a pay matter, and unlawfully reimbursed employee commuting expenses. Previously, we rejected the Respondent's contention that this case involves employee commuting expenses. We also find no merit to the Respondent's additional arguments.

We disagree with the Respondent's view that the make whole relief ordered by the Judge confers a windfall on bargaining unit employees. The purpose of a status quo ante remedy is to place parties in the positions they would have occupied had there had been no unlawful conduct. By ordering make whole relief, bargaining unit employees will be reimbursed for the monetary loss occasioned by the Agency's failure to negotiate over the fee increase, thereby restoring employees to the situation as it existed prior to the unlawful change. For this reason, we also reject the Respondent's alternative remedy, that the parties be returned to the status quo as of May 1, 1990, and that employees be reimbursed based on the outcome of negotiations commencing from that date. The record indicates that on that date, the parking fee was increased from $10.30 per month to over $16 per month. If the alternative remedy suggested by the Respondent is designed to reimburse employees for the difference between the $16 per month fee and the amount subsequently agreed to by the parties, such a remedy would not effectuate the purposes and policies of the Statute because it would not place bargaining unit employees in the position they would have occupied had the unlawful conduct not occurred. We recognize that it is impossible to ascertain what the parties would have agreed to had bargaining occurred and, therefore, that to reimburse employees for the full amount of the overpayment does not necessarily reflect what might have resulted from negotiations. Nonetheless, we believe that, in the circumstances of this case, the Respondent should not be permitted to benefit from its total refusal to bargain, and thus, that the Respondent should bear the burden of the uncertainty created by its own unlawful conduct. Therefore, to ensure that employees do not incur a monetary loss as a result of the Respondent's unfair labor practice conduct, we will order that bargaining unit employees be made whole for any parking fees paid in excess of $10.30 per month at the Francis Perkins Building.

In ordering make whole relief, we reject the Respondent's assertions that such a remedy constitutes an improper grant of backpay and an unlawful order to bargain over a pay matter. Although we do not adopt the Judge's statement that the increased cost of parking constituted a pay reduction, we nonetheless agree with the Judge's Order of a make whole remedy. As noted above, make whole relief is appropriate to remedy the unlawful conduct that occurred in this case. See also Department of the Army, U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, Indiana and Finance and Accounting Office for the Secretary of the Army, St. Louis, Missouri, 41 FLRA 885, 899 (1991), petition for review filed sub nom. U.S. Department of the Army, U.S. Enlisted Records and Evaluation Center, Fort Benjamin Harrison, Indiana v. FLRA, No. 91-1473 (D.C. Cir. Sept. 26, 1991) (the Authority discussed its broad remedial powers to order monetary reimbursements, including make whole remedies). Because we do not view the increase in parking fee as a reduction in pay, we need not address the applicability of Garbacz v. United States, which dealt with a change in pay system and employees' claims for backpay. For the same reason, we find that the make whole remedy does not require the parties to bargain over a pay matter, as alleged by the Respondent.

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 U.S. Department of Labor, Washington, D.C. shall:

1. Cease and desist from:

(a) Unilaterally changing working conditions of unit employees by implementing changes in parking garage operations at the Francis Perkins Building, without affording the American Federation of Government Employees, Local 12, AFL-CIO, the exclusive representative of its employees, an opportunity to negotiate over the substance, impact and implementation of the changes.

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

2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:

(a) Rescind the changes in parking garage operations that were announced on April 9, 1990, to the extent they apply to employees represented by the American Federation of Government Employees, Local 12, AFL-CIO.

(b) Notify the American Federation of Government Employees, Local 12, AFL-CIO, the exclusive bargaining representative of certain of its employees, of any intended changes in parking garage operations, and afford it an opportunity to negotiate over such changes.

(c) Make whole employees represented by the American Federation of Government Employees, Local 12, AFL-CIO, for parking fees paid in excess of $10.30 per month for parking in the Francis Perkins Building.

(d) Post at its facilities throughout the Francis Perkins Building 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 Secretary of Labor and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material.

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

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 HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change working conditions of unit employees by implementing changes in parking garage operations, without affording the American Federation of Government Employees, Local 12, AFL-CIO, the exclusive representative of certain of our employees, an opportunity to negotiate over the substance, impact and implementation of the changes.

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

WE WILL rescind the changes in parking garage operations that were announced on April 9, 1990, to the extent they apply to employees represented by the American Federation of Government Employees, Local 12, AFL-CIO.

WE WILL notify the American Federation of Government Employees, Local 12, AFL-CIO, the exclusive representative of certain of our employees, of any intended changes in parking garage operations, and afford it an opportunity to negotiate over such changes.

WE WILL make whole employees represented by American Federation of Government Employees, Local 12, AFL-CIO, for parking paid in excess of $10.30 per month in the Francis Perkins Building.

_______________________________
(Agency)

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, Washington Regional Office, Federal Labor Relations