46:0339(30)CA - - VA Medical Center, Decatur, GA and AFGE, Local 2778 - - 1992 FLRAdec CA - - v46 p339

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[ v46 p339 ]
46:0339(30)CA
The decision of the Authority follows:


46 FLRA No. 30

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF VETERANS AFFAIRS

VETERANS ADMINISTRATION MEDICAL CENTER

DECATUR, GEORGIA

(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2778

(Charging Party/Union)

4-CA-10764

_____

DECISION AND ORDER

October 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 General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by the manner in which it implemented paid parking at its facility. The Judge concluded that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by refusing to negotiate over the decision to institute paid parking or the amount of the fees to be charged. However, the Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing paid parking without completing negotiations with the Union over the impact and implementation of its plan. The Judge concluded that the Respondent did not violate section 7116(a)(1), (5), and (6) of the Statute by implementing paid parking at a time when a Union request for assistance was pending before the Federal Service Impasses Panel (FSIP or Panel).

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 this decision.

II. Facts

By letter dated May 6, 1991, the Respondent notified the Union that it intended to implement a paid parking system at a new garage at its facility. The Respondent enclosed a copy of its proposed parking plan and requested that the Union submit any bargaining proposals. In response, the Union proposed, among other things, that: (1) free parking continue; (2) an appraisal of area parking rates be conducted with Union participation; (3) employees be surveyed to determine hardship and commuting patterns; and (4) only handicapped spaces be reserved.

The parties discussed the proposals on May 30, at which time the Respondent asserted that the decision to institute paid parking and the parking rates were nonnegotiable and that paid parking would be implemented on June 17. The Respondent asserted that the first and second proposals, noted above, were nonnegotiable. The Respondent conceded, however, that other proposals were negotiable. Judge's Decision at 3 n.1.

On May 31, the Union filed a request for assistance with the Panel and submitted new proposals to the Respondent, including the following, in pertinent part:

1. The parties agree that this agreement applies only to those employees represented by [the Union].

2. Employees shall not be charged more than fifty-percent (50%) of the rate charged non-VA employees who utilize the parking facilities at the locations surveyed . . . .

3. A specified area with sufficient parking to accommodate the employees represented by the Union shall designated [sic] by the Agency nearest to the hospital. Such parking shall be on a first come-first park basis. There shall be no reserved parking in this location except for the president of the local. . . .

Jt. Exh. 2.

Although the parties met on two occasions to discuss the proposals, they reached agreement only on Proposal 1.(1) On June 17, the Respondent implemented its paid parking plan.

III. Judge's Decision

The Judge concluded that the Respondent did not violate the Statute by refusing to negotiate over its decision to institute paid parking because, in the Judge's view, 38 U.S.C. § 8109(d) requires the Respondent to impose and collect parking fees at garages such as the one involved in this case.(2) The Judge also concluded that the Respondent did not unlawfully refuse to negotiate over the parking rates it would impose. The Judge noted that the establishment of such rates is governed by an Agency regulation, 38 C.F.R. § 1.303(b),(3) and that, under section 7117(a)(2) of the Statute, an agency is required to negotiate on a matter "which is the subject of the Agency's regulation only if the Authority has determined the existence of a compelling need for it." Judge's Decision at 7 (emphasis in original). In the Judge's view, the Agency regulation was "controlling" because the Authority had not made a compelling need determination concerning it. Id.

The Judge rejected the General Counsel's contention that the Respondent violated section 7116(a)(1) and (6) of the Statute by failing to maintain the status quo while the dispute was pending before the Panel because, according to the Judge, the parties were not at impasse either at the time the Union requested the Panel's assistance or the time when paid parking was implemented. However, the Judge found that the Respondent was obligated to bargain with the Union over the impact and implementation of the paid parking plan. The Judge concluded that the Respondent did not satisfy this bargaining obligation before implementing paid parking and, thereby, violated section 7116(a)(1) and (5) of the Statute.

The Judge rejected the General Counsel's request for a status quo ante remedy. Applying Federal Correctional Institution, 8 FLRA 604, 605-06 (1982), the Judge concluded that such remedy "would disturb the requirements set by law as to the establishment of [parking] fees" at the Respondent's garage. Judge's Decision at 10.

IV. General Counsel's Exceptions

First, the General Counsel argues that the Judge's conclusion that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by refusing to negotiate over parking rates is contrary to the Authority's decision in Service Employees International Union, Local 200-B and U.S. Department of Veterans Affairs Medical Center, Syracuse, New York, 44 FLRA 821, 828-29 (1992) (VAMC, Syracuse). The General Counsel also contends that, as the Respondent has not asserted a compelling need for 38 C.F.R. § 1.303(b)(1), the Judge erred in finding that the regulation controlled here.

Second, the General Counsel excepts to the Judge's decision that the Respondent did not violate the Statute by implementing paid parking while the Union's request for assistance was pending before the Panel. Citing Department of Health and Human Services, Social Security Administration, and Social Security Administration, Field Operations, Region II, 35 FLRA 940 (1990), the General Counsel argues that the Respondent was obligated to maintain the status quo while the Union's request was pending before the Panel and that "the question of whether the Panel should assert jurisdiction was for the Panel, and not Respondent, to decide." G.C.'s Brief in Support of Exceptions at 7.

Finally, the General Counsel excepts to the Judge's recommended remedy. The General Counsel contends that a status quo ante remedy, including a refund of all fees paid by unit employees, is mandated because "the amount of fees to be charged and the procedures by which to collect them are substantively negotiable . . . ." Id. at 8.

V. Respondent's Opposition

The Respondent argues that the Judge correctly found that it was not obligated to negotiate with the Union over parking rates because the Authority had not made a compelling need determination regarding 38 C.F.R. § 1.303(b)(1). The Respondent maintains that the Judge's decision is not inconsistent with VAMC Syracuse because, in its view, VAMC Syracuse addressed only issues regarding management's rights under section 7106 of the Statute. The Respondent also asserts that the Judge properly found that it did not violate the Statute by implementing paid parking while the matter was pending before the Panel.

VI. Analysis and Conclusions

A. Section 7116(a)(1), (5), and (6)

The Judge found, and we agree, that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to bargain over the impact and implementation of the paid parking plan prior to its implementation.(4) However, we find, contrary to the Judge, that the Respondent also violated the Statute by refusing to negotiate with the Union over the parking rates that it would charge unit employees.

38 U.S.C. § 8109(c)(3) requires the Secretary of Veterans Affairs to collect fees for parking at garages such as the one involved in this case. VAMC, Syracuse, 44 FLRA at 828. However, that provision "does not mandate that the Secretary set a specific fee . . . ." Id. Instead, the Secretary "'has discretion to establish fees which . . . are reasonable under the circumstances.'" Id. (quoting 38 U.S.C. § 8109(d)(2)). The Secretary's discretion under section 8109 is subject to collective bargaining, provided the proposal is otherwise negotiable. Id. (5)

Consistent with VAMC, Syracuse, we conclude that the determination of specific parking rates for unit employees is negotiable. Further, in the absence of any asserted or apparent reason for concluding otherwise, we also conclude that the Union's proposal that employees be charged no more than 50 percent of non-employee rates at surveyed parking garages is negotiable.

In this regard, we reject the Judge's finding that the Respondent was not required to bargain over parking fees because the Authority has not made a compelling need determination regarding 38 C.F.R. § 1.303(b)(1). Under section 7117 of the Statute, allegations that a proposal is nonnegotiable on the basis of a conflict with an agency regulation for which a compelling need is asserted may be resolved only in negotiability proceedings. Federal Labor Relations Authority v. Aberdeen Proving Ground, Department of the Army, 108 S. Ct. 1261 (1988). Here, however, the Respondent does not argue that any of the Union's proposals are nonnegotiable on that basis. See Respondent's Opposition at 5 ("In the instant case, the ALJ simply recognizes, as did the Authority in [VAMC] Syracuse, that the Respondent has not raised, nor has there been a determination of whether or not a compelling need exists for VA's regulation . . . ."). Accordingly, there is no compelling need issue before us in this case.

Where a Union submits bargaining proposals and an agency refuses to bargain over the proposals based on the contention that they are nonnegotiable, the agency acts at its peril if it then implements a change in conditions of employment. If any one of the union's proposals is held negotiable, the agency will have violated section 7116(a)(1) and (5). See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 39 FLRA 258, 263 (1991).

Here, the Respondent has conceded that certain of the proposals submitted by the Union on May 31, were negotiable. Moreover, as discussed above, the Union's proposal concerning the parking rates to be charged unit employees was negotiable.(6) Therefore, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over the Union's proposed parking rates and by implementing paid parking without completing bargaining over negotiable Union proposals.

We also find, contrary to the Judge that the Respondent violated section 7116(a)(1), (5) and (6) of the Statute by implementing the paid parking plan after the Union invoked the services of the Panel.

Once a party timely invokes the services of the Panel, the status quo must be maintained to the extent consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action it deems appropriate. A failure to maintain the status quo while a negotiation dispute is pending before the Panel constitutes a violation of section 7116(a)(1), (5), and (6) of the Statute. For example, Department of Health and Human Services, Health Care Financing Administration, 39 FLRA 120, 131-32 (1991) enforced sub nom. Department of Health and Human Services, Health Care Financing Administration v. FLRA, No. 91-1068 (4th Cir. Dec. 26, 1991).

The purpose of the requirement that the parties maintain the status quo "is to facilitate the Panel's consideration of negotiations impasses and allow the Panel to take whatever action it deems appropriate to resolve the dispute." SSA, 35 FLRA at 950. An agency's obligation to maintain the status quo while matters are before the Panel is not affected by the nature of the action the Panel eventually takes. In particular, an agency is obligated to maintain the status quo even if the Panel ultimately declines jurisdiction over the union's request for assistance. See U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., 44 FLRA 1065, 1072-73 (1992), petition for review filed sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, No. 92-4652 (5th Cir. June 24, 1992).

The foregoing cases, among others, confirm that permitting an agency to implement a change in conditions of employment while a union's request for assistance is pending before the Panel would undermine the Panel's role in resolving impasses and is inconsistent with the purposes of the Statute.  We find no reason to conclude differently in this case. In this regard, we note that the Union filed its request for assistance after the parties had engaged in bargaining over the institution of paid parking. Indeed, it appears that any failure of the parties to engage in more extensive bargaining can properly be attributed to the Agency's assertion that parking rates were nonnegotiable. Moreover, the Union's request for Panel assistance was filed after notification that the Agency intended to implement paid parking despite the parties' failure to reach agreement. In these circumstances, we reject the Respondent's contention that it was not obligated to maintain the status quo because, at the time the Union submitted its request for Panel assistance, the parties were not at impasse and find, contrary to the Judge, that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute by implementing the parking plan while the parties' dispute was before the Panel.

B. Remedy

In VAMC, Syracuse, the Authority held nonnegotiable a proposal that "[a]ll fees collected from bargaining unit members that were charged without first negotiating with the [u]nion will be reimbursed." 44 FLRA at 836. The Authority stated that, by requiring that all fees be reimbursed, the proposal "would have the effect of providing free parking." Id. According to the Authority, as the Secretary of Veterans Affairs is required by law, 38 U.S.C. § 8109, to collect fees, the proposal was inconsistent with law. The Authority noted, in this regard, that nothing in the record suggested that the proposal "would require only reimbursement of the difference between the fees actually charged and the fees that ultimately would be negotiated." Id.

Consistent with the Authority's decision in VAMC, Syracuse, we reject the General Counsel's request that we require the Respondent to reimburse unit employees for all fees paid since implementation of the Respondent's parking plan. Instead, we will direct bargaining over the impact and implementation of the Respondent's decision to implement paid parking, including determination of the parking fees that it charges unit employees. We will further direct the Respondent to give retroactive application to agreements reached through negotiations with the Union and to reimburse adversely affected unit employees the difference between the parking fees charged and the fees agreed upon.

VII. 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 Department of Veterans Affairs, Veterans Administration Medical Center, Decatur, Georgia, shall:

1. Cease and desist from:

(a) Refusing to bargain with the American Federation of Government Employees, Local 2778, the exclusive representative of certain of its employees, concerning the parking fees that it charges unit employees at its Decatur, Georgia parking garage.

(b) Unilaterally implementing a paid parking plan at its Decatur, Georgia parking garage without completing negotiations with the American Federation of Government Employees, Local 2778 over the impact and implementation of the decision to institute paid parking, including the parking fees that it charges.

(c) Failing and refusing to cooperate in impasse proceedings by implementing paid parking while the parties' dispute over the matter is pending before the Panel.

(d) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

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

(a) Upon request of the American Federation of Government Employees, Local 2778, negotiate over the parking rates and other negotiable proposals concerning the impact and implementation of its decision to institute paid parking and apply agreements reached pursuant to such negotiations retroactively.

(b) Make whole bargaining unit employees for the difference in parking fees paid at the Decatur, Georgia parking facilities and the fees negotiated.

(c) Post at all locations throughout the VAMC, Decatur Georgia, facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 2778 are located, 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 Director, 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 such 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, Atlanta 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 NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to bargain with the American Federation of Government Employees, Local 2778, the exclusive representative of certain of our employees, concerning the parking fees that we charge unit employees at our Decatur, Georgia parking garage.

WE WILL NOT unilaterally implement paid parking at our Decatur, Georgia parking garage without negotiating with the American Federation of Government Employees, Local 2778 over the impact and implementation of the decision to implement paid parking, including the parking fees that we charge.

WE WILL NOT fail and refuse to cooperate in impasse proceedings by implementing paid parking while the parties' dispute over the matter is pending before the Panel.

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

WE WILL, upon request of the American Federation of Government Employees, Local 2778, negotiate over the parking rates and other negotiable proposals concerning the impact and implementation of the decision to institute paid parking at our Decatur, Georgia parking garage and apply agreements reached pursuant to such negotiations retroactively.

WE WILL make whole bargaining unit employees for the difference in parking fees paid at the Decatur, Georgia parking facilities and the fees negotiated.

__________________________________
(Agency)

Date:_________________________ 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 its provisions, they may communicate directly with the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, whose address is: 1371 Peachtree Street, N.E., Suite 122, Atlanta, GA 30367 and whose telephone number is: (404) 347-2324.




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

1. The Judge stated that the record was "barren" of evidence concerning these bargaining sessions, except for Respondent's assertion that certain unspecified proposals were negotiable and others were nonnegotiable. Judge's Decision at 4 n.2.

2. Under 38 U.S.C.A. § 8109, the Secretary of Veterans Affairs is required to establish a schedule of parking fees for medical facility parking garages that exceed the cost of $500,000. Section 8109(c)(1) provides, with exceptions not relevant here, that "each employee . . . shall be charged the applicable parking fee[.]"

3. 38 C.F.R. § 1.303(b)(1) provides, in pertinent part:

All parking fees shall be set at a rate . . . equivalent to one-half of the appropriate fair rental value (i.e., monthly, weekly, daily, hourly) for the use of equivalent commercial space . . . . The Secretary will determine the fair market rental value through use of generally accepted appraisal techniques. If the appraisal establishes that there is no comparable commercial rate . . . then the rate established shall be not less than the lowest rate charged for parking at the VA medical facility with the lowest established parking fees.

4. As no exceptions were filed to the Judge's finding that the Respondent did not violate the Statute by refusing to negotiate over the decision to institute paid parking, we will dismiss this aspect of the complaint.

5. In VAMC, Syracuse, the Authority concluded that the following proposals were negotiable:

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

Employees on regular rotating shifts who carpool will pay $2.00 per month and can use the same card key on any shift.

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

44 FLRA at 825.

6. As noted previously, the record before the Judge did not disclose which proposals were deemed negotiable and which were not. The parties have provided no further information on this point to us. However, as we have determined that the Union's proposal regarding the rates that the Respondent charges unit employees is negotiable, and as a respondent violates the Statute if it refuses to bargain over even one negotiable proposal, we find it unnecessary to determine whether the Agency improperly refused to bargain over other negotiable proposals.