U.S. Department of Veterans Affairs and American Federation of Government Employees, Local 2400, AFL-CIO

[ v55 p1213 ]

55 FLRA No. 195

U.S. DEPARTMENT OF VETERANS AFFAIRS
(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2400, AFL-CIO
(Charging Party/Union)

CH-CA-70255

_____

DECISION AND ORDER

January 13, 2000

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Department of Veterans Affairs (the Respondent or VA) filed an opposition to the General Counsel's exceptions.

      The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally implementing a change in parking rates at the VA Medical Center in Nashville, Tennessee (VA Nashville) without negotiating with the Union over the substance and/or impact and implementation of the change.

      The Judge concluded that the Respondent violated the Statute when it refused to bargain with the Union over the impact and implementation of the change. As a remedy, the Judge recommended that the Respondent be ordered to restore the status quo ante. The Judge did not, however, order that adversely affected employees be made whole.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order to the extent consistent with this decision. More specifically, we find, for the reasons set forth below, that adversely affected employees should be made whole.

II.     Background

      The American Federation of Government Employees (AFGE National) is the certified collective bargaining representative of a nationwide unit of the Respondent's employees. AFGE Local 2400 (the Union) is the agent of AFGE National for purposes of representing VA Nashville's unit employees.

      Parking garages at the Respondent's facilities are governed by 38 U.S.C § 8109 and its implementing regulations. As relevant here, that statute provides that a parking fee schedule prescribed for a medical facility "shall be designed to establish fees which the Secretary determines are reasonable under the circumstances." Judge's Decision at 2. In addition, 38 C.F.R. § 1.303 provides that the parking fees prescribed pursuant to 38 U.S.C. § 8109 shall be set at one-half of the appropriate fair rental value for the use of equivalent commercial space. [n2] 

      In February 1994, VA Nashville opened a new parking facility and, pursuant to applicable statutory and regulatory requirements, set employee parking rates as follows: $7.50 monthly; $6.00 daily; and $1.00 hourly. Thereafter, VA Nashville and the Union engaged in bargaining over the impact and implementation of the rates. However, because the Union concluded that these rates were acceptable, it did not request bargaining over the amount of the rates. Tr. at 20.

      In October 1996, the Union learned that VA Nashville planned to increase the parking rates from $3.46 per pay period to $10.96 per pay period (or from $7.50 to $23.75 a month). As a result, by letters dated October 16 and 29, respectively, the Union requested bargaining over the impact and implementation and the amount of the increase in the rates. On November 1, 1996, VA Nashville, through its Chief of Human Resources, responded to the Union's bargaining requests stating:

we are anxious to meet with you to discuss your request to bargain on the impact and implementation of the recently announced parking fees; your request to bargain on the rates and the methodology of the rates and assigned/reserved parking spaces. However, we only have the verbal announcement that the rates will increase at this time. I suggest we wait until we know, in writing, that the Secretary has approved the proposed increase for Nashville. Please let me know if this is satisfactory with you. Thanks.

Judge's Decision at 5. [ v55 p1214 ]

      Thereafter, by letter dated January 30, 1997, VA Nashville notified the Union that it would not bargain over the increased parking rates. More specifically, VA Nashville stated that it was denying the Union's bargaining requests because parking rates and the methodology of determining the rates "were not negotiable and the determination of the parking rates had been negotiated at the national and headquarters level."  Id. VA Nashville also stated that it would not bargain over the impact and implementation of the increased rates because it had negotiated over "paid parking" three years previously. Id. VA Nashville added that the new rates would be implemented "effective pay period 5-97, March 2, 1997." General Counsel's Exh. 13.

III.     Judge's Decision

      At the outset, the Judge noted that parking arrangements are negotiable conditions of employment and, prior to implementing a change in such arrangements, management is required to provide the union with notice and an opportunity to bargain "over the substance, impact, and implementation of such changes." Judge's Decision at 6.

      As applicable here, the Judge found that the procedure for implementing changes in local parking rates had been established by the Respondent at the national level. The Judge noted that in 1987, the Respondent had issued its first parking circular --Circular 00-87 -- which implemented the statutory and regulatory provisions for setting parking rates by the Secretary of Veterans Affairs. The Judge further noted that although AFGE National was given an opportunity to comment on that circular, it had made no objection to the procedures set forth therein. Circular 00-87 was reissued twice in the following years. The last circular --Circular 00-90-31 -- "was set" to expire on October 1, 1991. Id. at 4. In this connection, the Judge specifically determined that the circulars issued by the Respondent did not constitute contracts negotiated by the parties but, instead, set forth the Respondent's national parking policy.

      In light of the foregoing, the Judge concluded that the Union's request to bargain over VA Nashville's increase in employee parking rates had not been presented to the appropriate agency level. Rather, the Judge found that the procedures for setting parking rates governed by 38 U.S.C. § 8109(d)(2) "were established by [the Respondent] in its circulars that were issued at the national level, after notifying AFGE [National] and receiving its consent." Id. at 7. According to the Judge, any request to change the Respondent's policy with respect to "procedures for setting parking rates or the Secretary's exercise of discretion, would have to be made to [the Respondent] at the national level by AFGE." Id. The Judge, therefore, rejected the General Counsel's claim that VA Nashville violated the Statute when it refused to bargain with the Union over the increase in rates.

      With regard to the Union's request to bargain over the impact and implementation of the increased rates, the Judge arrived at a different result. Initially, the Judge noted that the Union was the agent of AFGE National for purposes of representing the Respondent's unit employees at VA Nashville. The Judge additionally noted that each of the Respondent's parking circulars provided that "[a]ny facility implementing a parking fee program that impacts on employees represented by a union should make sure it meets its bargaining obligations with the union local(s) before implementing the program." Id. at 8. In these circumstances, the Judge concluded that both VA Nashville and the Union had been authorized by their parent organizations to bargain over the impact and implementation of a change in rates. Accordingly, the Judge determined that the Respondent, through its agent VA Nashville, violated section 7116(a)(1) and (5) of the Statute when it refused to bargain with the Union over the impact and implementation of the 1997 increase in parking rates.

      As a remedy the Judge ordered that the status quo ante be restored, "including the reduction of the monthly parking rates to their pre March 12, 1997 levels." Id. at 9. However, the Judge rejected the General Counsel's request for make-whole relief. In the Judge's view, an additional reduction of the parking rates to make employees whole was not appropriate because it constituted an "attempt to award money damages in a different guise."  Id.

IV.     Positions of the Parties

A.     General Counsel's Exceptions

      The General Counsel challenges the Judge's decision on three grounds. First, the General Counsel maintains that the Judge erred in concluding that the national parking circulars -- which expired over five years before this case arose -- affected the bargaining obligations of the parties. The General Counsel asserts, in this regard, that the Respondent incorrectly relied on the expired parking circulars as support for its claim that the substance of employee parking rates had previously been negotiated. According to the General Counsel, the Respondent was "[i]n effect" arguing that the subject of parking rates was "covered by" the circulars. Exceptions at 7. The General Counsel submits that the Judge correctly found that the circulars were not the product of [ v55 p1215 ] collective bargaining. In addition, given the circulars' expiration, the General Counsel contends that the Respondent's "covered by" argument must be rejected.

      The General Counsel also contends that because the national circulars were not negotiated agreements, their only relevance to this case would be to demonstrate a waiver. The General Counsel argues that assuming AFGE National did waive its right to bargain over matters contained in the third parking circular, that circular expired in 1989. Therefore, because AFGE National, through its agent, the local Union, timely demanded to bargain over the 1997 rates, AFGE National exercised an election to no longer be bound by any previous waiver. Accordingly, the General Counsel submits that the Respondent could not rely on the circulars to refuse to bargain over the new parking rates.

      As a second ground, the General Counsel asserts that the Judge improperly inferred an argument concerning the appropriate level of bargaining when he found that the Respondent's "covered by" argument was tantamount to a level of recognition argument. In support of this exception, the General Counsel contends that the Respondent never argued that the Union's bargaining request was submitted to the wrong person or office. The General Counsel maintains that the Respondent "simply argued that prior negotiations, albeit at the national level, created documents which supposedly governed parking rates at the local facility." Id. at 11. As a level of bargaining argument was not presented to the Judge, the General Counsel contends that it should not be considered by the Authority.

      Assuming, for the sake of argument, that a level of bargaining argument is properly before the Authority, the General Counsel states that "it defies logic and common sense to find that the demand to bargain herein was defective because it was sent to the Respondent's admitted agents at [VA Nashville]." Id. The General Counsel asserts that the Respondent and VA Nashville are one and the same because VA Nashville is the agent of the Respondent and to conclude otherwise would be contrary to the principles of agency.

      Finally, as a third ground, the General Counsel excepts to the Judge's refusal to grant its request for make-whole relief. The General Counsel asserts that the Judge confused its request to offset the difference between the parking rates with a request for consequential money damages. The General Counsel maintains that a temporary rollback in parking fees, which the Respondent improperly raised, is an appropriate remedy under Immigration and Naturalization Service, Los Angeles District, Los Angeles, California, 52 FLRA 103 (1996) (INS).

B.     Respondent's Opposition

      The Respondent argues that the Judge correctly concluded that the appropriate level of recognition in this case is at the national level. The Respondent points out that the procedures for setting parking rates in facilities governed by 38 U.S.C. § 8109 were established in circulars issued at the national level. Therefore, any decision to change the national policy would be required at the national level. The Respondent also submits, without explanation, that local negotiations over the parking rates would violate 38 U.S.C. § 8109 and 38 C.F.R. § 1.303.

      In addition, the Respondent maintains that the Judge did not err in inferring an argument concerning the appropriate level of recognition. The Respondent explains that the level of recognition argument discussed by the Judge is based on the same set of facts as the "covered by" argument that it advanced at the hearing. The Respondent points out that at the end of the hearing, the Judge advised the parties to be mindful of the case law dealing with "levels of recognition and levels of obligations to bargain." Opposition at 2. The Respondent asserts that, as a result, it addressed this argument in its post-hearing brief.

      The Respondent also disputes the General Counsel's contention that VA Nashville had the authority to negotiate with the Union over local parking rates. The Respondent asserts that the bargaining authority of its local medical centers is limited "to that which is delegated to them." Id. The Respondent further asserts that the authority to negotiate over parking rates has been statutorily provided to the Secretary of Veterans Affairs pursuant to 38 U.S.C. § 8109. As the Secretary has never delegated such authority to local medical centers, the Respondent contends that the General Counsel's argument must be rejected.

      With regard to the remedy, the Respondent claims that the make-whole relief sought by the General Counsel is not statutorily authorized. According to the Respondent, the Authority will not award money damages unless they constitute pay, allowances, or differentials under the Back Pay Act or are otherwise authorized by express statutory authority. Arguing that the relief sought by the General Counsel does not constitute money damages permitted by the Back Pay Act, the Respondent submits that the Judge correctly denied the General Counsel's request for make-whole relief. [ v55 p1216 ]

V.     Analysis and Conclusions

      The Respondent does not dispute the Judge's finding that it unilaterally implemented an increase in parking rates at VA Nashville without negotiating with the Union over the impact and implementation of the change. Consequently, and in agreement with the Judge, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute. We further agree with the Judge's finding that, to remedy the violation, the status quo ante should be restored. This remedy would return the employee parking rate to $7.50 per month. However, we disagree with the Judge's decision not to order that adversely affected employees be made whole.

      According to the General Counsel, the Judge erroneously concluded that a make-whole remedy was not appropriate because, pursuant to INS, 52 FLRA 103, "it [constitutes] an attempt to award money damages in a different guise." Judge's Decision at 9. We find that the Judge's reliance on INS is misplaced.

      In INS, the respondent was found to have violated the Statute by discontinuing its practice of providing free parking on its property without bargaining over the decision. As a result, employees incurred additional expenses because they were required to pay for parking in private parking lots. To remedy the violation, the General Counsel requested that the employees be reimbursed for their parking fees. In rejecting the General Counsel's reimbursement request, the Authority noted that "[t]he United States is immune from liability for money damages under the doctrine of sovereign immunity." 52 FLRA at 104 (citing Lane v. Pena, 518 U.S. 187 (1996). The Authority further noted that in Department of the Army, United States Army Commissary, Fort Benjamin Harrison, Indianapolis, et al. v. FLRA, 56 F.3d 273 (D.C. Cir. 1995), vacating in part 48 FLRA 6 (1993) (Department of the Army v. FLRA), the U.S. Court of Appeals for the District of Columbia Circuit explicitly found that the Statute does not waive sovereign immunity to an award of money damages unless such damages are based on an unlawful reduction in pay, allowances, or differentials under the Back Pay Act. 52 FLRA at 106. As there was no contention that the remedy sought -- the reimbursement of parking expenses incurred as a result of the unfair labor practice -- was based on such a loss under the Back Pay Act, the Authority concluded that the doctrine of sovereign immunity barred the requested relief.

      Subsequent to INS, the Authority discussed the difference between money damages and equitable relief. See U.S. Department of Transportation, Federal Aviation Administration, Northwest Mountain Region, Renton, Washington, 55 FLRA 293, 298-99 (1999), petition for review filed, No. 99-1165 (D.C. Cir. April 29, 1999) (FAA). Money damages, the Authority noted, have been characterized as a payment to a plaintiff of a sum of money for "`something lost in consequence of the defendant's act'" and "`as a substitute for a suffered loss in an action at law for damages.'" Id. at 298 (quoting Department of the Army v. FLRA, 56 F.3d at 276) (emphasis in original). On the other hand, the Authority noted that a remedy in an equitable action "attempt[s] to give the plaintiff the very thing to which he was entitled." Id. See also Maryland Department of Human Resources v. Department of Health and Human Services, 763 F.2d 1441, 1446 (D.C. Cir. 1985).

      Unlike the remedy in INS, the make-whole relief requested in this case does not involve a monetary payment to adversely affected employees. Rather, the requested remedy would require the Respondent to reduce the rates charged to employees for a period of time necessary to offset the difference between the unlawfully implemented rate -- $10.96 per pay period -- and the former rate -- $3.46 per pay period---until such time as the employees have been fully reimbursed. Offsets are typically viewed as equitable in nature. See, e.g., HAL, Inc. v. United States, 122 F.3d 851, 854 (9th Cir. 1997). Therefore, consistent with FAA, we conclude that the requested remedy is equitable in nature and that the Judge's reliance on INS is misplaced. [n3] 

      In sum, we conclude that the Respondent violated the Statute by failing to bargain over the impact and implementation of the change in parking rates. [n4]  For the foregoing reasons, we adopt the Judge's remedial order, as modified below: [ v55 p1217 ]

VI.     Order

      Pursuant to section 2423.41(c) of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Veterans Affairs, through its agent the Veterans Affairs Medical Center, Nashville, Tennessee, shall:

1.     Cease and desist from:

           (a)     Refusing to bargain with the American Federation of Government Employees, Local 2400 concerning the impact and implementation of an increase in rates that it charged unit employees at its Nashville, Tennessee parking garage.

           (b)     Unilaterally implementing changes in the working conditions of its unit employees by increasing parking rates at its Nashville, Tennessee parking garage without first bargaining with the American Federation of Government Employees, Local 2400, over the impact and implementation of the change.

           (c)     In any like or related manner, interfering with, restraining, or coercing bargaining unit 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)     Rescind the increase in parking rates charged to unit employees at its Nashville, Tennessee parking garage implemented on March 12, 1997.

           (b)     Effect a further decrease in parking rates charged unit employees at the Nashville, Tennessee parking garage for a period of time necessary to offset the difference between the unlawfully implemented rate -- $10.96 per pay period -- and the former rate -- $3.46 per pay period -- until such time as the affected employees have been made whole.

           (c)     Upon request of the American Federation of Government Employees, Local 2400, bargain over the impact and implementation of the increase in parking rates.

           (d)     Post at all locations throughout the VAMC, Nashville, Tennessee, facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 2400 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, Veterans Affairs Medical Center, Nashville, Tennessee, 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.

           (e)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Chicago Regional Office, Federal Labor Relations Authority, 55 West Monroe, Suite 1150, Chicago, IL 60603, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of Veterans Affairs, through its agent the Veterans Affairs Medical Center, Nashville, Tennessee, has violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice:

We hereby notify bargaining unit employees that:

WE WILL NOT refuse to bargain with the American Federation of Government Employees, Local 2400, the agent of the exclusive representative, concerning the impact and implementation of an increase in rates that we charged employees at our Nashville, Tennessee parking garage.

WE WILL NOT unilaterally implement changes in the working conditions of employees by increasing parking rates at our Nashville, Tennessee parking garage without first bargaining with the American Federation of Government Employees, Local 2400, over the impact and implementation of the change.

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

WE WILL rescind the increase in parking rates that at our Nashville, Tennessee parking garage that we implemented on March 12, 1997.

WE WILL effect a further decrease in parking rates charged unit employees at our Nashville, Tennessee parking garage for a period of time necessary to offset the difference between the unlawfully implemented rate -- $10.96 per pay period -- and the former rate -- $3.46 [ v55 p1218 ] per pay period -- until such time as affected employees have been made whole.

WE WILL, upon request of the American Federation of Government Employees, Local 2400, bargain over the impact and implementation of the change in employee parking rates.

      _____________________
(Agency)

Dated: ____________ By: __________________

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, Chicago Regional Office, Federal Labor Relations Authority, whose address is: 55 West Monroe, Suite 1150, Chicago, IL 60603, and whose telephone number is: (312) 353-6306.


APPENDIX

38 U.S.C. §§ 8109(c)(1) and 8109(d)(1) and (d)(2) provide, as relevant here:

(c)(1)          [E]ach 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.
(d)(1)          For each medical facility where funds from the revolving fund . . . are expended for--
(A)     a garage constructed or acquired by the Department at a cost exceeding $500,000 . . . ; 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 . . . shall be designed to establish fees which the Secretary determines are reasonable under the circumstances.

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

All 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 . . . . 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 because of the absence of commercial parking facilities within a two-mile radius of the medical facility, 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. Rates established shall be reviewed biannually by the Secretary to reflect any increase or decrease in value as determined by appraisal updating. [ v55 p1219 ]

Concurring Opinion of Member Wasserman

      I agree that it is unnecessary to resolve that aspect of the complaint which alleges that the Respondent violated the Statute when it unilaterally implemented an increase in parking rates at VA Nashville without bargaining with the Union over the substance of the change. However, in arriving at this result, I have carefully considered the following aspects of this case that the majority does not discuss.

      First, I note the General Counsel's contention that the Judge incorrectly relied on the Respondent's parking circulars in disposing of this case. Specifically, the General Counsel maintains that because the last parking circular had long since expired, the circulars have no application to this proceeding. As explained below, I agree with the General Counsel's contention.

      Beginning in 1987, the Respondent published three parking circulars that "prescribe[d] policies and procedures for the assessment and collection of parking charges" at its medical facilities nationwide. Respondent's Exh. 1. It is undisputed that these circulars were intended to implement 38 U.S.C. § 8109 and 38 C.F.R. § 1.303, concerning parking fees at VA medical facilities. The Judge found that the parking circulars did not constitute contracts negotiated between the Respondent and AFGE National. Rather, the Judge found that the circulars set forth the Respondent's national policy, and "were issued at the national level, after notifying AFGE and receiving its consent." Judge's Decision at 7. See also Id. at n.6. Based on these findings, the Judge concluded that VA Nashville did not violate the Statute when it rejected the Union's request to bargain over the change in parking fees because the "request was made at the wrong level." Id.

      The Authority has found that "[a]gencies issue pronouncements in many forms, including regulations, circulars, [and] manuals . . . ." National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 388 n.2 (1991), enforcement denied on other grounds sub nom. U.S. Department of the Treasury, Internal Revenue Service v. FLRA, 996 F.2d 1246 (D.C. Cir. 1993). In this connection, the Authority has observed that "`[t]he label attached to an agency pronouncement is not dispositive.'" Id. (quoting Chasse v. Chasen, 595 F.2d 59, 62 (1st Cir. 1979).

      Although the procedure for challenging an increase in parking fees was embodied in documents denominated as "circulars," it is clear that they constituted a VA regulation. Moreover, it is undisputed that the last of the circulars -- Circular 90-31 --expired by its terms on October 1, 1991. General Counsel's Exh. 2 at 5. Accordingly, I conclude that the Judge erred in finding that the expired circular affected the parties' bargaining obligations. See National Association of Government Employees, Local R12-40 and Federal Union of Scientists and Engineers, Local R12-198 and U.S. Department of the Navy, Naval Ship Weapon Systems Engineering Station, Port Hueneme, California, 36 FLRA 168, 171 (1990) (as OMB bulletin had expired and was no longer in effect, it was not applicable as a basis for the agency's position).

      In this connection, I specifically note that the Judge's finding of a violation -- the Respondent's refusal to bargain over the impact and implementation of the change in parking rates --was based on a provision set forth in the parking circulars. I further note that no exceptions have been filed to this aspect of the decision. In view of my determination that the circulars do not apply, they do not provide a basis for the Judge's finding. Nevertheless, I have concluded that this finding should be left undisturbed because it is not at issue before us.

      In addition, inasmuch as the parking circulars had expired by their express terms, I find the Respondent's reliance on the circulars as a means of disavowing its responsibility for bargaining over the substance of the rate increase somewhat remarkable. In my view, it would be incongruous to find that VA Nashville had the authority to bargain impact and implementation issues in the context of the expired circulars, but to also find that it lacked authority to bargain over substance on behalf of the Respondent. When VA Nashville ultimately rejected the Union's substance bargaining request, it expressly noted the Respondent's position that the matter had been negotiated at the national level. General Counsel's Exh. 13. Therefore, it is clear that the Respondent was aware of the Union's attempt to bargain at the local level. Notwithstanding this fact, the Respondent did nothing to disabuse the Union of its alleged mistake in asking VA Nashville to bargain.

      I note that under the doctrine of apparent authority, the authority of an agent to act on behalf of its principal "results from a manifestation by a principal to a third party that reasonably leads a third party to believe that another person is acting as the principal's agent." Millard Processing Services, Inc. v. NLRB, 2 F.3d 258, 262 (8th Cir. 1993) ("[a]pparent authority results from a manifestation by a principal to a third party that reasonably leads a third party to believe that another person is acting as the principal's agent."). Consistent with this doctrine, I would therefore find that VA Nashville had apparent authority to bargain on behalf of the Respondent over the increase in employee parking rates.


File 1: Authority's Decision in 55 FLRA No. 195 and Opinion of Member Wasserman
File 2: ALJ's Decision


Footnote # 1 for 55 FLRA No. 195 - Authority's Decision

   Member Wasserman's concurring opinion is set forth at the end of this decision.


Footnote # 2 for 55 FLRA No. 195 - Authority's Decision

   The relevant provisions of 38 U.S.C. § 8109 and 38 C.F.R. § 1.303 are set forth in the Appendix to this decision.


Footnote # 3 for 55 FLRA No. 195 - Authority's Decision

   In arriving at this result, we specifically note that remedies for unfair labor practices should be designed to "restore, so far as possible, the status quo that would have obtained but for the wrongful act." Id. (quoting NLRB v. J.H. Rutter-Rex Manufacturing Co., 396 U.S. 258, 265 (1969). In our view, the make-whole relief that we order here serves to further this well settled goal. See American Federation of Government Employees, SSA Council 220, AFL-CIO v. FLRA, 840 F.2d 925, 930 (D.C. Cir. 1988) (the denial of make-whole relief "should prove exceptional").


Footnote # 4 for 55 FLRA No. 195 - Authority's Decision

   An assessment of whether VA Nashville was authorized to bargain over the increase in rates is unnecessary because, even if VA Nashville was not so authorized, the increase in parking rates must be rescinded. Moreover, there is no dispute that if the Respondent does initiate another increase at some future date, the substance of the increase is negotiable at the appropriate agency level. See 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). The Authority has previously declined to find an additional violation where such a finding would not affect the remedial relief provided. E.g., Department of the Treasury and Internal Revenue Service, 22 FLRA 821, 829 n.8 (1986). As such circumstances are presented in this case, we make no decision on the merits of the allegation that, as a result of the request made to VA Nashville, the Respondent was obligated to bargain over the substance of the change. In light of this determination, we also do not reac