American Federation of Government Employees, Local 2139, National Council, of Field Labor Locals (Union) and United States, Department of Labor, Wage and Hour Division, Dallas, Texas (Agency)

[ v61 p654 ]

61 FLRA No. 130

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2139
NATIONAL COUNCIL
OF FIELD LABOR LOCALS
(Union)

and

UNITED STATES
DEPARTMENT OF LABOR
WAGE AND HOUR DIVISION
DALLAS, TEXAS
(Agency)

0-NG-2870

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUE

August 11, 2006

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. The Agency filed a statement of position (SOP), the Union filed a response, and the Agency filed a reply.

      For the reasons set forth below, we find that the Union's proposal is within the duty to bargain.

II.      Proposal and Meaning

      As relevant here, [n1]  the Union proposed the following:

The Agency will provide parking at the El Paso Field Office for bargaining unit employees who use their privately owned vehicles [(POV)] a majority of the time on Government business.

Record of Post-Petition Conference at 2.

      According to the Union, the proposal is intended to require the Agency to comply with Agency regulations mandating that the Agency provide parking spaces to employees who demonstrate a "compelling need," as defined in the regulation, for such spaces. Union Response at 3 (citing DLMS-2, §§ 526 C; 525 I). [n2]  The Agency makes an undisputed claim that, under the proposal, it would be required to enter into a special lease agreement with the General Services Administration (GSA) for additional parking spaces. Agency SOP at 4. Consistent with the foregoing, we find that the proposal would require the Agency to lease additional parking spaces to be provided to employees who meet the requirements for compelling need in the Agency's regulations.

III.     Positions of the Parties

A.      Agency

      The Agency argues that the proposal is contrary to law because it would require the Agency to use appropriated funds to pay for employee parking that is not authorized by law or regulations. According to the Agency, 5 U.S.C. § 5704 permits the reimbursement of parking only on those days when the employee uses a POV to conduct official business. [n3]  The Agency further relies on Authority precedent finding contrary to law and regulation an arbitrator's award requiring reimbursement [ v61 p655 ] for parking expenses on a day when the rented spaces were not used for official business. Agency SOP at 7-8 (citing Internal Revenue Service, Houston District, 18 FLRA 483 (1985) (IRS, Houston I)).

      The Agency further argues that the Union's proposal is contrary to an Agency regulation that prohibits it from entering into special leasing arrangements in order to make parking available to employees, except as required by law or three exceptions that, according to the Agency, are not present in this situation. [n4]  According to the Agency, the El Paso Field Office is located in a Federal building owned and operated by the GSA, and the Agency would be required to enter into a special leasing arrangement with GSA in order to obtain parking for employees. The Agency also claims that the proposal is contrary to its general travel regulations, which provide that employees who park in commercial lots may be reimbursed either for their daily cost of parking or, in certain circumstances, for a pro rata share of monthly parking expenses. [n5] 

      The Agency next states that it notified the Union in November 2002 that it intended to discontinue paying for parking, except as authorized by law, at the time its lease agreements came up for renewal at each location in the Wage and Hour Division of the Region. According to the Agency, it has released parking spaces at six locations, in accordance with this policy, without any request to bargain by the Union. The Agency asserts that it would have a negative effect on the morale of employees who are required to pay for parking if it were required to continue paying for parking at the El Paso Field Office.

      In response to the Union's arguments that agency-paid parking is negotiable, the Agency asserts that the decisions relied on by the Union are inapposite because the Agency's decision to discontinue paying for parking here is de minimis. In this regard, the Agency asserts that employees have access to public transportation and a transit subsidy program, as well as reimbursement for parking when their POVs are used for Agency business. With respect to the Union's argument that Agency regulations require that it provide parking to "officials demonstrating a compelling need[,]" the Agency claims that: (1) the regulation only applies where the Agency already controls parking spaces; and (2) the employees do not meet the "compelling need" criteria in any event. Agency Reply at 4 (citing DLMS-2 526).

B.      Union

      The Union argues that Authority precedent supports its position "that agencies can pay for employee parking." Union Response at 3 (citing United States Dep't of the Treasury, Internal Revenue Service, Houston District, 25 FLR 843, 848 (1987) (IRS, Houston II); United States Dep't of Labor, Wash., D.C., 44 FLRA 988, 994-95 (1992) (DOL)). Further, the Union claims that Agency regulations require that parking be reimbursed for employees who have a "compelling need" for parking, as defined in the regulations. Id. at 3 (quoting DLMS-2, § 525 I). In this regard, the Union claims that the employees travel away from their offices to conduct investigations "several times per month," that they use POVs because government owned vehicles are not available, and that public transportation is not feasible. Id. at 3-4.

      With respect to the Agency's argument that providing parking is contrary to law and regulation, the Union asserts that the Agency has provided parking at the El Paso office for at least 15 years, as part of its lease, and that the Agency provides parking at "multiple locations around the country." Id. at 4. With respect to the Agency's argument that the proposal is contrary to [ v61 p656 ] DLMS-7 1-4.1 (d)(2), the Union argues that this regulation applies to commercial space, not Agency-leased space. The Union further claims that the fact that the Agency has ceased paying for parking at other locations and the Union did not seek to bargain does not affect the negotiability of this proposal. Finally, the Union states that the loss of paid parking will adversely affect morale in the El Paso office and that, if the Agency is concerned about employee morale region-wide, then it should not have stopped paying the parking costs of employees in other locations.

IV.     Analysis and Conclusions

      In general, "matters concerning conditions of employment are subject to collective bargaining when they are within the discretion of an agency and are not otherwise inconsistent with law[.]" Patent Office Professional Ass'n, 53 FLRA 625, 648 (1997). In this regard, the Authority has held that an agency is required to bargain over the substance of changes in employee parking, as well as their impact and implementation. DOL, 44 FLRA at 994-95. Specifically, the Authority recently found that where an agency has leased parking spaces through the GSA, proposals requiring management to subsidize employee parking costs are within the duty to bargain. See AFGE, Local 12, 61 FLRA 209, 215 (2002); see also United States Dep't of Transportation, FAA, Northwest Mountain Region, Renton, Wash., 55 FLRA 293, 299 (1999).

      Here, it is undisputed that the Agency has leased parking spaces from GSA for employees for many years. Although the Agency claims that leasing additional spaces would be inconsistent with its regulations governing special lease agreements, "[u]nder section 7117(b) of the Statute, an agency regulation does not bar negotiation on an otherwise negotiable provision unless the agency can demonstrate a compelling need for the regulation under section 2424.11 of the Authority's Regulations." NTEU, 55 FLRA 1005, 1009 (1999) (Member Cabaniss dissenting on other grounds). The Agency has not asserted here that a compelling need exists for its regulations and we therefore need not address them.

      Further, although the Agency argues correctly that 5 U.S.C. § 5704 requires that employees who park in commercial lots be reimbursed on a pro rata basis, the proposal concerns parking provided by the employer, rather than reimbursement of employee-rented public parking. See AFGE, Local 12, 61 FLRA at 215 (distinguishing proposals concerning agency-leased space and commercially controlled space).

      Consistent with the foregoing, the proposal is not inconsistent with law or regulation.

      With regard to the Agency's other arguments, the Agency notes that it has released parking spaces at a variety of locations and claims that there would be a negative effect on morale of other unit employees if it continued to pay for parking at the El Paso location. Even if true, however, this claim goes to the merits -- not the negotiability -- of the proposal. The Agency also claims in its reply that the change in parking here is de minimis. The claim that a change in employees' conditions of employment is de minimis is a bargaining obligation dispute, rather than a negotiability dispute. 5 C.F.R. § 2424.2(a)(2). In its SOP, the Agency specifically stated that it did not assert any bargaining obligation disputes with respect to the proposal, and the Union made no arguments regarding that issue in its response. See SOP at 6. Thus, insofar as the Agency's de minimis argument raises a new bargaining obligation dispute, such argument is not responsive to the Union's arguments raised for the first time in its response and is not permitted under the Authority's regulations. 5 C.F.R. § 2424.26(a) (purpose of reply is to respond to arguments made in Union's response).

V.      Order

      The proposal is within the duty to bargain and the Agency shall, upon request, or as otherwise agreed to by the parties, bargain with respect to the proposal. [n6] 



Footnote # 1 for 61 FLRA No. 130 - Authority's Decision

   The proposal submitted in the Union's petition also concerned parking for disabled employees. Thereafter, the dispute concerning disabled employees was resolved and the proposal was modified to eliminate that subject. See Record of Post-Petition Conference at 2. Thus, the issue of disabled employees will not be addressed further.


Footnote # 2 for 61 FLRA No. 130 - Authority's Decision

   DLMS-2 § 526 C provides, in pertinent part:

Parking permits/authorizations will be issued at the building of principal employment to:
. . . 3. Officials demonstrating a compelling need. (See Definitions, 525 I).

DLMS-2 § 525 I provides in pertinent part:

Compelling Need. Employees using their POVs for official business may qualify under this provision when all of the following criteria are met:
1.     The use of a taxicab, public transportation, or transportation provided by the Department is not available or feasible, and
2.     the official is using their POV on a majority of workdays, which is defined as at least 12 days per month, and
3.     the official travel must be qualified for reimbursement under Federal travel regulations (emphasis in original).

      SOP, Attachment 1 at 5, 3-4


Footnote # 3 for 61 FLRA No. 130 - Authority's Decision

   5 U.S.C. § 5704 (d) provides, in pertinent part:

In addition to the rate per mile authorized under subsection (a) of this section, the employee may be reimbursed for--
   (1) parking fees. . . .

Footnote # 4 for 61 FLRA No. 130 - Authority's Decision

   DLMS-2 §528 A. provides, in pertinent part:

Where parking facilities are not available through the normal leasing arrangements for space, the DOL will not enter into any special leasing arrangements, or make arrangements through appropriated funds, in order to make them available, except as required by law. Exceptions to this general Federal guideline are:
1.     Incremental payments to, or for, employees with disabilities accessible parking (see 526 B.), or:
2.     If provided for in a collective bargaining agreement with a recognized union, or:
3.     A written finding . . . that significant impairment to morale, retention, and operating efficiency will result from a lack of sufficient parking space.

   &nbs