DEPARTMENT OF COMMERCE PATENT AND TRADEMARK OFFICE ARLINGTON, VIRGINIA and CHAPTER 243, NATIONAL TREASURY EMPLOYEES UNION
States of America
THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
Case No. 03 FSIP 162
DECISION AND ORDER
The Department of Commerce, Patent and
Trademark Office (PTO), Arlington, Virginia (Employer or Agency), filed a
request for assistance with the Federal Service Impasses Panel (Panel) to
consider a negotiation impasse under the Federal Service Labor-Management
Relations Statute (Statute), 5 U.S.C. § 7119, between it and Chapter
243, National Treasury Employees Union (NTEU or Union).
After investigation of the request for assistance, which concerns PTO’s decision to consolidate and relocate its offices from Crystal City to the “Carlyle Campus” in Alexandria, Virginia,/ the Panel determined that the issues at impasse should be resolved through an informal conference with Panel Member Joseph C. Whitaker. The parties were informed that if no settlement was reached, Member Whitaker would notify the Panel of the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would resolve the dispute by taking whatever action it deems appropriate, which could include the issuance of a binding decision.
In accordance with the Panel’s procedural determination, Member Whitaker
conducted an informal conference with the parties on April 1, 2004.
Agreement was reached on the issue of furniture, and the Union withdrew
its proposals on two other topics. At
the end of the meeting, the parties submitted their final offers on the issues
that remain in dispute. The parties
also filed brief post-conference statements of position in support of their
final offers. Member Whitaker has
reported to the Panel and it has now considered the entire record, including the
parties’ post-conference statements of position.
The Employer’s mission is to issue patents and register trademarks.
The Union represents a bargaining unit consisting of approximately 1,310
non-professional employees in General Schedule (GS) pay grades 3 through 12.
Most of the employees provide administrative or technical support for
patent examiners and patent attorneys. The
parties recently renegotiated their master collective bargaining agreement.
The only issues that remain in dispute concern the daily and hourly rates that unit employees should pay to park at the Carlyle Campus.
POSITIONS OF THE PARTIES
1. The Employer's Position
The Employer proposes the following wording:
The initial daily parking rate at Carlyle shall be $8.00 for USPTO employees with validation. Hourly parking will be available at a rate of $3.00/hour for USPTO employees.
proposed daily and hourly parking rates are comparable to, and in
most cases lower than, those charged at commercial lots in the vicinity of the
Carlyle Campus, and are reasonable, given the options most bargaining-unit
employees have at their current location in Crystal City, Virginia.
In this regard, only one garage (at the North/South Tower in Crystal
City) offers a lower daily rate (an “early bird special” of $6), and its
location requires most unit employees who park to take a shuttle to get to the
16 other buildings in Crystal City. The
proposed rates also are identical to those currently being paid by employees
represented by the Patent Office Professional Association (POPA), PTO’s
largest labor organization.
The Union’s proposed daily rate, on the other hand, “is so low that the many
employees who take advantage of the Agency’s flexible schedules and work fewer
than 5 weekdays each week will have no incentive to purchase monthly parking
and, instead, will opt to pay the low daily rate.” This is because the Union has already agreed to the same
monthly parking rate ($100) and hours of free parking that apply to POPA
employees. As a result, the
adoption of the Union’s proposal would “preclude the Agency from meeting its
operating costs.” The same is
true of the Union’s proposed hourly rate.
Finally, PTO is offering parking at Carlyle “as a convenience, not a
right, and employees have many other low-cost options for commuting to work via
2. The Union's Position
Union’s proposal is as follows:
daily rate for bargaining unit members shall not exceed $6.00 a day.
The hourly rate for bargaining unit members shall not exceed $1.50 an
proposed daily rate is justified because it is “in line with the previously
available daily rate” at the North/South Tower, and its proposed hourly rate
is justified because it is “double the previous hourly rate.”
Any presumption on the part of the Employer that the rates already agreed
to by POPA should apply to all PTO employees, regardless of bargaining unit,
should be rejected. Chapter 243
employees are paid less than similarly-graded employees represented by POPA, who
receive a special pay rate 22 percent higher than GS employees, so lower daily
and hourly parking rates are warranted on this basis.
Similarly, the Employer’s argument that its proposed rates should be
adopted because they are comparable to those charged at nearby garages also
should be rejected. The nearby
garages set their rates “based upon market forces of supply and demand with a
goal of maximizing profitability,” while the price of the garage at Carlyle
“is fixed in the lease.” In
conjunction with the fact that PTO is not “in the business of making a profit,
especially off its own employees,” there is no reason that the same market
rate should apply to the PTO’s garage.
Having carefully considered the evidence and arguments presented by the parties,
we are persuaded that the Employer’s proposal provides the better basis for
resolving the dispute. In our view,
the Union has not demonstrated the need for treating the members of this
bargaining unit differently from all other PTO employees.
Given that the parties already have agreed to a monthly rate of $100, a
daily rate of $6 would discourage employees from purchasing the monthly parking
permits the Employer relies on to ensure adequate income to meet its operating
expenses. The fact that one
commercial parking garage at Crystal City offers a daily “early bird” rate
of $6 is insufficient to overcome this serious defect in the Union’s position.
Administering multiple parking rates for different PTO employees also
would be burdensome, and is unjustified in light of the reasonableness of the
rates proposed by the Employer. Accordingly,
we shall order the adoption of the Employer’s proposal.
Pursuant to the authority vested in it by the Federal Service Labor-Management
Relations Statute, 5 U.S.C. § 7119, and because of the failure of the
parties to resolve their dispute during the course of proceedings instituted
under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service
Impasses Panel, under 5 C.F.R. § 2471.11(a) of its regulations, hereby
orders the following:
The parties shall adopt the Employer’s proposal.
By direction of the Panel.
June 17, 2004
/ The Employer’s “Consolidation, Transition and Relocation Plan” indicates that employees and contractors will be consolidated into an interconnected campus of 5 buildings from the current 18; the phased relocation began in December 2003, and is to be comp