12:0650(129)CA - Marshals Service and AFGE, International Council of Marshals Service Locals -- 1983 FLRAdec CA
[ v12 p650 ]
12:0650(129)CA
The decision of the Authority follows:
12 FLRA No. 129
UNITED STATES MARSHALS SERVICE
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, INTERNATIONAL
COUNCIL OF MARSHALS SERVICE LOCALS
Charging Party
Case No. 3-CA-1086
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Authority" in accordance with
section 2429.1(a) of the Authority's Rules and Regulations. Upon
consideration of the entire record in this case, including the
stipulation of facts, accompanying exhibits and the contentions of the
parties, the Authority finds:
The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute (the
Statute) failing and/or refusing to negotiate over its decision to
release to the Government Services Administration (GSA) parking spaces
used by unit employees. The Respondent argues that no bargaining
obligation existed inasmuch as the release of parking spaces to GSA was
consistent with existing agency policy regarding space allocation, and
that even if a bargaining obligation existed, the Charging Party (the
Union) essentially waived its bargaining rights by failing to act in a
timely manner.
The Union represents a worldwide unit of nonprofessional employees of
the U.S. Marshals Service, including intermittent and term deputies. On
October 16, 1979, the Respondent's Director sent a message to all U.S.
Marshals advising them that employee parking would no longer be provided
free of charge in accordance with policy recently established by the
Office of Management and Budget (OMB Circular A-118), and that the
Respondent would be releasing all excess parking spaces to GSA effective
November 1, 1979. /1/ Subsequently, on November 13, 1979, the
Respondent notified the Union of its intention to release spaces other
than the following: one per government owned/leased vehicle; one per
privately owned vehicle of the U.S. Marshal at district level; and one
visitor space. The Union thereafter requested bargaining concerning the
release of parking spaces then being used by bargaining unit employees
and stated its expectation that the Respondent would pay travel and per
diem expenses for the Union's negotiators. A dispute then arose between
the parties (which is not at issue herein) concerning the payment of
travel and per diem expenses. Thereafter, the Union again requested
negotiations. No negotiations were apparently held. Shortly
thereafter, in January 1980, the Respondent released parking spaces at
various locations to GSA. The parties stipulated that five bargaining
unit employees lost their parking spaces as a result. /2/ Additionally,
in November 1979, the U.S. Marshal at Indianapolis released parking
spaces occupied by five unit employees. During mid-term bargaining on
matters not at issue herein, in February 1980, the Union submitted an
unspecified proposal concerning employee parking. The Respondent
refused to bargain on the basis that the release of parking spaces had
already been implemented.
The Authority has previously addressed the issue of agency control
over the relinquishment of parking spaces used by unit employees. In
National Treasury Employees Union, Chapter 6 and Internal Revenue
Service, New Orleans District, 3 FLRA 748 (1980), the Authority
determined that agencies maintain discretion to determine whether to
relinquish unneeded or underutilized parking spaces. The Authority
further held that, to the extent that agencies maintain discretion over
matters affecting conditions of employment of unit employees, such as
the relinquishment of parking spaces, such matters are within the
agency's duty to bargain. Accordingly, in the instant case, the
Authority finds that the Respondent was obligated to bargain with the
Union concerning the decision to relinquish parking spaces, and that its
failure to do so constitutes a violation of section 7116(a)(1) and (5)
of the Statute. The Respondent argues, in this regard, that the release
of parking spaces did not effect a change in working conditions but,
rather, was simply a reaffirmation of existing agency policy as set
forth in Section 490 of the U.S. Marshals Service Manual, /3/ an
internal agency regulation. As to this latter contention, there is no
evidence in the record to indicate, and no allegation by the Respondent,
that its decision to release certain parking spaces was required by the
internal regulation. Moreover, it was neither asserted nor established
that the regulation in question falls within the meaning of section
7117(a)(2) and (3) of the Statute /4/ so as to bar negotiations-- i.e.,
that the regulation was issued at the level of the agency or primary
national subdivision and a compelling need exists therefor. See Defense
Logistics Agency (Cameron Station, Virginia), et al., 12 FLRA No. 86
(1983). As to the Respondent's contention that the release of parking
spaces did not effect a change in working conditions, the Authority
finds, as stipulated by the parties, that unit employees at various
locations lost the use of their parking spaces following the issuance of
the Respondent's October 16 message to U.S. Marshals which addressed the
release of excess parking spaces. This clearly constitutes a change in
conditions of employment affecting unit employees. Moreover, the record
further indicates that five additional employees lost the use of their
parking spaces in Indianapolis sometime in November 1979, following
receipt of the October 16 message by the U.S. Marshal for that district.
The Respondent argues, in connection with this latter situation, that
the spaces in question had previously been released in June 1979; that
the Respondent neither knew of nor consented to any informal arrangement
which may have existed between the local U.S. Marshal and GSA to retain
the spaces; and that, therefore, the Respondent was not responsible for
the actions of the local U.S. Marshal. The Authority finds this
argument to be without merit. The Authority has previously held that
the acts and conduct of agency management at a level lower than the
level of exclusive recognition may form the basis of a violation of the
Statute where lower level agency management acts as the agent of
management at the level of exclusive recognition. Department of Health
and Human Services, Social Security Administration, Office of Program
Operations and Field Operations, Sutter District Office, San Francisco,
California, 5 FLRA No. 63 (1981). On this same basis, the Authority
finds that the release of parking spaces in Indianapolis, which was
precipitated by the Respondent's October 16 message, was also violative
of the Statute. As to the Respondent's assertion that the Union waived
any bargaining rights it might have had by failing to act in a timely
manner, the Authority finds that the Union did in fact make several
timely bargaining requests prior to the release of the parking spaces.
Therefore, this contention of the Respondent must also be rejected.
While the Respondent's failure and refusal to bargain with the Union
concerning the decision to relinquish the parking spaces then being used
by bargaining unit employees constituted a violation of section
7116(a)(1) and (5) of the Statute, the Authority finds that a status quo
ante order would not be appropriate to remedy such unfair labor practice
inasmuch as the parking spaces have already been released to GSA and the
authority for acquiring replacement spaces rests not with the Respondent
but with GSA. However, in order to remedy the unfair labor practice
conduct herein, the Authority shall order the Respondent (1) to make
every effort to reacquire the parking spaces, including requesting,
through appropriate channels and in accordance with applicable
regulations, that GSA replace the parking spaces formerly occupied by
unit employees at various locations throughout the Respondent's
facilities; and (2) to bargain with the Union, to the extent consonant
with applicable GSA regulations, concerning the reallocation of its
parking spaces for use by unit employees.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the United States Marshals Service shall:
1. Cease and desist from:
(a) Releasing parking spaces used by unit employees without first
affording the American Federation of Government Employees, AFL-CIO,
International Council of Marshals Service Locals, the employees'
exclusive representative, the opportunity to bargain concerning such a
decision.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Make every effort to reacquire the parking spaces, including but
not limited to requesting, through appropriate channels and in
accordance with applicable regulations, that the General Services
Administration replace the parking spaces which had been used by unit
employees in the Northern District of Texas, the Northern District of
California, Idaho, the Western District of Louisiana, and Indianapolis,
and which were relinquished to GSA in November 1979 and January 1980
without bargaining in good faith with the employees' exclusive
representative concerning the decision to do so.
(b) Bargain, upon request of the American Federation of Government
Employees, AFL-CIO, International Council of Marshals Service Locals,
and to the extent consonant with applicable regulations of the General
Services Administration, concerning the reallocation of its parking
spaces for use by unit employees.
(c) Post at its facilities 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, U.S. Marshals Service,
or his designee, and shall be posted and maintained for 60 consecutive
days thereafter, in conspicuous places, including bulletin boards and
other 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.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, in writing,
within 30 days from the date of this Order, as to what steps have been
taken to comply herewith.
Issued, Washington, D.C., August 25, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT release parking spaces used by unit employees without first
affording the American Federation of Government Employees, AFL-CIO,
International Council of Marshals Service Locals, the exclusive
representative of our employees, the opportunity to bargain concerning
such a decision. WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute. WE
WILL make every effort to reacquire the parking spaces, including but
not limited to requesting, through appropriate channels and in
accordance with applicable regulations, that the General Services
Administration replace the parking spaces which had been used by unit
employees in the Northern District of Texas, the Northern District of
California, Idaho, the Western District of Louisiana, and Indianapolis,
and which were relinquished to GSA in November 1979 and January 1980
without bargaining in good faith with the employees' exclusive
representative concerning the decision to do so. WE WILL bargain, upon
request of the American Federation of Government Employees, AFL-CIO,
International Council of Marshals Service Locals, and to the extent
consonant with applicable regulations of the General Services
Administration, concerning the reallocation of our parking spaces for
use by unit employees.
(Agency)
Dated: . . . By: (Signature) 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,
Region III, Federal Labor Relations Authority, whose address is: P.O.
Box 33758, Washington, D.C. 20033-0758 and whose telephone number is:
(202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ The matter of no longer providing parking free of charge is not
at issue herein.
/2/ Two of these employees were located in the Northern District of
Texas; and one in the Northern District of California, Idaho and the
Western District of Louisiana, respectively.
/3/ Section 490 of the U.S. Marshals Service Manual provides, in
relevant part, as follows:
10. Parking:
A. One (1) parking space is authorized for each government
vehicle assigned to each district as is one parking space for the
use of the U.S. Marshal. Such spaces will be arranged for through
the local GSA Buildings Manager and will be at the expense of the
United States Marshals Service. Usually, Government-owned or
controlled space will be provided as close to the U.S. Marshals
Office as possible. Should government space be unavailable, GSA
should arrange for the monthly leasing of commercial space
sufficient to meet the basic needs of each office. If GSA is
unable to assist you in arranging such space, you are to contact
the Administrative Services Division, USMS, Space Control Officer
for advice and guidance in obtaining same. In any event, Standard
Form 81 must be completed and submitted to the Space Control
Officer before contracting for parking spaces. Any space acquired
should be at a central location near the U.S. Marshals Office and
afford protection from pilferage or malicious damage to vehicles.
/4/ Section 7117(a)(2) and (3) provides as follows:
Sec. 7117. Duty to bargain in good faith; compelling need;
duty to consult
. . . .
(2) The duty to bargain in good faith shall, to the extent not
inconsistent with Federal law or any Government-wide rule or
regulation, extend to matters which are the subject of any agency
rule or regulation referred to in paragraph (3) of this subsection
only if the Authority has determined under subsection (b) of this
section that no compelling need (as determined under regulations
prescribed by the Authority) exists for the rule or regulation.
(3) Paragraph (2) of the subsection applies to any rule or
regulation issued by any agency or issued by any primary national
subdivision of such agency, unless an exclusive representative
represents an appropriate unit including not less than a majority
of the employees in the issuing agency or primary national
subdivision, as the case may be, to whom the rule or regulation is
applicable.