19:0846(102)CA - Labor, Washington, DC and DOL Region VII, Occupational Safety and Health Administration and Office of the Assistant Secretary for Administration and Management, Kansas City, MO and National Council of Field Labor Locals, AFGE -- 1985 FLRAdec CA
[ v19 p846 ]
19:0846(102)CA
The decision of the Authority follows:
19 FLRA No. 102
U.S. DEPARTMENT OF LABOR, WASHINGTON,
D.C. AND U.S. DEPARTMENT OF LABOR,
REGION VII, OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION AND OFFICE OF
THE ASSISTANT SECRETARY FOR ADMINIS-
TRATION AND MANAGEMENT, KANSAS CITY,
MISSOURI
Respondent
and
NATIONAL COUNCIL OF FIELD LABOR
LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Case No. 7-CA-40017
(1)(2)(3)(4)
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Exceptions to the Judge's Decision were
filed by the Respondent.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order as modified below.
The Judge found that the refusal to bargain over the termination of
individual assignments of government-owned vehicles and the release of
parking spaces used by unit employees violated section 7116(a)(1) and
(5) of the Statute.
Subsequent to the issuance of the Judge's Decision herein, the
Authority issued decisions in U.S. Department of Labor, Occupational
Safety and Health Administration, Chicago, Illinois, 19 FLRA No. 60
(1985), and U.S. Department of Labor, Washington, D.C. and Employment
Standards Administration, Region 8, Denver, Colorado, 19 FLRA No. 65
(1985). Those cases addressed the obligation of management to bargain
over the termination of individual government-owned vehicle assignments
to bargaining unit employees of the same agency and represented by the
same union /1/ as involved herein, and dealing with the same collective
bargaining agreement and essentially the same arguments as are raised
herein. In those cases, the Authority determined that the union had not
clearly and unmistakably waived its right to bargain over procedures and
appropriate arrangements for unit employees adversely affected by the
termination of individual vehicle assignments and that the refusals to
bargain therefore were violative of the Statute. For the reasons more
fully set forth in those decisions, the Authority finds in the instant
case that the Respondent's refusal to bargain over procedures and
appropriate arrangements for unit employees adversely affected by the
termination of individual vehicle assignments violated section
7116(a)(1) and (5) of the Statute. With respect to the bargaining
obligation over the substance of the termination, the Authority
concludes, consistent with its decision in Employment Standards
Administration, supra, that the union had contractually waived its right
to bargain over the decision concerning the assignment of such vehicles,
and that the Respondent therefore was not obligated to bargain in this
regard. /2/
With respect to the Judge's finding of a violation based on the
refusal to bargain over the substance of, and procedures and appropriate
arrangements for unit employees adversely affected by, the release of
parking spaces, the Authority agrees that such conduct violated section
7116(a)(1) and (5) of the Statute. /3/
To remedy the unfair labor practices, the Judge recommended that the
Respondent be ordered to bargain and reach agreement concerning the
changes; that employees be made whole for losses incurred as a result
of the changes; and that the Respondent make every effort to reacquire
the released parking spaces. The Authority shall modify that portion of
the Judge's remedy which would require the parties to reach agreement,
as such an order would be inconsistent with section 7103(a)(12) of the
Statute which states in pertinent part that "the obligation (to bargain)
. . . does not compel either party to agree to a proposal or to make a
concession(.)" See Occupational Safety and Health Administration, supra.
Rather, the Authority shall modify the Judge's order so as to require
the Respondent to bargain, upon request, over procedures and appropriate
arrangements for unit employees adversely affected by the termination of
individual vehicle assignments. In agreement with the Judge, the
Authority finds that it will further effectuate the purposes and
policies of the Statute to order, to the extent that it is consistent
with law and regulation, that the Respondent make whole any employees
for losses incurred as a result of the termination of individual vehicle
assignments, and as a result of the release of parking spaces used by
bargaining unit employees, to the extent that they have not already been
reimbursed; to order that the Respondent make every effort to reacquire
the parking spaces used by unit employees; and to order that the
Respondent bargain, upon request and to the extent consonant with
applicable regulations, concerning the reallocation of its parking
spaces for use by unit employees. Occupational Safety and Health
Administration, supra; Employment Standards Administration, supra. See
also United States Marshals Service, 12 FLRA 650 (1983).
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the U.S. Department of Labor, Washington, D.C. and U.S. Department
of Labor, Region VII, Occupational Safety and Health Administration and
Office of the Assistant Secretary for Administration and Management,
Kansas City, Missouri shall:
1. Cease and desist from:
(a) Failing and refusing to bargain with the National Council of
Field Labor Locals, American Federation of Government Employees,
AFL-CIO, or its designated representative, concerning procedures and
appropriate arrangements for unit employees adversely affected by the
termination of individual vehicle assignments.
(b) Releasing parking spaces used by bargaining unit employees
without first affording the National Council of Field Labor Locals,
American Federation of Government Employees, AFL-CIO, or its designated
representative, the opportunity to bargain concerning such decision.
(c) In any like or related manner interfering with, restraining, or
coercing 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) Upon request, bargain with the National Council of Field Labor
Locals, American Federation of Government Employees, AFL-CIO, or its
designated representative, concerning procedures and appropriate
arrangements for unit employees adversely affected by the termination of
individual vehicle assignments.
(b) Consistent with law and regulation, make whole unit employees for
losses incurred as a result of the termination of individual vehicle
assignments, and as a result of the release of parking spaces used by
bargaining unit employees, to the extent they have not already been
reimbursed.
(c) 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 Wichita, Kansas and Kansas City, Missouri offices and
which were relinquished to the General Services Administration in
October and November 1983 without bargaining in good faith with the
employees' exclusive representative concerning the decision to do so.
(d) Bargain, upon request of the National Council of Field Labor
Locals, American Federation of Government Employees, AFL-CIO, or its
designated representative, 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.
(e) Post at its facilities in St. Louis, Missouri, Wichita, Kansas
and Kansas City, Missouri, 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 Regional Administrator, Office
of the Assistant Secretary for Administration and Management, Region
VII, or a designee, and shall be posted and maintained for 60
consecutive days thereafter, including 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.
(f) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal Labor
Relations Authority, 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 19, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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 fail or refuse to bargain with the National Council of Field
Labor Locals, American Federation of Government Employees, AFL-CIO, or
its designated representative, concerning procedures and appropriate
arrangements for unit employees adversely affected by the termination of
individual vehicle assignments. WE WILL NOT release parking spaces used
by bargaining unit employees without first affording the National
Council of Field Labor Locals, American Federation of Government
Employees, AFL-CIO, or its designated representative, the opportunity to
bargain concerning such 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, upon request, bargain with the National
Council of Field Labor Locals, American Federation of Government
Employees, AFL-CIO, or its designated representative, concerning
procedures and appropriate arrangements for unit employees adversely
affected by the termination of individual vehicle assignments. WE WILL,
consistent with law and regulation, make whole any employees for losses
incurred as a result of the termination of individual vehicle
assignments, and as a result of the release of parking spaces used by
bargaining unit employees, to the extent that they have not already been
reimbursed. 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 Wichita, Kansas and Kansas City, Missouri, offices and
which were relinquished to the General Services Administration in
October and November 1983 without bargaining in good faith with the
exclusive representative of our employees concerning the decision to do
so. WE WILL, upon request, bargain with the National Council of Field
Labor Locals, American Federation of Government Employees, AFL-CIO, or
its designated representative, and to the extent consonant with
applicable regulations of the General Services Administration,
concerning the reallocation of parking spaces for use by unit employees.
(Activity)
Dated: . . . 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, Region VII,
Federal Labor Relations Authority, whose address is: 1531 Stout Street,
Suite 301, Denver, Colorado 80202 and whose telephone number is: (303)
837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 7-CA-40017(1)(2)(3)(4)
James E. Culp, Esq.
For the Respondents
James J. Gonzales, Esq.
For the General Counsel
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
U.S.C. 7101, et seq. It was instituted by the Regional Director of the
Seventh Region of the Federal Labor Relations Authority by the issuance
of a Complaint and Notice of Hearing dated December 30, 1983. A
Complaint was issued following an investigation of unfair labor practice
charges filed on October 17, 1983, and amended on December 21, 1983, by
the National Council of Field Labor Locals, American Federation of
Government Employees, AFL-CIO, herein referred to as the Charging Party
or the Union. The Complaint alleges that the U.S. Department of Labor,
Washington, D.C., herein called Respondent DOL and the U.S. Department
of Labor, Region VII, Occupational Safety and Health Administration and
Office of the Assistant Secretary for Administration and Management,
herein called Respondent Kansas City or Respondent OSHA, and herein
collectively called Respondents engaged in certain unfair labor
practices within the meaning of section 7116(a)(1) and (5) of the
Statute, by unilaterally changing the working conditions of unit
employees by terminating the individual assignment of government-owned
vehicles, herein called GOVs, to employees and terminating the parking
of employees' privately-owned vehicles, herein called POVs, in
government-leased space, without first bargaining with the Union
concerning these changes.
In its Answer, Respondent essentially denied the commission of any
unfair labor practices.
A hearing was held in Kansas, Missouri, at which the parties were
represented by counsel and afforded full opportunity to adduce evidence
and call, examine, and cross-examine witnesses and argue orally. /4/
Timely filed briefs have been duly considered.
Upon consideration of the entire record in this case, including my
evaluation of the testimony and evidence presented at the hearing, and
from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
Findings of Fact
A. Background; Practice and Procedures Concerning Government-Owned
Vehicles Assignment and Parking of Employees Privately-Owned Vehicles.
At all times material herein, the Union has been recognized as the
exclusive representative of all employees of Respondent DOL stationed
throughout the nation in its field duty stations, excluding certain
groups of employees not relevant to this proceeding. Included within
the above-described bargaining unit are compliance officers employed by
Respondent Kansas City in its Occupational Safety and Health
Administration Offices in Wichita, Kansas, Kansas City, Missouri, and
St. Louis, Missouri Area Offices, respectively.
The Union is composed of all American Federation of Government
Employees locals within Respondent DOL and the National Council
executive board membership is elected by the respective presidents of
the various locals. The Union and Respondent DOL negotiated a
collective bargaining agreement covering all bargaining unit employees
which originally became effective on August 17, 1978. The parties
subsequently agreed to extend, and supplement that collective bargaining
agreement through August, 1984, consequently it remained in effect at
all times material herein. Under Articles 3, 7 and 41, the Union and
Respondent DOL both delegated to their respective representatives in the
various regions, including management and union representatives in
Respondent Kansas City's region, the authority and responsibility for
conducting negotiations concerning matters which affect personnel
policies, practices or conditions of employment within their particular
region.
Within Respondent Kansas City's region, Roger Jackson, a compliance
officer, is the designated regional representative and point of contact
for the Union; Roger Clark is the Regional Administrator for OSHA; and
Gerald Dillon is the Regional Administrator for the Office of the
Assistant Secretary for Administration and Management (OASAM).
It is uncontroverted in the record that a regular practice and
procedure existed, from at least 1977 through May, 1983, involving the
individual assignment of GSA vehicles to OSHA compliance officers and
the cost-free parking of POVs by compliance officers on
government-leased premises at the Kansas City, St. Louis and Wichita
Area Offices. Throughout this entire period safety inspector or
industrial hygienist compliance officers employed in the above-named
offices would execute an agency form every 6 months and elect either to
use a GSA vehicle or a POV for their official travel. A compliance
officer who requested the use of a GSA vehicle would be individually
assigned such a vehicle, that compliance officer would then keep that
same vehicle for several months or even years for individual official
use; would continually store extensive quantities of personally
accountable bulky, expensive and heavy inspection equipment and supplies
in that vehicle; would have priority to use that vehicle, would have
standing authorization to park that vehicle at home under appropriate
circumstances; and finally, would be responsible for knowing and
maintaining the operating condition of the vehicle. The above procedure
and practice of assigning GSA vehicles on an individual basis was
clearly known to and encouraged by management until early 1983.
Approximately 8 to 10 of the 15-20 compliance officers in the Wichita
Area Office were individually assigned GSA vehicles from 1977-1983;
about 10 to 12 of the 16 compliance officers in the Kansas City Area
Office were individually assigned GSA vehicles from 1977-1983; and, all
of the 12 compliance officers in the St. Louis Area Office used
individually assigned GSA cars since 1977.
During this same period of time, there was also an established
practice in which compliance officers in these three area offices were
furnished adjacent leased parking facilities at no charge for their
individually assigned GSA and POVs. In the Kansas City Area Office
there were 21 magnetic cards available to and used by the 16 compliance
officers, secretaries and managers until October, 1983 to either park
GSA vehicles or their POVs at a commercial parking facility at no cost.
/5/ Those compliance officers who elected to use GSA vehicles for
official travel had to pay to park their POVs at this leased facility,
but compliance officers who elected to use their POVs for official
travel parked cost-free at the facility.
Respondents' Kansas City compliance officers perform official travel
on an average of 10 to 19 work days per month and those who elected to
use POVs for official travel were also entitled to park those POVs at no
cost on government-leased premises even on days during which no official
travel was performed. The outlined practice existed at both the Kansas
City and Wichita Area Offices since 1977, and the St. Louis Area Office
since at least 1980. Like their counterparts who stored inspection
equipment in their individually assigned GSA vehicles, compliance
officers who elected to use POVs for official travel could store
extensive amounts of business-related inspection equipment in their
POVs. This and the proximate parking of their vehicles permitted all
compliance officers, safety inspectors and industrial hygienists alike,
to be prepared to leave their respective offices on a moment's notice in
response to an unplanned imminent danger inspection requirement.
In the Wichita Area Office, there were about 21 leased parking slots
adjacent to the office facility which compliance officers, managers, and
clerical employees used to park the 8 or so GSA vehicles which were
individually assigned to compliance officers, the POVs used by
compliance officers for official travel, and the POVs belonging to the
Area Director, secretaries, and other compliance officers.
Approximately 22 employees, including 14 compliance officers, were
specifically authorized by their Area Directors, during the times in
question, Roger Clark or Jeff Spahn to park either a GSA vehicle or POV
at no charge in a designated set of parking spaces.
The practice of parking POVs at no cost in leased parking facilities
was terminated by Respondents during the period between March, 1980 and
March, 1981 in response to OMB Circular A-118 and GSA Federal Property
Management Regulations (FPMR), Temporary Regulation D-65. Prior to
implementing and collecting monthly parking fees from the compliance
officers, Respondent OSHA sought in 1980 to exempt compliance officers
from the OMB policy of charging fees to federal employees who parked
POVs on federally leased or owned premises. Respondent OSHA also sought
to continue its practice of furnishing convenient cost-free parking on
the basis that compliance officers " . . . are required to carry between
$1100 and $5400 worth of equipment in their (privately owned) vehicles
in order to respond to an emergency inspection with as little waste of
time as possible, and to permit the (compliance officers) to park in a
controlled lot for security reasons . . . " These monthly parking fees
were collected directly from compliance officers until around March,
1981, at which time they were refunded and the practice and policy of
providing at no cost to compliance officers government-leased facilities
in which to park their POVs was reinstituted.
As a result of the termination of the POV parking practice compliance
officers are now required to pay $15 per month in Wichita and about $20
per month in Kansas City for commercial parking of POVs when used for
official travel. They also were not reimbursed by management for the
cost of such parking when traveling in the field on inspections. At
most, a compliance officer could only seek reimbursement for additional
expenses attributable to leaving and returning to (in-and-out) the
office during the day on official business. Although a compliance
officer who tries to rent parking space by the day does not suffer the
loss of the monthly rental when traveling in the field for extended
periods of time, he or she does not have a reserved parking space
available, as before, upon return from an in-and-out field trip.
The 1983 termination of the practice of assigning GSA vehicles to
compliance officers on an individual basis and the implementation of a
pooling procedure also effectively ended the compliance officers'
practice of storing all of their work equipment in their individually
assigned GSA vehicles. Under the newly implemented procedures,
personally accountable work equipment could not be stored in a pooled
vehicle since several employees are required to use the same vehicle and
each has his or her own equipment to transport. The result of the
change is that, compliance officers now must spend 1 to 2 hours loading
and unloading extensive amounts of equipment to and from the pooled GSA
vehicles for each field trip or in town inspection. The change in
practice seemingly reduces employee productivity, increases the risk of
personal injury and property damage, adversely affects the scheduling of
investigations, and adds to the delay in responding to an imminent
danger. In the Wichita Area Office, the pooled GSA cars were located
several blocks from the office in what was described as an undesirable
area without providing for the health and safety of its female
compliance officers early in the morning or late in the afternoon.
B. Alleged Unilateral Changes
On March 25, 1983, Mr. Jackson received two memoranda dated March 18,
1983, signed by Regional Administrators, Dillon and Clark, respectively.
The Clark memorandum which was directed to Respondent OSHA's Personnel
Officer, Douglas E. Wischropp, requested that the Union be notified,
pursuant to the parties' agreement concerning mid-term changes in
conditions of employment, practices and procedures, that all GSA
government-owned vehicles GOVs assigned to OSHA offices were to be
pooled, that privately-owned vehicles POVs would not be allowed to
occupy GOV parking spaces when in use, and that parking space leases
based on former GOV totals be renegotiated. Regional Administrator
Dillon, the spokesman for Respondent Kansas City for collective
bargaining purposes, transmitted Clark's memorandum to Mr. Jackson with
a statement that Clark's memorandum was for information only and that
the matter of GSA car usage was not negotiable as to substance, impact,
and/or implementation. While Clark may have recognized the possibility
of a mid-term bargaining obligation, clearly management had no intention
of negotiating with the Union.
The Union requested negotiations on the changes in practices and
procedures as described in Clark's memorandum, and rejected Dillon's
opinion that these matters were not negotiable on April 11, 1983.
Management did not reject the Union's bargaining demand as untimely.
Thereafter, on April 25, 1984, Mr. Jackson met with Clarence (Bud)
Schwein, Respondent Kansas City's labor relations officer, who works
directly for Regional Administrators Dillon, Clark and for Bill Tucker,
Respondent OSHA's Management Officer. Mr. Jackson was informed by
management that it felt the changes in practice concerning the
procedures for assigning and using GSA cars could be imposed without
negotiations because of a split in decisions of Administrative Law
Judges of the Federal Labor Relations Authority and that the cases were
still unresolved before the Authority. /6/ During this same discussion,
management indicated that it felt that some aspects of the POV parking
issue were indeed negotiable and could be addressed at the next
quarterly labor-management relations (LMR) meeting with Regional
Administrators Dillon and Clark which was scheduled to take place on May
25.
The Union, in anticipation of negotiations on some of these matters
at the June 9 quarterly LMR meetings repeated its bargaining demands,
submitted advance agenda proposals calling for the negotiation of
Regional Administrator Clark's changes in past practices concerning POV
parking and the polling of GSA cars and prepared bargaining proposals.
However, at the general June LMR meeting between Jackson and the
Regional Administrators, Jackson was informed that management considered
the past practice concerning POV parking to be illegal and therefore it
would not negotiate over the termination of that practice in any manner
whatsoever. The Union continued to insist upon bargaining over the
changes in the practices and procedures concerning the assignment of GSA
cars and the parking of POVs.
At the June 10 LMR meeting between Jackson and Clark, while
discussing the procedures management intended to use to pool GSA cars,
Schwein commented to Jackson that Respondent DOL felt that in some
aspects the change in parking practices were negotiable and as to those
aspects Respondent would after identifying those items negotiate.
Around May 30, 1983, Respondent Kansas City's, St. Louis Area Office
informed all compliance officers who are then using individually
assigned GSA vehicles that they must decide within 15 minutes whether to
begin using GOVs from a motor pool or pooling arrangement, or begin
using their own POVs for government-related business. Four compliance
officers decided to use a GSA pool car. Management then instructed all
those employees to whom a GSA vehicle was assigned individually to
remove their equipment and belongings from their vehicles. All but 3
GOVs which were to be used by employees in the St. Louis Area Office on
a pool basis were then surrendered to GSA. Implementation of new
procedures concerning the practice of assigning GSA vehicles to
compliance officers in the St. Louis Area Office on an individual basis
became effective on June 1, 1983. St. Louis Area Office employees,
however, continued to park their POVs at no charge.
Between June 10, 1983, and the next quarterly LMR meetings on August
18 and 31, the Union renewed its bargaining demands and submitted
proposals concerning the changes in practices which Respondent Kansas
City intended to implement. Management however, did not respond to
these proposals, and during the August 18 LMR meeting Regional
Administrator Dillon refused to negotiate on these matters because of
Clark's absence. At this meeting the Union proposed that the parties
agree that there would be no changes implemented concerning POV parking
practices until negotiations had been completed. Regional Administrator
Dillon laughed at this proposal, said it was in a wrong format, and
refused to negotiate on it. Subsequently, on August 22 the Union
renewed its bargaining requests and asked Dillon to clarify management's
position that some aspects of changes in the POV parking practices would
be negotiable. On August 31, 1983, Jackson met with Regional
Administrator Clark for the OSHA LMR quarterly meeting. At that meeting
management noted that the pooling of GSA cars had been completed in the
St. Louis Area Office and that plans for similar changes at the Kansas
City and Wichita Area Offices were already in progress. There were no
negotiations over the change in the pooling of GSA cars or in the
planned changes concerning POV parking practices.
Kansas City Area Office compliance officers were informed on August
31 at a staff meeting that GSA car pooling would be implemented and all
parking facility access cards were to be turned in by the next day
September 1. The changes however, were not implemented by management
until October 3, 1983, at which time employees also no longer were
permitted to park their POVs at no charge on the leased premises.
Kansas City Area Office employees were required to turn in their
individually assigned GSA cars, and to begin using 2 or 3 GSA cars in a
pooled arrangement.
Sometime later, on October 28, 1983, Regional Administrator Dillon
responded to the Union's proposals of August. In that response, inter
alia Respondent Kansas City stated that the leasing of or reimbursement
for parking spaces for employee POVs at the Kansas City and Wichita Area
Offices was not a condition of employment subject to negotiation, and
that the termination of leased parking spaces used by compliance
officers was not subject to bargaining since the Union, "in having
agreed to the contents of Article 17, has unequivocally and completely
waived its rights to negotiate at mid-term on all GSA car matters."
Respondent's conceded, at the hearing that there "is no article that
specifically governs the practice of parking personal vehicles on
government property."
On October 31, 1983, employees in the Wichita Area Office were told
that the number of GSA vehicles then individually assigned to compliance
officers, would be reduced from 4 to 2 and would be pooled at a garage
located 8 blocks from the office, and that the practice of providing
parking for employees' POVs would terminate as of November 1, 1983.
These changes were implemented in Wichita on November 1, 1983, prior to
bargaining with the Union.
In December, 1983, the scheduled November LMR took place. Then the
Union submitted another proposal concerning changes in the POV parking
practices. Management subsequently determined once again that the
impact and implementation of the changes concerning POV parking was
negotiable. Management subsequently informed the Union that it would
negotiate such limited matters on the impact and implementation of POV
parking at the November LMR quarterly meeting. However, management did
not negotiate the matter at the December meeting as proposed.
Sometime around January 5, 1984, Respondent Kansas City provided the
Union with a counter-proposal concerning the parking of employee's POVs.
Despite these post-implementation overtures, management refused to
bargain, upon request, prior to the change in and implementation of
practices concerning the assignment and pooling of GSA cars or the
parking of employees' POVs on leased facilities.
C. Respondent's View of the Bargaining History of the 1978 Contract.
Respondents declare that between July, 1977 and May, 1978, the Union
expressly and unequivocally waived all rights to negotiate over the
substance, impact, or implementation of the several changes implemented
herein. Specifically, Robert Hastings, Director of Labor-Management
Relations since June 1977, expressed his belief that the provisions of
what are now Articles 2, 17, and 41 of the current collective bargaining
agreement constitute an express contractual waiver by the Union on the
premise that Article 17 specifically addresses the practices, policies,
and employment conditions changed by management and that Article 2 was
intended to end all unwritten past practices which predated the 1978
contract. Further, Hastings stated that in 1978 the Union acceded to
management's insistence in Article 17, Section 1 that employees "may,"
rather than "will," be assigned GSA vehicles for official travel.
Mr. Hastings testified that management considered the decision
whether to use government vehicles for official travel to be part of the
technology of performing work, that it was management's option to
determine whether employees used a GOV or public transportation, that
management would not negotiate over a significant budgetary such as
involved here and that management would not give up any authority in
this matter. Mr. Hastings stated that by agreeing to Article 17,
Section 1, the Union waived any right to bargain again with regard to
the subject of GSA cars. Although acknowledging that he was not aware
of those practices and policies concerning GSA vehicle usage which had
developed during the term of the contract in the Respondent Kansas City
region, he stated that Respondent OSHA should have been aware. However,
Hastings stated that he believed that Articles 2 and 17 also waived the
Union's right to bargain over the substance, impact and implementation
of any change by management in the assignment of GSA vehicles.
Although Hastings eagerly described his recollection of DOL's intent,
stance, interpretation, belief, and thrust concerning the negotiations
and Articles 2, 17, and 41, he also acknowledged that he could not
provide the Administrative Law Judge with a detailed discussion or
detailed quote of what actually had been discussed in 1978 during
negotiations, that he had no contemporaneously written memoranda of
those negotiations, and that he has never exchanged with the Union the
few personal notes he made of those negotiations. Moreover, Mr.
Hastings admitted that during negotiations the Union steadfastly
insisted that management must negotiate during the term of the contract
in advance of " . . . any proposed change in conditions of employment,
in personnel policies and practices that was not mandated by a change in
law . . . " Mr. Hastings also testified that there is no provision in
the parties' contract which specifically governs the procedures and
practices concerning the parking of POVs on government property.
D. Contract Articles
The collective bargaining agreement in Article 2, Sections (1), (5),
and (6) provides as follows:
Section 1-- Precedence of Laws and Regulations
Section 1 - Precedence of Laws and Regulations
In the administration of all matters covered by this Agreement,
officials and employees are governed by existing or future laws
and regulations of appropriate authorities including policies set
forth in the Federal Personnel Manual; by published
Department/Agency policies and regulations in existence at the
time this Agreement was approved; and by subsequently published
Department/Agency policies and regulations required by law or by
the regulations of appropriate authorities.
Section 5-- Management Proposals for Change During the Term of
the Agreement
(A) Management agrees to transmit to the NCFLL proposed changes
relating to personnel policies, practices, and matters affecting
working conditions of bargaining unit employees, or which impact
on them, proposed during the terms of this Agreement and not
covered by this Agreement, as far in advance as possible.
(B) Upon receipt of such a proposed change from Management, the
NCFLL may, within 15 working days, request negotiations concerning
the proposed change.
(C) Upon timely request from the NCFLL, the parties shall meet
and confer within 30 calendar days concerning any negotiable
aspects of the proposed change and/or its impact on bargaining
unit employees.
(D) Any changes of regulations or amendments to this Agreement
which are negotiated and agreed to pursuant to this Section will
be duly executed by the parties and will become an integral part
of this Agreement and subject to all of the terms and conditions
of this Agreement.
Section 6-- Past Practices
It is agreed and understood that any prior benefits and
practices and understandings which have been reduced to writing
and were mutually acceptable to the parties and which are not
specifically covered by the Agreement or in conflict with it since
the granting of exclusive recognition shall not be changed unless
mutually agreed to by the parties.
Article 17 provides, in part that:
GSA VEHICLES OR LEASED VEHICLES
Section 1-- Assignment of GSA Vehicles or Leased Vehicles
(A) Employees may be assigned GSA vehicles or leased vehicles
in accordance with GSA usage objectives which for passenger
carrying vehicles is a minimum of 3,000 miles per quarter or
12,000 miles per year.
(B) GSA or leased vehicles may be made available by the
supervisor to those employees who do not wish to drive their POV
and are required to travel on official business on a daily or
almost daily basis and/or there is no public transportation
available, or when an employee is required to carry heavy and/or
bulky equipment for the performance of his/her job.
(C) It is agreed and understood that no employee shall be
required to provide a privately owned vehicle for use on
Department business or to maintain a privately owned vehicle as a
condition of employment.
Section 2-- Use of GSA Vehicles
In accordance with GSA requirements that Government-owned or
leased vehicles be used only for official purposes, vehicles
assigned to employees on either a specific trip or regular basis
may be parked at or near the employee's residence during non-duty
hours only if the employee is required by his/her supervisor to
travel to a temporary duty post in the morning or return home at
night without first reporting to his/her duty station, and/or
supervisor has determined that it is more advantageous to the
Government to do so. In such event the supervisor will give the
employee prior written approval to park the Government-owned or
leased vehicle at or near his/her residence during non-duty hours.
Section 3-- Unsafe Vehicles
Any GSA vehicle or leased vehicle which is reported to be
unsafe by the operator shall be returned immediately to GSA or the
leasing company (or such facility contacted for instructions) for
repair or replacement. If the vehicle cannot be repaired or
replaced, the employee will, as soon as practicable (within an
hour if possible), provide the supervisor with an estimate of the
situation and obtain appropriate instructions.
Article 41 provides as follows:
Section 1-- Authority of Master Agreement
The Department and the NCFLL agree that this Agreement is a
master Agreement and that any supplemental agreements shall not
delete, modify, or otherwise nullify any provision, policy, or
procedure in this Agreement; nor shall any provision in a
supplemental agreement be in conflict with or duplicate any
provision of this Agreement, statute or regulation of the
Department or higher authority. All supplemental agreements shall
be a part of and subject to the terms and control of this
Agreement and shall simultaneously terminate with this Agreement.
Section 2-- Appropriate Matters for Local Negotiation
Matters appropriate for negotiations at the local union level
are those within the scope of bargaining under the Executive Order
and within the authority of a regional agency head. These matters
do not include subject matter such as:
(A) Subject matter already contained in this Agreement;
(B) Interpretation and application of this Agreement; or,
(C) Subject matter that has been the subject of bargaining at
the national level.
Section 3-- Resolution of Local Negotiation Disputes
Disputes between the local parties over whether agreement
proposals or counterproposals are subject to local union
negotiations will be referred to the Office of Labor-Management
Relations and the NCFLL Executive Committee. When a dispute has
been submitted to OLMR and the NCFLL, local level negotiations
will be suspended on the issue pending final determination of the
dispute. If the OLMR and NCFLL cannot resolve the dispute, either
party may submit the matter to the Federal Labor Relations Council
in accordance with its rules and regulations.
Analysis and Conclusions
Respondents maintain that they had no duty to conduct bargaining over
the substance and impact and implementation of the assignment of GSA
cars since their actions did not unilaterally change any conditions of
employment; the collective bargaining agreement contains a clear and
express waiver by the Union of any right to negotiate concerning the
impact and implementation of any changes in assignment of GSA cars;
and, there is no clear and patent breach of the contract. Respondents
further assert that they had no duty to bargain over the substance of
the termination of the leasing of privately-owned parking spaces.
Finally, Respondents contend that the Union waived its right to bargain
over impact and implementation of the termination of leased parking
spaces.
The General Counsel argues that the decision to terminate and change
the practice and policies concerning the individual assignment of
government cars to compliance officers and the use of government-leased
space to park employees privately-owned vehicles is negotiable as to
substance, impact and implementation. Further, the General Counsel
maintains that Respondents' failure to bargain in good faith concerning
the substance, impact and implementation of the decision to change the
practices concerning the individual assignment of GSA cars to compliance
officers and the use of pre-paid government-leased space to park
employees' privately-owned vehicles violated the Statute. The General
Counsel also contends that the Union did not clearly and unmistakably
waive its statutory right to bargain over the substance, impact and
implementation of the changes in practices concerning the individual
assignment of government vehicles and the parking of employees'
privately-owned vehicles on pre-paid government-leased space. Moreover,
the General Counsel asserts that Respondents' failure to bargain in good
faith prior to implementing the changes involving conditions of
employment was not justified by any meritorious defense, federal law or
government-wide rule or regulation.
As already noted, the issues herein are almost identical to those
decided by my colleagues, Judges Cappello and Chaitovitz. /7/
In the Chicago case, Judge Chaitovitz rejected Respondent's
contention that it had no obligation to bargain because its new or
changed policy with respect to the use of GSA cars was "consistent" with
the collective bargaining agreement and Chapter 400 DLMS-7. /8/ He
found no waiver of the right to bargain over the impact and
implementation of the change.
Judge Chaitovitz also rejected Respondent's argument concerning "past
practices" under Article 2 of the collective bargaining agreement.
Further, he accepted the General Counsel's argument that Respondent's
action constituted a "clear and patent breach" since in his view the
change was "far reaching" and by its nature undermined the basic
collective bargaining relationship established by the Statute.
To the contrary, Judge Cappello concluded that the 1978 contract
reserved to management complete discretion as to the assignment of
vehicles to employees who needed to perform their duties, the decision
here at issue, to terminate the assignments, did not constitute a
bargainable change in working conditions. Judge Cappello's view is that
Article 2 constituted a clear and unmistakable waiver by the Union of
its bargaining rights over the matter of car assignments, including the
institution of pooling in lieu of the individual assignment of GSA cars.
Judge Cappello's further view was that Article 2 of the 1978 agreement
allowed (by agreement of the parties) past practices, not relevant to
writing, and specifically covered by the Agreement, to be changed
without mutual agreement of the parties.
Since the contractual provisions involved are almost identical and
since my colleagues differed substantially, I am placed in the
unfortunate position of disagreeing with one of them.
Articles 2 and 17 are contended to constitute a clear and express
waiver by the Union of any right to negotiate concerning the impact and
implementation of any changes in the assignment of GSA vehicles. The
multitude of cases dealing with waivers in the Federal Sector indicate
that for a waiver of a statutory right to exist, there must be clear and
unmistakable conduct evidencing an intent to waive a right to negotiate.
See Department of the Air Force, U.S. Air Force Academy, 6 FLRA 548
(1981); Department of the Air Force, Scott Air Force Base, Illinois, 5
FLRA 9 (1981). The waiver of a statutory right will not be inferred,
but must have been consciously yielded. Social Security Administration,
Mid-America Service Center, Kansas City, Missouri, 9 FLRA 229 (1982);
Library of Congress, 9 FLRA 421, 423 (1982). Also, it has been held
that the waiver of a statutory right exists only when specific contract
language limits the right of the union. Department of the Army,
Portsmouth Naval Shipyard, 4 FLRA 619 (1980); Nuclear Regulatory
Commission, 8 FLRA 715 (1982).
Respondents' assertion of a bargaining waiver is based on its
understanding of those articles as related by testimony of the Director
of Labor-Management Relations, Mr. Hastings. Considering that
testimony, it is still my view that neither of those articles expressly
waived any rights which the Union has under the Statute. Furthermore,
Mr. Hastings and labor relations officer Schwein admitted that nothing
in the contract specifically pertained to the practice of parking POVs
on government-leased space, and that management was obligated to bargain
over the changes in the parking practices. In the absence of a
self-evident waiver in the contract, it is necessary to evaluate prior
negotiations to determine whether the Union consciously yielded or
clearly and unmistakably waived its interest in the matter. See, The
Bunker Hill Company, 208 NLRB No. 17, 208 NLRB 27, 33 (1973). It must
be noted in this instance that the negotiations over the 1978 contract,
which remains in effect even today, occurred prior to the passage of the
Statute. It is dubitable, in my opinion, that a party could clearly and
expressly waive a statutory right which did not exist at the time of
negotiations. Compare, Nuclear Regulatory Commission, supra, 8 FLRA 715
(1982).
Regarding the content of Articles 2 and 17, relied on by Respondent
to establish a waiver, Mr. Hastings testified that he did not recall
specific statements by the Union negotiators and had no memoranda
contemporaneously prepared during negotiations which document a clear
and unmistakable waiver by the Union. Thus, Mr. Hastings testified only
as to management's intent, stance, belief and interpretation concerning
those negotiations. Even his testimony suggests that the Union
adamantly insisted that management bargain prior to implementing any
changes in practices, personnel policies, or conditions of employment,
during the term of the contract. He therefore, stated that management
had to compromise in Article 2, Section 6 on its insistence that all
past practices existing prior to the contract be terminated. Whether
the instant practices existed prior to the contract is not controlling,
for the record clearly demonstrates that Respondent OSHA initiated and
continued the practices during the term of the contract. Even if
pre-existing practices had expired with the 1978 contract, it is clear
that the practices terminated in 1983 arose during and pursuant to the
contract.
Similarly, it is doubtful that the Union would waive its right to
negotiate whether Respondents "will," as opposed to "may," use GSA cars
in the accomplishment of its mission. As Mr. Hastings emphasized, the
decision of whether to use GSA cars as part of the technology in
performing work, in the absence of an established practice, is a
discretionary management right. This emphasis on the use of the term
"may," in Article 17, Section 1(A) and (B), to establish a waiver of the
Union's right to negotiate, is misplaced. If the decision to use GSA
cars concerns the technology of performing work, then under Section
7106(b)(1) the prerogative to negotiate that decision does not belong to
the Union. However, once Respondent Kansas City elected to use GSA cars
and to permit the practice of individually assigning such cars to
compliance officers, it becomes the Union's right to negotiate any
changes in that practice. Finally, once Respondent Kansas City decided
to provide pre-paid parking for the POVs used by compliance officers for
official travel, it also became the Union's obligation to negotiate any
changes in that condition of employment. Department of Housing and
Urban Development, 9 FLRA 136 (1982); U.S. Marshals Service, supra, 12
FLRA 650.
I, therefore, agree with Judge Chaitovitz that the Union has nowhere
stated that it gives up or waives its statutory right to bargain over
the impact and implementation of the subject change. Since a waiver of
any statutory right must be clear and unmistakable there is no waiver
here. Furthermore, even if the contract could be construed as a waiver
of whatever right the Union might have had concerning the decision to
change the assignment of GSA cars and leased space for POVs, it did not
waive its right to bargain concerning the impact and implementation of
any such decision to change the use of GSA vehicles or leased parking.
The interpretation relied on by Respondent would make Article 2, Section
5 of the collective bargaining agreement dealing with changes in working
conditions, totally meaningless. In sum, I conclude that the bargaining
history as related by Mr. Hastings is unpersuasive to establish a clear
and unmistakable waiver.
Accordingly, it is concluded that no credible basis exists to find
that the Union clearly, expressly and unmistakably waived its right to
negotiate over the substance, impact and implementation of the changes
in conditions of employment which Respondent Kansas City unilaterally
implemented.
Also, in agreement with Judge Chaitovitz, I reject Respondent's
argument that Article 2, Section 6 of the contract, entitled "Past
Practices", the practices of assigning cars to individual employees and
leasing spaces was not a past practice because it was not in writing.
As Judge Chaitovitz notes:
". . . this position rests on a misinterpretation and
misapplication of the clear language of the contract and a further
erroneous assumption that because AFGE and Respondent used the
term "past practice" in the contract, that phrase has the same
meaning when used by the FLRA in interpreting the Statute.
Article 2 Section 6 of the contract merely provides that if the
parties have any local or side agreements, that are not in
conflict with the National Agreement, the side and local
agreements remain in full force and effect unless the parties
mutually agree to a change or modification. Article 2 Section 6
of contract does not attempt to deal with existing working
conditions that have not been reduced to writing and incorporated
into a written agreement. Such existing working conditions are
not subject to Article 2 Section 6 of the contract and accordingly
are governed by the Statute, as interpreted by the FLRA, and by
Article 2 Section 5 of the Contract."
The General Counsel maintains that two distinct but related practices
existed within Respondent OSHA from 1977 to 1983. They were, of course:
(a) using and individually assigning GSA vehicles to compliance
officers and (b) parking of government leased space at no cost to those
POVs used by compliance officers to perform official business. In order
for a past practice to mature into a condition of employment, it must be
consistently exercised for an extended period of time with the knowledge
and acquiescence or approval of management. Social Security
Administration, Mid-America Program Service Center, Kansas City,
Missouri, 9 FLRA 229 (1982); U.S. Nuclear Regulatory Commission, 6 FLRA
18 (1981). The General Counsel asserts that the two practices here did
mature into conditions of employment, which, as a rule, cannot be
changed by management absent agreement or impasse following good faith
bargaining. U.S. Air Force, AFLC, Wright-Patterson AFB, Ohio, 5 FLRA
288 (1981); Office of Program Operations, Field Operations, Social
Security Administration, San Francisco Region, 9 FLRA 73 (1982).
With regard to the practice involving parking of POVs on
government-leased space, there is precedential authority to conclude
that established pre-paid privileges are clearly working conditions
which may not be changed unilaterally. National Treasury Employees
Union, Chapter 6, and Internal Revenue Service, New Orleans District, 3
FLRA 747 (1980); General Services Administration, Region 3, Public
Buildings Service, Center Support Field Office, A/SLMR No. 583, 5 A/SLMR
706 (1975). Therefore, an agency must negotiate prior to exercising its
discretion under Federal Property Management Regulations whether to
relinquish parking space or to retain it, especially where employees use
POVs and need to have POVs available for use in performing official
duties. See, Internal Revenue Service, 3 FLRA 747; U.S. Marshals
Service, 12 FLRA 650 (1983). Also, management may not change employment
conditions so as to implement paid parking without bargaining with the
Union. Department of Housing and Urban Development, 9 FLRA 136 (1982);
General Services Administration, Region 7, 10 FLRA 649 (1982);
Department of Transportation, Federal Aviation Administration, Dulles
International Airport, A/SLMR No. 1062, 8 A/SLMR 674 (1978).
Concerning the practice of individually assigning GSA vehicles to
compliance officers, the General Counsel does not contend that an agency
must necessarily negotiate over the means and technology of accompanying
its mission. This is particularly so where the use of agency facilities
or equipment by employees has not become a condition of employment and
the agency chooses not to transform such a privilege into a right by
negotiating over its discretion in this regard. Department of the
Treasury, Internal Revenue Service, Cleveland, Ohio, 3 FLRA 655 (1980);
Nuclear Regulatory Commission, 6 FLRA 18 (1981).
The testimony of Mr. Hastings concerning Article 17 revealed
management's perception that the decision of whether GSA vehicles are to
be used in conducting official business as a discretionary one
concerning the technology of accomplishing the agency's mission. Those
negotiations over this article demonstrates that the parties considered
the use of GSA or other vehicles by bargaining unit employees for
official travel to be a negotiable matter.
While Article 17, Section 1 retained the agency's discretion to
determine whether GSA vehicles would be used by employees for official
travel, that provision is moot for the purposes of this case because
Respondent Kansas City has already exercised that discretion and has
decided that GSA vehicles would be used by employees for official
travel. That discretion was exercised knowingly during the term of the
parties' collective bargaining agreement for an extended period and a
distinct and uniform practice developed over a period of 5 years
pursuant to Article 17, Section 1. Respondent Kansas City did not
decide to change the technology of performing work, i.e. to no longer
use GSA cars, but merely changed the practice and procedure concerning
the way the GSA cars would be assigned. These procedures concerning use
of a permanently assigned GSA car are negotiable. American Federation
of Government Employees, Local 2272 and Department of Justice, U.S.
Marshals Service, District of Columbia, 9 FLRA 1004, 1017, 1018 (1982).
In order to change practices and procedures which have matured into a
condition of employment, management must bargain over substance, as well
as impact and implementation, to the extent not inconsistent with
government-wide regulations or law. This applies equally to changes in
the practices of assigning GSA cars, using POVs for official travel, and
providing pre-paid parking to compliance officers who use their POVs for
official travel. Veterans Administration Central Office, Veterans
Administration Medical Center, Long Beach, 9 FLRA 326 (1982); U.S.
Department of Justice, Immigration and Naturalization Service, 9 FLRA
253, 257 (1982); American Federation of Government Employees, AFL-CIO,
Local 2151 and General Services Administration, National Capital Region,
Washington, D.C., 7 FLRA 535 (1981); General Services Administration, 6
FLRA 430 (1981).
On March 25, 1983, Respondent Kansas City informed the Union that it
intended to implement changes regarding the GSA vehicles and noted that
the changes were non-negotiable with regard to substance, impact and
implementation. This action clearly manifested an intention not to
bargain over the matter. Nonetheless, the Union initiated bargaining
demands on April 11, 1983, and persisted in those demands even beyond
the implementation of the changes. The matter was discussed with the
Union at quarterly LMR meetings where the Union revealed its concern
over the changes. Respondents' affirmatively declining to negotiate
does not satisfy its obligation to bargain. Library of Congress, 9 FLRA
427 (1982). Management unilaterally implemented these changes in
practice prior to negotiating to impasse or agreement or pursuing
negotiability determinations as required by the Statute. See, U.S. Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA
288 (1981); Social Security Administration, supra, 9 FLRA 73 (1982).
Management simply refused to bargain, and consequently violated Section
7116(a)(1) and (5) of the Statute by unilaterally relinquishing pre-paid
parking spaces used by compliance officers and terminating the practice
of individually assigning GSA cars to compliance officers. U.S.
Marshals Service, supra, 12 FLRA 650; U.S. Department of Justice,
Immigration and Naturalization Service, supra, 9 FLRA at 292.
The past practice regarding the assignment and utilization of GSA
vehicles of unit employees was thus substantially changed. Absent any
privilege, Respondents would be required to notify the Union concerning
the anticipated change and, upon request, to bargain with the Union
concerning the decision, its impact and its implementation. cf.
Department of the Treasury, Internal Revenue Service, Jacksonville
District, 3 FLRA 631 (1980); Internal Revenue Service and Brookhaven
Service Center, 4 FLRA 185 (1980).
I also reject Respondents' argument that there is no clear and patent
breach of the agreement herein. That question was also before Judge
Chaitovitz who resolved it in the following manner:
"OSHA's refusal to bargain with AFGE concerning the impact of
such an important and far reaching change as the assignment of GSA
cars was such a clear and patent breach of the collective
bargaining agreement that, by its nature, it undermined the basic
collective bargaining relationship established by the Statute."
Normally a mere allegation of breach of contract is not an unfair
labor practice and the parties must resort to the procedures provided
for contract interpretation and enforcement. cf. Iowa National Guard
and National Guard Bureau, 8 FLRA 500 (1982). Here I view the breach,
in refusing to negotiate particularly on impact and implementation, as
basically undermining the collective bargaining relationship between the
parties and as such clear and patent. Accordingly, Respondents' refusal
to bargain was violative of section 7116(a)(1) and (5) of the Statute.
Finally, I agree with the General Counsel with regard to the POVs,
that Respondents' contention that this practice was illegal and it lacks
authority to independently lease space for the purpose of providing
community parking lacks merit. Respondent offered no evidence to
establish the illegality nor did it show any federal law or
government-wide regulation which was inconsistent with the practice.
Indeed the evidence demonstrates that it was not illegal for Respondent
Kansas City to furnish cost-free government-leased space to compliance
officers to park the POVs which they used for official travel. See,
American Federation of Government Employees, AFL-CIO v. Freeman, 510
F.Supp. 596 (D.D.C. 1981); U.S. Marshals Service, supra, 12 FLRA at
650, Veterans Administration Central Office, 9 FLRA 326; National
Treasury Employees Union, Chapter 6, supra, 3 FLRA at 748 (1980).
OMB Circular A-118, which imposed parking fees in 1980 and ultimately
was rescinded, recognized that federal agencies do furnish cost-free
parking to employees. That circular merely attempted to collect a
parking fee for the purpose of reducing traffic congestion and air
pollution. Further, under 5 USC Section 5704, it is indeed legal for an
agency to compensate an employee, who is authorized to use his POV on
official business, for POV parking expenses incurred through a monthly
parking lease.
Decision of the Comptroller General, B-162021, 51 Comp.Gen. 79 (1979)
cited by both the General Counsel and Respondent establishes that an
agency may even compensate the employee for those weekends and holiday
periods included within a parking lease at his agency's headquarters.
Id. Where an employee performs frequent official travel by POV and
usually carries business related supplies and materials between the
office and the car, the Comptroller General has noted that the use of
free parking space located more remotely from the office would
invariably entail a loss of productive time, the cost of which would
exceed the cost of parking incurred at facilities near the office. Id;
Decisions of the Comptroller General, B-162021, 47 Comp.Gen. 219 (1967).
None of these decisions bar Respondents from using the GSA leased
parking.
Remedy
The General Counsel requests that Respondents be ordered, upon
request, (a) to bargain and reach agreement with the Union concerning
the substance, impact and implementation of the change in practice of
individually assigning GSA cars to compliance officers and of providing
government-leased parking for POVs used for official travel, (b) to make
whole any employee for any loss incurred as a result of these changes
during the period from June 1, 1983 until the date agreement is reached,
(c) to make every effort to reacquire the parking spaces, including but
not limited to requesting that the General Services Administration
replace the parking spaces which had been used by compliance officers to
park those POVs used for official travel, in the Wichita, Kansas and
Kansas City, Missouri Area Offices, and which were relinquished to GSA
during the period from July through November, 1983, without first
bargaining in good faith with the Union. I agree that in the total
circumstances of this matter the remedy recommended by the General
Counsel would be not only be meaningful but would fully address the
violations found herein. It is, therefore, recommended that such a
remedy would be necessary in order to effectuate the purposes and
policies of the Statute.
Having found and concluded that Respondents violated sections
7116(a)(1) and (5) of the Statute, I recommend that the Authority issue
the following: /9/
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 Department of Labor,
Washington, D.C. and Region VII, Occupational Safety and Health
Administration, and Office of the Assistant Secretary for Administration
and Management, Kansas City, Missouri, shall:
1. Cease and desist from:
(a) Failing and refusing, upon request, to bargain with
National Council of Field Labor Locals, American Federation of
Government Employees, AFL-CIO the exclusive collective bargaining
representative of its employees, concerning the impact and
implementation of any change in the assignment of government-owned
vehicles to employees.
(b) Releasing parking spaces used by bargaining unit employees
without first affording the National Council of Field Labor
Locals, American Federation of Government Employees, AFL-CIO, the
exclusive representative to our employees, the opportunity to
bargain concerning such a decision.
(c) In any like or related manner interfere with, restrain, or
coerce any employee in the exercise of right assured by the
Statute.
2. Take the following affirmative action in order to
effectuate the purpose and policies by the Statute.
(a) Upon request bargain and reach agreement with National
Council of Field Labor Locals, American Federation of Government
Employees, AFL-CIO concerning the impact of the change in the
assignment of government-owned vehicles to employees instituted in
March 1983 and, make whole any employee for any loss he might have
incurred because of the change in assignment of government-owned
cars for the period from March 18, 1983 until the date agreement
is reached.
(b) 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 Wichita, Kansas and Kansas
City, Missouri OSHA Area Offices and which were relinquished to
GSA in October and November 1983 without bargaining in good faith
with the employees' exclusive representative concerning the
decision to do so.
(c) Upon request of the National Council of Field Labor Locals,
American Federation of Government Employees, AFL-CIO bargain to
the extent consonant with applicable regulations of the General
Services Administration, concerning the reallocation of our
parking spaces for use by unit employees.
(d) Upon request, bargain and reach agreement with National
Council of Field Labor Locals, American Federation of Government
Employees, AFL-CIO, concerning the substance, impact and
implementation of the termination of the individual assignment of
government-owned vehicles to employees instituted in 1983, and
make whole any employee for any loss he might have incurred
because of the changes in the assignment of government-owned
vehicles and in the availability of GSA parking for POVs for the
period from that termination until the date agreement is reached.
(e) Post at its facilities in Kansas City Missouri, St. Louis
Missouri and Wichita Kansas copies of the attached Notice on forms
to be furnished by the Federal Labor Relations Authority. Upon
receiving such forms, they shall be signed by an appropriate
official of the Respondent and shall be posted and maintained by
such official for 60 consecutive days thereafter, in conspicuous
places, including bulletin boards and all 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 other material.
(f) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, in writing,
within 30 days from the date of this Order, as to what steps are
being taken to comply herewith.
ELI NASH, JR.
Administrative Law Judge
Dated: November 14, 1984
Washington, D.C.
APPENDIX A
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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse, upon request to bargain with National
Council of Field Labor Locals, American Federation of Government
Employees, AFL-CIO, the exclusive collective bargaining representative
of our employees, concerning the substance, impact and implementation of
the termination of the individual assignment of government-owned
vehicles to employees. WE WILL NOT release parking spaces used by unit
employees without first affording the National Council of Field Labor
Locals, American Federation of Government Employees, AFL-CIO, 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
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 Wichita, Kansas and Kansas City, Missouri OSHA Area
Offices and which were relinquished to GSA in October and November 1983,
without bargaining in good faith with the employees' exclusive
representative concerning the decision to do so. WE WILL bargain, upon
request of the National Council of Field Labor Locals, American
Federation of Government Employees, AFL-CIO to the extent consonant with
applicable regulations of the General Services Administration,
concerning the reallocations of our parking spaces for use by unit
employees. WE WILL, upon request, bargain and reach agreement with
National Council of Field Labor Locals, American Federation of
Government Employees, AFL-CIO, concerning the substance, impact and
implementation of the termination of the individual assignment of
government-owned vehicles to employees instituted in 1983, and make
whole any employee for any loss he might have incurred because of the
changes in the assignment of government-owned vehicles and in the
availability of GSA-leased parking for POVs for the period from that
termination until the date agreement is reached.
(Agency or Activity)
Dated: . . . By: (Signature) This Notice must remain posted for sixty
(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 of
the Federal Labor Relations Authority, Region VII, whose address is:
1531 Stout Street, Suite 301, Denver, Colorado 80202 and whose telephone
number is: (303) 837-5224; FTS: 327-5224.
--------------- FOOTNOTES$ ---------------
/1/ The Charging Party in Occupational Safety and Health
Administration, supra, and the Charging Party here, are the same. The
Charging Party in Employment Standards Administration, supra, is Local
898. Both are affiliated with the American Federation of Government
Employees, AFL-CIO.
/2/ Accordingly, to the extent that the Judge herein concluded that
the Respondent was obligated to bargain over the substance of the
termination of individual vehicle assignments, such conclusion is not
adopted.
/3/ In so finding, the Authority rejects the Respondent's argument
that the Union's bargaining request was untimely.
/4/ The General Counsel's uncontested Motion for correction of the
transcript is granted.
/5/ Also monthly parking tags were issued to these employees. The
card functioned only in an in-out sequence and therefore remained with
an assigned GSA car which might be parked overnight in the facility. A
card used by a compliance officer who did not elect to use a GSA vehicle
for official travel would be kept by that compliance officer at all
times.
/6/ U.S. Department of Labor, Occupational Safety and Health
Administration, Chicago, Illinois and National Council of Field Labor
Locals, American Federation of Government Employees, AFL-CIO,
OALJ-82-126, Case No. 5-CA-978 (ALJ Chaitovitz, August 31, 1982); U.S.
Department of Labor, Washington, D.C., and Employment Standards
Administration, Region 8, Denver, Colorado, and American Federation of
Government Employees, AFL-CIO, Local 898, OALJ-83-62, Case No. 7-CA-1109
(ALJ Cappello, March 7, 1983).
/7/ U.S. Department of Labor, Occupational Safety and Health
Administration, Chicago, Illinois and National Council of Field Labor
Locals, American Federation of Government Employees AFL-CIO,
OALJ-82-126, Case No. 5-CA-978, supra; U.S. Department of Labor,
Washington, D.C., and Employment Standards Administration Region 8,
Denver, Colorado, and American Federation of Government Employees,
AFL-CIO, Local 898, OALJ-83-62, Case No. 7-CA-1109, supra.
/8/ Chapter 400 of the Department of Labor Regulations (DLMS-7
Chapter 400) had been in effect prior to the negotiations of the
collective bargaining agreement between DOL and the Union. DLMS-7
Chapter 400 paragraphs 411 and 434(a) provide:
411 Criteria for GSA Car Assignments. Considering direct and
indirect costs to the DOL, assignment of GSA cars to individual
drivers is advantageous only when an average of more than 1,000
miles per month of official travel can be anticipated. Cars
normally will not be assigned to employees unless this level of
utilization can be anticipated. Exceptions may be made for
drivers who use cars for official business at least daily or
almost daily, or when trips of more than 10 days are made by
drivers who do not meet the 1,000 miles-per-month official travel
requirement. Vacations or other leave do not affect this
determination nor will temporary details of work assignments
terminate eligibility for the use of a GSA vehicle unless these
exceed the period allowed or remaining on the current DL Form
1-289. Employees may be assigned a GSA car if their supervisors
certify, and provide written justification, that a compelling
official need overrides the 1,000-miles requirement, and an
overall savings to the Government is clearly indicated. DOL
Agency Administrative Officers must approve or disapprove these
exceptions for National Office employees, and Regional DOL Agency
Heads must approve or disapprove these exceptions for field
employees. Copies of the justification for these exceptions will
accompany the request to the organization acquiring the car (the
RAMO in the field or the Division of Supply and Property
Management, Office of Administrative Services, DAPS, OASAM, for
the National Offices).
434 Identification of Vehicles. All vehicles are to be
identified in accordance with GSA regulations, except unmarked
vehicles used where identification would be contrary to the public
interest. Identification plates are furnished by the GSA.
a. Authorization for use of unmarked vehicles has been granted
for investigative, law enforcement, and compliance duties in
accordance with Federal Property Management Regulations
101-38.605. The DOL Agencies which may authorize the use of
unmarked vehicles, as justified, are:
(1) Labor-Management Services Administration.
(2) Occupational Safety and Health Administration.
(3) Employment Standards Administration.
(4) Bureau of Apprenticeship and Training, Employment and
Training Administration.
b. If unmarked vehicles for other staffs are deemed desirable,
justification statements will be submitted to the OASAM or the
appropriate RAMO for case-by-case consideration.
/9/ Based on the foregoing findings, I deem it unnecessary to rule on
the General Counsel's Motion for Summary Judgment with respect to
whether or not Respondent had a statutory duty to bargain over the
impact and implementation of its decision to terminate the practice of
parking POVs in the Kansas City, Missouri and Wichita, Kansas Area
Offices.