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The decision of the Authority follows:

29 FLRA NO. 25






Case No. 0-NG-1359


I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of two proposals.

II. Procedural Background

In its Statement of Position, the Agency noted that changes were imminent in the Federal Property Management Regulations (FPMRs) concerning parking, and that the changes might affect the disposition of the Union's negotiability appeal. While the Union's Petition for Review was pending before the Authority, the FPMRs were revised. Based on the changes in the FPMRs, the Agency requested permission to file a Supplemental Statement of Position addressing the applicability of the new regulations to the Union's proposals. Thereafter, the Union filed a supplemental submission seeking to withdraw its petition for review as to all but two of its proposals and further explaining its position as to the remaining two proposals. Pursuant to section 2424.8 of the Authority's Rules and Regulations, we have considered the parties' supplemental submissions. We will not consider the portions of the Union's appeal which were withdrawn. 

III. Proposals

Proposal 1

Section 1(a)(3). Van Pools. A van Pool is defined as, a group of 8 to 15 persons using a van, specifically designed to carry passengers, for transportation to and from work in a single, daily round trip. This vehicle excludes automobiles, buses, or commercially operated van pools.

(4) Carpools with four or more occupants.

(5) Other carpools.

Proposal 2

Section 1(D). To facilitate enforcement of provisions hereinabove described, management agrees to furnish parking decals as follows:

(1) Those individuals entitled to reserve parking shall be issued yellow decals with each decal having a "unique" numerical or alphabetical code.

(2) Those individuals who are authorized to park in a reserve area shall be issued green decals with each decal having a "unique" numerical or alphabetical code.

A. Positions of the Parties

The Agency contends that these proposals are not negotiable because, to the extent that the priorities established by Proposals 1 and 2 apply to employees outside the bargaining unit, they involve a permissive subject of bargaining concerning which the Agency has elected not to bargain. The Union disputes the Agency's contentions and asserts that: (1) Proposal 1 is intended to apply only insofar as the regulations establish a priority for van and car pooling; and (2) Proposal 2 concerns only the issuance of decals and is intended to distinguish an employee entitled to a reserved parking space from an employee who is restricted to general parking on a "first-come, first-served" basis. 

B. Analysis and Conclusions

Under the Federal Property Management Regulations (FPMRs), parking spaces not required for official needs may be used for employee parking. 41 C.F.R. 101-20.104-2(a). The regulations state that space available for employee parking is to be allocated on an equitable basis. Id. at 101-20.104-2(c). The regulations establish priorities for the allocation and assignment of employee parking spaces. In particular, the regulations establish a priority for vanpools and carpools as a group, after spaces have been assigned to severely handicapped employees, executive personnel and persons who work unusual hours. Id. at 101-20.104-2(d). The Union's proposals further define the priorities for vanpools and carpools within that group. Proposal I gives vanpools priority over carpools with 4 or more occupants and gives carpools with 4 or more occupants priority over other carpools. Proposal 2 simply provides for the use of color-coded decals as a method of identifying which vehicles are entitled to reserved spaces and which vehicles must find parking as available.

The Agency does not contend that these proposals violate the FPMRs. The only issue is whether these proposals are outside the duty to bargain because they concern conditions of employment of nonunit employees.

In our view, these proposals would have only a limited and indirect effect on the conditions of employment of nonunit employees. The FPMRs require the Agency to assign parking to all employees in accordance with specific priorities. Thus, the Agency is able to provide parking spaces for nonunit employees only if those employees fall within the priority categories. Moreover, the regulations require that parking spaces be assigned equitably. These proposals do not grant or deny parking spaces to nonunit employees; they merely establish the general conditions under which parking spaces will be assigned to employees who apply and how those employees who are assigned spaces under the proposed priorities are to be identified. Therefore, these proposals do not directly determine nonunit employees' conditions of employment.

We find that Proposals 1 and 2 in this case are similar to Proposal 1 in Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 and Naval Underwater Systems Center, Newport, Rhode Island, 28 FLRA No. 54 (1987). In that case, we found that a proposal which was intended to govern the division of workspace between unit and nonunit employees had only a limited and indirect effect on the conditions of employment of nonunit employees. In particular, we found that while the proposal would limit the space into which nonunit employees could be assigned, it stopped short of determining their workspace assignments.

Proposals 1 and 2 in this case do not directly determine whether or not nonunit employees will be assigned parking spaces. It is not uncommon for collective bargaining proposals to have an effect on nonunit employees. However, not every effect is sufficient to remove a proposal from the duty to bargain. In a similar context, we have noted that some collective bargaining proposals may impose costs on an agency, but not every such cost, by itself, is sufficient to render otherwise negotiable proposals nonnegotiable. See, for example, Lexington - Blue Grass Army Depot, Lexington, Kentucky and American Federation of Government Employees, AFL - CIO, Local 894, 24 FLRA No. 6 (1986). In this case, negotiations over the priorities for the assignment of employee park