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The decision of the Authority follows:
38 FLRA No. 115
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
LOCAL LODGE 2297
U.S. DEPARTMENT OF THE NAVY
NAVAL AVIATION DEPOT
CHERRY POINT, NORTH CAROLINA
DECISION AND ORDER ON NEGOTIABILITY ISSUES
January 14, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of two proposals. Proposal 1 requires that the area of consideration for promotion vacancies include all activities located at the Marine Corps Air Station, Cherry Point. Proposal 2 involves various aspects of an open space parking policy. The Agency contends that both proposals are not within the duty to bargain because they concern nonunit employees and employees in other bargaining units not represented by the Union.
By an Order of August 25, 1989, the Authority directed the parties to file supplemental statements of position addressing the application to this case of the standard adopted by the Authority in American Federation of Government Employees, Local 32, AFL-CIO, and Office of Personnel Management, 33 FLRA 335 (1988) (OPM), enf'd sub nom. United States Office of Personnel Management v. FLRA, 905 F.2d 430 (D.C. Cir. 1990). Both parties filed supplemental statements.
Applying the approach set forth in OPM, we find that, except for Section 2b(5) of Proposal 2, the proposals vitally affect the working conditions of employees in the bargaining unit and are consistent with applicable law or regulations. Consequently, we find that the proposals are negotiable, with the exception of Section 2b(5) of Proposal 2.
II. Proposal 1
The employer agrees to use (sic) the maximum possible extent the skills of employees in the Unit. The area of consideration for promotion announcements shall be the Naval Air Rework Facility (now the Naval Aviation Depot), Marine Corps Air Station, and U.S. Naval Hospital, Cherry Point, N.C., unless this area will not supply sufficient candidates for the vacancy. The Employer will consult with the Union prior to extending the area of consideration. Consideration may also be made of voluntary applications of current agency employees outside the area of consideration. Every reasonable effort will be made by the Employer to obtain identical information on non-unit candidates as is obtained for Unit candidates. Non-unit candidates shall be evaluated as nearly as possible by the same criteria used to evaluate unit candidates. (Only the underlined language is in dispute.)
A. Positions of the Parties
The Agency asserts that Proposal 1 is nonnegotiable because it would require the Agency, when filling bargaining unit positions, to consider employees of other Department of the Navy activities located on the same installation who are not in the bargaining unit represented by the Union. Further, the Agency argues that Proposal 1 is nonnegotiable because it would require the Agency to consider bargaining unit employees for positions located outside of the bargaining unit, including positions in other bargaining units represented by other labor organizations.
In elaboration, the Agency points out that the Union represents a bargaining unit comprised of certain employees of the Naval Aviation Depot (formerly Naval Air Rework Facility) Cherry Point, North Carolina. Further, the Agency states that the Naval Aviation Depot and the U.S. Naval Hospital, Cherry Point, are tenant activities of the Marine Corps Air Station, Cherry Point; that all three activities are separate organizational entities within the Department of the Navy; and that there are nine other bargaining units at these activities, whose employees are represented by a total of eight union locals affiliated with six national and international unions.
In its original statement of position, the Agency admits that areas of consideration are generally within the duty to bargain, but relies on then-existing Authority precedent to argue that the proposal does not concern a condition of employment because it requires the Agency to consider non-bargaining unit employees for bargaining unit vacancies and, therefore, "it is manifestly focused on those non-bargaining unit employees." Agency's statement of position at 6. It further argues, relying on Federal Union of Scientists and Engineers, National Association of Government Employees and Naval Underwater Systems Center, Newport, Rhode Island, 23 FLRA 360 (1986) (Proposal 2), that the proposal is not within the duty to bargain because it requires that the Agency use all of the activities at the Cherry Point facility as the minimum area of consideration for filling all vacancies occurring on that facility, and, therefore, impermissibly seeks to establish procedures for filling positions outside the bargaining unit.
In its supplemental statement of position, the Agency further argues that Proposal 1 is distinguishable from the Authority's holding in OPM because the proposal's requirement that the Agency consider employees outside the bargaining unit for unit vacancies does not vitally affect the working conditions of bargaining unit employees. Accordingly, the Agency states that it adheres to its earlier position.
The Union argues that Proposal 1 is within the duty to bargain in that it does not focus on nonunit employees, but concerns the conditions of employment of bargaining unit employees because it deals with promotional opportunities for those employees. Although the Union admits that in seeking to establish the minimum area of consideration for vacancy announcements at the Marine Corps Air Station, Cherry Point, North Carolina, the proposal would include all employees at the Marine Corps Air Station, including those employees in non-bargaining unit positions, it contends that it is merely recognizing the past practice of maintaining one area of consideration for all employees at the Cherry Point Air Station.
In its supplemental statement of position, the Union argues that Proposal 1 vitally affects the working conditions of bargaining unit employees because it is in their vital interest to negotiate a promotion program that is fair and in which the employees have confidence. Further, the Union maintains that bargaining unit employees have a vital interest in maintaining the right to apply for positions outside the unit and that any restrictive language proposed by the Agency would result in narrow areas of consideration being proposed by labor organizations that represent other bargaining units in order to protect their own unit employees. In addition, the Union contends that it is in the vital interests of unit employees to maintain the larger area of consideration for employees who, through injury or sickness, are no longer able to perform their jobs, and who would benefit from a greater opportunity to apply for more suitable positions. Accordingly, the Union maintains that Proposal 1 is within the duty to bargain.
B. Analysis and Conclusions
In OPM, the Authority concluded that a proposal concerning the conditions of employment of bargaining unit employees, which also affects employees or positions outside the bargaining unit, is negotiable under the Statute if it (1) vitally affects the working conditions of unit employees and (2) is consistent with applicable law and regulations. The Authority additionally stated that the proposal's effect on nonunit employees or positions is not a factor in making the negotiablility determination and that prior decisions inconsistent with the described approach would no longer be followed. OPM, 33 FLRA at 338. In American Federation of Government Employees, Council of Marine Corps Locals (C-240) and Department of the Navy, U.S. Marine Corps, 35 FLRA 1023, 1032-33 (1990) (U.S. Marine Corps), we reiterated that a proposal's effect on nonunit employees or positions is not a factor in determining whether the proposal vitally affects the working conditions of bargaining unit employees, and the fact that some of those nonunit employees may be in bargaining units represented by other unions does not affect our analysis of the proposal's effect on bargaining unit employees. See also National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 598-99 (1990). And in Federal Employees Metal Trades Council of Charleston and U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 36 FLRA 148, 153 (1990) (Charleston Naval Shipyard), the Authority determined that in order to "vitally affect" the working conditions of employees in the bargaining unit, the effect must be significant or material, as opposed to indirect or incidental.
We find that Proposal 1 "vitally affects" the working conditions of employees in the bargaining unit because the proposal's effects on those employees are significant and material. Proposal 1 concerns the area of consideration for promotion announcements. That is, Proposal 1 deals with the area from which employees can apply for promotion vacancies. As a result, it pertains to determinations as to the promotions for which bargaining unit employees may apply and which employees will compete with bargaining unit employees for promotional opportunities. As noted by the Union, the proposal's requirement that a larger area of consideration for promotional opportunities be maintained for both unit and nonunit employees directly affects job opportunities for unit employees. In particular, it allows bargaining unit employees to be considered for a variety of promotional opportunities within and outside the unit. Moreover, it enables those who for some reason are unable to perform their former jobs in the unit to find more suitable positions outside the unit. We consider these effects on bargaining unit employees to be significant and material, and, therefore, to vitally affect the working conditions of those employees.
Our conclusion is not altered by the Agency's contention that because the proposal affects the working conditions of employees of other bargaining units it does not vitally affect the working conditions of employees of this bargaining unit. In U.S. Marine Corps, we considered this contention and rejected it, holding that a proposal's effect on nonunit employees or positions is not a factor in determining whether the proposal vitally affects the working conditions of bargaining unit employees. 35 FLRA at 1032. Moreover, the fact that some of those nonunit employees may be in bargaining units represented by other unions does not affect our analysis of the proposal's effect on bargaining unit employees. Id. at 1032-33. Finally, it is not contended by the Agency, nor is it apparent to us, that the proposal is inconsistent with law and regulation. Therefore, in view of our conclusion that the proposal vitally affects the working conditions of bargaining unit employees, the fact that it may also affect the working conditions of non-bargaining unit employees is not material to our disposition.
Accordingly, we find Proposal 1 to be within the duty to bargain.
III. Proposal 2
Section 1: A reserved parking space will be provided for the Union President, the Vice-President, Secretary & Treasurer, and five (5) Chief Stewards. Such parking spaces will be within reasonable walking distance of assigned working areas. In the event that an employee holds two of the above Union Offices, that official will only be assigned one reserved parking space.
Section 2: The Employer agrees that all other spaces outside the fence shall be open parking for all employees and the Employer on a first come first serve basis without regards to whether or not they are in the unit. Intent: To give unit employees equal access to all open parking areas.
b. Exceptions are as follows:
(1) Those spaces provided for in Section 1 above.
(2) Those officials of exclusively recognized Unions which are specifically provided for by a negotiated agreement.
(3) There shall be sufficient spaces set aside for those handicapped employees who have special problems relating to their ability to walk to and from their work site. In this regard, prior to considering a request for special parking, the handicapped employee must obtain a statement from the Industrial Medical Officer certifying that the employee's handicap is so severe, and so limits his handicap is so severe, and so limits his ability to ambulate and that special consideration is warranted.
(4) Van Pool reserved spaces.
(5) A number of spaces equal to the number of reserved spaces for the union as set forth in Section 1 and Section 2 (2) may be reserved outside the fence for the exclusive use of the Employer as Executive spaces.
(6) Spaces for privately owned vehicles which are regularly used for Government business at least twelve (12) days per month and which qualify for reimbursement for mileage and travel expenses under Government travel regulations.
c. The currently assigned Union Official spaces will not be relocated without mutual agreement of both parties.
Section 3: If additional parking lots are opened in the future, which are to be other than open parking, the Employer agrees to notify the Union and given (sic) them the opportunity to meet and confer over any reserved spaces.
Section 4: Upon request the Union shall have access to a current display of all individuals assigned the above cited reserved parking spaces.
NOTE: It is acknowledged and understood that the above provisions regarding parking may have to be changed to comply with requirements and restrictions mandated by higher authority. Any changes will be in compliance with and administered in accordance with such higher authority directives.
Section 5: Changes to the provisions of this Article can be made by the mutual agreement of the Employer and the Union.
(Only the underlined language is in dispute.)
A. Positions of the Parties
1. The Agency
The Agency argues that Proposal 2 is not within the duty to bargain because it pertains to conditions of employment of nonunit employees and of employees in other bargaining units not represented by the Union. In this regard, it argues in its original statement of position that: (1) the proposal would directly control parking arrangements for employees in five other bargaining units at the Naval Aviation Depot; and (2) insofar as it extends to parking for executives and other employees outside the unit, it does not affect the conditions of employment of bargaining unit employees.
In its supplemental statement the Agency again contends that the proposal is nonnegotiable because it pertains to conditions of employment of nonunit employees, such as supervisors, managers, and confidential employees, and other employees exempt from coverage by the Statute under section 7112, and of employees in other bargaining units not represented by the Union. The Agency argues that the Authority should use a balancing test to determine whether the rights of labor organizations to bargain on behalf of bargaining unit employees should be subordinated to the rights of agencies not to bargain regarding conditions of employment outside the bargaining unit. The Agency contends that although the court in American Federation of Government Employees, Local 32 v. FLRA, 853 F.2d 986 (D.C. Cir. 1988), rejected a balancing test in this area because it found no statutory basis for balancing the rights of nonunit employees against the statutory bargaining rights of those in the unit, that decision did not consider the scope of bargaining regarding issues involving employees who are exempt from bargaining under section 7112 of the Statute. Moreover, the Agency argues that in First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), the U.S. Supreme Court found a balancing test to be the appropriate mechanism for the National Labor Relations Board to use in resolving such matters under the National Labor Relations Act.
In support of its contention that the proposal is nonnegotiable because it pertains to conditions of employment of employees in other bargaining units, the Agency states: "Assuming, for the sake of argument, that the standard adopted by the Authority in Office of Personnel Management is appropriate when applied to proposals affecting employees who are unorganized, we assert that a different standard must be applied when the proposals at issue would have the effect of determining conditions of employment in other bargaining units. These employees are entitled by statute to have their conditions of employment negotiated by their own exclusive representative." Agency's supplemental statement of position at 9.
Additionally, the Agency argues that the proposal is nonnegotiable because it does not affect the "vital interests" of bargaining unit employees. The Agency asserts that the "vitally affects" test is more stringent than the test for determining whether a proposal affects conditions of employment. The Agency argues that this case is distinguishable from OPM because the proposal in OPM concerned the competitive area for a reduction in force and, therefore, involved "a matter obviously of the most compelling interest to any employee." Id. at 13. The Agency further argues that "[w]hile not without significance, parking, especially in the context of this case, where there is ample free parking for all employees and the main issues is how the most desirable spaces will be allocated, pales by comparison." Id.
Finally, the Agency asserts that the Authority's new standard in OPM is erroneous and should be reconsidered because both the Authority and the D.C. Circuit Court of Appeals have misread private sector precedent.
The Union asserts that the proposal seeks to utilize to the maximum extent possible open, unreserved parking. The Union notes that the Agency is in the process of moving approximately 300 spaces for first-line supervisors and employees above the level of GS-12 from a fenced Security Zone to "choice locations near the work area." Union's Response at 2. The Union contends that reserving 300 spaces for executive parking at premium spaces near the work site would have a serious impact on the vital interests of bargaining unit members, who "would be forced to walk in rain, sleet and snow past the reserved spaces to reach their autos in the least desirable spaces." Id. With reference to the Agency's contention that the proposal is nonnegotiable because it pertains to conditions of employment of employees in other bargaining units not represented by this Union, the Union points out that the other unions are in agreement with its parking proposal and that the proposal does not give any special advantage to the unit employees represented by the Union.
Additionally, in its supplemental statement, the Union argues, with regard to various sections of the proposal, that it has a vital interest in making sure that: (1) no other parking policy is negotiated by the Agency and another labor organization that would unduly penalize the employees represented by the Union; (2) employees who are sick or injured, but still able to work could work in inclement weather, rather than taking annual or sick leave, because they could come to work a few minutes early and park close to their work site; (3) eligibility for handicapped and vanpool parking is negotiated because law and regulations mandate reserved spaces for those categories; (4) the lowest number of executive spaces are used so that more unreserved parking spaces are available; and (5) the Agency negotiates over the designation of reserved parking for any new parking lots and any changes in the existing parking system.
B. Analysis and Conclusions
Although the Agency urges us to reconsider and change the test we set forth in OPM and to utilize a balancing test to make such determinations, we believe the approach used in OPM and affirmed by the Court of Appeals for the D.C. Circuit remains valid. In particular, we do not find First National Maintenance Corp. v. NLRB to be applicable to this issue, as argued by the Agency. That case, which involved an "economically motivated decision to shut down part of a business[,]" 452 U.S. at 680, concerned a matter "wholly apart from the employment relationship." Id. at 677. In contrast, this case involves employee parking, a matter that the Authority has long held to be within the duty to bargain if the disputed proposals are consistent with applicable laws, rules, and regulations. See, for example, American Federation of Government Employees, Local 644, AFL-CIO and U.S. Department of Labor, Occupational Safety and Health Administration, 21 FLRA 658, 663 (1986). Accordingly, we will continue to find a proposal concerning the conditions of employment of bargaining unit employees, which also affects employees or positions outside the bargaining unit, to be negotiable if it (1) vitally affects the working conditions of unit employees and (2) is consistent with applicable law and regulations. OPM, 33 FLRA at 338.
The Agency's next contention is that Proposal 2 does not vitally affect the working conditions of bargaining unit employees. As earlier noted, the Authority in Charleston Naval Shipyard determined that in order to vitally affect the working conditions of employees in the bargaining unit, the effect on unit employees must be significant or material, as opposed to indirect or incidental. 36 FLRA at 153. We find that Proposal 2 vitally affects the working conditions of employees in the bargaining unit because the effects of Proposal 2 on those employees would be significant and material.
Proposal 2 provides bargaining unit employees, after consideration of certain exceptions such as vanpools, executive, and handicapped parking, with parking spaces that are essentially all unreserved, including those spaces immediately adjacent to the work site. The proposal also seeks to define the limited exceptions to an open parking policy so that the exceptions will not in the future interfere with the general rule of open, unreserved parking. As noted by the Union, available unreserved parking proximate to the work site could reduce sick and annual leave usage by employees who would not be able to walk long distances in inclement weather. We find the potential for reduced leave usage to be an effect that is significant and material to the affected employees. Further, the establishment and maintenance of additional unreserved parking spaces would ease parking problems generally for unit employees by allowing more employees to park close to their work sites. This added convenience of parking at the workplace, in turn, would enhance unit employee morale.
Finally, the Agency contends that the proposal is nonnegotiable because it pertains to conditions of employment of employees in other bargaining units who are not represented by this Union. Except for Section 2b(5), which we find to be nonnegotiable, as discussed below, we do not agree that the effect of the proposal on other groups of employees places the proposal outside the duty to bargain. As stated above with regard to Proposal 1, in U.S. Marine Corps, we found it is irrelevant in determining whether a proposal vitally affects unit employees that the proposal may also have an effect on nonunit employees or positions. See also National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA No. 54, slip op. at 11 (1990). As we have earlier indicated, Proposal 2 vitally affects the working conditions of bargaining unit employees. Therefore, the fact that this proposal may restrict the ability of other bargaining units to bargain about reserved parking in the future does not go to the negotiability of the proposal, but to its merits. Accordingly, as there are no contentions that the proposal is inconsistent with law and regulation, we find that Proposal 2, except for Section 2b(5), is within the duty to bargain.
Section 2b(5) of Proposal 2 seeks to limit parking spaces for executive personnel to the same number of spaces reserved for officers of the Union and other exclusively recognized unions, as negotiated. Although not specifically raised by the parties, we find that under Authority precedent concerning the allocation of agency facilities between unit and non-unit employees, and in view of our conclusion that the proposal vitally affects the working conditions of unit employees, this limitation on executive parking spaces does not interfere with management's rights under section 7106 of the Statute. See, for example, American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 27 FLRA 363 (1987) (Proposal 3). However, we find that Section 2b(5) is inconsistent with a Government-wide regulation and, for that reason, is not negotiable. Regulations regarding the allocation of parking spaces are codified at 41 C.F.R. ºº 101-20.104 - 101-20.104-4. The Authority has found them to be Government-wide regulations within the meaning of section 7117 of the Statute. Coordinating Committee of Unions and Department of the Treasury, Bureau of Engraving and Printing, 29 FLRA 1436, 1440 (1987). With regard to the allocation and assignment of employee parking spaces, the regulations provide the following at º 101-20.104-2:
(d) Agencies shall in turn assign spaces to their employees, using the following order of priority:
(1) Severely handicapped employees. Justifications based on medical opinion may be required.
(2) Executive personnel and persons who work unusual hours.
(3) Vanpool/carpool vehicles.
(4) Privately owned vehicles of occupant agency employees which are regularly used for Government business at least 12 days per month and which qualify for reimbursement of mileage and travel expenses under Government travel regulations.
(5) Other privately owned vehicles of employees, on a space-available basis. (In locations where parking allocations are made on a zonal basis, GSA and affected agencies may cooperate to issue additional rules, as appropriate.)
The regulations clearly mandate that parking for "executive personnel" be given a higher priority than vanpool/carpool vehicles and privately owned vehicles of employees. Under the proposal, however, executive parking spaces are expressly limited to a number equal to the spaces allocated to all union officials at the Naval Aviation Depot. It is likely that those spaces may be fewer in number than the number of spaces required for van or carpool vehicles. More significantly, it is within the express intention of the proposal, which seeks to make most of the parking unreserved, that there be fewer spaces for executive personnel than for privately owned vehicles. Therefore, the proposal is clearly inconsistent with a Government-wide regulation insofar as it limits in this manner parking for executive personnel. Accordingly, Section 2b(5) is not within the Agency's duty to bargain.
The Agency shall upon request, or as otherwise agreed to by the parties, negotiate concerning Proposals 1 and 2, with the exception of Section 2b(5).(*)
(If blank, the decision does not have footnotes.)
*/ In finding that these proposals are negotiable, we make no judgment as to their merits.