43 FLRA No. 1

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

UNITED STATES IMMIGRATION AND

NATURALIZATION SERVICE

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 1917

(Charging Party/Union)

2-CA-90260

DECISION AND ORDER

November 1, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent (INS) to the attached decision of the Administrative Law Judge. Neither the General Counsel nor the Charging Party filed an opposition to the Respondent's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing a past practice of permitting bargaining unit employees to park on West Houston Street in New York City without first notifying the Union of the change and affording it an opportunity to bargain concerning the substance and/or impact and implementation of the change. The Judge found that the Respondent violated the Statute by refusing to bargain concerning the substance of the decision to change its past practice and the impact and implementation of the change. The Judge granted a status quo ante remedy.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order for the reasons that follow.⁽¹⁾

II. Facts

The facts of this case, more fully set forth in the Judge's decision, are summarized below.

The Respondent's Service Processing Center (SPC) is located in the Federal Building at 201 Varick Street, New York City (NYC). West Houston Street adjoins the Federal Building. Since at least August 1988, parking signs that governed 16 or 17 parking spaces on West Houston Street were marked "NO STANDING, 8 am-6 pm, Mon thru Fri, Except Authorized Vehicles." General Counsel's Exhibit 3. Another sign just below stated "Dept. Of Justice." Id.

For about a year prior to March 31, 1989, a number of SPC employees and supervisors assigned to the SPC parked their personally-owned vehicles, used in commuting to work, in the marked parking spaces on West Houston Street. One employee, having learned from other employees and from a supervisor about the parking spaces, obtained a placard that stated "Official Business" from another employee and began to park in the spaces, placing the placard inside his windshield.

The employee received a parking ticket in mid-March 1989. He was informed by the NYC Traffic Bureau and other employees and supervisors that he could have the ticket quashed if he supplied the NYC Traffic Bureau with a copy of the "Official Business" placard and a letter stating that he worked for INS. The employee asked the Deputy Assistant Director of the SPC to write a letter stating that the employee was employed by INS and was authorized to park on West Houston Street. The Deputy Assistant Director refused to write the letter.

Following the employee's request, the Deputy Assistant Director "looked into the matter." Judge's Decision at 4. The Deputy Assistant Director, upon "learn[ing] of the parking signs and that employees were parking their privately owned cars at the West Houston Street location" (id.), issued a memorandum to all SPC employees on March 31, 1989, stating that the parking spaces on West Houston Street were designated for Agency vehicles only and not for privately-owned vehicles. The memorandum also stated that only Government vehicles were authorized to park in the spaces and that privately-owned vehicles would be ticketed and could be towed to the NYC pound. The Union then filed the unfair labor practice charge that led to the complaint in this case.

The Union requested information about authorized parking from the NYC Department of Transportation (DOT). DOT informed the Union that "procedures for installation of authorized parking spaces begin with a written request by an agency to this office." General Counsel's Exhibit 5. DOT stated that the "request must explain why the spaces are needed, how many vehicles are used in the field on a typical day and for what percent of their day," and that "spaces are then provided on the basis of one space for a minimum of 5 vehicles used in the field more than 50% of the time. No spaces are provided for vehicles used primarily for commutation." Id. DOT also stated that "[o]nce the spaces are installed, they are primarily regulated by the agency," and vehicles "must be identified as being used for agency business . . . ." Id. DOT noted that "[a]uthorized spaces, once installed, will remain unless it is found that they are not being used for government business. If they are being used to house commuter vehicles, [the spaces] will be removed." Id.

III. Administrative Law Judge's Decision

The Judge found that employees had been parking in the West Houston Street parking spaces for about a year before the Deputy Assistant Director issued the memorandum on March 31, 1989. The Judge found that "although [the Deputy Assistant Director] contends that he did not learn about such parking by employees [until] March 1989, a number of supervisors at the SPC knew about such a practice and, in fact, also parked their cars there." Judge's Decision at 5. The Judge concluded that "because this practice was known to a number of supervisors . . . it was an existing condition of employment at the time" the Deputy Assistant Director issued the memorandum on March 31, 1989. Id. at 6.

The Judge stated that "the record does not establish that there was any past practice with respect to the SPC helping employees quash parking tickets received for parking on West Houston Street." Id. He found, however, that "employees at the SPC had the [A]gency's permission to park" in the spaces "but were subject to being ticketed or towed by the New York City authorities." Id. The Judge concluded that "reasonable employees would interpret the memorandum as informing them that the SPC was not authorizing them to park their privately owned cars on West Houston Street and that the only cars the SPC was authorizing to park there were [G]overnment cars." Id. The Judge concluded that "[a]ccordingly . . . by means of the March 31, 1989, memorandum [the Deputy Assistant Director] changed the then existing condition of employment of permitting the SPC employees to park in the West Houston Street spaces." Id.

The Judge noted that, although such an argument was not clearly raised by the Respondent, he nonetheless would find no merit in the argument that the Respondent was merely complying with NYC law when it changed its parking policy. The Judge found that the Respondent "would not be violating the local parking regulations" by merely allowing employees to use the parking spaces. However, the Judge found that the Respondent "would risk having New York City withdraw its allocation of these spaces" by doing so. Id. at 7. Further, the Judge noted that "to the extent INS has any discretion to bargain about the use of these spaces under New York City law, it must bargain to the extent of this discretion." Id. The Judge also noted that there "seemed to be some attempt at the hearing" by the Respondent to establish that the Union had waived its right to bargain about the parking arrangements. Id. He found, however, that "the record does not establish a clear and unmistakable waiver of such right." Id. at 8 (citations omitted).

The Judge concluded that "INS violated section 7116(a)(1) and (5) of the Statute when [it] changed an existing condition of employment, forbidding employees from parking in the allocated spaces on West Houston Street, without first notifying" the Union "and giving it an opportunity to bargain about the substance of the change." Id. The Judge further stated that even if the Authority were to conclude that the Respondent was not obligated to bargain over the substance of the change, he would conclude that the Respondent "still would have been obliged to notify [the Union] of the proposed change and give it an opportunity to bargain about the impact and implementation of the change." Id. at n.*. The Judge found that "[t]he appropriate remedy in this matter is a return to the status quo ante." Id. (citation omitted).

IV. Respondent's Exceptions

The Respondent excepts to the Judge's decision on the grounds that: (1) the Judge improperly based his finding of a violation of the Statute on a theory different from the theory on which the General Counsel prosecuted the complaint; (2) the premise on which the General Counsel based the theory of the violation had no basis in fact, as "tacitly" found by the Judge (Exceptions at 24); (3) assuming that the Judge "was free to fashion his own theory of the case, even under this theory there was no ULP" (id. at 26); and (4) even if the Respondent violated the Statute, a status quo ante remedy is not appropriate.

As to the first ground, the Respondent asserts that the General Counsel "prosecuted his theory on the faulty premise that the [Respondent], and not NYC, was in control of the parking spaces." Id. at 18. The Respondent argues that the Judge "basically disposed of the ULP complaint" when he found that the Respondent did not help employees to quash parking tickets given by NYC. Id. at 22. The Respondent states that "[h]aving disposed of the General Counsel's theory of the case, [the Judge] should have dismissed the complaint." Id. The Respondent argues that the Judge's finding of a violation amounts to a finding that the Respondent "had established a past practice of not enforcing its own interest in reserving the [parking] spots for official business" and when the Respondent "attempted to enforce its interest, it changed the past practice of not trying to enforce its own interest." Id. at 22-23.

As to the second ground, the Respondent states that, as argued in its first ground, "the Judge was correct in rejecting the theory upon which the General Counsel prosecuted the case." Id. at 24. The Respondent argues that there "could not have been a change in policy, because whether employees parked [on West Houston Street] was not something within the discretion of INS management to make policy about." Id. at 25.

In support of its third ground, the Respondent asserts that the Judge was wrong in finding that the memorandum of March 31, 1989, changed anything, because the memorandum "makes it clear that all it was was a reminder to employees that it was illegal to park in the spaces reserved for official business on West Houston Street for commuting." Id. at 26. The Respondent argues that the memorandum did not state that employees could not park in the allotted spaces or that employees "would get in trouble with SPC if they continued to park there," but "simply advised employees, for their own protection, what NYC would not permit." Id. at 27 (emphasis in original). The Respondent asserts that the fact that some supervisors may have engaged in wrongdoing by their unauthorized use of the parking spaces should not be grounds for establishing a past practice that would itself have been wrongful. The Respondent states that in order to establish a past practice, it must be shown that responsible management has acquiesced in the practice, and argues that in this case "responsible management had no idea that the illegal practice was going on." Id. at 31. The Respondent further argues that "parking is a condition of employment only when the parking occurs on property owned or controlled by the agency" (id.), and that "practices which are illegal cannot constitute conditions of employment." Id. at 33. In sum, the Respondent argues that because the General Counsel did not show the existence of a past practice or a change in a condition of employment, the Respondent had no obligation to bargain and, therefore, did not violate the Statute.

Finally, the Respondent argues that even if the Authority should find that the Respondent violated the Statute, it should not adopt the Judge's recommended status quo ante remedy "because of the well established policy against such remedies when the practice which was unilaterally terminated was illegal." Id. at 42. The Respondent contends that "[b]y ordering a return to the [status quo ante], the [Judge] is ordering a law enforcement agency not to advise its employees that they should not break the law. If nothing else, this remedy should be void as against public policy." Id. at 43.

V. Analysis and Conclusions

We find that the Respondent was obligated to bargain over the decision to make a change as well as the impact and implementation of the change. We also find that a status quo ante remedy is warranted.

A. The Respondent Unlawfully Refused to Bargain

We find, contrary to the Respondent's contentions, that the case as prosecuted by the General Counsel, and the findings and conclusions of the Judge, are based on the allegations contained in the complaint. See the complaint (General Counsel's Exhibit 1(e)), the General Counsel's opening statement (Transcript at 7-9), and the General Counsel's post-hearing brief to the Judge (Brief at 1).

We agree with the Judge, based on his rationale, that a practice of allowing employees to park their privately-owned vehicles on West Houston Street had existed with the knowledge of management; the practice was a condition of employment at the time management issued its memorandum of March 31, 1989; and by that memorandum, which informed employees that employee parking was not permitted, management changed the past practice.

The Authority has held, as noted by the Judge, that providing parking places for employees and the distribution of parking places among employees are conditions of employment. See U.S. Customs Service, Washington, D.C., 29 FLRA 307 (1987); and U.S. Immigration and Naturalization Service, 16 FLRA 1007 (1984). See also U.S. Department of the Air Force, Williams Air Force Base, Chandler, Arizona, 38 FLRA 549 (1990); and Philadelphia Naval Base, Philadelphia Naval Station and Philadelphia Naval Shipyard, 37 FLRA 79 (1990).

We reject the Respondent's argument that the parking practice was unlawful because the practice violated NYC law or regulation and, therefore, was not a condition of employment. As noted above, the Judge found that the Respondent "would not be violating the local parking regulations" by merely allowing employees to use the parking spaces. Judge's Decision at 7. The Respondent has not cited any NYC law or regulation or demonstrated how the practice violates NYC law or regulation. Moreover, because the Respondent has not cited any NYC law or regulation that the practice allegedly violates, we need not and do not address the Judge's observation that section 7117 of the Statute, which provides that an agency has an obligation to bargain in good faith to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, "does not mention state or municipal law, rule or regulation." Judge's Decision at 7.

Accordingly, we agree with the Judge that the Respondent violated section 7116(a)(1) and (5) of the Statute when it changed its past practice of allowing employees to park on West Houston Street, without first notifying the Union and affording it the opportunity to bargain over the decision to change its past practice and over the impact and implementation of the change.

B. A Status Quo Ante Remedy Is Warranted

The Judge recommended a status quo ante remedy, requiring the Respondent to rescind the unlawful change, whereby unit employees were forbidden to park in reserved spaces on West Houston Street, and return to the policy in effect prior to the change. The Judge concluded that, under the previous policy, "INS would merely be allowing employees to park in the spaces . . . and the employees, at their discretion, could park in the spaces and risk being punished by the city authorities." Judge's Decision at 7.

The Respondent asserts that a status quo ante remedy is inappropriate here because it would require the Respondent to return to an illegal practice. According to the Respondent, "the primary violation in this case was of the parking ordinances of NYC." Respondent's Exceptions at 42. As noted previously, however, the Respondent has not cited any NYC law or regulation with which the previous policy was inconsistent. Moreover, the only evidence concerning this matter, a letter from DOT to the Union which was made part of the record by the General Counsel, contains no references to any NYC law, regulation, or ordinance. Indeed, by its terms, that letter was an "attempt" to describe NYC "policies" with an express caveat that "each situation is unique and is reviewed independently in light of individual circumstances." General Counsel's Exhibit 5.

The Respondent was required to bargain over the substance of the disputed change. Where management changes a negotiable condition of employment without fulfilling its obligation to bargain over the change, the Authority grants a status quo ante remedy in the absence of special circumstances. For example, U.S. Department of Labor, Washington, D.C., 38 FLRA 899, 913 (1990). In these situations, "the status quo ante effectuates the purposes and policies of the Statute and ensures that the obligation to bargain is not rendered meaningless." Id.

We have rejected the Respondent's assertion that a status quo ante remedy would require reinstitution of an illegal practice. No other special circumstances are argued by the Respondent. Accordingly, as no case has been cited, and we are aware of none, where the Authority has found such special circumstances, we agree with the Judge that a status quo ante remedy is warranted here.⁽²⁾

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the United States Immigration and Naturalization Service shall:

1. Cease and desist from:

(a) Changing policies and practices governing employee parking at the New York Service Processing Center without first notifying the American Federation of Government Employees, Local 1917, AFL-CIO, the employees' exclusive bargaining representative, and affording it an opportunity to bargain concerning any proposed change in such policies and practices and the impact and implementation of such change.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Rescind the changes in the policy governing employee parking at the New York Service Processing Center made on March 31, 1989, whereby employees were forbidden to park in reserved spaces on West Houston Street, and return to the policy in effect prior thereto.

(b) Upon request, bargain with the American Federation of Government Employees, Local 1917, AFL-CIO, the employees' exclusive bargaining representative, concerning the decision to change the practice of allowing employees at the New York Service Processing Center to park in reserved spaces on West Houston Street and the impact and implementation of the change.

(c) Notify the American Federation of Government Employees, Local 1917, AFL-CIO, the employees' exclusive bargaining representative, of any intention to change its policies or practices governing employee parking at the New York Service Processing Center and, upon request, bargain concerning such change and the impact and implementation of the change.

(d) Post at the New York Service Processing Center 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 District Director for the New York District and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Boston Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT change policies and practices governing employee parking at the New York Service Processing Center without first notifying the American Federation of Government Employees, Local 1917, AFL-CIO, our employees' exclusive bargaining representative, and affording it an opportunity to bargain concerning any proposed change in such policies and practices and the impact and implementation of such change.

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 rescind the changes in the policy governing employee parking at the New York Service Processing Center made on March 31, 1989, whereby employees were forbidden to park in reserved spaces on West Houston Street, and return to the policy in effect prior thereto.

WE WILL, upon request, bargain with the American Federation of Government Employees, Local 1917, AFL-CIO, our employees' exclusive bargaining representative, concerning the decision to change the practice of allowing employees at the New York Service Processing Center to park in reserved spaces on West Houston Street and the impact and implementation of the change.

WE WILL notify the American Federation of Government Employees, Local 1917, AFL-CIO, our employees' exclusive bargaining representative, of any intention to change our policies or practices governing employee parking at the New York Service Processing Center and, upon request, bargain concerning such change and the impact and implementation of the change.

__________________________
(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 any of its provisions, they may communicate directly with the Regional Director, Boston Regional Office, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Room 1017A, Boston, MA 02222-1046, and whose telephone number is: (617) 565-7280.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. For the reasons stated below in n.2, Member Armendariz would not grant a status quo ante remedy in this case.

2. Member Armendariz finds that there are special circumstances that warrant the denial of a status quo ante remedy in this case. Such a remedy effectively directs the Respondent to allow employees to continue to use the reserved spaces for commuting purposes pending completion of negotiations. Member Armendariz finds that such a remedy is inappropriate because it requires the Respondent to return to a practice that is inconsistent with the conditions set forth by DOT for the use of such spaces, including specifically DOT's condition that no spaces are provided for vehicles used primarily for employee commuting. In Member Armendariz' view, these special circumstances warrant denial of a status quo ante remedy.

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