44:0427(37)AR - - VA Medical Center, Atlanta, GA and NFFE Local 2102 - - 1992 FLRAdec AR - - v44 p427
[ v44 p427 ]
The decision of the Authority follows:
44 FLRA No. 37
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
March 17, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Thomas E. Greef filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The Union filed a grievance protesting parking fees established by the Agency. The Arbitrator concluded that the Agency violated applicable regulations in its establishment of the parking fees.
For the following reasons, we conclude that the Agency has not demonstrated that the award is deficient. Accordingly, the Agency's exceptions will be denied.
The Agency is completing construction on a parking garage for use by employees and visitors at its Atlanta
facility. Under 38 U.S.C. § 8109(d) (formerly 38 U.S.C. § 5009(d)), the Secretary of Veterans Affairs is required to establish parking fees for garages that, among other things, exceed the cost of $500,000. Section 1.303(b)(1) of Title 38 of the Code of Federal Regulations sets forth how the Secretary will determine the fees for such garages. That section provides, in pertinent part, as follows:
(b) Fees. (1) . . . VA will assess VA employees, contractor employees, tenant employees, visitors, and other individuals having business at a VA medical facility where VA parking facilities are available, a parking fee for the use of that parking facility. All parking fees shall be set at a rate which shall be equivalent to one-half of the appropriate fair rental value (i.e., monthly, weekly, daily, hourly) for the use of equivalent commercial space in the vicinity of the medical facility . . . . The Secretary will determine the fair market rental value through use of generally accepted appraisal techniques. If the appraisal establishes that there is no comparable commercial rate because of the absence of commercial parking facilities within a two-mile radius of the medical facility, then the rate established shall not be less than the lowest rate charged for parking at the VA medical facility with the lowest established parking fees.
38 C.F.R. § 1.303(b)(1).
Because the Atlanta garage construction cost exceeded $500,000, the Agency, pursuant to 38 C.F.R. § 1.303(b)(1), contracted for an appraisal of similar commercial parking garages in the vicinity "in order to arrive at fair and equitable [parking] rates." Award at 4. The Appraiser's Report, dated September 28, 1990, found that the fair market value rental rate for commercial parking in the vicinity was "$28.00 per month." Id. at 5. On November 27, 1990, based on the Appraiser's Report and 38 C.F.R. § 1.303(b)(1), the Secretary established the parking rates at one-half of the commercial rates found by the appraiser. The rates established were: (1) monthly, $14.00; (2) weekly, $7.50; (3) daily, $1.75; and (4) hourly, $.60. The parking rates became effective on June 17, 1991. On January 18, 1991, the Union filed a grievance protesting the parking fees. The grievance was denied and the Union invoked arbitration.
III. Arbitrator's Award
The Arbitrator stated that the issue was: "Are the parking rates charged to employees and visitors to the [Agency] correct based on the September, 1990 appraisal and applicable [F]ederal law? If not, what is the appropriate remedy?" Id. at 5-6.
The Arbitrator stated that this case required him to "carefully read and interpret the intent of applicable Federal law, administrative practices, memoranda and procedures." Id. at 22. The Arbitrator considered 38 U.S.C. § 5009 (now 38 U.S.C. § 8109) and stated that there was "no disagreement between the Agency and the Union that the [Secretary] has the responsibility to establish parking rates"; rather, the "disagreement between the [parties] revolves around the question of what are 'reasonable' rates." Id. at 23. The Arbitrator stated that 38 C.F.R. § 1.303(b)(1) provides "how reasonable fees are to be determined" by the Secretary. Id. The Arbitrator considered this regulation and noted, in part, that the Secretary "is charged to determine the fair market value through the use of generally accepted appraisal techniques." Id. The Arbitrator stated that 38 C.F.R. § 1.303 makes it "patently clear [that] the apprais[e]r is to survey comparable commercial parking only with[in] a two (2) mile radius" and that "[a]bsent any comparable commercial parking within the two (2) mile radius, parking rates are to be established at not less than the lowest rate charged for parking at any VA medical facility." Id. at 24 (emphasis in original).
The Arbitrator found that the testimony of the appraiser and Agency witnesses revealed that the "three commercial facilities [listed in the apprais[e]r's] study were not within the two mile radius." Id. at 23 (emphasis in original). The Arbitrator noted that an "arbitrator is bound to observe and require compliance with all controlling laws, rules, and regulations which have been established by and promulgated by the Agency." Id. at 24.
The Arbitrator further examined an Agency memorandum dated June 17, 1991, wherein the Agency listed guidelines for "making the fair market appraisal." Id. at 25. The Arbitrator noted that a section of this memorandum was "very explicit" in the items which must be included in the Appraiser's Report, "stating that if no commercial parking is available within the two (2) mile radius, the apprais[e]r is to state that commercial parking is not available." Id. The Arbitrator found that "[t]his was not done in the Appraisal Report." Id. (emphasis in original). The Arbitrator also noted that the appraisal report did not comply with another section of this memorandum which required that the "fair rental rate that the parking facility would bring, absent VA use, . . . be included" in the report. Id. The Arbitrator found, therefore, that commercial parking was not available within two miles of the Atlanta facility and that the appraisal was not conducted in accordance with the Agency's June 17 memorandum. Consequently, the Arbitrator found that the parking rates established by the Agency were "not in accordance" with 38 C.F.R. § 1.303. Id. at 26.
The Arbitrator also found, based on a letter to the Director of the Agency's facility from the Agency's Acting Associate Chief, Medical Director for Operations, that the Agency requires that a "parking policy which is developed must be supplied to the unions for their review." Id. at 24 (emphasis in original). The Arbitrator further found, based on the same letter, that "the union [must] have an opportunity to bargain on the impact and fee collection procedure prior . . . to implementing parking fee collection." Id. (emphasis in original). The Arbitrator found that the "local [U]nion was not afforded the opportunity to bargain on the impact and fee collection procedures prior to [the] implement[ation of] the parking fee collection." Id. at 26.
As his award, the Arbitrator ordered, "in accordance with" 38 C.F.R. § 1.303, that "the rate for parking at the [Agency] shall be not less than the lowest rate charged at any VA medical facility." Id. at 27. The Arbitrator stated that "[s]hould that rate be lower than the current rate at the [Agency], employees shall be reimbursed back to June 17, 1991, provided that proper parking receipts are available." Id. The Arbitrator retained jurisdiction of the matter until the parties execute a joint letter showing agreement on parking rates. The Arbitrator also provided in the order that, if the parties did not reach agreement within sixty days of the award, he would set a further meeting and establish the rates.
IV. Positions of the Parties
A. Agency's Exceptions
The Agency asserts that the award is contrary to 38 C.F.R. § 1.303(b) because it: (1) imposes a ceiling on the parking fees; and (2) finds that there was no comparable commercial rate. As to its first contention, the Agency argues that the Arbitrator "erred by finding that the . . . regulation required the rate to be set no higher than the lowest VA parking rate." Exceptions at 4 (emphasis in original). According to the Agency, the "regulation states that where there is a finding of no comparable commercial rate, the rate 'shall be not less than' the lowest VA parking rate." Id. In view of this language, the Agency contends that the "regulation plainly allows a higher rate; however[,] the arbitration award precludes the establishment of a higher rate." Id.
As to its second contention, the Agency asserts that the Arbitrator "erred by finding that under [38 C.F.R. § 1.303(b)], the appraisal improperly found a comparable commercial rate because there were no commercial parking facilities within two miles of the [medical facility]." Id. The Agency argues that the appraisal, in accordance with generally accepted appraisal techniques and the Agency regulation, "specifically found a comparable commercial rate." Id. The Agency contends that the regulation "does not require the appraisal to find that there is no comparable commercial rate in the absence of commercial facilities within two miles[.]" Id. (emphasis in original). Rather, the Agency claims that the regulation "merely permits such a finding." Id. The Agency contends that the appraisal found a comparable commercial rate, "despite the absence of commercial facilities within two miles," and, therefore, the Arbitrator "erred" in finding that the Agency did not comply with 38 C.F.R. § 1.303(b) in establishing parking rates. Id. at 4 and 5.
B. Union's Opposition
The Union contends that the award does not conflict with 38 C.F.R. § 1.303(b)(1). Rather, according to the Union, the award "enforces Agency regulations on those who would violate them." Opposition at 3 (emphasis in original). The Union disputes the Agency's assertion that the award requires the parking rate to be set "no higher than the lowest VA parking rate." Id. at 5 (quoting Agency's exceptions). Noting the wording of the Arbitrator's order, the Union states that the Agency's assertion is "simply untrue." Id.
As to the Agency's contention concerning the comparable commercial rate, the Union contends that the regulation is "clear and unequivocal[,]" and the Agency's reading of it is "baffling." Id. at 6. The Union states that if the Agency "intended that appraisers be given some leeway with the two-mile radius, the regulation could have so provided. It did not." Id. The Union also contends that the Agency "reinforced the two-mile radius requirement in its Guidelines for Performing Appraisals." Id. The Union asserts that an agency is "bound by its own properly promulgated rules." Id. at 7. Further, the Union contends that the parties have agreed to abide by the Arbitrator's interpretation. Citing Article 7, Section 6 of the parties' agreement, the Union contends that the Arbitrator has authority "'to resolve any questions of arbitrability and interpret and define explicit terms of this Agreement, Veterans Administration policy, or controlling law or regulation, as necessary to render a decision.'" Id. at 7-8 (quoting Award at 11). The Union asserts that the Agency's exceptions constitute "no more than a disagreement with the Arbitrator['s award] and an attempt to relitigate the merits of the grievance." Id. at 8.
V. Analysis and Conclusions
We conclude that the Agency has failed to establish that the award is deficient.
Absent circumstances not relevant in this case, an arbitration award that conflicts with a governing agency rule or regulation will be found deficient under section 7122(a)(1) of the Statute. U.S. Department of the Treasury, Internal Revenue Service, Ogden Service Center, Ogden, Utah and National Treasury Employees Union, Chapter 67, 42 FLRA 1034, 1056 (1991) (citing U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990)).
We find that the Agency has failed to establish that the Arbitrator's award conflicts with 38 C.F.R. § 1.303(b)(1). It is clear that the Agency's interpretation of 38 C.F.R. § 1.303(b)(1) differs from the Arbitrator's. However, noting the wording of this regulation, we are not persuaded by the Agency's contention that the Arbitrator erred because the regulation "merely permits" rather than requires a finding that there is no comparable commercial rate in the absence of commercial facilities within two miles of the Agency's facility. Exceptions at 4. The regulation specifically states how the parking rate must be established "[i]f the appraisal establishes that there is no comparable commercial rate because of the absence of [comparable] commercial parking facilities within a two-mile radius of the medical facility[.]" 38 C.F.R. § 1.303(b)(1).
The Arbitrator determined that, under this regulation, "[a]bsent any comparable commercial parking within the two (2) mile radius [of the medical facility], parking rates are to be established at not less than the lowest rate charged for parking at any VA medical facility." Award at 24. The Agency has not show