44:0575(49)CA - - Bureau of Engraving and Printing, Washington, DC and IAM Lodge 2135 - - 1992 FLRAdec CA - - v44 p575
[ v44 p575 ]
The decision of the Authority follows:
44 FLRA No. 49
FEDERAL LABOR RELATIONS AUTHORITY
BUREAU OF ENGRAVING AND PRINTING
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS
LODGE 2135, AFL-CIO
DECISION AND ORDER
March 26, 1992
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 to the attached decision of the Administrative Law Judge. No opposition was filed to the Respondent's exceptions.
The complaint alleges that Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally implementing a change in parking assignments without negotiating with the Union over the substance and/or impact and implementation of the change. The Judge concluded that the Respondent violated the Statute, as alleged. The Judge recommended a status quo ante remedy, which included reimbursing the parking fees paid by adversely affected unit employees.
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, as set forth fully below, 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 only to the extent consistent with this decision.
II. Background and Judge's Decision
The Respondent operates three production shifts at its facility at 14th and C Streets, Southwest, Washington, D.C.: (1) the day shift from 7 a.m. to 3 p.m.; (2) the evening shift from 3 p.m. to 11 p.m.; and (3) the midnight shift from 11 p.m. to 7 a.m. The employees in the two bargaining units represented by the Union are employed on each of the three shifts.
Prior to January 1990, the Respondent provided parking for eligible employees at two locations. One parking area was located on the Respondent's premises and was comprised of about 134 parking spaces. There was no charge to employees assigned to this lot. The employees on the two late shifts were accommodated as much as possible in this parking area because of the unavailability of on-street parking when they reported to work. The second parking area was located at a General Services Administration (GSA) parking lot located off-site at 12th and C Streets, Southwest. There are about 96 assigned spaces in the GSA lot. The employees assigned spaces in the GSA lot were charged a $17.50 per month fee in accordance with applicable GSA regulations.
Sometime in February 1989, the Respondent began developing projections on the loss of parking spaces located at its facility due to planned construction projects that were to commence in 1990. The Respondent requested additional parking spaces for employee carpools at the GSA lot and executed a purchase order for spaces at another lot located at Hogates' Restaurant at 9th and Maine Avenue, Southwest, which is approximately a 15-minute walk from the Respondent's facility. The Respondent decided to relocate virtually all day shift employee carpools and vanpools to the off-site facilities.
The Respondent advised neither the Union nor the employees of its decision to reassign day shift employee carpools and vanpools to off-site facilities. Sometime on or about November 17, 1989, the Respondent issued its bulletin for the 1990 Parking Open Season. The bulletin contained the usual procedures for obtaining parking permits, and did not mention that free on-site parking had been virtually eliminated for day shift employee carpools and vanpools.
Sometime in early January 1990, without notice or bargaining with the Union, the Respondent reassigned 84 day shift employee carpools and vanpools from the free on-site location to the two off-site locations. Thus, while the Respondent had allocated 92 spaces in 1989 for on-site day shift employee carpools and vanpools, only 8 on-site spaces were allocated to those employees in 1990. Unit employees who had been parking at the GSA lot for a fee were bumped during this reassignment to the Hogates' Restaurant lot. On or about January 17, 1990, when the Union learned of the reassignments, it demanded bargaining. The Respondent ignored the Union's bargaining request. The change in parking became effective on February 1, 1990. However, because the planned construction had not begun, the Respondent notified employees on February 23, 1990, that it was temporarily reopening the free on-site parking for carpools and vanpools. The Respondent made the availability of this temporary on-site parking subject to the employee's carpool ranking, and those accepting a space had no guarantee that an off-site space would be available once the on-site parking was again closed. The Respondent implemented this subsequent offer of temporary on-site parking without notice or bargaining with the Union.
The Respondent contended before the Judge that it did not change established working conditions of unit employees with respect to the assignment of employee parking. The Respondent asserted that the method of assigning parking to employees did not change and that it followed the same practices in assigning parking spaces in 1990 as it had utilized in prior years. The Respondent contended that it was not required to negotiate over the substance of the 1990 parking program because the Union had waived its right to negotiate when it failed to request bargaining over a parking regulation issued in 1986. The Respondent's assertion that the Union failed to request bargaining was not contested by the Union. The Respondent offered into evidence a routing slip dated April 1, 1986, that was attached to the proposed 1986 parking regulation. This routing slip, which was from the Respondent's Labor Relations Officer and addressed to all the unions at the facility, requested comments from such unions by April 12, 1986, on the proposed regulation. Respondent Exhibit No. 16. The Respondent asserted that "virtually nothing changed" with the implementation of the 1990 parking program. Judge's decision at 4.
The Judge found that "the issue here does not involve the mechanics of how parking assignments to bargaining unit employees were made, but instead involves the ripple effect the assignments from on-site parking to off-site parking had on the conditions of employment of bargaining unit employees." Id. The Judge noted that the Authority has consistently found that parking constitutes a substantively negotiable condition of employment, and that, where a substantively negotiable matter is involved, the de minimis standard does not apply.
The Judge rejected the Respondent's contention that virtually nothing changed with the implementation of the 1990 parking program. Rather, the Judge found that some employees who had parked free on-site for years were reassigned to off-site parking locations that either required them to pay a monthly fee or were a greater distance from the Respondent's facility, and that other employees were required to move from the GSA lot to the Hogates' Restaurant location, which was further away from the workplace and presented some safety concerns.
The Judge noted that the Authority has found that an agency violates section 7116(a)(1) and (5) of the Statute when it changes parking arrangements without providing the exclusive representative with prior notice and the opportunity to negotiate over the change. The Judge noted that the Respondent did not deny that it gave no notice to the Union in this matter.
In response to the Respondent's argument that it was not required to negotiate the substance of the 1990 parking program because the Union had waived its rights to bargain over that matter when it failed to request bargaining over a parking regulation the Respondent had implemented in 1986, the Judge stated that, under Authority case law, waivers must be clear and unmistakable and established either expressly or by bargaining history. The Judge found that the Union's failure to request bargaining over the 1986 parking regulation was not a waiver by past practice. The Judge also found that the language of the 1986 parking regulation did not waive the Union's right to negotiate over the change in parking assignments. The Judge found that the regulation does not address the issue of this case, which he defined as "relocating parkers from on-site to off-site facilities due to construction." Id. at 5. The Judge also found that the regulation does not mention or otherwise limit the Union's bargaining rights over parking.
Accordingly, the Judge concluded that the Respondent's failure to notify and negotiate with the Union concerning unilateral changes in the 1990 parking program was a violation of the Statute. The Judge recommended a status quo ante remedy, including make-whole relief for affected bargaining unit employees.
III. Respondent's Exceptions
The Respondent first contends that the Judge improperly excluded evidence concerning the Union's bad faith in negotiations over the parking program that occurred after the charge was filed. The Respondent maintains that the excluded evidence was relevant and material as a possible defense and in mitigation of the alleged unfair labor practice. The Respondent cites the Authority decision in Action, 26 FLRA 299 (1987), in support of its position. The Respondent argues that in Action the Authority ruled that the subsequent execution of a collective bargaining agreement by the parties does not affect the General Counsel's prima facie case regarding an earlier refusal to bargain. The Respondent notes that the Authority found that "the terms and execution of the subsequent collective bargaining agreement could be raised by the respondent in response to the prima facie case as a defense or in mitigation." Exceptions at 8.
Next, the Respondent contends that the Judge improperly concluded that the Respondent changed established working conditions of bargaining unit employees when it assigned parking under the 1990 parking program. The Respondent contends that the principal inquiry regarding the issue of change in the parking program involves the methodology of assigning parking to Respondent employees. It argues that the same methodology has been used since 1986.
The Respondent further contends that the Judge improperly concluded that the Union did not waive its right to bargain over the substance of the 1990 parking program. The Respondent notes that the Authority has held that a waiver of bargaining rights, whether by express agreement, bargaining history or inaction, is a legitimate defense to a charge of refusal to bargain. It argues that the facts reflect that: (1) in 1986 the Union was notified of management's decision to change the then-existing parking regulation; (2) the Union did not request bargaining over this new regulation, which, the Respondent contends, contains language giving the Respondent the right to cancel any parking spaces without notice because of Agency requirements, including construction and modernization, without requiring the Respondent to provide alternative parking to carpools displaced by such cancellations; and (3) the Union did not request bargaining over employee parking for the next three years, during which time bargaining unit employees were denied on-site parking and issued parking at the GSA lot. Accordingly, the Respondent contends that it is clear that the Union waived its right to bargain regarding changes in the assignment of parking.
Finally, the Respondent contends that the Judge improperly ordered a status quo ante remedy as relief for the alleged unfair labor practice and that his order of monetary relief is also inappropriate. The Respondent asserts that special circumstances exist that make a status quo ante remedy not warranted or appropriate. The Respondent argues that a return to the status quo would disrupt and impair the effective conduct of its operation because permanent construction has taken place that has eliminated certain on-site employee parking. It claims that although some parking may be returned at a later date, approximately 50 to 60 percent of the parking has been permanently lost. The Respondent also argues that re-allocating parking from the evening and midnight shift employees to afford on-site parking for day shift parking would also be disruptive to its operations because the availability of on-site parking for evening and midnight shift employees is necessary to continued efficient Agency operations. The Respondent notes that there is an absence of adequate off-site parking and a lack of public transportation after hours for the employees on these two shifts. The Respondent also contends that any restoration of parking for the bargaining unit employees represented by the Union would adversely affect and be disruptive to existing relations between it and other labor organizations representing other bargaining units of its employees.
The Respondent maintains that it would be inappropriate to award the reimbursement of parking fees to unit employees. The Respondent notes that an employee must mitigate damages and limit the Government's liability. It contends that the evidence reflects that bargaining unit employees failed to mitigate their damages.
IV. Analysis and Conclusions
A. No Prejudicial Error was Committed by the Judge by Excluding Evidence of Post-Charge Conduct
We find that the Judge did not commit prejudicial error by excluding evidence of post-charge conduct. The Respondent contends that the excluded evidence would show that the Respondent attempted to negotiate with the Union concerning the 1990 parking program three months after the charge was filed but that the Union refused to negotiate, thus displaying the Union's bad faith. The Respondent maintains that this alleged bad faith was relevant and material to its defense.
The Authority has found that an agency's belated offers to bargain concerning a change in working conditions, especially where there was no advance notice to the union of the change, does not satisfy the agency's obligation to bargain under the Statute. Air Force Accounting and Finance Center, Denver, Colorado, 42 FLRA 1196, 1207 (1991). Further, the Authority has found that a union is under no obligation to respond to such belated offers to bargain. Id. In sum, events that take place after a unilateral implementation of a change in conditions of employment are irrelevant to a determination of whether a violation of the Statute resulted from the unilateral action. See U.S. Department of Transportation and Federal Aviation Administration, 40 FLRA 690, 705 (1991) petition for review filed sub nom. Professional Airways Systems Specialists Division, District No. 1-MEBA/NMU, AFL-CIO v. FLRA, No. 91-1310 (D.C. Cir. June 23, 1991).
We reject the Respondent's reliance on Action to argue that the Judge should have considered the evidence "as a defense or in mitigation." Exceptions at 8. In that case, which involved the respondent's alleged unlawful refusal to bargain over travel and per diem in response to the union's demand, there was no objection made to the introduction of a subsequent bargaining agreement between the parties that contained a zipper clause but did not mention travel and per diem. Indeed, it was the General Counsel who had submitted the bargaining agreement into evidence. Thus, in contrast to this case, there was no issue before the Authority in Action concerning the admissibility of the evidence. Moreover, although in Action it was at least arguable that the express terms of the subsequent bargaining agreement, which was retroactive to a date one month after the alleged refusal to bargain, could serve to mitigate any remedy imposed on the respondent, no such argument is available to the Respondent in this case.
Accordingly, we find that the exclusion of evidence concerning events that occurred months after the alleged violation and the filing of the charge in this case are not relevant or material to our determination of whether the Respondent violated the Statute when it unilaterally, and without notice to the Union, changed its parking program.
B. The Union Waived Its Right to Bargain over the Respondent's Decision to Change Parking Assignments
Initially, we note, as did the Judge, that the Authority consistently has found that the provision of parking for employees is a negotiable condition of employment. See, for example, United States Immigration and Naturalization Service, 43 FLRA 3 (1991) (INS), petition for review filed sub nom. United States Department of Justice, Immigration and Naturalization Service v. FLRA, No. 91-4210 (2d Cir. Dec. 26, 1991) We disagree with the Respondent's contention that it did not change its parking program when it eliminated free on-site parking spaces at its facility. Thus, we conclude that the abrupt reassignment of parking spaces went beyond the established "methodology of assigning parking," as the Respondent asserts. Exceptions at 10. However, we further conclude that the Union waived its right to bargain over that change.
A waiver of a union's statutory right to bargain must be clear and unmistakable. U.S. Department of the Treasury, Customs Service, Washington, D.C. and Customs Service, Northeast Region, Boston, Massachusetts, 38 FLRA 770, 784 (1990). A union can waive its right to bargain by failing to request bargaining when an agency has given it sufficient notice of a proposed change in a condition of employment. See, for example, U.S. Immigration and Naturalization Service, 24 FLRA 786, 790-91 (1986) (agency satisfied its bargaining obligation when it implemented revised procedures after providing notice and an opportunity to union to submit bargaining proposals, but union failed to act). Here, there is no question that the Respondent's 1986 parking regulation, over which the Union failed to exercise its right to request bargaining, set forth the requirements and procedures for assigning employee parking at the Respondent's facility. Specifically, as relevant here, the regulation provides at paragraph 5-12-4f:
Liability. Since parking in Bureau controlled parking areas is granted as a privilege rather than as a right, those who accept this parking privilege, do so at their own risk. The Bureau maintains the right to cancel any space(s) without notice and has no obligation to provide alternate parking. . . .
Respondent Exhibit No. 4. Further, paragraph 5-12-5c states:
Assignment Period. The assignment of parking spaces is made for a period of one year, beginning on the first working day in January concurrent with the return from year-end shutdown (YES). Exceptions will be made as Bureau construction/modernization requirements or other circumstances dictate.
Id. Based on this language, we find that the decision by the Respondent to eliminate employee parking spaces because of construction at its facility without notifying or bargaining with the Union is permitted by the regulation, which reserves to management the right to eliminate any parking spaces because of agency requirements. Moreover, although parking assignments are generally made for a year, there is a specific exception to that policy where construction and modernization require the elimination of parking. The Union could have bargained over these matters when the Respondent promulgated its parking regulation in 1986, but it chose not to do so. By its inaction at that time, the Union waived its right to object when the Respondent exercised its right to implement its new parking policy. Compare Air Force Accounting and Finance Center, Lowry Air Force Base, Denver, Colorado, 42 FLRA 1226, 1239-40 (1991) (union did not waive its right to bargain over impact and implementation of agency's decision to adjust employee arrival and departure times where nothing in agency regulation, over which union failed to bargain, demonstrated a waiver of union's right to be notified about or to bargain over the matter). Consequently, we conclude that the Respondent did not have to negotiate with the Union over its decision to eliminate parking for bargaining unit employees represented by the Union.
C. The Union Did Not Waive Its Right to Bargain over the Impact and Implementation of the Respondent's Decision
We find that the Union did not clearly and unmistakably waive its right to bargain over matters concerning the impact and implementation of the change in parking arrangements that were not covered by the 1986 regulation. When a union waives its right to bargain over the substance of a management decision to change a condition of employment it does not necessarily waive its right to bargain concerning the impact or implementation of that decision. See U.S. Department of Labor, Occupational Safety and Health Administration, Chicago, Illinois, 19 FLRA 454 (1985) (under the parties' agreement union waived certain rights to bargain over the decision to change the manner in which government-owned vehicles would be assigned, but did not clearly and unmistakably waive its right to bargain over procedures and appropriate arrangements); Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 22 FLRA 502, 504-05 (1986) (union waived its right to bargain over the substance of the change in policy by agreeing to the terms of the parties' agreement, but there was no clear and unmistakable waiver of union's right to bargain over the procedures that the agency would observe in exercising its authority with regard to the change). See also Challenge-Cook Brothers, 282 NLRB 21 (1986), enf'd 843 F.2d 230 (6th Cir. 1988) (union waived its right to bargain over the employer's decision to make unilateral transfers of work from one plant to another when it agreed to the management's right clause in the parties' collective bargaining agreement but, as that clause was completely silent with respect to the effects of a relocation decision, union did not relinquish its right to bargain over the effects of the employer's unilateral acts).
Here, we find that the Respondent's 1986 parking regulation does not address the full range of impact and implementation issues stemming from management's decision to eliminate parking spaces when Agency requirements necessitate such action. We recognize that under the regulation the Respondent was not obligated to provide "alternate parking" to displaced carpools and vanpools. Nevertheless, when the Respondent decided to provide alternative parking that decision raised a number of impact and implementation issues that are not covered by the regulation. Accordingly, we find that if this change in parking arrangements had more than a de minimis effect on the bargaining unit, the Respondent was obligated to engage in impact and implementation bargaining when, after it eliminated virtually all free on-site parking for day shift employee carpools and vanpools, it provided alternative parking for those employees who were displaced by its actions and subsequently reinstated temporary free on-site parking. See, generally, Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986) (SSA) (an agency must bargain concerning the impact and implementation of a change that has more than a de minimis impact on unit employees).
To determine whether a change has more than a de minimis impact on unit employees, the Authority examines the record to determine the extent of the effect or reasonably foreseeable effect of the change on conditions of employment. SSA, 24 FLRA at 407-08. Applying that standard to this case, we find that the Respondent's change in its parking arrangements had more than a de minimis impact on employees' conditions of employment. The record shows that the free on-site parking is in a secured area and that employees have a relatively easy access to their vehicles if circumstances required them to leave the worksite during their shift. The alternative parking at the Hogates' Restaurant lot was not secured, except for a parking attendant. Further, the record shows that the Hogates' lot was .7 of a mile from the Respondent's facility, a 15-minute walk. At the hearing, the Union President testified that parking at the Hogates' Restaurant lot raises concerns regarding security at the lot for vehicles and employees, and of dangers associated with the walk from the lot to the worksite, particularly when it is dark outside. Further, the Respondent's subsequent offer to employees of temporary on-site parking left the employees who accepted the offer with the possibility of having no parking available to them once they were again displaced. Thus, the changes had more than a de minimis effect on the employees. Consequently, the Union had a right to present proposals addressing the impact and implementation of the changes.
Accordingly, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute when it unilaterally implemented changes in its parking arrangements without first notifying the Union and affording the Union an opportunity to bargain concerning procedures and appropriate arrangements for unit employees adversely affected by such changes in parking arrangements.
We find that a status quo ante remedy is not warranted or appropriate in the circumstances of this case. Further, we find that bargaining unit employees should not be reimbursed for parking fees paid as a result of the changes.
In Federal Correctional Institution, 8 FLRA 604 (1982) (FCI) the Authority set forth factors to be considered in each case to determine whether a status quo ante remedy is warranted for a refusal or failure to bargain over procedures and appropriate arrangements that management will observe in exercising its rights under the Statute. Under the FCI criteria, the Authority considers, among other things: (1) whether, and when, notice was given to the union by the agency; (2) whether, and when, the union requested bargaining; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. Id. at 606.
Here, the Respondent failed to give the Union notice that, due to construction at its facility, it was virtually eliminating free on-site parking for day shift employee carpools and vanpools even though its planning for the elimination of those spaces began well in advance of the implementation date. The Union demanded bargaining as soon as it learned of the reassignment of day shift employee carpools and vanpools to the two off-site locations. However, the effects on employees who were adversely affected, although not de minimis, were not severe. In contrast, a status quo ante remedy would place a distinct burden on the efficiency of the Respondent's operations.
In order to restore the on-site parking for use by bargaining unit employees as it existed prior to February 1, 1990, the Respondent would have to arrange either to reinstate the eliminated spaces or bump other employees from those remaining spaces. The record reflects that the spaces could not be reinstated without disrupting the construction that is in progress. In addition, the Respondent contends that the construction will permanently eliminate approximately 50 to 60 percent of the on-site parking, thus making it impractical to reinstitute parking for bargaining unit employees without modifying the construction plans or, if construction has been completed, by removing the new construction. Further, it appears that there is a real concern about having available on-site parking for employees on the evening and midnight shifts. Because the Respondent's operation requires overlapping shifts, the record reflects that employees on the late shifts have only limited alternative parking available. The parking at the GSA lot, for example, would be occupied by the day shift employees when the evening shift employees begin arriving at 2:00 p.m. and conversely, must be vacant when the day shift employees arrive in t