48:1224(130)NG - - AFGE, Local 2782 and Commerce, Bureau of the Census - - 1993 FLRAdec NG - - v48 p1224
[ v48 p1224 ]
The decision of the Authority follows:
48 FLA No. 130
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 2782
U.S. DEPARTMENT OF COMMERCE
BUREAU OF THE CENSUS
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
December 28, 1993
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), and concerns the negotiability of a proposal obligating the Agency to allocate a reserved parking space for the Union's use. For the following reasons, we find that the proposal is negotiable.
The UNION will have five (5) card keys. One will be for reserved Union parking under Building II and four card keys for the parking garage.
[Only the underlined portion is in dispute.]
III. Positions of the Parties
The Agency contends that the disputed portion of the proposal is inconsistent with portions of the Federal Property Management Regulations (FPMR), 41 C.F.R. §§ 101-20.104.1 and 101-20.104.2, which, according to the Agency, establish priorities for allocating parking spaces.(1) The Agency states that, of the 33 reserved parking spaces it controls under Building II, it has assigned 24 spaces to Government vehicles, handicapped employees, and executive personnel, in accordance with the priorities set forth in the FPMR. The Agency argues that, as the FPMR requires remaining spaces to be assigned first to carpools, the proposal would violate the applicable parts of the FPMR because, "if there are more carpools than available parking spaces under [Building II], the Agency would have to first assign one space for the use of the Union and deny a space to a carpool." Statement of Position at 6. The Agency asserts that, "if in the future additional handicapped or executive personnel are assigned to [Building II], the Agency would be in the untenable position of either having to disregard the FPMR or its agreement with the Union." Id. at 6-7 (footnote omitted).
The Union asserts that the disputed portion of the proposal can be applied consistent with the FPMR. The Union contends that, if the 33 parking spaces controlled by the Agency under Building II were filled as prescribed by the regulation, the Agency could arrange through the General Services Administration (GSA) to obtain an additional space to comply with the proposal. Additionally, in the Union's view, the FPMR "does not address preferred locations, but only whether an individual in the mandated priority will be provided a space[.]" Reply Brief at 11 (emphasis in original). According to the Union, the Agency could comply with the proposal and the FPMR by assigning employees entitled to reserved parking to spaces located in a general parking area controlled by the Agency.
IV. Analysis and Conclusions
At the outset, we note that the portions of the FPMR establishing the allocation and assignment of parking spaces are Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. See, for example, Coordinating Committee of Unions and Department of the Treasury, Bureau of Engraving and Printing, 29 FLA 1436, 1440 (1987) (Bureau of Engraving). We also note, however, that, although the regulations govern the allocation and assignment of reserved parking spaces, they do not address the location of those spaces.
The record discloses that the Agency controls a total of 335 parking spaces in parking areas at the Agency's location, of which 33 spaces are under Building II. Although the Agency has allocated and assigned 24 of the 33 spaces under Building II in accordance with the FPMR's reserved parking priorities, there is no assertion that the Agency has allocated and assigned any remaining spaces. Moreover, as noted above, the FPMR does not specify any particular location for such reserved parking, and there is no argument, or other basis on which to conclude, that parking spaces other than those under Building II could not be allocated and assigned in accordance with the FPMR. Therefore, noting the Agency's statements that it has allocated and assigned only 24 of the 33 spaces it controls under Building II, and that remaining parking at the Agency's location provides ample parking for all employees, we find that the Agency has not demonstrated that it could not both accommodate the disputed portion of the proposal, seeking one of the 33 spaces under Building II for use by the Union, and comply with the FPMR. As the Agency has not supported its claim that the disputed part of the proposal is inconsistent with the FPMR, and as no other basis on which to find the proposal nonnegotiable is argued or apparent, it is negotiable. See Bureau of Engraving, 29 FLRA at 1441.
The Agency shall, upon request or as otherwise agreed to by the parties, bargain on the disputed portion of the proposal.(2)
(If blank, the decision does not have footnotes.)
1. Under 41 C.F.R. § 101-20.104.1, reserved parking spaces are first allocated to meet official needs. Remaining reserved parking spaces are assigned in accordance with section 101-20.104.2(d), which provides in pertinent part:
Agencies shall . . . 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&nb