[ v58 p722 ]
58 FLRA No. 172
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
REGION II, BUFFALO OFFICE OF
HEARINGS AND APPEALS
BUFFALO, NEW YORK
ASSOCIATION OF ADMINISTRATIVE LAW
JUDGES, INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
DECISION AND ORDER
July 22, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions and a cross-exception. Also, the National Treasury Employees Union (NTEU) filed an amicus curiae brief.
The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing a decision to no longer provide free monthly parking permits to Administrative Law Judges (ALJs) without providing the Union with an opportunity to bargain to the extent required by law.
The Judge concluded that the Respondent violated the Statute as alleged by its refusal to bargain and by its unilateral implementation of its decision to withdraw free parking privileges for all ALJs in the Buffalo Office of Hearings and Appeals (Buffalo OHA). As a remedy, the Judge recommended that the Respondent restore the status quo ante by providing free parking passes to all ALJs who request them. The Judge also recommended a notice posting at all OHAs in the same region.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order to the extent consistent with this decision.
On October 1, 1999, the Association of Administrative Law Judges, International Federation of Professional and Technical Engineers, AFL-CIO (the Union) was certified as the exclusive representative of a nationwide unit of all ALJs in the OHAs of SSA. Two other labor organizations, the American Federation of Government Employees (AFGE) and the NTEU, represent administrative staff and attorneys, respectively, in the Buffalo OHA.
On March 27, 2000, SSA and the Union signed an interim agreement that governed their actions pending the execution of their master collective bargaining agreement, which subsequently occurred on August 30, 2001. Neither the interim nor the master agreement addressed any parking issues. However, the master agreement stated that the parties agreed to continue negotiating on the facilities and services article, which would cover parking issues, for the next six months. See Transcript at 28, 30-31; Joint Exhibit 3.
On April 9, 2001, the Buffalo OHA Director issued a memo notifying all employees of a new distribution order for parking passes at the Buffalo OHA. On May 1, 2001, the Respondent discontinued providing free parking passes to nine ALJs in the Buffalo OHA. Three of the nine ALJs subsequently received passes as handicapped persons and the Union was provided with one parking permit that was rotated among the ALJs. The Union did not receive written notice of this change.
The Judge concluded that the Respondent violated the Statute as alleged by its refusal to bargain and by its unilateral implementation of its decision to withdraw free parking privileges for all ALJs in the Buffalo OHA. The Judge found that Article 9, Section 4 of the parties' interim agreement, which was in effect when the Respondent discontinued the ALJs' free parking, provided for negotiations at the local level for "changes affecting a single OHA." [n2] Judge's Decision at 4. The Judge also noted that Article 9, Section 4 of the interim agreement provided for bargaining at the national level for "nation-wide or multi-regional changes[,]" and bargaining at the regional level for "changes at more than [ v58 p723 ] one OHA[.]" Id. In this respect, the Judge found that "[i]nasmuch as the change affected only the Buffalo OHA, notice should have been given to the Buffalo Union representative[.]" Id.
The Judge rejected the Respondent's reliance on the Federal Property Management Regulations (FPMRs) for its withdrawal of the free parking passes since the Respondent had been aware of the FPMRs for years prior to this unilateral change. [n3] In this regard, the Judge found that by providing free parking to the ALJs for years, the Respondent either ignored these regulatory requirements, or considered the ALJs as executive personnel entitled to such parking under the FPMRs. The Judge also found that the Respondent's claim that the FPMRs required immediate implementation was without merit as the regulations "plainly contemplate" bargaining prior to implementation. Id. at 11. Also, under the Respondent's agreement with GSA, which "`allocated [parking spaces] on a priority basis to disabled employees, in and out business parking for program purposes, carpools, then others[,]'" the Judge found that the Respondent may have provided parking to the ALJs based on their in and out business or their status as executive employees in the "other" category. Id. at 6 (quoting Respondent's Agreement with GSA, Joint Exhibit 7, p.7). Otherwise, the Judge found that if the ALJs were not considered in any of these priority categories under its GSA agreement, then the Respondent must have ignored these requirements while it continuously provided all ALJs in Buffalo with free parking passes. The Judge found that the Respondent also disregarded its June 7, 2000 memo until April, 2001 when it terminated the ALJs' free parking in "a vindictive act, because of their union membership[.]" Id. at 12.
As a remedy, the Judge recommended that the Respondent restore the status quo ante by providing free parking passes to all ALJs who request them. The Judge also recommended that Respondent maintain the status quo until the completion of bargaining and that notice and an opportunity to bargain concerning any future change at the Buffalo OHA should be given to the Union. The Judge required a posting at all OHAs in the same region as the Buffalo OHA to be signed by the Regional Chief Administrative Judge and the Regional Hearing Office Director.
III. Positions of the Parties
A. Respondent's Exceptions
The Respondent excepts to the Judge's decision on four grounds.
First, the Respondent argues that the Judge has "ignored the [national] level of recognition applicable in this case . . . ." Exceptions at 7. The Respondent contends that Article 9 of the parties' interim agreement provides for notice and bargaining at the national level of recognition for "Agency [i]nitiatives during the [t]erm of the [i]nterim [a]greement." Id. at 9. Moreover, the Respondent argues that its actions on May 1, 2001 merely "brought [the Buffalo OHA] into full compliance" with the procedures set forth in the June 7 memo and the March 1998 Space Allocation Standards (SAS or GSA Agreement). Id. The Respondent maintains that any changes to the national parking policies in the June 7 memo must be negotiated as part of the national master agreement. [n4] The Respondent argues that bargaining at the local level is prohibited while the parties at the national level of recognition are involved in negotiations on a master contract.
Second, the Respondent argues that the Judge has "failed to recognize the controlling nature of the [FPMRs]" and the March 1998 SAS on the OHAs on a nationwide basis. Id. at 7, 11. The Respondent contends that the SAS are standards that include government-wide "regulatory requirements" that are "nationally binding [on all OHAs] until such time as [ v58 p724 ] GSA republishes them or unless they are modified" by the national master agreement. Id. at 9.
Third, the Respondent argues that the Judge's decision and restoration of the status quo "serves to continue labor strife" and "fractious labor relations at the local level" by failing to consider the direct impact on the parking benefits for the two other bargaining units represented by AFGE and NTEU at the Buffalo OHA. Exceptions at 8, 14. In this respect, the Respondent notes that "[t]he D.C. Circuit has held that attempts by a labor organization to alter the working conditions of a different labor organization were not negotiable [under] . . . the Authority's `vitally affects' test." Id. at 8 (citing Dep't of the Navy v. Federal Labor Relations Authority, 952 F.2d 1434 (D.C. Cir. 1992)).
Fourth, the Respondent argues that the region-wide posting recommended by the Judge is "overly broad and not supported by the allegations in the complaint" or the facts in the case. Id. at 13. In this respect, the Respondent argues that if the Authority upholds the Judge's finding that an ULP occurred in this case, "any employee posting should be required only in the Buffalo [OHA]," since the change in parking procedures only affected the nine ALJs in the Buffalo OHA. Id. at 14. Also, the Respondent notes that there were no allegations in the complaint that ULPs occurred in any other OHA in Region II besides Buffalo. In this respect, the Respondent argues that "the available remedy in this case [sh]ould be only a posting and a directive for the local parties to apply whatever national provisions are agreed to." Id. at 12.
B. GC's Opposition
At the outset, the GC argues that the Respondent's exceptions should be dismissed for not complying with the requirement in the Authority's Regulations that exceptions set forth all relevant facts "with specific citations to the record." Opposition at 2 (citing 5 C.F.R. § 2423.40(a)). The GC maintains that "[a]side from nominal references to a couple exhibits, [the] Respondent fails to support any of its purported facts with citations to the record or the [Judge's] Decision and Order." [n5] Id. Also, the GC argues that in line with § 2429.5, the Authority should not consider the references in the exceptions to the fact that the parties at the national level reached impasse on the facilities article (which covers parking matters) and that the issue was before FSIP. The GC maintains that such facts were not part of the official record before the Judge since at the time of the hearing the parties at the national level were still involved in active negotiations on the facilities article. Id. at 3 (citing Exceptions at 7, 10). [n6]
With respect to the merits of the Respondent's exceptions, the GC contends that the Respondent mischaracterizes the parties' interim agreement that was in effect at the time of the unilateral withdrawal of free parking for the ALJs. In this connection, the GC maintains that Article 9, section 4 of the interim agreement provides for regional and local notice depending on the area affected by the proposed change in working condition. Similarly, the GC argues that the Respondent misconstrues case law concerning its obligation to maintain the status quo pending completion of negotiations. The GC contends that "[o]nce negotiations were in progress at any level which would impact the parties locally, Respondent was obligated to maintain the status quo locally pending completion of those negotiations." Opposition at 11. Moreover, the GC maintains that if the Respondent had to implement changes at the local level, then consistent with Article 9 of the interim agreement, the Respondent was obligated to provide notice and an opportunity to bargain at the level of the change, in this case at the Buffalo OHA level.
Second, the GC contends that the GSA agreement is not a government-wide regulation, but is more accurately described as "policy guidance." Id. at 12. The GC maintains that consistent with the record, the Judge found that the policy in the June 7 memo constituted a change in past practices regarding parking priorities about which the Union was given neither notice nor an opportunity to bargain. Also, regarding the FPMRs, the GC maintains that the Judge properly found that the Respondent had knowledge of their existence for many [ v58 p725 ] years and therefore ignored or had a different interpretation of these FPMRs so as to justify free parking for the ALJs. The GC also notes that even if the Respondent was compelled to implement a previously ignored regulation, the FPMRs provide for bargaining with affected unions. Further, the GC notes that the Judge found that even though the Respondent claimed that it was compelled to withdraw the ALJs' parking in Buffalo pursuant to the regulations, the "Respondent upheld its bargaining obligation by maintaining the status quo in other OHA offices in the same region pending completion of national negotiations." Id. at 13.
Third, the GC contends that if the Respondent "had been as concerned about its labor relations with all its bargaining units[,] . . . then it would have properly bargained with all affected unions prior to implementing a change." Id. at 9. Also, the GC maintains, contrary to the Respondent's claims, that the Judge did not order bargaining on parking at the local level at the same time that negotiations on this issue were occurring at the national level. Rather, the GC contends that the Judge appropriately ordered an SQA remedy, and maintains that the Respondent may have responsibilities to bargain at the local level if the final national agreement does not fully cover issues at the local level. Id. (citing Judge's Decision at 12-13). The GC maintains that the Judge's decision is consistent with Authority case law and the parties' interim and master agreements. In addition, the GC maintains that the "`vitally affects' test is not applied when a subject is within the scope of mandatory bargaining, but instead is implicated only where a union makes a proposal that attempts to regulate the terms and conditions of employment of non-bargaining unit employees and thus would be beyond the scope of mandatory bargaining." Id. at 8.
IV. GC's Cross-Exception
The GC excepts to the Judge's "denial without explanation" of the non-traditional remedy sought by the GC at the hearing and in its post-hearing brief. Id. at 14. The GC requests, as a non-traditional remedy, that if the ALJs "lose their free parking passes after the completion of negotiations at the national level, Respondent would be ordered to provide [the ALJs] with free parking equal to the period of time [that] the parking was unlawfully rescinded (that is, a time equal to the period from May 1, 2001, to the date [the] Respondent complies with the SQA order)." Id. at 15. The GC notes that "[t]he [Judge] found and the record demonstrates that the [ALJs] incurred monetary expenses, in the form of parking fees or public transportation costs" when their parking privileges were "unlawfully rescinded." Id. at 14.
The GC maintains that in proposing this remedy, it "seek[s] a way to make the employees whole for the losses sustained due to the unlawful change[.]" Id. at 15. In this regard, the GC maintains that this remedy does not constitute money damages, but rather is an "equitable action [that] attempts to give the ALJs the very benefit to which they were entitled but for Respondent's unlawful action." Id. (citing United States Dep't of Transp., FAA, N.W. Mountain Region, Renton, Wash., 55 FLRA 293, 298 (1999)). The GC also maintains that this remedy satisfies the Authority's standard in F.E. Warren Air Force Base, Cheyenne, Wy., 52 FLRA 149, 160 (1996) for determining the appropriateness of non-traditional remedies.
V. NTEU's Amicus Curiae Brief
NTEU maintains that the Judge's SQA remedy is deficient in two respects in that it: (1) reinstates an illegal practice; and (2) negates the legal rights of the bargaining units represented by AFGE and NTEU at the Buffalo OHA.
With respect to the first claim, NTEU maintains that under the FPMRs (41 C.F.R. § 101-20.104-2), there is no basis for granting priority distribution of free parking passes to ALJs. In this respect, NTEU maintains that under the regulation, "[s]paces are lawfully allocated to `other privately owned vehicles of employees' only after assignment to handicapped employees, executive personnel, vanpool/carpools, those who work unusual hours, or privately owned vehicles regularly used at least 12 days monthly for government business." Brief at 2-3. NTEU contends that the Judge did not present any evidence that the ALJs fall under any of these categories. [n7] Also, NTEU maintains that the Judge erred in assessing the executive status of the ALJs for the purpose of the FPMRs. NTEU maintains that the Judge "apparently equated executive personnel status with polite social deference to SSA/OHA [ALJs,]" however, that "social deference cannot be confused with a legal definition of `executive.'" Id. at 3. NTEU notes that under 41 C.F.R. 101-20.003(j), "executive" is defined as "a Government employee with management responsibilities which, in the judgment of the employing agency head or his/her designee, require preferential assignment of parking privileges." In this respect, NTEU maintains that the ALJs have no managerial or supervisory functions in their positions as adjudicators for disability cases. [ v58 p726 ]
VI. Analysis and Conclusions
A. Appropriate Level of Negotiations
The Respondent maintains that the Judge erred in finding that it violated the Statute by failing to give the Union notice and an opportunity to bargain at the local level prior to discontinuing free parking privileges for ALJs in the Buffalo OHA. In this connection, the Respondent contends that Article 9 of the parties' interim agreement only provides for notice and bargaining at the national level of recognition for changes during the term of the interim agreement. We reject the Respondent's argument.
The Authority has previously held that in cases where the judge's interpretation of the meaning of the parties' collective bargaining agreement is challenged, the Authority will determine whether the judge's interpretation is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the Federal courts. United States Dep't of Energy, Western Area Power Admin., Golden, Colo., 56 FLRA 9, 12 n.7 (2000) (applied to covered by defense along with defense of contract interpretation) (citing Internal Revenue Serv., Wash., D.C., 47 FLRA 1091, 1111 (1993) (which only applied to the defense of contract interpretation)).
We find that the Judge's application and interpretation of Article 9, Section 4 (D) is supported by the record in this case. Consistent with uncontradicted testimony, the Judge found that "[t]he Buffalo OHA was the only [o]ffice in Region II where Respondent refused to maintain the . . . status quo." Judge's Decision at 10. In this respect, the record supports the Judge's findings that the Respondent agreed to maintain the status quo for ALJs in the Queens and Albany OHAs pending the completion of national contract negotiations, and that parking arrangements for ALJs did not change in any other OHA in the same region as the Buffalo OHA. Id. Therefore, we find that the Judge's interpretation that Section 4(D) required bargaining at the local level in this case is consistent with the record evidence that only ALJs in the Buffalo OHA were affected by the discontinuation of free parking passes.
In the same vein, contrary to the Respondent's assertions that the local representatives did not have any authority to bargain on local parking procedures, we find that Section 4(D) provides the necessary or appropriate delegation of authority to bargain at the local level. Cf. Dep't of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 39 FLRA 1409, 1417-18 (1991) (when exclusive recognition is at national level, the Statute does not require negotiations at any other level in the absence of an agreement between the parties or other appropriate delegation of authority).
B. Federal Property Management Regulations
The Respondent maintains that the Judge erred in disregarding the "controlling nature" of the FPMRs and the impact of Respondent's agreement with GSA on all OHAs on a nationwide basis. We reject these assertions.
We find, in agreement with the Judge, that neither the FPMRs, Respondent's agreement with GSA, nor its supplemental June 7, 2000 clarification of its GSA agreement justify the Respondent's withdrawal of free parking from the ALJs without fulfilling its bargaining obligations under the Statute. [n8] As the Judge correctly noted, the FPMRs expressly contemplate bargaining concerning the implementation of these regulations ("[i]mplementation of the provisions of this regulation may require consultation, as appropriate, with recognized labor organizations"). § 101-20.104-4(f). Thus, the FPMRs do not provide any justification for the Respondent's discontinuation of free parking for the ALJs without bargaining on the issue. However, we note that while the FPMRs do not preclude substantive negotiations over the distribution of free parking permits to ALJs, any future negotiations concerning this matter must be consistent with the FPMRs.
Also, a review of the Respondent's GSA agreement reveals that this agreement pertains to parking and facility requirements that must be met when acquiring or leasing new space for OHAs. In this case, by contrast, new space was neither acquired nor leased. The Respondent had a long-standing practice of providing free parking to ALJs in the Buffalo OHA at the same location for years. Nonetheless, even if the GSA agreement were applicable, there is nothing in the agreement that justifies or mandates the Respondent's withdrawal of such permits without fulfilling its bargaining obligations under the Statute and the FPMRs.
With regard to the June 7 memo, its stated purpose was to provide clarification of the GSA agreement and guidance regarding parking guidelines at OHAs. As relevant [ v58 p727 ] here, this memo provided for the allocation of parking spaces to bargaining unit components based on a percentage of the employees in these groups, only after the Respondent had allocated spaces to disabled employees, "in and out" program business, car pools, and executive personnel. The Respondent's proportional distribution of spaces as set forth in the June 7 memo is apparently based on § 101-20.104-2(c) of the FPMRs, which requires that
[s]pace available for employee parking will be allocated for occupant agency use on a[n] equitable basis.
Although the Respondent's proportional distribution is one example of an equitable means of distributing the parking spaces, it is not the sole method for allocating these parking spaces on an equitable basis. Thus, we find that the Respondent had an obligation to bargain with the Union in determining the equitable distribution of free parking permits to ALJs in this case that was consistent with the FPMRs.
C. Status Quo Ante Remedy
In addition, we agree with the Judge that a status quo ante remedy is appropriate in the circumstances of this case. Consistent with Authority precedent, where management changes a condition of employment without fulfilling its obligation to bargain over the substance of the decision to make the change, the Authority orders a status quo ante remedy in the absence of special circumstances. See, e.g., United States Army Corps of Engineers, Memphis District, Memphis, Tenn., 53 FLRA 79, 84 (1997). In this respect, a respondent claiming special circumstances bears the burden of establishing that they exist. Id. at 85.
The Respondent maintains that restoration of the status quo "serves to continue labor strife" by failing to consider the direct impact on the parking benefits for the two other bargaining units represented by AFGE and NTEU at the Buffalo OHA. Also, in its amicus brief, NTEU contends that restoration of the status quo would reinstate an illegal practice under the FPMRs as the ALJs in general do not satisfy the criteria for "executive personnel" under the FPMRs. NTEU also maintains that the status quo remedy would negate the rights of the units represented by NTEU and AFGE to their proportional share of free parking permits.
The claims advanced by the Respondent and NTEU do not establish special circumstances for not imposing a status quo ante remedy. The Respondent had an obligation to bargain with the Union over its decision to terminate free parking privileges for the ALJs prior to implementation. Further, the fact that the Respondent had bargaining obligations with more than one labor organization regarding parking privileges does not justify not imposing an SQA order.
In addition, NTEU has not established that the status quo ante remedy would reinstate an illegal practice under the FPMRs. As relevant here, the Judge found that the Respondent may have provided parking to the ALJs based on consideration with in and out business or as executive employees in the "other" category. Contrary to the Judge's findings, we conclude that in light of their status as unit employees, the ALJs would not satisfy the definition of executives under the FPMRs as "Government employee[s] with management responsibilities which, in the judgment of the employing agency head or his/her designee, require preferential assignment of parking privileges." 41 C.F.R. § 101-20.003(j). However, we see no reason why the ALJs could not be granted parking permits on a priority or equitable basis under the FPMRs as employees who work unusual hours based on their in and out program business, which requires conducting hearings in Buffalo and at remote sites about 75 miles away within the region. See § 101-20.104-2(d)(2). Also, consistent with the FPMRs, it appears that the ALJs could be granted parking spaces on a space-available basis under § 101-20.104-2(d)(5). We note that if imposition of this status quo ante remedy gives rise to any questions concerning consistency with the FPMRs, such issues should be addressed and resolved in compliance proceedings.
D. Scope of Posting
In determining the scope of a posting requirement, the Authority considers the two purposes served by the posting of a notice. United States DOJ, Fed. Bureau of Prisons, Office of Internal Affairs, Wash., D.C., 55 FLRA 388, 394 (1999); United States DOJ, Office of the Inspector General, Wash., D.C., 47 FLRA 1254, 1263-64 (1993) (DOJ). First, the notice provides evidence to unit employees that the rights guaranteed under the Statute will be vigorously enforced. Second, in many cases the posting is the only visible indication to those employees that a respondent recognizes and intends to fulfill its obligations under the Statute. Prison Locals, 55 FLRA at 394-95. Moreover, to further these purposes, the Authority has determined that there are circumstances where it is appropriate to require that notices be posted in areas other than the particular locations where the violation occurred. Id. at 395 (respondent's violation of employees' Weingarten rights is of import to unit employees well beyond the facility where the violations occurred).
The Judge ordered a region-wide posting based on his conclusion that "the same problem exists at other offices in Region II, and [that] the [Regional Chief ALJ] had taken action concerning ALJ parking at other offices in Region II[.]" Judge's Decision at 13. The Respondent excepts to the region-wide posting ordered by the Judge as overly broad and maintains that a local [ v58 p728 ] posting is more appropriate as only ALJs in the Buffalo OHA were affected by Respondent's discontinuation of free parking permits.
We reject the Respondent's exception. We find that the Judge's determination that the notice should be posted region-wide is consistent with the record evidence that the direction to implement the parking change at the Buffalo OHA came from the regional level. Further, although the national level of the Respondent was involved in the decision to terminate free parking, the national chief ALJ instructed the regional chief ALJ to fulfill its bargaining obligations in implementing the decision to withdraw parking permits. Thus, we find that a region-wide posting is warranted in these circumstances and would indicate to ALJs in other OHAs in the same region that their rights will be vigorously enforced and that the Respondent at the regional level recognizes and intends to fulfill its obligations under the Statute.
E. GC's Cross-Exception for Non-Traditional Remedy
We reject the GC's request for an additional remedy in the event that the ALJs "legitimately lose their free parking passes after the completion of negotiations at the national level[.]" Opposition at 15. If this event occurs, the GC maintains that the Respondent must provide free parking to the ALJs for a comparable period of time when their passes were withdrawn from May 1, 2001 until the imposition of the SQA order.
In F.E. Warren, the Authority discussed its approach to evaluating requests for nontraditional remedies. The Authority concluded that nontraditional remedies must be reasonably necessary and effective in "recreat[ing] the conditions and relationships" with which the unfair labor practice interfered, as well as effectuating the policies of the Statute, including the deterrence of future violative conduct. United States Dep't of Justice, Bureau of Prisons, Safford, Ariz., 35 FLRA 431, 444-45 (1990).
In light of the specific circumstances in this case, we find that the GC'S requested remedy is not necessary to remedy the unfair labor practice committed by the Respondent. As previously noted, the FSIP issued a decision directing the parties to maintain the current parking situation for ALJs in all OHAs until the expiration of a lease, significant expansion or relocation of any of the OHAs. See note 4, supra. As a result of the FSIP order, the parties' impasse in its national negotiations concerning parking matters has been resolved, and consistent with this order, the ALJs in the Buffalo OHA retain their free parking permits. Thus, we find that the GC's requested remedy is not necessary as the contingency for the GC's request -- the loss of free parking passes after the completion of negotiations at the national level -- is no longer an issue as a result of the FSIP order discussed above.
Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Social Security Administration, Office of Hearings and Appeals, Region II, Buffalo Office of Hearings and Appeals, Buffalo, New York, shall:
1. Cease and desist from:
(a) Unilaterally changing established conditions of employment of the Buffalo, New York, Office of Hearings and Appeals' Administrative Law Judges, specifically the provision of free parking passes for all ALJs at the Buffalo OHA who request such passes.
(b) Refusing to bargain with the Association of Administrative Law Judges, International Federation of Professional and Technical Employees, AFL-CIO (hereinafter "Union"), the exclusive representative of ALJs, over the provision of free parking passes for ALJs at the Buffalo OHA.
(c) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Consistent with the Federal Service Impasses Panel's order, reinstate the practice of providing all ALJs in the Buffalo OHA with free parking passes, upon request, as the practice had existed prior to May 1, 2001.
(b) Before changing any condition of employment of ALJs at the Buffalo OHA concerning parking, give the Union notice and, upon request, bargain in good faith.
(c) Post at each Office of Hearings and Appeals in Region II 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 Regional Chief Administrative Law Judge for Region II and by the Regional Hearing Office Director, and shall be posted and maintained 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 ensure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Boston Regional Office, Federal Labor Relations Authority, 99 Summer Street, Suite 1500, Boston, Massachusetts 02110-1200, in writing within 30 days from the date of this Order, as to what steps have been taken to comply. [ v58 p729 ]
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Social Security Administration, Office of Hearings and Appeals, Region II, Buffalo Office of Hearing and Appeals, Buffalo, New York, violated the Federal Service Labor- Management Relations Statute, and has ordered us to post and abide by this Notice.
We hereby notify employees that:
WE WILL NOT unilaterally change established conditions of employment of the Buffalo, New York, Office of Hearings and Appeals' Administrative Law Judges, specifically the provision of free parking passes for all Buffalo OHA Administrative Law Judges (hereinafter ALJs) who request such passes.
WE WILL NOT refuse to bargain with the Association of Administrative Law Judges, International Federation of Professional and Technical Employees, AFL-CIO (hereinafter "Union"), the exclusive representative of ALJs, over the provision of free parking passes for ALJs at the Buffalo OHA.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of rights assured by the Statute.
WE WILL consistent with the Federal Service Impasses Panel's order, reinstate the practice of providing all ALJs in the Buffalo OHA with free parking passes, upon request, as the practice had existed prior to May 1, 2001.
WE WILL before changing any condition of employment of ALJs at the Buffalo OHA concerning parking, give the Union notice and, upon request, bargain in good faith.
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS REGION II
Dated: _______ By:_________________________
Administrative Law Judge
Dated: _______ By:_________________________
Regional Hearing Office DirectorThis 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 its provisions, they may communicate directly with the Regional Director, Boston Regional Office, Federal Labor Relations Authority, whose address is: 99 Summer Street, Suite 1500, Boston, Massachusetts 02110-1200, and whose telephone number is: (617) 424-5730.
Section 101-20.104-2, regarding allocation and assignment of employee parking spaces, provides in pertinent part that:
(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.)
Opinion of Chairman Cabaniss, dissenting in part:
I write separately in dissent as to the parameters of the status quo ante remedy imposed here. I believe that neither the Judge nor the majority has established a defensible basis for concluding that the prior parking program, i.e., what the status quo ante remedy will be reimposing, is consistent with the relevant government-wide regulations underlying this situation. Accordingly, in fashioning a remedy for the unfair labor practice committed here I would affirmatively require that the parties comport their conduct with those governing regulations as they fashion their parking program. Because what we do in this case affects the rights of other bargaining units in the same organization, I believe we have an affirmative obligation to ensure compliance with those government-wide regulations, which in turn would provide the required protections of the other bargaining units at this location.
Additionally, I also would affirmatively acknowledge the presence of the Federal Service Impasses Panel-imposed status quo ante remedy in this case and its impact. I note the problem with that same remedy, however, as it also appears to raise issues regarding its consistency with the rights accorded other bargaining units at the same location.
File 1: Authority's Decision in 58 FLRA No.
File 2: ALJ's Decision
Footnote # 1 for 58 FLRA No. 172 - Authority's Decision
Footnote # 2 for 58 FLRA No. 172 - Authority's Decision
Article 9 of the interim agreement addresses "Agency Initiatives During the Term of the Interim Agreement." Section 4 set forth the agreed upon level at which negotiations would occur based on the nature of the proposed change. Specifically, Section 4 provides that:
A. The Parties agree that proposed changes which apply on a nationwide or multi-regional basis shall be negotiated at the OHA Central Office level.
B. Proposed changes which will be implemented in hearing offices in more than one (1) region made pursuant to a national or multi-regional initiative that require variation in the changes to meet the needs of each individual hearing office will be negotiated at the appropriate regional office(s).
C. Proposed changes which apply at more than one (1) hearing office within a region will be negotiated at the regional office level.
D. Proposed changes which apply to one (1) hearing office will be negotiated at that hearing office.
Interim Agreement, Joint Exhibit 2 at 27.
Footnote # 3 for 58 FLRA No. 172 - Authority's Decision
Footnote # 4 for 58 FLRA No. 172 - Authority's Decision
The Respondent notes that the parties reached impasse on issues concerning facilities and employee parking, and that the matter was before the Federal Service Impasses Panel (FSIP). Subsequent to the filing of the Respondent's exceptions, the FSIP issued its decision. See footnote 6, infra.
Footnote # 5 for 58 FLRA No. 172 - Authority's Decision
Footnote # 6 for 58 FLRA No. 172 - Authority's Decision
We reject the GC's request that any facts related to the impasse and FSIP proceeding at the national level should be struck from the record before the Authority. Pursuant to § 2429.5 of our Regulations, the Authority may take official notice of such matters as would be proper. The completion of negotiations at the national level on parking issues has an effect on the resolution of parking issues at local OHAs, and as such, we take official notice of FSIP's decision and order on this matter (Case No. 02 FSIP 61 (2002) that directed the parties to adopt the following language in its master agreement as to parking:
The current parking situations for ALJs in the approximately 140 hearing offices shall remain in place. However, when an office lease expires, an office expands its current space, or an office is relocated, changes in the distribution of free parking for ALJs may be made by the Employer consistent with Government-wide regulations in 41 C.F.R. § 101, concerning the criteria for assignment of parking spaces, and Memorandum dated June 7, 2000.
Footnote # 7 for 58 FLRA No. 172 - Authority's Decision
Footnote # 8 for 58 FLRA No. 172 - Authority's Decision
The FPMRs governing federal employee parking, set forth in 41 C.F.R. Chapter 101, apply to the federal civilian work force as a whole and, therefore, constitute a Government-wide regulation within the meaning of § 7117(a)(1) of the Statute. See, e.g., AFGE, Local 644, AFL-CIO, 21 FLRA 658, 663 (1986). It is undisputed that the GSA-SSA agreement and the June 7 memo are based on these FPMRs.