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61 FLRA No. 155
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF THE ARMY
FORT BLISS, ARMY AIR DEFENSE
CENTER AND SCHOOL
FORT BLISS, TEXAS
DECISION AND ORDER
ON NEGOTIABILITY ISSUES
September 13, 2006
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of two proposals involving parking spaces. The Agency filed a statement of position to which the Union did not file a response.
For the following reasons, we find that the proposals are outside the duty to bargain and dismiss the petition for review. [n1]
II. The Proposals [n2]
That management remove the reserved parking around building 2 for the following people: Director OCADA, SGS, Director SPD, Director Protocol, DAC, and Deputy NCOA.
That management consolidate the 2 Visiting General 24-hour spots and the Civilian Aid to the Secretary of the Army spot into 1 reserved spot with a title (such as, but not limited to, Distinguished Visitor, General Officer, or Civilian Aid to the Secretary of the Army). The remaining two spots will become open parking. Management may reserve additional parking spaces as needed for distinguished visitors on a day to day basis.
III. Meaning of the Proposals
As worded, the proposals would end the Agency's practice of reserving parking spaces for certain specified Agency personnel. The parties agree that the parking spaces in question are reserved for personnel in "management and/or non-bargaining unit positions." Record at 3. The Union explains that the intent of the proposals is to make those reserved parking spaces available as "open parking," increasing the number of parking spaces available for everyone and thus benefiting unit employees. Record at 3.
IV. Positions of the Parties
The Agency contends that it has no duty to bargain on the proposals because the subject matter is covered by Article 4, Section 15 of the parties' collective bargaining agreement. [n3] [ v61 p778 ]
The Agency also contends that the proposals are outside the duty to bargain because they "seek to regulate" the conditions of employment of management officials. Statement of Position at 6.
As noted above, the Union stated that the proposals are intended to make parking spaces reserved for management officials available for everyone, thus increasing the number of spaces available for bargaining unit employees. Petition for Review at 7-8. The Union did not make any argument that the proposal is within the duty to bargain and did not file a response to the Agency's statement of position. In this regard, the Union stated in its petition for review that it declined to make any legal arguments "at this time." Id. at 8.
V. Analysis and Conclusions
Proposals 1 and 3 would end the Agency's practice of reserving parking spaces for certain specified management officials. As noted above, the Union does not provide any arguments that the proposals are negotiable or respond to the Agency's arguments that the proposals are outside the duty to bargain. Under the Authority's Regulations, a union has the "burden of raising and supporting arguments that the proposal . . . is within the duty to bargain" and a [f]ailure to respond to an argument or assertion raised by the other party will, where appropriate, be deemed a concession to such argument or assertion." 5 C.F.R.§ 2424.32(a) and (c). NTEU, 60 FLRA 219, 220 (2004). Because the Union failed to respond to the Agency's argument, consistent with the Authority's Regulations, if appropriate, the Union's lack of response constitutes a concession that the proposals are outside the duty to bargain.
Under Authority and judicial precedent, proposals that directly determine the conditions of employment of management officials are outside the duty to bargain. See, e.g., PASS, District No. 6, PASS/NMEBA, 54 FLRA 1130, 1135-36 (1998) (citing AFGE, Local 32, 51 FLRA 491 (1995), petition for review denied, 110 F.3d 810 (D.C. Cir. 1997)). It is undisputed that: (1) the parking spaces referenced in the proposals are reserved for management officials; and (2) the reservation of parking spaces for management officials is a matter that concerns their conditions of employment. See, e.g., AFGE, Local 2879, AFL-CIO, 49 FLRA 1074, 1088 (1994) (Local 2879) (proposal reserving parking spaces for management officials and other nonunit personnel seeks to regulate the conditions of employment of those personnel). Because Proposals 1 and 3 would directly determine the availability of parking for the management officials referenced in the proposals, they are outside the duty to bargain. [n4] Id. Cf. AFSCME, Local 2910, 53 FLRA 1334, 1338-39 (1998) (proposal requiring agency to reserve parking spaces only for unit employees does not directly determine the allocation of parking spaces to nonunit personnel and is within the duty to bargain).
Accordingly, we find that Proposals 1 and 3 are outside the duty to bargain.
The petition for review is dismissed.
Footnote # 1 for 61 FLRA No. 155 - Authority's Decision
The Union's request for a hearing is denied because nothing in the request or in the record raises a factual issue that needs to be resolved to determine the negotiability of the proposals at issue. 5 C.F.R. § 2424.31 (a hearing is appropriate "[w]hen necessary to resolve disputed issues of material fact.") See PASS, 59 FLRA 25, 25 n.2 (2003).
Footnote # 2 for 61 FLRA No. 155 - Authority's Decision
The proposals set forth herein are worded as they were modified during the Post-Petition Conference in this case. See Record of Post-Petition Conference at 2 (Record). The petition for review initially contained 9 proposals. The Union subsequently withdrew its petition as to 7 of those proposals and they will not be considered further.
Footnote # 3 for 61 FLRA No. 155 - Authority's Decision
Section 15: All parking at Fort Bliss will be consistent with applicable regulations. Other than reserved parking at Building 2, no parking spaces in any other area shall be allocated or reserved except as authorized by AR 210-4.
Enclosure, Statement of Position.
Footnote # 4 for 61 FLRA No. 155 - Authority's Decision
Given this conclusion, it is unnecessary to address the Agency's argument that the proposals are covered by Article 4, Section 15 of the parties' agreement. See National Treasury Employees Union, 60 FLRA 367, 383 n.13 (2004), petition for review granted, remanded in part, reversed in part sub nom. NTEU v. FLRA, 437 F.3d. 1248 (D.C. Cir. 2006).