United States Department of the Treasury, Internal Revenue Service, Washington, D.C. (Agency) and National Treasury Employees Union, Chapter 65 (Union)
[ v63 p237 ]
63 FLRA No. 88
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
April 21, 2009
Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Joshua M. Javits filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency exception.
The grievance alleges that the Agency violated the parties' local memorandum of understanding (MOU) and/or an established past practice when it unilaterally terminated the reserved parking privileges provided to the grievant, a Union local chapter president at Agency headquarters. The grievance alleges further that the Agency violated the national agreement between the parties, 5 U.S.C. § 7116(a)(1), (5), and (8), and/or its own parking policy when it failed to properly notify the Union of, and refused to bargain over, its discretion to terminate the parking privileges. In the award, the Arbitrator sustained the grievance and granted a status quo ante remedy. Specifically, the Arbitrator ordered the immediate reinstatement of the parking privileges. He also found that "a cease and desist order is proper in the circumstances". In addition, he directed the Agency to post a notice on all IRS notice boards for 30 days wherein the Agency would acknowledge its unlawful conduct. [n1]
II. Background and Arbitrator's Award
A. Chronology of the MOU and National Agreement
On January 10, 1990, the Agency and the local Union chapter signed a Memorandum of Understanding (MOU). Pursuant to the MOU, the Agency agreed to designate one parking space in the service court area of the Agency's headquarters building for the local Union chapter under the "unusual work hours justification." Exception at 2; Exhibit UX 1. As of 1998, the Agency's National Office, Regions and Districts (NORD) and campus or national centers (NC) were under separate but concurrent National Agreements. Id. at 2-3; Award at 8. From 1998 through 2000, the Agency underwent a modernization. As a result, the Agency no longer had regions or districts which required separate National Agreements between the Agency and the Union. Exception at 3; Award at 9. The parties entered into negotiations that were designed to consolidate the Agency's National Agreements with NORD and NC. A consolidated National Agreement resulted in 2002. Id. The 2002 National Agreement contains the following language in Article 11, Section 17:
The [E]mployer will provide the chapter president of each [c]enter [c]ampus with a reserved parking space.
Exception at 3 and Exhibit AX 1.
The continuing applicability of the 1990 MOU is addressed in Article 54, Section 2 of the 2002 National Agreement as follows:
A. All local agreements in effect upon the effective date of this Agreement may continue in effect (rollover) for the duration of this [A]greement, subject to provision 2B below.
Award at 10-11. [n2]
The parties renegotiated the 2002 National Agreement, resulting in a 2006 National Agreement. Exception at 4; Award at 11. Article 11, Section 17 from the 2002 National Agreement was rolled over into the 2006 National Agreement. Exception at 4; Award at 11. [ v63 p238 ]
B. Access to and Termination of Parking Privileges
The record presented at the hearing indicates that all presidents of the local chapter were provided with parking at the Agency's headquarters office beginning in 1990 and continuing until 2006. Award at 34. The grievant had parking privileges since his election as chapter president in October 2000. Id. at 5. He was employed at the Agency's New Carrolton federal building in Lanham, Maryland, where he was provided reserved parking. Id. at 5, 14. The grievant's Union business required him to work frequently outside his regular tour of duty. Id. at 6, 32. In January 2006, the Agency notified the Union that, following a re-evaluation of the parking program at its headquarters building, it had decided to terminate the grievant's parking privileges at headquarters. Id. at 3. The Union filed a grievance, alleging that the Agency's action violated the MOU and constituted a unilateral termination of an established past practice. Id. The Union further alleged that the Agency's action violated the notice requirements of Article 47 of the National Agreement as well as 5 U.S.C. § 7116(a)(1), (5), and (8). Id.
Article 47, Section P of the National Agreement provides in relevant part:
Notice of proposed changes in conditions of employment by the employer at the National (including divisions) or local level will be served on the Union by any one of the following methods . . . .
Article 47, Section S provides in relevant part:
1. Unless otherwise permitted by law, no changes will be implemented by the Employer until proper and timely notice has been provided to the Union and all negotiations have been completed including any impasse proceedings.
Award at 4-5.
The Agency dismissed the Union's suggestion that the grievant is entitled to parking privileges based on the Agency's view that, under 41 C.F.R. § 102-74.305, the grievant would not be given priority in the assignment of parking spaces. Award at 23-24. Section 102-74.305(b) requires federal agencies to give priority consideration to "persons who work unusual hours," The Agency claims that the grievant does not work the "unusual hours" that would entitle him to parking privileges. Id.
Another basis for the Agency's decision to terminate the parking privileges is its view that the National Agreement superseded the MOU and permitted such termination. The Agency interprets Article 11, Section 17 of the National Agreement, which requires the Agency to provide parking privileges to chapter presidents of campus centers, to exclude non-campus center presidents from the privilege. The Agency, noting that its headquarters office is not a campus center, argues that it was not required to provide parking privileges there. Award at 14.
C. Arbitrator's Award
The parties did not stipulate the issues for resolution. The Arbitrator framed the issues as follows:
1) Did the [Agency] violate the 1990 MOU and/or established past practice when it . . . unilaterally terminated the parking provided to the grievant at Agency headquarters? If so, what is the appropriate remedy?
2) Did the [Agency] violate the National Agreement, § 7116(a)(1), (5), and (8) of the Statute or its own parking policy when it failed to properly notify the Union of, and refused to bargain over its discretion to abolish the parking provided to the grievant? If so, what is the appropriate remedy?
Award at 2.
In his award, the Arbitrator first addressed whether the MOU remains in existence or was superseded by Article 11, Section 17 of the National Agreement. Based on documentary evidence and testimony at the hearing, the Arbitrator dismissed the Agency's assertion that the termination of the parking privileges was "covered by" Article 11, Section 17. In so doing, the Arbitrator applied the criteria set out in United States Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004, 1015-19 (1993) (Social Security Administration), for establishing that a matter is "covered by" an existing agreement. First, the Arbitrator found that the matter of parking privileges for non-campus center chapter presidents is not expressly addressed in Article 11, Section 17. Award at 26-28.
Next, the Arbitrator determined that the instant dispute is not "inseparably bound up with" or "clearly an aspect of" Article 11, Section 17. Id. at 28-29. The Arbitrator considered the separate treatment of "campus center" and "non-campus center" chapter presidents both historically and in the National Agreement. Id. at 29. He also found that the rollover provision in Article 54, Section 2 of the 2002 National Agreement preserved [ v63 p239 ] the 1990 MOU. Id. Based on the above analysis, the Arbitrator was satisfied that the MOU remains in effect. Id. at 29-30. [n3]
Upon finding that the MOU still exists, the Arbitrator went on to find that the Agency breached it when it terminated the parking privileges. Id. at 30. In addition, the Arbitrator found no indication that the MOU is inconsistent with either the National Agreement or with the prioritization of parking space assignments set out in 41 C.F.R. § 102-74.305. Further, the Arbitrator determined that the Agency committed an unfair labor practice under 5 U.S.C. § 7116 (a)(1) and (5) when it unilaterally terminated the parking privileges without providing the Union prior notice and the opportunity to bargain. Id. at 30-33.
The final matter that the Arbitrator addressed concerned the appropriate remedy. In particular, the Arbitrator addressed whether the Union was entitled to a status quo ante remedy whereby the Agency would be required to reinstate the parking privileges. Award at 35. The Arbitrator applied the factors outlined in Federal Correctional Institution, 8 FLRA 604 (1982), in considering whether to issue a status quo ante remedy. These factors are: (1) whether and when notice was given to the union; (2) whether and when the union requested bargaining; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligation; (4) the nature and extent of the adverse impact on unit 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.
Applying these factors, the Arbitrator concluded that a status quo ante remedy was appropriate under the circumstances. Award at 36-37. Specifically, in this case, the Arbitrator found the Agency's decision to unilaterally terminate the parking privileges to be a willful act. Id. at 36. The Arbitrator also found that the Agency gave no notice to the Union and failed to discharge its bargaining obligations. Id. at 36-37. Further, the Arbitrator concluded that reinstatement of the Union's parking privileges would not have a meaningful impact on the Agency's operations. Id. at 37. Accordingly, the Arbitrator concluded that a status quo ante remedy was not only appropriate but also was necessary. Id. In addition to the status quo ante remedy, the Arbitrator also concluded that a cease and desist order was proper and directed the Agency to post a notice on all Agency notice boards acknowledging its misconduct. Id.
III. Positions of the Parties
A. Agency's Exception
The Agency contends that the award fails to draw its essence from the National Agreement. It contends that the remedy plainly violates Article 11, Section 17 of the National Agreement, which the Agency construes as providing parking privileges only to chapter presidents of campus centers and excluding non-campus center chapter presidents. Exception at 8. The Agency interprets the award as being based on the Arbitrator's "manifest disregard for the very essence of the . . . National Agreement" by interpreting it as not being applicable to all bargaining unit employees but only to those in campus centers. Id. at 8-9. The Agency contends further that the 1990 MOU no longer applies, having been superseded by the National Agreement. Id. at 9.
In further support of its position that Article 11, Section 17 limits parking privileges to campus center chapter presidents, the Agency refers to attempts by the Union in 2004 to expand the language of that provision in order to give equal parking privileges to campus center and non-campus center chapter presidents. Id. The Agency suggests that such negotiations would have been unnecessary if Article 11, Section 17 truly was inapplicable to non-campus center chapter presidents. Id.
B. Union's Opposition
The Union contends that the Agency misconstrues the Arbitrator's decision as being based on a belief that the National Agreement applies to only some bargaining unit employees. Opposition at 16. The Union points to statements in the award demonstrating his understanding that the National Agreement applies to all barga