[ v03 p748 ]
03:0748(118)NG
The decision of the Authority follows:
3 FLRA No. 118
NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 6
(Labor Organization)
and
INTERNAL REVENUE SERVICE,
NEW ORLEANS DISTRICT
(Activity)
Case No. 0-NG-11
DECISION ON NEGOTIABILITY ISSUE
THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.).
UNION PROPOSAL /1/
PRE-PAID PARKING SPACES FOR BARGAINING UNIT EMPLOYEES' PRIVATE
VEHICLES, AT THE NEW
ORLEANS, BATON ROUGE, SHREVEPORT, LAKE CHARLES, AND HOUMA POSTS OF
DUTY, WILL NOT BE RELEASED
TO THE GENERAL SERVICES ADMINISTRATION.
QUESTIONS HERE BEFORE THE AUTHORITY
THE QUESTIONS ARE, FIRST OF ALL, WHETHER THE UNION'S PROPOSAL IS
INCONSISTENT WITH APPLICABLE GOVERNMENT-WIDE REGULATIONS UNDER SECTION
7117(A) OF THE STATUTE; OR, SECONDLY, WHETHER THE UNION'S PROPOSAL
CONCERNS A MATTER WHICH IS NEGOTIABLE AT THE ELECTION OF THE AGENCY
UNDER SECTION 7106(B)(1) OF THE STATUTE; OR, FINALLY, WHETHER THE
UNION'S PROPOSAL VIOLATES SECTION 7106(A)(1) OF THE STATUTE.
OPINION
CONCLUSION: THE UNION'S PROPOSAL, INSOFAR AS IT REQUIRES THE AGENCY
TO RETAIN THE DISPUTED PARKING SPACES, IS CONSISTENT WITH APPLICABLE
GOVERNMENT-WIDE REGULATIONS UNDER SECTION 7117(A) OF THE STATUTE, DOES
NOT CONCERN A MATTER WHICH MAY BE NEGOTIATED AT THE ELECTION OF THE
AGENCY WITHIN THE MEANING OF SECTION 7106(B)(1) OF THE STATUTE, AND DOES
NOT VIOLATE THE AGENCY'S RIGHTS UNDER SECTION 7106(A)(1) OF THE STATUTE.
HOWEVER, TO THE EXTENT THAT THE PROPOSAL IMPLICITLY REQUIRES THE AGENCY
TO PROVIDE THE PARKING SPACES SO RETAINED FREE OF CHARGE TO EMPLOYEES,
IT IS INCONSISTENT WITH APPLICABLE GOVERNMENT-WIDE REGULATIONS UNDER
SECTION 7117(A) OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (45 FED. REG. 3513
(1980)), THE AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT
WITHIN THE DUTY TO BARGAIN IS SUSTAINED IN PART AND SET ASIDE IN PART.
/2/
REASONS: UNDER THE STATUTE, THE DUTY OF AN AGENCY TO NEGOTIATE WITH
AN EXCLUSIVE REPRESENTATIVE EXTENDS TO THE CONDITIONS OF EMPLOYMENT
AFFECTING EMPLOYEES IN AN APPROPRIATE UNIT EXCEPT AS PROVIDED OTHERWISE
BY FEDERAL LAW AND REGULATION, INCLUDING GOVERNMENT-WIDE REGULATION.
/3/ THAT IS, UNDER THE STATUTE, IF A PROPOSED MATTER RELATES TO THE
CONDITIONS OF EMPLOYMENT OF AN APPROPRIATE UNIT OF EMPLOYEES IN AN
AGENCY AND IS NOT INCONSISTENT WITH LAW OR REGULATION-- I.E., IS WITHIN
THE DISCRETION OF AN AGENCY-- IT IS WITHIN THE SCOPE OF BARGAINING WHICH
IS REQUIRED OF THAT AGENCY. IN THIS CASE, THE AGENCY ALLEGES, FIRST OF
ALL, THAT THE UNION'S PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN BECAUSE
IT IS CONTRARY TO APPLICABLE GOVERNMENT-WIDE REGULATIONS. SPECIFICALLY,
THE AGENCY ALLEGES THAT RETENTION OF THE EMPLOYEE PARKING SPACES WHICH
ARE THE SUBJECT OF THE INSTANT DISPUTE CONFLICTS WITH PROVISIONS OF THE
FEDERAL PROPERTY MANAGEMENT REGULATIONS (FPMR). /4/
THE INITIAL QUESTION IS WHETHER THE PROVISIONS OF THE FPMR (41 C.F.R.
SUBCHAPTER D) AT ISSUE HEREIN CONSTITUTE A "GOVERNMENT-WIDE RULE OR
REGULATION" WITHIN THE MEANING OF THE STATUTE. THE PHRASE
"GOVERNMENT-WIDE RULE OR REGULATION" IS USED IN TWO DIFFERENT
SUBSECTIONS OF SECTION 7117 OF THE STATUTE. FIRST OF ALL, AS HERE IN
ISSUE, IT IS USED IN SECTION 7117(A) TO STATE A LIMITATION ON THE SCOPE
OF BARGAINING; I.E., MATTERS WHICH ARE INCONSISTENT WITH
GOVERNMENT-WIDE RULE OR REGULATION ARE NOT WITHIN THE DUTY TO BARGAIN.
/5/ SECONDLY, IT IS USED IN SECTION 7117(D) TO STATE THE RIGHT OF AN
EXCLUSIVE REPRESENTATIVE, IN CERTAIN CIRCUMSTANCES, TO CONSULT WITH
RESPECT TO THE ISSUANCE OF SUCH RULES AND REGULATIONS EFFECTING ANY
SUBSTANTIVE CHANGE IN ANY CONDITION OF EMPLOYMENT. /6/ IN NEITHER OF
THESE CONTEXTS DOES THE STATUTE PRECISELY DEFINE WHAT CONSTITUTES A
"GOVERNMENT-WIDE RULE OR REGULATION" WITHIN THE MEANING OF SECTION 7117.
THE COMMITTEE REPORT ACCOMPANYING THE BILL REPORTED OUT OF THE HOUSE
COMMITTEE (H.R. 11280) STATED, AS TO THE MEANING OF THE TERM
"GOVERNMENT-WIDE" AS FOLLOWS: /1/
THE TERM "GOVERNMENT-WIDE" SHALL BE CONSTRUED LITERALLY; ONLY THOSE
REGULATIONS WHICH
AFFECT THE FEDERAL CIVILIAN WORK FORCE AS A WHOLE ARE
"GOVERNMENT-WIDE" REGULATIONS
. . . TYPICALLY, IT IS ANTICIPATED, THE ISSUING AGENCY WILL BE THE
OFFICE OF PERSONNEL
MANAGEMENT OR THE GENERAL SERVICES ADMINISTRATION.
THE BILL AS PASSED BY THE HOUSE ("THE UDALL SUBSTITUTE") DIFFERS FROM
THE BILL REPORTED BY THE HOUSE COMMITTEE AS TO THE EXTENT TO WHICH
GOVERNMENT-WIDE RULES AND REGULATIONS CONSTITUTE A LIMITATION ON THE
SCOPE OF THE DUTY TO BARGAIN. NEVERTHELESS, AS RELEVANT TO THE ISSUE
HEREIN, THE LEGISLATIVE HISTORY INDICATES THAT THE DEFINITION OF THE
TERM "GOVERNMENT-WIDE" IN "THE UDALL SUBSTITUTE" WAS INTENDED TO BE THE
SAME AS THAT IN THE HOUSE COMMITTEE BILL REFERRED TO ABOVE. /8/
ON THE OTHER HAND, THE BILL AS PASSED BY THE SENATE (S.2640) PROVIDES
THAT "REGULATIONS OF APPROPRIATE AUTHORITIES, INCLUDING POLICIES WHICH
ARE SET FORTH IN THE FEDERAL PERSONNEL MANUAL," SHALL GOVERN THE
ADMINISTRATION OF ALL MATTERS COVERED BY A COLLECTIVE BARGAINING
AGREEMENT. /9/ THE HOUSE-SENATE CONFERENCE COMMITTEE, HOWEVER, ADOPTED
THE PROVISIONS OF THE HOUSE BILL, RATHER THAN THOSE OF THE SENATE. IN
DOING SO, THE CONFEREES PROVIDED NO FURTHER DEFINITION OF THE TERM
"GOVERNMENT-WIDE," BUT STATED AS FOLLOWS CONCERNING THE INTENDED
DEFINITION OF THE PHRASE "RULES AND REGULATIONS": /10/
THE CONFEREES SPECIFICALLY INTEND, HOWEVER, THAT THE TERM "RULES OR
REGULATIONS" BE
INTERPRETED AS INCLUDING OFFICIAL DECLARATIONS OF POLICY OF AN AGENCY
WHICH ARE BINDING ON
OFFICIALS AND AGENCIES TO WHICH THEY APPLY. THE RIGHT OF LABOR
ORGANIZATIONS TO ENJOY
NATIONAL CONSULTATION RIGHTS WILL ALSO INCLUDE SUCH OFFICIAL
DECLARATIONS OF POLICY WHICH ARE
BINDING ON OFFICIALS OR AGENCIES.
THUS, CONGRESS INTENDED THE TERM "GOVERNMENT-WIDE REGULATION" TO
INCLUDE THOSE REGULATIONS AND OFFICIAL DECLARATIONS OF POLICY WHICH
APPLY TO THE FEDERAL CIVILIAN WORK FORCE AS A WHOLE AND ARE BINDING ON
THE FEDERAL AGENCIES AND OFFICIALS TO WHICH THEY APPLY.
HOWEVER, WHILE THE LEGISLATIVE HISTORY OF THE TERM "GOVERNMENT-WIDE"
INDICATES CONGRESS INTENDED THAT REGULATIONS WHICH ONLY APPLY TO A
LIMITED SEGMENT OF THE FEDERAL CIVILIAN WORK FORCE NOT SERVE TO LIMIT
THE DUTY TO BARGAIN, /11/ IT DOES NOT PRECISELY DEFINE THE OUTER LIMITS
OF THE REACH REQUIRED OF A REGULATION IN ORDER FOR THAT REGULATION TO BE
A "GOVERNMENT-WIDE" REGULATION WITHIN THE MEANING OF SECTION 7117. THAT
IS, IT IS UNCLEAR, FOR EXAMPLE, WHETHER CONGRESS INTENDED THAT A
REGULATION MUST APPLY TO ALL EMPLOYEES IN THE FEDERAL CIVILIAN WORK
FORCE IN ORDER TO CONSTITUTE A "GOVERNMENT-WIDE" REGULATION. IN THIS
REGARD, IT IS A BASIC RULE OF STATUTORY CONSTRUCTION THAT LEGISLATIVE
ENACTMENTS ARE TO BE CONSTRUED SO AS TO GIVE THEM MEANING. /12/ A
REQUIREMENT THAT A REGULATION APPLY TO ALL FEDERAL CIVILIAN EMPLOYEES IN
ORDER TO CONSTITUTE A "GOVERNMENT-WIDE" REGULATION UNDER SECTION 7117
WOULD RENDER THAT PROVISION MEANINGLESS, SINCE IT DOES NOT APPEAR THAT
THERE IS ANY REGULATION WHICH LITERALLY AFFECTS EVERY CIVILIAN EMPLOYEE
OF THE FEDERAL GOVERNMENT. FURTHERMORE, SUCH A LITERAL DEFINITION OF
THE TERM WOULD ALSO RENDER MEANINGLESS THE CONCOMITANT RIGHT OF A LABOR
ORGANIZATION UNDER SECTION 7117(D) OF THE STATUTE IN APPROPRIATE
CIRCUMSTANCES TO CONSULT WITH THE ISSUING AGENCY ON GOVERNMENT-WIDE
RULES OR REGULATIONS EFFECTING SUBSTANTIVE CHANGES IN ANY CONDITIONS OF
EMPLOYMENT. IN THIS REGARD, THE LEGISLATIVE HISTORY OF THE STATUTE
INDICATES THAT CONGRESS INTENDED THE CONSULTATION RIGHTS PROVIDED IN
SECTION 7117(D) TO BE SUBSTANTIAL UNION RIGHTS. ONE OF THE PROPONENTS
OF "THE UDALL SUBSTITUTE" STATED ON THE HOUSE FLOOR DURING DEBATE ON
THAT BILL AS FOLLOWS: /13/
IN SECTION 7117, THE UDALL SUBSTITUTE REMOVES MANY GOVERNMENT-WIDE
REGULATIONS FROM
COLLECTIVE BARGAINING. WE HAVE AGREED TO THIS CHANGE WITH THE
UNDERSTANDING THAT THE
CONSULTATION RIGHTS ACCORDED EXCLUSIVE REPRESENTATIVES ARE TO BE
RIGIDLY ENFORCED.
THAT CONGRESS INTENDED CONSULTATION RIGHTS TO BE "RIGIDLY ENFORCED"
SUPPORTS THE VIEW THAT CONGRESS UNDERSTOOD "GOVERNMENT-WIDE
REGULATIONS"
TO CONSTITUTE A SIGNIFICANT LIMITATION ON THE SCOPE OF BARGAINING, I.E.,
THAT CONGRESS INTENDED THE TERM TO INCLUDE MORE THAN THE INCONSEQUENTIAL
NUMBER OF REGULATIONS THAT WOULD FALL WITHIN A LITERAL DEFINITION.
THE REGULATIONS AT ISSUE HEREIN ARE CODIFIED AT TITLE 41 OF THE CODE
OF FEDERAL REGULATIONS AS PROPERTY MANAGEMENT REGULATIONS PUBLISHED BY
THE GENERAL SERVICES ADMINISTRATION (GSA). BY THEIR TERMS, THESE
REGULATIONS ARE BINDING ON MOST, BUT NOT ALL, SEGMENTS OF THE EXECUTIVE,
LEGISLATIVE, AND JUDICIAL BRANCHES OF THE FEDERAL GOVERNMENT. /14/ AS
SUCH, THESE REGULATIONS ARE GENERALLY APPLICABLE THROUGHOUT THE FEDERAL
GOVERNMENT, I.E., APPLY TO THE FEDERAL CIVILIAN WORK FORCE AS A WHOLE,
THOUGH NOT, OF COURSE, TO EVERY FEDERAL EMPLOYEE. IT IS REASONABLE TO
CONCLUDE, THEREFORE, THAT THESE REGULATIONS ARE "GOVERNMENT-WIDE
REGULATIONS" WITHIN THE MEANING OF SECTION 7117(A). MOREOVER, THE
REFERENCE TO GSA IN THE PORTION OF THE HOUSE COMMITTEE REPORT CITED
ABOVE (SEE NOTE 7, SUPRA) SUPPORTS THE CONCLUSION THAT THE FPMR,
PROMULGATED PURSUANT TO GSJ'S STATUTORY PROPERTY MANAGEMENT AUTHORITY,
WERE CONSIDERED BY THE HOUSE COMMITTEE TO BE OF THE TYPE OF REGULATION
DEFINES AS "GOVERNMENT-WIDE." THIS DOES NOT MEAN, HOWEVER, THAT A
REGULATION MUST REACH AS FAR AS THE FPMR IN ORDER TO SATISFY THE
REQUIREMENTS OF SECTION 7117, BUT ONLY THAT WHATEVER ELSE MAY BE, THE
GENERAL APPLICABILITY OF THE REGULATIONS AT ISSUE HEREIN CLEARLY IS
SUFFICIENT TO SUPPORT THE DETERMINATION THAT THEY ARE "GOVERNMENT-WIDE
REGULATIONS" UNDER THE STATUTE. THUS, WITHOUT DECIDING WHETHER
REGULATIONS LESS GENERALLY APPLICABLE THROUGHOUT THE FEDERAL GOVERNMENT
THAN THOSE AT ISSUE HEREIN WOULD CONSTITUTE "GOVERNMENT-WIDE RULES AND
REGULATIONS," THE AUTHORITY FINDS THAT THE SUBJECT PROVISIONS OF THE
FPMR ARE "GOVERNMENT-WIDE RULES AND REGULATIONS" WHICH WILL BAR
NEGOTIATION ON CONFLICTING UNION PROPOSALS UNDER SECTION 7117(A) OF THE
STATUTE.
THE ISSUE THEN BECOMES WHETHER THE UNION PROPOSAL IN DISPUTE HEREIN
IS INCONSISTENT WITH THE PROVISIONS OF THE FPMR CITED BY THE AGENCY. IN
THIS REGARD, SINCE GSA HAS PRIMARY RESPONSIBILITY FOR THE ISSUANCE AND
INTERPRETATION OF THESE REGULATIONS, THE AUTHORITY REQUESTED AN ADVISORY
OPINION FROM GSA REGARDING WHETHER ANY PART OF CURRENT FPMR WOULD
PREVENT AN AGENCY FROM PROVIDING FREE PARKING SPACES FOR EMPLOYEE
PERSONALLY OWNED VEHICLES WHICH ARE NOT USED FOR OFFICIAL BUSINESS. GSA
RESPONDED TO THE AUTHORITY'S REQUEST AS FOLLOWS:
IN CONNECTION WITH THE PENDING CASE OF NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 6 AND INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT,
FLRA NO. O-NG-11, YOU SOLICITED AN ADVISORY OPINION FROM THE GENERAL
SERVICES ADMINISTRATION (GSA) INTERPRETING PROVISIONS OF THE FEDERAL
PROPERTY MANAGEMENT REGULATIONS (THE F.P.M.R.S). YOUR REQUEST STATED,
AT ITS OUTSET, THAT THE QUESTION IS WHETHER THE UNION'S PROPOSAL IN THIS
CASE REQUIRING THE INTERNAL REVENUE SERVICE (IRS) TO PROVIDE FREE
PARKING SPACES FOR EMPLOYEE-OWNED VEHICLES NOT USED FOR OFFICIAL
BUSINESS IS IN CONFLICT WITH THE F.P.M.R.S, PARTICULARLY 41 C.F.R.
101-20.111-2(A) AND 41 C.F.R. 101-20.117, WHICH ESTABLISH PRIORITIES FOR
THE ALLOTMENT AND ASSIGNMENT OF PARKING SPACES. LATER IN YOUR LETTER
YOU STATED THAT YOU WERE REQUESTING OUR OPINION SPECIFICALLY ON THE
ISSUE OF "WHETHER ANY PART OF CURRENT REGULATIONS" WOULD PREVENT AN
AGENCY LIKE THE IRS FROM PROVIDING SUCH PARKING SPACES FREE TO ITS
EMPLOYEES. I FIND IT NECESSARY TO DISTINGUISH BETWEEN THE TWO
FORMULATIONS IN WHICH THIS QUESTION WAS PRESENTED TO ME, SINCE CURRENT
REGULATIONS DO EXIST WHICH WOULD PREVENT THE IRS IN THIS CASE FROM
PROVIDING ITS EMPLOYEES WITH THE SPACES IN QUESTION, BUT THE REGULATIONS
ARE NOT THOSE AT 41 C.F.R. 101-20.111-2(A), GOVERNING PARKING SPACE
ASSIGNMENT PRIORITIES, OR 41 C.F.R. 101-20.117, GOVERNING CARPOOLING.
THE FPMR PROVISIONS THAT ARE DIRECTLY RELEVANT TO YOUR QUESTION ARE
FOUND IN 41 C.F.R. SUBPART 101-17.2, UTILIZATION OF SPACE.
ALTHOUGH THE DUTIES UNDER THESE REGULATIONS BELONG TO "AGENCIES" (THE
TERMS "FEDERAL AGENCY" AND "EXECUTIVE AGENCY" ARE DEFINED IN 41 C.F.R.
101-17.003-23 AND 41 C.F.R. 101-17.003-24), AN ACTIVITY THAT IS
SUBORDINATE TO SUCH AN AGENCY, AS IS THE IRS WITHIN THE TREASURY
DEPARTMENT, IS NOT ABLE TO EVADE THESE OBLIGATIONS.
A STATEMENT OF THE RESPONSIBILITY OF AGENCIES IN SPACE UTILIZATION
APPEARS AT 41 C.F.R. 101-17.202:
"IT IS THE RESPONSIBILITY OF THE AGENCIES TO ASSIST AND COOPERATE
WITH GSA IN THE
ASSIGNMENT AND UTILIZATION OF SPACE, INCLUDING THE FURNISHING OF
DATA, RELEVANT TO THE USE OF
THE SPACE OCCUPIED . . . IT IS THE FURTHER RESPONSIBILITY OF THE
AGENCIES CONTINUOUSLY TO
STUDY AND SURVEY SPACE OCCUPIED UNDER ASSIGNMENT BY GSA AND OTHER
SPACE WHICH IS CONTROLLED BY
THE AGENCIES, TO INSURE EFFICIENT AND ECONOMICAL SPACE UTILIZATION."
MOREOVER, IT IS MANDATORY THAT AGENCIES RELINQUISH SPACE DEEMED TO BE
UNDERUTILIZED. 41 C.F.R. 101-17.203 PROVIDES THAT:
"THE SPACE UTILIZATION PROGRAM IS DESIGNED TO EFFECT MAXIMUM
EFFICIENT UTILIZATION OF
GOVERNMENT-CONTROLLED SPACE. SPACE FOR WHICH THERE IS NO CURRENT
FORESEEABLE NEED WILL BE
RELINQUISHED."
WHEN SPACE IS DEEMED TO BE UNDERUTILIZED, NOTICE OF RELINQUISHMENT IS
GIVEN TO GSA IN ACCORDANCE WITH 41 C.F.R. 101-17.204. THE AGENCY
ASSIGNED THE GOVERNMENT-CONTROLLED SPACE IS RESPONSIBLE FOR MAKING THE
DETERMINATION THAT THE SPACE IS NO LONGER NEEDED. EVIDENCE OF THIS IS
FOUND IN 41 C.F.R. 101-17.204(B) WHICH PROVIDES, IN PART, THAT:
"WHEN AN AGENCY IS RESPONSIBLE FOR OPERATION, MAINTENANCE, AND
PROTECTION OF
GOVERNMENT-OWNED SPACE TO WHICH IT HAS BEEN ASSIGNED BY GSA, AND THE
AGENCY DETERMINES THAT
SUCH SPACE, OR A PORTION THEREOF, IS NO LONGER NEEDED, THE AGENCY
SHALL SO NOTIFY GSA . . . "
BASED ON THE ABOVE IT WAS PROPER FOR THE IRS TO CONCLUDE THAT IT WAS
UNDERUTILIZING THE SPACE ON WHICH IT WAS PROVIDING FREE PARKING FOR
EMPLOYEE-OWNED VEHICLES AT ITS SEVERAL LOUISIANA LOCATIONS. PARKING
SPACES-- LIKE ANY OTHER GOVERNMENT-CONTROLLED SPACE-- MAY BE CONSIDERED
UNDERUTILIZED WHENEVER AN EXECUTIVE AGENCY DETERMINES THAT THEIR
RETENTION IS NO LONGER ECONOMICAL, THAT THE AGENCY NO LONGER REQUIRES
THEM, OR THAT IT CAN SPARE SUCH SPACE TEMPORARILY FOR UTILIZATION BY
OTHER PARTIES.
ACCORDINGLY, THE DECISION CONCERNING WHETHER A PORTION OF AN AGENCY'S
SPACE IS UNDERUTILIZED IS FOR THAT AGENCY TO MAKE, BASED ON ITS OWN
OPINION OF ITS NEEDS, AND NOT PURSUANT TO COLLECTIVE BARGAINING
NEGOTIATIONS. THE EXECUTIVE AGENCY IS OBLIGATED TO COMMENCE ACTION TO
RELEASE ANY SPACE THAT IT DETERMINES TO BE UNNEEDED OR UNDERUTILIZED AND
THE UNION WHICH REPRESENTS THAT AGENCY'S EMPLOYEES MAY NOT INTERFERE
WITH THE PERFORMANCE OF THAT DUTY, WHICH THE AGENCY OWES TO GSA. OF
COURSE, IF AN AGENCY HAS DETERMINED TO RELINQUISH SPACE, AND THAT
DECISION WILL AFFECT ITS EMPLOYEES' CONDITIONS OF EMPLOYMENT, THE AGENCY
MAY, INDEED, HAVE AN OBLIGATION THEN, UNDER THE LABOR RELATIONS STATUTE,
TO NEGOTIATE WITH THAT UNION OVER THE IMPACT OF THAT DECISION AND THE
PROCEDURES FOR ITS IMPLEMENTATION WITHIN THE BARGAINING UNIT.
THE QUESTION OF WHETHER AN AGENCY CAN BE COMPELLED TO PAY GSA FOR
PARKING SPACE WHICH THE AGENCY HAS DETERMINED THAT IT DOES NOT NEED HAS
BEEN ADDRESSED BY THE GENERAL ACCOUNTING OFFICE IN 55 COMP.GEN.
897(1976). IN THAT DECISION, THE COMPTROLLER GENERAL ANSWERED THE
QUESTION IN THE NEGATIVE. GRANTED THAT THAT CASE INVOLVED THE ISSUE OF
WHETHER GSA COULD FORCE AN AGENCY TO ACCEPT PARKING SPACES AGAINST THE
AGENCY'S WISHES, RATHER THAN WHETHER A UNION COULD COMPEL AN AGENCY TO
DO SO; YET IF GSA, WITH ITS REGULATORY AUTHORITY IN PROPERTY MANAGEMENT
CANNOT SO OBLIGATE ITS CLIENT AGENCIES, COULD FEDERAL EMPLOYEE LABOR
UNIONS, WHO HAVE NO RESPONSIBILITY FOR PROPERTY MANAGEMENT, NEVERTHELESS
NEGOTIATE TO PERSUADE AN AGENCY TO KEEP SPACE THAT IT WISHES TO
RELINQUISH? EVIDENTLY THE CLIENT AGENCY, OF ITS OWN VOLITION, IS QUITE
FREE TO DIVEST ITSELF OF UNNEEDED PARKING SPACES, FOR IT WAS HELD IN 55
COMP.GEN. 897 (1976) NOTED ABOVE:
"ACCORDINGLY, IT WOULD APPEAR THAT WHERE A GOVERNMENT AGENCY OCCUPIES
PARKING SPACE
ASSIGNED BY THE GSA FOR WHICH THERE IS NO CURRENT OR FORESEEABLE
AGENCY NEED, THE AGENCY MAY
RELINQUISH THAT SPACE BY GIVING THE NOTICE REQUIRED."
ASSUMING, ARGUENDO, THAT THE IRS DID NOT WISH, OR WAS NOT OBLIGATED,
TO RELINQUISH THE EMPLOYEE PARKING SPACES THAT IT DEEMED UNESSENTIAL,
ITS EMPLOYEES WOULD FACE A LOSS OF THEIR PRIVILEGE OF PARKING FREE OF
CHARGE AFTER NOVEMBER 1, 1979 A TEMPORARY REGULATION ON FEDERAL EMPLOYEE
PARKING TAKES EFFECT ON THAT DATE AND EXPIRES ON AUGUST 15, 1980. FPMR
TEMPORARY REGULATION D-65 (TEMP. REG. D-65), 44 FED.REG. 53161(1979), TO
BE CODIFIED IN 41 C.F.R. 101 SUBCHAPTER D, APPENDIX. TEMP. REG. D-65
IMPLEMENTS THE OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR A-118,
AUGUST 13, 1979, ENTITLED "FEDERAL EMPLOYEE PARKING FACILITIES."
THE POLICY OF PRESIDENT CARTER, AS REFLECTED IN THE OMB CIRCULAR AND
AS INCORPORATED IN TEMP. REG. D-65, CONTAINS THREE PARTS, 1( FEDERAL
AGENCY PARKING FACILITIES SHALL BE LIMITED TO THE MINIMUM NUMBER OF
SPACES NECESSARY TO AVOID IMPAIRMENT OF GOVERNMENT OPERATIONS, 2) SUCH
PARKING FACILITIES SHALL BE ADMINISTERED IN FULL COMPLIANCE WITH
CARPOOLING REGULATIONS, AND 3) SUBJECT TO CERTAIN EXEMPTIONS, FEDERAL
EMPLOYEES WHO ARE PROVIDED PARKING IN GOVERNMENT-CONTROLLED SPACE SHALL
BE ASSESSED A CHARGE EQUIVALENT TO THE FAIR MONTHLY RENTAL VALUE FOR THE
USE OF EQUIVALENT COMMERCIAL SPACE. OMB CIRCULAR A-118, PARAGRAPH 4;
TEMP. REG. D-65, PARAGRAPH 6, 44 FED.REG. 53162.
THE CHIEF EXEMPTIONS FROM THE FEE REQUIREMENT INCLUDE HANDICAPPED
EMPLOYEES, EMPLOYEES PARKING TWO-WHEELED OR GOVERNMENT-OWNED VEHICLES,
AND EMPLOYEES WHOSE DUTY HOURS CONSTITUTE A SHIFT THAT EITHER STARTS OR
ENDS OUTSIDE AN AGENCY'S NORMAL WORKING HOURS. MOREOVER, UNDER THE NEW
DIRECTIVE ALL EMPLOYEES OF AN AGENCY WOULD BE EXEMPT FROM PARKING FEES
ON THEIR PRIVATE VEHICLES IF THE COMMERCIAL RATE PER SPACE IN THAT
AGENCY'S GSA-CONTROLLED PARKING FACILITY IS UNDER $10 PER MONTH. OMB
CIRCULAR A-118, PARAGRAPHS 5A, B, G, I AND 9A; TEMP. REG. D-65,
PARAGRAPHS 7A(4), 7B AND 7B(1), AND 11A, 44 FED.REG. 53162-3.
IN LOCALITIES WHERE THE COMMERCIAL RATE PER SPACE EXCEEDS $10 PER
MONTH, EMPLOYEES PARKING IN GSA-CONTROLLED SPACE ARE TO BE CHARGED,
STARTING ON NOVEMBER 1, 1979, A MONTHLY RATE OF 50 PERCENT OF THE FULL
COMMERCIAL RATE. THE FULL RATE WILL CHARGED BEGINNING ON OCTOBER 1,
1981. OMB CIRCULAR A-118, PARAGRAPH 9A; TEMP. REG. D-65, PARAGRAPH
11C, 44 FED.REG. 53163.
INCIDENTALLY, THE "OLD" REGULATIONS ON PARKING SPACE ASSIGNMENT
PRIORITIES AND ON CARPOOLING, AT 41 C.F.R. 101-20.111-2(A) AND
101-20.117-- ARE EXPRESSLY SUPERSEDED BY THE TEMPORARY REGULATION AS OF
NOVEMBER 1, 1979.
TEMP. REG. D-65, PARAGRAPH 16, 44 FED.REG. 53163. AS I NOTED
EARLIER, HOWEVER, IT IS MY JUDGMENT THAT THE RESOLUTION OF THE QUESTION
THAT YOU PRESENTED TURNS NOT ON AN INTERPRETATION OF REGULATIONS
INVOLVING THE METHODS OF ASSIGNING PARKING SPACES, BUT RATHER ON AN
INTERPRETATION OF THOSE REGULATIONS CONCERNING THE RELINQUISHMENT BY
SUCH AGENCIES OF UNNEEDED OR UNDERUTILIZED SPACE. THE FUNDAMENTAL
QUESTION IS WHETHER THE IRS MUST NEGOTIATE WITH THE N.T.E.U. BEFORE
RETURNING TO GSA SPACES THAT THE IRS CONSIDERS DISPENSABLE. THE OMB
CIRCULAR AND THE TEMPORARY REGULATION DO NOT DISTURB THE CONTINUED
EFFECTIVENESS OF THOSE PROPERTY REGULATIONS WHICH I CITED EARLIER
REGARDING THE RELEASE BY CLIENT AGENCIES OF UNNEEDED OR UNDERUTILIZED
SPACE. THUS MY ADVISORY OPINION IS NOT ALTERED BY THE LANGUAGE OF
PARAGRAPH 6 OF THE CIRCULAR, WHICH DEFERS THE APPLICABILITY OF THE TERMS
OF THE CIRCULAR UNTIL THE EXPIRATION OF EXISTING LABOR AGREEMENTS THAT
CONTAIN PROVISIONS ON EMPLOYEE PARKING.
I REITERATE, IN CLOSING, THAT UNDER THE FEDERAL PROPERTY MANAGEMENT
REGULATIONS FEDERAL AGENCIES INDEED HAVE A DUTY UNDER A SPECIFIED
CIRCUMSTANCES TO RETURN TO GSA SPACE THAT THE AGENCIES CONSIDER TO BE NO
LONGER NEEDED. SUCH A DUTY, IMPOSED PURSUANT TO GOVERNMENT-WIDE
REGULATIONS, DOES, INDEED, PREVENT AN AGENCY FROM PROVIDING FREE
EMPLOYEE PARKING SPACES ON PROPERTY THAT THE AGENCY HAS DETERMINED IS
UNNEEDED, AND PRECLUDES NEGOTIATIONS ON ANY CONTRARY BARGAINING
PROPOSAL.
IN SUMMARY, GSA INTERPRETS APPLICABLE PROVISIONS OF THE FPMR,
SPECIFICALLY, 41 C.F.R. 101-17.2, AS IMPOSING UPON AN AGENCY THE
OBLIGATION TO RELINQUISH SPACE TO GSA, INCLUDING SPACE FOR PARKING,
AFTER THE AGENCY DETERMINES THAT SUCH SPACE IS NO LONGER NEEDED OR IS
UNDERUTILIZED. GSA ALSO STATES THAT THIS DUTY OF AN AGENCY TO
RELINQUISH SPACE IS CONTINGENT UPON A DETERMINATION BY THE AGENCY THAT
THE SPACE IS NO LONGER NEEDED OR IS UNDERUTILIZED. THAT IS, ACCORDING
TO GSA, UNDER THE FPMR, AN AGENCY HAS DISCRETION TO DETERMINE WHETHER IT
NEEDS, OR IS ABLE TO UTILIZE, A GIVEN SPACE. GSA THEN CONCLUDED,
WITHOUT CITING ANY PROVISION OF THE FPMR IN SUPPORT, THAT THE AGENCY
COULD NOT MAKE THE REQUISITE DETERMINATION, I.E., EXERCISE ITS
DISCRETION UNDER THE FPMR, THROUGH NEGOTIATIONS AS PROVIDED BY THE
UNION'S PROPOSAL.
THE AUTHORITY, FOR PURPOSES OF THIS DECISION, ADOPTS GSA'S CONCLUSION
THAT AN AGENCY IS OBLIGATED TO RELINQUISH SPACE TO GSA, INCLUDING SPACE
FOR PARKING, ONCE THE AGENCY DETERMINES IN ITS DISCRETION, THAT SUCH
SPACE IS NO LONGER NEEDED OR IS UNDERUTILIZED. HOWEVER, GSA'S FURTHER
CONCLUSION THAT THE AGENCY COULD NOT EXERCISE ITS DISCRETION IN THIS
REGARD THROUGH NEGOTIATIONS WITH A UNION IS WITHOUT SUPPORT. AS STATED
AT THE OUTSET OF THIS DECISION, CONGRESS, IN ENACTING THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, ESTABLISHED A REQUIREMENT
THAT AN AGENCY NEGOTIATE WITH THE EXCLUSIVE REPRESENTATIVE OF AN
APPROPRIATE UNIT OF ITS EMPLOYEES OVER THE CONDITIONS OF EMPLOYMENT
AFFECTING THOSE EMPLOYEES, EXCEPT TO THE EXTENT PROVIDED OTHERWISE BY
LAW OR REGULATION. THAT IS, TO THE EXTENT THAT AN AGENCY HAS DISCRETION
WITH RESPECT TO A MATTER AFFECTING THE CONDITIONS OF EMPLOYMENT OF ITS
EMPLOYEES, THAT MATTER IS WITHIN THE DUTY TO BARGAIN OF THE AGENCY.
/15/ GSA CITED NO PROVISION OF THE FPMR WHICH WOULD PRECLUDE THE AGENCY
FROM AGREEING TO RETAIN THE PARKING SPACES AT ISSUE FOR THE PURPOSES
STATED IN THE PROPOSAL. MOREOVER, GSA CITED NO PROVISION OF THE FPMR
WHICH WOULD REQUIRE AN AGENCY TO RELINQUISH SPACE MERELY BECAUSE IT
CEASED TO BE UTILIZED FOR A PARTICULAR PURPOSE, REGARDLESS OF WHETHER
THE AGENCY HAD DETERMINED THAT THE SPACE COULD BE PUT TO SOME OTHER USE.
IN SHORT, GSA CITED NO PROVISION OF THE FPMR WHICH BY ITS TERMS WOULD
SPECIFICALLY PRECLUDE THE RESULT SOUGHT BY THE UNION'S PROPOSAL.
RATHER, AS QUOTED ABOVE. GSA CLEARLY INTERPRETS THE FPMR AS
PERMITTING AN AGENCY TO MAKE THE DETERMINATION AS TO WHETHER IT DESIRES
TO RETAIN A GIVEN SPACE AND PUT IT TO A PARTICULAR USE. IN LIGHT OF THE
STATUTORY OBLIGATION TO BARGAIN OUTLINED ABOVE, GSA'S INTERPRETATION OF
THE FPMR PROVIDES AN INSUFFICIENT BASIS FOR THE CONCLUSION THAT THE
UNION'S PROPOSAL IS INCONSISTENT WITH APPLICABLE GOVERNMENT-WIDE
REGULATIONS WITHIN THE MEANING OF SECTION 7-17 OF THE STATUTE. THAT IS,
THE FACT THAT UNDER THE FPMR AN AGENCY HAS DISCRETION TO DECIDE WHETHER
TO RELINQUISH A GIVEN SPACE OR TO RETAIN IT FOR A PARTICULAR USE DOES
NOT MEAN THAT THE AGENCY IS THEREBY PRECLUDED FROM EXERCISING ITS
DISCRETION TO MAKE THAT DECISION THROUGH THE PROCESS OF NEGOTIATION WITH
AN EXCLUSIVE REPRESENTATIVE. GSA STATED THAT AN AGENCY'S DISCRETION IN
THIS REGARD UNDER THE FPMR IS SUBJECT TO THE OBLIGATION WHICH FEDERAL
AGENCIES OWE TO GSA CONCERNING THE MANAGEMENT OF PROPERTY. FEDERAL
AGENCIES ALSO HAVE AN OBLIGATION, HOWEVER, UNDER THE STATUTE TO
NEGOTIATE WITH EXCLUSIVE REPRESENTATIVES REGARDING CONDITIONS OF
EMPLOYMENT. THEREFORE, UNLESS THE TERMS OF AN AGENCY'S OBLIGATION TO
GSA AS STATED IN THE FPMR SPECIFICALLY PROVIDE OTHERWISE WITH RESPECT TO
A PARTICULAR MATTER AFFECTING CONDITIONS OF EMPLOYMENT, AN AGENCY IS
OBLIGATED TO NEGOTIATE WITH RESPECT TO THAT MATTER, SO LONG AS
NEGOTIATION IS NOT PRECLUDED ON OTHER GROUNDS.
GSA DID NOT ADVERT TO ANY PROVISION OF THE FPMR WHICH BY ITS SPECIFIC
TERMS WOULD PRECLUDE THE AGENCY FROM EXERCISING ITS DISCRETION REGARDING
THE PARTICULAR MATTER AT ISSUE HEREIN BY NEGOTIATION. INSTEAD, THE
CONCLUSION THAT THE UNION'S PROPOSAL CONFLICTS WITH THE FPMR IS BASED ON
THE UNSUPPORTED DETERMINATION THAT THE AGENCY'S DECISION WITH RESPECT TO
THE DISPOSITION OF SPACE MUST BE MADE BY THE AGENCY WITHIN ITS SOLE AND
EXCLUSIVE DISCRETION, AND THUS, THAT THE DECISION IS NOT SUBJECT TO THE
OBLIGATION TO BARGAIN. UNDER SECTION 7105 OF THE STATUTE, HOWEVER, ONLY
THE FEDERAL LABOR RELATIONS AUTHORITY IS EMPOWERED TO RESOLVE ISSUES
REGARDING WHETHER THE DUTY TO BARGAIN EXTENDS TO A PARTICULAR MATTER.
/16/ CONTRARY TO THE CONCLUSION REACHED BY GSA, IN THE ABSENCE OF
SPECIFIC PROVISIONS OF THE FPMR WHICH PROVIDE OTHERWISE, AND INSOFAR AS
NOT PRECLUDED ON OTHER GROUNDS, THE AGENCY'S DUTY TO BARGAIN UNDER THE
STATUTE EXTENDS TO THAT ASPECT OF THE UNION'S PROPOSAL HEREIN WHICH
RELATES TO THE AGENCY'S DECISION TO RELINQUISH THE PARKING SPACES IN
DISPUTE.
GSA ALSO STATES, HOWEVER, THAT EVEN IF THE AGENCY'S DECISION TO
RELINQUISH SPACE IS SUBJECT TO THE DUTY TO BARGAIN UNDER THE STATUTE,
THE AGENCY WOULD BE PRECLUDED FROM AGREEING TO PROVIDE THOSE SPACES FREE
OF CHARGE BY THE PROVISIONS OF FPMR TEMPORARY REGULATION D-65 (TEMP.
REG. D-65), 44 FED.REG. 53161(1979). SPECIFICALLY, UNDER SECTION 11 OF
THIS REGULATION, FEDERAL EMPLOYEES UTILIZING GOVERNMENT-CONTROLLED
PARKING SPACES SHALL BE ASSESSED A CHARGE AT A RATE WHICH IS THE SAME AS
THE COMMERCIAL EQUIVALENT VALUE OF THOSE PARKING SPACES. (BETWEEN
NOVEMBER 1, 1979, AND SEPTEMBER 30, 1981, HOWEVER, THE CHARGE WILL BE
ONE-HALF OF THE FULL RATE TO BE CHARGED.) /17/ THIS REGULATION IS
PRESENTLY IN EFFECT AND APPLIES TO THE PARKING SPACES HERE IN DISPUTE.
/18/ FURTHER, BASED UPON THE ANALYSIS STATED ABOVE, THIS REGULATION,
WHICH IS GENERALLY APPLICABLE THROUGHOUT THE EXECUTIVE BRANCH, /19/ IS A
GOVERNMENT-WIDE REGULATION WITHIN THE MEANING OF SECTION 7117 OF THE
STATUTE AND PRECLUDES NEGOTIATION ON A CONFLICTING UNION PROPOSAL.
THUS, SINCE THE UNION PROPOSAL WOULD REQUIRE THE AGENCY TO PROVIDE THE
DISPUTED PARKING SPACES FREE OF CHARGE TO EMPLOYEES, IT IS INCONSISTENT
WITH FPMR TEMPORARY REGULATION D-65 AND, TO THAT EXTENT, IS OUTSIDE THE
AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE.
THE AGENCY NEXT ALLEGES THAT THE UNION'S PROPOSAL IS OUTSIDE ITS DUTY
TO BARGAIN BECAUSE THE DECISION TO RELINQUISH THE DISPUTED PARKING
SPACES CONSTITUTES A DETERMINATION AS TO THE "MEANS OF PERFORMING WORK"
WITHIN THE MEANING OF SECTION 7106(B)(1) OF THE STATUTE. /20/ IN
PARTICULAR, THE AGENCY STATES THAT ITS DECISION TO RELINQUISH THE
PARKING SPACES IN QUESTION IS A RESULT OF ITS DECISION TO CHANGE FROM
PRE-PAID PARKING FOR EMPLOYEE'S PERSONAL VEHICLES USED IN CONNECTION
WITH OFFICIAL BUSINESS TO REIMBURSEMENT OF PARKING EXPENSES BY WAY OF
TRAVEL VOUCHERS INCIDENT TO OFFICIAL TRAVEL. THE POSITION OF THE
AGENCY, IN ESSENCE, IS THAT THIS CHANGE OF POLICY WITH RESPECT TO THE
WAY IN WHICH IT WILL PROVIDE THE PARKING NECESSARY FOR THE PERFORMANCE
OF ITS OPERATIONS IS A DETERMINATION OF THE "MEANS" OF PERFORMING ITS
WORK.
HOWEVER, EVEN ASSUMING THAT THE AGENCY POSITION IS CORRECT IN THIS
REGARD, IT WOULD NOT BE DISPOSITIVE OF THE ISSUE HERE. THE DECISION TO
RELINQUISH THE PARKING SPACES IS A SEPARATE MATTER. THAT IS, THE UNION
IS NOT HERE SEEKING TO REVERSE THE AGENCY'S POLICY DECISION AND REQUIRE
IT TO RETAIN THE SPACES FOR EMPLOYEE'S PERSONAL VEHICLES WHICH ARE USED
IN CONNECTION WITH OFFICIAL BUSINESS. RATHER, THE UNION PROPOSAL
ASSUMES THAT THE DECISION TO PROVIDE PARKING BY WAY OF TRAVEL VOUCHER
HAS ALREADY BEEN MADE. THE UNION'S PROPOSAL IS AN ATTEMPT TO NEGOTIATE
WHAT WILL BE DONE WITH THE PARKING SPACES IN QUESTION NOW THAT THEY ARE
NO LONGER PROVIDED FOR EMPLOYEE VEHICLES USED IN CONNECTION WITH THE
AGENCY'S OPERATIONS. IN PARTICULAR, THE UNION PROPOSES THAT THE SPACES
BE USED TO PROVIDE PARKING, FREE OF CHARGE, FOR EMPLOYEE VEHICLES WHICH
ARE NOT USED IN THE PERFORMANCE OF OFFICIAL BUSINESS BUT, E.G.,
PRIMARILY FOR COMMUTING. /21/ THE BASIC ISSUE, THEREFORE, IS WHETHER
THE UNION'S PROPOSED DISPOSITION OF THE PARKING SPACES WOULD IMPOSE UPON
THE AGENCY A PARTICULAR "MEANS" OF PERFORMING ITS WORK.
THE RIGHT OF THE AGENCY UNDER SECTION 7106(B)(1) OF THE STATUTE TO
ELECT WHETHER OR NOT IT WILL NEGOTIATE OVER "METHODS" AND "MEANS"
EXTENDS ONLY TO MATTERS WHICH PERTAIN TO THE PERFORMANCE OF THE WORK OF
THE AGENCY. /22/ THE PURPOSES FOR WHICH THE PARKING SPACES IN THIS CASE
ARE TO BE RETAINED UNDER THE UNION'S PROPOSAL ARE NOT RELATED TO THE
PERFORMANCE OF THE AGENCY'S WORK. THAT IS, AS ALREADY INDICATED, THE
UNION IS NOT PROPOSING THAT THE SPACES BE RETAINED IN ORDER THAT
EMPLOYEES MAY HAVE THEIR OWN CARS AVAILABLE FOR USE IN PERFORMING THEIR
OFFICIAL DUTIES, BUT PRIMARILY SO THAT EMPLOYEES WILL HAVE A PLACE TO
PARK VEHICLES THEY USE TO COMMUTE TO WORK. THEREFORE, THE UNION'S
PROPOSAL, FOR THE REASONS STATED, DOES NOT CONCERN SUCH A MATTER. THUS,
APART FROM CONSIDERATION OF THE REMAINING GROUND OF NONNEGOTIABILITY
ALLEGED BY THE AGENCY, THE PROPOSAL, INSOFAR AS IT REQUIRES THE AGENCY
TO RETAIN THE DISPUTED PARKING SPACES DOES NOT CONCERN A MATTER ABOUT
WHICH THE AGENCY MAY ELECT TO NEGOTIATE UNDER SECTION 7106(B)(1) AND, IN
THIS REGARD, IS WITHIN THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE.
THE REMAINING AGENCY ALLEGATION IS THAT THE UNION'S PROPOSAL
CONFLICTS WITH ITS RIGHT TO DETERMINE ITS BUDGET UNDER SECTION
7106(A)(1) OF THE STATUTE. /23/ THE AGENCY STATES, IN THIS REGARD, THAT
THE DECISION TO RELINQUISH THE PARKING SPACES AT ISSUE IN THIS CASE WAS
BASED ON "BUDGETARY CONSIDERATIONS," I.E., REIMBURSEMENT OF EMPLOYEE
PARKING EXPENSES BY TRAVEL VOUCHER WOULD COST THE AGENCY LESS THAN
PROVIDING PRE-PAID PARKING FOR EMPLOYEE VEHICLES USED IN CONNECTION WITH
AGENCY BUSINESS. THUS, THE AGENCY TAKES THE POSITION THAT THE UNION'S
PROPOSAL CONFLICTS WITH ITS RIGHT UNDER SECTION 7106(A)(1) TO MAKE THIS
BUDGETARY DETERMINATION BECAUSE THE PROPOSAL WOULD REQUIRE IT TO ABSORB
THE ADDITIONAL COSTS OF RETAINING THE SPACES IT HAD PLANNED TO
RELINQUISH TO GSA. ASSUMING THE AGENCY AGREED TO RETAIN THE SPACES,
SUCH ADDITIONAL COSTS, GIVEN THE EFFECT OF FPMR TEMPORARY REGULATION
D-65 DISCUSSED ABOVE, COULD AMOUNT TO ONE-HALF THE COMMERCIAL EQUIVALENT
VALUE OF THE PARKING SPACES IN DISPUTE, AT LEAST UNTIL SEPTEMBER 30,
1981.
THE AUTHORITY, IN WRIGHT-PATTERSON AIR FORCE BASE, /24/ CONSIDERED
THE ARGUMENT THAT A PROPOSAL WHICH IMPOSED ADDITIONAL COSTS UPON AN
AGENCY WOULD VIOLATE THE RIGHT OF AN AGENCY TO DETERMINE ITS BUDGET
UNDER SECTION 7106(A)(1). THE AUTHORITY REJECTED THE POSITION THAT COST
ALONE WAS A DECIDING FACTOR IN DETERMINING THE NEGOTIABILITY OF A
PROPOSAL UNDER SECTION 7106(A)(1). THE AUTHORITY STATED AS FOLLOWS:
/25/
. . . THE UNDERLYING ASSUMPTION OF THIS POSITION APPEARS TO BE THAT A
PROPOSAL IS
INCONSISTENT WITH THE AUTHORITY OF THE AGENCY TO DETERMINE ITS BUDGET
WITHIN THE MEANING OF
SECTION 7106(A)(1) IF IT IMPOSES A COST UPON THE AGENCY WHICH
REQUIRES THE EXPENDITURE OF
APPROPRIATED AGENCY FUNDS. SUCH A CONSTRUCTION OF THE STATUTE,
HOWEVER, COULD PRECLUDE
NEGOTIATION ON VIRTUALLY ALL OTHERWISE NEGOTIABLE PROPOSALS, SINCE,
TO ONE EXTENT OR ANOTHER,
MOST PROPOSALS WOULD HAVE THE EFFECT OF IMPOSING COSTS UPON THE
AGENCY WHICH WOULD REQUIRE THE
EXPENDITURE OF APPROPRIATED AGENCY FUNDS. NOTHING IN THE RELEVANT
LEGISLATIVE HISTORY
INDICATES THAT CONGRESS INTENDED THE RIGHT OF MANAGEMENT TO DETERMINE
ITS BUDGET TO BE SO
INCLUSIVE AS TO NEGATE IN THIS MANNER THE OBLIGATION TO BARGAIN.
THERE IS NO QUESTION BUT THAT CONGRESS INTENDED THAT ANY PROPOSAL
WHICH WOULD DIRECTLY
INFRINGE ON THE EXERCISE OF MANAGEMENT RIGHTS UNDER SECTION 7106 OF
THE STATUTE WOULD BE
BARRED FROM NEGOTIATION. WHETHER A PROPOSAL DIRECTLY AFFECTS THE
AGENCY'S DETERMINATION OF
ITS BUDGET DEPENDS UPON THE DEFINITION OF "BUDGET" AS USED IN THE
STATUTE. THE STATUTE AND
LEGISLATIVE HISTORY DO NOT CONTAIN SUCH A DEFINITION. IN THE ABSENCE
OF A CLEARLY STATED
LEGISLATIVE INTENT, IT IS APPROPRIATE TO GIVE THE TERM ITS COMMON OR
DICTIONARY
DEFINITION. AS DEFINED BY THE DICTIONARY, "BUDGET" MEANS A STATEMENT
OF THE FINANCIAL
POSITION OF A BODY FOR A DEFINITE PERIOD OF TIME BASED ON DETAILED
ESTIMATES OF PLANNED OR
EXPECTED EXPENDITURES DURING THE PERIOD AND PROPOSALS FOR FINANCING
THEM. IN THIS SENSE, THE
AGENCY'S AUTHORITY TO DETERMINE ITS BUDGET EXTENDS TO THE
DETERMINATION OF THE PROGRAMS AND
OPERATIONS WHICH WILL BE INCLUDED IN THE ESTIMATE OF PROPOSED
EXPENDITURES AND THE
DETERMINATION OF THE AMOUNTS REQUIRED TO FUND THEM. UNDER THE
STATUTE, THEREFORE, AN AGENCY
CANNOT BE REQUIRED TO NEGOTIATE THOSE PARTICULAR BUDGETARY
DETERMINATIONS. THAT IS, A UNION
PROPOSAL ATTEMPTING TO PRESCRIBE THE PARTICULAR PROGRAMS OR
OPERATIONS THE AGENCY WOULD
INCLUDE IN ITS BUDGET OR TO PRESCRIBE THE AMOUNT TO BE ALLOCATED IN
THE BUDGET FOR THEM WOULD
INFRINGE UPON THE AGENCY'S RIGHT TO DETERMINE ITS BUDGET UNDER
SECTION 7106(A)(1) OF THE
STATUTE.
MOREOVER, WHERE A PROPOSAL WHICH DOES NOT BY ITS TERMS PRESCRIBE THE
PARTICULAR PROGRAMS OR
AMOUNTS TO BE INCLUDED IN AN AGENCY'S BUDGET, NEVERTHELESS IS ALLEGED
TO VIOLATE THE AGENCY'S
RIGHT TO DETERMINE ITS BUDGET BECAUSE OF INCREASED COST,
CONSIDERATION MUST BE GIVEN TO ALL
THE FACTORS INVOLVED. THAT IS, RATHER THAN BASING A DETERMINATION AS
TO THE NEGOTIABILITY OF
THE PROPOSAL ON INCREASED COST ALONE, THAT ONE FACTOR MUST BE WEIGHED
AGAINST SUCH FACTORS AS
THE POTENTIAL FOR IMPROVED EMPLOYEE PERFORMANCE, INCREASED
PRODUCTIVITY, REDUCED TURNOVER,
FEWER GRIEVANCES, AND THE LIKE. ONLY WHERE AN AGENCY MAKES A
SUBSTANTIAL DEMONSTRATION THAT
AN INCREASE IN COSTS IS SIGNIFICANT AND UNAVOIDABLE AND IS NOT OFFSET
BY COMPENSATING BENEFITS
CAN AN OTHERWISE NEGOTIABLE PROPOSAL BE FOUND TO VIOLATE THE AGENCY'S
RIGHT TO DETERMINE ITS
BUDGET UNDER SECTION 7106(A) OF THE STATUTE. (FOOTNOTES OMITTED.)
THE PROPOSAL AT ISSUE HEREIN, HOWEVER, WHICH WOULD REQUIRE THE AGENCY
TO RETAIN CERTAIN PARKING SPACES AND COULD THEREBY, UNDER FPMR TEMPORARY
REGULATION D-65, REQUIRE IT TO ABSORB UP TO ONE-HALF THE COST OF
EMPLOYEE PARKING, DOES NOT REQUIRE THE AGENCY TO NEGOTIATE ITS BUDGET.
THAT IS, THE PROPOSAL DOES NOT ON ITS FACE PRESCRIBE THAT THE AGENCY'S
BUDGET WILL INCLUDE A SPECIFIC PROVISION FOR THOSE PARKING SPACES OR A
SPECIFIC MONETARY AMOUNT TO FUND THEM. FURTHERMORE, THE AGENCY HAS NOT
DEMONSTRATED THAT RETENTION OF THE PARKING SPACES AT ISSUE HEREIN WILL
RESULT IN A SIGNIFICANT INCREASE IN COSTS. IN PARTICULAR, THE AGENCY
MADE NO ATTEMPT TO REFUTE THE FIGURES, OR THE CALCULATIONS BASED ON
THOSE FIGURES, BY WHICH THE UNION SHOWED THAT THE COST OF RETAINING THE
PARKING SPACES REPRESENTED ONLY 1/6 OF 1% TO 1/7 OF 1% OF THE TOTAL
BUDGET FOR THE NEW ORLEANS REGIONAL OFFICE FOR THE LAST FISCAL YEAR.
MOREOVER, UNDER FPMR TEMPORARY REGULATION D-65, THE POSSIBLE BUDGETARY
IMPACT OF RETAINING THOSE SPACES WOULD BE EVEN LESS. IT IS NOT
NECESSARY, THEREFORE, TO REACH THE ISSUE OF WHETHER THE ALLEGED INCREASE
IN COSTS IS OUTWEIGHED BY COMPENSATING BENEFITS. CONSEQUENTLY, THE
PROPOSAL AT ISSUE HEREIN DOES NOT VIOLATE THE RIGHT OF THE AGENCY TO
DETERMINE ITS BUDGET UNDER SECTION 7106(A) OF THE STATUTE.
IN SUMMARY, CONSIDERATION OF EACH OF THE GROUNDS FOR NONNEGOTIABILITY
ALLEGED BY THE AGENCY LEADS TO THE CONCLUSION THAT, FOR THE FOREGOING
REASONS, THE UNION'S PROPOSAL, INSOFAR AS IT WOULD REQUIRE THE AGENCY TO
RETAIN THE DISPUTED PARKING SPACES FOR EMPLOYEE PARKING IS WITHIN THE
AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE; BUT TO THE EXTENT THAT IT
WOULD REQUIRE THE AGENCY TO PROVIDE THOSE SPACES FREE OF CHARGE TO
EMPLOYEES, IT CONFLICTS WITH THE CURRENTLY APPLICABLE GOVERNMENT-WIDE
REGULATION, NAMELY FPMR TEMPORARY REGULATION D-65 44 FED.REG.
53161(1979), UNDER SECTION 7117(A) OF THE STATUTE, AND THUS, IN THAT
RESPECT, IS OUTSIDE THE AGENCY'S DUTY TO BARGAIN.
ISSUED, WASHINGTON, D.C., JULY 30, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ FOR A NUMBER OF YEARS, THE INTERNAL REVENUE SERVICE, NEW ORLEANS
DISTRICT OFFICE (THE ACTIVITY) PROVIDED PRE-PAID, I.E., FREE, PARKING
SPACES FOR EMPLOYEES' PRIVATE VEHICLES AT VARIOUS POSTS OF DUTY IN THE
DISTRICT. MANY OF THESE PRIVATE VEHICLES WERE NOT USED FOR OFFICIAL
BUSINESS. IN JANUARY 1979, THE AGENCY NOTIFIED NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 6 (THE UNION) OF ITS INTENTION TO RELEASE MOST
OF THE PRE-PAID PARKING SPACES. THE UNION REQUESTED THE OPPORTUNITY TO
NEGOTIATE WITH THE AGENCY ABOUT THE "THE SUBSTANCE, IMPACT, AND
IMPLEMENTATION OF THIS DECISION." THE AGENCY INFORMED THE UNION THAT ITS
DECISION TO RELEASE THE PARKING SPACES WAS NONNEGOTIABLE. THE UNION IS
APPEALING THIS AGENCY ALLEGATION TO THE AUTHORITY, URGING THE AUTHORITY
TO "RULE THAT THE DECISION ITSELF IS NEGOTIABLE." IT APPEARS FROM THE
RECORD IN THE CASE THAT THE AGENCY HELD IN ABEYANCE IMPLEMENTATION OF
ITS DECISION PENDING THE DECISION OF THE AUTHORITY ON THE UNION'S
APPEAL.
/2/ IN SO DECIDING THAT THE PROPOSAL, INSOFAR AS IT WOULD REQUIRE THE
AGENCY TO RETAIN THE PARKING SPACES IN DISPUTE, IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THAT ASPECT
OF THE PROPOSAL.
/3/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE
OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
7103(A)(12) AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF THE
STATUTE:
SEC. 7103. DEFINITIONS; APPLICATION
* * * *
(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH
EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH
EMPLOYEES
* * * *
(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS . . .
/4/ THE AGENCY CITES THE FPMR, 41 C.F.R. 101-20.111-2(A) AND SEC.
101-20.117. 41 C.F.R. 101-20.111-2(A) PROVIDES AS FOLLOWS:
SEC. 101-20.111 VEHICLE PARKING FACILITIES.
* * * *
SEC. 101-20.111-2 POLICY.
(A) GSA WILL ESTABLISH, TO THE EXTENT FUNDS ARE AVAILABLE THEREFOR,
VEHICLE PARKING
FACILITIES IN AND AROUND EXISTING GOVERNMENT-OWNED PROPERTIES UNDER
THE CUSTODY AND CONTROL OF
GSA. SUCH FACILITIES WILL BE CONSISTENT WITH THE CHARACTER OF OTHER
PROPERTIES IN THE
NEIGHBORHOOD, WILL NOT ADVERSELY AFFECT THE USE OR APPEARANCE OF THE
GOVERNMENT PROPERTY, AND
WILL NOT CONSTITUTE A TRAFFIC HAZARD. GSA WILL ALLOCATE PARKING
SPACE AT THE FACILITY IN THE
FOLLOWING ORDER OF PRIORITY:
(1) POSTAL MANEUVERING AREA AND OFFICIAL POSTAL VEHICLE PARKING
(INCLUDING CONTRACT MAIL
HAULING VEHICLES AND PRIVATE VEHICLES OF RURAL CARRIERS);
(2) GOVERNMENT-OWNED VEHICLES USED FOR CRIMINAL APPREHENSION LAW
ENFORCEMENT ACTIVITIES;
(3) PRIVATELY OWNED VEHICLES OF FEDERAL JUDGES, MEMBERS OF CONGRESS,
AND HEADS OF OCCUPANT
AGENCIES (PRIORITY IS LIMITED TO THE INDIVIDUALS AND DOES NOT INCLUDE
MEMBERS OF THEIR
STAFFS);
(4) OFFICIAL PARKING OTHER THAN THAT LISTED IN PARAGRAPHS (A)(1) AND
(2) OF THIS SECTION:
(I) NET REQUIREMENTS FOR GOVERNMENT-OWNED VEHICLES OTHER THAN THOSE
LISTED IN PARAGRAPHS
(A)(1) AND (2) OF THIS SECTION INCLUDING MOTOR POOL DISPATCH SERVICE
VEHICLES AND VEHICLES
ASSIGNED DIRECTLY TO OCCUPANT AGENCIES, SHALL BE AN AMOUNT LESS THAN
THE TOTAL NUMBER OF
VEHICLES ASSIGNED TO THE POOL, DEPENDING ON THE NATURE OF THE POOL
OPERATIONS;
(II) AREAS ASSIGNED FOR GOVERNMENT-OWNED VEHICLES, INCLUDING POSTAL
AND MOTOR POOL AREAS,
SHALL ALSO BE USED DURING OTHER THAN EARLY MORNING OR LATE AFTERNOON
HOURS FOR VISITORS,
SERVICE VEHICLES, PRIVATELY OWNED VEHICLES REGULARLY USED FOR
OFFICIAL BUSINESS, PHYSICALLY
HANDICAPPED EMPLOYEES OF OCCUPANT AGENCIES, AND OCCUPANT AGENCY
EMPLOYEES NOT OTHERWISE
ACCOMMODATED (WITH PREFERENCE GIVEN TO CARPOOL DRIVERS), IN THE ORDER
NAMED. IN CONNECTION
WITH PART-TIME USE OF THESE AREAS, STREET PARKING, MUNICIPAL LOTS,
AND COMMERCIAL PARKING
FACILITIES MAY BE USED DURING EARLY AND LATE HOURS WHEN
GOVERNMENT-OWNED VEHICLES ARE
OCCUPYING ASSIGNED SPACES;
(5) VEHICLES OF PATRONS AND VISITORS AND SERVICE VEHICLES NOT
ACCOMMODATED UNDER PARAGRAPH
(A)(4)(II) OF THIS SECTION; AND
(6) PRIVATELY OWNED VEHICLES OF EMPLOYEES OF OCCUPANT AGENCIES NOT
OTHERWISE ACCOMMODATED.
41 C.F.R. 101-20.117 PROVIDES, IN RELEVANT PART, AS FOLLOWS:
SEC. 101-20.117 CARPOOL PARKING. SEC. 101-
* * * *
SEC. 101-20.117-2 POLICIES.
AGENCIES SHALL ENCOURAGE THE CONSERVATION OF ENERGY BY TAKING
POSITIVE ACTION TO INCREASE
CARPOOLING. THE FOLLOWING POLICIES SHALL BE REFLECTED IN AGENCY
PLANS:
(A) PARKING. IN ASSIGNING ALL PARKING SPACES ASSIGNED TO OR
CONTROLLED BY EACH AGENCY, THE
FOLLOWING POLICIES SHALL BE OBSERVED:
(1) AGENCIES SHALL GIVE FIRST PRIORITY TO OFFICIAL AND VISITOR
PARKING REQUIREMENTS.
(2) SEVERELY HANDICAPPED GOVERNMENT EMPLOYEES FOR WHOM ASSIGNED
PARKING SPACES ARE
NECESSARY SHALL BE ACCOMMODATED.
(3) A GOAL OF NOT MORE THAN 10 PERCENT OF THE TOTAL SPACES AVAILABLE
FOR EMPLOYEE PARKING
ON AN AGENCY-WIDE BASIS (EXCLUDING SPACES ASSIGNED TO SEVERELY
HANDICAPPED) SHALL BE ASSIGNED
TO EXECUTIVE PERSONNEL AND PERSONS WHO ARE ASSIGNED UNUSUAL HOURS.
(4) ALL OTHER SPACES AVAILABLE FOR EMPLOYEE PARKING SHALL BE MADE
AVAILABLE TO CARPOOLS TO
THE EXTENT PRACTICAL.
(5) THOSE PARKING SPACES RESERVED FOR CARPOOLS SHALL BE ASSIGNED
PRIMARILY ON THE BASIS OF
THE NUMBER OF MEMBERS IN A CARPOOL.
(6) FOR THE PURPOSE OF ALLOCATION OF PARKING SPACES FOR CARPOOLS,
FULL CREDIT SHALL BE
GIVEN TO ANY REGULAR MEMBER REGARDLESS OF WHERE HE IS EMPLOYED EXCEPT
THAT AT LEAST ONE MEMBER
OF THE CARPOOL MUST BE A FULL-TIME EMPLOYEE OF THE AGENCY.
/5/ SEE NOTE 3, SUPRA.
/6/ SECTION 7117(D) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
* * * *
(D)(1) A LABOR ORGANIZATION WHICH IS THE EXCLUSIVE REPRESENTATIVE OF
A SUBSTANTIAL NUMBER
OF EMPLOYEES, DETERMINED IN ACCORDANCE WITH CRITERIA PRESCRIBED BY
THE AUTHORITY, SHALL BE
GRANTED CONSULTATION RIGHTS BY ANY AGENCY WITH RESPECT TO ANY
GOVERNMENT-WIDE RULE OR
REGULATION ISSUED BY THE AGENCY EFFECTING ANY SUBSTANTIVE CHANGE IN
ANY CONDITION OF
EMPLOYMENT. SUCH CONSULTATION RIGHTS SHALL TERMINATE WHEN THE LABOR
ORGANIZATION NO LONGER
MEETS THE CRITERIA PRESCRIBED BY THE AUTHORITY. ANY ISSUE RELATING
TO A LABOR ORGANIZATION'S
ELIGIBILITY FOR, OR CONTINUATION OF, SUCH CONSULTATION RIGHTS SHALL
BE SUBJECT TO
DETERMINATION BY THE AUTHORITY.
(2) A LABOR ORGANIZATION HAVING CONSULTATION RIGHTS UNDER PARAGRAPH
(1) OF THIS SUBSECTION
SHALL--
(A) BE INFORMED OF ANY SUBSTANTIVE CHANGE IN CONDITIONS OF EMPLOYMENT
PROPOSED BY THE
AGENCY, AND
(B) SHALL BE PERMITTED REASONABLE TIME TO PRESENT ITS VIEWS AND
RECOMMENDATIONS REGARDING
THE CHANGES.
(3) IF ANY VIEWS OR RECOMMENDATIONS ARE PRESENTED UNDER PARAGRAPH (2)
OF THIS SUBSECTION TO
AN AGENCY BY ANY LABOR ORGANIZATION--
(A) THE AGENCY SHALL CONSIDER THE VIEWS OR RECOMMENDATIONS BEFORE
TAKING FINAL ACTION ON
ANY MATTER WITH RESPECT TO WHICH THE VIEWS OR RECOMMENDATIONS ARE
PRESENTED; AND
(B) THE AGENCY SHALL PROVIDE THE LABOR ORGANIZATION A WRITTEN
STATEMENT OF THE REASONS FOR
TAKING THE FINAL ACTION.
/7/ H. REP. NO. 95-1403, 95TH CONG., 2ND SESS. 51-52 (1978).
/8/ SEE THE STATEMENT OF CONGRESSMAN FORD OF MICHIGAN, A PROPONENT OF
"THE UDALL SUBSTITUTE," DURING THE DEBATE ON THE HOUSE FLOOR:
SECTION 7117 SETS FORTH THE DUTY TO BARGAIN IN GOOD FAITH, ESPECIALLY
WITH RESPECT TO
REGULATIONS. UNDER THE COMPROMISE VERSION, GOVERNMENT-WIDE RULES AND
REGULATIONS ARE NO
LONGER SUBJECT TO BARGAINING AS THEY WERE UNDER THE COMMITTEE PRINT
OF TITLE VII (EXCEPT FOR
THOSE SUPPORTED BY A COMPELLING NEED). IN THIS FASHION,
GOVERNMENT-WIDE RULES AND REGULATIONS
ARE THUS A MAJOR EXCEPTION TO THE DUTY TO BARGAIN. IN MAKING THIS
CHANGE, HOWEVER, THE
COMMITTEE AT NO TIME EXPANDED THE DEFINITION OF "GOVERNMENT-WIDE" AS
CONTAINED IN THE
COMMITTEE'S REPORT.
124 CONG. REC. H9650 (DAILY ED. SEPT. 13, 1978).
/9/ SECTION 7218 OF THE BILL PASSED BY THE SENATE (S.2640) PROVIDED,
IN RELEVANT PART, AS FOLLOWS:
SEC. 7218. BASIC PROVISIONS OF AGREEMENTS
(A) EACH AGREEMENT BETWEEN AN AGENCY AND A LABOR ORGANIZATION SHALL
PROVIDE THE FOLLOWING:
(1) IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT,
OFFICIALS AND EMPLOYEES
SHALL BE GOVERNED BY--
(A) EXISTING OR FUTURE LAWS AND THE REGULATIONS OF APPROPRIATE
AUTHORITIES, INCLUDING
POLICIES WHICH ARE SET FORTH IN THE FEDERAL PERSONNEL MANUAL . . .
/10/ H. REP. NO. 95-7117, 95TH CONG., 2ND SESS. 158-159 (1978).
/11/ CF. STATEMENT OF CONGRESSMAN FORD OF MICHIGAN, 124 CONG. REC.
H9650 (DAILY ED. SEPT. 13, 1978).
/12/ ROSADO V. WYMAN, 379 U.S. 397, 415(1970).
/13/ 124 CONG.REC. H9638 (DAILY ED. SEPT. 13, 1978)(REMARKS OF REP.
CLAY).
/14/ SEE GENERALLY 41 C.F.R. 101-17.003 ET SEQ.
/15/ GSA CITES 55 COMP.GEN. 897(1976) IN SUPPORT OF ITS POSITION.
HOWEVER, THAT DECISION, WHICH HELD THAT GSA COULD NOT COMPEL AN AGENCY
TO ACCEPT AND PAY FOR AN ALLOCATION OF PARKING SPACES WHICH THE AGENCY
DETERMINED IT DID NOT NEED, MERELY REINFORCES THE POINT THAT AN AGENCY,
UNDER THE FPMR, HAS DISCRETION AS TO WHETHER IT WILL RETAIN OR
RELINQUISH PARKING SPACES ALLOCATED TO IT BY GSA. BASED ON THIS
DECISION, GSA MAKES THE FURTHER ARGUMENT THAT SINCE, EVEN WITH ITS
REGULATORY AUTHORITY OVER FEDERAL PROPERTY MANAGEMENT, GSA CANNOT
OBLIGATE AN AGENCY TO RETAIN SPACE, AN EXCLUSIVE REPRESENTATIVE, WHICH
HAS NO AUTHORITY IN THE AREA OF PROPERTY MANAGEMENT, COULD NOT NEGOTIATE
TO PERSUADE AN AGENCY TO RETAIN SPACE WHICH THE AGENCY WISHED TO
RELINQUISH. THE ARGUMENT IS WITHOUT MERIT SINCE IT FAILS TO TAKE INTO
ACCOUNT THE EFFECT OF AN AGENCY'S STATUTORY OBLIGATION TO NEGOTIATE OVER
THOSE CONDITIONS OF EMPLOYMENT WHICH ARE WITHIN ITS DISCRETION.
/16/ SECTION 7105(A)(2)(E) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 7105. POWERS AND DUTIES OF THE AUTHORITY.
* * * 10*
(E) RESOLVE ISSUES RELATING TO THE DUTY TO BARGAIN IN GOOD FAITH
UNDER SECTION 7117(C) OF
THIS TITLE . . .
SECTION 7117(C) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
* * * *
(C)(1) EXCEPT IN ANY CASE TO WHICH SUBSECTION (B) OF THIS SECTION
APPLIES, IF AN AGENCY
INVOLVED IN COLLECTIVE BARGAINING WITH AN EXCLUSIVE REPRESENTATIVE
ALLEGES THAT THE DUTY TO
BARGAIN IN GOOD FAITH DOES NOT EXTEND TO ANY MATTER, THE EXCLUSIVE
REPRESENTATIVE MAY APPEAL
THE ALLEGATION TO THE AUTHORITY IN ACCORDANCE WITH THE PROVISIONS OF
THIS SUBSECTION.
(2) THE EXCLUSIVE REPRESENTATIVE MAY, ON OR BEFORE THE 15TH DAY AFTER
THE DATE ON WHICH THE
AGENCY FIRST MAKES THE ALLEGATION REFERRED TO IN PARAGRAPH (1) OF
THIS SUBSECTION, INSTITUTE
AN APPEAL UNDER THIS SUBSECTION BY--
(A) FILING A PETITION WITH THE AUTHORITY; AND
(B) FURNISHING A COPY OF THE PETITION TO THE HEAD OF THE AGENCY.
(3) ON OR BEFORE THE 30TH DAY AFTER THE DATE OF THE RECEIPT BY THE
HEAD OF THE AGENCY OF
THE COPY OF THE PETITION UNDER PARAGRAPH (2)(B) OF THIS SUBSECTION,
THE EXCLUSIVE
REPRESENTATIVE SHALL FILE WITH THE AUTHORITY ITS RESPONSE TO THE
STATEMENT.
(5) A HEARING MAY BE HELD, IN THE DISCRETION OF THE AUTHORITY, BEFORE
A DETERMINATION IS
MADE UNDER THIS SUBSECTION. IF A HEARING IS HELD, IT SHALL NOT
INCLUDE THE GENERAL COUNSEL AS
A PARTY.
(6) THE AUTHORITY SHALL EXPEDITE PROCEEDINGS UNDER THIS SUBSECTION TO
THE EXTENT
PRACTICABLE AND SHALL ISSUE TO THE EXCLUSIVE REPRESENTATIVE AND TO
THE AGENCY A WRITTEN
DECISION ON THE ALLEGATION AND SPECIFIC REASONS THEREFOR AT THE
EARLIEST POSSIBLE DATE.
/17/ SECTION 11 OF THE FPMR TEMPORARY REGULATION D-65, 44 FED.REG.
53161, 53163(1979), PROVIDES AS FOLLOWS:
11. CHARGES FOR EMPLOYEE PARKING. A. AT ALL FACILITIES WHERE THE
MONTHLY RATE PER SPACE
IS $10 OR MORE, EMPLOYEES SHALL BE CHARGED FOR THE PARKING THEY ARE
FURNISHED UNLESS
SPECIFICALLY EXEMPT (SEE SUBPARAGRAPH 7B). FOR PARKING SPACES UNDER
THE CONTROL OF GSA, THE
CHARGING SYSTEM WILL OVERLAY THE EXISTING FEDERAL BUILDINGS FUND
PROCEDURE. THAT IS, GSA WILL
ASSIGN BLOCKS OF PARKING SPACES, BOTH OFFICIAL AND EMPLOYEE, TO THE
AGENCIES AND ASSESS THE
APPROPRIATE STANDARD LEVEL USER CHARGE. THE AGENCIES SHALL MAKE
THEIR OWN INDIVIDUAL
ASSIGNMENTS TO THEIR EMPLOYEES CONSISTENT WITH THE CARPOOLING
REQUIREMENTS. AGENCIES SHALL
COLLECT THE FEES AT THE TIME THE PERMITS ARE ISSUED TO EMPLOYEES.
(SEE PARAGRAPH 12.)
B. ON JULY 1 OF EACH YEAR, GSA WILL FURNISH EACH AGENCY A PRINTOUT
LISTING THE MONTHLY
PARKING CHARGE FOR THE NEXT FISCAL YEAR AT EACH GSA-CONTROLLED
FACILITY WHERE THE RATE PER
SPACE EXCEEDS $10. THE RATES TO BE CHARGED WILL BE THE SAME AS THE
COMMERCIAL EQUIVALENT
VALUE OF THE SPACES DETERMINED UNDER THE STANDARD LEVEL USER CHARGE
SYSTEM. RATES FOR
NON-GSA-CONTROLLED PARKING MAY BE ESTABLISHED BY THE RESPONSIBLE
AGENCY IN ACCORDANCE WITH 40
U.S.C. 49(K), USING GENERALLY ACCEPTED APPRAISAL TECHNIQUES. GSA
WILL ASSIST AGENCIES IN
DEVELOPING THE PARKING RATES FOR THEIR PROPERTIES WHEN REQUESTED. IN
THIS CONNECTION, GSA HAS
DEVELOPED GSA FORM 3183, APPRAISAL OF FAIR MONTHLY PARKING RATES PER
SPACE, A SIMPLIFIED
APPRAISAL FORM FOR DETERMINING THE MONTHLY PARKING RATE. PARAGRAPH
18 PROVIDES INFORMATION
AND INSTRUCTIONS CONCERNING THE AVAILABILITY OF GSA FORM 3183. RATES
MUST BE DEVELOPED BY
AGENCIES AND SUBMITTED TO THE APPROPRIATE GSA REGIONAL OFFICE
(ATTENTION: REGIONAL
COMMISSIONER, PBS) FOR APPROVAL.
C. FOR THE INITIAL PERIOD NOVEMBER 1, 1979, THROUGH SEPTEMBER 30,
1981, THE CHARGES TO BE
COLLECTED SHALL BE 50 PERCENT OF THE FULL RATE SCHEDULED TO BE
COLLECTED. THE FULL CHARGE
SHALL BE COLLECTED BEGINNING OCTOBER 1, 1981.
D. IN COMMUNITIES HAVING SEVERAL FEDERAL FACILITIES, BUILDINGS MAY
BE GROUPED OR
"ZONED" FOR THE PURPOSE OF ESTABLISHING A UNIFORM PARKING RATE FOR
THE AREA RATHER THAN A
BUILDING-BY-BUILDING CHARGE.
/18/ THE AUTHORITY TAKES NOTE OF THE FACT THAT GSA TEMPORARY
REGULATION D-65 IS PRESENTLY SUBJECT TO LITIGATION INVOLVING
CONSTITUTIONAL QUESTIONS. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
ET AL. V. FREEMAN, CIVIL ACTION NO. 79-2955 (D.C.D.C.).
/19/ SEE FPMR TEMPORARY REGULATION D-65, 44 FED.REG. 53161,
53162(1979).
/20/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
* * * *
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, . . . ON THE TECHNOLOGY, METHODS,
AND MEANS OF
PERFORMING WORK . . .
/21/ THE UNION CITES THE DEFINITIONS OF "EMPLOYEE PARKING" AND
"OFFICIAL PARKING" IN THE FPMR IN ORDER TO DISTINGUISH THE INTENT OF ITS
PROPOSAL FROM THE INTERPRETATION PLACED UPON IT BY THE AGENCY.
"EMPLOYEE PARKING" IS DEFINED IN 41 C.F.R. 101-20.117-1(C) AS FOLLOWS:
"EMPLOYEE PARKING" MEANS THE PARKING SPACE ASSIGNED FOR THE USE OF
EMPLOYEE-OWNED VEHICLES
OTHER THAN THOSE CLASSIFIED AS "OFFICIAL PARKING."
"OFFICIAL PARKING" IS DEFINED IN 41 C.F.R. 101-20.117-1(F) AS
FOLLOWS:
"OFFICIAL PARKING" MEANS PARKING SPACES RESERVED FOR
GOVERNMENT-OWNED, GOVERNMENT-LEASED,
OR PRIVATELY OWNED VEHICLES REGULARLY USED FOR GOVERNMENT BUSINESS.
THE PHRASE "PRIVATELY
OWNED VEHICLES REGULARLY USED FOR GOVERNMENT BUSINESS" MEANS VEHICLES
USED 12 OR MORE WORKDAYS
PER MONTH FOR GOVERNMENT BUSINESS FOR WHICH THE EMPLOYEE RECEIVES
REIMBURSEMENT FOR MILEAGE
AND PARKING FEES UNDER GOVERNMENT TRAVEL REGULATIONS. MONTHLY
CERTIFICATION BY AGENCY HEADS
MAY BE REQUIRED TO ESTABLISH THIS PRIORITY.
SEE ALSO THE PROVISIONS OF THE FPMR CITED IN NOTE 4, SUPRA.
/22/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA
NO. 77(1980), AT P. 15.
/23/ SECTION 7106(A)(1) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
(1) TO DETERMINE THE . . . BUDGET . . . OF THE AGENCY . . .
/24/ SEE NOTE 19, SUPRA.
/25/ ID. AT 4-5 OF AUTHORITY DECISION.