[ v16 p928 ]
16:0928(125)CA
The decision of the Authority follows:
16 FLRA No. 125
INTERNAL REVENUE SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-1073
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in the
unfair labor practices alleged in the complaint and recommending that it
be ordered to cease and desist therefrom and take certain affirmative
action. Thereafter, both the Respondent and the Charging Party filed
exceptions to the Judge's Decision and the Charging Party filed an
opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions /1/ and Recommended Order, except as
modified herein.
The Judge ordered, among other things, that the Respondent bargain,
upon request, with the Union over the Respondent's parking regulation.
However, inasmuch as there is no regulation in effect at this time
requiring the collection of parking fees, /2/ it is unnecessary to order
that the Respondent negotiate with the Union regarding this matter at
the present time. Moreover, in agreement with the Judge, the Authority
finds that granting the Union's request that employees be reimbursed for
all parking fees collected pursuant to the regulation is not warranted
in these circumstances.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Authority hereby orders that the Internal Revenue Service
shall:
1. Cease and desist from:
(a) Unilaterally implementing parking regulations and refusing to
bargain on request with the National Treasury Employees Union, its
employees' exclusive representative, concerning the impact and
implementing procedures with regard to such regulations.
(b) Unilaterally eliminating employee parking spaces without
providing the National Treasury Employees Union an opportunity to
bargain concerning the impact and implementing procedures with regard to
such change.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Upon request meet and negotiate to the extent consonant with law
and regulation with the National Treasury Employees Union concerning the
elimination of employee use of parking spaces effective on or after
November 1, 1979.
(b) Post at its facilities nationwide 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 Commissioner of the
Internal Revenue Service, or his designee, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including bulletin boards and all other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., December 18, 1984
/s/ Henry B. Frazier III
Henry B. Frazier III, Acting
Chairman
/s/ Ronald W. Haughton
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally implement parking regulations and refuse to
bargain on request with the National Treasury Employees Union, our
employees' exclusive representative, concerning the impact and
implementing procedures with regard to such regulations.
WE WILL NOT unilaterally eliminate employee parking spaces without
providing the National Treasury Employees Union an opportunity to
bargain concerning the impact and implementing procedures with regard to
such change.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL upon request meet and negotiate to the extent consonant with
law and regulation with the National Treasury Employees Union concerning
the elimination of employee use of parking spaces effective on or after
November 1, 1979.
(Agency)
Dated: By: (Signature)
This 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, Federal Labor Relations Authority, Region III, whose address
is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone
number is: (202) 653-8456.
---------
FOLLOWS -----------
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION,
Charging Party
Case No. 3-CA-1073
Michael Sussman,
Attorney for Respondent
Eric J. Genser,
Attorney for the General Counsel
Federal Labor Relations Authority
Mark Maxin
Representative for the Charging Party
Before: Isabelle R. Cappello
Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191 (1978), 5 U.S.C. 7101 et seq. (Supp.
III 1979) (hereinafter referred to as the "Statute"), and the rules and
regulations issued thereunder and published at 45 Fed.Reg. 3482 et seq.,
5 C.F.R. 2421 et seq.
Based on a Charge filed on April 7, 1980, the Regional Director of
the Federal Labor Relations Authority (hereinafter, the "Authority"),
Region III, issued a Complaint and Notice of Hearing dated December 31,
1980. The Complaint alleges that the Internal Revenue Service
(hereinafter, "IRS") has violated Sections 7116(a)(1) and (5) of the
Statute, /3/ by releasing parking spaces at IRS's Canton, Ohio, facility
without bargaining with National Treasury Employees Union ("NTEU") over
the substance of the decision, and by implementing changes in employee
parking procedures without bargaining with NTEU over the impact and
implementation of the changes.
A hearing was held on the matter in Washington, D.C., on March 12,
1981. The parties appeared, put on evidence, and examined and
cross-examined witnesses. On April 22, 1981, NTEU submitted a brief, in
the form of a letter. On April 27, the General Counsel and IRS
submitted their briefs. Based on the record made at the hearing, my
observation of the witnesses, and the briefs, the following findings and
conclusions are made and order recommended.
Findings of Fact /4/
1. It is admitted that IRS is an "agency" within the meaning of the
Statute. It is also admitted that NTEU is a "labor organization,"
within the meaning of the Statute, and is recognized by IRS as the
exclusive representative of certain of its employees at offices
throughout the country. Issues involving more than one office are
bargained at the national level of IRS and NTEU. At all times pertinent
to this proceeding, Susan Barliant and Jean Savage have represented IRS,
and Frank Ferris has represented NTEU concerning national-level,
bargaining issues. These representatives have weekly dealings with each
other, meeting about once a month and corresponding or talking by phone
in between meetings.
2. In April 1979, President Carter announced a new policy on parking
for Federal employees. On April 6, 1979, the Office of Management and
Budget ("OMB") sent to all heads of departments and agencies, and
employee unions, a draft circular, the stated purpose of which was to
establish the new policy governing the acquisition and allocation of
parking facilities, and the establishment and determination of charges
to be paid for parking by Federal employees. The draft provided that
the General Services Administration ("GSA") should issue implementing
regulations, and that agencies should "issue such instructions as may be
needed to implement the provisions of this Circular and regulations
issued by GSA." (R1.7, paragraph 5(b)(4)). The draft provided that
agencies should collect fees "effective October 1, 1979." (R1.7
paragraph 8(b)(3)). It was stipulated that NTEU was sent a copy of this
draft circular.
3. On August 13, OMB issued Circular No. A-118 to all heads of
departments and agencies. Its purpose is as stated in the draft. See
finding 2, above. It states that it incorporates many of the comments
received from agencies and unions following circulation of the April 6
draft. It places a number of responsibilities upon agency heads. For
example, agency heads are instructed "to institute more effective
carpooling incentives." (GC 2.2) Agency contracting officers are to
amend lease contracts to accomplish the new policies. (GC 2.4,
paragraph 5) Acquisition of new parking facilities are to be consistent
with the new policies and based upon analysis of public transportation
and carpooling projected to be reasonably available or feasible, with
such analyses to be initiated by agency heads and conducted by GSA. (GC
2.4, paragraph 7) Agency heads are given responsibility for allotting
parking spaces, based on new priorities, and with some discretion "to
assign a limited number of convenient parking spaces to certain
executive personnel and employees with unusual hours . . . " (GC 2.5,
paragraph 8) Agency heads are allowed to conduct their own appraisals of
fair parking fees. (GC 2.8, paragraph 10b(4)) Agency heads are to
implement an effective mechanism for deterring abuse of parking space
assignments made to the handicapped, vanpools and carpools. (GC 2.8,
paragraph 10b(7)) OMB set November 1 as the issuance date for "(f)inal
agency regulations," and October 1 as the date for GSA regulations. (GC
2.10, paragraph 15)
4. On September 6, GSA issued Temporary Regulation D-65, in which it
prescribes policies and procedures for the assignment of Federal
employee parking spaces and the assessment of charges for the use of
these spaces. The regulation was made effective as of November 1. The
regulation specifically provides that, upon request by agencies,
"parking spaces not required for 'official' parking may be used for
EMPLOYEE parking," for which a monthly fee of not less than $10 a month
must be assessed, unless a waiver is obtained under OMB Circular A-118
(GC 3.3, paragraph 7b).
5. On September 26, IRS sent a letter to Robert Tobias, NTEU's
Executive Vice-President and General Counsel. The letter advised him of
the OPM and GSA issuances and forwarded copies of them. /5/ The letter
states that the new policy on parking would be implemented on November
1. (R 2.2) The letter also states that: "After all OMB and GSA
documents have been issued, a Manual Supplement will be developed (by
IRS) to address specific parking allocation and fee collection
procedures to be utilized throughout the Service." (R 2.2, last
paragraph) The letter concludes with the advice: "If you have any
comments regarding the new federal parking regulations, please refer
them to Jean Savage or Susan Barliant at 376-0575 not later than October
12, 1979." (R 2.3) Ms. Savage prepared the September 26 letter so that
IRS "might comply with our requirement under CSRA (i.e., the Statute) to
notify the union about changes that would be affecting employees working
conditions." (TR 130)
6. On October 5, Mr. Ferris and Ms. Savage were having a telephone
conversation about a mid-term bargaining issue concerning voucher
examiners. She recalls bringing up the matter of the parking situation
and mentioning the September 26 letter addressed to Mr. Tobias, with its
October 12 deadline. She recalls Mr. Ferris indicating that he thought
he had seen it, would ask Mr. Tobias about it, and "would get back to
us." (TR 137) She recalls telling Mr. Ferris that IRS was anxious to
move on the parking matter because of the mandated November 1
implementation date. When Mr. Savage had not heard back from Mr. Ferris
by October 17, she made an assumption that NTEU did not desire to
bargain on the parking regulations.
7. Mr. Ferris could not recall the October 5 conversation with Ms.
Savage, but did not deny that it could have taken place. Ms. Barliant
testified that Ms. Savage told her about it. Ms. Savage put notes on
the conversation in a file. On October 17, not having heard from Mr.
Ferris by the October 12 deadline set in the letter, she read her notes,
and typed up their substance. Such is not an unusual practice because,
as she explained, memories grow dim, and cases are frequently
transferred from one person to another. Ms. Savage appeared sure of her
facts, gave her testimony in a positive and direct manner, and was
corroborated, to a certain extent. I found Ms. Savage to be a credible
witness; and I accept, as true, the facts to which testified, as set
out in finding 6, above.
8. By early October, several local chapters of NTEU, apparently
aware of the OMB and GSA issuances, were working to obtain waivers of
parking fees at their IRS field offices. Provisions for waivers are
contained in the OMB and GSA issuances here involved.
9. By October 24, IRS had drafted its revised intra-agency parking
regulations, in response to the OMB Circular. A copy of the draft was
never sent to NTEU because of Ms. Savage's assumption that NTEU was not
interested in bargaining over the issue. On November 6, they were
issued as a Manual Transmittal, pursuant to what IRS refers to as the
OMB and GSA "guidelines." (GC 5.4, paragraph 481(3)) Basically the IRS
regulations track and clarify the OMB and GSA guidelines. Some
clarifications not explicitly found in the OMB and GSA guidelines are:
no payroll deductions being allowed for parking-fee collections; no
discount or refund of fees being allowed to accommodate absences of the
permit holder; and a mandatory penalty being imposed for an employee
committing enumerated violations with respect to the parking program.
10. Mr. Ferris, Ms. Savage and Ms. Barliant met on November 7, to
discuss several mid-term issues. Mr. Ferris brought up the non-agenda
subject of parking, said he had been hearing from several NTEU chapters
about changes taking place in the field, and inquired as to whether
there were some nationwide regulations on the matter. The IRS
representatives replied that nationwide changes were taking place, and
that NTEU had received written notification of them. When Mr. Ferris
replied that he knew of no such notice, Ms. Savage left the room and
returned with a copy of the September 26 letter and the OMB and GSA
issuances. She did not give him a copy of the November 6 IRS Manual
Transmittal detailing how the new policy on employee parking would be
implemented at IRS locations nationwide, or tell him that such an IRS
document had been issued. When Mr. Ferris raised some questions about
parking, Ms. Savage referred him only to the OMB Circular and the
September 26 letter. The answers to his particular questions were to be
found in the OMB and GSA issuances, and the September 26 letter.
11. Subsequent to the November 7 meeting, Mr. Ferris claims that he
checked with NTEU officials, as well as various NTEU files, and found no
record or indication that NTEU had ever received the September 26
letter. I credit his testimony on this point. He appeared to be candid
and forthright, in testifying. What IRS characterizes as his
nonresponsiveness was simply an unwillingness to be led, on
cross-examination. The fact that he could not recall the October 5
conversation with Ms. Savage about parking (see findings 6 and 7 above)
is believable, since she interjected the parking matter into a
conversation dealing with an entirely different matter.
12. On November 14, Mr. Ferris sent a letter to Ms. Barliant which
contained certain proposals concerning the parking program, and a
request to negotiate. The NTEU proposals were to waive parking fees,
wherever permitted, and to conform at once to the OMB Circular mandate
in regard to priorities in assigning close-in parking spaces. The
letter stated NTEU's objections to establishing a bargaining position
until NTEU received a draft, manual supplement, or other policy document
from IRS from which NTEU could see how IRS was proposing to use its
discretionary powers.
13. On December 13, IRS gave NTEU a copy of its November 6 Manual
Transmittal. Ms. Savage apologized for not sending it to NTEU earlier.
She explained that the failure was due to a clerical error. Ms. Savage
informed NTEU that IRS would not negotiate with NTEU about the parking
regulations in the Manual Transmittal.
14. Pursuant to the new policy on parking, parking fees have been
implemented at IRS's Cincinnati, Ohio, and Austin, Texas, Service
Centers. Implementation at Cincinnati took place in November. There is
no evidence as to when implementation occurred at Austin.
15. On November 1, at its Canton, Ohio, Regional Office, IRS ceased
its practice of allowing bargaining-unit employees the use of 15 parking
spaces at the building. Some 30 bargaining-unit employees had been
using the spaces, for their private cars, when scheduled for an official
business trip to conduct field audits. Now these employees must find
parking spaces in commercial lots. There is one such lot, charging $10
a month, within one block of the IRS Canton office. Employees are
reimbursed for parking their cars, in commercial lots, on those days
when they use them for official business. Reimbursement is obtained
through submission of monthly travel vouchers. IRS still controls the
15 vacated spaces at its Canton office building. Even if employees had
been allowed continued use of the 15 spaces, the employees would have
had to pay $10 a month, under the OMB and GSA issuances, on a
reimbursable basis. At present, IRS pays $16.50 a month to GSA for each
of the spaces, but is not allowing any employee use of them. /6/ On
October 31, an IRS agent of the Cleveland, Ohio, District Office
informed an agent of NTEU that it would be "releasing parking spaces" at
various locations within the Cleveland District. The Canton office is
such a location. On November 6, a local agent of NTEU requested an
opportunity to negotiate over this matter. Such bargaining has not
taken place.
16. GSA Temporary Regulation D-65, in paragraph 12a, makes agencies
responsible for assigning parking spaces of employees and, in paragraph
8a, specifically provides that:
If necessary for operational purposes, an agency may issue on a
fee basis a limited number of parking permits to individuals who
regularly use their privately owned vehicles for Government
business.
(GC 3.4) Regular use is defined as being 12 or more workdays a month for
which reimbursement is made for mileage and parking fees under
Government travel regulations.
Discussion and Conclusions
1. The parking regulations.
The parties agree that IRS was obliged to bargain with NTEU over the
impact and implementation of its parking regulations, though not over
their subject matter. Their agreement correctly reflects the state of
the law. It is also well established that agencies must give adequate
notice to the exclusive representative of their employees, and an
opportunity to bargain, before implementing any changes in conditions of
employment, such as parking. See e.g. Department of the Air Force,
Scott Air Force Base, 5 FLRA No. 2 (1981), statutory obligations when it
failed to give NTEU such notice and opportunity.
IRS's main contention is that the notice it gave NTEU of the OMB and
GSA "guidelines" (to use IRS's own characterization) was sufficient
notice to allow NTEU to make a responsible input into the IRS parking
plan, which was drawn from and integrally a part of the OMB and GSA
issuances. See RBr 8-13. This argument ignores the fact that IRS,
itself, as well as OMB, enunciated clearly that IRS would be issuing
implementing regulations clarifying how it would exercise its
responsibilities, at its facilities. Even had NTEU learned of the OMB
and GSA guidelines in time to make meaningful proposals to IRS, it was
still entitled to a bargaining opportunity when it was presented with
IRS's own proposals. IRS has never given such an opportunity to NTEU.
NTEU did not waive its bargaining rights by failing to meet the
deadline set by IRS in its September 26 letter forwarding the OMB and
GSA guidelines. Such a waiver must be "clear and unmistakable." See
pages 1 and 3 of the Scott decision cited above, 5 FLRA No. 2. All the
chief spokesman of NTEU ever indicated to IRS was that he would be
getting back to IRS, after he located the September 26 letter. The
deadline would, understandably, mean little to NTEU, as it had every
reason to believe that it would receive a copy of IRS's own proposals
before its bargaining proposals would have to be formulated. Instead of
jumping to the conclusion that NTEU was not interested in bargaining
about the parking matter, because it had allowed IRS's deadline to pass,
IRS's labor relations officer could have inquired of NTEU's interest, in
one of her frequent contacts with NTEU's chief spokesman. This would
have been a simple, reasonable action to have taken. Instead, IRS's
labor relations officer spent her time making a written record of NTEU's
failure to meet an IRS-imposed deadline. See finding 7, above.
The record evidence leaves the impression that IRS, hard-pressed to
meet the OMB deadline, was overly anxious to assume that NTEU was not
going to exercise bargaining rights, and complicate further the ability
of IRS to get its regulations out in time. OMB imposed no penalty on an
agency's failure to meet its deadline; and IRS did fail to meet it. Of
course, the OMB-established deadline was no excuse for IRS to cut off
NTEU's bargaining rights granted by the Statute.
IRS also takes the position that no change of substantial impact
resulted from its parking regulations. A "substantial impact rule" is
applied to failure-to-bargain situations, before an unfair labor
practice is found. See page 3 of the decision of Judge Randolph D.
Mason in Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, adopted by the Authority in 5 FLRA
No. 45 (March 20, 1981). The evidence here established that
paid-parking programs have been instituted at IRS's Cincinnati, Ohio,
and Austin, Texas, Service Centers. It also establishes just how IRS
will be allotting parking spaces at all future acquired facilities.
Indeed, one whole section of the IRS regulations is devoted to
"Procedure for Acquiring New or Additional Space." (GC 5.4) Thus, the
regulations have a nationwide scope, with future impact not yet clearly
ascertainable. Given the fact that IRS can exercise considerable
discretion over how rates are determined and how it allots and manages
the space it acquires (see finding 3, above), it is impossible to
conclude that the IRS parking regulations will have no substantial and
possibly adverse impact upon its employees. No working condition is as
liable to touch a sensitive nerve, in employees, as access to parking
spaces for their cars. How IRS is going to acquire space and allot and
charge for it cannot be passed off as a matter of no substance.
2. The release of 15 parking spaces at IRS's Canton, Ohio office
building.
IRS gave a local NTEU official one day's notice before it stopped its
practice of allowing bargaining-unit employees the use of 15 spaces, at
its Canton, Ohio, office building. IRS does not argue that such notice
was adequate. It clearly was not. IRS argues, instead, that there was
"no net effect" on the employees formerly using these spaces because
they were only allowed to use them when scheduled for field trips, and
now, when scheduled for field trips, the employees are reimbursed,
monthly, for any parking fees incurred in commercial lots, at least one
of which is within a block of the building. See RBr 17-19. Having to
look for space in commercial lots, walk to the office on days of
inclement weather, and wait for a period of up to one month for
reimbursement of monies expended, add up to a substantial, adverse
effect on employees, contrary to IRS's view of the matter. Furthermore,
IRS had left these spaces unused for over three months, as of the date
of the hearing, and denied NTEU the opportunity to bargain over use of
them by carpools, handicapped employees, and employees with unusual
hours-- all options left to IRS by OMB. See finding 3, above. This
denied NTEU an opportunity to demonstrate its clout and bargain for such
use of these spaces by employees. Instead, IRS made NTEU look
ineffectual to members of the bargaining unit, thereby discouraging
employees from exercising their right to join a labor organization and
be represented by it. See Section 7102 of the Statute.
The record made in this proceeding establishes, by a preponderance of
the evidence, that IRS's unilateral actions in imposing revised parking
regulations, and eliminating employee use of parking spaces, at Canton,
Ohio, has had, or will have a reasonable likelihood of adversely
affecting employees, in a substantial degree, and denied them the right,
under Section 7102 of the Statute, to freely join a labor organization
and to engage in collective bargaining with respect to conditions of
employment through chosen representatives. IRS thereby committed unfair
labor practices within the meaning of Section 7116(a)(1) and (5) of the
Statute.
3. The remedy
The General Counsel seeks a nationwide posting of an order "fully
remedial of all unlawful conduct, including a specific order to IRS to
bargain, upon request by the Union, on all changes made with respect to
employee parking to the extent consonant with applicable laws and
regulations." (GCBr 10) Such a remedy is appropriate. IRS parking
regulations apply to all its facilities, throughout the country. While
a release of parking spaces was shown only at one facility, other
releases may have since occurred and, given IRS's position on not
negotiating such changes, would have occurred unilaterally. The
cease-and-desist order, as well as the bargaining order, should
therefore apply to all such unilateral changes.
Remittal of parking fees, urged by NTEU at pages 4 through 6 of its
letter-brief, will not be ordered. /7/ IRS had no choice in the
collection of the parking fees which, as all parties agree, was not
bargainable, under Section 7117(a)(1) of the Statute, as it was mandated
by a Government-wide rule. The only case cited by NTEU, in which a
"make whole" remedy was imposed as to parking fees, involved an increase
in fees ordered by an authority within a single department, and is thus
distinguishable from the situation here. See DOT, et al., A/SLMR No.
1062 (1978), cited in footnote 9 of NTEU's letter-brief.
Ultimate Findings and Order
Internal Revenue Service has violated Section 7116(a)(1) and (5) of
the Federal Service Labor-Management Relations Statute, as alleged in
the Complaint. Accordingly, the following remedial action shall be
taken by the Internal Revenue Service:
1. Cease and desist from:
(a) Interfering with, restraining and coercing its employees in
the exercise of their rights under the Federal Service
Labor-Management Relations Statute by unilaterally implementing
parking regulations and eliminating employee use of parking
spaces, and refusing to bargain with the National Treasury
Employees Union concerning such regulations and changes to the
extent consonant with the law and Government-wide rules and
regulations.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Upon request, meet and negotiate with the National Treasury
Employees Union concerning IRS Manual Transmittal 1(14)50, dated
November 6, 1979, and elimination of employee use of parking spaces
effective on or after November 1, 1979, specifically including, but not
limited to the elimination of employee use of spaces at the Internal
Revenue Service building at Canton, Ohio.
(b) Post, at all its offices nationwide, copies of the attached
Notice, marked "Appendix," on a form to be furnished by the Federal
Labor Relations Authority. Upon receipt of such form, the Director of
the Internal Revenue Service shall sign the Notice and direct that
copies be posted and maintained, for 60 consecutive days thereafter, in
conspicuous places, including bulletin boards and other places where
notices are customarily posted. The Director shall take reasonable
steps to insure that such Notices are not altered, defaced, or covered
by any other material.
(c) Notify the Federal Labor Relations Authority, in writing, within
30 days of this Order, as to what steps have been taken to comply with
its provisions.
/s/ Isabelle R. Cappello
Isabelle R. Cappello
Administrative Law Judge
Dated: August
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL, upon request, negotiate in good faith with the National
Treasury Employees Union, concerning parking regulations and elimination
of employee use of parking spaces, to the extent consonant with law and
Government-wide rules and regulations.
WE WILL NOT implement parking regulations, or eliminate employee use
of parking spaces without negotiating in good faith with the National
Treasury Employees Union, to the extent consonant with law and
Government-wide regulations.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of rights assured by the Federal
Service Labor-Management relations Statute.
Agency or Activity
Dated: By: Signature
--------------- FOOTNOTES$ ---------------
/1/ In agreement with the Judge's conclusion, the Authority finds
that Respondent's unilateral implementation of the revised parking
regulation and elimination of employee parking spaces had a reasonably
foreseeable impact which was more than de minimis on bargaining unit
employees. See U.S. Government Printing Office, 13 FLRA No. 39 (1983);
and Department of Health and Human Services, Social Security
Administration, Chicago Region, 15 FLRA No. 174 (1984).
/2/ During the pendency of the instant case before the Authority, the
United States District Court for the District of Columbia ruled that the
paid parking plan, as embodied in OMB Circular A-118, was invalid, and
ordered that the GSA regulation be set aside and its enforcement
permanently enjoined. American Federation of Government Employees,
AFL-CIO, et al. v. Freeman, 510 F.Supp. 596 (D.D.C. 1981). Thereafter,
GSA revised the regulation to suspend the collection of parking fees in
accordance with the injunction. (46 F.R. 40191 (1981)). The District
Court's decision was subsequently reversed. American Federation of
Government Employees, AFL-CIO, et al. v. Carmen, 669 F.2d 815 (D.C. Cir.
1981). However, President Reagan has stated that the collection of
parking fees will not be reinstated. Statement by the President on
Parking Fees for Federal Employees, 17 Weekly Comp. of Pres. Doc. 1161
(Dec. 17, 1981).
/3/ Section 7116(a) provides, in pertinent part, that it shall be "an
unfair labor practice for an agency-- (1) to interfere with, restrain,
or coerce any employee in the exercise by the employee of any right
under this chapter; . . . (and) (5) to refuse to consult or negotiate
in good faith with a labor organization as required by this chapter . .
. "
/4/ Dates referred to in these findings are in 1979 unless otherwise
specified. Abbreviations used in these findings are as follows: "GC"
refers to the exhibits of the General Counsel and "R" to those of IRS,
with multipage exhibits referenced by the exhibit number, followed by
the page number. "GCBr" refers to the brief of the General Counsel.
"RBr" refers to the brief of IRS. "UBr" refers to the brief of NTEU.
"TR" refers to the transcript. Respondent's unopposed Motion to Correct
Hearing Transcript is granted; and the following corrections made:
Page 141, Line 14, As stated "Acquired", As Corrected "Required."
Page 195, Line 18, As stated "36", As Corrected "56."
/5/ Paragraph 9 of the Complaint alleges that this letter was sent to
NTEU. IRS admitted paragraph 9, in its Answer. The issue is,
therefore, taken as settled, for purposes of this proceeding. The
General Counsel's treatment of the matter, as unsettled, is rejected.
See, e.g., GCBr 2, 3, and 5, and TR 87 and 102.
/6/ Apparently IRS intends to turn the 15 spaces back to GSA, but is
precluded from doing so without first bargaining with the NTEU. See
National Treasury Employees Union, Chapter 6 and Internal Revenue
Service, New Orleans District, 3 FLRA No. 118 (7/30/80).
/7/ Restitution of the fees may, nevertheless, be made, pursuant to
an order of Judge Harold H. Greene, in American Federation of Government
Employees, AFL-CIO, et al. v. R. G. Freeman III, Civil Action No.
79-2955, in the United States District Court for the District of
Columbia. On March 3, 1981 Judge Greene ordered the parties to file
briefs on the issue of restitutive relief, after declaring GSA Temporary
Regulation D-65 was not issued pursuant to legitimate statutory or other
authority and is unlawful. The possibility of such relief being ordered
by a Federal judge is not, however, the ground upon which the relief is
being denied in this proceeding. Judge Greene's decision on the
illegality of the GSA regulations is apparently being appealed.