[ v58 p439 ]
Office of Administrative Law Judges
DEPARTMENT OF VETERANS AFFAIRS
RALPH H. JOHNSON MEDICAL CENTER
CHARLESTON, SOUTH CAROLINA
Respondent
and
NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES,
LOCAL R5-136, SEIU, AFL-CIO
Charging Party
Case Nos. AT-CA-00101
AT-CA-00198
George B. DeMarse
For the Respondent
Adam Chandler
For the General Counsel
Fletcher P. Truesdell
For the Charging Party
Before: ELI NASH
Chief Administrative Law Judge
DECISION
Statement of the Case
This consolidated proceeding arose under the Federal Service Labor-Management Relations Statute (hereinafter called the Statute), and the Rules and Regulations of the Federal Labor Relations Authority (hereinafter called the Authority). It was initiated by unfair labor practice charges filed on November 2, 1999 and December 13, 1999, respectively by the National Association of Government Employees, Local R5-136, SEIU, AFL-CIO (hereinafter called the Union) against the Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina (the Respondent or the Medical Center). The Complaint in Case. No. AT-CA-00101, alleged that Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain in good faith over the Union's proposals concerning employee parking at the facility, by declaring that no further action was required on the Union's proposals and by declaring that the Respondent intended to proceed with proposed changes in parking without negotiation. The Complaint in Case No. AT-CA-00198, alleged that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally permitting patients to park in the employee parking lot. A Consolidated [ v58 p440 ] Complaint and Notice of Hearing issued on August 31, 2000 combining AT-CA-00198 with AT-CA-00101 in order to effectuate the purposes of the Statute and to avoid unnecessary costs or delay.
A hearing was held in Charleston, South Carolina at which time all parties were afforded a full opportunity to be represented, to be heard, to examine and cross-examine witnesses, and to introduce evidence. Briefs were filed by Respondent and the General Counsel and have been carefully considered.
Based upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law and recommendation:
Findings of Fact
A. AT-CA-00101
The relationship between the Union and the Respondent is guided by a master collective bargaining agreement between the National Association of Government Employees and the Department of Veterans Affairs (Jt. Ex. 1), as well as a Local Agreement (Jt. Ex. 2). Article 11, Section 2 of the master collective bargaining agreement created a procedure for the parties to follow when conducting midterm negotiations. Article 39, Section 3 of the master collective bargaining agreement states that "Parking is subject to local negotiations." Article 11, Section 2 of the master labor agreement contains the following pertinent provisions:
A. The Employer shall notify the Union prior to the planned implementation of a proposed change to conditions of employment. The notice shall advise the Union of the reason for the change and the proposed effective date.
B. The Union shall have fifteen (15) calendar days from the date of notification to request bargaining and to forward written proposals to the Employer except in emergency situations where a 15-day notice would not be practicable.
C. If the Union does not request bargaining within the time limit, the Employer may implement the proposed change(s).
D. Upon timely request by the Union, bargaining will normally commence within ten (10) calendar days, unless otherwise agreed upon by the parties.
On August 24, 1999, Union Steward Arthur Pinkney, in accordance with the established method of receiving correspondence from the Respondent (Tr. 18), received a one-page notice from the Human Resources Management Department on behalf of the Union (Tr. 18). Although the correspondence is dated August 9, 1999, it is uncontested that the Union was not in actual receipt of the notice until steward Pinkney picked up the correspondence. The notice, signed by Johnetta McKinley, Respondent's Chief Operating Officer, stated the following:
In accordance with Article 11, Section 2, of the Master Agreement, attached are the proposed changes to the "Employee Parking Lot" and Bravo Street. These changes are scheduled to go into effect after completion of replacement of the underground storage tanks. The reason for the proposed changes is to provide additional patient parking and to preclude traffic congestion on Bravo Street.
(Jt. Ex. 3). Attached to the notice was a revised Parking Policy for the Medical Center, No. 132-99-06 (Jt. Ex. 4, Tr. 19) and a schematic of the parking lot at the rear of the Respondent's facility (Jt. Ex. 11, Tr. 20). According to Parking Policy No. 132-99-06, that Policy replaced Center Policy Memorandum No. 132-97-06. Policy No. 132-99- 06 contains a number of differences from its predecessor, No. 132-97-06 (G.C. Ex. 4). For instance, the newer policy raised the fee for not returning a parking gate card upon conclusion of employment from the Respondent from $10.00 to $15.00.
On August 31, 1999, the Union submitted a memorandum entitled "Proposed Parking Lot Changes," to the Manager of the Human Resources Division (Jt. Ex. 5). In the memorandum, Fletcher P. Truesdell, Union President, requested negotiation of proposed parking lot changes received by the Union on August 24. The memorandum, which was submitted seven days after the receipt of the notice of the proposed changes to the parking lot and policy, also proposed that "all conditions of employment remain status quo" (Jt. Ex. 5). The memorandum further indicated that the Union would submit additional proposals once Respondent provided the information that Truesdell simultaneously requested (Jt. Ex. 6). The Union's information request asked for detailed information concerning possible changes in parking policy and practice. Finally, the Union asked that Respondent respond to its information request by September 10, 1999. After the Union received no response to the information by September 10, Trusedell submitted a memorandum to Respondent, renewing the Union's request for information (Jt. Ex. 7).
Almost two months from the time the Union submitted its initial information request, Respondent finally [ v58 p441 ] replied in late October or early November (G.C. Ex. 5, Jt. Ex. 8). On November 17, some fifteen days after Respondent replied to the information request, the Union submitted additional proposals concerning parking at the Medical Center (Jt. Ex. 9). The further proposals addressed parking on Bravo Street (although it should be noted that Respondent, up to that point, had not specifically informed the Union of the changes it intended to implement to the parking situation on Bravo Street), Patient and Visitor Parking, Disabled Parking, Emergency Parking and Employee Parking.
After the Union submitted its proposals concerning parking, changes were made to Bravo Street. Bravo Street runs North-South on the East side of the Medical Center (G.C. Ex. 6). At the time the Union submitted its proposals, traffic ran in both directions on Bravo Street (Tr. 20). Additionally, there were no spots striped off on Bravo Street for parking (Tr. 98). Following the Union's submission of its proposals, a contractor, hired by Respondent to pave Bravo Street following a construction project, striped off a number of parking spots along Bravo Street (Tr. 75). A map of the parking at the Respondent's facility indicates that approximately 24 parking spots are striped off along Bravo Street (G.C. Ex. 6). In addition, Respondent erected a fence on Bravo Street, so that it is no longer a through street (Tr. 98). The traffic that continues to flow on Bravo Street now runs only one way (Tr. 24). Also, this fenced-off area prevents a number of the striped-off spaces from being used (Tr. 25). However, drivers are currently parking their vehicles in the spots that are accessible along Bravo Street (Tr. 98).
After not receiving a reply to its proposals, Truesdell asked Wilson about the matter; Wilson had already verbally indicated that a number of the Union's proposals were untimely (Tr. 25, 26). Truesdell attempted to have Wilson specify exactly which proposals were untimely (Tr. 26). Wilson refused to do so (Tr. 26). Sometime around December 21, Truesdell met with Wilson concerning which Union proposals were untimely. Shortly thereafter, Truesdell received a memorandum from Wilson, stating his view that the Union's parking proposals were untimely filed (Tr. 27, Jt. Ex. 10). The following day, the Union again requested that Wilson explain why he was declaring the Union's proposals to be untimely (G.C. Ex. 2). Wilson never replied to that request (Tr. 28). The Union and Respondent never discussed the Union's proposals again. (Tr. 28).
B. AT-CA-00198
The employee parking lot at the Medical Center is located across Alpha Street, at the rear of the building (Tr. 31, G.C. Ex. 6). According to Medical Center Policies, the employee parking lot, Zone 7, is reserved for employee parking (Tr. 32, Jt. Ex. 4, G.C. Ex. 4). [n1] The employee parking lot has two entrances, both of which are gated (Tr. 32). One must have an ID Badge to enter the main entrance through those gates, (Tr. 32). The Badge is swiped through a reader to gain admittance to the Employee Parking Lot (Tr. 41). Respondent only distributes ID Badges to employees (Tr. 32). Respondent does not distribute ID Badges to visitors or patients (Tr. 32). For any other vehicles to gain entrance to the employee parking lot, an individual with an ID Badge must open the gate for them (Tr. 33). Respondent discontinued a practice of giving parking decals to employees to place on their vehicles. (Tr. 32).
Respondent has reserved other areas on its grounds for patients and visitors (Jt. Ex. 4, Tr. 53). In addition to the parking that is actually located on the grounds of the Medical Center, Respondent formerly rented a lot across Bee Street, which became known as the Elks Lot (Tr. 28, 53, 54). The Elks Lot contained between 50 to 100 spaces (Tr. 41, 54). In April 1999, Respondent and the Union negotiated an agreement addressing parking in the Elks Lot (G.C. Ex. 3). This agreement called for patients, students and visitors, with overflow parking for employees when the employee parking lot was full, to park in the Elks Lot. In practice, patients, visitors and students used the Elks Lot (Tr. 28).
Sometime in the fall of 1999, Respondent lost the lease for the Elks Lot (Tr. 55). The loss of that lease, in the words of an employee assigned to handle the parking situation, was "terrible" (Tr. 41). The loss also increased the number of spaces needed for parking on the grounds of the Medical Center. Furthermore, it led to between 20 and 40 patients, at any given time, circling the Medical Center looking for open spaces in which to park (Tr. 55). Because of this increase, Police Service Chief Hector Roman-Lopez and Police Lieutenant William Dale Hendley decided to "start parking patients in the employee parking lot" (Tr. 56). According to an employee who, as part of his duties in the Police Service, has enforced parking policies at the Medical Center since 1997, patients had not been permitted [ v58 p442 ] to park in the employee parking lot prior to the closure of the Elks Lot (Tr. 34). [n2]
After the loss of the Elks Lot, Respondent began to permit patients to park in the employee parking lot during peak times, between 9:00 a.m. and 10:30 a.m., several days a week (Tr. 43). Truesdell's shift at the Medical Center commences at 8:00 a.m. (Tr. 32). Shortly before Truesdell filed the unfair labor practice charge in this matter (Tr. 34), a Police Officer informed Truesdell that patients were parking in the employee parking lot (Tr. 33). Truesdell confirmed that information with an employee who was working at one of the gates to the employee parking lot (Tr. 33). Truesdell, the individual designated to receive notices of changes in condition of employment from the Respondent (Tr. 18), had received no notice of patient parking in the employee parking lot from the Respondent (Tr. 33). In fact, Respondent had just delivered a Medical Center Policy that did not refer to permitting patients to park in the employee parking lot (Jt. Ex. 4, Tr. 35).
Analysis and Conclusions
A. Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate over the union's timely submitted proposals concerning parking at the Medical Center.
Respondent declares that "there is nothing to bargain" herein. First, Respondent urges that a longstanding past practice of parking patients in the employee's lot existed before the complaint of November 1999. Its next argument is, there was no substantive adverse impact on bargaining unit employees when it allowed patients to park in lots that were acknowledged to be for employee parking. Respondent also insists that it received no "viable, timely, proposals in conformity with the master collective bargaining agreement. In my judgment Respondent's arguments miss the mark. [n3]
Initially, when a decision to change a condition of employment is itself negotiable, the level of impact of that change on bargaining unit employees is irrelevant. 92 Bomb Wing, Fairchild Air Force Base, Spokane, Washington, 50 FLRA 701, 703 (1995) (92 Bomb Wing). Parking was found to be a negotiable condition of employment long ago. U.S. Department of Labor, Washington, D.C., 44 FLRA 988, 994 (1992). Thus, Respondent's argument that the impact of this change in employee parking was de minimis falls short. In my opinion, Respondent had an obligation to fulfill its statutory obligation to bargain over the substance of its decision to implement any change in employee parking policy or procedure prior to implementing any such changes. National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 395 (1990) (National Weather Service).
Respondent failed to bargain over the changes it intended to make to its parking policy in this case. The record reveals that on August 24, Respondent delivered a packet of information to the Union, accompanied by a memorandum from its chief operating officer indicating that the information reflected proposed changes to the Employee Parking Lot and Bravo Street. When the Union attempted to bargain the matter, Respondent answered that the Union had not timely submitted proposals under the master collective bargaining agreement.
The master collective bargaining agreement does not excuse Respondent's refusal to bargain, however. When a respondent to an unfair labor practice proceeding claims that a specific provision of a collective bargaining agreement permits its actions, the Authority, and its administrative law judges, will interpret the relevant contractual provisions to determine if that agreement permitted the respondent's actions. Internal Revenue Service, Washington, D.C., 47 FLRA 1091, 1103 (1993).
Respondent in this matter relies on Article 11, Sections 2(B) and (C) of the master agreement to explain its action. Article 11, Section 2(B) states that the Union, upon receipt of a proposed change in conditions of employment, will have 15 calendar days to "request bargaining and to forward written proposals to the Employer." Article 11, Section 2(C) allows the Respondent to implement the proposed changes if the Union does not request bargaining within the time limit established in Section 2(B) of that Article. [ v58 p443 ]
The record reveals that the Union received the notice of proposed changes from the Human Resources Management Division on August 24. The date of actual notification is not in dispute, as Respondent, in its Answer to AT-CA-00101, admitted that it notified the Union of the proposed changes on August 24, 1999 (G.C. Ex. 1(g)). Seven days later, and well within the 15 period set out in Article 11, on August 31, the Union submitted its response to the proposed changes, a request to bargain, and also requested that all conditions of employment remain status quo. [n4] Proposals which require an agency to maintain status quo are negotiable, as agencies have a duty to maintain status quo pending negotiations. National Weather Service, 37 FLRA at 396. It therefore, appears that the Union fulfilled its contractual obligation to respond to the Respondent's notification of proposed change in parking within 15 days of receipt of that notification by submitting a request to bargain and a written proposal.
Notwithstanding that the Union submitted a timely request to bargain and written proposals, Respondent failed to fulfill its contractual and statutory obligation to respond to the Union's request to bargain. Article 11, Section 2(D) provides that bargaining shall commence within 10 days of the Union's request to bargain. In this case, Respondent did not reply to the Union's demand to bargain or its related information request within 10 days. The record further disclosed that the Union again requested information on September 20 and that Respondent ultimately replied to the Union's information request on November 2 or almost two months after the Union's initial bargaining and information request. Upon receiving some of the information requested, the Union submitted more detailed proposals, again within 15 days of the receipt of the information. On December 15, Wilson replied to the Union's attempts to bargain over the proposed changes in parking. Since it clearly appears from the record that Respondent failed to supply information necessary for the Union to properly formulate proposals, Respondent was dilatory in responding to the Union's demand to bargain and in general appears to have been confused over the entire process. It is my opinion, that Respondent cannot depend on the master collective bargaining agreement to support its failure to fulfill a contractual and statutory obligation to respond to the Union's timely request to bargain and written proposals.
It is also my judgment, that the language of the master collective bargaining agreement supplies no justification for Respondent's refusal to bargain. Wilson's testimony disclosed that he did not consider the Union's August 31, submission to be satisfactory under the contract because it contained no "viable" proposals (Tr. 67). Wilson's opinion was as follows:
because it said conditions, all conditions of employment remain status quo and when you start talking about all conditions of employment, that is all encompassing for all things and all people. So there wasn't a viable proposal submitted on the table timely, within the 15 days required by the agreement. [n5]
(Tr. 67). In my opinion, Wilson's testimony fills one with doubt. Wilson's reading of the Union's August 31 proposal as requesting that all conditions of employment at the Medical Center remain status quo is sheer sophistry. The memorandum is clearly entitled "Proposed Parking Lot Changes." Needless to say, the only topic addressed in the memorandum is parking. In my view, any reading that more than parking was addressed in the memorandum bears no resemblance to the memorandum itself. Accordingly, it is concluded that Wilson's reading of the memorandum would hardly meet a reasonableness test.
It also appears to me that Respondent's interpretation of the master collective bargaining agreement as it relates to this matter is baseless. Again, Wilson testified that his interpretation of the master collective bargaining agreement is that it requires the submission of "viable" proposals, however, the agreement contains no such language. Nor was it shown that the parties in the past bargained only with respect to "viable" proposals. Consequently, I cannot conclude that the master collective bargaining agreement can only be reasonably read to require that the proposals of either side be "viable" before they are subject to negotiation.
Furthermore, it appears to the undersigned that the Union's proposal was sufficient under the master collective bargaining agreement. The master collective bargaining agreement, does not prevent the Union from [ v58 p444 ] submitting a proposal that a proposed change remain status quo. In fact, the only requirement, under the law or under the master collective bargaining agreement, as far as I know, is that proposals must be negotiable. If none of the Union's proposals are negotiable, then an agency may implement its proposed change without negotiations. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 31 FLRA 651, 656 (1988). Even if a union's proposals are not negotiable, however, an agency has a duty to convey that information to the Union. U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., 56 FLRA 351, 356 (2000). Respondent clearly never informed the Union that the proposal in question was not negotiable. Clearly the Union, in this matter, submitted a request to remain status quo and such a proposal is not in conflict with either the master collective bargaining agreement or the Statute. National Weather Service, 37 FLRA at 395. Accordingly, it is concluded that the Union fulfilled its contractual and statutory duties to request bargaining and to submit negotiable proposals concerning the parking at question, but Respondent failed to answer.
In all the circumstances, it can only be found that Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate over the union's timely submitted proposals concerning parking at the Medical Center.
B. Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally permitting patients to park in the employee parking lot.
Again, Respondent claimed that a longstanding past practice of parking patients in the employee lot existed before the charge in this case was filed. The record fails to support such a claim, however. It is well-settled that conditions of employment can be established by past practice. See Department of the Treasury, Internal Revenue Service, Cleveland, Ohio, 6 FLRA 240 (1981). Once established by past practice, however, any change in a condition of employment may be accomplished only after fulfilling one's bargaining obligations under the Statute. U.S. Department of Labor, Washington, D.C., 38 FLRA 899, 910 (1990). As already noted, parking is substantively negotiable. U.S. Department of Labor, Washington, D.C., 44 FLRA 988, 994 (1992). Because parking is substantively negotiable, Respondent had a duty to bargain before implementing any changes, regardless of the amount of impact on employees. 92 Bomb Wing, 50 FLRA at 703. If an agency implements such a change without fulfilling its bargaining obligation it violates section 7116(a)(1) and (5) of the Statute. U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals, 55 FLRA 454, 456 (1999)(BIA).
The Respondent's claims aside, the sole practice emerging herein is the practice of reserving a lot for employee parking that was not accessible to patients. Respondent unilaterally changed this past practice by allowing patient parking in the employee parking lot. To find the existence of a past practice, there must be some showing that the practice has been consistently exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other. Id. The instant record disclosed that Respondent had not previously permitted patients to park in the employee parking lot. In this regard, Officer Stanley Nelson, an employee who had been assigned to enforce the parking policy at the Medical Center, testified that prior to the recent closure of the Elks Lot, patients had not been permitted to park in the Elks Lot, an employee lot. Additionally, Medical Center Policy, issued in 1997 and in August 1999, make no mention of patients being permitted to park in the employee parking lot. If a practice of permitting patient parking in the employee parking lot existed, one could assume that relevant parking policies would reflect such a practice. Finally, absent the presence of such a policy in the relevant parking polices, one might reason that a past practice of prohibiting patient parking in the employee parking lot existed.
Even assuming that Respondent did allow patients to park in the employee parking lot prior to the closure of the Elks Lot, the record failed to demonstrate that this practice ever developed into a condition of employment. In this regard, a past practice can ripen into a condition of employment, only where both parties are aware that the practice was going on. See Department of Health and Human Services, 17 FLRA 126 at n.2 (1985)(Agency must knowingly acquiesce to a practice before it can ripen into a condition of employment). This record contains no evidence to indicate the Union's awareness of any practice of permitting patients to park in the employee parking lot. As already shown, relevant Medical Center Parking Policies certainly do not advise the Union of any such practice. Neither is there any proof suggesting that Respondent ever alerted the Union to any practice of allowing patients to park in employee lots. Moreover, when the use of parking decals was discontinued at the facility, no one could tell whether a vehicle belonged to an employee or to a patient. Thus, I find nothing in the record to support a conclusion that the Union was or should have been aware of any practice of allowing patients to park in the employee parking lot. In these circumstances, it is concluded that the evidence [ v58 p445 ] is insufficient to show that the Union assented in the alleged past practice of allowing patients to park in the employee parking lot. Accordingly, it is found that no past practice of permitting patient parking in the employee parking lot was acquiesced in by the Union.
The instant record also discloses that Respondent unilaterally opened the employee parking lot to patient parking. Thus, Lt. Hendley testified that he and Roman-Lopez, in conjunction with the front office, decided to open the employee parking lot to patients in September or October. The Union received no notice of this change from Respondent. Instead, the Union learned of this new practice from a bargaining unit employee Police Officer. Accordingly, it is concluded that Respondent allowed patients to begin parking in the employee parking lot and therefore, unilaterally changed the past practice of prohibiting patient parking in the employee parking lot when it started a practice in October or November 1999 of permitting patients to park in the employee lot. Such conduct violates section 7116(1) and (5) of the Statute.
Based on all of the above-mentioned, it is found that Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over the packet of information that Respondent provided to the Union on August 24, 1999. In sum, Respondent delivered a packet of information to the Union concerning proposed changes in parking policy. Thereafter, within the time frame established by the master labor agreement the Union forwarded negotiable proposals to Respondent on August 31, 1999. Respondent then refused to bargain over parking. It is further found that Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally permitting patients to park in the employee parking lot. It is unchallenged that Respondent took this action without notifying or bargaining with the Union prior to making the instant change. It was clearly shown that a past practice of prohibiting patients from parking vehicles in the employee parking lot existed at the time Respondent took this action. Where an agency implements such a change without fulfilling its bargaining obligation it violates the Statute. (BIA)
The Remedy
The General Counsel seeks a facility wide posting signed by the Medical Center Director, a cease and desist order, and an order requiring the Respondent to (1) negotiate over parking policies and practices at the Medical Center, including patient parking in the employee parking lot; (2) return to the status quo ante by prohibiting patient parking in the employee parking lot; and (3) return to the status quo ante by removing the stripes indicating parking spots along Bravo Street. [n6] Based on the foregoing, it is recommended that the Authority adopt the following:
ORDER
Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with the National Association of Government Employees, Local R5-136, SEIU, AFL-CIO, the exclusive representative of certain of its employees, concerning employee parking.
(b) Unilaterally instituting changes with respect to prohibiting patients from parking in the employee parking lot without providing notice to, and upon request bargaining with, the National Association of Government Employees, Local R5-136, SEIU, AFL-CIO.
(c) In any like or related manner, interfering with, restraining or coercing employees in the exercise of their rights under 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, bargain in good faith with the National Association of Government Employees, Local R5-136, SEIU, AFL-CIO, to the extent required by law, over parking policies and practices.
(b) Bargain in good faith with the National Association of Government Employees, Local R5-136, SEIU, AFL-CIO, with regard to any changes with respect to prohibiting patients from parking in the employee parking lot.
(c) Rescind any changes to parking policy or practice along Bravo Street. [ v58 p446 ]
(d) Rescind any change that permits patients to park in the employee parking lot.
(e) Post at its facilities 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 Director, Department of Veterans Affairs, of the Ralph H. Johnson Medical Center, Charleston, South Carolina, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to their employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced or covered by any other material.
(f) Pursuant to section 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, in writing within 30 days from the date of this Order as to what steps have been taken to comply.
Issued, Washington, DC, July 19, 2001.
______________________
ELI NASH
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to bargain in good faith with the National Association of Government Employees, Local R5- 136, SEIU, AFL-CIO, the exclusive representative of certain of our employees, concerning parking policy and practice.
WE WILL NOT institute changes with respect to the prohibition on patient parking in the employee parking lot.
WE WILL NOT, in any like or related manner, interfere with, restrain or coerce employees in the exercise of their rights protected by the Federal Service Labor-Management Relations Statute.
WE WILL upon request, bargain in good faith with the National Association of Government Employees, Local R5- 136, SEIU, AFL-CIO, to the extent required by law, over parking policies and practices.
WE WILL upon request, bargain in good faith with the National Association of Government Employees, Local R5- 136, SEIU, AFL-CIO, with regard to any changes with respect to prohibiting patients from parking in the employee parking lot.
WE WILL rescind any changes to parking policy or practice along Bravo Street.
WE WILL rescind any change that permits patients to park in the employee parking lot.
______________________
(Respondent/Activity)
Dated:________By:_________________________
(Signature) (Title)
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 any of its provisions, they may communicate directly with the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, whose address is: Marquis Two Tower, 285 Peachtree Center Avenue, Suite 701, Atlanta, GA 30303-1270, and whose telephone number is: (404) 331-5212.
File 1: Authority's Decision in 58 FLRA No. 104
File 2: Member Pope's Opinion
File 3: ALJ's Decision
Footnote # 1 for 58 FLRA No. 104 - ALJ's Decision
Medical Center Policy Memorandum 132-99-06 (Jt. Ex. 4), which was delivered to the Union on August 24, 1999, (Tr. 19, 20), replaced Medical Center Policy 132-97-06. Neither of these policies indicate that patients are permitted to park in the Employee Parking Lot.
Footnote # 2 for 58 FLRA No. 104 - ALJ's Decision
It is noted that Hendley, almost immediately after stating that he and Roman-Lopez made the decision to start parking patients in the Employee Parking Lot, incongruously indicated that prior to the closure of the Elks Lot, patients had been permitted to park in the Employee Parking Lot (Tr. 56).
Footnote # 3 for 58 FLRA No. 104 - ALJ's Decision
Respondent's comment in its brief that the facilities "raison d'ete [sic] is to treat patients, not park employees" entirely misses the point in this case. The case is not about Respondent's duties to its patients, but pertains to Respondent's legal obligation to comply with the Statute when making changes in conditions of employment that effect its employees. In this same vein, Respondent's brief in this matter, with thoughtless references such as the one above, leads me to believe that Respondent still does not understand what this case concerns.
Footnote # 4 for 58 FLRA No. 104 - ALJ's Decision
Even if the time of notification is deemed to be the time that Respondent originally tendered the document to the wrong Union official, August 16, 1999, (Tr. 18), the Union complied with the contractual requirement as it submitted its proposals 15 days after the first tender.
Footnote # 5 for 58 FLRA No. 104 - ALJ's Decision
U.S. Department of the Air Force, Air Force Material Command, 55 FLRA 10(1998) cited by Respondent is distinguishable as involving future proposals tied in with the terms of an agreement. There is no such issue in this case. Further, Respondent's claim here is that the proposals were not "viable" because it interpreted the proposals to address "all conditions of employment" and not simply parking. In my judgement, depicting the Union's proposals herein in such a manner is, to say the least, remarkable.
Footnote # 6 for 58 FLRA No. 104 - ALJ's Decision
When an Agency changes a negotiable condition of employment without first fully bargaining with the exclusive representative, the Authority normally imposes a status quo ante remedy. Department of the Navy, Naval Aviation Depot, Naval Air Station Alameda, Alameda, California, 36 FLRA 509, 511 (1990).