Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina and National Association of Government Employees, Local R5-136, SEIU, AFL-CIO (Authority decision, April 1, 2003)

Read the official release (flra.gov)

Final FLRA decision. This unfair labor practice order resolves the complaints before the Authority. Under 5 U.S.C. § 7123(a), an aggrieved party generally has 60 days from issuance to seek judicial review. A review petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

The union at the Charleston VA medical center alleged that the facility changed employee parking and allowed patients into an employee lot without required bargaining. An administrative law judge found two unfair labor practices, but the Authority reversed and dismissed both complaints. The majority held that the union's later proposals fell outside the agreement's 15-day deadline and that the facility had maintained the status quo after the timely proposal. It also held that designating patient parking was a means of performing the facility's work and that the evidence did not establish an adverse effect on employees requiring bargaining over implementation. Member Pope dissented, concluding that the facility had a duty to bargain over both changes. Her dissent and the linked ALJ decision are included below.

Decision snapshot

• Authority: 5 U.S.C. §§ 7106(b)(1), 7116(a)(1), and 7116(a)(5).
• Outcome: ALJ's unfair labor practice findings reversed; both complaints dismissed.
• Key point: The majority found no bargaining violation from the parking changes under the contract deadline and the evidence of employee impact.

Full text (FLRA public release)

[ v58 p432 ]

58 FLRA No. 104

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/Union)

AT-CA-00101

AT-CA-00198

_____

DECISION AND ORDER

April 1, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

These consolidated complaints are before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel did not file an opposition to the Respondent's exceptions.

The complaints allege that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain in good faith over the Charging Party's proposals concerning parking at the facility. The complaints also allege that the Respondent unilaterally changed a condition of employment by permitting patients to park in the employee parking lot. The Judge concluded that the Respondent violated the Statute as alleged and, among other things, ordered a return to the status quo ante.

Upon consideration of the Judge's decision and the entire record, we conclude, for the reasons discussed below, that the Respondent did not commit the unfair labor practices alleged in the complaints. Accordingly, we will dismiss the complaints.

II. Background and Judge's Decision

The Respondent notified the Charging Party of its intention to make changes "to the `Employee Parking Lot' and Bravo Street." Judge's Decision at 3 (quoting Jt. Exh. 3). The notice also stated:

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.

Id. Attached to the notice was a revised parking policy for the Medical Center (Policy No. 132-99-06) and a schematic of the parking lot at the rear of the Respondent's facility, which showed areas designated for parking, including areas for employees, patients, physicians, visitors, and volunteers, and the number of parking spaces available for each designation. See Jt. Ex. 4 and 11.

Seven days later, the Charging Party proposed that "`all conditions of employment remain status quo'" and requested to negotiate over the proposed changes. Judge's Decision at 4 (quoting Jt. Ex. 5). The Charging Party requested that the Respondent provide certain information and stated that it would submit additional proposals once it received the information. Approximately fifteen days after receiving the requested information, the Charging Party submitted additional proposals, which the Respondent declared untimely under Article 11, § 2B. of the parties' collective bargaining agreement. [n2]

While the information request was pending, the Charging Party discovered that the Respondent was permitting patients to park in the employee parking lot at the rear of the Respondent's facility. The Respondent had formerly rented a lot that contained between 50 and 100 spaces that was used by patients, among others. However, the Respondent lost the lease for this lot, which "led to between 20 and 40 patients, at any given time, circling [its facility] looking for . . . parking spaces. Judge's Decision at 6. "Because of this increase, [the Respondent] decided to `start parking patients in the employee parking lot.'" Judge's Decision at 6 (quoting Tr. at 56). Soon after discovering the Respondent was permitting patients to park in this parking [ v58 p433 ] lot, the Charging Party filed an unfair labor practice charge.

Subsequently, the General Counsel issued two complaints alleging that the Respondent violated § 7116(a)(1) and (5) of the Statute by: (1) refusing to bargain in good faith by declaring the Charging Party's proposals to be untimely; declaring that no further action was required on the Charging Party's proposals; and declaring that Respondent intended to proceed with implementation of the changes in parking without negotiation; and (2) permitting patients to park in the employee parking lot without notifying the Charging Party and giving it an opportunity to negotiate as required by the Statute.

The Judge found that under the Authority's longstanding precedent, employee parking is a negotiable condition of employment. Therefore, the Judge rejected the Respondent's claim that the changes to employee parking were de minimis, stating that "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." Id. at 7 (citing 92 Bomb Wing, Fairchild Air Force Base, Spokane, Wash., 50 FLRA 701, 703 (1995)). In so doing, the Judge found that the Respondent's argument concerning mission necessity "entirely misses the point." Id. at 7 n.3. According to the Judge, the complaints were "not about Respondent's duties to its patients, but . . . Respondent's legal obligation to comply with the Statute when making changes in conditions of employment . . . ." Id.

With respect to the first complaint, the Judge concluded that the Charging Party's proposal to maintain the status quo satisfied its contractual obligation to submit proposals within fifteen days of notification of changes in conditions of employment. In reaching this conclusion, the Judge rejected the Respondent's argument that the proposal was not "viable," finding that neither the parties' agreement nor past practice requires that proposals be "viable," only that they be negotiable. The Judge found, in this regard, that status quo proposals, as a general matter, are negotiable. The Judge also concluded that the Charging Party's additional proposals were timely under the parties' agreement. Therefore, the Judge concluded that the Respondent violated its statutory obligation to bargain over the Charging Party's proposals.

Turning to the second complaint, the Judge rejected the Respondent's argument that there was an established past practice of allowing patients to park in the employee parking lot. In particular, the Judge found that the Respondent had not previously permitted patients to park in the employee parking lot, and even assuming it had, the Charging Party was unaware of, and did not acquiesce in, the practice. The Judge concluded that the Respondent violated the Statute by unilaterally changing a condition of employment when it began permitting patients to park in the employee lot.

Based on these findings, the Judge concluded that the Respondent violated § 7116(a)(1) and (5) of the Statute and ordered the Respondent to rescind all changes to, and negotiate over, its parking policies and practices.

III. Respondent's Exceptions [n3]

With respect to the first complaint, the Respondent excepts to the Judge's conclusion that it is irrelevant whether the impact on bargaining unit employees is de minimis when the decision to change a condition of employment is substantively negotiable. In support of this argument, the Respondent relies on § 7117(d)(2)(A) of the Statute, which requires "that a labor organization having consultative rights . . . be informed of any substantive change in conditions of employment." Exceptions at 5 (emphasis added). According to the Respondent, "substantive" does not mean "any" change. Id.

The Respondent also excepts to the Judge's finding that the Charging Party's request to maintain the status quo satisfied its obligation under Article 11, § 2 of the parties' agreement. Specifically, the Respondent asserts that "the [U]nion's proposals were not timely in accordance with Article 11, Section 2 of the Master Agreement . . . . The [U]nion's sole proposal' . . . which . . . met the 15-day contractual time limit was the statementthe [U]nion proposes that all conditions of employment remain status quo.'" Exceptions at 6 (emphasis omitted). According to the Respondent, the Charging Party's memorandum requesting maintenance of the status quo was merely an information request that indicated an intent to submit future proposals. The Respondent asserts that although the Charging Party submitted this memorandum containing the status quo request prior to the fifteen day contractual requirement for submission of proposals, the evidence does not show that the "parties reached a mutual agreement to extend the time frame for [submitting additional] proposals[;]" that the Respondent treated the Union's August proposal as an information request and "properly declared [ v58 p434 ] the [U]nion's substantive proposals dated November 17, 1999, [additional proposals] untimely . . . ." Id. at 12, 13.

The Respondent contends, therefore, that as the proposals were not submitted in accordance with the time frame established by the parties' agreement, they were untimely. In support of this contention, the Respondent relies on United States Dep't of the Air Force, Air Force Materiel Command, 55 FLRA 10 (1998) (Materiel Command), and Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1532 (1996) (Materiel Command I).

With respect to the second complaint, the Respondent argues that the Judge erred in finding that there was no past practice of permitting patients to park in the employee parking lot. According to the Respondent, testimony of its witnesses established that there was such a past practice since 1996. The Respondent also argues that the second complaint should be dismissed for "`mission necessity' reasons." Exceptions at 18. The Respondent claims that adequate patient parking is essential to the hospital's mission, and that the Authority should consider mission necessity in determining an agency's obligation to bargain.

IV. Analysis and Conclusions

A. The Respondent Did Not Violate the Statute as Alleged in Case No. AT-CA-00101

When a respondent claims as a defense to an alleged unfair labor practice that a specific provision of the parties' collective bargaining agreement permits its actions, the Authority, including its administrative law judges, will determine the meaning of the provision at issue and resolve the unfair labor practice complaint accordingly. See IRS, Wash., D.C., 47 FLRA 1091, 1103 (1993) (IRS). When a judge's interpretation of the meaning of an agreement is challenged on exceptions, the Authority determines whether the judge's interpretation is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts. See id. at 1111. The Authority has applied this standard of review in cases challenging a judge's determination of the timeliness of a proposal under a collective bargaining agreement. See, e.g., United States Dep't of Justice, INS, Wash., D.C., 52 FLRA 256, 261 (1996). The Authority has held that in interpreting an agreement, the "focus" must remain "on [the] interpretation of the express terms of [the] collective bargaining agreement." IRS, 47 FLRA at 1110 (quoting United States Dep't of HHS v. FLRA, 976 F.2d 229, 235 (4th Cir. 1992)).

The issue to be resolved in this case is whether the Judge's interpretation of the parties' agreement is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts.

The General Counsel alleged that the Respondent refused to bargain in good faith by declaring the Union's proposals to be untimely, declaring that no further action was required with respect to the proposals, and declaring that the Respondent intended to proceed with implementation of the changes in parking without negotiation. The Judge found a violation on all counts. The Respondent expressly argues that the Charging Party failed to satisfy the time requirements for submission of its proposals under Article 11, § 2 of the parties' agreement because the memorandum requesting to maintain the status quo was merely an information request that indicated an intent to submit future proposals and the proposals submitted after the Union received certain information were untimely under the parties' agreement. The Judge rejected this contention, finding that the request to maintain the status quo constituted a negotiable proposal that gave rise to an obligation to bargain and that the additional proposals were timely. For the following reasons, we find that the Respondent did not violate the Statute as alleged.

Article 11, § 2 of the agreement clearly specifies that proposals will be forwarded within 15 days following notification of a management change and that bargaining will normally commence within 10 days thereafter. The Respondent argued before the Judge and the Authority that nothing in that provision authorizes the Union to have additional time--beyond 15 days--to submit proposals. The Respondent also argued that the provision does not condition the submission of timely proposals on the receipt of information.

We agree and find in agreement with the Respondent, that the proposals submitted by the Union outside of the contractual 15-day period were untimely filed under that negotiated provision. As there is no assertion or evidence that the parties agreed to an extension of time to allow the Union to submit proposals after the contractual 15-day period, we find that the Respondent did not violate the Statute by refusing to bargain over untimely submitted proposals. See, e.g., Materiel Command (agency that implemented proposed changes after a union failed to offer proposals within a 15-day contractual deadline or an agreed-upon extension date did not violate the Statute). [ v58 p435 ]

As for the status quo proposal, we find that it was timely submitted under the contract. However, we find that the Respondent did not fail to fulfill its bargaining obligation for the following reasons. First, the record establishes that changes identified in management's notice to the Union were not made until after the Union submitted its untimely proposals. In this respect, the Union president testified that, "[i]t was after we received the information and we submitted our proposals that they made changes." Tr. at 24. Although there was no actual bargaining with respect to the status quo proposal, the Respondent, in fact, complied with the proposal because it maintained the status quo well beyond the contractual period authorizing bargaining. In addition, no additional proposals were offered during the contractual 15-day period.

Furthermore, the status quo proposal contemplates that some future bargaining by the parties would occur. However, as mentioned above, there is no assertion or evidence that the parties agreed to an extension of time to allow the Union to submit proposals after the 15-day period. Thus, there was nothing further to bargain and the Respondent had no obligation to maintain the status quo until a non-existent bargaining obligation was concluded.

Accordingly, based on the above, we find that the Respondent did not violate the Statute as alleged with respect to this complaint. [n4]

B. The Respondent Did Not Violate the Statute as Alleged in Case No. AT-CA-00198

We find for the reasons expressed below that the Respondent had no duty to bargain over its decision to permit patients to park in the employee parking lot.

The General Counsel alleged that the Respondent violated the Statute by permitting patients to park in an employee parking lot without notifying the Union and giving it an opportunity to bargain as required by the Statute. The Respondent argued that the complaint should be dismissed because the decision to permit patients to park in an employee parking lot was based on mission necessity. As the Respondent explained, "having convenient parking for patients is a business necessity and a priority. Respondent's raison d'ete [sic] is to treat patients, not park employees." Respondent's Post-Hearing Brief at 4. [n5]

The Respondent acknowledged that, as a general matter, parking for employees is substantively bargainable. In fact, that is why the Respondent gave notice to the Union of those changes that could affect employee parking. However, the Respondent did not concede that parking for patients was substantively bargainable. Instead, the Respondent argued that "parking availability for patients at the VA is directly linked to quality of patient care and its mission." Exceptions at 18. Long-standing Authority precedent holds that the designation by the Department of Veterans Affairs as to which of its parking facilities will be used to accommodate its patient clientele involves the means of performing work under § 7106(b)(1) of the Statute. See AFGE, AFL-CIO, Local 3399, 9 FLRA 1022 (1982) (AFGE). Although the Respondent did not expressly cite this decision, the arguments that it made, both before the Judge and the Authority, were more than sufficient to invoke a claim under § 7106(b)(1) of the Statute. Consistent with AFGE, and the Respondent's arguments, we find that patient parking at the Respondent's facility is a matter encompassed by § 7106(b)(1) of the Statute. As such, there was no obligation to bargain over the decision to permit patients to park in the employee parking lot.

Where, as here, the substance of the decision is not itself subject to negotiation, an agency is nonetheless obligated to bargain over the impact and implementation of that decision, if the resulting change has more than a de minimis effect on bargaining unit employees. See United States Dep't of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-08 (1986). See also Patent Office Professional Assoc., 56 FLRA 69, 86 (2000). Because the Judge found that the Respondent was obligated to bargain over the decision to allow patients to park in the employee parking lot, he did not address whether the Respondent was obligated to bargain over the impact and implementation of that decision. For the reasons explained below, we find that the General Counsel failed to establish that bargaining [ v58 p436 ] unit employees were adversely affected by the decision to allow patients to park in the employee parking lot.

Initially, we note that the issue of whether there was an obligation to bargain impact and implementation was presented to the Judge. In this respect, the Respondent argued that, "the General Counsel has not shown any . . . adverse impact on bargaining unit employees regarding their ability to park at the facility." Respondent's Post-Hearing Brief at 4. The record fully supports this claim.

Testimony from several witnesses shows that there were many empty parking spaces available in the employee lot, even after most employees had parked their vehicles and reported to work. For example, when questioned about the availability of space in the employee parking lot, the operations officer, whose duties include parking and traffic enforcement, stated that "[y]es, we would normally have a lot of spaces to the rear of the parking lot. . . . Most of the employees are parked after . . . a quarter to nine, 9:00, the majority of them." Tr. at 45. He further testified that he directed patients to park in the employee lot during the peak clinic times, when patients "would be going around in circles," "say around 9:00 and 10:30 in the morning[.]" Id. at 42. A former supervisory police officer at the medical facility similarly testified that "[t]he employees generally start work between 8:00 and 8:30 in the morning. We never started parking patients into the employee parking lot until between 9:00 and 9:30, and at that time there were ample spaces available in the back because the employees generally all parked towards the front." Id. at 63. Finally, the Respondent's labor relations specialist testified that he was not aware of any complaints or grievances filed by unit employees concerning the unavailability of parking spaces in the employee parking lot. Id. at 78-79.

In contrast to the above, the Union president testified that "I've had employees telling me sometimes that they had a hard time parking in the parking lot[.]" Id. at 37. However, he could point to only two employees who had voiced concerns, out of the 650-700 employees in the bargaining unit. Notably, only one of the employee complaints occurred at the time of the alleged change, the other occurring just prior to the unfair labor practice hearing. Furthermore, it is unclear whether the employee who complained at the time of the change was unable to find a parking space at all, or simply could not find a space to his liking.

The testimony offered by the Respondent's witnesses clearly demonstrates that there was more than adequate parking for employees. Absent any other evidence presented by the General Counsel, we are unable to conclude that the General Counsel sustained its burden of proving by a preponderance of the evidence that bargaining unit employees were adversely affected by the decision to allow patients to park in the employee parking lot. Consequently, we find that the Respondent had no obligation to bargain in the circumstances of this case and that the Respondent did not violate the Statute.

Based on the above, we dismiss the complaints.

V. Order

The complaints are dismissed. [n6]

File 1: Authority's Decision in 58 FLRA No.
104

File 2: Member Pope's Decision

File 3: ALJ'S Decision

Footnote # 1 for
58 FLRA No. 104

• Authority's Decsion

Member Pope's dissenting opinion is set forth at the end of this decision.

Footnote # 2 for
58 FLRA No. 104

• Authority's Decsion

Article 11, § 2B. provides that "[t]he Union shall have fifteen (15) calendar days from the date of notification [of proposed changes to conditions of employment] to request bargaining and to forward written proposals to the [e]mployer." Judge's Decision at 2-3.

Footnote # 3 for
58 FLRA No. 104

• Authority's Decsion

The Respondent asserts for the first time in its exceptions that the first complaint should be dismissed because matters of contract interpretation must be resolved under the parties' negotiated grievance procedure. We do not address this assertion further because it was not raised before the Judge. See 5 C.F.R. § 2429.5.

Footnote # 4 for
58 FLRA No. 104

• Authority's Decsion

We also note that, in notifying the Union of the proposed changes in parking, the Respondent expressly advised the Union that "[t]he reason for the proposed changes is to provide additional patient parking . . . ." Jt. Exh. 3. While not explicitly framed in terms of the means of performing the Respondent's work, we find that the decision to effect the changes, like the decision to permit patients to park in the employee parking lot discussed below, constituted an exercise of management's right under
§ 7106(b)(1) of the Statute.

Footnote # 5 for
58 FLRA No. 104

• Authority's Decsion

Title 38 of the United States Code, of which we take official notice, states that the purpose of the Department of Veterans Affairs is "to administer the laws providing benefits and other services to veterans and the dependents and the beneficiaries of veterans." 38 U.S.C. § 301(b). In addressing the Respondent's mission necessity argument, the Judge stated that this case "is not about Respondent's duties to its patients," and that such an argument "entirely misses the point." Judge's Decision at 7 n.3. We respectfully disagree with the Judge. We believe that the point of this case is precisely the Respondent's duties to its patients.

Footnote # 6 for
58 FLRA No. 104

• Authority's Decsion

In view of this determination, we find it unnecessary to reach the Respondent's other contentions.

Member Pope's dissent (FLRA public release)

[ v58 p437 ]

Dissenting Opinion of Member Pope:

The Judge determined that the Respondent violated the Statute by failing to bargain over the Charging Party's proposals in Case No. AT-CA-00101 (the first complaint) concerning certain changes in employee parking. The Judge also determined that the Respondent violated the Statute by failing to provide the Charging Party with notice of, and an opportunity to bargain over, other changes in employee parking in Case No. AT-CA-00198 (the second complaint).

In the absence of cogent arguments by the Respondent for reversing the Judge's decision, the majority manufactures arguments for the Respondent. However, neither the Respondent nor the majority has justified overturning the Judge's decision. As such, I dissent.

With respect to the first complaint, the Respondent has never disputed that the changes were substantively negotiable, conceding expressly that they were "fully negotiable." [n1] Exceptions at 6. There also is no dispute that the Charging Party's initial, status quo proposal was timely. Thus, if the Respondent was obligated to bargain over that proposal, then its refusal to do so, and its implementation of the changes, violated the Statute.

The Respondent makes one -- and only one -- argument that it was not obligated to bargain over the status quo proposal: the Respondent claims that the proposal was not a "viable" proposal because it "was an `information request,' not any substantive proposal[] to bargain." Exceptions at 6, 12. The Judge rejected this argument, and the Authority should too. As even a casual reading of the record makes plain, the Respondent is wrong. [n2] The status quo proposal was not an information request; the status quo proposal was made in a document that also contained an information request. Obviously, there is a difference between the two.

As the Judge found, the parties' agreement does not require proposals to be "viable." [n3] Moreover, the Judge's conclusion that the status quo proposal was negotiable is supported by undisputed, on-point precedent holding that proposals requiring agencies to "maintain the status quo during the bargaining process . . . are negotiable . . . ." Nat'l Weather Serv. Emp. Org., 37 FLRA 392, 396 (1990) (citations omitted) (Nat'l Weather); see also NAGE, Locals R5-136 & R5-150, 55 FLRA 679, 680-81 (1999).

Despite the foregoing, the majority concludes that the Respondent was not obligated to bargain over the status quo proposal. The majority does not base its conclusion on finding that the proposal was not "viable" -- the Respondent's only argument. The majority also does not base its conclusion on a finding that the proposal is not negotiable -- an argument that the Respondent does not make but one that would, if made, at least be relevant.

Instead, the majority concludes that the Respondent had no bargaining obligation because it "maintained the status quo well beyond the contractual period authorizing bargaining." Majority Decision at 8. The majority also finds that although the status quo proposal "contemplate[d] . . . future bargaining," the Charging Party's subsequent proposals were not timely under the parties' agreement, such that "the Respondent had no obligation to maintain the status quo until a non-existent bargaining obligation was concluded." Id.

Putting aside that these arguments were never raised by the Respondent, the majority's formulation garbles the law. [n4] In particular, it confuses bargaining over a proposal to maintain the status quo with delaying making changes in conditions of employment for a period of time. By so doing, the majority permits the Respondent unilaterally to substitute delay for bargaining. The Charging Party made a negotiable proposal that triggered the Respondent's obligation to bargain. According to the majority, the Respondent satisfied its [ v58 p438 ] obligation to bargain even though it engaged in "no actual bargaining," id., because the Respondent did not make changes until after additional proposals were made. This reasoning, if it constitutes reasoning at all, is fanciful.

It is not surprising that the majority cites no precedent for its odd finding that the obligation to bargain over a negotiable proposal offered at one point in time is dependent on whether there is an obligation to bargain over proposals offered at a subsequent point in time. But more to the point, the majority's finding that the subsequent proposals were untimely -- mysteriously rendering lawful both the Respondent's later implementation and its earlier refusal to bargain -- is meritless. In this regard, the majority interprets the parties' agreement as requiring the Union to submit all of its bargaining proposals within 15 days after notice of a proposed change. This is absurd; the agreement states no such thing. The agreement states only that the Union has 15 days to "request bargaining and to forward written proposals . . . ." Judge's Decision at 2 (quoting Article 11, § 2B.). Nothing dictates that the Union's initial proposals may be its only proposals. [n5] The Judge's finding that the Charging Party complied with Article 11 "by submitting a request to bargain and a written proposal[,]" id. at 8, within the 15-day period not only is reasonable, it is the only reasonable construction of this provision.

Accordingly, I would adopt the Judge's conclusion that the Respondent violated the Statute in connection with the first complaint. [n6]

With respect to the second complaint, the majority flouts the record by finding that the change in employee parking resulted from an exercise of the Respondent's rights under § 7106(b)(1) and, as a result, was not substantively negotiable. The Respondent expressly concedes with regard to both complaints "that parking is fully negotiable,'" arguing only that the second complaint should be dismissed for "mission necessity' reasons" because the change involved patient parking. Exceptions at 18.

The majority asserts that the Respondent's unambiguous concession regarding the negotiability of the change refers only to employee parking and finds that, as to patient parking, the Respondent's "mission necessity" argument raises a § 7106(b)(1) claim. Majority Decision at 9-10. This is sleight-of-hand. At no time has the Respondent ever claimed that its decision to permit patients to park in the employee lot was an exercise of its rights under § 7106(b)(1). [n7] By engaging in this farfetched construction of the Respondent's argument, the majority violates basic principles of appellate review, and again denies the General Counsel its right to respond. [n8]

Moreover, even if the majority's (farfetched, in my view) construction of the Respondent's argument as raising a § 7106(b)(1) claim were correct, then the Respondent was obligated to bargain over the impact and implementation of its decision. [n9] Further, while there is no obligation to bargain over the impact and implementation of a change that has only a de minimis effect on conditions of employment, see Air Force [ v58 p439 ] Logistics Command, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 53 FLRA 1664, 1668 (1998), the Respondent makes no claim that the change in employee parking was de minimis. [n10]

While deciding the case based on issues that were not raised by the Respondent, the majority completely ignores an issue that was actually raised by the Respondent: whether there was a past practice of permitting patients to park in the employee lot. [n11] A condition of employment may be established by past practice when the practice has been consistently exercised over a significant period of time and followed by both parties, or it has been followed by one party and not challenged by the other. See United States DOJ, Exec. Office for Immigration Review, Board of Immigration Appeals, 55 FLRA 454, 456 (1999) (citing United States Dep't of Agric., Forest Serv., Pac. N.W. Region, Portland, Or., 48 FLRA 857, 860 (1993)). According to the Judge, the Respondent did not demonstrate that the practice of permitting patients to park in the employee lot was continuous for a significant period of time or that the Charging Party was aware of, and acquiesced in, the practice. I believe that the record supports the Judge's conclusions. Therefore, I would deny the Respondent's exception.

Based on the foregoing, I would find, as to both complaints, that the Respondent violated the Statute by failing to bargain over the substance of the changes in employee parking. Because the Respondent does not except to the Judge's recommended remedy, I would adopt it.

Accordingly, I dissent.

File 1: Authority's Decision in 58 FLRA No. 104

File 2: Member Pope's Opinion

File 3: ALJ's

Footnote # 1 for
58 FLRA No. 104

• Member Pope's Opinion

As such, the majority's finding that the Respondent's "decision to effect the changes [in parking] constituted an exercise of management's right under § 7106(b)(1) of the Statute[,]" Majority Decision at 9 n.4, is inconsistent with Respondent's own arguments.

Footnote # 2 for
58 FLRA No. 104

• Member Pope's Opinion

Following is the text of the Charging Party's response to the Respondent's notice of proposed changes in parking:

1. The Union is in receipt of your memorandum . . . concerning proposed changes in parking . . . .

2. The Union hereby requests to negotiate the proposed parking lot changes . . . .

3. The Union will submit its proposals upon review when the information requested (attached) is provided.

4. The Union proposes at this time that all conditions of employment remain status quo.

5. Should you have any questions, contact the undersigned . . . .

Jt. Exh. 5.

Footnote # 3 for
58 FLRA No. 104

• Member Pope's Opinion

Article 11, § 2B. provides that the Charging Party "shall have fifteen (15) calendar days from the date of notification [of proposed changes] to request bargaining and to forward written proposals . . . ." Judge's Decision at 2-3.

Footnote # 4 for
58 FLRA No. 104

• Member Pope's Opinion

A direct result of the majority's resolving the complaint on a ground not raised by the Respondent is that the General Counsel has been denied its right to respond.

Footnote # 5 for
58 FLRA No. 104

• Member Pope's Opinion

It is worth noting that the Respondent makes absolutely no claim that the parties' agreement precluded the Charging Party from offering additional proposals outside the 15-day time period provided the Charging Party had offered a proposal during that time period. The Respondent argues only that the subsequent proposals were untimely because, in its view, the initial status quo proposal was not a "viable" proposal. Exceptions at 6, 12. That is, the Respondent claims that the subsequent proposals were untimely because, in the Respondent's view, the subsequent proposals were the only proposals made by the Charging Party. Because the Respondent's premise is wrong, the Respondent's argument regarding the subsequent proposals evaporates. The majority either misses or ignores this logical connection between the Respondent's two arguments and, as a result, complicates a simple dispute.

Footnote # 6 for
58 FLRA No. 104

• Member Pope's Opinion

The Respondent's arguments regarding this complaint are as meritless as the majority's. In addition to its claim that the status quo proposal was not a proposal, the Respondent argues that the first complaint should be dismissed under § 7117(d)(2)(A) of the Statute because the changes encompassed by it were de minimis. However, as § 7117(d)(2)(A) applies only to consultation, not bargaining, rights, it provides no basis to reverse precedent holding that the de minimis doctrine does not apply in cases, such as this one, where substance bargaining is required. See 92 Bomb Wing, Fairchild Air Force Base, Spokane, Wash., 50 FLRA 701, 704 (1995).

Footnote # 7 for
58 FLRA No. 104

• Member Pope's Opinion

Without addressing the viability of AFGE, it appears that the Respondent could have made a § 7106(b)(1) argument based on that decision. However, the fact remains that it did not do so.

Footnote # 8 for
58 FLRA No. 104

• Member Pope's Opinion

The answer to the Respondent's argument -- that the Authority should consider mission necessity in determining an agency's obligation to bargain -- is straightforward. Under longstanding Authority precedent, an agency may implement a change in conditions of employment without completing bargaining where the change is "necessary for the functioning of the agency." See United States DOJ, INS, 55 FLRA 892, 904 (1999). However, the Authority has excused such unilateral implementation when an agency has given notice of, and an opportunity to bargain over, the change. See id. As the Respondent provided neither in connection with the change encompassed by the second complaint, the mission necessity defense does not apply.

Footnote # 9 for
58 FLRA No. 104

• Member Pope's Opinion

As stated previously, I believe that, consistent with the Respondent's concessions, the Respondent was obligated to bargain over the substance -- not only the impact and implementation -- of the change.

Footnote # 10 for
58 FLRA No. 104

• Member Pope's Opinion

Although the Respondent raised the de minimis issue as to this complaint in its post-hearing brief to the Judge, the Respondent does not renew this argument in its exceptions to the Authority. The majority's determination to both advocate for, and decide this case in favor of, the Respondent renders irrelevant the Respondent's arguments. Unfortunately, it also renders irrelevant basic principles of due process and neutrality.

Footnote # 11 for
58 FLRA No. 104

• Member Pope's Opinion

I can only conclude that, having found meritorious the arguments it manufactures for the Respondent, the majority finds it unnecessary to address the Respondent's actual arguments.

Attached ALJ decision (FLRA public release)

[ 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).