U.S. Department of Veterans Affairs and American Federation of Government Employees, Local 2400, AFL-CIO (Authority decision, January 13, 2000)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair-labor-practice proceeding. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The VA medical center in Nashville increased employee parking charges from $3.46 to $10.96 per pay period without bargaining with AFGE Local 2400 over the effects and implementation. The Authority upheld the unfair labor practice finding and the order to restore the former rates. It modified the judge's remedy by requiring an additional temporary reduction sufficient to offset the excess fees employees had paid. That offset was equitable relief rather than the money damages barred by sovereign immunity in a case involving payments to private parking lots. The VA must bargain on request over the effects and implementation and post a notice for 60 days. The Authority did not decide whether the local demand also required bargaining over the amount of the increase because that additional finding would not change the relief. Member Wasserman concurred and explained his view that expired national circulars did not govern the bargaining obligation.

Decision snapshot

• Authority: Duty to bargain over changes and equitable unfair labor practice remedies.
• Outcome: Restore former parking rates, offset excess payments through further fee reductions, bargain on request, and post a 60-day notice.
• Key point: An offset in agency parking fees can restore what employees were entitled to without awarding money damages.

Full text (FLRA public release)

[ v55 p1213 ]

55 FLRA No. 195

U.S. DEPARTMENT OF VETERANS AFFAIRS

(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 2400, AFL-CIO

(Charging Party/Union)

CH-CA-70255

_____

DECISION AND ORDER

January 13, 2000

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Department of Veterans Affairs (the Respondent or VA) filed an opposition to the General Counsel's exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally implementing a change in parking rates at the VA Medical Center in Nashville, Tennessee (VA Nashville) without negotiating with the Union over the substance and/or impact and implementation of the change.

The Judge concluded that the Respondent violated the Statute when it refused to bargain with the Union over the impact and implementation of the change. As a remedy, the Judge recommended that the Respondent be ordered to restore the status quo ante. The Judge did not, however, order that adversely affected employees be made whole.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order to the extent consistent with this decision. More specifically, we find, for the reasons set forth below, that adversely affected employees should be made whole.

II. Background

The American Federation of Government Employees (AFGE National) is the certified collective bargaining representative of a nationwide unit of the Respondent's employees. AFGE Local 2400 (the Union) is the agent of AFGE National for purposes of representing VA Nashville's unit employees.

Parking garages at the Respondent's facilities are governed by 38 U.S.C § 8109 and its implementing regulations. As relevant here, that statute provides that a parking fee schedule prescribed for a medical facility "shall be designed to establish fees which the Secretary determines are reasonable under the circumstances." Judge's Decision at 2. In addition, 38 C.F.R. § 1.303 provides that the parking fees prescribed pursuant to 38 U.S.C. § 8109 shall be set at one-half of the appropriate fair rental value for the use of equivalent commercial space. [n2]

In February 1994, VA Nashville opened a new parking facility and, pursuant to applicable statutory and regulatory requirements, set employee parking rates as follows: $7.50 monthly; $6.00 daily; and $1.00 hourly. Thereafter, VA Nashville and the Union engaged in bargaining over the impact and implementation of the rates. However, because the Union concluded that these rates were acceptable, it did not request bargaining over the amount of the rates. Tr. at 20.

In October 1996, the Union learned that VA Nashville planned to increase the parking rates from $3.46 per pay period to $10.96 per pay period (or from $7.50 to $23.75 a month). As a result, by letters dated October 16 and 29, respectively, the Union requested bargaining over the impact and implementation and the amount of the increase in the rates. On November 1, 1996, VA Nashville, through its Chief of Human Resources, responded to the Union's bargaining requests stating:

we are anxious to meet with you to discuss your request to bargain on the impact and implementation of the recently announced parking fees; your request to bargain on the rates and the methodology of the rates and assigned/reserved parking spaces. However, we only have the verbal announcement that the rates will increase at this time. I suggest we wait until we know, in writing, that the Secretary has approved the proposed increase for Nashville. Please let me know if this is satisfactory with you. Thanks.

Judge's Decision at 5. [ v55 p1214 ]

Thereafter, by letter dated January 30, 1997, VA Nashville notified the Union that it would not bargain over the increased parking rates. More specifically, VA Nashville stated that it was denying the Union's bargaining requests because parking rates and the methodology of determining the rates "were not negotiable and the determination of the parking rates had been negotiated at the national and headquarters level." Id. VA Nashville also stated that it would not bargain over the impact and implementation of the increased rates because it had negotiated over "paid parking" three years previously. Id. VA Nashville added that the new rates would be implemented "effective pay period 5-97, March 2, 1997." General Counsel's Exh. 13.

III. Judge's Decision

At the outset, the Judge noted that parking arrangements are negotiable conditions of employment and, prior to implementing a change in such arrangements, management is required to provide the union with notice and an opportunity to bargain "over the substance, impact, and implementation of such changes." Judge's Decision at 6.

As applicable here, the Judge found that the procedure for implementing changes in local parking rates had been established by the Respondent at the national level. The Judge noted that in 1987, the Respondent had issued its first parking circular --Circular 00-87 -- which implemented the statutory and regulatory provisions for setting parking rates by the Secretary of Veterans Affairs. The Judge further noted that although AFGE National was given an opportunity to comment on that circular, it had made no objection to the procedures set forth therein. Circular 00-87 was reissued twice in the following years. The last circular --Circular 00-90-31 -- "was set" to expire on October 1, 1991. Id. at 4. In this connection, the Judge specifically determined that the circulars issued by the Respondent did not constitute contracts negotiated by the parties but, instead, set forth the Respondent's national parking policy.

In light of the foregoing, the Judge concluded that the Union's request to bargain over VA Nashville's increase in employee parking rates had not been presented to the appropriate agency level. Rather, the Judge found that the procedures for setting parking rates governed by 38 U.S.C. § 8109(d)(2) "were established by [the Respondent] in its circulars that were issued at the national level, after notifying AFGE [National] and receiving its consent." Id. at 7. According to the Judge, any request to change the Respondent's policy with respect to "procedures for setting parking rates or the Secretary's exercise of discretion, would have to be made to [the Respondent] at the national level by AFGE." Id. The Judge, therefore, rejected the General Counsel's claim that VA Nashville violated the Statute when it refused to bargain with the Union over the increase in rates.

With regard to the Union's request to bargain over the impact and implementation of the increased rates, the Judge arrived at a different result. Initially, the Judge noted that the Union was the agent of AFGE National for purposes of representing the Respondent's unit employees at VA Nashville. The Judge additionally noted that each of the Respondent's parking circulars provided that "[a]ny facility implementing a parking fee program that impacts on employees represented by a union should make sure it meets its bargaining obligations with the union local(s) before implementing the program." Id. at 8. In these circumstances, the Judge concluded that both VA Nashville and the Union had been authorized by their parent organizations to bargain over the impact and implementation of a change in rates. Accordingly, the Judge determined that the Respondent, through its agent VA Nashville, violated section 7116(a)(1) and (5) of the Statute when it refused to bargain with the Union over the impact and implementation of the 1997 increase in parking rates.

As a remedy the Judge ordered that the status quo ante be restored, "including the reduction of the monthly parking rates to their pre March 12, 1997 levels." Id. at 9. However, the Judge rejected the General Counsel's request for make-whole relief. In the Judge's view, an additional reduction of the parking rates to make employees whole was not appropriate because it constituted an "attempt to award money damages in a different guise." Id.

IV. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel challenges the Judge's decision on three grounds. First, the General Counsel maintains that the Judge erred in concluding that the national parking circulars -- which expired over five years before this case arose -- affected the bargaining obligations of the parties. The General Counsel asserts, in this regard, that the Respondent incorrectly relied on the expired parking circulars as support for its claim that the substance of employee parking rates had previously been negotiated. According to the General Counsel, the Respondent was "[i]n effect" arguing that the subject of parking rates was "covered by" the circulars. Exceptions at 7. The General Counsel submits that the Judge correctly found that the circulars were not the product of [ v55 p1215 ] collective bargaining. In addition, given the circulars' expiration, the General Counsel contends that the Respondent's "covered by" argument must be rejected.

The General Counsel also contends that because the national circulars were not negotiated agreements, their only relevance to this case would be to demonstrate a waiver. The General Counsel argues that assuming AFGE National did waive its right to bargain over matters contained in the third parking circular, that circular expired in 1989. Therefore, because AFGE National, through its agent, the local Union, timely demanded to bargain over the 1997 rates, AFGE National exercised an election to no longer be bound by any previous waiver. Accordingly, the General Counsel submits that the Respondent could not rely on the circulars to refuse to bargain over the new parking rates.

As a second ground, the General Counsel asserts that the Judge improperly inferred an argument concerning the appropriate level of bargaining when he found that the Respondent's "covered by" argument was tantamount to a level of recognition argument. In support of this exception, the General Counsel contends that the Respondent never argued that the Union's bargaining request was submitted to the wrong person or office. The General Counsel maintains that the Respondent "simply argued that prior negotiations, albeit at the national level, created documents which supposedly governed parking rates at the local facility." Id. at 11. As a level of bargaining argument was not presented to the Judge, the General Counsel contends that it should not be considered by the Authority.

Assuming, for the sake of argument, that a level of bargaining argument is properly before the Authority, the General Counsel states that "it defies logic and common sense to find that the demand to bargain herein was defective because it was sent to the Respondent's admitted agents at [VA Nashville]." Id. The General Counsel asserts that the Respondent and VA Nashville are one and the same because VA Nashville is the agent of the Respondent and to conclude otherwise would be contrary to the principles of agency.

Finally, as a third ground, the General Counsel excepts to the Judge's refusal to grant its request for make-whole relief. The General Counsel asserts that the Judge confused its request to offset the difference between the parking rates with a request for consequential money damages. The General Counsel maintains that a temporary rollback in parking fees, which the Respondent improperly raised, is an appropriate remedy under Immigration and Naturalization Service, Los Angeles District, Los Angeles, California, 52 FLRA 103 (1996) (INS).

B. Respondent's Opposition

The Respondent argues that the Judge correctly concluded that the appropriate level of recognition in this case is at the national level. The Respondent points out that the procedures for setting parking rates in facilities governed by 38 U.S.C. § 8109 were established in circulars issued at the national level. Therefore, any decision to change the national policy would be required at the national level. The Respondent also submits, without explanation, that local negotiations over the parking rates would violate 38 U.S.C. § 8109 and 38 C.F.R. § 1.303.

In addition, the Respondent maintains that the Judge did not err in inferring an argument concerning the appropriate level of recognition. The Respondent explains that the level of recognition argument discussed by the Judge is based on the same set of facts as the "covered by" argument that it advanced at the hearing. The Respondent points out that at the end of the hearing, the Judge advised the parties to be mindful of the case law dealing with "levels of recognition and levels of obligations to bargain." Opposition at 2. The Respondent asserts that, as a result, it addressed this argument in its post-hearing brief.

The Respondent also disputes the General Counsel's contention that VA Nashville had the authority to negotiate with the Union over local parking rates. The Respondent asserts that the bargaining authority of its local medical centers is limited "to that which is delegated to them." Id. The Respondent further asserts that the authority to negotiate over parking rates has been statutorily provided to the Secretary of Veterans Affairs pursuant to 38 U.S.C. § 8109. As the Secretary has never delegated such authority to local medical centers, the Respondent contends that the General Counsel's argument must be rejected.

With regard to the remedy, the Respondent claims that the make-whole relief sought by the General Counsel is not statutorily authorized. According to the Respondent, the Authority will not award money damages unless they constitute pay, allowances, or differentials under the Back Pay Act or are otherwise authorized by express statutory authority. Arguing that the relief sought by the General Counsel does not constitute money damages permitted by the Back Pay Act, the Respondent submits that the Judge correctly denied the General Counsel's request for make-whole relief. [ v55 p1216 ]

V. Analysis and Conclusions

The Respondent does not dispute the Judge's finding that it unilaterally implemented an increase in parking rates at VA Nashville without negotiating with the Union over the impact and implementation of the change. Consequently, and in agreement with the Judge, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute. We further agree with the Judge's finding that, to remedy the violation, the status quo ante should be restored. This remedy would return the employee parking rate to $7.50 per month. However, we disagree with the Judge's decision not to order that adversely affected employees be made whole.

According to the General Counsel, the Judge erroneously concluded that a make-whole remedy was not appropriate because, pursuant to INS, 52 FLRA 103, "it [constitutes] an attempt to award money damages in a different guise." Judge's Decision at 9. We find that the Judge's reliance on INS is misplaced.

In INS, the respondent was found to have violated the Statute by discontinuing its practice of providing free parking on its property without bargaining over the decision. As a result, employees incurred additional expenses because they were required to pay for parking in private parking lots. To remedy the violation, the General Counsel requested that the employees be reimbursed for their parking fees. In rejecting the General Counsel's reimbursement request, the Authority noted that "[t]he United States is immune from liability for money damages under the doctrine of sovereign immunity." 52 FLRA at 104 (citing Lane v. Pena, 518 U.S. 187 (1996). The Authority further noted that in Department of the Army, United States Army Commissary, Fort Benjamin Harrison, Indianapolis, et al. v. FLRA, 56 F.3d 273 (D.C. Cir. 1995), vacating in part 48 FLRA 6 (1993) (Department of the Army v. FLRA), the U.S. Court of Appeals for the District of Columbia Circuit explicitly found that the Statute does not waive sovereign immunity to an award of money damages unless such damages are based on an unlawful reduction in pay, allowances, or differentials under the Back Pay Act. 52 FLRA at 106. As there was no contention that the remedy sought -- the reimbursement of parking expenses incurred as a result of the unfair labor practice -- was based on such a loss under the Back Pay Act, the Authority concluded that the doctrine of sovereign immunity barred the requested relief.

Subsequent to INS, the Authority discussed the difference between money damages and equitable relief. See U.S. Department of Transportation, Federal Aviation Administration, Northwest Mountain Region, Renton, Washington, 55 FLRA 293, 298-99 (1999), petition for review filed, No. 99-1165 (D.C. Cir. April 29, 1999) (FAA). Money damages, the Authority noted, have been characterized as a payment to a plaintiff of a sum of money for "something lost in consequence of the defendant's act'" and "as a substitute for a suffered loss in an action at law for damages.'" Id. at 298 (quoting Department of the Army v. FLRA, 56 F.3d at 276) (emphasis in original). On the other hand, the Authority noted that a remedy in an equitable action "attempt[s] to give the plaintiff the very thing to which he was entitled." Id. See also Maryland Department of Human Resources v. Department of Health and Human Services, 763 F.2d 1441, 1446 (D.C. Cir. 1985).

Unlike the remedy in INS, the make-whole relief requested in this case does not involve a monetary payment to adversely affected employees. Rather, the requested remedy would require the Respondent to reduce the rates charged to employees for a period of time necessary to offset the difference between the unlawfully implemented rate -- $10.96 per pay period -- and the former rate -- $3.46 per pay period---until such time as the employees have been fully reimbursed. Offsets are typically viewed as equitable in nature. See, e.g., HAL, Inc. v. United States, 122 F.3d 851, 854 (9th Cir. 1997). Therefore, consistent with FAA, we conclude that the requested remedy is equitable in nature and that the Judge's reliance on INS is misplaced. [n3]

In sum, we conclude that the Respondent violated the Statute by failing to bargain over the impact and implementation of the change in parking rates. [n4] For the foregoing reasons, we adopt the Judge's remedial order, as modified below: [ v55 p1217 ]

VI. Order

Pursuant to section 2423.41(c) of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Veterans Affairs, through its agent the Veterans Affairs Medical Center, Nashville, Tennessee, shall:

1. Cease and desist from:

(a) Refusing to bargain with the American Federation of Government Employees, Local 2400 concerning the impact and implementation of an increase in rates that it charged unit employees at its Nashville, Tennessee parking garage.

(b) Unilaterally implementing changes in the working conditions of its unit employees by increasing parking rates at its Nashville, Tennessee parking garage without first bargaining with the American Federation of Government Employees, Local 2400, over the impact and implementation of the change.

(c) In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Rescind the increase in parking rates charged to unit employees at its Nashville, Tennessee parking garage implemented on March 12, 1997.

(b) Effect a further decrease in parking rates charged unit employees at the Nashville, Tennessee parking garage for a period of time necessary to offset the difference between the unlawfully implemented rate -- $10.96 per pay period -- and the former rate -- $3.46 per pay period -- until such time as the affected employees have been made whole.

(c) Upon request of the American Federation of Government Employees, Local 2400, bargain over the impact and implementation of the increase in parking rates.

(d) Post at all locations throughout the VAMC, Nashville, Tennessee, facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 2400 are located, 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, Veterans Affairs Medical Center, Nashville, Tennessee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(e) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Chicago Regional Office, Federal Labor Relations Authority, 55 West Monroe, Suite 1150, Chicago, IL 60603, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of Veterans Affairs, through its agent the Veterans Affairs Medical Center, Nashville, Tennessee, has violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice:

We hereby notify bargaining unit employees that:

WE WILL NOT refuse to bargain with the American Federation of Government Employees, Local 2400, the agent of the exclusive representative, concerning the impact and implementation of an increase in rates that we charged employees at our Nashville, Tennessee parking garage.

WE WILL NOT unilaterally implement changes in the working conditions of employees by increasing parking rates at our Nashville, Tennessee parking garage without first bargaining with the American Federation of Government Employees, Local 2400, over the impact and implementation of the change.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Statute.

WE WILL rescind the increase in parking rates that at our Nashville, Tennessee parking garage that we implemented on March 12, 1997.

WE WILL effect a further decrease in parking rates charged unit employees at our Nashville, Tennessee parking garage for a period of time necessary to offset the difference between the unlawfully implemented rate -- $10.96 per pay period -- and the former rate -- $3.46 [ v55 p1218 ] per pay period -- until such time as affected employees have been made whole.

WE WILL, upon request of the American Federation of Government Employees, Local 2400, bargain over the impact and implementation of the change in employee parking rates.

_________

(Agency)

Dated: __ By: ____

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Chicago Regional Office, Federal Labor Relations Authority, whose address is: 55 West Monroe, Suite 1150, Chicago, IL 60603, and whose telephone number is: (312) 353-6306.

APPENDIX

38 U.S.C. §§ 8109(c)(1) and 8109(d)(1) and (d)(2) provide, as relevant here:

(c)(1) [E]ach employee, visitor, and other individual having business at a medical facility for which parking fees have been established under subsection (d) or (e) of this section shall be charged the applicable parking fee for the use of a parking facility at such medical facility.

(d)(1) For each medical facility where funds from the revolving fund . . . are expended for--

(A) a garage constructed or acquired by the Department at a cost exceeding $500,000 . . . ; or

(B) a project for the alteration of a garage at a cost exceeding $500,000,

the Secretary shall prescribe a schedule of parking fees to be charged at all parking facilities used in connection with such medical facility.

(2) The parking fee schedule prescribed for a medical facility . . . shall be designed to establish fees which the Secretary determines are reasonable under the circumstances.

38 C.F.R. § 1.303(b)(1) provides, in relevant part:

All parking fees shall be set at a rate which shall be equivalent to one-half of the appropriate fair rental value . .
. for the use of equivalent commercial space in the vicinity of the medical facility . . . . The Secretary will determine the fair market rental value through use of generally accepted appraisal techniques. If the appraisal establishes that there is no comparable commercial rate because of the absence of commercial parking facilities within a two-mile radius of the medical facility, then the rate established shall be not less than the lowest rate charged for parking at the VA medical facility with the lowest established parking fees. Rates established shall be reviewed biannually by the Secretary to reflect any increase or decrease in value as determined by appraisal updating. [ v55 p1219 ]

Concurring Opinion of Member Wasserman

I agree that it is unnecessary to resolve that aspect of the complaint which alleges that the Respondent violated the Statute when it unilaterally implemented an increase in parking rates at VA Nashville without bargaining with the Union over the substance of the change. However, in arriving at this result, I have carefully considered the following aspects of this case that the majority does not discuss.

First, I note the General Counsel's contention that the Judge incorrectly relied on the Respondent's parking circulars in disposing of this case. Specifically, the General Counsel maintains that because the last parking circular had long since expired, the circulars have no application to this proceeding. As explained below, I agree with the General Counsel's contention.

Beginning in 1987, the Respondent published three parking circulars that "prescribe[d] policies and procedures for the assessment and collection of parking charges" at its medical facilities nationwide. Respondent's Exh. 1. It is undisputed that these circulars were intended to implement 38 U.S.C. § 8109 and 38 C.F.R. § 1.303, concerning parking fees at VA medical facilities. The Judge found that the parking circulars did not constitute contracts negotiated between the Respondent and AFGE National. Rather, the Judge found that the circulars set forth the Respondent's national policy, and "were issued at the national level, after notifying AFGE and receiving its consent." Judge's Decision at 7. See also Id. at n.6. Based on these findings, the Judge concluded that VA Nashville did not violate the Statute when it rejected the Union's request to bargain over the change in parking fees because the "request was made at the wrong level." Id.

The Authority has found that "[a]gencies issue pronouncements in many forms, including regulations, circulars, [and] manuals . . . ." National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 388 n.2 (1991), enforcement denied on other grounds sub nom. U.S. Department of the Treasury, Internal Revenue Service v. FLRA, 996 F.2d 1246 (D.C. Cir. 1993). In this connection, the Authority has observed that "`[t]he label attached to an agency pronouncement is not dispositive.'" Id. (quoting Chasse v. Chasen, 595 F.2d 59, 62 (1st Cir. 1979).

Although the procedure for challenging an increase in parking fees was embodied in documents denominated as "circulars," it is clear that they constituted a VA regulation. Moreover, it is undisputed that the last of the circulars -- Circular 90-31 --expired by its terms on October 1, 1991. General Counsel's Exh. 2 at 5. Accordingly, I conclude that the Judge erred in finding that the expired circular affected the parties' bargaining obligations. See National Association of Government Employees, Local R12-40 and Federal Union of Scientists and Engineers, Local R12-198 and U.S. Department of the Navy, Naval Ship Weapon Systems Engineering Station, Port Hueneme, California, 36 FLRA 168, 171 (1990) (as OMB bulletin had expired and was no longer in effect, it was not applicable as a basis for the agency's position).

In this connection, I specifically note that the Judge's finding of a violation -- the Respondent's refusal to bargain over the impact and implementation of the change in parking rates --was based on a provision set forth in the parking circulars. I further note that no exceptions have been filed to this aspect of the decision. In view of my determination that the circulars do not apply, they do not provide a basis for the Judge's finding. Nevertheless, I have concluded that this finding should be left undisturbed because it is not at issue before us.

In addition, inasmuch as the parking circulars had expired by their express terms, I find the Respondent's reliance on the circulars as a means of disavowing its responsibility for bargaining over the substance of the rate increase somewhat remarkable. In my view, it would be incongruous to find that VA Nashville had the authority to bargain impact and implementation issues in the context of the expired circulars, but to also find that it lacked authority to bargain over substance on behalf of the Respondent. When VA Nashville ultimately rejected the Union's substance bargaining request, it expressly noted the Respondent's position that the matter had been negotiated at the national level. General Counsel's Exh. 13. Therefore, it is clear that the Respondent was aware of the Union's attempt to bargain at the local level. Notwithstanding this fact, the Respondent did nothing to disabuse the Union of its alleged mistake in asking VA Nashville to bargain.

I note that under the doctrine of apparent authority, the authority of an agent to act on behalf of its principal "results from a manifestation by a principal to a third party that reasonably leads a third party to believe that another person is acting as the principal's agent." Millard Processing Services, Inc. v. NLRB, 2 F.3d 258, 262 (8th Cir. 1993) ("[a]pparent authority results from a manifestation by a principal to a third party that reasonably leads a third party to believe that another person is acting as the principal's agent."). Consistent with this doctrine, I would therefore find that VA Nashville had apparent authority to bargain on behalf of the Respondent over the increase in employee parking rates.

File 1: Authority's Decision in 55 FLRA No.
195 and Opinion of Member Wasserman

File 2: ALJ's Decision

Footnote # 1 for
55 FLRA No. 195

• Authority's Decision

Member Wasserman's concurring opinion is set forth at the end of this decision.

Footnote # 2 for
55 FLRA No. 195

• Authority's Decision

The relevant provisions of 38 U.S.C. § 8109 and 38 C.F.R. § 1.303 are set forth in the Appendix to this decision.

Footnote # 3 for
55 FLRA No. 195

• Authority's Decision

In arriving at this result, we specifically note that remedies for unfair labor practices should be designed to "restore, so far as possible, the status quo that would have obtained but for the wrongful act." Id. (quoting NLRB v. J.H. Rutter-Rex Manufacturing Co., 396 U.S. 258, 265 (1969). In our view, the make-whole relief that we order here serves to further this well settled goal. See American Federation of Government Employees, SSA Council 220, AFL-CIO v. FLRA, 840 F.2d 925, 930 (D.C. Cir. 1988) (the denial of make-whole relief "should prove exceptional").

Footnote # 4 for
55 FLRA No. 195

• Authority's Decision

An assessment of whether VA Nashville was authorized to bargain over the increase in rates is unnecessary because, even if VA Nashville was not so authorized, the increase in parking rates must be rescinded. Moreover, there is no dispute that if the Respondent does initiate another increase at some future date, the substance of the increase is negotiable at the appropriate agency level. See Service Employees International Union, Local 200-B and U.S. Department of Veterans Affairs, Medical Center, Syracuse, New York, 44 FLRA 821, 828-29 (1992). The Authority has previously declined to find an additional violation where such a finding would not affect the remedial relief provided. E.g., Department of the Treasury and Internal Revenue Service, 22 FLRA 821, 829 n.8 (1986). As such circumstances are presented in this case, we make no decision on the merits of the allegation that, as a result of the request made to VA Nashville, the Respondent was obligated to bargain over the substance of the change. In light of this determination, we also do not reach the General Counsel's contentions regarding the parking circulars.

[ v55 p1220 ]

Office of Administrative Law Judges

U.S. DEPARTMENT OF VETERANS AFFAIRS

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 2400, AFL-CIO

Charging Party

Case No. CH-CA-70255

Greg A. Weddle, Esquire

Judith Ramey, Esquire

For the General Counsel

Roger T. Gray, Esquire

For the Respondent

Before: SAMUEL A. CHAITOVITZ

Chief Administrative Law Judge

DECISION

Statement of the Case

This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. § 7101, et seq. (the Statute), and the Rules and Regulations of the Federal Labor Relations Authority (FLRA/Authority), 5 C.F.R. § 2411 et seq.

Based upon an unfair labor practice charge filed by the Charging party, American Federation of Government Employees, Local 2400, AFL-CIO (AFGE Local 2400/Union), a complaint and notice of hearing was issued on behalf of the General Counsel (GC) of the FLRA, Regional Director of the Chicago Regional Office. The complaint alleges that the U.S. Department of Veterans Affairs (VA) violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate over the increase in parking rates at the VA Medical Center in Nashville, Tennessee (VAMC Nashville) and implementing those parking rates. VA filed an answer denying it had violated the Statute.

A hearing was held in Nashville, Tennessee, at which time all parties were afforded a full opportunity to be represented, to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. VA and GC of the FLRA filed post-hearing briefs, which have been fully considered.

Based upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations.

Findings of Fact

A. Background

AFGE is the certified collective bargaining representative of a nationwide unit of VA employees, including the employees at VAMC Nashville. AFGE Local 2400 is the agent of AFGE for the purposes of representing the unit employees at VAMC Nashville.

38 U.S.C. § 8109(c)(1) provides, inter alia, that each employee having business at a medical facility for which parking fees have been established under subsection (d) of this section shall be charged the applicable parking fee.

38 U.S.C. § 8109(d)(1) and (2) provides:

(1) For each medical facility where funds from the revolving fund described in subsection (h) of this section are expended for-

(A) a garage constructed . . . by the Department at a cost exceeding $500,000 . . .; or

(B) a project for the alteration of a garage at a cost exceeding $500,000, the Secretary shall prescribe a schedule of parking fees to be charged at all parking facilities used in connection with such medical facility.

(2) The parking fee schedule prescribed for a medical facility referred to in paragraph (1) of this subsection shall be designed to establish fees which the Secretary determines are reasonable under the circumstances.

38 C.F.R. § 1.303(b) provides, in part, that the parking fees assessed VA employees, pursuant to 38 U.S.C. § 8109, shall be set at one-half of the appropriate fair rental value for the use of equivalent commercial space. The Secretary of the VA is to determine the fair rental value through the use of generally accepted appraisal techniques. This section also provides that the parking rates established by the Secretary shall be reviewed biannually by the Secretary to reflect any increase or decrease in value as determined by appraisal updating.

By letter dated October 14, 1987, VA transmitted to AFGE a copy of a draft of Circular 00-87, and asked for comments from the AFGE. The draft of Circular 00-87 provides in paragraph 5(c), "The method for determining parking fees will be promulgated by separate VA regulation." Paragraph 13 of this Circular provided that it would expire on March 15, 1989. AFGE, by let- [ v55 p1221 ] ter dated December 21, 1987, advised VA that AFGE accepted the proposed policy in Circular 00-87.

On February 2, 1988 the Administrator of the Veterans Administration [n1] issued Circular 00-88-5 which implements the U.S. Code and CFR provisions for setting parking fees by the Secretary. Paragraph 10 provides a means of appealing the parking rates by the Medical Center Director, to the Administrator through the Chief, Real Property Program Management Division. Paragraph 8(c) provides:

8(c) Any facility implementing a parking fee program that impacts on employees represented by a union should make sure it meets its bargaining obligations with the union local(s) before implementing the program. Advice from the VACO labor relations staff should be sought to assure the proper union participation.

Paragraph 5(c) provides that the method for determining parking fees would be promulgated by separate VA regulation. Paragraph 13 provides that the circular was to expire on March 15, 1989. [n2]

VA issued Circular 00-90-31, dated November 1, 1990. This circular is virtually identical with 00-88-5, except it was changed to reflect the change in the status with the VA becoming a cabinet department headed by a secretary, and also the expiration date of the circular was set as October 1, 1991. AFGE, by letter dated January 4, 1991, demanded to bargain about the circular and asked that the circular be rescinded until negotiations were completed. VA, by letter dated January 15, 1991, refused to bargain with AFGE about Circular 00-90-31 because the changes from Circular 00-88-5 were "de minimis" and the previous circular had been was negotiated with AFGE.

B. Parking Facility at VAMC Nashville

On March 13, 1991, VAMC Nashville notified AFGE Local 2400 that a parking garage had been approved for the VAMC and parking fees would be established. Circular 00-90-31 was enclosed for AFGE Local 2400's information.

By letter dated April 8, 1991, to VAMC Nashville, AFGE Local 2400 asked to bargain "on impact and implementation" of all proposals in Circular 00-90-31.

By letter dated June 4, 1991, to AFGE Local 2400, VAMC Nashville Personnel Officer William Hardwick responded to the Union's request to bargain over the impact and implementation of the proposals in Circular 00-90-31. Because the parking garage was to be constructed in the next few years, VAMC Nashville stated that it was too early to begin implementation of the circular. The VAMC Nashville Personnel Officer Hardwick went on to state that he would review any specific proposals the Union forwarded to him by June 14, 1991.

By letter dated June 11, 1991, to Hardwick, AFGE Local 2400 President B.R. Hardison stated that because there was uncertainty as to when or if there will be a parking garage, it was making demands for such time when a parking facility becomes a certainty. The demands were: (1) a copy of the survey used to determine parking fees; (2) to negotiate how parking spaces are to be allocated; (3) to negotiate how payments are to be made by employees; (4) to negotiate that all employees who pay for parking have a guaranteed designated space; and (5) to "negotiate [the] amount of payment made by employees based according to wages."

During February 1994, the new parking facility was completed at the VAMC Nashville, which was constructed at a cost exceeding $500,000. On February 3, 1994, parking rates for employees were set for this new garage. The rates set were $7.50 monthly, $6.00 daily, and $1.00 hourly. VAMC Nashville and AFGE Local 2400 apparently engaged in bargaining over the impact and implementation of these rates and entered into a Memorandum of Understanding, which dealt with, among other things, the assignment of spaces.

In October 1996, the Union learned that VAMC Nashville planned to substantially increase the parking rates charged to unit employees. By memorandum dated October 16, 1996, AFGE Local 2400 requested to bargain over the impact and implementation of the proposed rate increases. On October 29, 1996, the Union requested to bargain over the increase itself.

By E-mail dated November 1, 1996, Hardwick advised the Union "we are anxious to meet with you to discuss your request to bargain on the impact and implementation of the recently announced parking fees; your request to bargain on the rates and the methodology of the rates and assigned/reserved parking spaces. However, we only have the verbal announcement that the rates will increase at this time. I suggest we wait until [ v55 p1222 ] we know, in writing, that the Secretary has approved the proposed increase for Nashville. Please let me know if this is satisfactory with you. Thanks."

By memorandum dated January 30, 1997, VAMC Nashville Chief of Human Resources Management Service advised the President of AFGE Local 2400, that VAMC Nashville had reviewed the Union's request to bargain over the impact and implementation of the new parking rates, the rates, the methodology of determining rates, and assigned/reserved parking spaces and the Union's request that the collection of parking fees cease until bargaining is completed. VAMC Nashville stated that it would not negotiate over the increase in parking rates because the rates and the methodology of determining rates were not negotiable and the determination of the parking rates had been negotiated at the national and headquarters level. VAMC Nashville also advised the Union that VAMC Nashville would not bargain over the impact and implementation of the rate change since "paid parking" had been negotiated at the local level three years previously. The memorandum went on to advise the Union that the new rates in an employee parking rate of $10.96 per pay period would become effective on March 2, 1997.

The new parking rates increased from $3.46 per pay period to $10.96 per pay period (or $23.75 monthly) on March 12, 1997.

Discussion and Conclusions of Law

The GC contends that VA violated section 7116(a)(1) and (5) of the Statute when VAMC Nashville failed and refused to bargain with AFGE Local 2400 concerning the increase in the parking rates at VAMC Nashville and concerning the impact and implementation of this change.

It is unlawful for an agency to implement a change in conditions of employment for bargaining unit employees without providing the exclusive representative with notice of the change and an opportunity to bargain over those aspects of the change that are within the duty to bargain. U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee, 53 FLRA 79, 81-82 (1997); and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Memphis, Tennessee, 42 FLRA 712, 713 (1991).

A. Parking Arrangements are Negotiable

Parking arrangements are negotiable conditions of employment. Immigration and Naturalization Service, Los Angeles District, Los Angeles, California, 52 FLRA 103 (1996)(INS). Consequently, prior to implementing a change in parking arrangements, management must provide the exclusive representative an opportunity to bargain over the substance, impact, and implementation of such changes. Department of Veterans Affairs, Veterans Administration Medical Center, Decatur, Georgia, 46 FLRA 339, 344-45 (1992) (VAMC Decatur). Thus, any change in parking rates and arrangements is negotiable. See, VAMC Decatur, and Service Employees International Union, Local 200-B and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Syracuse, New York, 44 FLRA 821, 825 (1992).

B. VAMC Nashville Parking Rates

AFGE Local 2400 asked to bargain about both the substance of the change of parking rates and about the impact and implementation of the change of parking rates. AFGE is the collective bargaining representative for a nationwide unit of VA employees and AFGE Local 2400 is the agent of AFGE for representing unit employees at VAMC Nashville.

The method for implementing and changing parking rates at the local medical centers was established by the VA nationwide and has been set forth in VA circulars since February 1988. In 1997 the first proposed circular was shown to AFGE for its comments and AFGE stated it had no objection to the new procedure. The circular was reissued under a new number in 1990, keeping the parking rate setting procedures unchanged but making adjustment to the terms of the circular because VA had become a cabinet level department. AFGE asked to bargain about the procedure, but VA refused. [n3]

The procedures for implementing and changing rates was a nationwide policy and any bargaining concerning these procedures and policy had to take place at the national level. There is no contract between VA and AFGE regarding the procedures for setting parking rates, rather AFGE was notified of this nationwide VA parking rate procedures and was, originally, given an opportunity to bargain about them. Any request to change these VA nationwide procedures, therefore, would have to be made at the national level, and not by a local union with one of the VA components. In this regard, I note that the procedures set forth in the VA circulars provide the method for implementing the parking rates at all VA facilities, and the local medical center directors do not have the authority to change these procedures. [ v55 p1223 ]

The level of recognition [n4] in the subject case is nationwide VA with AFGE. The procedures for setting the parking rates in the garages covered by 38 U.S.C. § 8109(d)(2) were established by VA in its circulars that were issued at the national level, after notifying AFGE and receiving its consent. Thus, any decision to change the VA national policy with respect to implementing and changing parking rates, as set forth in the circulars, would have to be done at the national level. Accordingly, to the extent AFGE Local 2400 asked VAMC Nashville to negotiate about these procedures, such request was made at the wrong level, and VAMC Nashville did not violate the Statute to the extent it refused to bargain about the procedures set forth in the circulars or the Secretary's exercise of discretion in setting parking rates [n5] . Such a request to change the VA's procedures for setting parking rates or the Secretary's exercise of discretion, would have to be made to VA at the national level by AFGE. See American Federation of Government Employees, National Border Patrol Council v. FLRA, 114 F.3d 1214 (D.C. Cir. June 3, 1997); and Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 39 FLRA 1409, 1517-18 (1991). [n6] In this regard I conclude that VA has not had any determination made that there was a compelling need for such a uniform national regulation. See VAMC Decatur. [n7]

With regard to the Union's request that VAMC Nashville bargain about the impact and implementation of the change in rates, the situation is different. As admitted, AFGE Local 2400 is the agent of AFGE for representing the unit employees employed at VAMC Nashville. Further, the circulars stated, in part, "Any facility implementing a parking fee program that impacts on employees represented by a union should make sure it meets its bargaining obligations with the union local(s) before implementing the program." In light of the foregoing I conclude that both AFGE Local 2400 and VAMC Nashville have been designated and authorized by their parent organizations to bargain about the impact and implementation of the application of the procedures for implementing and changing parking rates, as set forth in the circulars.

Thus, when the parking rates were being changed in VAMC Nashville, AFGE Local 2400 was entitled to bargain concerning the impact and implementation of the change in rates in 1997. See VAMC Decatur. In this regard VA's argued that AFGE Local 2400 somehow waived its right to negotiate the change because it did negotiate, when offered such an opportunity concerning the change in parking rates in 1994. I conclude that no such waiver occurred. Rather, the Union and VAMC Nashville did bargain about certain aspects of the change in parking rates, but the Union did not protest the $7.50 monthly rate.

The subject change involved raising this monthly rate to $23.75. AFGE Local 2400 apparently felt this change was sufficiently large to justify the request to bargain.

In light of the foregoing, I conclude that VA, through its agent VAMC Nashville, violated section 7116(a)(1) and (5) of the Statute when it refused to bargain with AFGE Local 2400 concerning the impact and implementation of the change in parking rates at VAMC Nashville. See Id.

C. Remedy

In so holding I note that paragraph 10 of the VA circulars provide a procedure for the local facility directors to appeal the rates. Accordingly, to the extent requested to do so and to the extent he has the discretion to do so, the Director of VAMC Nashville, as part of the obligation to bargain about the impact and implementation of the new rates, must also bargain about whether and to what extent, he will exercise his discretion to appeal the rates set. Id.

The Authority set forth factors to be considered in determining when a status quo ante remedy is appropriate in cases involving a failure to bargain about the impact and implementation of a change in conditions of employment in Federal Correctional Institution, 8 FLRA 604, 605-06 (1982). See also, Army and Air Force Exchange Service, Waco Distribution Center, [ v55 p1224 ] Waco, Texas, 53 FLRA No. 66, slip op. at 11-12 (1997). In applying this analytical framework I note that AFGE Local 2400 learned about the impending new rates by Mid-October 1996 and on October 16, 1996, asked to bargain about the impact and implementation of parking rates change, some five months before the new rates went into effect. I further note that after first welcoming the Union's request and stating that they would be glad to bargain, VAMC Nashville, on January 30, 1997, flatly refused to bargain about any aspects of the Union's request to bargain. The three fold increase in the parking rates clearly had a substantially adverse impact on the employees at VAMC Nashville. Finally, I note that the record fails to establish that there would be any substantial disruption or impairment in the operation of VAMC Nashville if a status quo ante remedy is imposed.

In light of all of the foregoing, I conclude that a status quo ante is appropriate, including the reduction of the monthly parking rates to their pre March 12, 1997 levels. See U.S. Department of the Army, Lexington-Blue Grass Army Depot, Lexington, Kentucky, 38 FLRA 647, 649-50 (1990).

I conclude further that "a make whole" remedy involving money damages is not available in this case. See INS. To the extent the GC of the FLRA is asking for an additional reduction of parking rates sufficient to make employees whole for the additional cost they experienced since March 12, 1997, I reject this request because it is an attempt to award money damages in a different guise.

Having concluded that VA violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over the impact and implementation over the increase in parking rates at VAMC Nashville, I recommend the Authority issue the following Order:

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Statute, the U.S. Department of Veterans Affairs, through its agent Veterans Affairs Medical Center, Nashville, Tennessee, shall:

1. Cease and desist from:

(a) Refusing to bargain with the American Federation of Government Employees, Local 2400, AFL-CIO, the exclusive representative of certain of its employees, concerning the impact and implementation of increasing parking fees at the Nashville, Tennessee parking garage, including the exercise of discretion by the Director of the Veterans Affairs Medical Center in Nashville to appeal any such increase.

(b) Unilaterally implementing an increase in parking fees at its Nashville, Tennessee parking garage without bargaining and completing negotiations with the American Federation of Government Employees, Local 2400, AFL-CIO, over the impact and implementation of any increase in parking rates, including the exercise of discretion by the Director of the Veterans Affairs Medical Center in Nashville to appeal any such parking rate increase.

(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Rescind the increase in parking rates at the Nashville, Tennessee parking garage instituted on March 12, 1997.

(b) Notify the American Federation of Government Employees, Local 2400, AFL-CIO, of any proposed increase of parking rates at the Nashville, Tennessee parking garage.

(c) Upon request of the American Federation of Government Employees, Local 2400, AFL-CIO, negotiate over the impact and implementation of any increase in parking rates at the Nashville, Tennessee parking garage, including the exercise of any discretion of the Director of the Veterans Affairs Medical Center in Nashville, Tennessee to appeal any such parking rate increase.

(d) Post at all locations throughout the VAMC Nashville, Tennessee, facilities where bargain- [ v55 p1225 ] ing unit employees represented by the American Federation of Government Employees, Local 2400, AFL-CIO, are located, 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, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Chicago 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, November 26, 1997.

____

SAMUEL A. CHAITOVITZ

Chief 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 U.S. Department of Veterans Affairs violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice:

We hereby notify bargaining unit employees that:

WE WILL NOT refuse to bargain with the American Federation of Government Employees, Local 2400, AFL-CIO, the exclusive representative of certain of our employees, concerning the impact and implementation of an increase in parking fees at our Nashville, Tennessee parking garage, including the exercise of discretion by the Director of the Veterans Affairs Medical Center in Nashville to appeal any such increase.

WE WILL NOT unilaterally implement an increase in parking fees at our Nashville, Tennessee parking garage without bargaining and completing negotiations with the American Federation of Government Employees, Local 2400, AFL-CIO, over the impact and implementation of any increase in parking rates, including the exercise of discretion by the Director of the Veterans Affairs Medical Center in Nashville to appeal any such parking rate increase.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Statute.

WE WILL rescind the increase in parking rates at our Nashville, Tennessee parking garage instituted on March 12, 1997.

WE WILL notify American Federation of Government Employees, Local 2400, AFL-CIO, of any proposed increase of parking rates at our Nashville, Tennessee garage.

WE WILL upon request of the American Federation of Government Employees, Local 2400, AFL-CIO, negotiate over the impact and implementation of any increase in parking rates at the Nashville, Tennessee parking garage, including the exercise of any discretion of the Director of the Veterans Affairs Medical Center in Nashville to appeal any such parking rate increase.

____

(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 its provisions, they may communicate directly with the Regional Director, Chicago Regional Office, Federal Labor Relations Authority, whose address is: 55 West Monroe, Suite 1150, Chicago, IL 60603, and whose telephone number is: (312)353-6306.

File 1: Authority's Decision in 55 FLRA No. 195

File 2: ALJ's Decision

Footnote # 1 for
55 FLRA No. 195

• ALJ's Decision

The Veterans Administration is the predecessor of the U.S. Department of Veterans Affairs and the Administrator was the head of the Veterans Administration, in effect the predecessor of the Secretary of the VA.

Footnote # 2 for
55 FLRA No. 195

• ALJ's Decision

This is the circular under number (00-87), that had been sent to AFGE for its review.

Footnote # 3 for
55 FLRA No. 195

• ALJ's Decision

The refusal by the VA to bargain at the national level, when so requested by AFGE, is not alleged by the GC of the FLRA to be an unfair labor practice in this case.

Footnote # 4 for
55 FLRA No. 195

• ALJ's Decision

A full and insightful discussion and analysis of "level of recognition" in Authority decisions is set forth in the Administrative Law Judges Decision in U.S. Food and Drug Administration, Northeast and Mid-Atlantic Regions, Case No. BN-CA-50168, OALJ 96-23, slip op. at 6-8 (1996), pending before the Authority.

Footnote # 5 for
55 FLRA No. 195

• ALJ's Decision

Although VA did not specifically argue that the demand to bargain was made at the wrong level. It did argue that the procedures set forth in the circulars had already been negotiated on the national level by AFGE and, they could not be bargained again. In these circumstances I infer an argument concerning the appropriate level of recognition.

Footnote # 6 for
55 FLRA No. 195

• ALJ's Decision

In so concluding I am not finding that the national circulars were "contracts" that somehow covered this situation. Rather, I am concluding the circulars set forth national VA policy, which was set after asking AFGE's input. If AFGE wishes to change this existing national policy, it must make this request at the national level.

Footnote # 7 for
55 FLRA No. 195

• ALJ's Decision

The "level of recognition" issue was not discussed in VAMC Decatur, and therefore that case is not controlling in this area.