On Petition for Review of an Order of the Federal Labor Relations Authority
Before: Edwards, Garland and Roberts, Circuit Judges.
The opinion of the court was delivered by: Edwards, Circuit Judge
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
This case involves two unfair labor practice charges filed by the National Association of Government Employees, Local R5-136 (''Union''), with the Federal Labor Relations Authority (''FLRA'' or ''Authority''). Based on these charges, General Counsel for the FLRA issued two complaints charging the Department of Veterans Affairs' Ralph H. Johnson Medical Center (''Medical Center'') with refusing to bargain over employee parking in violation of the Federal Service Labor-Management Relations Statute (''Statute''), 5 U.S.C. §§ 7101-7135 (2000). The first complaint alleged that the Medical Center refused to bargain over proposed changes to the Medical Center's parking policies. The second complaint alleged that the Medical Center unilaterally adopted a practice of permitting patients to park in a designated ''employee lot'' without giving notice to, or bargaining with, the Union.
An Administrative Law Judge (''ALJ'') ruled against the Medical Center on each complaint. The Authority reversed the ALJ's decision and dismissed the complaints. As to the first complaint, the Authority found that the Medical Center had complied with the Union's request to maintain the status quo pending completion of negotiations. The Authority therefore concluded that the Medical Center had met its duty to bargain by not taking any unilateral action until after the period for timely submission of bargaining proposals had run. As to the second complaint, the Authority determined that the Medical Center had no mandatory duty to bargain over its decision to allow patients to park in the employee lot, because the decision concerned a ''means of performing work'' under 5 U.S.C. § 7106(b)(1). The Authority further found that the decision had no more than a de minimis impact on bargaining unit employees and that the Medical Center consequently was not obligated to bargain over the ''impact and implementation'' of the decision. The Union petitioned this court for review of the Authority's order.
We grant the petition for review in part and deny it in part. The Authority's decision to dismiss the first complaint is premised on an entirely untenable interpretation of the parties' collective bargaining agreement (''CBA''). Accordingly, we reverse the Authority's dismissal of the first complaint as arbitrary and capricious. As to the second complaint, we uphold the Authority's order. The Authority reasonably determined that allowing patients to park in the employee lot was a ''means of performing work'' exempt from any mandatory duty to bargain. We are barred from considering the Union's claim that the impact of the Medical Center's decision on bargaining unit employees was more than de minimis, because the Union failed to raise this claim before the Authority. We note that, in any event, the Authority's finding that the impact was de minimis was supported by substantial evidence.
The Federal Service Labor-Management Relations Statute grants federal government employees the right to organize and engage in collective bargaining with respect to ''conditions of employment.'' 5 U.S.C. § 7102. The Statute makes it an ''unfair labor practice'' for covered agencies to interfere with this right or to refuse to negotiate in good faith over conditions of employment. See 5 U.S.C. § 7116(a)(1), (5). While the term ''conditions of employment'' is defined broadly to include ''personnel policies, practices, and matters ... affecting working conditions,'' 5 U.S.C. § 7103(a)(14), the Statute exempts certain matters from the mandatory duty to bargain, including management rights identified in § 7106. Section 7106(b)(1) identifies matters over which bargaining may take place ''at the election of the agency,'' including decisions concerning ''the technology, methods, and means of performing work.'' 5 U.S.C. § 7106(b)(1). ''As to these decisions, the agency is permitted but not required to negotiate with the labor organization.'' Am. Fed'n of Gov't Employees, AFL-CIO, Local 2441 v. FLRA, 864 F.2d 178, 180 (D.C. Cir. 1988) ('' AFGE, Local 2441 ''). Although an agency is not required to negotiate over a decision falling within the § 7106(b)(1) exception, an agency must negotiate over the ''impact and implementation'' of any such decision if it has more than a de minimis adverse effect on bargaining unit members' conditions of employment. See, e.g., Fed. Bureau of Prisons Fed. Correctional Inst., Bastrop, Tex., 55 F.L.R.A. 848, 852 (1999) ('' Bureau of Prisons '') (citing Dep't of Health & Human Serv., Social Security Admin., 24 F.L.R.A. 403, 407–08 (1986)); see also FLRA v. United States Dep't of Justice, 994 F.2d 868, 872 (D.C. Cir. 1993).
The collective bargaining relationship between the Union and the Medical Center is governed, in part, by a master collective bargaining agreement between the National Association of Government Employees and the Department of Veterans Affairs. Dep't of Veterans Affairs, Ralph H. Johnson Med. Cent., Charleston, S.C., 58 F.L.R.A. 432, 440 (2003) ('' Dep't of Veterans Affairs ''). Article 39 of the CBA provides that ''[p]arking is subject to local negotiations.'' Master Agreement Between the National Association of Government Employees and the Department of Veterans Affairs at 29 ('' CBA ''), reprinted in Joint Appendix (''J.A.'') 247, 279. Article 11, Section 2 of the CBA establishes procedures for midterm negotiations ( i.e., those occurring during the term of the CBA), including the following requirements:
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.
Under the Medical Center's parking policy, a parking lot located across the street from the rear of the Medical Center (designated Zone 7) is reserved for employee parking. Dep't of Veterans Affairs, 58 F.L.R.A. at 441. Patients and visitors are permitted to park in other areas. In addition to parking at the facility itself, the Medical Center rented an off-site lot known as the Elks Lot – with 50 to 100 spaces used primarily for patient and visitor parking – up until the fall of 1999, when the Medical Center lost its lease for the lot. The loss of the Elks Lot contributed to a shortage of patient parking. At any given time, 20 to 40 patients might be seen circling the Medical Center looking for parking. Id. Officials from the Medical Center's police service decided to address this problem by allowing patients to park in the employee lot during peak clinic hours, between 9:00 and 10:30 a.m., several days a week. The Union received no official notice of this decision. Id. at 442.
On August 24, 1999, the Union received a one-page notice from the Medical Center proposing changes to the '' 'Employee Parking Lot' and Bravo Street'' in order to ''provide additional patient parking and to preclude traffic congestion on Bravo Street.'' Id. at 440. Attached to the notice was a revised parking policy for the Medical Center and a schematic drawing of the employee parking lot. The changes to the parking policy included, inter alia, an increase in the fee for failure to return a parking-gate card upon conclusion of employment with the Medical Center. Id. The new parking policy did not alter the pre-existing reservation of the Zone 7 parking lot for employee use. Id. at 442. No specific information on changes to Bravo Street was provided. See id. at 441.
On August 31, 1999, the Union submitted to the Medical Center a memorandum entitled ''Proposed Parking Lot ...