National Association of Government Employees, Local R5-136 v. Federal Labor Relations Authority, Washington, D.c.

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 6, 2004 Decided April 6, 2004
No. 03-1127
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R5–136,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
WASHINGTON, D.C.,
RESPONDENT
On Petition for Review of an Order of the
Federal Labor Relations Authority
Jennifer Wasserstein argued the cause and filed the briefs
for petitioner.
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.

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Gregory O’Duden, Barbara A. Atkin, and Kerry L. Adams
were on the brief for amicus curiae National Treasury
Employees Union in support of petitioner.
David M. Shewchuk, Attorney, Federal Labor Relations
Authority, argued the cause for respondent. With him on the
brief were David M. Smith, Solicitor, and William R. Tobey,
Deputy Solicitor. James F. Blandford, Attorney, entered an
appearance.
Before: E DWARDS, GARLAND and ROBERTS , Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS .
EDWARDS, Circuit Judge: 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 com-
plaint 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 unilat-
erally adopted a practice of permitting patients to park in a
designated ‘‘employee lot’’ without giving notice to, or bar-
gaining 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

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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 con-
sequently 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 par-
ties’ 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 de-
termined that allowing patients to park in the employee lot
was a ‘‘means of performing work’’ exempt from any manda-
tory 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 Au-
thority. We note that, in any event, the Authority’s finding
that the impact was de minimis was supported by substantial
evidence.
I. BACKGROUND
A. Statutory Context
The Federal Service Labor-Management Relations Statute
grants federal government employees the right to organize
and engage in collective bargaining with respect to ‘‘condi-
tions 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 TTT
affecting working conditions,’’ 5 U.S.C. § 7103(a)(14), the
Statute exempts certain matters from the mandatory duty to

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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 negoti-
ate with the labor organization.’’ Am. Fed’n of Gov’t Em-
ployees, 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 Servs., 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).
B. Factual Background
The collective bargaining relationship between the Union
and the Medical Center is governed, in part, by a master
collective bargaining agreement between the National Associ-
ation of Government Employees and the Department of Vet-
erans 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. Arti-
cle 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

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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 bargain-
ing and to forward written proposals to the Employ-
er 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, bargain-
ing will normally commence within ten (10) calendar
days, unless otherwise agreed upon by the parties.
Id. at 8-9, J.A. 258-59.
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 prob-
lem 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 ‘‘ ‘Employ-
ee 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

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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 preexisting reservation of the Zone 7
parking lot for employee use. Id. at 442. No specific infor-
mation 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
Changes,’’ stating in relevant part:
1. The Union is in receipt of your memorandum
TTT concerning proposed changes in park-
ingTTTT
2. The Union hereby requests to negotiate the
proposed parking lot changesTTTT
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 condi-
tions of employment remain status quo.
5. Should you have any questions, contact the un-
dersignedTTTT
Joint Ex. 5, reprinted in J.A. 236. The attached information
request sought detailed information on changes to the Medi-
cal Center’s parking policies and practices and requested a
response by September 10, 1999. See Joint Ex. 6, J.A. 237-
38.
After receiving no response from the Medical Center, the
Union renewed its request for information on September 20,
1999, reiterating that it would submit proposals concerning
the proposed parking changes upon review of the information.
Joint Ex. 7, J.A. 239. In a memorandum dated October 27,
1999, the Medical Center responded to the information re-
quest. Joint Ex. 8, J.A. 240. On November 17, 1999 –
approximately 15 days after receipt of the Medical Center’s
response to its information request – the Union submitted
proposals regarding the Medical Center’s proposed parking

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changes. Dep’t of Veterans Affairs, 58 F.L.R.A. at 441. The
Union’s proposals addressed parking on Bravo Street (al-
though the Medical Center apparently had not given official
notice of the proposed changes to Bravo Street), patient and
visitor parking, disabled parking, emergency parking, and
employee parking. See id.; see also Joint Ex. 9, J.A. 242.
After the Union submitted its November 17 proposals, the
Medical Center implemented changes to Bravo Street, which
runs along one side of the facility. The Medical Center hired
a contractor who converted Bravo Street from a two-way to a
one-way street, striped off approximately 24 parking spots on
one side of the street, and erected a fence so that the street is
no longer a through street. Dep’t of Veterans Affairs, 58
F.L.R.A. at 441. Around the time of these actions, the Union
president asked the Medical Center’s representative why the
Union had not received any response to its parking proposals.
The Medical Center representative verbally indicated that a
number of the Union’s proposals were untimely, but would
not specify which. Shortly after a December 21, 1999, meet-
ing between Union and Medical Center representatives, the
Medical Center notified the Union in writing that the Medical
Center considered the Union’s parking proposals untimely
under the CBA. The Union requested an explanation but
received no response. Id.
C. Proceedings Below
The Union filed unfair labor practice charges against the
Medical Center, and the General Counsel of the FLRA issued
two complaints that were later consolidated. The first com-
plaint alleged that the Medical Center had violated 5 U.S.C.
§ 7116(a)(1) and (5) by refusing to bargain in good faith over
the Union’s proposals concerning employee parking at the
facility. The second complaint alleged that the Medical Cen-
ter had unilaterally implemented a change in bargaining unit
members’ conditions of employment, in violation of
§ 7116(a)(1) and (5), by permitting patients to park in the
employee parking lot without notifying the Union or bargain-
ing.

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The ALJ decided both complaints in favor of the Union.
As to the first, the ALJ determined that the Union’s August
31 proposal to maintain the status quo was timely. The ALJ
found that the Medical Center failed either to bargain over
this proposal or to notify the Union that the Medical Center
considered the proposal to be non-negotiable. The Medical
Center therefore violated its duty to bargain in good faith
under § 7116(a)(1) and (5). Id. at 443-44. With regard to the
second complaint, the ALJ determined that the Medical Cen-
ter’s decision to permit patients to park in the employee lot
was a unilateral change to a condition of employment of
bargaining unit members. The ALJ therefore concluded that
the Medical Center had violated its duty under the CBA and
§ 7116(a)(1) and (5) to notify the Union before making this
change. Id. at 444-45.
On appeal, the Authority reversed the ALJ’s decision and
dismissed both complaints, with one member of the Authority
dissenting. With regard to the first complaint, the Authority
found that the Union’s November 17 proposals were untimely
under the CBA, but that the August 31 ‘‘status quo’’ proposal
was timely. The Authority determined that the Medical
Center had fulfilled its bargaining obligations with respect to
the status quo proposal. Specifically, the Medical Center had
‘‘maintained the status quo well beyond the contractual period
authorizing bargaining’’ and had received no additional pro-
posals within the CBA-mandated 15-day deadline. ‘‘Thus,’’
according to the Authority, ‘‘there was nothing further to
bargain and the [Medical Center] had no obligation to main-
tain the status quo until a non-existent bargaining obligation
was concluded.’’ Id. at 434-35.
Turning to the second complaint, the Authority determined
that, while employee parking is a mandatory subject of
bargaining, the Medical Center’s decision to permit patients
to park in the employee lot concerned patient parking. Rely-
ing on its decision in American Federation of Government
Employees, AFL-CIO, Local 3399, 9 F.L.R.A. 1022 (1982)
(‘‘AFGE, Local 3399’’), the Authority held that providing
patient parking is a ‘‘means of performing work’’ under 5
U.S.C. § 7106(b)(1) and the decision at issue therefore was

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not a mandatory subject of bargaining. Dep’t of Veterans
Affairs, 58 F.L.R.A. at 435. The Authority determined,
moreover, that the Medical Center was not obligated to
bargain over the impact and implementation of its decision,
because the record did not support a determination that the
decision had more than a de minimis effect on bargaining
unit employees. Id. at 435-36.
The Union filed a timely petition for review with this court.
II. ANALYSIS
A. Standard and Scope of Review
We review the Authority’s order to determine whether it is
‘‘arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.’’ 5 U.S.C. §§ 706(2)(A), 7123(c)
(2000); Bureau of Alcohol, Tobacco & Firearms v. FLRA,
464 U.S. 89, 97 n.7 (1983). Under this standard, we look to
whether the Authority has offered a rational explanation for
its decision, whether its decision is based on consideration of
the relevant factors, and whether the decision is adequately
supported by the facts found. See Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983);
FDIC v. FLRA, 977 F.2d 1493, 1496 (D.C. Cir. 1992). The
Authority’s findings of fact are conclusive if supported by
‘‘substantial evidence on the record considered as a whole.’’ 5
U.S.C. § 7123(c); see also Pension Benefit Guar. Corp. v.
FLRA, 967 F.2d 658, 665 (D.C. Cir. 1992). This standard
requires us to defer to the Authority’s factual determinations
if, taking into account any record evidence to the contrary,
the record contains ‘‘such relevant evidence as a reasonable
mind might accept as adequate to support’’ such determina-
tions. Thomas v. NLRB, 213 F.3d 651, 657 (D.C. Cir. 2000)
(quoting Micro Pacific Dev. Inc. v. NLRB, 178 F.3d 1325,
1329 (D.C. Cir. 1999)); see also Lakeland Bus Lines, Inc. v.
NLRB, 347 F.3d 955, 961-62 (D.C. Cir. 2003). Under
§ 7123(c) of the Statute, we have jurisdiction to consider only
those objections urged by the petitioner in proceedings before
the Authority, ‘‘unless the failure or neglect to urge the

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objection is excused because of extraordinary circumstances.’’
5 U.S.C. § 7123(c); EEOC v. FLRA, 476 U.S. 19, 23 (1986).
B. First Complaint: Duty to Bargain Over the Union’s
Proposals
1. Duty to Bargain Under the CBA
As noted above, the Authority found that the Union’s
August 31 proposal was timely submitted under the CBA and
interpreted the proposal as a request to maintain the status
quo pending completion of bargaining. Although the Medical
Center never bargained over the status quo proposal itself,
the Authority determined that the Medical Center had com-
plied with the proposal by maintaining the status quo until
the CBA’s 15-day deadline for submission of proposals had
run. The Authority found that the Medical Center had no
obligation to consider the November 17 proposals, because
they were not timely submitted. The Authority’s determina-
tions rest on an implausible interpretation of the CBA. Even
assuming that the Authority has the discretion to interpret a
collective bargaining agreement where necessary to resolve
an unfair labor practice claim, ‘‘we conclude that it abused
that discretion TTT by reaching a result that is illogical on its
own terms.’’ IRS v. FLRA, 963 F.2d 429, 439 (D.C. Cir.
1992). Accordingly, we set aside the Authority’s dismissal of
the first complaint as arbitrary and capricious.
As noted above, the CBA requires the Medical Center to
notify the Union of any proposed changes to a condition of
employment, and provides that the Union ‘‘shall have fifteen
(15) calendar days from the date of notification to request
bargaining and to forward written proposals’’ to the Medical
Center. CBA at 8, J.A. 258. The CBA authorizes the agency
to implement its proposed changes ‘‘[i]f the Union does not
request bargaining within the time limit.’’ Id. at 9, J.A. 259.
Furthermore, the CBA provides that ‘‘[u]pon timely request
by the Union, bargaining will normally commence within ten
(10) calendar days, unless otherwise agreed upon by the
parties.’’ Id.

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In its August 31 submission, the Union clearly and unequiv-
ocally (1) requested to bargain over the proposed parking
changes, and (2) proposed ‘‘at this time’’ that the status quo
be maintained. See J.A. 236. It is undisputed that the
August 31 submission was made within 15 days of notification
of the proposed parking changes. The Union therefore met
the CBA’s deadline for requesting negotiation and submitting
a written proposal.
At the same time, the Union requested further information
on the basis of which it would formulate and submit further
proposals. Id. The Union was entitled to make such a
request, and neither the agency nor the Authority suggests
otherwise. Subject to limited exceptions, the Statute re-
quires the Medical Center to respond to a Union request to
furnish ‘‘data TTT which is reasonably available and necessary
for full and proper discussion, understanding, and negotiation
of subjects within the scope of collective bargaining.’’ 5
U.S.C. § 7114(b)(4)(B); see also Am. Fed’n of Gov’t Employ-
ees, Local 2343 v. FLRA, 144 F.3d 85, 86-87 (D.C. Cir. 1998);
United States Dep’t of Veterans Affairs, Wash., D.C. v.
FLRA, 1 F.3d 19, 22-23 (D.C. Cir. 1993). The Medical Center
does not claim – and nothing in the record indicates – that the
Union’s information request in the instant case was somehow
improper. Indeed, the Medical Center confirmed the legiti-
macy of the request by responding to it, albeit over two
months later. Once the Union received the information it had
requested, it promptly submitted its November 17 parking
proposals – approximately 15 days after receipt of the infor-
mation. Dep’t of Veterans Affairs, 58 F.L.R.A. at 441.
Nothing in the CBA insulates the Medical Center from its
duty to bargain over the Union’s August 31 and November 17
proposals. Article 11, Section 2B of the CBA requires that
the Union initiate the bargaining process by ‘‘request[ing]
bargaining’’ and ‘‘forward[ing] written proposals’’ within 15
days from notification of the proposed change. This provision
clearly requires the Union to submit an opening proposal
within 15 days, and the Union met this requirement with its
August 31 submission. But Section 2B cannot reasonably be
interpreted to require the Union to put all possible proposals

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on the table within that brief period, or to foreclose negotia-
tion of any proposal submitted thereafter. Certainly nothing
in the express language of Section 2B itself requires or
supports this absurd reading of the parties’ agreement.
Moreover, Section 2C goes on to provide that, ‘‘[i]f the Union
does not request bargaining within the time limit, the Em-
ployer may implement the proposed change(s).’’ CBA at 9,
J.A. 259. The clear import of this provision is that once the
Union meets its obligation to submit a timely request for
bargaining, the Medical Center is foreclosed from implement-
ing a proposed change in conditions of employment without
satisfying its duty to bargain.
In addition to departing from the CBA’s express terms, the
Authority’s reading of the CBA would lead to bizarre results.
It appears to lock the Union into its initial bargaining position
by permitting the agency to ignore as untimely any subse-
quent expression amplifying, supplementing, or clarifying the
initial proposal. And it would effectively prevent the Union
from developing proposals based on accurate information
properly and timely requested from, but not promptly deliv-
ered by, the agency. The agency would need only delay its
response to the Union’s request for information until the 15-
day period had elapsed – as the Medical Center did in this
case – in order to avoid bargaining over any proposal submit-
ted after that time. The agency would be rewarded, under
this reading, for providing insufficient information when noti-
fying the Union of proposed changes and for tardy responses
to valid information requests. This cannot be the intended
meaning of Article 11 of the CBA.
The fact that the Union’s initial proposal requested mainte-
nance of the status quo ‘‘at this time’’ does not alter our
conclusion. Even if the Authority is correct in interpreting
the Union’s proposal to request maintenance of the status quo
only ‘‘until the completion of bargaining,’’ the Medical Center
did not ‘‘comply’’ with this proposal – much less satisfy its
bargaining obligations under the CBA and the Statute –
merely by delaying implementation of changes until 15 days
had elapsed. The Union timely initiated the bargaining
process with its August 31 submission. Because the Medical

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Center failed to respond, however, bargaining was never even
commenced, let alone completed. The Medical Center imple-
mented its proposed changes without ever responding to the
Union’s request to negotiate and without ever bargaining over
the Union’s August 31 or November 17 proposals. In so
doing, the Medical Center violated the CBA and committed
an unfair labor practice under § 7116(a)(1) and (5) by refus-
ing to bargain in good faith over a condition of employment.
2. Management Rights
In a brief footnote to its order, the Authority noted that the
Medical Center had characterized the parking policy changes
at issue in the first complaint as relating to ‘‘additional
patient parking.’’ Dep’t of Veterans Affairs, 58 F.L.R.A. at
435 n.4. On this basis, the Authority found that the policy
changes governed patient, not employee, parking. The Au-
thority therefore concluded that the policy changes imple-
mented ‘‘means of performing work’’ under § 7106(b)(1) and
were exempt from mandatory bargaining. Id. This finding is
not supported by substantial evidence.
The ALJ determined that the parking policy changes at
issue in the first complaint governed employee parking, which
is a negotiable condition of employment. Id. at 442. The
Medical Center did not contest this determination. Indeed,
in the exceptions to the ALJ’s decision filed with the Authori-
ty, the Medical Center readily acknowledged that the decision
at issue in the first complaint ‘‘clearly affected the unit
employees’ conditions of employment’’ and was ‘‘fully negotia-
ble.’’ Respondent’s Exceptions to the Decision of the ALJ at
10 (‘‘Exceptions’’), J.A. 46. In other words, the agency
effectively conceded that the decision was not exempt from
negotiation under § 7106(b)(1). As this issue was clearly
raised before the Authority, we are not barred from consider-
ing it under § 7123(c).
It seems doubtful that the Authority was serious in sug-
gesting that § 7106(b)(1) provides an independent alternative
ground for dismissing the first complaint. The footnote looks
like an ill-considered afterthought in the Authority’s order.
The body of the order does not examine whether the Union’s

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counterproposal would ‘‘directly interfere’’ with the purport-
edly mission-related purpose of the Medical Center’s parking
policy changes. See AFGE, Local 2441, 864 F.2d at 181-82.
In addition, the order does not purport to address whether
the Medical Center was obligated to bargain over the ‘‘impact
and implementation’’ of the relevant decision on bargaining
unit employees, a relevant issue if a matter is exempt from
bargaining under § 7106(b)(1). See Bureau of Prisons, 55
F.L.R.A. at 852. And in the proceedings before this court,
the Authority did not seek to defend its decision on the first
complaint on the ground that the disputed policy changes
related to patient parking. In short, there is no serious
support for the alternative ground for dismissing the first
complaint.
In any event, we hold that the Authority clearly erred in
finding that the parking policy decision at issue in the first
complaint was exempt from negotiation under § 7106(b)(1).
The record here shows that the changes to the Medical
Center parking policy directly governed employee parking.
These changes included, for example, an increase in the
charge levied on employees for failing to return a parking-
gate card upon completing their employment. Dep’t of Veter-
ans Affairs, 58 F.L.R.A. at 440. And, as noted above, the
Medical Center expressly conceded that the parking policy
changes at issue in the first complaint ‘‘clearly affected the
unit employees’ conditions of employment’’ and were ‘‘fully
negotiable.’’ See Exceptions at 10, J.A. 46. The Authority’s
finding to the contrary cannot be sustained on the record
before us.
C. Second Complaint: Patient Parking in the ‘‘Employee
Lot’’
1. Management Rights
In disposing of the second complaint, the Authority deter-
mined that the Medical Center’s unilateral decision to allow
patients to park in the ‘‘employee lot’’ was a decision with
respect to a ‘‘means of performing work’’ under § 7106(b)(1)
and therefore was exempt from mandatory bargaining. The
Union objects that the FLRA has long held that parking is a

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fully negotiable condition of employment and that the decision
at issue falls within the Medical Center’s mandatory duty to
bargain. On the record at hand, we uphold the Authority’s
determination.
The parties agree that provision of employee parking is a
condition of employment that is fully negotiable under the
Statute. See, e.g., United States Dep’t of Labor, Wash., D.C.,
44 F.L.R.A. 988, 994 (1992) (‘‘Dep’t of Labor’’). However, it is
also clear that an agency’s decision regarding which of its
facilities it will use to provide patient parking is a determina-
tion relating to a ‘‘means of performing work’’ under
§ 7106(b)(1), regardless of whether the decision incidentally
affects employees. AFGE, Local 3399, 9 F.L.R.A. at 1023.
We find no merit in the Union’s contention that AFGE, Local
3399 is distinguishable because the parties’ collective bargain-
ing agreement in this case makes parking subject to local
negotiations. Moreover, the FLRA decisions relied upon by
the Union do not support the proposition that all agency
decisions involving parking are subject to mandatory bargain-
ing. These decisions all involve agency actions that directly
regulate the provision of employee parking, and none involves
an assertion of the agency’s rights under § 7106(b)(1). See
Dep’t of Labor, 44 F.L.R.A. at 994; United States Immigra-
tion & Naturalization Serv., 43 F.L.R.A. 3, 9-10 (1991);
Philadelphia Naval Base, Philadelphia Naval Station &
Philadelphia Naval Shipyard, 37 F.L.R.A. 79, 87 (1990);
United States Dep’t of the Air Force, Williams Air Force
Base, Chandler, Az., 38 F.L.R.A. 549, 562 (1990).
An agency decision may fall within § 7106(b)(1)’s ‘‘means of
performing work’’ exemption where the subject of the deci-
sion has a ‘‘direct and integral relationship’’ to the agency’s
mission. See AFGE, Local 2441, 864 F.2d at 181; Dep’t of
Health & Human Servs., Indian Health Serv. v. FLRA, 885
F.2d 911, 913-14 (D.C. Cir. 1989). In this case, the Authority
reasonably determined that the provision of patient parking is
directly and integrally related to the Department of Veterans
Affairs’ mission to provide health services to veterans. See
38 U.S.C. § 301(b) (2000) (stating that the Department’s
purpose is ‘‘to administer the laws providing benefits and

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other services to veterans and the dependents and the benefi-
ciaries of veterans’’). The Authority likewise reasonably de-
termined that the Medical Center’s decision to allow patients
to park in a lot in which employees also park was a determi-
nation with respect to the provision of patient, rather than
employee, parking. The Medical Center’s actions did not
directly regulate employee parking, and any effect on bar-
gaining unit employees was incidental. Accordingly, we up-
hold the Authority’s determination that the Medical Center’s
decision to allow patients to park in the same lot with
employees was exempt from mandatory bargaining under
§ 7106(b)(1).
2. Procedural Objection to the Authority’s Ruling
The Union contends that the Medical Center never ar-
gued – either before the ALJ or in its exceptions filed with
the Authority – that its decision to park patients in the
employee lot was an exercise of its management rights under
§ 7106(b)(1). The Union claims that the Authority’s sua
sponte consideration of the management rights issue was
forbidden by FLRA regulations. Section 7123(c) bars us
from addressing this claim, because the Union failed to raise
it below and no ‘‘extraordinary circumstance’’ excuses this
failure. See 5 U.S.C. § 7123(c).
Where the Authority makes a sua sponte determination,
the parties will not have had an opportunity to address the
relevant issue. Nevertheless, § 7123(c) precludes us from
considering a pertinent objection if the petitioner has not
raised the objection before the Authority in a request for
reconsideration. See, e.g., United States Dep’t of Commerce
v. FLRA, 7 F.3d 243, 245-46 (D.C. Cir. 1993). An exception
to this rule is recognized when a request for reconsideration
would be ‘‘patently futile’’ in light of recent Authority deci-
sions squarely addressing the issue in question. See NLRB
v. FLRA, 2 F.3d 1190, 1196-97 (D.C. Cir. 1993); United
States Dep’t of Interior Minerals Mgmt. Serv. v. FLRA, 969
F.2d 1158, 1161 (D.C. Cir. 1992). The Union argues that a
similar exception is warranted in the instant case, because the
FLRA’s dissenting member challenged the propriety of the

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Authority raising the § 7106(b)(1) argument sua sponte, thus
affording the Authority an opportunity to address the issue.
In other words, the Union suggests that, if a dissenting
member of the Authority could not persuade his colleagues, it
would have been futile for the Union to pursue a petition for
reconsideration.
The Union’s argument implicitly presupposes that a party’s
position is always coterminous with a dissenting opinion.
This is obviously incorrect. Indeed, it does not appear in this
case that the dissent squarely raised the specific argument
now asserted by the Union. The dissent argued that consid-
eration of arguments not raised in the Medical Center’s
exceptions ‘‘violate[d] basic principles of appellate review, and
TTT denie[d] the General Counsel its right to respond.’’ Dep’t
of Veterans Affairs, 58 F.L.R.A. at 438. But the dissent
never suggested that sua sponte consideration of arguments
violates the procedural regulations (5 C.F.R. §§ 2423.40(d),
2429.5) upon which the Union premises its claim before this
court. The Union also appears to assume that the persuasive
power of a party’s argument can never exceed the quality of a
dissenting opinion. We reject this suggestion as well. Sec-
tion 7123(c) requires a party to present its own views to the
Authority in order to preserve a claim for judicial review.
We recently held that § 10(e) of the National Labor Rela-
tions Act, 29 U.S.C. § 160(e) – which is an analog of 5 U.S.C.
§ 7123(c) – precluded us from considering an objection the
petitioner did not raise in proceedings before the National
Labor Relations Board, despite the fact that the same objec-
tion was raised by a dissenting member of the Board. Con-
tractors’ Labor Pool, Inc. v. NLRB, 323 F.3d 1051, 1061 (D.C.
Cir. 2003). The relevant language of 29 U.S.C. § 160(e) and 5
U.S.C. § 7123(c) is virtually identical, and we see no reason to
interpret the provisions differently in this context. See
EEOC, 476 U.S. at 23 (relying on the Court’s past interpreta-
tion of 29 U.S.C. § 160(e) to interpret 5 U.S.C. § 7123(c)).
Accordingly, we find that the dissent below did not excuse the
Union’s failure to raise its objections in a request for recon-
sideration.

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3. Impact and Implementation
Finally, the Authority found that the Medical Center was
not obligated to bargain over the impact and implementation
of its decision to allow patients to park in the employee lot,
because the record indicated that any adverse impact on
bargaining unit employees was de minimis. Dep’t of Veter-
ans Affairs, 58 F.L.R.A. at 435-36. The Union claims that it
was improperly denied the opportunity to contest this finding,
because the impact-and-implementation issue was not the
subject of the hearing before the ALJ and the Authority
reached the issue sua sponte. The Union further asserts that
the record demonstrates that the Medical Center’s decision
had more than a de minimis impact on bargaining unit
employees. Again, § 7123(c) precludes us from considering
these claims, because the Union failed to raise them before
the Authority. If the Union was in a position to demonstrate
that the Medical Center’s actions had more than a de minim-
is impact on bargaining unit employees, it was obligated to
put this claim before the Authority in a motion for reconsider-
ation. In failing to do so, the Union waived any right to raise
the claim before this court.
While we are precluded from reaching the merits of the
Union’s claim, we note that the Authority’s de minimis
finding is supported by substantial evidence on the record
considered as a whole. A number of Medical Center person-
nel testified in proceedings before the ALJ that (1) patients
were not permitted to park in the employee lot until 9:00 a.m.,
after the majority of the Medical Center’s employees had
already parked in the lot, see Tr. at 42-49, 63; (2) there was
ample space for patients to park in the back of the lot, see Tr.
at 42-49, 56-59, 63; and (3) no employees or Union represen-
tatives had made any complaint regarding the availability of
spaces in the lot, see Tr. at 63, 78-79, 94-95, 97. The only
evidence to the contrary was the testimony of Union presi-
dent Fletcher Truesdell, who stated that parking in the
employee lot is ‘‘real tight’’ the majority of the time, that
‘‘there are times’’ employees could not find parking in the lot,
and that he had received unspecified complaints from two
Union members about parking. See Tr. at 35-37. Even

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taking Truesdell’s testimony into account, there is substantial
evidence to support the Authority’s conclusion that any ad-
verse effect on Union members was de minimis. See Thom-
as, 213 F.3d at 657 (defining substantial evidence as ‘‘such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion’’).
III. CONCLUSION
For the reasons set forth above, we grant the Union’s
petition for review in part and deny it in part. We hold that
the Authority’s dismissal of the first complaint was arbitrary
and capricious and accordingly set aside that portion of the
order. Finding no reversible error in the Authority’s dis-
missal of the second complaint, we deny the petition for
review as to that portion of the order.

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