Department of Transportation, Federal Aviation Administration, Pacific/Asia Region (Respondent) and Professional Air Traffic Controllers Organization, Pacific Region, M.E.B.A., AFL-CIO (Complainant)



[ v02 p201 ]
02:0201(23)CA
The decision of the Authority follows:


 2 FLRA No. 23
 
 DEPARTMENT OF TRANSPORTATION,
 FEDERAL AVIATION ADMINISTRATION,
 PACIFIC/ASIA REGION
 Respondent
 
 and
 
 PROFESSIONAL AIR TRAFFIC
 CONTROLLERS ORGANIZATION,
 PACIFIC REGION, M.E.B.A., AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 73-1075(CA)
 
                            DECISION AND ORDER
 
    ON JUNE 5, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
 FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
 PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
 BE DISMISSED IN ITS ENTIRETY.  THEREAFTER, THE COMPLAINANT FILED
 EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
 DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
 (44 F.R. 44741, JULY 30, 1979).  THE AUTHORITY CONTINUES TO BE
 RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
 SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
 AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE
 HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
 CASE, INCLUDING THE COMPLAINANT'S EXCEPTIONS, THE AUTHORITY HEREBY
 ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATION.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 73-1075(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 5, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    MR. CHARLES R. CAMPBELL
 
    REGIONAL VICE PRESIDENT
 
    PATCO/PACIFIC
 
    SUITE 607
 
    745 FORT STREET
 
    HONOLULU, HAWAII 96813
 
                            FOR THE COMPLAINANT
 
    MR. BERNARD B. THIMAN
 
    OFFICE OF LABOR RELATIONS
 
    DEPARTMENT OF TRANSPORTATION
 
    FEDERAL AVIATION ADMINISTRATION
 
    800 INDEPENDENCE AVENUE, SW.
 
    WASHINGTON, D.C.  20591
 
                            FOR THE RESPONDENT
 
    BEFORE:  WILLIAM B. DEVANEY
 
    ADMINISTRATIVE LAW JUDGE
 
                           RECOMMENDED DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (HEREINAFTER ALSO REFERRED TO AS THE "ORDER").  ALTHOUGH THE NOTICE OF
 HEARING WAS ISSUED BY A REGIONAL ADMINISTRATOR OF THE LABOR-MANAGEMENT
 SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, ALL
 PROCEEDINGS AFTER JANUARY 1, 1979, HAVE BEEN CONDUCTED BEFORE THE
 FEDERAL LABOR RELATIONS AUTHORITY AND THIS DECISION IS ISSUED IN THE
 NAME OF THE AUTHORITY PURSUANT TO TRANSITION RULES AND REGULATIONS,
 FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979 (5 C.F.R. SECTION
 2400.2).
 
    COMPLAINANT, PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION
 (HEREINAFTER ALSO REFERRED TO AS "COMPLAINANT") FILED A CHARGE ON, OR
 ABOUT, AUGUST 30, 1978, AND A COMPLAINT ON OCTOBER 10, 1978 (ASST. SEC.
 EXH. 1(A)) ALLEGING VIOLATION OF SECTIONS 19(A)(1), (2) AND (6) OF THE
 ORDER.  BY LETTER DATED NOVEMBER 27, 1978, COMPLAINANT WITHDREW ITS
 19(A)(2) ALLEGATION AND THE WITHDRAWAL REQUEST, AS TO THE 19(A)(2)
 ALLEGATION ONLY, WAS APPROVED BY THE AREA ADMINISTRATOR ON NOVEMBER 28,
 1978 (ASST. SEC. EXH. 1(B)).  A NOTICE OF HEARING ON THE 19(A)(1) AND
 (6) ALLEGATIONS OF THE COMPLAINT ISSUED ON DECEMBER 12, 1978, FOR A
 HEARING ON FEBRUARY 22, 1979 (ASST.  SEC. EXHIBIT 1(C)) AND ON FEBRUARY
 7, 1979, A NOTICE RESCHEDULING HEARING WAS ISSUED RESCHEDULING THE
 HEARING FOR MARCH 20, 1979 (ASST. SEC. EXH. 1(E)), PURSUANT TO WHICH A
 HEARING WAS DULY HELD BEFORE THE UNDERSIGNED ON MARCH 20, 1979, IN
 HONOLULU, HAWAII.
 
    EACH PARTY WAS REPRESENTED, WAS AFFORDED FULL OPPORTUNITY TO BE
 HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
 BEARING ON THE ISSUES INVOLVED HEREIN.  AT THE CLOSE OF THE HEARING,
 APRIL 20, 1979, WAS FIXED AS THE DATE FOR MAILING BRIEFS AND EACH PARTY
 HAS TIMELY FILED A BRIEF WHICH HAVE BEEN CAREFULLY CONSIDERED.  UPON THE
 BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES
 AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
 RECOMMENDATION.
 
                         FINDINGS AND CONCLUSIONS
 
    THIS CASE CONCERNS PARKING FOR FAA EMPLOYEES REPRESENTED BY
 COMPLAINANT AND EMPLOYED AT THE HONOLULU INTERNATIONAL AIRPORT.  PARKING
 FACILITIES AT THE HONOLULU INTERNATIONAL AIRPORT ARE UNDER THE EXCLUSIVE
 CONTROL OF THE STATE OF HAWAII'S DEPARTMENT OF TRANSPORTATION
 (HEREINAFTER ALSO REFERRED TO AS THE "STATE" OR "AIRPORT MANAGEMENT").
 PRIOR TO FEBRUARY, 1978, THESE EMPLOYEES HAD THE OPTION OF:  A) PARKING
 ON AN OPEN LOT, DESIGNATED "EMPLOYEE PARKING B" ON DIAGRAM, ATTACHED TO
 RES. EXH. 8, WITHOUT COST;  OR B) PARKING IN A PARKING GARAGE ("D" ON
 DIAGRAM) OR IN AREAS "C" AND "E" (ON DIAGRAM) FOR A MONTHLY CHARGE OF
 $10.00 PER MONTH (SUBSEQUENTLY INCREASED TO $12.50 PER MONTH).  ABOUT
 FEBRUARY 17, 1978, BECAUSE OF CONSTRUCTION, THE STATE RELOCATED THE FREE
 EMPLOYEE PARKING ("EMPLOYEE PARKING B") TO "RELOCATED B" ON THE DIAGRAM.
  ACCORDINGLY, AFTER ABOUT FEBRUARY 17, 1978, THE EMPLOYEES REPRESENTED
 BY COMPLAINANT STILL HAD THE OPTION OF:  A) PARKING IN AN OPEN LOT,
 DESIGNATED "RELOCATED B", WITHOUT COST;  OR B) PARKING IN THE PARKING
 GARAGE ("D) OR IN AREAS "C" OR "E" FOR A MONTHLY CHARGE OF $10.00 PER
 MONTH, SUBSEQUENTLY INCREASED TO $12.50 PER MONTH;  HOWEVER, "RELOCATED
 B" WAS ABOUT THREE TIMES AS FAR FROM THE TERMINAL BUILDING AS "EMPLOYEE
 PARKING B" HAD BEEN (2,550 FEET AS COMPARED TO 850 FEET).
 
    PARKING IS COVERED BY FAA ORDER 4665.3A, ENTITLED "POLICY ON PARKING
 ACCOMMODATIONS AT FAA OCCUPIED BUILDINGS AND FACILITIES" (SEPTEMBER 14,
 1971) AND BY ARTICLE 47 OF THE PARTIES' AGREEMENT (COMP. EXH. 2).
 BECAUSE IT CONSIDERED THAT PARKING ACCOMMODATIONS AFTER RELOCATION OF
 THE FREE PARKING TO "RELOCATED B", WERE NOT IN COMPLIANCE WITH FAA ORDER
 4665.3A AND WITH ARTICLE 47 OF ITS AGREEMENT, HAD DENIED THE GRIEVANCE
 AND THE MATTER WAS SCHEDULED FOR ARBITRATION, PURSUANT TO ARTICLE 7 OF
 THE AGREEMENT, ON AUGUST 7, 1978.
 
    ON AUGUST 2, 1978, MR. STEWART L. HINDS, LABOR MANAGEMENT RELATIONS
 OFFICER FOR RESPONDENT, DISCUSSED CANCELLATION OF THE ARBITRATION
 HEARING WITH MR. CHARLES R.  CAMPBELL, REGIONAL VICE PRESIDENT OF
 COMPLAINANT.  BECAUSE OF CRITICAL, PERHAPS TERMINAL, ILLNESS, MR. HINDS
 CONFIRMED HIS DISCUSSION WITH MR. CAMPBELL BY A LETTER TO MR. CAMPBELL
 DATED AUGUST 4, 1978, WHICH, IN FULL TEXT, READS AS FOLLOWS:
 
    "AUGUST 4, 1978
 
    "MR. CHARLES R. CAMPBELL
 
    (ADDRESS OMITTED)
 
    "DEAR CHARLIE:
 
    "AS WE DISCUSSED YESTERDAY, THE ARBITRATION HEARING FOR GRIEVANCE
 #APC-78-8-HNL-2 IS
 
    CANCELLED.  WE WILL ALSO SHARE WITH YOU ANY COSTS THE ARBITRATOR
 CHARGES BECAUSE OF THE LATE
 
    DATE OF CANCELLATION.
 
    "IT IS OUR UNDERSTANDING THAT THE GRIEVANCE HAS BEEN SATISFIED ON THE
 OFFER BY THE AIRPORT
 
    MANAGEMENT TO PERMIT FAA EMPLOYEES TO PARK IN THE PARKING LOTS BEHIND
 AND TO THE EAST OF THE
 
    APOCA PARKING GARAGE.  THE COST FOR THIS WILL BE $2.00 PER MONTH PER
 CAR.
 
    "WE AGREE THAT NO CHANGES IN PARKING ARRANGEMENTS SHOULD BE MADE
 WITHOUT CONSULTATION WITH
 
    THE UNION.
 
    "SINCERELY,
 
    "STEWART L. HINDS LRM OFFICER" (COMP. EXH. 1)
 
    MR. CAMPBELL STATED, WITH REFERENCE TO COMPLAINANT'S EXHIBIT 1,
 
    "THAT'S THE ONLY AGREEMENT THAT WE HAVE WITH THE FAA, YES, SIR, THAT
 LETTER SAYING THAT WE
 
    WOULD HAVE PARKING FOR $2.00 A MONTH."
 
   *          *          *          *
 
 
    "I HAVE NOTHING OTHER THAN THIS LETTER.  THAT'S ALL I HAVE." (TR.
 84).
 
    ON, OR ABOUT, AUGUST 22, 1978, THE STATE INFORMED RESPONDENT THAT IT
 COULD NOT HONOR ITS OFFER, TO PERMIT FAA EMPLOYEE TO PARK IN THE LOTS
 DESIGNATED BY MR. HINDS IN HIS LETTER OF AUGUST 4, 1978, FOR $2.00 PER
 MONTH AND RESPONDENT ADVISED MR. CAMPBELL ON THE SAME DATE THAT IT
 APPEARED THAT THE PARKING PROBLEM WHICH THEY THOUGHT HAD BEEN SOLVED
 MIGHT HAVE TO BE RESCHEDULED FOR ARBITRATION BECAUSE THE STATE HAD
 RENEGED ON ITS AGREEMENT;  BUT THAT RESPONDENT WOULD MEET FURTHER WITH
 THE STATE;  RESPONDENT ADVISED MR. CAMPBELL ON AUGUST 25, 1978, THAT THE
 STATE WOULD NO LONGER HONOR THE AGREEMENT AND AGAIN SUGGESTED THAT THE
 GRIEVANCE, APC-78-8-HNL-2, BE REINSTATED AND THAT THEY PROCEED TO
 ARBITRATION.  COMPLAINANT DECLINED TO REINSTATE GRIEVANCE
 APC-78-8-HNL-2;  BUT ON AUGUST 28, 1978, FILED A NEW GRIEVANCE,
 APC-78-22-RO3 (RES. EXH. 3) WHICH AGAIN CONTENDED, AS HAD
 APC-78-8-HNL-2, THAT PRESENT PARKING IS INADEQUATE AND DOES NOT MEET THE
 CRITERIA OF 4665.3A AND, IN TURN, VIOLATES ARTICLE 47 OF THE AGREEMENT.
 ON AUGUST 30, 1978, COMPLAINANT FILED ITS CHARGE HEREIN.
 
    OF COURSE, THE GRAVAMEN OF THE COMPLAINT IS, QUITE SIMPLY, THAT
 RESPONDENT UNILATERALLY RESCINDED THE SETTLEMENT AGREEMENT OF AUGUST 4,
 1978, AND THEREBY VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER.  I
 HAVE GIVEN CAREFUL CONSIDERATION TO THE DECISION OF THE ASSISTANT
 SECRETARY, IN GENERAL SERVICES ADMINISTRATION, REGION 3, WASHINGTON,
 D.C., A/SLMR NO.  99-(1978), IN WHICH HE HELD THAT AN AGENCY'S
 UNILATERAL RECISION OF A GRIEVANCE SETTLEMENT AGREEMENT VIOLATED
 SECTIONS 19(A)(1) AND (6) OF THE ORDER BUT CONCLUDE:  A) THAT THAT
 DECISION IS CLEARLY DISTINGUISHABLE FROM THE PRESENT CASE AND IS NOT,
 THEREFORE, CONTROLLING;  AND B) THAT RESPONDENT DID NOT VIOLATE EITHER
 SECTION 19(A)(1) OR (6) BY ITS NOTIFICATION OF COMPLAINANT THAT THE
 STATE WOULD NO LONGER HONOR ITS AGREEMENT TO PERMIT FAA EMPLOYEES TO
 PARK IN THE PARKING LOTS BEHIND AND TO THE EAST OF THE APOCA PARKING
 GARAGE FOR A CHARGE OF $2.00 PER MONTH.
 
    AT THE OUTSET, WHILE NOT EVERY BREACH OF CONTRACT IS AN UNFAIR LABOR
 PRACTICE, WHERE, AS HERE, THE ALLEGATION IS THAT RESPONDENT VIOLATED AN
 AGREEMENT, THE THRESHOLD QUESTION MUST BE, WHAT WAS THE AGREEMENT
 ALLEGED TO HAVE BEEN VIOLATED?  AS THE LETTER OF AUGUST 4, 1978 (COMP.
 EXH. 1) IS THE ONLY AGREEMENT IN QUESTION, RESPONDENT'S AGREEMENT MUST
 BE DETERMINED BY THAT DOCUMENT.  IN THE LETTER OF AUGUST 4, 1978,
 RESPONDENT AGREED:
 
    1.  THAT IT WOULD SHARE WITH COMPLAINANT "ANY COSTS THE ARBITRATOR
 CHARGES BECAUSE OF THE
 
    LATE DATE OF CANCELLATION."
 
    2.  THAT "NO CHANGES IN PARKING ARRANGEMENTS SHOULD BE MADE WITHOUT
 CONSULTATION WITH THE
 
    UNION."
 
    RESPONDENT MADE NO OTHER COMMITMENT.  AS TO SATISFACTION OF THE
 GRIEVANCE, RESPONDENT'S LETTER STATED,
 
    "IT IS OUR UNDERSTANDING THAT THE GRIEVANCE HAS BEEN SATISFIED BASED
 ON THE OFFER BY THE
 
    AIRPORT MANAGEMENT. . . "
 
    OBVIOUSLY, THE LETTER OF AUGUST 4, 1978, CONTAINED NO COMMITMENT BY
 RESPONDENT TO PROVIDE PARKING AT $2.00 PER MONTH.  INDEED, THE LETTER OF
 AUGUST 4, 1978, REFLECTS A MUTUAL ACCEPTANCE OF THE OFFER BY THE STATE
 (AIRPORT MANAGEMENT).  NOT ONLY IS THE LETTER OF AUGUST 4, 1978, CLEAR
 AND UNAMBIGUOUS IN THIS REGARD, BUT THE TESTIMONY OF MR. ROBERT CARDIN,
 NOW CHIEF, PLANS AND PROGRAMS AND IN AUGUST, 1978, HAD BEEN CHIEF,
 OPERATIONS, PROCEDURES AND AIRSPACE BRANCH, FULLY CONFIRMS THE FACT THAT
 THE GRIEVANCE WAS SATISFIED ON THE BASIS OF THE OFFER OF THE STATE.
 THUS, MR. CARDIN TESTIFIED,
 
    A I WAS INFORMED THAT MR. NESTER HAD HAD CONTACTED -- AND I THINK IT
 WAS THE DEPUTY
 
    SECRETARY OF TRANSPORTATION FOR THE STATE, I DON'T REMEMBER--
 
    "Q MR. SWANSON ?
 
    "A MR. SWANSON IS THE NAME.
 
    "AND APPARENTLY MR. NESTER HAD EXPLAINED THAT THE EMPLOYEE PARKING
 HAD BEEN MOVED, AND
 
    ASKED THE STATE IF THEY COULDN'T DO SOMETHING, OTHER THAN THE LOT
 WHERE YOU WERE INTENDING TO
 
    GO OR HAD GONE.
 
    ". . . I WAS INFORMED BY STU HINDS, WHO AT THAT TIME WAS IN CHARGE OF
 LMR PERSONNEL, THAT
 
    THE STATE SAID THAT THEY WOULD PROVIDE PARKING.  MR. SWANSON . .  .
 HAD SAID THAT THEY WOULD
 
    PROVIDE PARKING FOR THE FAA EMPLOYEES AT A $2.00 RATE.  THE STATE
 SAID THEY
 
    WOULD." (TR. 115-116).
 
   *          *          *          *
 
 
    "THE LAST SENTENCE (WE AGREE THAT NO CHANGES IN PARKING ARRANGEMENTS
 SHOULD BE MADE WITHOUT
 
    CONSULTATION WITH THE UNION) I THINK WAS IN REFERENCE TO A
 STIPULATION IN YOUR GRIEVANCE,
 
    WHICH WE ASSUMED WAS SATISFIED BY THE COMMITMENT OF THE STATE, WHO
 HAD THE AUTHORITY TO DO
 
    IT.  AND THEY WERE THE THIRD PARTY IN THIS, AND WE WERE ACTING AS, I
 THINK IN MY OWN OPINION,
 
    A GOOD FAITH INTERMEDIARY BETWEEN YOU, THE PEOPLE WHO WERE CONCERNED,
 AND THE STATE, THE
 
    PEOPLE THAT HAD THE AUTHORITY TO CHANGE OR DO SOMETHING OVER IT.  . .
 ." (TR. 117)
 
   *          *          *          *
 
 
    "A WE SOLVED THE GRIEVANCE.  WE SAID, "'IT IS OUR UNDERSTANDING."'
 SOMETHING TO THE EFFECT
 
    THAT THE GRIEVANCE HAS BEEN RESOLVED BASED UPON THE THIRD PARTY, IN
 THIS CASE THE STATE WHO
 
    HAD THE AUTHORITY TO SOLVE IT FOR US, MAKING THIS COMMITMENT TO YOU.
 NOW, THAT'S REALLY THE
 
    WAY THE THING WASHES OUT." (TR. 119).
 
    THERE IS NO ALLEGATION THAT RESPONDENT FAILED TO HONOR ITS COMMITMENT
 TO SHARE THE COST, IF ANY, OF THE ARBITRATOR;  AND, AS TO ITS AGREEMENT
 THAT NO CHANGES IN PARKING ARRANGEMENTS SHOULD BE MADE WITHOUT
 CONSULTATION WITH THE UNION, THE RECORD IS CLEAR THAT WHEN THE STATE
 NOTIFIED RESPONDENT, ON OR ABOUT AUGUST 22, 1978, THAT IT COULD NOT
 HONOR ITS COMMITMENT TO PERMIT PARKING AT $2.00 PER MONTH, RESPONDENT
 DID, IMMEDIATELY, CONSULT WITH COMPLAINANT;  DID SUGGEST THAT
 COMPLAINANT DEFER ACTION UNTIL RESPONDENT HAD A FURTHER MEETING WITH
 PRINCIPAL OFFICIALS OF THE STATE;  AND ON AUGUST 25, 1978, WHEN THE
 STATE HAD FINALLY DETERMINED THAT IT COULD NOT HONOR ITS COMMITMENT,
 RESPONDENT PROMPTLY ADVISED COMPLAINANT AND OFFERED TO REINSTATE
 GRIEVANCE NO.  APC-78-8-HNL-2 AND TO PROCEED WITH ARBITRATION.
 RESPONDENT FULLY COMPLIED WITH ITS AGREEMENT THAT NO CHANGE IN PARKING
 ARRANGEMENTS SHOULD BE MADE WITHOUT CONSULTATION WITH THE UNION AND,
 CLEARLY, THE RECORD DOES NOT SUPPORT THE ALLEGATION THAT RESPONDENT
 REFUSED TO CONSULT, CONFER, OR NEGOTIATE WITH COMPLAINANT IN VIOLATION
 OF SECTION 19(A)(6) OF THE ORDER OR, DERIVATIVELY, OF SECTION 19(A)(1)
 OF THE ORDER.
 
    BEYOND ITS AGREEMENT THAT NO CHANGES IN PARKING ARRANGEMENTS SHOULD
 BE MADE WITHOUT CONSULTATION WITH COMPLAINANT, RESPONDENT MADE NO
 COMMITMENT.  THE PARTIES HAD, MERELY, AGREED "THAT THE GRIEVANCE HAS
 BEEN SATISFIED BASED ON THE OFFER BY THE AIRPORT MANAGEMENT.  . . ." AS
 RESPONDENT DID NOT AGREE TO PROVIDE PARKING ON DESIGNATED LOTS FOR A
 MONTHLY CHARGE OF $2.00 PER MONTH PER CAR, ITS FAILURE TO DO SO CAN NOT
 CONSTITUTE A VIOLATION OF AGREEMENT.  BY CONTRAST, IN GENERAL SERVICES
 ADMINISTRATION, REGION 3, WASHINGTON, D.C., SUPRA,
 
    ". . . ON MARCH 8, 1976, THE RESPONDENT'S REGIONAL PERSONNEL OFFICER
 . . . SENT A
 
    MEMORANDUM TO THE REGIONAL COMMISSIONER, PUBLIC BUILDINGS SERVICE, .
 . . AND A COPY TO
 
    COMPLAINANT, IN WHICH HE STATED THAT "'AS A RESULT OF THE
 (COMPENSATION BRANCH'S) STUDY, WE
 
    HAVE AUTHORIZED PAYMENT OF DIFFERENTIALS TO GSA WAGE EMPLOYEES AT THE
 CENTRAL PLANT WHO ARE
 
    EXPOSED TO THE SPECIFIC WORKING CONDITION FOR WHICH DIFFERENTIALS
 HAVE BEEN AUTHORIZED
 
    . . . ."
 
    OBVIOUSLY, IN THE GENERAL SERVICES CASE, SUPRA, THE AGENCY AUTHORIZED
 THE PAYMENT OF DIFFERENTIALS FOR CERTAIN WORK AND LATER RESCINDED ITS
 AUTHORIZATION.  AS A RESULT, THE ASSISTANT SECRETARY HELD,
 
    ". . . I CONCLUDE THAT THE RESPONDENT, BY ITS ACTION OF JUNE 20,
 1976, RESCINDING ITS
 
    AUTHORIZATION TO PAY ENVIRONMENTAL PAY FOR "'HIGH WORK'",
 UNILATERALLY TERMINATED THE PARTIAL
 
    SETTLEMENT OF A GRIEVANCE WHICH WAS THE PRODUCT OF THE PARTIES'
 NEGOTIATED GRIEVANCE PROCEDURE
 
    IN VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER."
 
    IN THE INSTANT CASE, THE PARTIES MUTUALLY AGREED THAT THE GRIEVANCE
 "HAS BEEN SATISFIED BASED ON THE OFFER BY THE AIRPORT MANAGEMENT.  . . .
 ." RESPONDENT TOOK NO UNILATERAL ACTION;  RESPONDENT DID NOTHING TO
 CHANGE THE TERMS AND CONDITIONS OF EMPLOYMENT ESTABLISHED BY THE
 GRIEVANCE SETTLEMENT AGREEMENT;  AND, AS THE ONLY GRIEVANCE SETTLEMENT
 AGREEMENT CONSISTED OF THE PARTIES' ACCEPTANCE, IN ABSOLUTE GOOD FAITH,
 OF THE OFFER OF THE STATE, WHEN THE STATE FOUND IT COULD NOT, BECAUSE OF
 CONTRACTUAL CONSTRICTURES, COMPLY WITH THAT OFFER, RESPONDENT CAN NO
 MORE BE DEEMED TO HAVE TERMINATED THE SETTLEMENT OF A GRIEVANCE THAN
 COMPLAINANT.  IN FACT, THE SETTLEMENT WAS TERMINATED BY THE ACTION OF A
 THIRD PARTY, THE STATE.  ACCORDINGLY, ALTHOUGH THE SETTLEMENT AGREEMENT
 OF AUGUST 4, 1978, WAS A PRODUCT OF A NEGOTIATED GRIEVANCE PROCEDURE IN
 THE SENSE THAT A GRIEVANCE UNDER THE PARTIES' NEGOTIATED GRIEVANCE
 PROCEDURE HAD BEEN SATISFIED ON THE BASIS OF THE OFFER OF A THIRD PARTY,
 THE STATE OF HAWAII, THE DECISION IN NEITHER GENERAL SERVICES
 ADMINISTRATION, REGION 3, WASHINGTON, D.C., SUPRA, NOR NAVAL AIR REWORK
 FACILITY, PENSACOLA, FLORIDA, A/SLMR NO. 608, 6 ALSMR 67(1976), IS
 CONTROLLING AND, FOR THE REASONS SET FORTH ABOVE, RESPONDENT DID NOT
 AGREE TO PROVIDE PARKING AT A MONTHLY CHARGE OF $2.00 PER CAR;
 RESPONDENT DID NOT UNILATERALLY TERMINATE ANY SETTLEMENT AGREEMENT;  AND
 RESPONDENT DID NOT VIOLATE EITHER 19(A)(1) OR (6) OF THE ORDER.
 
    COMPLAINANT'S RELIANCE IN ITS BRIEF ON CASES CONCERNING IMPOSSIBILITY
 OF PERFORMANCE IS MISPLACED.  THE ESSENTIAL INGREDIENT FOR SUCH
 RELIANCE, WHICH IS WHOLLY ABSENT HERE, IS A CONTRACTUAL OBLIGATION BY
 RESPONDENT.  AS STATED ABOVE, RESPONDENT DID NOT AGREE TO PROVIDE
 PARKING FOR A MONTHLY CHARGE OF $2.00.  RESPONDENT'S POSITION, AS TO
 GRIEVANCE NO. APC-78-8-HNL-2 HAD BEEN, AND AS TO GRIEVANCE NO.
 APC-78-22-RO3, IS THAT THE PARKING ARRANGEMENTS PROVIDED FOLLOWING
 RELOCATION OF THE FREE EMPLOYEE PARKING FULLY COMPLIED WITH FAA ORDER
 4665.3A AND WITH ARTICLE 47 OF THE NEGOTIATED AGREEMENT.  TO BE SURE,
 GRIEVANCE NO. APC-78-8-HNL-2 WAS "SATISFIED BASED ON THE OFFER OF THE
 AIRPORT MANAGEMENT.  . . . .";  BUT RESPONDENT DID NOT AGREE THAT IT
 WOULD PROVIDE ANY PARKING.  TO THE CONTRARY, BOTH COMPLAINANT AND
 RESPONDENT AGREED THAT THE GRIEVANCE HAD BEEN SATISFIED BASED ON THE
 OFFER OF THE STATE.  NOR, OF COURSE, IS DETERMINATION OF THE MERITS OF
 EITHER GRIEVANCE A MATTER FOR RESOLUTION IN THIS PROCEEDING.  HOWEVER, I
 DO FIND THAT CONSIDERATION OF THE INSTANT COMPLAINT IS NOT BARRED BY
 SECTION 19(D) OF THE ORDER INASMUCH AS EACH GRIEVANCE CONCERNED SOLELY
 THE ISSUE AS TO WHETHER THE PARKING ACCOMMODATIONS PROVIDED COMPLIED
 WITH FAA ORDER 4665.3A AND ARTICLE 47 OF THE PARTIES' AGREEMENT,
 WHEREAS, THE COMPLAINT ALLEGED THAT RESPONDENT UNILATERALLY BREACHED THE
 SETTLEMENT AGREEMENT OF AUGUST 4, 1978, AN ISSUE WHICH WAS NOT RAISED IN
 GRIEVANCE NO. APC-78-22-RO3.
 
    HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SECTIONS 19(A)(1) OR (6)
 OF EXECUTIVE ORDER 11491, AS AMENDED, IT IS
 
                                RECOMMENDED
 
    THAT THE COMPLAINT HEREIN BE DISMISSED.
 
                            WILLIAM B. DEVANEY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  5 JUN 1979
 
    WASHINGTON, D.C.
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY