12:0216(51)CA - Army and AFGE -- 1983 FLRAdec CA



[ v12 p216 ]
12:0216(51)CA
The decision of the Authority follows:


 
 12 FLRA No. 51
 
 DEPARTMENT OF THE ARMY
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-766
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision 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.  The General Counsel
 and the Charging Party filed exceptions to the Judge's Decision.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommendations, as modified below.
 
    The Judge found that the Respondent, Department of the Army (DOA),
 did not afford the Charging Party (AFGE) reasonable time to comment on
 DOA's proposed parking regulation as required by section 7113(b)(1) of
 the Statute, /1/ but that DOA acted as promptly and prudently as could
 reasonably be expected under the circumstances and therefore did not
 violate the Statute as alleged in the complaint.
 
    In agreement with the Judge, the Authority concludes that DOA did not
 violate section 7116(a)(1) and (5).  /2/ However, the Authority does not
 agree with the Judge's reasoning in this regard.  Thus, noting that
 Government-wide regulations designated November 1 as the effective date
 for agencies to implement the paid parking program and that DOA could
 not notify AFGE of proposed parking regulations until it received
 directives from DOD, the Authority finds, contrary to the Judge, that
 DOA's letter to AFGE on October 18 explaining the November 1 deadline
 and containing a copy of its proposed regulations for comments in
 writing or by telephone constituted sufficient advance notice in the
 particular circumstances of this case to permit AFGE a reasonable time
 to respond before DOA was required to take final action.  /3/
 Accordingly, the Authority concludes that DOA did not violate section
 7116(a)(1) and (5) of the Statute and that the complaint therefore must
 be , dismissed.  /4/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-766 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., June 20, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 3-CA-766
 
    Samuel S. Horn, Esq.
          For the Respondent
 
    Gary S. Miller, Esq.
    and Doris O. Hildreth on the brief
          For the Charging Party
 
    Peter B. Robb, Esq. and Erick Genser, Esq.
    and Susan Shinkman, Esq. on the brief
          For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
          Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose under the provisions of the Federal Labor-Management
 Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (herein referred
 to as the Statute) and the Rules and Regulations issued thereunder.
 
    Upon unfair labor practice charges filed by the American Federation
 of Government Employees, AFL-CIO (herein the Union) against the
 Department of the Army (herein DOA or the Respondent) on December 20,
 1979, the General Counsel of the Authority, by the Regional Director for
 Region 3, issued a Complaint and Notice of Hearing on March 26, 1980,
 which was amended on April 24, 1980, alleging Respondent engaged in
 unfair labor practice conduct violative of sections 7116(a)(1) and (5)
 of the Statute.  Essentially, the complaint alleges Respondent initiated
 substantive changes in conditions of employment relative to instituting
 a paid parking program without affording the Union, which has National
 consultation rights, a reasonable opportunity to present its views and
 recommendations on the changes as required by section 7113 of the
 Statute.
 
    A hearing on the complaint was conducted on May 29, 1980 in
 Washington, D.C., at which time all parties were represented by counsel
 and afforded full opportunity to adduce evidence and call, examine and
 cross-examine witnesses and argue orally.  Briefs filed by all parties,
 including the Charging Party's reply brief filed August 4, 1979, have
 been carefully considered.  /5/
 
    Upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and from my evaluation of the evidence, I
 make the following:
 
                             Findings of Fact
 
    By Circular No. A-118, dated August 13, 1979, the Executive Office of
 the President, Office of Management and Budget (OMB) announced the
 establishment of a Government-wide policy dealing with Federal parking
 facilities.  /6/ According to OMB, a basis for charging for the use of
 parking facilities needed to be established which was equitable among
 employees and consistent with related policies regarding air quality,
 energy conservation and reduced traffic congestion.  In the Circular OMB
 stated, in part:
 
          " . . . It is the general policy of the executive branch to
       limit Federal installation parking facilities to the minimum
       necessary, to administer those facilities in full compliance with
       carpooling regulations, and to assess Federal employees,
       contractor employees and tenant employees who are provided parking
       in Government-controlled space a charge equivalent to the fair
       monthly rental value for the use of equivalent commercial space,
       subject to the terms, exemptions and conditions stated in this
       Circular."
 
    The ten page Circular specifically addressed such matters as:
 conditions for exemptions from fees;  the priorities to be considered
 for the allocation and assignment of parking spaces;  the establishment
 of charges for employee parking;  and the determination of rates.  With
 regard to matters concerning fees for parking, the Circular provided,
 inter alia:
 
          "a.  Establishment of charges.  Charges for employee use of
       Government-owned or leased parking facilities shall be assessed at
       all locations except where the rate, as determined in c. below,
       would be less than $10.00 per month.  For the initial period
       November 1, 1979, through September 30, 1981, the charges to be
       collected shall be 50 percent of the full rate scheduled to be
       collected.  If the full rate is calculated to be between $10.00
       and $19.99, the monthly charge between November 1, 1979 and
       September 30, 1981, shall be $10.00.  The full charge shall be
       collected after October 1, 1981."
 
    As to the determination of rates to be charged, the Circular stated:
 
          "c.  . . . (1) The Administrator of GSA shall determine the
       rate to be charged for Government furnished employee parking at
       each facility using generally accepted appraisal techniques.
       Agencies other than GSA which hold title to property and desire to
       arrange their own appraisals must advise GSA in writing of their
       intent, and shall conduct such appraisals in accordance with GSA
       guidelines.  GSA shall review and approve all rates in accordance
       with 40 U.S.C. 490(k).  The rates shall approximate the prevailing
       value of comparable commercial property in the vicinity.  The rate
       basis will be the fair rental value of such property as used in
       calculating Standard Level User Charges.  Fair rental value
       includes an allowance for the costs of parking facility
       management.  The rates so established shall be adjusted annually
       by the Administrator to reflect increases or decreases in value."
 
    The Circular further mandated that General Services Administration
 (GSA) "issue regulations implementing the provisions of this Circular
 regarding the determination of commercially equivalent rates for
 Government parking . . . (and) revise regulations and priorities as
 necessary, for the assignment of parking spaces." Rates at non-GSA
 facilities were to be determined by October 1, 1979.  Heads of
 departments and agencies were directed to assess charges consistent with
 the provisions of the Circular and GSA regulations and immediately
 request GSA to determine rates to be assessed at their facilities " . .
 . to enable rate determination to be completed prior to November 1,
 1979," with late rate determinations to be applied retroactively to
 November 1.  The OMB Circular also provided that final agency
 regulations should be issued prior to November 1, 1979.  Agencies were
 further required to " . . . issue such instructions as may be needed to
 maximize carpooling and implement the provisions of this Circular and
 regulations issued by GSA".
 
    Pursuant to the above OMB Circular, GSA issued Government-wide
 regulation FPMR Temp. Reg. D-51, dated September 6, 1979.  /7/ The GSA
 Federal employee parking regulation designated November 1, 1979 as the
 effective date for agency implementation of the regulation and imposed
 on agencies specific requirements relating to priority assignments of
 parking spaces for non-employees and employees, methods to establish
 parking fees, and rates to be charged, all of which were in accordance
 with the OMB Circular.  The GSA regulation provided that at non-GSA
 controlled facilities the responsible agency would allocate employee
 parking in accordance with OMB Circular No. A-118.
 
    The Department of Defense (DOD) issued to its subordinate agencies,
 on September 18, 1979, a draft instruction dealing with the
 implementation of the Federal paid parking program.  At all times
 relevant herein, DOD has accorded the Union national consultation
 rights.  Accordingly, DOD also sent a copy of the draft instruction to
 the Union on September 20, 1979.  /8/ An accompanying letter to the
 Union indicated that the parking program mandated by OMB, including the
 assessment of fees, would become effective on November 1, 1979.  The
 letter continued:
 
          "The DOD Instruction must . . . be issued as early as possible
       in October so that it will reach installation commanders
       responsible for its implementation before November 1.  Accordingly
       I must ask that you review the draft Instruction and forward any
       comments to reach this office by the close of business on October
       3 at the latest."
 
    The National office of AFGE responded to DOD by letter of September
 26.  In that letter AFGE indicated it had reviewed the draft DOD
 "Instruction" and suggested that the document including the subject of
 parking fees, was "negotiable between the parties", in accordance with
 the provisions of section 7117(a)(1) of the Statute and " . . .
 negotiating the . . . issues relating to parking are the best actions
 which AFGE could pursue to successfully combat parking fees for Federal
 employees".
 
    The Department of the Army (DOA) is a subordinate component of DOD.
 As such, it operates under the authority, direction and control of the
 Secretary of Defense and, therefore, is legally bound to comply with
 directives of DOD.  /9/ Upon receipt and review of DOD's draft
 instruction of September 18, 1979, DOA, in a five page memorandum to DOD
 dated October 9, 1979, offered numerous comments on DOD's draft
 implementing regulation.  DOA noted that the most significant problem it
 had with the draft instruction related to the November 1 implementation
 date.  In particular, DOA referred to an outstanding Army Chief of Staff
 regulation which provides, inter alia, that unions accorded national
 consultation rights:
 
          " . . . must be provided with reasonable notice (e.g. 30-45
       days) of proposed new or revised policies which impact on the
       conditions of employment of both appropriated and nonappropriated
       fund employees (and)
 
          "(b) . . . must be given opportunity to comment on such
       proposals and suggest changes to the proposals." /10/
 
    DOA's reply further stated:
 
          "The CSR goes on to say that failure to provide labor
       organizations the opportunity to comment, before issuance, on
       proposed policies that affect Army civilian employees is a
       violation of Title VII.  In view of the above, it is recommended
       that the Army program not be implemented until such time as the
       unions are given an opportunity to review any implementing
       instructions and Army regulations pertaining to this program.
       This should equally apply to the DODI."
 
    Although previously DOD's proposed regulations had frequently been
 revised based upon subordinate unit's recommendation, DOA received no
 specific response to its comments or suggestions and on October 11, 1979
 DOD issued an "advance copy" of its interim paid parking regulations to
 DOA and its other subordinate command activities.  /11/ A cover letter
 accompanying the directive noted that the advance copy was being
 provided " . . . to permit implementation of the President's program,
 particularly the paid parking aspect, on November 1, 1979 . . . " The
 DOD directive designated specific parking fees which would be charged at
 numerous DOD installations, including those controlled by DOA, effective
 November 1, 1979.  Further, the DOD regulation incorporated elements of
 the OMB and GSA directives;  set out an expanded list of specified
 classes of personnel and vehicles which would be exempt from payment of
 parking fees;  set out certain priorities in the assignment and
 allocation of parking spaces;  and designated those responsible to
 implement and enforce the regulation at various subordinate managerial
 levels.  The DOD directive also provided that "labor organizations with
 national consultation rights . . . must be consulted before the issuance
 of any implementing policies and regulations that affect DOD civilian
 employees".  In addition, DOD, inter alia, required Secretaries of the
 military Departments and Directors of defense Agencies to operate,
 control and issue instructions relative to the paid parking program in
 accordance with the provisions of the related OPM Circular, the GSA
 regulation and the DOD regulation.
 
    DOD's directive treated numerous subjects in a rather comprehensive
 manner thereby substantially limiting DOA's flexibility to independently
 fashion its own regulation for implementation at the installation level.
  Nevertheless, various matters in the DOD directive provided DOA with
 considerable discretion including:  establishing the number of spaces
 assigned to employees working unusual hours;  developing incentives to
 encourage and facilitate the use of car and van pools, and public
 transportation;  issuance of parking permits to individuals who use
 their privately owned vehicles for government business;  and developing
 a mechanism for deterring abuse of parking space allocation.  Moreover,
 since DOA was directed to establish a paid parking program for its
 subordinate bodies, and since various matters were not governed by OMB,
 GSA or DOD directives, DOD was left a substantial range of possible
 procedures to utilize in implementing a paid parking program.
 
    Major Paul T. Gerard, "Action Officer" for DOA's paid parking
 program, received a copy of the DOD October 11 directive late in the
 afternoon of Friday, October 12, 1979.  That week-end, Major Gerard
 developed proposed changes to DOA's parking regulations to conform to
 DOD requirements.
 
    On Monday, October 15, DOA telegramed a draft of its proposed changes
 to the Command Officers for the twelve DOA installations affected by the
 regulation.  The parties were notified that the changes to the parking
 program were to become effective on November 1, 1979 and a list of fees
 was included.  Prior hereto no fees were charged for parking.  The
 Command operations were requested to provide comments or concurrence to
 DOA by October 17.
 
    At all times material herein AFGE has been accorded national
 consultation rights with DOA in accordance with section 7113 of the
 Statute.  Accordingly, on October 16, 1979 Colonel Thomas A. MacDonnell,
 Chief of DOA's Law Enforcement Division, drafted a letter to AFGE
 National President Kenneth T. Blaylock attaching a copy of DOA's
 proposed changes to its parking regulations and advising that the
 program would be implemented on November 1, 1979.  However, for reasons
 not entirely clear in the record, the letter was not mailed to the Union
 until Thursday, October 18.  The letter stated, inter alia, that "(d)ue
 to OMB requirement to implement this program by 1 November 1979, we are
 publishing this change as soon as possible in order to give commanders
 sufficient time to prepare for implementation".  The letter further
 suggested that any comments or observations the Union might have
 concerning this matter could be forwarded in writing or by telephone,
 not later than November 16, 1979.
 
    On October 19, 1979 DOA published and distributed to its subordinate
 Commands its paid parking regulation.  /12/ DOA's directive (dated
 October 24) took the form of an interim change to DOA parking regulation
 AR210-4 and was virtually identical to the proposed changes previously
 sent to Command Officers and the Union.  The DOA regulation essentially
 incorporated and made more explicit the requirements contained in the
 OMB Circular and the GSA and DOD regulations and required installation
 commanders to institute a permit, fee collection, and carpool program at
 their facilities.  Exercising its discretionary authority, DOA included
 in the regulation additional provisions which provided instructions and
 guidance to installation commanders in implementing the program.  Thus,
 for example, the DOA regulation advised installation commanders as to:
 the personnel to be used to implement the program;  alternatives
 available to installation commanders for the operation of the program
 (automated, contractor operated, or installation operated);  the sale of
 parking permits on a yearly, quarterly, bi-monthly, or daily basis;  the
 site used for the sale of permits;  standards for enforcing the program;
  and the manner of collecting fees.
 
    The DOA regulation left installation commanders with a substantial
 amount of flexibility in implementing the program at their local
 facilities and specifically required installation commanders " . . . to
 negotiate with exclusively recognized labor organizations over the
 impact and implementation of the installation's parking plan".
 
    The Union received Major MacDonnell's letter of October 18, 1979 with
 the attached "proposed" changes to DOA's parking regulations on Monday,
 October 22.  According to the testimony of Ms. Mary Lynn Walker, AFGE
 Director of Organization and a supervisory Labor Relations Specialist in
 charge of DOA national consultation rights matters in October 1979, the
 Union's practice when receiving a notice of a proposed change from DOA
 subject to national consultation rights was to forward such notice to
 representatives at the affected field installations for comment before
 responding to the agency.  When comments were received from the Union's
 locals they were compiled with National office comments and, thereafter,
 sent to DOA, a process usually taking about 30 days.  /13/ However, when
 DOA's proposed changes were received on October 22, the Union concluded
 there was insufficient time to obtain comments from representatives at
 the installations involved, evaluate the documents and reply to DOA by
 November 1, the effective date of the new program.
 
    Commencing November 1, 1979, Respondent's installations began
 implementing DOA's paid parking program.  By letter dated November 7,
 1979 the Union responded to DOA by indicating it did not "recognize the
 provision" of OMB Circular A-118 or GSA's Temp. Reg. "D-65" (sic).
 After noting that unions held exclusive recognition rights at many of
 the installations affected by the new parking fees, the Union suggested
 that negotiations be conducted at those sites, particularly as to " . .
 . scope, payment procedures, enforcement, fees, exemptions, assignments,
 etc. . . " The Union concluded:
 
          "The above constitutes the AFGE's comments to the Department of
       the Army's regulation on parking.  We must remind you that under
       Title VII, Sec. 7117 of the Civil Service Reform Act that National
       Consultation Rights are guaranteed with sufficient amount of time
       for unions to review agency regulations and submit appropriate
       comments.  In order for this organization to allow sufficient time
       for appropriate consultations, we request that we be given at
       least thirty (30) days within which to provide our comments."
 
    DOA replied to the Union by letter dated November 30, 1979 at which
 time it agreed that "certain aspects" of the parking program were
 negotiable but took the position that such matters as whether there
 would be a fee, the amount of the fee and any exemptions were dictated
 by higher authority outside DOA and, therefore, were not negotiable.  In
 closing, DOA informed the Union that it intended to revise Army
 Regulation 210-4 "within the next few months" at which time the Union
 would be asked for its observations and comments on the "total
 carpooling and parking control program".  /14/
 
                                  Issues
 
    Section 7113 of the Statute provides, in relevant part, that:
 
          "(b)(1) Any labor organization having national consultation
       rights in connection with any agency under subsection (a) of this
       section shall--
 
          "(A) be informed of any substantive change in conditions of
       employment proposed by the agency, and
 
          "(B) be permitted reasonable time to present its views and
       recommendations regarding the changes.
 
          (2) If any views or recommendations are presented under
       paragraph (1) of this subsection to an agency by any labor
       organization--
 
          "(A) the agency shall consider the views or recommendations
       before taking final action on any matter with respect to which the
       views or recommendations are presented . . . "
 
    Counsel for the General Counsel contends that Respondent failed to
 fulfill the obligations imposed by section 7113 and, thereby, violated
 sections 7116(a)(1) and (5) of the Statute by implementing on November
 1, 1979 the interim change to regulation AR 210-4 without affording the
 Union a reasonable time to carry out the process of consultation on the
 change.  Thus, Counsel for the General Counsel takes the position that,
 in the circumstances of this case, Respondent was required to give the
 Union notice of the specific change at least 30 days prior to the day
 conditions of employment regarding employee parking were changed in
 order to assure that consultation would be completed before the actual
 change was put into effect.
 
    Essentially, Respondent contends that:  (1) DOA itself did not
 propose any substantive change within the meaning of sections 7113 of
 the Statute;  (2) the Union received adequate notice of the proposed
 implementation of the paid parking program;  (3) Respondent provided as
 much advance notice of the implementation of its regulation as it
 reasonably could under the circumstances;  (4) DOA considered the
 Union's views and recommendations;  and (5) Respondent took no final
 action in the matter by November 30, 1979.
 
                        Discussion and Conclusions
 
    Clearly, the paid parking program under consideration herein is a
 condition of employment within the meaning of the Statute and, beginning
 November 1, 1979, Respondent's installations were required to put into
 effect a parking program which involved fees for parking, priorities for
 the allocation of parking spaces, and other significant matters
 affecting employees for whom the Union had national consultation rights.
  It is also clear that DOA was considerably circumscribed by OMB, GSA
 and DOD parking regulations as to the mandatory contents of its own
 regulation.  Nevertheless, DOD's regulation provided DOA with
 substantial flexibility in establishing a paid parking program for its
 subordinate installations by specifically indicating to DOA areas of
 discretion in whatever plan it adopted.  Moreover, by virtue DOD's
 instruction to DOA to issue and administer a paid parking program, all
 the facets of which were not covered by OMB, GSA, or DOD regulations,
 DOA inherently was given wide discretion in establishing and
 effectuating the details of the plan it chose to have implemented at its
 installations.  Accordingly, I conclude that DOA's interim change to
 regulation AR 210-4, effective November 1, 1979, encompassed substantive
 changes within the meaning of section 7113 of the Statute and therefore,
 Respondent was required to fulfill the obligation imposed by section
 7113 to consult with the Union with regard to such changes.
 
    As to the "notice" issue presented herein, under section 7113 of the
 Statute the Union was entitled to be informed of DOA's parking
 regulation sufficiently in advance of the day of implementation, a
 "final" action, so that the Union could have a reasonable opportunity to
 present its views on the matter and have those views considered by DOA
 before it implemented the regulation.  /15/ Respondent suggests that the
 Union was aware of DOD's proposed regulation in September 1979 and this
 provided adequate notice to the Union as to the substance of DOA's
 regulation.  While the Union had notice in September 1979 of DOD's
 directive to DOA that it implement a paid parking program by November 1,
 notice of the DOD regulation is not at issue herein.  But more
 importantly, the DOD and DOA regulations were not identical in content.
 Therefore, until receiving a copy of DOA's regulation on October 22,
 1979, the Union had little knowledge of how DOD would interpret the OMB,
 GSA and DOD directives or what DOA would ultimately issue as a paid
 parking program for its facilities.
 
    Further, the Statute expressly required that Respondent afford the
 Union a reasonable time to comment on the proposed regulation so that
 DOA could consider the comments before taking final action.  When the
 Union received notice of DOA's proposed directive it had only until
 October 30 to get its comments to Respondent before the regulation was
 implemented on November 1.  Therefore, although Respondent notified the
 Union that it had until November 16 to comment on the regulation,
 Respondent cannot rely on post-implementation comment time to support
 its claim that it complied with the requirements of the Statute.
 Moreover, the directive, which had a substantial impact on employee
 parking at Respondent's numerous facilities, encompassed nine pages of
 specific material and required careful evaluation to discern which
 provisions followed the mandatory requirements of the OMB, GSA and DOD
 regulations and which provisions represented DOA's exercise of
 discretion.  In addition, Respondent's own Army Chief of Staff
 regulation and past practice of providing the Union at least 30 days
 notice of a final action lends support to the conclusion that Respondent
 was aware that the Union would require more than the time Respondent
 allowed for the Union to respond to the proposed parking program and
 have its response receive good faith consideration prior to
 implementation.  Accordingly, in these circumstances I conclude that
 Respondent did not afford the Union a reasonable time to comment on the
 proposed regulation and then consider such views before taking final
 action on the matter as required by the Statute.
 
    In my view, the fact that on November 7, 1979 the Union replied to
 Respondent's October 18 communication is of no consequence in the
 disposition of this matter.  In the November 7 letter the Union
 expressed its "views and comments" by challenging the legality of the
 entire process of imposing the Federal employee paid parking program,
 reminding DOA of its obligation to negotiate with unions at those
 installations where exclusive representatives were recognized, and,
 having noted the November 1 implementation date, requesting that it be
 given sufficient time of at least 30 days to review and comment on the
 regulation.  Respondent's reply, 23 days later failed to address the
 Union's request for more time to comment on the regulation and, in
 essence, viewed the matter as closed, noting however that further
 revision of the parking program was envisioned and, in that event, the
 Union would again be asked for its views and comments.  Thus, the
 Union's comments were not expressed until after the program was
 implemented and the comments were primarily a request for additional
 time to respond, a general objection to the legality of the entire
 program and a suggestion that DOA fulfill its bargaining obligations
 imposed by the Statute.  Respondent's consideration of those comments
 amounted to no more than a belated acknowledgement of receipt of the
 Union's letter, and at no time did Respondent indicate a willingness to
 comply with the provisions of the Statute which mandated notice in
 advance of taking a final act.  In these circumstances I conclude that
 Respondent's claim that the Union expressed its views on the matter and
 Respondent considered those views to be without merit as a defense to
 the allegations made herein.
 
    However, I further conclude that DOA acted as promptly and prudently
 as could reasonably be expected under the circumstances in informing the
 Union of proposed changes mandated to take effect November 1, 1979.
 Thus, DOD was aware of the November 1, 1979 date of implementation when,
 on September 18, 1979, it forwarded to subordinates its proposed
 regulation for comment.  The comments DOD received from DOA clearly
 indicated that the time frame set by DOD did not permit DOA to implement
 a paid parking program without laying itself open to violating the
 consultation requirements of the Statute.  DOA was unable to provide the
 Union with advance notice of its proposed regulations since DOA itself
 was awaiting final parking regulations from DOD.  The evidence reveals
 that DOD's proposed regulations had in the past frequently been revised
 based upon subordinate recommendations.  Notwithstanding such warning,
 DOD, in its regulations issued on October 11, 1979, mandated that DOA
 and all subordinate organizations implement a paid parking program by
 November 1.
 
    Upon receipt of DOD's regulations, DOA expeditiously developed its
 own proposed regulation by October 15, 1979 and immediately sent it to
 subordinate commands for comment.  The period for comment by subordinate
 commands was limited to two days.  The directive was then mailed to the
 Union on October 18.  DOA was obligated to follow the mandate of the DOD
 regulation and DOD was fully aware of the proscriptions of the Statute
 as well as DOA's apprehension regarding the implementation date and its
 inability to grant the Union appropriate time for consultation.
 Accordingly, I find and conclude that it was DOD's timing of actions
 which set into motion a chain of events whereby DOA's conduct became a
 virtual ministerial act of issuing a parking program in a time frame
 that practically assured that DOA would be unable to comply with the
 consultation requirements of section 7113 of the Statute.  However, DOD
 has not been named as a Respondent herein.
 
    It has been held by the Federal Labor Relations Council in a case
 decided under Executive Order 11491, that the acts and conduct of agency
 management, at a higher level of an agency's organization, may provide
 the basis for finding a violation of any part of section 19(a) of the
 Order, but, may not, standing alone, provide the basis for finding a
 separate violation by agency management at a lower organizational level
 of the agency solely on the basis of its ministerial actions in
 implementing the directions of higher agency authority.  /16/
 Subsequently, the, Authority, in deciding a case which arose under the
 Order, followed the rule of Naval Air Rework Facility.  /17/
 
    The Statute specifically provides that the policies and decisions
 issued under the Order " . . . shall remain in full force and effect . .
 . unless superseded by specific provisions of (the Statute) or by
 regulations or decisions issued pursuant to (the Statute)".  /18/ The
 provisions of the Order dealing with national consultation rights do not
 differ in substance from the provisions of the Statute applicable herein
 /19/ and the Authority has not, to date, departed from the holding of
 Naval Air Rework Facility.  /20/
 
    Accordingly, in the circumstances of this case, wherein DOA had no
 choice but to comply with the directive of DOD;  DOA's failure to
 provide adequate notice to the Union resulted from ministerially
 fulfilling its obligations to comply with DOD's directive;  DOD did all
 it could to reasonably meet the requirements of section 7113 of the
 Statute;  and DOD not having been named as a Respondent in this
 proceeding, I conclude that the evidence is insufficient to establish a
 violation under the Statute.  /21/
 
    Based upon the foregoing findings and conclusions I recommend the
 complaint herein be dismissed.  /22/
 
                                       SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
 Dated:  December 22, 1980
          Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7113(b)(1) provides:
 
          (b)(1) Any labor organization having national consultation
       rights in connection with any agency under subsection (a) of this
       section shall--
 
          (A) be informed of any substantive change in conditions of
       employment proposed by the agency, and
 
          (B) be permitted reasonable time to present its views and
       recommendations regarding the changes.
 
 
    /2/ Section 7116(a)(1) and (5) of the Statute provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                .  .  .  .
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter(.)
 
 
    /3/ While there were approximately two weeks between DOA's notice to
 AFGE and the announced effective date of the paid parking program, DOD
 did not issue its final parking regulation until December 7, as noted by
 the Judge. AFGE did not submit any views or recommendations to DOA
 concerning the substantive provisions of DOA's proposed parking
 regulation at any time, but did challenge the legality of the process
 imposing the paid parking and requested thirty days to review and
 comment on the regulation.
 
 
    /4/ In view of the foregoing conclusion, and noting that DOD was not
 named as a Respondent or alleged to have violated the Statute, the
 Authority finds it unnecessary to consider the Judge's comments
 concerning the actions of higher level management herein.
 
 
    /5/ Counsel for the General Counsel's unopposed motion to correct the
 transcript is hereby granted.
 
 
    /6/ 44 Fed.Reg.No. 161, at 48638-48641 (August 17, 1979).
 
 
    /7/ 44 Fed.Reg.No. 179, at 53161-53163 (September 13, 1979).
 
 
    /8/ A schedule of parking fees to be assessed at the installation
 within the control of DOD did not accompany this document.
 
 
    /9/ 10 U.S.C. 133(b) and Sec. 3010.
 
 
    /10/ CSR 690-10, dated March 21, 1979.
 
 
    /11/ DOD issued its final parking regulation on December 7, 1979
 which essentially parallels the earlier interim regulation.