15:0216(43)CA - Harry Diamond Laboratories and Army and DOD and AFGE Local 2 and OPM -- 1984 FLRAdec CA



[ v15 p216 ]
15:0216(43)CA
The decision of the Authority follows:


 15 FLRA No. 43
 
 HARRY DIAMOND LABORATORIES
 
 and
 
 DEPARTMENT OF THE ARMY
 
 and
 
 DEPARTMENT OF DEFENSE
 Respondents
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2, AFL-CIO
 Charging Party
 
 and
 
 OFFICE OF PERSONNEL MANAGEMENT
 Intervenor
 
                                            Case Nos. 3-CA-719 
                                                      3-CA-889
                                                      3-CA-970
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondents had not engaged
 in the unfair labor practices alleged in the consolidated complaint and
 recommending that the consolidated 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 herein.
 
    The consolidated complaint alleged in part that the Respondents
 Department of Defense (DOD) and Department of the Army (DOA) violated
 section 7116(a)(1) and (5) of the Statute /1/ by issuing directives
 concerning implementation of the paid parking program, thereby
 interfering with the collective bargaining relationship between Harry
 Diamond Laboratories (HDL) and the Charging Party, American Federation
 of Government Employees, AFL-CIO, Local 2 (the Union).  It further
 alleged that HDL also violated section 7116(a)(1) and (5) of the Statute
 by implementing the paid parking program at that facility without
 bargaining with the Union concerning its implementation and impact on
 bargaining unit employees.
 
    The Judge concluded that DOD and DOA did not violate section
 7116(a)(1) and (5) of the Statute as alleged.  The Authority agrees.
 Thus, the Union is not the exclusive representative of a unit of
 employees at the DOD or DOA level, but exclusively represents an
 appropriate unit of employees at HDL, a subordinate level within the
 agency.  Inasmuch as the duty of an agency under the Statute is to
 negotiate with an exclusive representative of an appropriate unit of its
 employees concerning conditions of employment affecting them, except as
 provided otherwise by Federal law and regulation, including
 Government-wide regulation, and therefore DOD and DOA would have been
 required to bargain to the extent of their discretion in implementing
 the Government-wide paid parking program if exclusive recognition had
 existed at those levels, /2/ the Authority concludes that they had no
 duty to bargain with the Union before issuing internal directives to
 subordinate elements concerning the paid parking program.  /3/ Moreover,
 in the absence of any showing that DOD or DOA prevented their
 subordinate element, HDL, from fulfilling its duty to bargain with the
 Union at the level of exclusive recognition, /4/ the Authority finds
 that the consolidated complaint must be dismissed to the extent it
 alleges that DOD and DOA violated section 7116(a)(1) and (5) of the
 Statute.  /5/
 
    The Judge further found that HDL had provided the Union with adequate
 notice that the paid parking program would be instituted as required by
 Government-wide regulations, and had bargained in good faith with the
 Union concerning those aspects of the paid parking program that were
 within HDL's discretion.  The Authority adopts the Judge's findings and
 conclusions in this regard, except as indicated below.
 
    The Authority cannot agree with the Judge's conclusion that HDL
 properly refused to bargain concerning certain Union proposals (e.g.,
 the appropriate monthly parking rate for HDL employees and the exemption
 of certain employees from coverage) on the basis that those matters were
 controlled by DOD and DOA regulations.  In this regard, the Judge found
 that HDL's duty to bargain did not extend to matters subject to DOD's
 agency-wide regulation unless the Authority determined that no
 compelling need existed for the DOD regulation, a determination which
 the Judge concluded could not be made in an unfair labor practice
 proceeding.  However, after the Judge issued his Decision herein, the
 Authority concluded that questions concerning the existence of a
 compelling need for regulations issued at the agency or primary national
 subdivision level so as to bar negotiations on inconsistent proposals at
 the level of exclusive recognition may appropriately be decided in an
 unfair labor practice proceeding, and that where compelling need is
 raised as an affirmative defense in an unfair labor practice proceeding,
 management is required, as it would be in a negotiability proceeding, to
 come forward with affirmative support for that assertion.  See Defense
 Logistics Agency (Cameron Station, Virginia), supra n.3.  See also U.S.
 Army Engineer Center and Fort Belvoir, 13 FLRA No. 116 (1984).  Since
 HDL refused to bargain concerning two Union proposals solely on the
 basis that they were nonnegotiable under DOD directives, but neither
 asserted nor established the existence of a compelling need for such
 agency regulation, the Authority concludes that HDL thereby failed to
 meet its duty to bargain with the Union to the extent of its discretion
 in implementing the Government-wide paid parking program and therefore
 violated section 7116(a)(1) and (5) of the Statute.  Department of
 Housing and Urban Development, 9 FLRA 136 (1982);  Veterans
 Administration Central Office, Veterans Administration Medical Center,
 Long Beach, 9 FLRA 325 (1982).
 
    With regard to an appropriate order to remedy such unfair labor
 practice, however, the Authority concludes that, inasmuch as there is no
 regulation in effect at this time requiring the collection of parking
 fees, /6/ it is unnecessary to order that the Respondent negotiate
 regarding this matter.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that the Harry Diamond Laboratories shall:
 
    1.  Cease and desist from:
 
    (a) Failing or refusing to bargain with the American Federation of
 Government Employees, Local 2, AFL-CIO, the exclusive representative of
 its employees, before implementation of any paid parking program which
 may be established by Government-wide rule or regulation.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing any employee in the exercise of rights assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Post at its facilities copies of the attached Notice on forms to
 be furnished by the Federal Labor Relations Authority.  Upon receiving
 such forms, they shall be signed by an appropriate official of the
 Respondent and shall be posted and maintained by such official for 60
 consecutive days thereafter, in conspicuous places, including bulletin
 boards and all other places where notices to employees are customarily
 posted.  Reasonable steps shall be taken to insure that such Notices are
 not altered, defaced, or covered by other material.
 
    (b) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Acting Regional Director, Region III, in
 writing, within 30 days from the date of this Order, as to what steps
 are being taken to comply herewith.
 
    IT IS FURTHER ORDERED that those portions of the consolidated
 complaint alleging violations of the Statute by the other named
 Respondents be, and they hereby are, dismissed.
 
    Issued, Washington, D.C., July 2, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail or refuse to bargain with the American Federation of
 Government Employees, Local 2, AFL-CIO, the exclusive representative of
 our employees, before implementation of any paid parking program which
 may be established by Government-wide rule or regulation.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce any employee in the exercise of rights assured by the Statute.
                                       (Activity)
                                       By:  (Signature) (Title)
 
    Dated:  . . .
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice, or compliance
 with its provisions, they may communicate directly with the Acting
 Regional Director, Region III, Federal Labor Relations Authority, whose
 address is:  P.O. Box 33758, Washington, D.C. 20033-0758 and whose
 telephone number is:  (202) 653-8452.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Doris O. Hildreth
    On brief:  John W. Mulholland
    For the Charging Party
 
    Joseph M. Davis, Esquire
    For Harry Diamond Laboratories
 
    Samuel S. Horn, Esquire
    For the Department of the Army and
    For the Department of Defense
 
    Stuart M. Foss, Esquire
    For the Intervenor
 
    Erick J. Genser, Esquire
    For the General Counsel
 
    Before:  WILLIAM B. DEVANEY
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, 5 U.S.C. 7101 et seq.  /7/ and the Final Rules and Regulations
 issued thereunder, Federal Register, Vol. 45, No. 12, January 29, 1980,
 5 C.F.R. 2415.1 et seq., is a further chapter in the continuing saga of
 President Carter's paid parking program for government employees.  I am
 fully aware that:  a) On February 5, 1981, the Authority, without
 passing on the merits of the dispute, dismissed the negotiability appeal
 in Case No. O-NG-229 which directly involved the paid parking
 implemented at Harry Diamond Laboratories.  American Federation of
 Government Employees, AFL-CIO, Local 2 and Department of the Army, Harry
 Diamond Laboratories, Adelphi, Maryland, 5 FLRA No. 13 (1981).  However,
 the Authority stated, in part, that,
 
          "Furthermore, issues as to whether, in the circumstances of
       this case, the Agency would have an obligation to bargain on
       matters concerning the general subject of paid parking, apart from
       the particular paid parking program which is the subject of the
       proposals disputed in the instant appeal, may properly be raised
       in the unfair labor practice procedures under section 7118 of the
       Statute.  Cf. American Federation of Government Employees,
       AFL-CIO, Local 2782 and Department of Commerce, Bureau of the
       Census, Washington, D.C., 4 FLRA No. 93 (1980)."
 
    b) On March 3, 1981, the United States District Court for the
 District of Columbia (per Judge Harold H. Greene) granted a permanent
 injunction enjoining the government from continuing the parking fee
 program, holding that the program had been illegally instituted by
 former President Carter without approval of Congress as required by the
 Energy Policy and Conservation Act of 1975.  American Federation of
 Government Employees v. Freeman, C.A. No. 79-2955 (U.S. DC DC, March 3,
 1981).
 
    In addition, most of the legal contentions involved in this
 consolidated case were decided by Judge Arrigo in three decisions issued
 on December 22, 1980, which are more particularly described hereinafter.
  I have given careful consideration to Judge Arrigo's decisions, agree
 therewith, and, fully to the extent that he has decided issues also
 raised in this case, I intend to follow and to apply his decisions.  The
 decisions are as follows:  Defense Contract Administration Services
 Region, Boston, Massachusetts;  Commander, Fort Devens, Fort Devens,
 Massachusetts;  Defense Logistics Agency, Washington, D.C.; Department
 of Defense, Washington, D.C. and National Association of Government
 Employees, Local R1-210, Case Nos. 1-CA-212, 1-CA-298, 1-CA-299 and
 1-CA-300 (December 22, 1980) (hereinafter, also, referred to as
 "DCASR");  Boston District Recruiting Command, Boston, Massachusetts;
 96th U.S. Army Reserve Command, Hanscom Air Force Base, Massachusetts;
 Department of the Army, Washington, D.C.; Department of Defense,
 Washington, D.C. and American Federation of Government Employees,
 AFL-CIO, Local 1900, Case Nos. 1-CA-206, 1-CA-207, 1-CA-208, 1-CA-209,
 1-CA-303, 1-CA-304 (December 22, 1980) (hereinafter, also, referred to
 as "Boston District");  and Department of the Army and American
 Federation of Government Employees, AFL-CIO, Case No. 3-CA-766 (December
 22, 1981) (hereinafter, also, "Department of the Army").
 
    The charge in Case No. 3-CA-719 was filed on December 5, 1979 (G.C.
 Exh. 1(a)) alleging violations of Secs. 16(a)(1), (5) and (8) of the
 Statute by Harry Diamond Laboratories (hereinafter, also, "HDL");  the
 charge in Case No. 3-CA-889 was filed on February 21, 1980 (G.C. Exh.
 1(c)) alleging a violation of Sec. 16(a)(1) of the Statute by Department
 of the Army (hereinafter, also, "DA") and a First Amended Charge was
 filed on April 7, 1980 (G.C. Exh. 1(e)) which alleged, in addition to
 Sec. 16(a)(1), a violation of Sec. 16(a)(5) of the Statute;  the charge
 in Case No. 3-CA-970 was filed on March 14, 1980 (G.C. Exh. 1(g))
 alleging a violation of Sec. 16(a)(1) of the Statute by the Department
 of Defense (hereinafter, also, "DOL") and a First Amended Charge was
 filed on April 7, 1980 (G.C. Exh. 1(i)) which alleged, in addition to
 Sec. 16(a)(1), a violation of Sec. 16(a)(5) of the Statute;  and an
 Order Consolidating Cases, Complaint and Notice of Hearing issued on
 April 30, 1980, alleging violations of Secs. 16(a)(1) and (5) of the
 Statute and set the hearing for July 30, 1980.  (G.C. Exh. 1(k)).  On
 May 20, 1980, an order issued rescheduling the hearing for July 23,
 1980, pursuant to which a hearing was duly held on July 23, 1980, before
 the undersigned, in Washington, D.C.
 
    At the commencement of the hearing the Motion of the Office of
 Personnel Management to Intervene was granted.
 
    All parties were represented, were afforded full opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein;  and the parties were afforded
 full opportunity to present oral argument at the conclusion of the
 testimony, which right was waived by each party.  At the close of the
 hearing, August 25, 1980, was fixed as the date for mailing post-hearing
 briefs, which time was subsequently extended, by motion and for good
 cause shown, to September 12, 1980.  Each party, i.e. the Charging
 Party, Counsel for the General Counsel, Harry Diamond Laboratories,
 Department of Defense and Department of the Army, and Office of
 Personnel Management, timely filed an excellent brief, received on or
 before September 16, 1980, which have been carefully considered.  Upon
 the basis of the entire record, /8/ including my observation of the
 witnesses and their demeanor, I make the following findings and
 conclusions:
 
                                 Findings
 
                     A. Harry Diamond Laboratories /9/
 
    1.  DOD is an agency within the meaning of Sec. 3(a)(3) of the
 Statute;  DA is a primary subdivision of DOD within the meaning of Sec.
 2421.5 of the Rules and Regulations;  HDL is a subordinate activity of
 DA within the meaning of Sec. 2421.4 of the Rules and Regulations;
 American Federation of Government Employees, AFL-CIO, Local 2
 (hereinafter, also, referred to as "Union") is a labor organization
 within the meaning of Sec. 3(a)(4) of the Statute;  and the Union is,
 and has been since the early 1960's, the certified exclusive
 representative of HDL's guard force and janitorial employees in separate
 bargaining units;  however, at no time material was there any collective
 bargaining agreement between the Union and HDL, although HDL and the
 Union were, at such time, engaged in negotiations looking toward a
 comprehensive bargaining contract for employees in the affected units.
 
    2.  On October 16, 1979, HDL was advised by DA that it was to be
 included in the paid parking program (G.C. Exh. 5).  DA directed HDL
 that, beginning November 1, 1979, it must begin charging a monthly fee
 for parking private vehicles on the installation.  The fee for HDL,
 "based on appraisals made by the Office, Chief of Engineers and . . .
 approved by GSA . . . " (G.C. Exh. 5) was fixed as $10.00 per month.
 
    3.  Prior to receipt of DA's notification of October 16, HDL had been
 led to believe it would be exempt from the paid parking program.  Thus,
 in May, 1979, after announcement of the paid parking program at Federal
 installations, a program was initiated at HDL to determine what, if any,
 effect this program would have on it.  HDL's review of Office of
 Management and Budget (OMB) Circular A-118 (G.C. Exh. 2) showed that the
 program specifically applied to those installations "in densely
 populated urban locations where commercial practice is to charge for the
 use of parking spaces." (G.C. Exh. 2).  HDL is located in the Hillandale
 residential area of Montgomery and Prince Georges Counties, a low
 density, suburban, and primarily residential area.  In addition, the
 nearest commercial parking facility is located more than 5 miles from
 the HDL site in downtown Silver Spring.  Moreover, in August, 1979, HDL
 received a message that most Army installations would be exempted from
 the paid parking program (Tr. 79).
 
    4.  On October 17, Mr. Joseph M. Davis, of the HDL legal office,
 personally told Mr. Douglas H. Kershaw, National Representative of the
 American Federation of Government Employees, that HDL was to be included
 in the paid parking program (Tr. 67).
 
    5.  On October 19, Mr. Kershaw was provided a copy of the DOD
 Memorandum (Directive), dated October 11, 1979, Subject:  Implementation
 of Personnel Parking Facilities Program (G.C. Exh. 17) which, inter
 alia, on an attachment entitled "Monthly Parking Charges", dated October
 4, 1979, showed the monthly charge for HDL as $10.00 per month
 representing "one half appraised monthly rate or $10.00 whichever is
 larger per OMB Circular A-118 . . . . " (G.C. Exh. 17, Enclosures) and
 the DA TWX of October 15, 1979 (G.C. Exh. 5), which, inter alia, stated
 that the monthly charges, including the $10.00 per month fee for HDL,
 were "based on appraisals . . . . " Mr. Kershaw, at request of HDL's
 chief spokesman, Ms. Hering, made two "off the cuff" proposals:  a) that
 HDL charge bargaining unit employees the same fee as was being charged
 in commercial parking lots adjacent to the HDL complex (obviously, as
 HDL and the Union well knew, there were no commercial parking lots
 adjacent to the HDL complex and Union was proposing, in reality, that no
 charge be made for bargaining unit employees);  and b) that shift
 employees be exempted from the paid parking requirement.
 
    6.  On October 22, 1979, HDL requested a 120 day delay in
 implementing the program, a primary justification being that, "Because
 of the late notification . . . our negotiating team has been unable to
 conduct meaningful discussions with union representatives concerning
 this change in general working conditions.  To implement this program
 prior to reaching agreement or going to impasse with the union on this
 matter, will not only have an adverse impact upon our present
 negotiations but may also subject the activity to an Unfair Labor
 Practice . . . . " (G.C. Exh. 10)
 
    7.  Also on October 22, 1979, HDL submitted an appeal for exemption
 from the requirements of the paid parking program (G.C. Exh. 8).
 
    8.  Both the request for delay and the appeal for exemption were
 indorsed by higher headquarters (G.C. Exhs. 22a-22c, 20a-20d) but were
 denied by DOD on November 19, 1979 (G.C. Exhs. 9c, 21).  As to delay in
 implementation, DOD stated, in part, "Delay in implementation . . .
 should be avoided in view of the requirements of the OMB Circular . . .
 ) /10/ and as exemption stated, in part, "The Department of Defense does
 not have authority to exempt military installations . . . except as
 specified in OMB Circular A-118 and the draft DoD directive.  None of
 the requests received to date have been justified for exemption on the
 basis of these regulations . . . . "
 
    9.  On October 25, 1979, HDL's draft implementing instructions, dated
 October 24, 1979, (G.C. Exh. 4) were hand-carried to Mr. Kershaw's
 office by Ms. Hering;  however, Mr. Kershaw was not present and he
 testified that, as he noted on the draft copy, he received the document
 at 0800, October 26, 1979 (Tr. 51-52).  The parties discussed HDL's
 draft on October 26.  At the outset, Mr. Kershaw, as he readily
 admitted, stated that one of the simplest ways to avoid implementation
 of paid parking was to talk it to death, his assumption being that it
 could not be implemented while negotiations were in progress;  but Ms.
 Hering told Mr. Kershaw that HDL was under direct orders to implement
 the program on November 1 and that it would be implemented on that date.
  Mr. Kershaw was advised that HDL had submitted a formal appeal
 requesting exemption and Mr. Kershaw proposed several times that
 negotiations be suspended on implementation because he was confident HDL
 would be excluded;  however, Ms. Hering insisted that negotiations
 continue because she believed a response on the appeal would not be
 received by November 1.  After a caucus, Mr. Kershaw presented several
 counter proposals.  Again, Mr. Kershaw proposed that the monthly rate be
 equal to that charged by commercial lots in the vicinity and there was
 discussion of "vicinity", Mr. Kershaw proposing "three blocks" and HDL
 "five miles" (Tr. 53).  Mr. Kershaw also renewed his proposal that all
 shift workers be exempt (Tr. 53) (management had, in fact, already
 agreed to Mr. Kershaw's October 19 proposal and its October 24 draft had
 exempted "Shiftworkers" as well as "those on weekend duty";  "Personnel
 on temporary duty not to exceed 2 weeks" and "Part-time volunteers, such
 as Red Cross or Travelers Aid personnel, Gray Ladies, or thrift shop
 helpers, etc.";  and "Official visitors, including employment
 applicants, parking up to a limit of 3 hours." (G.C. Exh. 4, par. 5))
 and management responded that they were exempt and that the afternoon
 shift of the janitors were exempt because they met the criteria, which I
 agreed, and that would leave approximately 20 people left in the janitor
 force that would be subject to paid parking" (Tr. 54).  Mr. Kershaw
 further proposed that Union visitors park free;  that WG-3's and below
 be exempt;  and that the daily fee be 45[.  Management asserted that it
 had no control over exempting union visitors, that DOD and DA
 regulations required that anything over three hours be charged for and
 had proposed a daily fee of $1.50 but, in response to Mr. Kershaw's
 proposal of 45[ made a counter proposal of $1.25.  The Union agreed to
 encourage carpooling and/or use of mass transportation but declined to
 urge Union employees not to park in the surrounding residential area.
 Mr. Kershaw stated that management "indicated at that first session"
 that the monthly rate "was non-negotiable" (Tr. 58).  Management had
 proposed that payment be permitted in cash, by money order or by payroll
 deduction.  Ms. Hering told Mr. Kershaw she would have to check with
 payroll to see if payroll deductions was a feasible proposal.  At the
 end of the January 26 session, several issues remained outstanding,
 including payroll deductions, exemptions for WG-3's and Union visitors,
 daily charge and Union support in discouraging unit employees from
 parking in residential areas.  Mr. Kershaw advised Ms. Hering he would
 contact her the following Monday, October 29, concerning his
 availability for further discussions.
 
    10.  Mr. Kershaw did not contact Ms. Hering on October 29 as he had
 agreed to do at the conclusion of the October 26th meeting.  On October
 30, Ms. Hering attempted to reach Mr. Kershaw at his office but he was
 not in and did not respond to her message that he call regarding another
 negotiating meeting.
 
    11.  Ms. Hering called Mr. Kershaw again on October 31 and, again,
 left a message for him to call her.  Late in the afternoon of October
 31, Mr. Kershaw returned Ms. Hering's call and she told him she would
 meet with him that evening but Mr. Kershaw said he was not available and
 suggested negotiating by telephone and, accordingly, the issues, which
 had been left unresolved at the close of the October 26 meeting, were
 discussed by telephone.  Ms. Hering testified that, "we declared two of
 them (open Union proposals) non-negotiable based on the DOD Directives"
 (Tr. 194);  however, she did not identify the two proposals declared
 non-negotiable on October 31st.  /11/ Ms. Hering on October 31 did
 advise Mr. Kershaw that paid parking would be implemented the following
 day, November 1 (Tr. 184-185).
 
    12.  HDL issued "Interim Parking Fee Policy", dated October 30, 1979
 (G.C. Exh. 6), effective November 1, 1979, which, inter alia, set forth
 a daily rate of $1.00 per day, which was less than HDL's counterproposal
 to the Union on October 26 of $1.25, and provided for payment by check
 although, by inference cash appears acceptable.  /12/
 
    13.  Further meetings were held on November 9 and 21 on paid parking
 but, on November 21, further negotiations were suspended until January
 25, 1980, although parking, by the Union's earlier declination to
 discuss the matter, was not discussed until February 9, 1980, and
 thereafter.
 
           B.  Department of Defense and Department of the Army
 
    14.  OMB Circular No. A-118, "Federal Employee Parking Facilities",
 was issued on August 13, 1979 (G.C. Exh. 2), although, as Mr. Francis B.
 Roche, Director for Real Property and Natural Resources, Office of the
 Assistant Secretary of Defense for Manpower, Reserve Affairs and
 Logistics, testified, OMB had issued an initial draft in April, 1979,
 subsequently followed by a second and third draft reflecting comments
 and input from various agencies, including the Department of Defense,
 and DOD knew by about July 16, 1979, "approximately what this final
 circular would look like (Tr. 108).
 
    15.  General Services Administration issued Federal Property
 Management Regulations, Temporary Regulation D-65, on September 6, 1979.
 
    16.  DOD issued a draft Instruction on September 18, 1979 (G.C. Exh.
 16) and its Directive on October 11, 1979, implementing the personnel
 parking facilities program encompassing all military installations,
 facilities, and properties, whether owned or leased, in the United
 States, its territories and possessions and the Commonwealth of Puerto
 Rico and, further, to all space in Government-owned or leased buildings
 assigned to DOD components by the GSA or to buildings leased by DOD
 components (G.C. Exh. 17).  Mr. Roche testified that there was no
 difference in content, only semantical changes, between the Instruction
 and the Directive, although the Instruction did not carry the weight of
 a DOD Directive.  The Department of the Army was, specifically, an
 addressee of each.  Enclosure (2) to the Directive, dated October 4,
 1979, listed the monthly parking fee for HDL as $10.00.  /13/
 
    17.  Lieutenant Colonel Paul T. Gerard, Department of the Army, Law
 Enforcement Division, Director of Human Resources Development, Office of
 the Deputy Chief of Staff for Personnel, testified that on the day he
 reported for duty, July 23, 1979, he attended a meeting of a steering
 group, chaired by Mr. Roche, whose function was to "come up with DOD
 guidelines for implementing "the paid parking program within the DOD;
 that he served as an adviser on this group from July 23 until the first
 of October, 1979;  and that he had replaced another person from DA who
 had been on this team (Tr. 90-91).  Colonel Gerard further testified
 that after he received the DOD Instruction in September, he "submitted
 some comments in the latter part of September to the Office of the Chief
 of Staff, United States Army" (Tr. 92) and that these comments were
 consolidated with other comments from DA staff and forwarded to DOD;
 that in the latter part of September he began work on a draft interim
 changes of Army Regulations 210-4 to incorporate provisions for paid
 parking;  and that a draft of AR-210-4 "Interim Change", implementing
 the DOD Directive of October 11, 1979, was distributed by DA on October
 17 and 19, 1979 (G.C. Exhs. 11, 12, 13).  Colonel Gerard explained that
 he received the DOD Directive late in the afternoon on Friday, October
 12, 1979;  that over the weekend he worked on his rough draft of AR
 210-4 to conform to the DOD Directive and to prepare something to send
 to concerned installations on Monday, October 15;  and that a TWX (G.C.
 Exh. 5) was issued on October 15, 1979 (Tr. 94).
 
    18.  Colonel Clifton R. Goodwin, at the time of the hearing Director
 of the Systems Engineering and Technology Directorate, United States
 Army Research and Development Command, Electronics Research and
 Development Command, and from February, 1977, to December 4, 1979, had
 been Commander of HDL, testified that Lieutenant Colonel, then Major,
 Gerard had called him on October 16, 1979, to alert him to the fact that
 a message had been sent designating HDL as one of the installations
 where paid parking would be initiated (Tr. 78-79);  that immediately
 thereafter he had gone to the message center and found the TWX, General
 Counsel's Exhibit 5 (Tr. 79);  that no prior communication on paid
 parking had been received by HDL, except a message received in August
 that it was thought that Army installations might be exempted.  A copy
 of the DOD Directive of October 11, 1979, was transmitted to various
 commanders, including HDL, on October 17, 1979, together with a copy of
 draft interim change to AR 210-4 (G.C. Exh. 11).  The printed version of
 AR 210-4 was issued November 16, 1979 (G.C. Exh. 15).
 
    19.  By letter dated September 20, 1979, Mr. William C. Valdes,
 Acting Deputy Assistant Secretary of Defense (Civilian Policy),
 transmitted to Mr. Kenneth T. Blaylock, National President of American
 Federation of Government Employees, a copy of DOD's Instruction and
 asked, "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." (Res. Exh. 1).  Mr. Ronald D. King, AFGE's Director of Contract
 and Appeals Division, declined Mr. Valdes' offer of national
 consultation and instead, suggested negotiation of DOD's Instruction.
 (Res. Exh. 2).
 
                                Conclusions
 
    For reasons well stated by Judge Arrigo in DCASR, supra, which I
 fully adopt,
 
          "There is no contention that the OMB and GSA regulations on
       paid parking are negotiable matters.  Indeed, it is clear that
       these regulations are Government-wide regulations within the
       meaning of Section 7117(a)(1) of the Statute, and, as such, no
       duty to bargain is required regarding the subject matter contained
       therein.  However, the OMB parking regulation, while setting forth
       various specific instructions on paid parking, required GSA and
       all agencies to issue instructions relative to the implementation
       of the OMB regulation.  DOD was, therefore, obligated to adopt the
       specific requirements of OMB and GSA but, nevertheless, was left
       discretion as to various practices and procedures relating to the
       implementation of the OMB and GSA regulations.
 
          "Sections 7117(a)(2) and (3) of the Statute govern an agency's
       duty to bargain with a union with regard to matters encompassed by
       agency wide regulations.  Thus, under the Statute, an agency or a
       primary national subdivision of an agency is obligated to bargain
       with a union regarding matters encompassed by their regulations
       only where the union represents the majority of employees in the
       agency or primary national subdivision, or when the Authority has
       determined under 7117(b) of the Statute that no compelling need
       exists for the regulation . . .
 
          "In the case herein DOD's parking regulation of October 11,
       1979 and DOA's regulation of October 19, 1979 were applicable to
       all their subordinate bodies and I conclude the DOD regulation was
       an 'agency' regulation and the DOA regulation was a regulation
       issued by a 'primary national subdivision of such agency' within
       the meaning of Section 7117(a)(3) of the Statute.  Further, the
       Union herein /14/ does not represent a majority of the employees
       in DOD or DOA nor has the Authority determined that no compelling
       need exists for the DOD or DOA regulations in effect, the issue
       having never been presented to the Authority for such a
       determination.  Accordingly, I conclude that prior to their
       issuance, neither DOD nor DOA was obligated to bargain . . .
       regarding the matters which were the subject of the parking
       regulations referred to herein.
 
          "However, the DOD and DOA regulations were not self
       implementing.  Rather, in order to be effectuated, components
       subordinate to DOD and DOA were required to implement them as they
       would affect employees within their jurisdiction.  The regulations
       did not provide for all possible contingencies and, therefore,
       various areas of discretion were left to the judgement of
       management at the level of actual employee location and union
       representation.
 
          "The Authority has held in National Treasury Employees Union,
       Chapter 6 and Internal Revenue Service, New Orleans District, 3
       FLRA No. 119, that 'to the extent that an agency has discretion
       with respect to a matter affecting conditions of employment of its
       employees, that matter is within the duty to bargain of the
       agency.' Clearly, the paid parking program at the Facility is a
       condition of employment.  Accordingly, I conclude that management
       was obligated under the Statute to negotiate . . . to whatever
       extent management had discretion under applicable Government-wide
       and agency regulations in the implementation of the paid parking
       at the Facility." (DCASR, supra, pp. 12-14) (footnotes omitted)
       (To like effect, see, also, Boston District, supra;  Department of
       the Army, supra.)
 
    As noted above, I fully ascribe to Judge Arrigo's conclusions, set
 forth above, and the application of those conclusions to the particular
 facts of this case are discussed hereinafter.  But first, is a further
 contention by the General Counsel concerning compelling need (General
 Counsel's Brief, pp. 16-19), an issue also considered in detail by Judge
 Arrigo in Boston District, supra.  For reasons well stated by Judge
 Arrigo in Boston District, supra, which I fully adopt, I conclude that a
 determination of "compelling need" may not be made in an unfair labor
 practice proceeding.  Judge Arrigo noted, in part, as follows:
 
          "Under section 7117(a)(2) and (3) of the Statute, an agency or
       a primary national subdivision of an agency is not obligated to
       bargain with a union regarding matters encompassed by their
       regulations unless a union represents the majority of employees in
       the agency or national primary subdivision or unless the Authority
       has determined, under section 7117(b) of the Statute, that no
       compelling need exists for the regulation . . .  The Union herein
       (AFGE) does not represent the majority of employees in DOD or DOA
       . . .
 
          " . . . an examination of the legislative history of the
       Statute discloses the following explanation given by Senator
       Morris Udall on September 13, 1978 regarding the meaning of
       section 7117 ultimately enacted into law, termed the 'substitute'
       bill . . . :
 
                                .  .  .  .
 
          "'The substitute's section 7117 makes Government-wide rules and
       regulations an absolute bar to negotiations (subsection (a)(1)).
 
          "'Subsection (a)(2) of the substitute provides that agency
       rules or regulations are a bar to negotiations, subject to
       subsection (a)(3), unless a finding of "no compelling need" for
       the rule or regulation is made by the Authority (as determined
       under regulations prescribed by the Authority);
 
                                .  .  .  .
 
          " . . . the terms of section 7117 were meant to apply generally
       to all situations where an agency defends against a demand to
       negotiate on a matter by interposing the existence of an
       appropriate regulation.
 
          "Counsel for the General Counsel also suggests . . . that if
       the agency regulations stands as a bar to negotiations, then the
       proceeding herein served to put the issue of compelling need
       before the Authority for determination.  In my view neither the
       Statute nor the Authority's regulations appear to envision this
       approach.  Indeed, section 7117(b)(3) of the Statute provides that
       where a hearing is held to make a determination of compelling
       need, it, ' . . . shall not include the General Counsel as a
       party.' Accordingly, to combine a compelling need determination
       with an unfair labor practice proceeding, where the General
       Counsel has the responsibility of presenting the evidence in
       support of the complaint and carries the burden of proving the
       allegations of the complaint, would run contrary to Statutory
       prohibition.  Therefore, Counsel for General Counsel's contention
       is rejected." (Boston District, supra, pp. 13-15) (footnotes
       omitted).
 
    For reasons set forth above, an agency regulation, whether issued by
 an agency, such as DOD, or by a primary national subdivision, such as
 DA, is not subject to negotiation unless the Authority has determined,
 pursuant to Sec. 17(b), that no compelling need exists for such rule or
 regulation.  General Counsel's assertion that, "DOD and Department of
 the Army must demonstrate that a compelling need exists for specific
 provisions of their regulations which extend beyond the dictates of the
 Government-wide regulations . . . " (General Counsel Brief, p. 16), is
 without merit and is rejected.  To the contrary, such regulations bar
 negotiations unless and until the Authority, pursuant to Sec. 17(b)
 determines that no compelling need exists for such rule or regulation.
 
                         The Bargaining Obligation
 
    As set forth above, there was a duty to bargain with the Union as to
 matters not precluded by express provisions of Government-wide
 regulations or the regulations issued by DOD and DA.  In this case, HDL,
 as the unit of exclusive recognition, was obligated to bargain with the
 Union.
 
                 i) HDL's compliance with its obligations
 
    It must be recognized at the outset that this case involves a
 Government-wide regulation, OMB Circular No. A-118 (August 13, 1979,
 G.C. Exh. 2), supplemented by a further Government-wide regulation, GSA
 Temporary Regulation D-65 (September 6, 1979, G.C. Exh. 3), which, inter
 alia, provided that the paid parking program would be effective November
 1, 1979.  Both the DOD Instruction of September 18, 1979 (G.C. Exh. 16)
 and the Directive of October 11, 1979 (G.C. Exh. 17) provided for
 implementation of monthly fees beginning November 1, 1979.  The
 effective date of implementation of the program, November 1, 1979, was
 not subject to negotiation by HDL inasmuch as the date of implementation
 had been fixed by OMB's Government-wide regulations as well as by agency
 regulation.
 
    HDL received notice on October 16, 1979, that it was to be included
 in the paid parking program;  on October 17, 1979, HDL advised the
 Union;  and on October 19, 1979, HDL gave the Union copies of DA's TWX
 of October 15 and DOD's Directive of October 11, 1979, and discussed the
 matter with Mr. Kershaw who gave HDL's Chief negotiator two
 "off-the-cuff" proposals.  The parties did not meet again until October
 26, 1979;  however, on October 22, HDL:  a) requested a 120 day delay in
 implementing the paid parking program, a primary justification being to
 allow completion of discussions with the Union;  and b) filed an appeal
 for exemption.  At the October 26, 1979, meeting HDL told the Union that
 the paid parking program would be implemented, pursuant to direct orders
 from higher headquarters, on November 1;  the parties did enter upon
 meaningful negotiations but at the end of the October 26th session
 several items were unresolved.  Although HDL was ready and willing to
 meet at any time convenient for the Union, Mr. Kershaw declined to meet
 over the weekend and told HDL's Chief negotiator that he would contact
 her the following Monday, October 29, concerning his availability for
 further discussions.  Mr. Kershaw did not call on Monday, October 29,
 could not be reached on October 30, was still not in his office on
 October 31 and did not return Ms. Hering's calls until late in the
 afternoon on October 31.  Mr. Kershaw refused Ms. Herings' offer to meet
 that night but, at Mr. Kershaw's request, there ensued a discussion by
 telephone.  General Counsel is quite correct that negotiations were not
 fully completed by November 1, 1979, when HDL implemented paid parking.
 Indeed, as noted above, on one item, the daily rate, HDL placed into
 effect a daily rate which was less ($1.00) than its last counter
 proposal to the Union on October 26 ($1.25), and on another, method of
 payment, obviously, there had been no resolution of Union's proposal for
 payroll deductions.  Nevertheless, under the circumstances I find no
 failure on the part of HDL to bargain in good faith.  First, the Union
 failed to avail itself of the opportunity to continue negotiations.
 Second, the monthly rate for HDL had been fixed by DOD's Directive Enc.
 2 and DA's TWX (G.C. Exh. 5) and Union's proposal for exemption of
 employees based on wage grade was precluded by the DOD Directive as well
 as DA's TWX and draft interim changes of AR 210-4 so that HDL's
 declaration, on October 26 and/or October 31, that these matters were
 not negotiable was correct.  Nor were these proposals germane to impact
 and implementation of the regulations, cf., Delaware Army and Air
 National Guard, Case No. 23-CA-104 (ALJ, April 1981), but were, in fact,
 an attempt to "negotiate" the regulation which was not subject to
 negotiation unless and until the Authority should determine that no
 compelling need existed for the regulation. Third, the Union evinced a
 total lack of good faith as shown, inter alia, by its conceded objective
 to "talk it to death" and by its failure and refusal to meet after
 October 26.  Fourth, HDL had, to the full extent possible, taken every
 action available to it.  Thus, HDL had requested an extension of time
 for implementation of the program;  had requested exemption;  and had
 met with the Union to negotiate the matters left to its discretion by
 the regulations, i.e., impact and implementation of the regulations, and
 was available and ready to continue negotiations but Union failed and
 refused to meet.  Fifth, HDL continued to meet with the Union after
 November 1st.  Accordingly, I find no failure by HDL to negotiate in
 good faith nor did HDL violate the Statute by implementing the paid
 parking program on November 1, 1979.
 
             ii) Implementation of Government-wide Regulations
 
    Section 17(a) of the Statute wholly excludes from the duty to bargain
 "any Federal law or any Government-wide rule or regulation".  Although
 not raised and, therefore not decided, I assume that if a
 Government-wide rule or regulation were effective immediately,
 bargaining on impact and implementation, at least prior to
 implementation, would be precluded.
 
    Here, while OMB issued a Government-wide regulation on August 13,
 1979 (Circular No. A-118, G.C. Exh. 2), this regulation was not in all
 respects dispositive of all aspects of the paid parking program and, in
 particular as to military installations recognized the unique problems
 and in Paragraph 11 provided, in part, that, "The Secretary of Defense
 shall establish regulations at non-GSA controlled military installations
 consistent with this circular and the GSA regulations issued in
 conformance with this circular." Nevertheless, OMB by Government-wide
 regulations, had provided that the paid parking program should be made
 effective November 1, 1979, and the duty to bargain, pursuant to Sec.
 17(a)(1) or (2), must not be "inconsistent with . . . any
 Government-wide rule or regulation".  Accordingly, November 1, 1979,
 having been fixed by Government-wide regulation as the date of
 implementation of the paid parking program, the date of implementation
 of the program was not negotiable and DOD was obligated to act in
 conformance with the Government-wide regulation.
 
    Pursuant to Sec. 17(a)(2) and (3), as noted above, DOD and DA may
 issue regulations which are subject to bargaining only if:  a) an
 exclusive representative represents not less than a majority of the
 employees in the issuing agency (DOD) or primary national subdivision
 (DA) or b) the Authority has determined that no compelling need exists
 for the rule or regulation.  Neither condition pertains here.  The fact
 that DOD's regulation narrowed the areas of discretion left both to DA
 and/or to management at the level of actual employee location and union
 representation is immaterial.  The duty to bargain did not extend to
 matters subject to DOD's agency-wide regulation unless and until the
 Authority should determine that no compelling need exists for the rule
 or regulation.
 
    Where, as here, some discretion was left by DOD's regulation, I have
 found, in full agreement with Judge Arrigo's decisions in DCASR and
 Boston District, that there is both a right and an obligation to
 negotiate on those areas of discretion left to the judgment of
 management at the level of actual employee location and union
 representation.  General Counsel asserts that DOD and DA acted in such a
 manner that the Union was deprived of the opportunity to bargain and,
 therefore DOD and DA violated Sec. 16(a)(1) by denying Union a
 meaningful opportunity to bargain with HDL.
 
                        iii.  DOD's Implementation
 
    OMB's Government-wide regulation on paid parking issued on August 13,
 1979 (G.C. Exh. 2);  GSA's Temporary Regulation D-65 issued on September
 6, 1979 (G.C. Exh. 3);  and DOD's Instruction issued on September 18,
 1979 (G.C. Exh. 16).  The transmittal stated, inter alia, "The enclosed
 draft DOD Instruction is intended to implement OMB Circular A-118 . . .
 . " The Instruction provided, in part, that,
 
          "1.  This Instruction applies to the Office of the Secretary of
       Defense, the Military Departments, and the Defense Agencies
       (hereafter referred to as 'DOD Components').
 
          "2.  Its provisions encompass all military installations,
       facilities, and properties in the United States, its territories
       and possessions, the Commonwealth of Puerto Rico, and the Canal
       Zone whether owned or leased."
 
                                .  .  .  .
 
                    "EFFECTIVE DATE AND IMPLEMENTATION
 
          "This Instruction is effective immediately.  Forward two copies
       of implementing documents to the Assistant Secretary of Defense
       (Manpower, Reserve Affairs and Logistics) within 60 days of the
       date of this Instruction." (G.C. Exh. 16).
 
    Although the record shows that comments were submitted to DOD by,
 among others, DA, and that DOD issued its Directive on October 11, 1979,
 (G.C. Exh. 17), the Instruction, by its terms, was effective when
 issued, implemented OMB Circular A-118, and was obligatory to all DOD
 Components.  Whether an agency rule or regulation is not before me.  It
 was, in either event, an agency implementation of OMB Circular A-118;
 AFGE was, pursuant to Sec. 13 of the Statute, informed and permitted
 reasonable time to present its views;  and all DOD Components, including
 DA, were given notice, as of September 18, 1979, of the parking program
 to be implemented November 1, 1979.
 
    The record firmly shows that DOD issued its Instruction with
 expedition after issuance of GSA's regulation, which was an essential
 prerequisite, and that its Instruction, provided full notice to all DOD
 Components on September 18, 1979, of its implementation of OMB Circular
 A-118 beginning November 1, 1979.  DOD, obviously, acted with all
 reasonable dispatch and its Instruction afforded the maximum notice
 possible to all DOD Components of the implementation of OMB Circular
 A-118.  Inasmuch as the DOD Instruction implemented OMB Circular A-118,
 it cannot be said that implementation was deferred by DOD pending
 issuance of its Directive on October 11, 1979, and/or that by delay in
 issuance of the Directive until October 11, 1979, DOD deprived the Union
 of a meaningful opportunity to bargain with HDL.
 
                         iv.  DA's Implementation
 
    The record shows that DA, although it submitted comments to DOD on
 the DOD Instruction, gave no notice to HDL either that HDL was to be
 included in the paid parking program or of the DOD Instruction.  Indeed,
 the record shows that DA's first notice to HDL was on October 15, 1979
 (G.C. Exh. 5), and was received by HDL on October 16, 1979.  As noted
 above, the DOD Instruction implemented OMB Circular A-118 and DA, since
 a component activity performed the appraisal (See, G.C. Exhs. 18 and
 19), knew by September 18, 1979, that an appraisal had been made of fair
 rental rates for outside parking at HDL.  The failure of DA to give HDL
 notice, after receipt of the DOD Instruction, of the implementation of
 OMB Circular A-118 did, wholly without justification, severely restrict
 the Union's opportunity to bargain since, as the result of DA's failure
 to give notice to HDL of the DOD Instruction, HDL was not given notice
 until October 15, 1979, that it was to be included in the paid parking
 program effective November 1, 1979.  Nevertheless, under the
 circumstances, I do not find that DA's failure to give HDL notice of the
 DOD Instruction, although without justification, deprived the Union of a
 meaningful opportunity to bargain with HDL so as to constitute a
 violation of 16(a)(1) of the Statute.  First, perhaps contrary to my
 brother Judge Arrigo's conclusion in Department of the Army, supra, that
 "DOA inherently was given wide discretion in establishing and
 effectuating the details of the plan it chose to have implemented at its
 installations" (p. 9), I can perceive very little discretion left to DA
 /15/ and/or HDL.  Second, HDL gave Union notice on October 17, 1979, and
 the parties met on October 19 and 26.  Within the time available prior
 to the date of implementation, November 1, 1979, there was an
 opportunity for meaningful negotiations on the limited areas subject to
 negotiations, thwarted only by Union's failure and refusal to meet and
 negotiate.  Third, implementation of the paid parking program at HDL on
 November 1, 1979, was controlled, in any event, by OMB Circular A-118,
 the DOD Instruction and the DOD Directive, subject, at most, to
 negotiations as to a daily rate and method of payment and HDL continued
 negotiations with the Union after November 1, 1979, until negotiations
 were suspended by Union.
 
    Accordingly, I do not find that DA's delay is giving notice to HDL
 deprived the Union of a meaningful opportunity to bargain with HDL.
 
                                 Mootness
 
    Pursuant to the injunction of the Authority in Case No. O-NG-229,
 supra, I have considered "issues as to whether, in the circumstances of
 this case, the Agency would have an obligation to bargain on other
 matters concerning the general subject of paid parking".  I have serious
 reservations as to what issues, "apart from the particular paid parking
 program which is the subject of the proposals disputed in the instant
 appeal" remained for consideration.  As an alternative basis I further
 conclude, as the Authority concluded in the negotiability appeal in this
 case, that this proceeding was rendered moot by the discontinuance of
 the paid parking program at HDL.  This case, unlike DCASR and Boston
 District, supra, did not involve a refusal to bargain by HDL.  To the
 contrary, the parties did bargain both before and after November 1,
 1979, and, although I have found that, under the circumstances, DA's
 failure to give HDL notice of DOD's Instruction, which failure did
 severely restrict the Union's opportunity to bargain, did not deprive
 the Union of a meaningful opportunity to bargain with HDL.  Even if I
 were wrong in this conclusion, DA's failure to give a more timely notice
 to HDL was rendered moot by the discontinuance of the paid parking
 program at HDL.
 
    Having found no violation of Secs. 16(a)(1) or (5) of the Statute by
 Harry Diamond Laboratories, Department of Defense, or Department of the
 Army;  or, in the alternative, that if the Department of the Army
 violated Sec. 16(a)(1) of the Statute by its failure to give Harry
 Diamond Laboratories prompt and timely notice of Department of Defense's
 Instruction implementing, on September 18, 1979, OMB Circular A-118,
 such violation was, in any event rendered moot by the discontinuance of
 the paid parking program at Harry Diamond Laboratories, I recommend that
 the Authority issue the following,
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the Complaint in Case Nos. 3-CA-719,
 3-CA-889, and 3-CA-970 be, and it hereby is, dismissed.
 
                                       WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
    Dated:  May 18, 1981
    Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1) and (5) 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 an 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(.)
 
 
    /2/ See Department of Housing and Urban Development, 9 FLRA 136
 (1982).
 
 
    /3/ See Defense Logistics Agency (Cameron Station, Virginia), 12 FLRA
 No. 86 (1983), appeal docketed, No. 83-2017 (D.C. Cir. Sept. 26, 1983).
 
 
    /4/ The Judge found, and the Authority agrees, that the Union was not
 deprived by DOD or DOA of a meaningful opportunity to bargain with HDL.
 
 
    /5/ Compare Department of Health and Human Services, Social Security
 Administration, Region VI, and Department of Health and Human Services,
 Social Security Administration, Galveston, Texas District, 10 FLRA 26
 (1982);  Department of the Interior, Water and Power Resources Service,
 Grand Coulee Project, Grand Coulee, Washington, 9 FLRA 385 (1982).
 
 
    /6/ During the pendency of the instant case before the Authority, the
 United States District Court for the District of Columbia ruled that the
 paid parking plan, as embodied in OMB Circular A-118, was invalid, and
 ordered that the GSA regulation be set aside and its enforcement
 permanently enjoined.  American Federation of Government Employees,
 AFL-CIO, et al. v. Freeman, 510 F.Supp. 596 (D.D.C. 1981).  Thereafter
 GSA revised the regulation to suspend the collection of parking fees in
 accordance with the injunction.  (46 F.R. 40191 (1981)).  The District
 Court's decision was subsequently reversed.  American Federation of
 Government Employees, AFL-CIO, et al. v. Carmen, Civil Action No.
 81-1244 (D.C. Cir. Dec. 15, 1981).  However, President Reagan has stated
 that the collection of parking fees will not be reinstated.  Statement
 by the President on Parking Fees for Federal Employees, 17 Weekly Comp.
 of Pres. Doc. 1378 (Dec. 17, 1981).
 
 
    /7/ For convenience of reference, Sections of the Statute are, also,
 referred to hereinafter without inclusion of the initial "71", e.g.,
 Section 7116(a)(1) will be referred to as "16(a)(1)".
 
 
    /8/ Counsel for General Counsel filed a Motion to Correct Transcript,
 received on September 12, 1980, to which no opposition was filed and,
 finding the requested corrections wholly proper, the motion is granted
 and the transcript is hereby corrected as follows:
 
    Page Line Change As Corrected
 
    52 1 "10-24-79" "10-26-79"
 
    99 2 "November 1979" "November 1977"
 
    110 1 "General Counsel "General Counsel
                                       Exhibit 30" Exhibit 3"
 
 
    /9/ Obviously, the facts are interrelated, but as respects the
 obligation of each entity under the Statute, the facts pertinent to
 Department of Defense and Department of the Army are separately stated.
 
 
    /10/ I am aware that in the Boston District case, supra, the paid
 parking program was, apparently despite quite specific instructions to
 implement the program by November 1, 1979, deferred until December 1,
 1979.
 
 
    /11/ By inference, it is assumed that one item declared
 non-negotiable on October 31 was Mr. Kershaw's commercial lot in the
 vicinity rate proposal but the date of a telephone conversation given
 was October 25 (Tr. 190) not October 31.  As a practical matter, the
 Union's proposal that WG-3's and below be exempted and the commercial
 rate in the vicinity had been declared non-negotiable, inasmuch as Mr.
 Kershaw testified that management "indicated" that the monthly rate "was
 non-negotiable" (Tr. 58) and as to WG-3 and below exemption, "They
 rejected it . . . Because they had no authority as the regulations
 issued." (Tr. 55).  Accordingly, the only fully open Union proposals
 after October 26 were:  a) daily rate and b) method of payment, in
 particular, payroll deductions.
 
 
    /12/ The only reason for hesitation is that the Union had proposed
 payment by cash or money order, and such alternatives are wholly absent
 from HDL's Interim Parking Fee Policy implementation and the record does
 not show agreement that either cash or money orders would be accepted;
 nevertheless, it strains credulity to believe that cash would not be
 acceptable, e.g., "visitors who exceed the three hours free-parking
 limit will be required to exit at building 200 and to pay a $1.00 fee at
 that time."
 
 
    /13/ Pursuant to memorandum of August 3, 1979, to Chief of Engineers,
 Department of the Army Commander, Naval Facilities Engineering Command
 (G.C. Exh. 18);  appraisal for HDL was dated August 31, 1979 (G.C. Exh.
 19) (Estimated fair rental rate for outside parking $15.00 - rates in
 Wheaton, MD $16.00 less $1.00 = $15.00).
 
 
    /14/ I am aware that DCASR did not involve the American Federation of
 Government Employees;  but Boston District, supra, and Department of the
 Army, supra, did, and Judge Arrigo in each of those cases specifically
 found that AFGE did not represent the majority of employees in DOD or
 DOA.  The record here is fully in accord and I, also, find that AFGE did
 not represent a majority of employees in DOD or DA.
 
 
    /15/ DA's regulation, pursuant to Sec. 17(a)(2) and (3), issued by a
 primary national subdivision of DOD would not be subject to the duty to
 bargain unless the Authority had determined that no compelling need
 exists for the regulation;