15:0750(143)CA - Defense Contract Administration Services Region, Boston, MA and NAGE Local R1- 210; DOD, Washington, DC and NAGE Local R1-210; Defense Logistics Agency, Washington, DC and NAGE Local R1-210; Commander, Fort Devens, Fort Devens, MA and NAGE Local R1-210 -- 1984 FLRAdec CA



[ v15 p750 ]
15:0750(143)CA
The decision of the Authority follows:


 15 FLRA No. 143
 
 DEFENSE CONTRACT ADMINISTRATION SERVICES
 REGION, BOSTON, MASSACHUSETTS
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R1-210
 Charging Party
 
                                            Case No. 1-CA-212
 
 DEPARTMENT OF DEFENSE,
 WASHINGTON, D.C.
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R1-210
 Charging Party
 
                                            Case No. 1-CA-298
 
 DEFENSE LOGISTICS AGENCY,
 WASHINGTON, D.C.
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R1-210
 Charging Party
 
                                            Case No. 1-CA-299
 
 COMMANDER, FORT DEVENS,
 FORT DEVENS, MASSACHUSETTS
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R1-210
 CHarging Party
 
                                            Case No. 1-CA-300
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled consolidated proceeding, finding that the Respondents had
 engaged in certain unfair labor practices alleged in the complaint, and
 recommending that they cease and desist therefrom and take certain
 affirmative action.  Exceptions to the Judge's Decision were filed by
 the General Counsel, the Department of Defense (DOD), and the Defense
 Contract Administration Services Region, Boston, Massachusetts (DCASR
 Boston).  /1/
 
    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 recommended Order to the extent
 consistent herewith.
 
    The consolidated complaint alleged, inter alia, that Respondent DOD
 violated section 7116(a)(1) and (5) of the Statute by issuing an
 agency-wide regulation concerning the paid parking program, thereby
 interfering with the rights of the Charging Party, National Association
 of Government Employees, Local R1-210 (the Union), to bargain with
 respect thereto.  For the reasons set forth in Boston District
 Recruiting Command, Boston, Massachusetts, 15 FLRA No. 142 (1984), and
 cases cited therein, and noting that the Union does not hold exclusive
 recognition in a unit of employees at the level of DOD and therefore DOD
 had no statutory obligation to bargain with the Union prior to issuing
 its parking regulation, the Authority concludes that the complaint must
 be dismissed with respect to Respondent DOD.  The Authority further
 notes, in this connection, the absence of any showing that DOD prevented
 subordinate elements from fulfilling whatever bargaining obligations may
 have existed with the Union at the level of exclusive recognition.
 
    The complaint further alleged, and the Judge found, that Respondents
 DOD, Defense Logistics Agency (DLA), DCASR Boston and Fort Devens
 violated section 7116(a)(1) and (5) of the Statute by failing to bargain
 with the Union concerning the impact and implementation of the paid
 parking program at the South Boston Support Facility.  In reaching this
 result, the Judge found that the four named Respondents constituted an
 affiliated or joint enterprise with regard to the implementation of the
 paid parking program at the Activity.  The Authority disagrees.  Thus,
 as found by the Judge, the Union is the exclusive representative for a
 unit of DCASR Boston employees located at the South Boston Support
 Facility.  Fort Devens, the host Activity, is party to an agreement with
 DCASR Boston (one of the tenants) to provide parking spaces to DCASR
 employees at the Facility on a "pro-rata basis, as available," but has
 no collective bargaining relationship with the Union.  Similarly, no
 such bargaining relationship exists between the Union and either DLA or
 DOD.  Accordingly, the Authority concludes that the Judge improperly
 found DOD, DLA and Fort Devens to have violated a nonexistent duty to
 bargain with the Union concerning the impact and implementation of the
 paid parking program at the Facility.
 
    Rather, the Authority finds that the obligation to bargain over the
 impact and implementation of the paid parking program resided with DCASR
 Boston, the entity at the level of exclusive recognition involved
 herein.  It is well-established that 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, to the extent of its discretion, i.e., except as
 provided otherwise by Federal law or Government-wide rule or regulation
 or agency regulation for which a compelling need exists.  See Boston
 District Recruiting Command, supra, and Department of Housing and Urban
 Development, 9 FLRA 136 (1982).  Further, it is undisputed that the
 impact and implementation of the paid parking program falls within the
 duty to bargain.  /2/ In the instant case, the record indicates that
 following issuance by DCASR Boston of a bulletin to employees regarding
 aspects of the paid parking program, the Union requested bargaining over
 such matters as method of payment, exemptions from parking fees,
 allocation of spaces, etc.  In its response to the Union, DCASR Boston
 refused to negotiate on the basis that it lacked the authority to do so
 and noted instead that Fort Devens had been charged with the
 responsibility for implementing the paid parking program.  Subsequently,
 DCASR Boston forwarded the Union's bargaining request to Fort Devens
 which itself refused to bargain.  Fort Devens indicated that bargaining
 with the Union would be inappropriate inasmuch as the Union held
 exclusive recognition with a different organizational component.
 
    In the Authority's view, DCASR Boston was obligated to bargain with
 the Union to the extent of its discretion concerning the paid parking
 program prior to its implementation.  In this regard, the Statute
 requires the parties to provide representatives who are empowered to
 negotiate and enter into agreements on all matters within the scope of
 negotiations within the bargaining unit.  See Boston District Recruiting
 Command, supra, n.6.  While the record indicates that a meeting was held
 between DCASR Boston and the Union to discuss the program, this meeting
 occurred after the implementation of the program and was in response to
 the filing of the Union's unfair labor practice charge herein and, in
 the Authority's view, was not sufficient to fulfill DCASR Boston's
 bargaining obligation.  As the record indicates that DCASR Boston
 refused to bargain in good faith upon the Union's request prior to the
 implementation of the paid parking program, the Authority concludes that
 such conduct constituted a violation of section 7116(a)(1) and (5) of
 the Statute.  /3/
 
    With regard to an appropriate order to remedy the unfair labor
 practice found, however, the Authority concludes that, inasmuch as there
 is no regulation in effect at this time requiring the collection of
 parking fees, /4/ it is unnecessary to order that DCASR Boston negotiate
 regarding this matter at the present time.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, IT IS
 HEREBY ORDERED that Defense Contract Administration Services Region,
 Boston, Massachusetts, shall:
 
    1.  Cease and desist from:
 
    (a) Failing or refusing to bargain, upon request, with the National
 Association of Government Employees, Local R1-210, the exclusive
 bargaining representative of its employees located at the South Boston
 Support Facility, to the extent of its discretion, concerning the impact
 and implementation of any aspect of a paid parking program which may be
 established by the Government-wide rule or regulation.
 
    (b) In any like or related manner interfering with, restraining or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purpose and policies of the Statute:
 
    (a) Post at the South Boston Support Facility copies of the attached
 Notice on forms to be furnished by the Federal Labor Relations
 Authority.  Upon receipt of such forms they shall be signed by an
 authorized representative of Defense Contract Administration Services
 Region, Boston, Massachusetts, and shall be posted and maintained for 60
 consecutive days thereafter, in conspicuous places, including bulletin
 boards and 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 any other material.
 
    (b) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region I, 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 the unfair labor practice allegations
 against the other named Respondents contained in the consolidated
 complaint be, and they hereby are, dismissed.
 
    Issued, Washington, D.C., August 28, 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 give notice to and bargain, upon
 request, with the National Association of Government Employees, Local
 R1-210, the exclusive representative of our employees located at the
 South Boston Support Facility, to the extent of our discretion,
 concerning the impact and implementation of any aspect of a 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 our employees in the exercise of their 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 Regional
 Director, Region I, Federal Labor Relations Authority, whose address is:
  441 Stuart Street, 9th Floor, Boston, MA 02116, and whose telephone
 number is:  (617) 223-0920.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Samuel S. Horn, Esq.
    For Respondents Department of Defense
    and Defense Logistics Agency
 
    Robert B. Hearne, Esq.
    For Respondent Defense Contract
    Administration Services Region
 
    William S. Key, Captain
    For Respondent Fort Devens
 
    Richard Remmes, Esq.
    For the Charging Party
 
    James R. Collins, Esq. and Richard D. Zaiger, Esq.
    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 Service
 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 National Association
 of Government Employees, Local R1-201, (herein the Union) against
 Respondent Defense Contract Administration Services Region, Boston on
 December 4, 1979 and against Respondents Commander, Fort Devens, the
 Defense Logistics Agency, and the Department of Defense on March 19,
 1980, the General Counsel of the Authority, by the Regional Director for
 Region 1, issued an Order Consolidating Cases, Complaint and Notice of
 Hearing on March 31, 1980 alleging Respondents engaged in and are
 engaging in unfair labor practices within the meaning of sections
 7116(a)(1) and (%) of the Statute.  The complaint, as amended at the
 hearing, essentially alleges that Respondents together violated the
 Statute by failing to bargain over the impact and implementation of a
 paid parking program and Respondent Department of Defense violated the
 Statute by interfering with the Union's right to bargain with respect to
 the paid parking program.
 
    A hearing on the complaint was conducted on May 20 and 21, 1980 in
 Boston, Massachusetts, 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.  The parties joint
 request for an extension of time to August 8 to file briefs was granted
 and briefs filed by the parties have been duly 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
 
    Background
 
    The Department of Defense (DOD), an "Agency" within the meaning of
 section 7117 of the Statute, is comprised of numerous subordinate bodies
 including the Defense Logistics Agency (DLA) and the Department of the
 Army (DOA), the latter two organizations being "primary national
 subdivisions" of the DOD within the meaning of the Statute.  DLA and
 DOA, in turn, are also comprised of subordinate components, with DLA
 being the command agency of the Defense Contract Administration Services
 Region, Boston (DCASR) and DOA being the command agency of Fort Devens.
 
    The Secretary of Defense is the highest authority within DOD.
 Overall policy and coordinating responsibilities for labor-management
 relations rests with the Office of the Secretary of Defense (OSD), which
 is organizationally one level below the Secretary and Deputy Secretary
 of Defense.  While it is not OSD's normal procedure to direct
 subordinate elements in labor negotiations, OSD does take positions on
 behalf of the entire agency when issues of negotiability are brought
 before the Authority.  Accordingly, whenever an issue of importance to
 the agency arises, OSD attempts to develop a DOD policy on the matter
 and if a policy is adopted, subordinate components are obligated to
 adhere to that position.
 
    If problems arise with respect to a subordinate component's
 labor-management relations program, the component can and does seek
 assistance and guidance from OSD.  Regardless of whether a subordinate
 component requests assistance from OSD, if OSD perceives that the
 component has a labor-management problem, OSD can impose its policy and
 authority on that component.
 
    With regard to regulations issued by DOD, it is a common occurrance
 for subordinate components to seek advice from OSD when the component
 has a question as to the meaning or implementation of the regulation.
 
    The Union herein is the exclusive collective bargaining
 representative of General Schedule and Wage Board employees of DCASR
 employed at 666 Summer Street, Boston, Massachusetts, the location also
 known as the South Boston Support Facility (herein the South Boston
 Facility or the Facility).  The physical property which constitutes the
 South Boston Facility is under the managerial jurisdiction and control
 of Fort Devens.  Fort Devens, by agreement, provides space and various
 services to approximately 25 "tenants" at the Facility.  Fees are
 assessed for space and some services.  Other services are supplied on a
 nonreimbursable basis, the tenant agreeing it will comply with
 directives of Fort Devens.
 
    DCASR is a tenant of Fort Devens at the facility and, as such, is
 party to an agreement with Fort Devens for use of space and services.
 The agreement provides that parking spaces for privately owned vehicles
 of DCASR employees will be provided on a "prorata basis, as available",
 with parking permits to be issued by Army Security Police.  DCASR has
 approximately 925 civilian employees located at the facility and was
 allocated approximately 500 parking spaces.  DCASR is not obligated to
 reimburse Fort Devens for parking spaces but is obligated to "comply
 with host directives." Accordingly, DCASR employees were not charged a
 fee for parking.
 
    The Paid Parking Program
 
    By Circular No. A118, 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:
 
    " . . . 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
 advice 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) "issued 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.  With guidance from GSA, agencies were permitted to conduct
 their own appraisals to set parking rates.  However, rates developed in
 this fashion were to be submitted to GSA for review and approval.
 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".  The OPM Circular also provided
 that final agency regulations should be issued prior to November 1,
 1979.
 
    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, as in the cases herein the responsible agency
 would allocate employee parking in accordance with OMB Circular No.
 A-118.
 
    On October 11, 1979 DOD issued an "advance copy" of its interim paid
 parking regulation to subordinate command activities.  /8/ The DOD
 directive designated the specific parking fees which would be charged at
 various installations effective November 1, 1979.  The parking fee for
 the South Boston Facility was set at $10.00 a month.  /9/ 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 specific
 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.  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 directive.
 
    DOD's directive treated numerous subjects in a rather comprehensive
 manner thereby substantially limiting DOA's flexibility to independently
 fashion its own regulations 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;  the issuance of parking permits to individuals
 who use their privately owned vehicles for government business;  and
 developing a mechanism for determining abuse of parking space
 allocation.  Moreover, since DOA was directed to establish a paid
 parking program for its subordinates bodies, and since various matters
 were not governed by OMB, GSA or DOD directives, DOA was left a
 substantial range of possible avenues to utilize in implementing a paid
 parking program.
 
    On October 6, 1979 DCASR distributed to its employees at the Facility
 a bulletin to " . . . let (employees) know the current state of affairs
 on the parking costs." The bulletin outlined what DCASR considered to be
 "significant provisions" of OPM Circular A-118 and indicated that
 DCASR's "landlord" at the Facility was advised by DOA that employees at
 the Facility would be required to pay a parking fee of $10.00 a month
 beginning on November 1, 1979.  It was further announced in the bulletin
 that additional implementing instructions would be published when
 received.
 
    On October 19, 1979 DOA provided to its subordinate installation,
 including Fort Devens, advance copies of its own regulation implementing
 DOD's parking regulation of October 11.  DOA's regulation that the form
 of an interim change to DOA parking regulation AR 210-4.  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.  The directive
 changed existing DOA parking regulations and provided guidance to
 installation commanders on such matters as:  the personnel to be used to
 implement the program;  alternatives available to installation
 commanders for operation of the program (automated, contractor operated,
 or installation operated);  the sales 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 discretion in implementing the program at their
 local facilities and reminded installation commanders of the obligation
 under the Statute " . . . to negotiate with exclusively recognized labor
 organizations over the impact and implementation of the installation's
 parking plan."
 
    On November 7, DCASR issued another bulletin on employee parking
 announcing that the Commander of Fort Devens would institute a paid
 parking program at the Facility on December 1, 1979.  The bulletin
 indicated the parking fee would be $10.00 a month, payable in advance,
 and rebates would not be made to employees who did not use a parking
 space for the entire month.  It was noted that there presently was no
 fee collection provision in the program for the payment of parking fees
 on a daily or quarterly basis.  Among other things, the bulletin set out
 various exemptions from the program as well as some specific rules
 relative to reserved parking areas.  Applications for parking permits
 were to be forwarded to the Fort Devens Parking Program Coordinator "for
 review" and parking permits were to be issued upon payment of the
 parking fee.  The bulletin indicated that further information would be
 furnished to employees as it was received from Fort Devens.
 
    Union President Christopher Themistocles telephoned a representative
 of Fort Devens on November 7, 1980 and informed him that the Union took
 exception to the implementation of paid parking and wanted to "discuss"
 it.  /10/ Themistocles was told that there was nothing which could be
 done but that Fort Devens planned to seek a waiver of paid parking
 through higher authority.
 
    By letter dated November 9, 1979 from the Union to DCASR,
 Themistocles made a request that DCASR " . . . negotiate the impact and
 procedures as they relate to our employees and parking policy." The
 letter continued:
 
          "We would like to discuss and negotiate methods of payment,
       discipline, exemptions from parking fees, reserved free parking
       for NAGE R1-210 officials, allocation of parking spaces, POV for
       job duties and fees, availability of government vehicles (sic).
       We would also like to see the facts and figures used to determine
       the rate of parking fees.  Another item we wish to discuss is the
       effective date.  We would also like to discuss refunds, daily
       payment, damage to vehicle and liability, security etc."
 
    DCASR refused to negotiate with the Union on the matter.  DCASR's
 November 21, 1979 response to the Union stated:
 
          "This replies to your request dated 9 Nov 79 to negotiate 'the
       impact and procedures as they relate to our employee and parking
       policy.' The Commanding Officer, Fort Devens, is charged with the
       implementation of paid parking at 666 Summer Street for all
       federal tenants.  Lacking any authority in this regard, I am not
       in a position to negotiate with you regarding employee parking
       including the implementation thereof.
 
          "I understand that you met with Mr. Pleva and Mr. Cooper on 20
       Nov 79.  At that time, it was agreed that a daily parking rate was
       necessary and you were informed that one had already been
       requested.  You were also told that DCASR, Boston has not yet been
       provided detailed information as to how the parking program will
       be administered.
 
          "We will continue to consult with you and our other union as
       the parking situation develops.  In particular, I am asking Mr.
       Cooper to keep you completely up-to-date so that you can provide
       us with your views on any procedural flexibilities that develop.
       We must, of course, provide our other union with the same
       prerogatives.
 
          "In addition, we will forward any representations you care to
       make to Fort Devens.  In this regard, we have taken the liberty to
       forward a copy of your letter of 9 Nov 1979 (see enclosure).
 
          "As the exclusive representative of most of our employees here
       at Region and DCASMA Headquarters, and in consideration of the
       highly controversial nature of the paid parking requirement, I
       assure you that your views on this matter are indispensable.
       Should any impact or procedural areas develop appropriate to
       negotiations with your Local and the other Local having exclusive
       recognition at 666 Summer Street, I trust we will be able to work
       out some practical method of joint decision-making."
 
    Respondent DCASR forwarded the Union's demand to negotiate to Fort
 Devens on November 21.  DCASR's cover letter to Fort Devens stated:
 
          "Forwarded for your information is a request we received from
       NAGE Local R1-210 and our reply to this request.  This Local holds
       exclusive recognition for a unit consisting of approximately 800
       800 DCASR non-professional employees located at 666 Summer St.  We
       also have a professional unit at this facility represented by AFGE
       Local 1906.  It may be to the best interest of DOD if your
       representative met on a regular basis with these unions and others
       holding recognition at this facility to hear their views on
       parking matters perhaps as part of a tenant council.  I will be
       glad to discuss this suggestion with your designee if you find it
       has merit."
 
    On November 27, 1979, Fort Devens began selling monthly parking
 permits at the rate of $10.00 per month.  On November 28, Themistocles
 met with Captain Andrews, the Fort Devens' representative coordinating
 the parking program, and raised the question of daily parking permits
 for employees who traveled frequently.  Captain Andrews indicated there
 was nothing she could do at that time to change the program but would
 let Themistocles know during the following week if anything could be
 done about the problem.
 
    By letter to the Commander of DCASR dated November 30, 1979, Fort
 Devens responded to DCASR's referral to it of the Union's demand to
 bargain of November 9, above.  Fort Devens refused to negotiate with the
 Union on the paid parking issue, stating:
 
          "We believe it would be inappropriate for officials of Fort
       Devens to negotiate the subject issue with AFGE Local R1-210 or
       with any other bargaining unit at 666 Summer Street, unless that
       bargaining unit has exclusive recognition with a Department of
       Army organization.  Rather, we feel that any communication on the
       issue on our part should be with your Command management.
       Accordingly, we will be available to discuss pertinent questions
       with you or your representative, including questions which may
       have been surfaced by NAGE Local R1-210, assuming that those
       issues have not been addressed on OMB Circular A-115 and/or
       implementing DOD direction.  But we will decline any efforts by
       NAGE Local R1-210 to meet and bargain with this HQ.  We believe
       that any dialogue with that unit is proper only if done by your
       HQ."
 
    On Monday December 3, 1979 Fort Devens began requiring all employees
 to either display a monthly parking permit or to purchase a daily pass
 in order to park at the Facility.  Daily parking coupons were sold at
 the rate of 50 cents a day.
 
    Representatives of DCASR and the Union met on December 13, 1979.  The
 meeting was arranged by DCASR in response to the Union's unfair labor
 practice charge filed against DCASR on December 4, 1979 which alleged,
 inter alia, " . . . that the action of DCASR Boston was a refusal to
 negotiate on the impact and procedures of the new (parking) policy . . .
 " During the meeting DCASR Labor Relations Officer Edwin Newdick stated
 that management was prepared to negotiate on the paid parking program.
 /11/ The Union representative responded that they were willing to meet
 and discuss these matters but contended that management's claim that the
 meeting was for negotiations was a "pretense" and suggested that
 management was not really ready to negotiate.  Newdick disagreed and
 asked for proposals relative to parking.  Themistocles responded with a
 request that free parking be provided all employees.  /12/ Management
 agreed that the proposal had merit, but indicated that Regional
 management did not know how to accomplish it.  The Union then suggested
 that government funds or any funds available be used to pay employees'
 parking fees.  Management answered that they had no funds for this
 purpose nor knew of any way they could obtain them.  The Union indicated
 that management's response demonstrated that management was not
 negotiating.  Management replied that negotiations do not mean automatic
 execution of any union proposal but meant "joint decisions on practical
 alternatives." The Union concluded by pointing out that unfair labor
 practice charges had already been filed with the Federal Labor Relations
 Authority, and that they would continue to press them.  Management
 replied this was "OK," but stated they wanted to make sure that no bad
 labor-management relations were continuing.  The Union stated that they
 were not satisfied that the best possible case had been made for the
 exemption of the South Boston Facility from the paid parking
 requirement.  Management concurred and the parties agreed to join in an
 effort to help Fort Devens appeal the designation of the installation as
 a paid parking facility.  /13/
 
    In March 1980 the Union, with DCASR assistance, filed a request with
 DLA for an exemption from paid parking obligations.
 
    Issues
 
    The complaint, as amended at the hearing, alleges that since on or
 about November 21, 1979 Respondents have individually and/or
 collectively failed to bargain in good faith with the Union regarding
 the impact and implementation of the paid parking program at the South
 Boston Facility and Respondent DOD, through the issuance of its October
 11, 1979 regulation, interfered with the Union's right to bargain on the
 paid parking program.  Counsel for the General Counsel concedes that OMB
 Circular No. A-118 and GSA regulation FPMR Temp. Reg. D-51 are
 Government-wide regulations within the meaning of Section 7117(a)(1) of
 the Statute and accordingly, no duty to bargain attaches with regard to
 these regulations.  However, Counsel for the General Counsel contends
 that Respondents were obliged to bargain with the Union to the extent
 that DOD and its components had discretion under the Government-wide
 regulations regarding the manner in which the paid parking program was
 implemented at the South Boston Facility.  Counsel for the General
 Counsel further maintains that even though the Union's representational
 status extends only to DCASR employees at the Facility, DOD and its
 subordinate bodies, Respondents DLA, Fort Devens, and DCASR, constitute
 a unitary organization under the circumstances herein and accordingly,
 should be treated as a single entity for the purpose of attaching
 responsibility for unfair labor practice conduct under the Statute.
 
    Respondents argue that:  the DOD regulation of October 11, 1979 is an
 agency regulation within the meaning of section 7117(a)(2) and (3) of
 the Statute and the DOA regulation of October 19, 1979 is a regulation
 of a primary national subdivision of an agency within the meaning of
 section 7117(a)(2) and (3) of the Statute and no duty to bargain exists
 with regard to the terms of those regulations absent a determination by
 the Authority of no compelling need for the regulations;  /14/ neither
 Respondents DOD, DLA nor Fort Devens has any obligation to bargain with
 the Union regarding the paid parking program since the Union's
 representational status extends only to DCASR;  as a lessee, DCASR had
 no authority to bargain with the Union on the paid parking program since
 DCASR has no control over parking at the Facility, control residing with
 the lessor, Fort Devens;  and, in any event, the Union's November 9,
 1979 demand that DCASR negotiate included some items which were
 preempted from bargaining by the terms of the OMB and GSA
 Government-wide regulations, namely exemptions from parking fees,
 reserved free parking for Union officials, the rate of parking fees and
 the effective date.  Respondent Fort Devens also contends that no demand
 to bargain was ever made to Fort Devens and accordingly, no refusal to
 bargain can lie with regard to that Respondent.
 
                        Discussion and Conclusions
 
    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.  /15/ 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.  /16/ 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 effect.
 /17/
 
    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 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 with the Union
 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 judgment 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
 with the Union to whatever extent management had discretion under
 applicable Government-wide and agency regulations in the implementation
 of the paid parking at the Facility.
 
    The Union, on November 9, 1979, made a request that the management of
 DCASR negotiate on "impact and procedures as they relate to our employee
 and parking policy." I construe this to be a demand that management
 bargain with the Union to the extent the Statute required negotiation
 even though some of the specific demands in the letter may have been
 non-negotiable under the circumstances.  DCASR by its letter of November
 21, refused to negotiate with the Union on parking policy "including the
 implementation thereof," taking the position that Fort Devens, as the
 landlord at the Facility, was the party responsible for implementation
 of the program.  Later, after DCASR took it upon itself to forward the
 Union's request to Fort Devens, Fort Devens also refused to bargain with
 the Union when it notified DCASR, by letter dated November 30, 1979,
 that it would be "inappropriate" for Fort Devens to negotiate unless the
 Union was the representative of a DOA organization.
 
    Fort Devens' response to DCASR's referral of the Union's demand to
 bargain discloses that it interpreted the referral as a request that
 they bargain with the Union about the implementation of the parking
 program at the Facility.  Indeed, subsequent action by Captain Andrews,
 Fort Devens' representative coordinating the implementation of the new
 parking program, further demonstrated Fort Devens' disinclination to
 bargain with the Union.  Thus, on November 27, 1979, when Themistocles
 raised the question of daily parking with Captain Andrews, he was
 informed that there was nothing she could do at that time.
 
    I conclude, therefore, that Fort Devens was aware of the Union's
 desire to bargain on the matter and it concluded that, because no
 bargaining relationship existed between Fort Devens and the Union, it
 would not negotiate with the Union on the matter.  In these
 circumstances it is obvious that any further demand to Fort Devens to
 negotiate implementation of the parking program at the Facility would
 have been a futile act, and the law does not require futile gestures.
 Clearly, both DCASR or Fort Devens declined to bargain with the Union on
 any aspect of the matter although both tenant and landlord knew of the
 Union's desire to negotiate on the implementation of the parking program
 at the Facility.
 
    The focal point in the failure to bargain alleged herein is whether,
 in the circumstances of this case, any of the named Respondents had an
 obligation to bargain with the Union over whatever aspects of the paid
 parking program may have been negotiable under the Statute.  The Union
 is the exclusive representative of DCASR's employees.  However, DCASR
 does not control parking at the Facility, control residing with Fort
 Devens.  Fort Devens, on the other hand, has no bargaining relationship
 with the Union since the Union is not the exclusive representative of
 any of its employees.  Therefore, according to Respondents, since DCASR
 had no right to negotiate with the Union and Fort Devens had no
 obligation to bargain with the Union, no unfair labor practice can be
 established with regard to the implementation of the paid parking
 program at the Facility.
 
    In the peculiar circumstances herein I conclude that DOD, DLA, DCASR,
 and Fort Devens together constitute an affiliated or joint enterprise
 with regard to the implementation of the paid parking program at the
 South Boston Facility.  Organizationally there is a commonality which
 binds together all these components of DOD.  While Fort Devens, and
 DCASR have separate chains of command to DOD, DCASR through DLA and Fort
 Devens through DOA, all components are ultimately responsible to and are
 subordinate of DOD which, through OSD, has overall policy and
 coordinating responsibility for labor-management relations for all
 components within DOD.  In this regard it is DOD which decides the
 policy to be adopted when negotiability matters under the Statute are at
 issue and represents component organizations in the presentation of such
 cases before the Authority.  Further, DOD is available to subordinate
 components for assistance and guidance and, if DOD deems it appropriate,
 can impose its policies on any subordinate entity.
 
    In the case herein not only did DOD have an integral relationship
 with the organizations and employees involved in the paid parking
 program but DOD played an essential role in the chain of events which
 resulted in the implementation of the program.  Thus, DOD's implementing
 regulation was transmitted through DOA's regulation to Fort Devens for
 implementation at the Facility and impacted on DCASR's employees who
 were also under the umbrella of ultimate control of DOD.  True, neither
 DCASR nor DLA had an independent right to bargain with the Union on the
 matter and Fort Devens had no independent obligation to bargain on the
 matter.  Nevertheless, DOD, as the parent organization of all these
 subordinate activities and a moving party through the issuance of its
 parking regulations, was inextricably involved in the situation.
 Moreover, only DOD, by virtue of its organizational position with
 overall policy and coordinating responsibility for labor-management
 relations for all components within DOD had the authority to resolve the
 predicament in which it was enmeshed with subordinate components and the
 Union by imposing its presence in the matter.  DOD however failed to act
 and the Union was deprived of a statutory right.
 
    Therefore, for the reasons set forth above and in the circumstances
 of this case, I conclude that Respondents DOD, DLA, DCASR and Fort
 Devens violated sections 7116(a)(1) and (5) of the Statute by the
 failure to negotiate with the Union with regard to the impact and
 implementation of the paid parking program at the Facility, as alleged.
 /18/
 
    Counsel for Respondents DOD and DLA argues that some of the matters
 about which the Union sought to negotiate by its demand of November 9,
 1979, such as exemption from parking fees, reserved free parking for
 Union officials, the rate of parking fees, and the effective date, were
 issues fully covered by the OMB, GSA and DOD regulations and therefore,
 were preempted from negotiation.  With regard to this contention
 Respondents at no time prior to implementation of this parking program
 presented the Union with an opportunity to perfect its demand to bargain
 whereby the Union could explicate specifics regarding these matters.
 While Respondents may not have been obligated to negotiate on matters
 clearly and fully treated in government-wide or agency regulations, this
 would not justify refusing to meet with the Union.  Such an occasion
 might have resulted in the Union presenting specific proposals which
 were not precluded from negotiation by OMB, GSA or DOD regulations.  On
 the other hand, if after affording the Union with such an opportunity
 Respondents still were of the opinion that the demands were not
 negotiable due to the operation of higher regulations, the Union could
 then have sought a negotiability determination from the Authority and
 litigated the subject of compelling need.  However, no such opportunity
 was provided the Union since, prior to implementation, Respondents DCASR
 and Fort Devens maintained neither were obligated to meet with the Union
 to negotiate in any manner on the subjects of "impact and procedures" as
 they related to unit employees.
 
    Moreover, there is no contention that all of the subjects the Union
 desired to negotiate on were non-discretionary at the level of
 implementation and thereby outside the scope of bargaining.  Indeed, the
 DOA regulation of October 19, 1979 assumes the existence of some
 discretionary, bargainable aspects of the parking program in that the
 DOA regulation instructed installation or activity commanders " . . . to
 negotiate with exclusively recognized labor organizations over the
 impact and implementation of the installation's parking plan."
 Accordingly, when the Union was denied the opportunity to meet with a
 representative of management who could negotiate those aspects of the
 parking program which were statutorily bargainable, the Union was
 completely frustrated and precluded from submitting any specific
 bargainable proposals.
 
    Accordingly, in the circumstances of this case, I conclude that
 Respondents, by failing to provide the Union with an opportunity to
 bargain prior to implementation of the parking program at the South
 Boston Facility, deprived the Union of its right to bargain on those
 decisions relating to substantive provisions of the parking program over
 which management at the level of recognition had discretion and, with
 regard to those provisions over which management at the level of
 recognition had no discretion but to implement, on the procedures which
 management would observe in putting the program into effect and on
 appropriate arrangements for employees adversely affected by the new
 program.
 
    I further conclude that the colloquy which occurred between the Union
 and DCASR on December 13, 1979, after the implementation of the paid
 parking program, did not remedy the prior failure to negotiate.  Prior
 to implementation of the parking program at the Facility DCASR
 unmistakably refused to negotiate with the Union, claiming lack of
 authority.  Subsequent to implementation DCASR informed the union that
 it was now prepared to negotiate, with apparently no explanation being
 given as to how it achieved this new found authority.  In this context
 the Union's view that DCASR's offer to negotiate was merely a pretense
 is understandable and reasonable.  In any event, I conclude that the
 belated offer to negotiate after implementation, did not serve to remedy
 the refusal and failure to negotiate prior to implementation.  /19/
 
    Having found and concluded that by the failure and refusal to
 negotiate with the Union with regard to the implementation of the paid
 parking program at the South Boston Facility Respondents have violated
 sections 7116(a)(1) and (5) of the Statute, /20/ recommend the Authority
 issued the following:
 
                                   Order
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's regulations and section 7118 of the Federal Service
 Labor-Management Relations Statute, it is hereby ordered that the
 Department of Defense, Defense Logistics Agency, Defense Contract
 Administration Services Region, Boston, Massachusetts, and the
 Commander, Fort Devens, shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to negotiate with the National Association
 of Government Employees, Local R1=210, the exclusive representative of
 Defense Contract Administration Services Region's employees at the South
 Boston Support Facility, with regard to the implementation of the paid
 parking program to the extent consonant with Government-wide and agency
 regulations.
 
    (b) Instituting changes with regard to the employee paid parking
 program without notifying the National Association of Government
 Employees, Local R1-210, the exclusive representative of Defense
 Contract Administration Services Region's employees at the South Boston
 Support Facility, and affording it a reasonable opportunity to negotiate
 on matters related to the implementation of the paid parking program to
 the extent consonant with Government-wide and agency regulations.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing employees in the exercise of rights assured by the Federal
 Labor-Management Relations Statute.
 
    2.  Take the following affirmative action:
 
    (a) Upon request, meet and negotiate with National Association of
 Government Employees, Local R1-210, the exclusive representative of
 Defense Contract Administration Services Region's employees concerning
 matters relating to the implementation of the paid parking program at
 the South Boston Support Facility to the extent consonant with
 Government-wide and agency regulations.
 
    (b) Post, at the South Boston Support Facility, copies of the
 attached Notice marked "Appendix" on forms to be furnished by the
 Federal Labor Relations Authority.  Upon receipt of such forms they
 shall be signed by the Director of the Office of the Secretary of
 Defense, and shall be posted and maintained by him for 60 consecutive
 days thereafter, in conspicuous places, including bulletin boards and
 other places where Notices are customarily posted.  The Director shall
 take reasonable steps to insure that such Notices are not altered,
 defaced or covered by any other material.
 
    (c) Notify the Federal Labor Relations Authority, in writing, within
 30 days from the date of this order as to what steps have been taken to
 comply herewith.
 
                                       SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
    Dated:  December 22, 1980
    Washington, D.C.
 
                                 APPENDIX
 
                          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 negotiate with National Association of
 Government Employees, Local R1-210, the exclusive bargaining
 representative of Defense Contract Administration Services Region's
 employees, with regard to the implementation of the paid parking program
 at the South Boston Support Facility to the extent consonant with
 Government-wide and agency regulations.
 
    WE WILL NOT institute changes with regard to the paid employee
 parking program at the South Boston Support Facility without notifying
 the National Association of Government Employees, Local R1-210, the
 exclusive representative of Defense Contract Administration Services
 Region's employees, and affording it a reasonable opportunity to bargain
 on matters relating to the implementation of the program to the extent
 consonant with Government-wide and agency regulations.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce employees in the exercise of their rights assured by the Statute.
 
    WE WILL, upon request, meet and negotiate with National Association
 of Government Employees, Local R1-210, the exclusive representative of
 Defense Contract Administration Services Region's employees, concerning
 matters relating to the implementation of the paid parking program at
 the South Boston Support Facility to the extent consonant with
 Government-wide and agency regulations.
                                       (Agency or Activity)
                                       By:  (Signature)
 
    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 any of its provisions, they may communicate directly with the
 Regional Director, Federal Labor Relations Authority, Region I, whose
 address is:  441 Stuart Street, 9th Floor, Boston, Massachusetts 02116.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Office of Personnel Management was granted permission to
 participate in this proceeding as amicus curiae pursuant to section
 2429.9 of the Authority's Rules and Regulations but did not file any
 submissions with the Authority.
 
 
    /2/ The Authority has so concluded.  See, e.g., General Services
 Administration, Region 8, Denver, Colorado, 10 FLRA 257 (1982);
 Veterans Administration Central Office, Veterans Administration Medical
 Center, Long Beach, 9 FLRA 325 (1982);  and Department of Housing and
 Urban Development, supra.
 
 
    /3/ See Internal Revenue Service (District, Region and National
 Office Unit and Service Center Unit), 10 FLRA 326 (1982).  See also U.S.
 Customs Service, Region V, New Orleans, Louisiana, 9 FLRA 116 (1982).
 
 
    /4/ During the pendency of the instant case before the Authority, the
 United States District Court for the District of Columbia rules 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, 669 F.2d 815 (D.C. Cir.
 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. 1161
 (Dec. 17, 1981).
 
 
    /5/ In its submission, counsel for Respondent Commander, Fort Devens
 moved that the complaint against Commander, Fort Devens be dismissed.
 For reasons which shall be explicated hereinafter, the motion is denied.
 
 
    /6/ 44 Fed.Reg.No. 161, at 48648-48641 (August 17, 1979).
 
 
    /7/ 44 Fed.Reg.No. 179, at 53161-53163 (September 13, 1979).
 
 
    /8/ DOD issued its final parking regulation on December 7, 1979
 which, in large measure, was identical to the earlier interim
 regulation.
 
 
    /9/ A draft of the OMB Circular, dated April 6, 1979, which was
 circulated to various Government agencies for comment, indicated that
 GSA would establish the parking fee to be assessed at all Government
 installations.  Subsequent to the circulation of this draft, DOD
 "negotiated" with OMB and GSA on the matter and received permission to
 do the appraising at its military installations.  The permission was
 conditioned on the use of professional appraisers of the U.S. Corps of
 Engineers and the Naval Facilities Engineering Command;  that the
 appraisals be performed using commonly accepted appraisal standards;
 that the GSA appraisal form be used;  and that GSA would have final
 authority on the appraisal.  DOD's appraisal and a determination of a
 parking rate at the South Boston Facility was completed on August 24,
 1979.
 
 
    /10/ Themistocles, whose testimony on this conversation was
 fragmentary at best, acknowledge under cross-examination that he never
 made a demand on Fort Devens to "negotiate" with the Union on this
 matter.
 
 
    /11/ This account is taken largely from management's minutes of the
 meeting which were received in evidence without objection.
 
 
    /12/ According to the unchallenged testimony of Newdick, the Union
 was convinced that management was conducting "sham" negotiations and the
 Union's proposal for "free parking" was made in a "jocular fashion."
 
 
    /13/ DCASR and the Union had previously agreed in November to jointly
 seek exclusion from paid parking status for the Facility.
 
 
    /14/ The Union has not sought nor has the Authority been presented
 with a request for a compelling need determination regarding the
 regulations under consideration herein.
 
 
    /15/ Section 7117(a)(1) provides, in relevant part:  " . . . the duty
 to bargain in good faith shall . . . extend to matters which are the
 subject to any rule or regulation only if the rule or regulation is not
 a Government-wide rule or regulation."
 
 
    /16/ Sections 7117(a)(2) and (3) of the Statute provide:
 
          "(2) The duty to bargain in good faith shall, to the extent not
       inconsistent with Federal law or any Government-wide rule or
       regulation, extend to matters which are the subject of any agency
       rule or regulation referred to in paragraph (3) of this subsection
       only if the Authority has determined under subsection (b) of this
       section that no compelling need (as determined under regulations
       prescribed by the Authority) exists for the rule or regulation."
 
          "(3) Paragraph (2) of the subsection applies to any rule or
       regulation issued by any agency or issued by any primary national
       subdivision of such agency, unless an exclusive representative
       represents an appropriate unit including not less than a majority
       of the employees in the issuing agency or primary national
       subdivision, as the case may be, to whom the rule or regulation is
       applicable."
 
 
    /17/ Section 7117(b) sets forth the process and standards for
 Authority determination of no compelling need.  Procedures and criteria
 for determining compelling need are found in Authority regulations,
 sections 2424.1 and 2424.11.
 
 
    /18/ Cf. Internal Revenue Service, Washington, D.C., and Internal
 Revenue Service, Hartford District Office, 4 FLRA No. 37 (1980).
 
 
    /19/ Department of the Air Force, 47th Flying Training Wing, Laughlin
 Air Force Base, Texas, 2 FLRA No. 24 (1979).
 
 
    /20/ I am aware of the decision of the U.S. District Court for the
 District of Columbia in American Federation of Government Employees,
 AFL-CIO, et al. v. R. G. Freeman, III, U.S.D.C. No. 79-2955, decided
 September 2