Department of Transportation, Federal Aviation Administration, Pacific/Asia Region (Respondent) and Professional Air Traffic Controllers Organization, Pacific Region, M.E.B.A., AFL-CIO (Complainant)
[ v02 p201 ]
02:0201(23)CA
The decision of the Authority follows:
2 FLRA No. 23
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
PACIFIC/ASIA REGION
Respondent
and
PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION,
PACIFIC REGION, M.E.B.A., AFL-CIO
Complainant
Assistant Secretary
Case No. 73-1075(CA)
DECISION AND ORDER
ON JUNE 5, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. THEREAFTER, THE COMPLAINANT FILED
EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741, JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, INCLUDING THE COMPLAINANT'S EXCEPTIONS, THE AUTHORITY HEREBY
ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATION. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 73-1075(CA) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., DECEMBER 5, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
MR. CHARLES R. CAMPBELL
REGIONAL VICE PRESIDENT
PATCO/PACIFIC
SUITE 607
745 FORT STREET
HONOLULU, HAWAII 96813
FOR THE COMPLAINANT
MR. BERNARD B. THIMAN
OFFICE OF LABOR RELATIONS
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
800 INDEPENDENCE AVENUE, SW.
WASHINGTON, D.C. 20591
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREINAFTER ALSO REFERRED TO AS THE "ORDER"). ALTHOUGH THE NOTICE OF
HEARING WAS ISSUED BY A REGIONAL ADMINISTRATOR OF THE LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, ALL
PROCEEDINGS AFTER JANUARY 1, 1979, HAVE BEEN CONDUCTED BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY AND THIS DECISION IS ISSUED IN THE
NAME OF THE AUTHORITY PURSUANT TO TRANSITION RULES AND REGULATIONS,
FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979 (5 C.F.R. SECTION
2400.2).
COMPLAINANT, PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION
(HEREINAFTER ALSO REFERRED TO AS "COMPLAINANT") FILED A CHARGE ON, OR
ABOUT, AUGUST 30, 1978, AND A COMPLAINT ON OCTOBER 10, 1978 (ASST. SEC.
EXH. 1(A)) ALLEGING VIOLATION OF SECTIONS 19(A)(1), (2) AND (6) OF THE
ORDER. BY LETTER DATED NOVEMBER 27, 1978, COMPLAINANT WITHDREW ITS
19(A)(2) ALLEGATION AND THE WITHDRAWAL REQUEST, AS TO THE 19(A)(2)
ALLEGATION ONLY, WAS APPROVED BY THE AREA ADMINISTRATOR ON NOVEMBER 28,
1978 (ASST. SEC. EXH. 1(B)). A NOTICE OF HEARING ON THE 19(A)(1) AND
(6) ALLEGATIONS OF THE COMPLAINT ISSUED ON DECEMBER 12, 1978, FOR A
HEARING ON FEBRUARY 22, 1979 (ASST. SEC. EXHIBIT 1(C)) AND ON FEBRUARY
7, 1979, A NOTICE RESCHEDULING HEARING WAS ISSUED RESCHEDULING THE
HEARING FOR MARCH 20, 1979 (ASST. SEC. EXH. 1(E)), PURSUANT TO WHICH A
HEARING WAS DULY HELD BEFORE THE UNDERSIGNED ON MARCH 20, 1979, IN
HONOLULU, HAWAII.
EACH PARTY WAS REPRESENTED, WAS AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN. AT THE CLOSE OF THE HEARING,
APRIL 20, 1979, WAS FIXED AS THE DATE FOR MAILING BRIEFS AND EACH PARTY
HAS TIMELY FILED A BRIEF WHICH HAVE BEEN CAREFULLY CONSIDERED. UPON THE
BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATION.
FINDINGS AND CONCLUSIONS
THIS CASE CONCERNS PARKING FOR FAA EMPLOYEES REPRESENTED BY
COMPLAINANT AND EMPLOYED AT THE HONOLULU INTERNATIONAL AIRPORT. PARKING
FACILITIES AT THE HONOLULU INTERNATIONAL AIRPORT ARE UNDER THE EXCLUSIVE
CONTROL OF THE STATE OF HAWAII'S DEPARTMENT OF TRANSPORTATION
(HEREINAFTER ALSO REFERRED TO AS THE "STATE" OR "AIRPORT MANAGEMENT").
PRIOR TO FEBRUARY, 1978, THESE EMPLOYEES HAD THE OPTION OF: A) PARKING
ON AN OPEN LOT, DESIGNATED "EMPLOYEE PARKING B" ON DIAGRAM, ATTACHED TO
RES. EXH. 8, WITHOUT COST; OR B) PARKING IN A PARKING GARAGE ("D" ON
DIAGRAM) OR IN AREAS "C" AND "E" (ON DIAGRAM) FOR A MONTHLY CHARGE OF
$10.00 PER MONTH (SUBSEQUENTLY INCREASED TO $12.50 PER MONTH). ABOUT
FEBRUARY 17, 1978, BECAUSE OF CONSTRUCTION, THE STATE RELOCATED THE FREE
EMPLOYEE PARKING ("EMPLOYEE PARKING B") TO "RELOCATED B" ON THE DIAGRAM.
ACCORDINGLY, AFTER ABOUT FEBRUARY 17, 1978, THE EMPLOYEES REPRESENTED
BY COMPLAINANT STILL HAD THE OPTION OF: A) PARKING IN AN OPEN LOT,
DESIGNATED "RELOCATED B", WITHOUT COST; OR B) PARKING IN THE PARKING
GARAGE ("D) OR IN AREAS "C" OR "E" FOR A MONTHLY CHARGE OF $10.00 PER
MONTH, SUBSEQUENTLY INCREASED TO $12.50 PER MONTH; HOWEVER, "RELOCATED
B" WAS ABOUT THREE TIMES AS FAR FROM THE TERMINAL BUILDING AS "EMPLOYEE
PARKING B" HAD BEEN (2,550 FEET AS COMPARED TO 850 FEET).
PARKING IS COVERED BY FAA ORDER 4665.3A, ENTITLED "POLICY ON PARKING
ACCOMMODATIONS AT FAA OCCUPIED BUILDINGS AND FACILITIES" (SEPTEMBER 14,
1971) AND BY ARTICLE 47 OF THE PARTIES' AGREEMENT (COMP. EXH. 2).
BECAUSE IT CONSIDERED THAT PARKING ACCOMMODATIONS AFTER RELOCATION OF
THE FREE PARKING TO "RELOCATED B", WERE NOT IN COMPLIANCE WITH FAA ORDER
4665.3A AND WITH ARTICLE 47 OF ITS AGREEMENT, HAD DENIED THE GRIEVANCE
AND THE MATTER WAS SCHEDULED FOR ARBITRATION, PURSUANT TO ARTICLE 7 OF
THE AGREEMENT, ON AUGUST 7, 1978.
ON AUGUST 2, 1978, MR. STEWART L. HINDS, LABOR MANAGEMENT RELATIONS
OFFICER FOR RESPONDENT, DISCUSSED CANCELLATION OF THE ARBITRATION
HEARING WITH MR. CHARLES R. CAMPBELL, REGIONAL VICE PRESIDENT OF
COMPLAINANT. BECAUSE OF CRITICAL, PERHAPS TERMINAL, ILLNESS, MR. HINDS
CONFIRMED HIS DISCUSSION WITH MR. CAMPBELL BY A LETTER TO MR. CAMPBELL
DATED AUGUST 4, 1978, WHICH, IN FULL TEXT, READS AS FOLLOWS:
"AUGUST 4, 1978
"MR. CHARLES R. CAMPBELL
(ADDRESS OMITTED)
"DEAR CHARLIE:
"AS WE DISCUSSED YESTERDAY, THE ARBITRATION HEARING FOR GRIEVANCE
#APC-78-8-HNL-2 IS
CANCELLED. WE WILL ALSO SHARE WITH YOU ANY COSTS THE ARBITRATOR
CHARGES BECAUSE OF THE LATE
DATE OF CANCELLATION.
"IT IS OUR UNDERSTANDING THAT THE GRIEVANCE HAS BEEN SATISFIED ON THE
OFFER BY THE AIRPORT
MANAGEMENT TO PERMIT FAA EMPLOYEES TO PARK IN THE PARKING LOTS BEHIND
AND TO THE EAST OF THE
APOCA PARKING GARAGE. THE COST FOR THIS WILL BE $2.00 PER MONTH PER
CAR.
"WE AGREE THAT NO CHANGES IN PARKING ARRANGEMENTS SHOULD BE MADE
WITHOUT CONSULTATION WITH
THE UNION.
"SINCERELY,
"STEWART L. HINDS LRM OFFICER" (COMP. EXH. 1)
MR. CAMPBELL STATED, WITH REFERENCE TO COMPLAINANT'S EXHIBIT 1,
"THAT'S THE ONLY AGREEMENT THAT WE HAVE WITH THE FAA, YES, SIR, THAT
LETTER SAYING THAT WE
WOULD HAVE PARKING FOR $2.00 A MONTH."
* * * *
"I HAVE NOTHING OTHER THAN THIS LETTER. THAT'S ALL I HAVE." (TR.
84).
ON, OR ABOUT, AUGUST 22, 1978, THE STATE INFORMED RESPONDENT THAT IT
COULD NOT HONOR ITS OFFER, TO PERMIT FAA EMPLOYEE TO PARK IN THE LOTS
DESIGNATED BY MR. HINDS IN HIS LETTER OF AUGUST 4, 1978, FOR $2.00 PER
MONTH AND RESPONDENT ADVISED MR. CAMPBELL ON THE SAME DATE THAT IT
APPEARED THAT THE PARKING PROBLEM WHICH THEY THOUGHT HAD BEEN SOLVED
MIGHT HAVE TO BE RESCHEDULED FOR ARBITRATION BECAUSE THE STATE HAD
RENEGED ON ITS AGREEMENT; BUT THAT RESPONDENT WOULD MEET FURTHER WITH
THE STATE; RESPONDENT ADVISED MR. CAMPBELL ON AUGUST 25, 1978, THAT THE
STATE WOULD NO LONGER HONOR THE AGREEMENT AND AGAIN SUGGESTED THAT THE
GRIEVANCE, APC-78-8-HNL-2, BE REINSTATED AND THAT THEY PROCEED TO
ARBITRATION. COMPLAINANT DECLINED TO REINSTATE GRIEVANCE
APC-78-8-HNL-2; BUT ON AUGUST 28, 1978, FILED A NEW GRIEVANCE,
APC-78-22-RO3 (RES. EXH. 3) WHICH AGAIN CONTENDED, AS HAD
APC-78-8-HNL-2, THAT PRESENT PARKING IS INADEQUATE AND DOES NOT MEET THE
CRITERIA OF 4665.3A AND, IN TURN, VIOLATES ARTICLE 47 OF THE AGREEMENT.
ON AUGUST 30, 1978, COMPLAINANT FILED ITS CHARGE HEREIN.
OF COURSE, THE GRAVAMEN OF THE COMPLAINT IS, QUITE SIMPLY, THAT
RESPONDENT UNILATERALLY RESCINDED THE SETTLEMENT AGREEMENT OF AUGUST 4,
1978, AND THEREBY VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER. I
HAVE GIVEN CAREFUL CONSIDERATION TO THE DECISION OF THE ASSISTANT
SECRETARY, IN GENERAL SERVICES ADMINISTRATION, REGION 3, WASHINGTON,
D.C., A/SLMR NO. 99-(1978), IN WHICH HE HELD THAT AN AGENCY'S
UNILATERAL RECISION OF A GRIEVANCE SETTLEMENT AGREEMENT VIOLATED
SECTIONS 19(A)(1) AND (6) OF THE ORDER BUT CONCLUDE: A) THAT THAT
DECISION IS CLEARLY DISTINGUISHABLE FROM THE PRESENT CASE AND IS NOT,
THEREFORE, CONTROLLING; AND B) THAT RESPONDENT DID NOT VIOLATE EITHER
SECTION 19(A)(1) OR (6) BY ITS NOTIFICATION OF COMPLAINANT THAT THE
STATE WOULD NO LONGER HONOR ITS AGREEMENT TO PERMIT FAA EMPLOYEES TO
PARK IN THE PARKING LOTS BEHIND AND TO THE EAST OF THE APOCA PARKING
GARAGE FOR A CHARGE OF $2.00 PER MONTH.
AT THE OUTSET, WHILE NOT EVERY BREACH OF CONTRACT IS AN UNFAIR LABOR
PRACTICE, WHERE, AS HERE, THE ALLEGATION IS THAT RESPONDENT VIOLATED AN
AGREEMENT, THE THRESHOLD QUESTION MUST BE, WHAT WAS THE AGREEMENT
ALLEGED TO HAVE BEEN VIOLATED? AS THE LETTER OF AUGUST 4, 1978 (COMP.
EXH. 1) IS THE ONLY AGREEMENT IN QUESTION, RESPONDENT'S AGREEMENT MUST
BE DETERMINED BY THAT DOCUMENT. IN THE LETTER OF AUGUST 4, 1978,
RESPONDENT AGREED:
1. THAT IT WOULD SHARE WITH COMPLAINANT "ANY COSTS THE ARBITRATOR
CHARGES BECAUSE OF THE
LATE DATE OF CANCELLATION."
2. THAT "NO CHANGES IN PARKING ARRANGEMENTS SHOULD BE MADE WITHOUT
CONSULTATION WITH THE
UNION."
RESPONDENT MADE NO OTHER COMMITMENT. AS TO SATISFACTION OF THE
GRIEVANCE, RESPONDENT'S LETTER STATED,
"IT IS OUR UNDERSTANDING THAT THE GRIEVANCE HAS BEEN SATISFIED BASED
ON THE OFFER BY THE
AIRPORT MANAGEMENT. . . "
OBVIOUSLY, THE LETTER OF AUGUST 4, 1978, CONTAINED NO COMMITMENT BY
RESPONDENT TO PROVIDE PARKING AT $2.00 PER MONTH. INDEED, THE LETTER OF
AUGUST 4, 1978, REFLECTS A MUTUAL ACCEPTANCE OF THE OFFER BY THE STATE
(AIRPORT MANAGEMENT). NOT ONLY IS THE LETTER OF AUGUST 4, 1978, CLEAR
AND UNAMBIGUOUS IN THIS REGARD, BUT THE TESTIMONY OF MR. ROBERT CARDIN,
NOW CHIEF, PLANS AND PROGRAMS AND IN AUGUST, 1978, HAD BEEN CHIEF,
OPERATIONS, PROCEDURES AND AIRSPACE BRANCH, FULLY CONFIRMS THE FACT THAT
THE GRIEVANCE WAS SATISFIED ON THE BASIS OF THE OFFER OF THE STATE.
THUS, MR. CARDIN TESTIFIED,
A I WAS INFORMED THAT MR. NESTER HAD HAD CONTACTED -- AND I THINK IT
WAS THE DEPUTY
SECRETARY OF TRANSPORTATION FOR THE STATE, I DON'T REMEMBER--
"Q MR. SWANSON ?
"A MR. SWANSON IS THE NAME.
"AND APPARENTLY MR. NESTER HAD EXPLAINED THAT THE EMPLOYEE PARKING
HAD BEEN MOVED, AND
ASKED THE STATE IF THEY COULDN'T DO SOMETHING, OTHER THAN THE LOT
WHERE YOU WERE INTENDING TO
GO OR HAD GONE.
". . . I WAS INFORMED BY STU HINDS, WHO AT THAT TIME WAS IN CHARGE OF
LMR PERSONNEL, THAT
THE STATE SAID THAT THEY WOULD PROVIDE PARKING. MR. SWANSON . . .
HAD SAID THAT THEY WOULD
PROVIDE PARKING FOR THE FAA EMPLOYEES AT A $2.00 RATE. THE STATE
SAID THEY
WOULD." (TR. 115-116).
* * * *
"THE LAST SENTENCE (WE AGREE THAT NO CHANGES IN PARKING ARRANGEMENTS
SHOULD BE MADE WITHOUT
CONSULTATION WITH THE UNION) I THINK WAS IN REFERENCE TO A
STIPULATION IN YOUR GRIEVANCE,
WHICH WE ASSUMED WAS SATISFIED BY THE COMMITMENT OF THE STATE, WHO
HAD THE AUTHORITY TO DO
IT. AND THEY WERE THE THIRD PARTY IN THIS, AND WE WERE ACTING AS, I
THINK IN MY OWN OPINION,
A GOOD FAITH INTERMEDIARY BETWEEN YOU, THE PEOPLE WHO WERE CONCERNED,
AND THE STATE, THE
PEOPLE THAT HAD THE AUTHORITY TO CHANGE OR DO SOMETHING OVER IT. . .
." (TR. 117)
* * * *
"A WE SOLVED THE GRIEVANCE. WE SAID, "'IT IS OUR UNDERSTANDING."'
SOMETHING TO THE EFFECT
THAT THE GRIEVANCE HAS BEEN RESOLVED BASED UPON THE THIRD PARTY, IN
THIS CASE THE STATE WHO
HAD THE AUTHORITY TO SOLVE IT FOR US, MAKING THIS COMMITMENT TO YOU.
NOW, THAT'S REALLY THE
WAY THE THING WASHES OUT." (TR. 119).
THERE IS NO ALLEGATION THAT RESPONDENT FAILED TO HONOR ITS COMMITMENT
TO SHARE THE COST, IF ANY, OF THE ARBITRATOR; AND, AS TO ITS AGREEMENT
THAT NO CHANGES IN PARKING ARRANGEMENTS SHOULD BE MADE WITHOUT
CONSULTATION WITH THE UNION, THE RECORD IS CLEAR THAT WHEN THE STATE
NOTIFIED RESPONDENT, ON OR ABOUT AUGUST 22, 1978, THAT IT COULD NOT
HONOR ITS COMMITMENT TO PERMIT PARKING AT $2.00 PER MONTH, RESPONDENT
DID, IMMEDIATELY, CONSULT WITH COMPLAINANT; DID SUGGEST THAT
COMPLAINANT DEFER ACTION UNTIL RESPONDENT HAD A FURTHER MEETING WITH
PRINCIPAL OFFICIALS OF THE STATE; AND ON AUGUST 25, 1978, WHEN THE
STATE HAD FINALLY DETERMINED THAT IT COULD NOT HONOR ITS COMMITMENT,
RESPONDENT PROMPTLY ADVISED COMPLAINANT AND OFFERED TO REINSTATE
GRIEVANCE NO. APC-78-8-HNL-2 AND TO PROCEED WITH ARBITRATION.
RESPONDENT FULLY COMPLIED WITH ITS AGREEMENT THAT NO CHANGE IN PARKING
ARRANGEMENTS SHOULD BE MADE WITHOUT CONSULTATION WITH THE UNION AND,
CLEARLY, THE RECORD DOES NOT SUPPORT THE ALLEGATION THAT RESPONDENT
REFUSED TO CONSULT, CONFER, OR NEGOTIATE WITH COMPLAINANT IN VIOLATION
OF SECTION 19(A)(6) OF THE ORDER OR, DERIVATIVELY, OF SECTION 19(A)(1)
OF THE ORDER.
BEYOND ITS AGREEMENT THAT NO CHANGES IN PARKING ARRANGEMENTS SHOULD
BE MADE WITHOUT CONSULTATION WITH COMPLAINANT, RESPONDENT MADE NO
COMMITMENT. THE PARTIES HAD, MERELY, AGREED "THAT THE GRIEVANCE HAS
BEEN SATISFIED BASED ON THE OFFER BY THE AIRPORT MANAGEMENT. . . ." AS
RESPONDENT DID NOT AGREE TO PROVIDE PARKING ON DESIGNATED LOTS FOR A
MONTHLY CHARGE OF $2.00 PER MONTH PER CAR, ITS FAILURE TO DO SO CAN NOT
CONSTITUTE A VIOLATION OF AGREEMENT. BY CONTRAST, IN GENERAL SERVICES
ADMINISTRATION, REGION 3, WASHINGTON, D.C., SUPRA,
". . . ON MARCH 8, 1976, THE RESPONDENT'S REGIONAL PERSONNEL OFFICER
. . . SENT A
MEMORANDUM TO THE REGIONAL COMMISSIONER, PUBLIC BUILDINGS SERVICE, .
. . AND A COPY TO
COMPLAINANT, IN WHICH HE STATED THAT "'AS A RESULT OF THE
(COMPENSATION BRANCH'S) STUDY, WE
HAVE AUTHORIZED PAYMENT OF DIFFERENTIALS TO GSA WAGE EMPLOYEES AT THE
CENTRAL PLANT WHO ARE
EXPOSED TO THE SPECIFIC WORKING CONDITION FOR WHICH DIFFERENTIALS
HAVE BEEN AUTHORIZED
. . . ."
OBVIOUSLY, IN THE GENERAL SERVICES CASE, SUPRA, THE AGENCY AUTHORIZED
THE PAYMENT OF DIFFERENTIALS FOR CERTAIN WORK AND LATER RESCINDED ITS
AUTHORIZATION. AS A RESULT, THE ASSISTANT SECRETARY HELD,
". . . I CONCLUDE THAT THE RESPONDENT, BY ITS ACTION OF JUNE 20,
1976, RESCINDING ITS
AUTHORIZATION TO PAY ENVIRONMENTAL PAY FOR "'HIGH WORK'",
UNILATERALLY TERMINATED THE PARTIAL
SETTLEMENT OF A GRIEVANCE WHICH WAS THE PRODUCT OF THE PARTIES'
NEGOTIATED GRIEVANCE PROCEDURE
IN VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER."
IN THE INSTANT CASE, THE PARTIES MUTUALLY AGREED THAT THE GRIEVANCE
"HAS BEEN SATISFIED BASED ON THE OFFER BY THE AIRPORT MANAGEMENT. . . .
." RESPONDENT TOOK NO UNILATERAL ACTION; RESPONDENT DID NOTHING TO
CHANGE THE TERMS AND CONDITIONS OF EMPLOYMENT ESTABLISHED BY THE
GRIEVANCE SETTLEMENT AGREEMENT; AND, AS THE ONLY GRIEVANCE SETTLEMENT
AGREEMENT CONSISTED OF THE PARTIES' ACCEPTANCE, IN ABSOLUTE GOOD FAITH,
OF THE OFFER OF THE STATE, WHEN THE STATE FOUND IT COULD NOT, BECAUSE OF
CONTRACTUAL CONSTRICTURES, COMPLY WITH THAT OFFER, RESPONDENT CAN NO
MORE BE DEEMED TO HAVE TERMINATED THE SETTLEMENT OF A GRIEVANCE THAN
COMPLAINANT. IN FACT, THE SETTLEMENT WAS TERMINATED BY THE ACTION OF A
THIRD PARTY, THE STATE. ACCORDINGLY, ALTHOUGH THE SETTLEMENT AGREEMENT
OF AUGUST 4, 1978, WAS A PRODUCT OF A NEGOTIATED GRIEVANCE PROCEDURE IN
THE SENSE THAT A GRIEVANCE UNDER THE PARTIES' NEGOTIATED GRIEVANCE
PROCEDURE HAD BEEN SATISFIED ON THE BASIS OF THE OFFER OF A THIRD PARTY,
THE STATE OF HAWAII, THE DECISION IN NEITHER GENERAL SERVICES
ADMINISTRATION, REGION 3, WASHINGTON, D.C., SUPRA, NOR NAVAL AIR REWORK
FACILITY, PENSACOLA, FLORIDA, A/SLMR NO. 608, 6 ALSMR 67(1976), IS
CONTROLLING AND, FOR THE REASONS SET FORTH ABOVE, RESPONDENT DID NOT
AGREE TO PROVIDE PARKING AT A MONTHLY CHARGE OF $2.00 PER CAR;
RESPONDENT DID NOT UNILATERALLY TERMINATE ANY SETTLEMENT AGREEMENT; AND
RESPONDENT DID NOT VIOLATE EITHER 19(A)(1) OR (6) OF THE ORDER.
COMPLAINANT'S RELIANCE IN ITS BRIEF ON CASES CONCERNING IMPOSSIBILITY
OF PERFORMANCE IS MISPLACED. THE ESSENTIAL INGREDIENT FOR SUCH
RELIANCE, WHICH IS WHOLLY ABSENT HERE, IS A CONTRACTUAL OBLIGATION BY
RESPONDENT. AS STATED ABOVE, RESPONDENT DID NOT AGREE TO PROVIDE
PARKING FOR A MONTHLY CHARGE OF $2.00. RESPONDENT'S POSITION, AS TO
GRIEVANCE NO. APC-78-8-HNL-2 HAD BEEN, AND AS TO GRIEVANCE NO.
APC-78-22-RO3, IS THAT THE PARKING ARRANGEMENTS PROVIDED FOLLOWING
RELOCATION OF THE FREE EMPLOYEE PARKING FULLY COMPLIED WITH FAA ORDER
4665.3A AND WITH ARTICLE 47 OF THE NEGOTIATED AGREEMENT. TO BE SURE,
GRIEVANCE NO. APC-78-8-HNL-2 WAS "SATISFIED BASED ON THE OFFER OF THE
AIRPORT MANAGEMENT. . . . ."; BUT RESPONDENT DID NOT AGREE THAT IT
WOULD PROVIDE ANY PARKING. TO THE CONTRARY, BOTH COMPLAINANT AND
RESPONDENT AGREED THAT THE GRIEVANCE HAD BEEN SATISFIED BASED ON THE
OFFER OF THE STATE. NOR, OF COURSE, IS DETERMINATION OF THE MERITS OF
EITHER GRIEVANCE A MATTER FOR RESOLUTION IN THIS PROCEEDING. HOWEVER, I
DO FIND THAT CONSIDERATION OF THE INSTANT COMPLAINT IS NOT BARRED BY
SECTION 19(D) OF THE ORDER INASMUCH AS EACH GRIEVANCE CONCERNED SOLELY
THE ISSUE AS TO WHETHER THE PARKING ACCOMMODATIONS PROVIDED COMPLIED
WITH FAA ORDER 4665.3A AND ARTICLE 47 OF THE PARTIES' AGREEMENT,
WHEREAS, THE COMPLAINT ALLEGED THAT RESPONDENT UNILATERALLY BREACHED THE
SETTLEMENT AGREEMENT OF AUGUST 4, 1978, AN ISSUE WHICH WAS NOT RAISED IN
GRIEVANCE NO. APC-78-22-RO3.
HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SECTIONS 19(A)(1) OR (6)
OF EXECUTIVE ORDER 11491, AS AMENDED, IT IS
RECOMMENDED
THAT THE COMPLAINT HEREIN BE DISMISSED.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: 5 JUN 1979
WASHINGTON, D.C.
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.