12:0216(51)CA - Army and AFGE -- 1983 FLRAdec CA
[ v12 p216 ]
The decision of the Authority follows:
12 FLRA No. 51 DEPARTMENT OF THE ARMY Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 3-CA-766 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. The General Counsel and the Charging Party filed exceptions to the Judge's Decision. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendations, as modified below. The Judge found that the Respondent, Department of the Army (DOA), did not afford the Charging Party (AFGE) reasonable time to comment on DOA's proposed parking regulation as required by section 7113(b)(1) of the Statute, /1/ but that DOA acted as promptly and prudently as could reasonably be expected under the circumstances and therefore did not violate the Statute as alleged in the complaint. In agreement with the Judge, the Authority concludes that DOA did not violate section 7116(a)(1) and (5). /2/ However, the Authority does not agree with the Judge's reasoning in this regard. Thus, noting that Government-wide regulations designated November 1 as the effective date for agencies to implement the paid parking program and that DOA could not notify AFGE of proposed parking regulations until it received directives from DOD, the Authority finds, contrary to the Judge, that DOA's letter to AFGE on October 18 explaining the November 1 deadline and containing a copy of its proposed regulations for comments in writing or by telephone constituted sufficient advance notice in the particular circumstances of this case to permit AFGE a reasonable time to respond before DOA was required to take final action. /3/ Accordingly, the Authority concludes that DOA did not violate section 7116(a)(1) and (5) of the Statute and that the complaint therefore must be , dismissed. /4/ ORDER IT IS ORDERED that the complaint in Case No. 3-CA-766 be, and it hereby is, dismissed. Issued, Washington, D.C., June 20, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 3-CA-766 Samuel S. Horn, Esq. For the Respondent Gary S. Miller, Esq. and Doris O. Hildreth on the brief For the Charging Party Peter B. Robb, Esq. and Erick Genser, Esq. and Susan Shinkman, Esq. on the brief For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge DECISION Statement of the Case This case arose under the provisions of the Federal Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (herein referred to as the Statute) and the Rules and Regulations issued thereunder. Upon unfair labor practice charges filed by the American Federation of Government Employees, AFL-CIO (herein the Union) against the Department of the Army (herein DOA or the Respondent) on December 20, 1979, the General Counsel of the Authority, by the Regional Director for Region 3, issued a Complaint and Notice of Hearing on March 26, 1980, which was amended on April 24, 1980, alleging Respondent engaged in unfair labor practice conduct violative of sections 7116(a)(1) and (5) of the Statute. Essentially, the complaint alleges Respondent initiated substantive changes in conditions of employment relative to instituting a paid parking program without affording the Union, which has National consultation rights, a reasonable opportunity to present its views and recommendations on the changes as required by section 7113 of the Statute. A hearing on the complaint was conducted on May 29, 1980 in Washington, D.C., at which time all parties were represented by counsel and afforded full opportunity to adduce evidence and call, examine and cross-examine witnesses and argue orally. Briefs filed by all parties, including the Charging Party's reply brief filed August 4, 1979, have been carefully considered. /5/ Upon the entire record in this matter, my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following: Findings of Fact By Circular No. A-118, dated August 13, 1979, the Executive Office of the President, Office of Management and Budget (OMB) announced the establishment of a Government-wide policy dealing with Federal parking facilities. /6/ According to OMB, a basis for charging for the use of parking facilities needed to be established which was equitable among employees and consistent with related policies regarding air quality, energy conservation and reduced traffic congestion. In the Circular OMB stated, in part: " . . . It is the general policy of the executive branch to limit Federal installation parking facilities to the minimum necessary, to administer those facilities in full compliance with carpooling regulations, and to assess Federal employees, contractor employees and tenant employees who are provided parking in Government-controlled space a charge equivalent to the fair monthly rental value for the use of equivalent commercial space, subject to the terms, exemptions and conditions stated in this Circular." The ten page Circular specifically addressed such matters as: conditions for exemptions from fees; the priorities to be considered for the allocation and assignment of parking spaces; the establishment of charges for employee parking; and the determination of rates. With regard to matters concerning fees for parking, the Circular provided, inter alia: "a. Establishment of charges. Charges for employee use of Government-owned or leased parking facilities shall be assessed at all locations except where the rate, as determined in c. below, would be less than $10.00 per month. For the initial period November 1, 1979, through September 30, 1981, the charges to be collected shall be 50 percent of the full rate scheduled to be collected. If the full rate is calculated to be between $10.00 and $19.99, the monthly charge between November 1, 1979 and September 30, 1981, shall be $10.00. The full charge shall be collected after October 1, 1981." As to the determination of rates to be charged, the Circular stated: "c. . . . (1) The Administrator of GSA shall determine the rate to be charged for Government furnished employee parking at each facility using generally accepted appraisal techniques. Agencies other than GSA which hold title to property and desire to arrange their own appraisals must advise GSA in writing of their intent, and shall conduct such appraisals in accordance with GSA guidelines. GSA shall review and approve all rates in accordance with 40 U.S.C. 490(k). The rates shall approximate the prevailing value of comparable commercial property in the vicinity. The rate basis will be the fair rental value of such property as used in calculating Standard Level User Charges. Fair rental value includes an allowance for the costs of parking facility management. The rates so established shall be adjusted annually by the Administrator to reflect increases or decreases in value." The Circular further mandated that General Services Administration (GSA) "issue regulations implementing the provisions of this Circular regarding the determination of commercially equivalent rates for Government parking . . . (and) revise regulations and priorities as necessary, for the assignment of parking spaces." Rates at non-GSA facilities were to be determined by October 1, 1979. Heads of departments and agencies were directed to assess charges consistent with the provisions of the Circular and GSA regulations and immediately request GSA to determine rates to be assessed at their facilities " . . . to enable rate determination to be completed prior to November 1, 1979," with late rate determinations to be applied retroactively to November 1. The OMB Circular also provided that final agency regulations should be issued prior to November 1, 1979. Agencies were further required to " . . . issue such instructions as may be needed to maximize carpooling and implement the provisions of this Circular and regulations issued by GSA". Pursuant to the above OMB Circular, GSA issued Government-wide regulation FPMR Temp. Reg. D-51, dated September 6, 1979. /7/ The GSA Federal employee parking regulation designated November 1, 1979 as the effective date for agency implementation of the regulation and imposed on agencies specific requirements relating to priority assignments of parking spaces for non-employees and employees, methods to establish parking fees, and rates to be charged, all of which were in accordance with the OMB Circular. The GSA regulation provided that at non-GSA controlled facilities the responsible agency would allocate employee parking in accordance with OMB Circular No. A-118. The Department of Defense (DOD) issued to its subordinate agencies, on September 18, 1979, a draft instruction dealing with the implementation of the Federal paid parking program. At all times relevant herein, DOD has accorded the Union national consultation rights. Accordingly, DOD also sent a copy of the draft instruction to the Union on September 20, 1979. /8/ An accompanying letter to the Union indicated that the parking program mandated by OMB, including the assessment of fees, would become effective on November 1, 1979. The letter continued: "The DOD Instruction must . . . be issued as early as possible in October so that it will reach installation commanders responsible for its implementation before November 1. Accordingly I must ask that you review the draft Instruction and forward any comments to reach this office by the close of business on October 3 at the latest." The National office of AFGE responded to DOD by letter of September 26. In that letter AFGE indicated it had reviewed the draft DOD "Instruction" and suggested that the document including the subject of parking fees, was "negotiable between the parties", in accordance with the provisions of section 7117(a)(1) of the Statute and " . . . negotiating the . . . issues relating to parking are the best actions which AFGE could pursue to successfully combat parking fees for Federal employees". The Department of the Army (DOA) is a subordinate component of DOD. As such, it operates under the authority, direction and control of the Secretary of Defense and, therefore, is legally bound to comply with directives of DOD. /9/ Upon receipt and review of DOD's draft instruction of September 18, 1979, DOA, in a five page memorandum to DOD dated October 9, 1979, offered numerous comments on DOD's draft implementing regulation. DOA noted that the most significant problem it had with the draft instruction related to the November 1 implementation date. In particular, DOA referred to an outstanding Army Chief of Staff regulation which provides, inter alia, that unions accorded national consultation rights: " . . . must be provided with reasonable notice (e.g. 30-45 days) of proposed new or revised policies which impact on the conditions of employment of both appropriated and nonappropriated fund employees (and) "(b) . . . must be given opportunity to comment on such proposals and suggest changes to the proposals." /10/ DOA's reply further stated: "The CSR goes on to say that failure to provide labor organizations the opportunity to comment, before issuance, on proposed policies that affect Army civilian employees is a violation of Title VII. In view of the above, it is recommended that the Army program not be implemented until such time as the unions are given an opportunity to review any implementing instructions and Army regulations pertaining to this program. This should equally apply to the DODI." Although previously DOD's proposed regulations had frequently been revised based upon subordinate unit's recommendation, DOA received no specific response to its comments or suggestions and on October 11, 1979 DOD issued an "advance copy" of its interim paid parking regulations to DOA and its other subordinate command activities. /11/ A cover letter accompanying the directive noted that the advance copy was being provided " . . . to permit implementation of the President's program, particularly the paid parking aspect, on November 1, 1979 . . . " The DOD directive designated specific parking fees which would be charged at numerous DOD installations, including those controlled by DOA, effective November 1, 1979. Further, the DOD regulation incorporated elements of the OMB and GSA directives; set out an expanded list of specified classes of personnel and vehicles which would be exempt from payment of parking fees; set out certain priorities in the assignment and allocation of parking spaces; and designated those responsible to implement and enforce the regulation at various subordinate managerial levels. The DOD directive also provided that "labor organizations with national consultation rights . . . must be consulted before the issuance of any implementing policies and regulations that affect DOD civilian employees". In addition, DOD, inter alia, required Secretaries of the military Departments and Directors of defense Agencies to operate, control and issue instructions relative to the paid parking program in accordance with the provisions of the related OPM Circular, the GSA regulation and the DOD regulation. DOD's directive treated numerous subjects in a rather comprehensive manner thereby substantially limiting DOA's flexibility to independently fashion its own regulation for implementation at the installation level. Nevertheless, various matters in the DOD directive provided DOA with considerable discretion including: establishing the number of spaces assigned to employees working unusual hours; developing incentives to encourage and facilitate the use of car and van pools, and public transportation; issuance of parking permits to individuals who use their privately owned vehicles for government business; and developing a mechanism for deterring abuse of parking space allocation. Moreover, since DOA was directed to establish a paid parking program for its subordinate bodies, and since various matters were not governed by OMB, GSA or DOD directives, DOD was left a substantial range of possible procedures to utilize in implementing a paid parking program. Major Paul T. Gerard, "Action Officer" for DOA's paid parking program, received a copy of the DOD October 11 directive late in the afternoon of Friday, October 12, 1979. That week-end, Major Gerard developed proposed changes to DOA's parking regulations to conform to DOD requirements. On Monday, October 15, DOA telegramed a draft of its proposed changes to the Command Officers for the twelve DOA installations affected by the regulation. The parties were notified that the changes to the parking program were to become effective on November 1, 1979 and a list of fees was included. Prior hereto no fees were charged for parking. The Command operations were requested to provide comments or concurrence to DOA by October 17. At all times material herein AFGE has been accorded national consultation rights with DOA in accordance with section 7113 of the Statute. Accordingly, on October 16, 1979 Colonel Thomas A. MacDonnell, Chief of DOA's Law Enforcement Division, drafted a letter to AFGE National President Kenneth T. Blaylock attaching a copy of DOA's proposed changes to its parking regulations and advising that the program would be implemented on November 1, 1979. However, for reasons not entirely clear in the record, the letter was not mailed to the Union until Thursday, October 18. The letter stated, inter alia, that "(d)ue to OMB requirement to implement this program by 1 November 1979, we are publishing this change as soon as possible in order to give commanders sufficient time to prepare for implementation". The letter further suggested that any comments or observations the Union might have concerning this matter could be forwarded in writing or by telephone, not later than November 16, 1979. On October 19, 1979 DOA published and distributed to its subordinate Commands its paid parking regulation. /12/ DOA's directive (dated October 24) took the form of an interim change to DOA parking regulation AR210-4 and was virtually identical to the proposed changes previously sent to Command Officers and the Union. The DOA regulation essentially incorporated and made more explicit the requirements contained in the OMB Circular and the GSA and DOD regulations and required installation commanders to institute a permit, fee collection, and carpool program at their facilities. Exercising its discretionary authority, DOA included in the regulation additional provisions which provided instructions and guidance to installation commanders in implementing the program. Thus, for example, the DOA regulation advised installation commanders as to: the personnel to be used to implement the program; alternatives available to installation commanders for the operation of the program (automated, contractor operated, or installation operated); the sale of parking permits on a yearly, quarterly, bi-monthly, or daily basis; the site used for the sale of permits; standards for enforcing the program; and the manner of collecting fees. The DOA regulation left installation commanders with a substantial amount of flexibility in implementing the program at their local facilities and specifically required installation commanders " . . . to negotiate with exclusively recognized labor organizations over the impact and implementation of the installation's parking plan". The Union received Major MacDonnell's letter of October 18, 1979 with the attached "proposed" changes to DOA's parking regulations on Monday, October 22. According to the testimony of Ms. Mary Lynn Walker, AFGE Director of Organization and a supervisory Labor Relations Specialist in charge of DOA national consultation rights matters in October 1979, the Union's practice when receiving a notice of a proposed change from DOA subject to national consultation rights was to forward such notice to representatives at the affected field installations for comment before responding to the agency. When comments were received from the Union's locals they were compiled with National office comments and, thereafter, sent to DOA, a process usually taking about 30 days. /13/ However, when DOA's proposed changes were received on October 22, the Union concluded there was insufficient time to obtain comments from representatives at the installations involved, evaluate the documents and reply to DOA by November 1, the effective date of the new program. Commencing November 1, 1979, Respondent's installations began implementing DOA's paid parking program. By letter dated November 7, 1979 the Union responded to DOA by indicating it did not "recognize the provision" of OMB Circular A-118 or GSA's Temp. Reg. "D-65" (sic). After noting that unions held exclusive recognition rights at many of the installations affected by the new parking fees, the Union suggested that negotiations be conducted at those sites, particularly as to " . . . scope, payment procedures, enforcement, fees, exemptions, assignments, etc. . . " The Union concluded: "The above constitutes the AFGE's comments to the Department of the Army's regulation on parking. We must remind you that under Title VII, Sec. 7117 of the Civil Service Reform Act that National Consultation Rights are guaranteed with sufficient amount of time for unions to review agency regulations and submit appropriate comments. In order for this organization to allow sufficient time for appropriate consultations, we request that we be given at least thirty (30) days within which to provide our comments." DOA replied to the Union by letter dated November 30, 1979 at which time it agreed that "certain aspects" of the parking program were negotiable but took the position that such matters as whether there would be a fee, the amount of the fee and any exemptions were dictated by higher authority outside DOA and, therefore, were not negotiable. In closing, DOA informed the Union that it intended to revise Army Regulation 210-4 "within the next few months" at which time the Union would be asked for its observations and comments on the "total carpooling and parking control program". /14/ Issues Section 7113 of the Statute provides, in relevant part, that: "(b)(1) Any labor organization having national consultation rights in connection with any agency under subsection (a) of this section shall-- "(A) be informed of any substantive change in conditions of employment proposed by the agency, and "(B) be permitted reasonable time to present its views and recommendations regarding the changes. (2) If any views or recommendations are presented under paragraph (1) of this subsection to an agency by any labor organization-- "(A) the agency shall consider the views or recommendations before taking final action on any matter with respect to which the views or recommendations are presented . . . " Counsel for the General Counsel contends that Respondent failed to fulfill the obligations imposed by section 7113 and, thereby, violated sections 7116(a)(1) and (5) of the Statute by implementing on November 1, 1979 the interim change to regulation AR 210-4 without affording the Union a reasonable time to carry out the process of consultation on the change. Thus, Counsel for the General Counsel takes the position that, in the circumstances of this case, Respondent was required to give the Union notice of the specific change at least 30 days prior to the day conditions of employment regarding employee parking were changed in order to assure that consultation would be completed before the actual change was put into effect. Essentially, Respondent contends that: (1) DOA itself did not propose any substantive change within the meaning of sections 7113 of the Statute; (2) the Union received adequate notice of the proposed implementation of the paid parking program; (3) Respondent provided as much advance notice of the implementation of its regulation as it reasonably could under the circumstances; (4) DOA considered the Union's views and recommendations; and (5) Respondent took no final action in the matter by November 30, 1979. Discussion and Conclusions Clearly, the paid parking program under consideration herein is a condition of employment within the meaning of the Statute and, beginning November 1, 1979, Respondent's installations were required to put into effect a parking program which involved fees for parking, priorities for the allocation of parking spaces, and other significant matters affecting employees for whom the Union had national consultation rights. It is also clear that DOA was considerably circumscribed by OMB, GSA and DOD parking regulations as to the mandatory contents of its own regulation. Nevertheless, DOD's regulation provided DOA with substantial flexibility in establishing a paid parking program for its subordinate installations by specifically indicating to DOA areas of discretion in whatever plan it adopted. Moreover, by virtue DOD's instruction to DOA to issue and administer a paid parking program, all the facets of which were not covered by OMB, GSA, or DOD regulations, DOA inherently was given wide discretion in establishing and effectuating the details of the plan it chose to have implemented at its installations. Accordingly, I conclude that DOA's interim change to regulation AR 210-4, effective November 1, 1979, encompassed substantive changes within the meaning of section 7113 of the Statute and therefore, Respondent was required to fulfill the obligation imposed by section 7113 to consult with the Union with regard to such changes. As to the "notice" issue presented herein, under section 7113 of the Statute the Union was entitled to be informed of DOA's parking regulation sufficiently in advance of the day of implementation, a "final" action, so that the Union could have a reasonable opportunity to present its views on the matter and have those views considered by DOA before it implemented the regulation. /15/ Respondent suggests that the Union was aware of DOD's proposed regulation in September 1979 and this provided adequate notice to the Union as to the substance of DOA's regulation. While the Union had notice in September 1979 of DOD's directive to DOA that it implement a paid parking program by November 1, notice of the DOD regulation is not at issue herein. But more importantly, the DOD and DOA regulations were not identical in content. Therefore, until receiving a copy of DOA's regulation on October 22, 1979, the Union had little knowledge of how DOD would interpret the OMB, GSA and DOD directives or what DOA would ultimately issue as a paid parking program for its facilities. Further, the Statute expressly required that Respondent afford the Union a reasonable time to comment on the proposed regulation so that DOA could consider the comments before taking final action. When the Union received notice of DOA's proposed directive it had only until October 30 to get its comments to Respondent before the regulation was implemented on November 1. Therefore, although Respondent notified the Union that it had until November 16 to comment on the regulation, Respondent cannot rely on post-implementation comment time to support its claim that it complied with the requirements of the Statute. Moreover, the directive, which had a substantial impact on employee parking at Respondent's numerous facilities, encompassed nine pages of specific material and required careful evaluation to discern which provisions followed the mandatory requirements of the OMB, GSA and DOD regulations and which provisions represented DOA's exercise of discretion. In addition, Respondent's own Army Chief of Staff regulation and past practice of providing the Union at least 30 days notice of a final action lends support to the conclusion that Respondent was aware that the Union would require more than the time Respondent allowed for the Union to respond to the proposed parking program and have its response receive good faith consideration prior to implementation. Accordingly, in these circumstances I conclude that Respondent did not afford the Union a reasonable time to comment on the proposed regulation and then consider such views before taking final action on the matter as required by the Statute. In my view, the fact that on November 7, 1979 the Union replied to Respondent's October 18 communication is of no consequence in the disposition of this matter. In the November 7 letter the Union expressed its "views and comments" by challenging the legality of the entire process of imposing the Federal employee paid parking program, reminding DOA of its obligation to negotiate with unions at those installations where exclusive representatives were recognized, and, having noted the November 1 implementation date, requesting that it be given sufficient time of at least 30 days to review and comment on the regulation. Respondent's reply, 23 days later failed to address the Union's request for more time to comment on the regulation and, in essence, viewed the matter as closed, noting however that further revision of the parking program was envisioned and, in that event, the Union would again be asked for its views and comments. Thus, the Union's comments were not expressed until after the program was implemented and the comments were primarily a request for additional time to respond, a general objection to the legality of the entire program and a suggestion that DOA fulfill its bargaining obligations imposed by the Statute. Respondent's consideration of those comments amounted to no more than a belated acknowledgement of receipt of the Union's letter, and at no time did Respondent indicate a willingness to comply with the provisions of the Statute which mandated notice in advance of taking a final act. In these circumstances I conclude that Respondent's claim that the Union expressed its views on the matter and Respondent considered those views to be without merit as a defense to the allegations made herein. However, I further conclude that DOA acted as promptly and prudently as could reasonably be expected under the circumstances in informing the Union of proposed changes mandated to take effect November 1, 1979. Thus, DOD was aware of the November 1, 1979 date of implementation when, on September 18, 1979, it forwarded to subordinates its proposed regulation for comment. The comments DOD received from DOA clearly indicated that the time frame set by DOD did not permit DOA to implement a paid parking program without laying itself open to violating the consultation requirements of the Statute. DOA was unable to provide the Union with advance notice of its proposed regulations since DOA itself was awaiting final parking regulations from DOD. The evidence reveals that DOD's proposed regulations had in the past frequently been revised based upon subordinate recommendations. Notwithstanding such warning, DOD, in its regulations issued on October 11, 1979, mandated that DOA and all subordinate organizations implement a paid parking program by November 1. Upon receipt of DOD's regulations, DOA expeditiously developed its own proposed regulation by October 15, 1979 and immediately sent it to subordinate commands for comment. The period for comment by subordinate commands was limited to two days. The directive was then mailed to the Union on October 18. DOA was obligated to follow the mandate of the DOD regulation and DOD was fully aware of the proscriptions of the Statute as well as DOA's apprehension regarding the implementation date and its inability to grant the Union appropriate time for consultation. Accordingly, I find and conclude that it was DOD's timing of actions which set into motion a chain of events whereby DOA's conduct became a virtual ministerial act of issuing a parking program in a time frame that practically assured that DOA would be unable to comply with the consultation requirements of section 7113 of the Statute. However, DOD has not been named as a Respondent herein. It has been held by the Federal Labor Relations Council in a case decided under Executive Order 11491, that the acts and conduct of agency management, at a higher level of an agency's organization, may provide the basis for finding a violation of any part of section 19(a) of the Order, but, may not, standing alone, provide the basis for finding a separate violation by agency management at a lower organizational level of the agency solely on the basis of its ministerial actions in implementing the directions of higher agency authority. /16/ Subsequently, the, Authority, in deciding a case which arose under the Order, followed the rule of Naval Air Rework Facility. /17/ The Statute specifically provides that the policies and decisions issued under the Order " . . . shall remain in full force and effect . . . unless superseded by specific provisions of (the Statute) or by regulations or decisions issued pursuant to (the Statute)". /18/ The provisions of the Order dealing with national consultation rights do not differ in substance from the provisions of the Statute applicable herein /19/ and the Authority has not, to date, departed from the holding of Naval Air Rework Facility. /20/ Accordingly, in the circumstances of this case, wherein DOA had no choice but to comply with the directive of DOD; DOA's failure to provide adequate notice to the Union resulted from ministerially fulfilling its obligations to comply with DOD's directive; DOD did all it could to reasonably meet the requirements of section 7113 of the Statute; and DOD not having been named as a Respondent in this proceeding, I conclude that the evidence is insufficient to establish a violation under the Statute. /21/ Based upon the foregoing findings and conclusions I recommend the complaint herein be dismissed. /22/ SALVATORE J. ARRIGO Administrative Law Judge Dated: December 22, 1980 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Section 7113(b)(1) provides: (b)(1) Any labor organization having national consultation rights in connection with any agency under subsection (a) of this section shall-- (A) be informed of any substantive change in conditions of employment proposed by the agency, and (B) be permitted reasonable time to present its views and recommendations regarding the changes. /2/ Section 7116(a)(1) and (5) of the Statute provides: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . . (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.) /3/ While there were approximately two weeks between DOA's notice to AFGE and the announced effective date of the paid parking program, DOD did not issue its final parking regulation until December 7, as noted by the Judge. AFGE did not submit any views or recommendations to DOA concerning the substantive provisions of DOA's proposed parking regulation at any time, but did challenge the legality of the process imposing the paid parking and requested thirty days to review and comment on the regulation. /4/ In view of the foregoing conclusion, and noting that DOD was not named as a Respondent or alleged to have violated the Statute, the Authority finds it unnecessary to consider the Judge's comments concerning the actions of higher level management herein. /5/ Counsel for the General Counsel's unopposed motion to correct the transcript is hereby granted. /6/ 44 Fed.Reg.No. 161, at 48638-48641 (August 17, 1979). /7/ 44 Fed.Reg.No. 179, at 53161-53163 (September 13, 1979). /8/ A schedule of parking fees to be assessed at the installation within the control of DOD did not accompany this document. /9/ 10 U.S.C. 133(b) and Sec. 3010. /10/ CSR 690-10, dated March 21, 1979. /11/ DOD issued its final parking regulation on December 7, 1979 which essentially parallels the earlier interim regulation. /12/ The regulation also was sent to the printer for final reproduction on October 19. /13/ The record reveals that during 1979, AFGE received 25 other notifications of proposed changes from DOA and in none of those cases was AFGE given less than 30 days to comment on the matter. /14/ DOA did not thereafter revise the parking provisions encompassed in its interim change to AR 210-4 at any time prior to the date of the hearing of this case. /15/ Respondent's contention that even though DOA's installations were obligated to implement the directive on November 1, 1979, since the regulation could have been changed thereafter, then no "final action" was taken is without merit and accordingly, rejected. It is difficult to conceive of any government regulation which is immutable. /16/ Naval Air Rework Facility, Pensacola, Florida and Secretary of the Navy, Department of the Navy, Washington, D.C. 5 FLRC 303, FLRC No. 76A-37 (May 4, 1977), Report No. 125. /17/ Veterans Administration, 1 FLRA No. 101 (1979). /18/ 5 U.S.C. 7135(b). /19/ Executive Order 11491, as amended, Sec. 9(b). /20/ Cf. Internal Revenue Service, Washington, D.C., and Internal Revenue Service, Hartford District Office, 4 FLRA No. 37 (1980). /21/ Naval Air Rework Facility, supra. /22/ 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 25, 1980, which deals with certain aspects of the Federal employee parking fee program herein. However, at this time that case has not been fully adjudicated and its ultimate outcome and possible impact on the matters treated herein is too speculative for consideration in this decision.