[ v15 p216 ]
The decision of the Authority follows:
15 FLRA No. 43 HARRY DIAMOND LABORATORIES and DEPARTMENT OF THE ARMY and DEPARTMENT OF DEFENSE Respondents and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2, AFL-CIO Charging Party and OFFICE OF PERSONNEL MANAGEMENT Intervenor Case Nos. 3-CA-719 3-CA-889 3-CA-970 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the consolidated complaint and recommending that the consolidated complaint be dismissed in its entirety. The General Counsel and the Charging Party filed exceptions to the Judge's Decision. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendations, as modified herein. The consolidated complaint alleged in part that the Respondents Department of Defense (DOD) and Department of the Army (DOA) violated section 7116(a)(1) and (5) of the Statute /1/ by issuing directives concerning implementation of the paid parking program, thereby interfering with the collective bargaining relationship between Harry Diamond Laboratories (HDL) and the Charging Party, American Federation of Government Employees, AFL-CIO, Local 2 (the Union). It further alleged that HDL also violated section 7116(a)(1) and (5) of the Statute by implementing the paid parking program at that facility without bargaining with the Union concerning its implementation and impact on bargaining unit employees. The Judge concluded that DOD and DOA did not violate section 7116(a)(1) and (5) of the Statute as alleged. The Authority agrees. Thus, the Union is not the exclusive representative of a unit of employees at the DOD or DOA level, but exclusively represents an appropriate unit of employees at HDL, a subordinate level within the agency. Inasmuch as the duty of an agency under the Statute is to negotiate with an exclusive representative of an appropriate unit of its employees concerning conditions of employment affecting them, except as provided otherwise by Federal law and regulation, including Government-wide regulation, and therefore DOD and DOA would have been required to bargain to the extent of their discretion in implementing the Government-wide paid parking program if exclusive recognition had existed at those levels, /2/ the Authority concludes that they had no duty to bargain with the Union before issuing internal directives to subordinate elements concerning the paid parking program. /3/ Moreover, in the absence of any showing that DOD or DOA prevented their subordinate element, HDL, from fulfilling its duty to bargain with the Union at the level of exclusive recognition, /4/ the Authority finds that the consolidated complaint must be dismissed to the extent it alleges that DOD and DOA violated section 7116(a)(1) and (5) of the Statute. /5/ The Judge further found that HDL had provided the Union with adequate notice that the paid parking program would be instituted as required by Government-wide regulations, and had bargained in good faith with the Union concerning those aspects of the paid parking program that were within HDL's discretion. The Authority adopts the Judge's findings and conclusions in this regard, except as indicated below. The Authority cannot agree with the Judge's conclusion that HDL properly refused to bargain concerning certain Union proposals (e.g., the appropriate monthly parking rate for HDL employees and the exemption of certain employees from coverage) on the basis that those matters were controlled by DOD and DOA regulations. In this regard, the Judge found that HDL's duty to bargain did not extend to matters subject to DOD's agency-wide regulation unless the Authority determined that no compelling need existed for the DOD regulation, a determination which the Judge concluded could not be made in an unfair labor practice proceeding. However, after the Judge issued his Decision herein, the Authority concluded that questions concerning the existence of a compelling need for regulations issued at the agency or primary national subdivision level so as to bar negotiations on inconsistent proposals at the level of exclusive recognition may appropriately be decided in an unfair labor practice proceeding, and that where compelling need is raised as an affirmative defense in an unfair labor practice proceeding, management is required, as it would be in a negotiability proceeding, to come forward with affirmative support for that assertion. See Defense Logistics Agency (Cameron Station, Virginia), supra n.3. See also U.S. Army Engineer Center and Fort Belvoir, 13 FLRA No. 116 (1984). Since HDL refused to bargain concerning two Union proposals solely on the basis that they were nonnegotiable under DOD directives, but neither asserted nor established the existence of a compelling need for such agency regulation, the Authority concludes that HDL thereby failed to meet its duty to bargain with the Union to the extent of its discretion in implementing the Government-wide paid parking program and therefore violated section 7116(a)(1) and (5) of the Statute. Department of Housing and Urban Development, 9 FLRA 136 (1982); Veterans Administration Central Office, Veterans Administration Medical Center, Long Beach, 9 FLRA 325 (1982). With regard to an appropriate order to remedy such unfair labor practice, however, the Authority concludes that, inasmuch as there is no regulation in effect at this time requiring the collection of parking fees, /6/ it is unnecessary to order that the Respondent negotiate regarding this matter. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the Harry Diamond Laboratories shall: 1. Cease and desist from: (a) Failing or refusing to bargain with the American Federation of Government Employees, Local 2, AFL-CIO, the exclusive representative of its employees, before implementation of any paid parking program which may be established by Government-wide rule or regulation. (b) In any like or related manner interfering with, restraining, or coercing any employee in the exercise of rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receiving such forms, they shall be signed by an appropriate official of the Respondent and shall be posted and maintained by such official for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and all other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by other material. (b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Acting Regional Director, Region III, in writing, within 30 days from the date of this Order, as to what steps are being taken to comply herewith. IT IS FURTHER ORDERED that those portions of the consolidated complaint alleging violations of the Statute by the other named Respondents be, and they hereby are, dismissed. Issued, Washington, D.C., July 2, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail or refuse to bargain with the American Federation of Government Employees, Local 2, AFL-CIO, the exclusive representative of our employees, before implementation of any paid parking program which may be established by Government-wide rule or regulation. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employee in the exercise of rights assured by the Statute. (Activity) By: (Signature) (Title) Dated: . . . This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice, or compliance with its provisions, they may communicate directly with the Acting Regional Director, Region III, Federal Labor Relations Authority, whose address is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8452. -------------------- ALJ$ DECISION FOLLOWS -------------------- Doris O. Hildreth On brief: John W. Mulholland For the Charging Party Joseph M. Davis, Esquire For Harry Diamond Laboratories Samuel S. Horn, Esquire For the Department of the Army and For the Department of Defense Stuart M. Foss, Esquire For the Intervenor Erick J. Genser, Esquire For the General Counsel Before: WILLIAM B. DEVANEY Administrative Law Judge DECISION Statement of the Case This proceeding, under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. /7/ and the Final Rules and Regulations issued thereunder, Federal Register, Vol. 45, No. 12, January 29, 1980, 5 C.F.R. 2415.1 et seq., is a further chapter in the continuing saga of President Carter's paid parking program for government employees. I am fully aware that: a) On February 5, 1981, the Authority, without passing on the merits of the dispute, dismissed the negotiability appeal in Case No. O-NG-229 which directly involved the paid parking implemented at Harry Diamond Laboratories. American Federation of Government Employees, AFL-CIO, Local 2 and Department of the Army, Harry Diamond Laboratories, Adelphi, Maryland, 5 FLRA No. 13 (1981). However, the Authority stated, in part, that, "Furthermore, issues as to whether, in the circumstances of this case, the Agency would have an obligation to bargain on matters concerning the general subject of paid parking, apart from the particular paid parking program which is the subject of the proposals disputed in the instant appeal, may properly be raised in the unfair labor practice procedures under section 7118 of the Statute. Cf. American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 4 FLRA No. 93 (1980)." b) On March 3, 1981, the United States District Court for the District of Columbia (per Judge Harold H. Greene) granted a permanent injunction enjoining the government from continuing the parking fee program, holding that the program had been illegally instituted by former President Carter without approval of Congress as required by the Energy Policy and Conservation Act of 1975. American Federation of Government Employees v. Freeman, C.A. No. 79-2955 (U.S. DC DC, March 3, 1981). In addition, most of the legal contentions involved in this consolidated case were decided by Judge Arrigo in three decisions issued on December 22, 1980, which are more particularly described hereinafter. I have given careful consideration to Judge Arrigo's decisions, agree therewith, and, fully to the extent that he has decided issues also raised in this case, I intend to follow and to apply his decisions. The decisions are as follows: Defense Contract Administration Services Region, Boston, Massachusetts; Commander, Fort Devens, Fort Devens, Massachusetts; Defense Logistics Agency, Washington, D.C.; Department of Defense, Washington, D.C. and National Association of Government Employees, Local R1-210, Case Nos. 1-CA-212, 1-CA-298, 1-CA-299 and 1-CA-300 (December 22, 1980) (hereinafter, also, referred to as "DCASR"); Boston District Recruiting Command, Boston, Massachusetts; 96th U.S. Army Reserve Command, Hanscom Air Force Base, Massachusetts; Department of the Army, Washington, D.C.; Department of Defense, Washington, D.C. and American Federation of Government Employees, AFL-CIO, Local 1900, Case Nos. 1-CA-206, 1-CA-207, 1-CA-208, 1-CA-209, 1-CA-303, 1-CA-304 (December 22, 1980) (hereinafter, also, referred to as "Boston District"); and Department of the Army and American Federation of Government Employees, AFL-CIO, Case No. 3-CA-766 (December 22, 1981) (hereinafter, also, "Department of the Army"). The charge in Case No. 3-CA-719 was filed on December 5, 1979 (G.C. Exh. 1(a)) alleging violations of Secs. 16(a)(1), (5) and (8) of the Statute by Harry Diamond Laboratories (hereinafter, also, "HDL"); the charge in Case No. 3-CA-889 was filed on February 21, 1980 (G.C. Exh. 1(c)) alleging a violation of Sec. 16(a)(1) of the Statute by Department of the Army (hereinafter, also, "DA") and a First Amended Charge was filed on April 7, 1980 (G.C. Exh. 1(e)) which alleged, in addition to Sec. 16(a)(1), a violation of Sec. 16(a)(5) of the Statute; the charge in Case No. 3-CA-970 was filed on March 14, 1980 (G.C. Exh. 1(g)) alleging a violation of Sec. 16(a)(1) of the Statute by the Department of Defense (hereinafter, also, "DOL") and a First Amended Charge was filed on April 7, 1980 (G.C. Exh. 1(i)) which alleged, in addition to Sec. 16(a)(1), a violation of Sec. 16(a)(5) of the Statute; and an Order Consolidating Cases, Complaint and Notice of Hearing issued on April 30, 1980, alleging violations of Secs. 16(a)(1) and (5) of the Statute and set the hearing for July 30, 1980. (G.C. Exh. 1(k)). On May 20, 1980, an order issued rescheduling the hearing for July 23, 1980, pursuant to which a hearing was duly held on July 23, 1980, before the undersigned, in Washington, D.C. At the commencement of the hearing the Motion of the Office of Personnel Management to Intervene was granted. All parties were represented, were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein; and the parties were afforded full opportunity to present oral argument at the conclusion of the testimony, which right was waived by each party. At the close of the hearing, August 25, 1980, was fixed as the date for mailing post-hearing briefs, which time was subsequently extended, by motion and for good cause shown, to September 12, 1980. Each party, i.e. the Charging Party, Counsel for the General Counsel, Harry Diamond Laboratories, Department of Defense and Department of the Army, and Office of Personnel Management, timely filed an excellent brief, received on or before September 16, 1980, which have been carefully considered. Upon the basis of the entire record, /8/ including my observation of the witnesses and their demeanor, I make the following findings and conclusions: Findings A. Harry Diamond Laboratories /9/ 1. DOD is an agency within the meaning of Sec. 3(a)(3) of the Statute; DA is a primary subdivision of DOD within the meaning of Sec. 2421.5 of the Rules and Regulations; HDL is a subordinate activity of DA within the meaning of Sec. 2421.4 of the Rules and Regulations; American Federation of Government Employees, AFL-CIO, Local 2 (hereinafter, also, referred to as "Union") is a labor organization within the meaning of Sec. 3(a)(4) of the Statute; and the Union is, and has been since the early 1960's, the certified exclusive representative of HDL's guard force and janitorial employees in separate bargaining units; however, at no time material was there any collective bargaining agreement between the Union and HDL, although HDL and the Union were, at such time, engaged in negotiations looking toward a comprehensive bargaining contract for employees in the affected units. 2. On October 16, 1979, HDL was advised by DA that it was to be included in the paid parking program (G.C. Exh. 5). DA directed HDL that, beginning November 1, 1979, it must begin charging a monthly fee for parking private vehicles on the installation. The fee for HDL, "based on appraisals made by the Office, Chief of Engineers and . . . approved by GSA . . . " (G.C. Exh. 5) was fixed as $10.00 per month. 3. Prior to receipt of DA's notification of October 16, HDL had been led to believe it would be exempt from the paid parking program. Thus, in May, 1979, after announcement of the paid parking program at Federal installations, a program was initiated at HDL to determine what, if any, effect this program would have on it. HDL's review of Office of Management and Budget (OMB) Circular A-118 (G.C. Exh. 2) showed that the program specifically applied to those installations "in densely populated urban locations where commercial practice is to charge for the use of parking spaces." (G.C. Exh. 2). HDL is located in the Hillandale residential area of Montgomery and Prince Georges Counties, a low density, suburban, and primarily residential area. In addition, the nearest commercial parking facility is located more than 5 miles from the HDL site in downtown Silver Spring. Moreover, in August, 1979, HDL received a message that most Army installations would be exempted from the paid parking program (Tr. 79). 4. On October 17, Mr. Joseph M. Davis, of the HDL legal office, personally told Mr. Douglas H. Kershaw, National Representative of the American Federation of Government Employees, that HDL was to be included in the paid parking program (Tr. 67). 5. On October 19, Mr. Kershaw was provided a copy of the DOD Memorandum (Directive), dated October 11, 1979, Subject: Implementation of Personnel Parking Facilities Program (G.C. Exh. 17) which, inter alia, on an attachment entitled "Monthly Parking Charges", dated October 4, 1979, showed the monthly charge for HDL as $10.00 per month representing "one half appraised monthly rate or $10.00 whichever is larger per OMB Circular A-118 . . . . " (G.C. Exh. 17, Enclosures) and the DA TWX of October 15, 1979 (G.C. Exh. 5), which, inter alia, stated that the monthly charges, including the $10.00 per month fee for HDL, were "based on appraisals . . . . " Mr. Kershaw, at request of HDL's chief spokesman, Ms. Hering, made two "off the cuff" proposals: a) that HDL charge bargaining unit employees the same fee as was being charged in commercial parking lots adjacent to the HDL complex (obviously, as HDL and the Union well knew, there were no commercial parking lots adjacent to the HDL complex and Union was proposing, in reality, that no charge be made for bargaining unit employees); and b) that shift employees be exempted from the paid parking requirement. 6. On October 22, 1979, HDL requested a 120 day delay in implementing the program, a primary justification being that, "Because of the late notification . . . our negotiating team has been unable to conduct meaningful discussions with union representatives concerning this change in general working conditions. To implement this program prior to reaching agreement or going to impasse with the union on this matter, will not only have an adverse impact upon our present negotiations but may also subject the activity to an Unfair Labor Practice . . . . " (G.C. Exh. 10) 7. Also on October 22, 1979, HDL submitted an appeal for exemption from the requirements of the paid parking program (G.C. Exh. 8). 8. Both the request for delay and the appeal for exemption were indorsed by higher headquarters (G.C. Exhs. 22a-22c, 20a-20d) but were denied by DOD on November 19, 1979 (G.C. Exhs. 9c, 21). As to delay in implementation, DOD stated, in part, "Delay in implementation . . . should be avoided in view of the requirements of the OMB Circular . . . ) /10/ and as exemption stated, in part, "The Department of Defense does not have authority to exempt military installations . . . except as specified in OMB Circular A-118 and the draft DoD directive. None of the requests received to date have been justified for exemption on the basis of these regulations . . . . " 9. On October 25, 1979, HDL's draft implementing instructions, dated October 24, 1979, (G.C. Exh. 4) were hand-carried to Mr. Kershaw's office by Ms. Hering; however, Mr. Kershaw was not present and he testified that, as he noted on the draft copy, he received the document at 0800, October 26, 1979 (Tr. 51-52). The parties discussed HDL's draft on October 26. At the outset, Mr. Kershaw, as he readily admitted, stated that one of the simplest ways to avoid implementation of paid parking was to talk it to death, his assumption being that it could not be implemented while negotiations were in progress; but Ms. Hering told Mr. Kershaw that HDL was under direct orders to implement the program on November 1 and that it would be implemented on that date. Mr. Kershaw was advised that HDL had submitted a formal appeal requesting exemption and Mr. Kershaw proposed several times that negotiations be suspended on implementation because he was confident HDL would be excluded; however, Ms. Hering insisted that negotiations continue because she believed a response on the appeal would not be received by November 1. After a caucus, Mr. Kershaw presented several counter proposals. Again, Mr. Kershaw proposed that the monthly rate be equal to that charged by commercial lots in the vicinity and there was discussion of "vicinity", Mr. Kershaw proposing "three blocks" and HDL "five miles" (Tr. 53). Mr. Kershaw also renewed his proposal that all shift workers be exempt (Tr. 53) (management had, in fact, already agreed to Mr. Kershaw's October 19 proposal and its October 24 draft had exempted "Shiftworkers" as well as "those on weekend duty"; "Personnel on temporary duty not to exceed 2 weeks" and "Part-time volunteers, such as Red Cross or Travelers Aid personnel, Gray Ladies, or thrift shop helpers, etc."; and "Official visitors, including employment applicants, parking up to a limit of 3 hours." (G.C. Exh. 4, par. 5)) and management responded that they were exempt and that the afternoon shift of the janitors were exempt because they met the criteria, which I agreed, and that would leave approximately 20 people left in the janitor force that would be subject to paid parking" (Tr. 54). Mr. Kershaw further proposed that Union visitors park free; that WG-3's and below be exempt; and that the daily fee be 45[. Management asserted that it had no control over exempting union visitors, that DOD and DA regulations required that anything over three hours be charged for and had proposed a daily fee of $1.50 but, in response to Mr. Kershaw's proposal of 45[ made a counter proposal of $1.25. The Union agreed to encourage carpooling and/or use of mass transportation but declined to urge Union employees not to park in the surrounding residential area. Mr. Kershaw stated that management "indicated at that first session" that the monthly rate "was non-negotiable" (Tr. 58). Management had proposed that payment be permitted in cash, by money order or by payroll deduction. Ms. Hering told Mr. Kershaw she would have to check with payroll to see if payroll deductions was a feasible proposal. At the end of the January 26 session, several issues remained outstanding, including payroll deductions, exemptions for WG-3's and Union visitors, daily charge and Union support in discouraging unit employees from parking in residential areas. Mr. Kershaw advised Ms. Hering he would contact her the following Monday, October 29, concerning his availability for further discussions. 10. Mr. Kershaw did not contact Ms. Hering on October 29 as he had agreed to do at the conclusion of the October 26th meeting. On October 30, Ms. Hering attempted to reach Mr. Kershaw at his office but he was not in and did not respond to her message that he call regarding another negotiating meeting. 11. Ms. Hering called Mr. Kershaw again on October 31 and, again, left a message for him to call her. Late in the afternoon of October 31, Mr. Kershaw returned Ms. Hering's call and she told him she would meet with him that evening but Mr. Kershaw said he was not available and suggested negotiating by telephone and, accordingly, the issues, which had been left unresolved at the close of the October 26 meeting, were discussed by telephone. Ms. Hering testified that, "we declared two of them (open Union proposals) non-negotiable based on the DOD Directives" (Tr. 194); however, she did not identify the two proposals declared non-negotiable on October 31st. /11/ Ms. Hering on October 31 did advise Mr. Kershaw that paid parking would be implemented the following day, November 1 (Tr. 184-185). 12. HDL issued "Interim Parking Fee Policy", dated October 30, 1979 (G.C. Exh. 6), effective November 1, 1979, which, inter alia, set forth a daily rate of $1.00 per day, which was less than HDL's counterproposal to the Union on October 26 of $1.25, and provided for payment by check although, by inference cash appears acceptable. /12/ 13. Further meetings were held on November 9 and 21 on paid parking but, on November 21, further negotiations were suspended until January 25, 1980, although parking, by the Union's earlier declination to discuss the matter, was not discussed until February 9, 1980, and thereafter. B. Department of Defense and Department of the Army 14. OMB Circular No. A-118, "Federal Employee Parking Facilities", was issued on August 13, 1979 (G.C. Exh. 2), although, as Mr. Francis B. Roche, Director for Real Property and Natural Resources, Office of the Assistant Secretary of Defense for Manpower, Reserve Affairs and Logistics, testified, OMB had issued an initial draft in April, 1979, subsequently followed by a second and third draft reflecting comments and input from various agencies, including the Department of Defense, and DOD knew by about July 16, 1979, "approximately what this final circular would look like (Tr. 108). 15. General Services Administration issued Federal Property Management Regulations, Temporary Regulation D-65, on September 6, 1979. 16. DOD issued a draft Instruction on September 18, 1979 (G.C. Exh. 16) and its Directive on October 11, 1979, implementing the personnel parking facilities program encompassing all military installations, facilities, and properties, whether owned or leased, in the United States, its territories and possessions and the Commonwealth of Puerto Rico and, further, to all space in Government-owned or leased buildings assigned to DOD components by the GSA or to buildings leased by DOD components (G.C. Exh. 17). Mr. Roche testified that there was no difference in content, only semantical changes, between the Instruction and the Directive, although the Instruction did not carry the weight of a DOD Directive. The Department of the Army was, specifically, an addressee of each. Enclosure (2) to the Directive, dated October 4, 1979, listed the monthly parking fee for HDL as $10.00. /13/ 17. Lieutenant Colonel Paul T. Gerard, Department of the Army, Law Enforcement Division, Director of Human Resources Development, Office of the Deputy Chief of Staff for Personnel, testified that on the day he reported for duty, July 23, 1979, he attended a meeting of a steering group, chaired by Mr. Roche, whose function was to "come up with DOD guidelines for implementing "the paid parking program within the DOD; that he served as an adviser on this group from July 23 until the first of October, 1979; and that he had replaced another person from DA who had been on this team (Tr. 90-91). Colonel Gerard further testified that after he received the DOD Instruction in September, he "submitted some comments in the latter part of September to the Office of the Chief of Staff, United States Army" (Tr. 92) and that these comments were consolidated with other comments from DA staff and forwarded to DOD; that in the latter part of September he began work on a draft interim changes of Army Regulations 210-4 to incorporate provisions for paid parking; and that a draft of AR-210-4 "Interim Change", implementing the DOD Directive of October 11, 1979, was distributed by DA on October 17 and 19, 1979 (G.C. Exhs. 11, 12, 13). Colonel Gerard explained that he received the DOD Directive late in the afternoon on Friday, October 12, 1979; that over the weekend he worked on his rough draft of AR 210-4 to conform to the DOD Directive and to prepare something to send to concerned installations on Monday, October 15; and that a TWX (G.C. Exh. 5) was issued on October 15, 1979 (Tr. 94). 18. Colonel Clifton R. Goodwin, at the time of the hearing Director of the Systems Engineering and Technology Directorate, United States Army Research and Development Command, Electronics Research and Development Command, and from February, 1977, to December 4, 1979, had been Commander of HDL, testified that Lieutenant Colonel, then Major, Gerard had called him on October 16, 1979, to alert him to the fact that a message had been sent designating HDL as one of the installations where paid parking would be initiated (Tr. 78-79); that immediately thereafter he had gone to the message center and found the TWX, General Counsel's Exhibit 5 (Tr. 79); that no prior communication on paid parking had been received by HDL, except a message received in August that it was thought that Army installations might be exempted. A copy of the DOD Directive of October 11, 1979, was transmitted to various commanders, including HDL, on October 17, 1979, together with a copy of draft interim change to AR 210-4 (G.C. Exh. 11). The printed version of AR 210-4 was issued November 16, 1979 (G.C. Exh. 15). 19. By letter dated September 20, 1979, Mr. William C. Valdes, Acting Deputy Assistant Secretary of Defense (Civilian Policy), transmitted to Mr. Kenneth T. Blaylock, National President of American Federation of Government Employees, a copy of DOD's Instruction and asked, "that you review the draft Instruction and forward any comments to reach this office by the close of business on October 3 at the latest." (Res. Exh. 1). Mr. Ronald D. King, AFGE's Director of Contract and Appeals Division, declined Mr. Valdes' offer of national consultation and instead, suggested negotiation of DOD's Instruction. (Res. Exh. 2). Conclusions For reasons well stated by Judge Arrigo in DCASR, supra, which I fully adopt, "There is no contention that the OMB and GSA regulations on paid parking are negotiable matters. Indeed, it is clear that these regulations are Government-wide regulations within the meaning of Section 7117(a)(1) of the Statute, and, as such, no duty to bargain is required regarding the subject matter contained therein. However, the OMB parking regulation, while setting forth various specific instructions on paid parking, required GSA and all agencies to issue instructions relative to the implementation of the OMB regulation. DOD was, therefore, obligated to adopt the specific requirements of OMB and GSA but, nevertheless, was left discretion as to various practices and procedures relating to the implementation of the OMB and GSA regulations. "Sections 7117(a)(2) and (3) of the Statute govern an agency's duty to bargain with a union with regard to matters encompassed by agency wide regulations. Thus, under the Statute, an agency or a primary national subdivision of an agency is obligated to bargain with a union regarding matters encompassed by their regulations only where the union represents the majority of employees in the agency or primary national subdivision, or when the Authority has determined under 7117(b) of the Statute that no compelling need exists for the regulation . . . "In the case herein DOD's parking regulation of October 11, 1979 and DOA's regulation of October 19, 1979 were applicable to all their subordinate bodies and I conclude the DOD regulation was an 'agency' regulation and the DOA regulation was a regulation issued by a 'primary national subdivision of such agency' within the meaning of Section 7117(a)(3) of the Statute. Further, the Union herein /14/ does not represent a majority of the employees in DOD or DOA nor has the Authority determined that no compelling need exists for the DOD or DOA regulations in effect, the issue having never been presented to the Authority for such a determination. Accordingly, I conclude that prior to their issuance, neither DOD nor DOA was obligated to bargain . . . regarding the matters which were the subject of the parking regulations referred to herein. "However, the DOD and DOA regulations were not self implementing. Rather, in order to be effectuated, components subordinate to DOD and DOA were required to implement them as they would affect employees within their jurisdiction. The regulations did not provide for all possible contingencies and, therefore, various areas of discretion were left to the judgement of management at the level of actual employee location and union representation. "The Authority has held in National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA No. 119, that 'to the extent that an agency has discretion with respect to a matter affecting conditions of employment of its employees, that matter is within the duty to bargain of the agency.' Clearly, the paid parking program at the Facility is a condition of employment. Accordingly, I conclude that management was obligated under the Statute to negotiate . . . to whatever extent management had discretion under applicable Government-wide and agency regulations in the implementation of the paid parking at the Facility." (DCASR, supra, pp. 12-14) (footnotes omitted) (To like effect, see, also, Boston District, supra; Department of the Army, supra.) As noted above, I fully ascribe to Judge Arrigo's conclusions, set forth above, and the application of those conclusions to the particular facts of this case are discussed hereinafter. But first, is a further contention by the General Counsel concerning compelling need (General Counsel's Brief, pp. 16-19), an issue also considered in detail by Judge Arrigo in Boston District, supra. For reasons well stated by Judge Arrigo in Boston District, supra, which I fully adopt, I conclude that a determination of "compelling need" may not be made in an unfair labor practice proceeding. Judge Arrigo noted, in part, as follows: "Under section 7117(a)(2) and (3) of the Statute, an agency or a primary national subdivision of an agency is not obligated to bargain with a union regarding matters encompassed by their regulations unless a union represents the majority of employees in the agency or national primary subdivision or unless the Authority has determined, under section 7117(b) of the Statute, that no compelling need exists for the regulation . . . The Union herein (AFGE) does not represent the majority of employees in DOD or DOA . . . " . . . an examination of the legislative history of the Statute discloses the following explanation given by Senator Morris Udall on September 13, 1978 regarding the meaning of section 7117 ultimately enacted into law, termed the 'substitute' bill . . . : . . . . "'The substitute's section 7117 makes Government-wide rules and regulations an absolute bar to negotiations (subsection (a)(1)). "'Subsection (a)(2) of the substitute provides that agency rules or regulations are a bar to negotiations, subject to subsection (a)(3), unless a finding of "no compelling need" for the rule or regulation is made by the Authority (as determined under regulations prescribed by the Authority); . . . . " . . . the terms of section 7117 were meant to apply generally to all situations where an agency defends against a demand to negotiate on a matter by interposing the existence of an appropriate regulation. "Counsel for the General Counsel also suggests . . . that if the agency regulations stands as a bar to negotiations, then the proceeding herein served to put the issue of compelling need before the Authority for determination. In my view neither the Statute nor the Authority's regulations appear to envision this approach. Indeed, section 7117(b)(3) of the Statute provides that where a hearing is held to make a determination of compelling need, it, ' . . . shall not include the General Counsel as a party.' Accordingly, to combine a compelling need determination with an unfair labor practice proceeding, where the General Counsel has the responsibility of presenting the evidence in support of the complaint and carries the burden of proving the allegations of the complaint, would run contrary to Statutory prohibition. Therefore, Counsel for General Counsel's contention is rejected." (Boston District, supra, pp. 13-15) (footnotes omitted). For reasons set forth above, an agency regulation, whether issued by an agency, such as DOD, or by a primary national subdivision, such as DA, is not subject to negotiation unless the Authority has determined, pursuant to Sec. 17(b), that no compelling need exists for such rule or regulation. General Counsel's assertion that, "DOD and Department of the Army must demonstrate that a compelling need exists for specific provisions of their regulations which extend beyond the dictates of the Government-wide regulations . . . " (General Counsel Brief, p. 16), is without merit and is rejected. To the contrary, such regulations bar negotiations unless and until the Authority, pursuant to Sec. 17(b) determines that no compelling need exists for such rule or regulation. The Bargaining Obligation As set forth above, there was a duty to bargain with the Union as to matters not precluded by express provisions of Government-wide regulations or the regulations issued by DOD and DA. In this case, HDL, as the unit of exclusive recognition, was obligated to bargain with the Union. i) HDL's compliance with its obligations It must be recognized at the outset that this case involves a Government-wide regulation, OMB Circular No. A-118 (August 13, 1979, G.C. Exh. 2), supplemented by a further Government-wide regulation, GSA Temporary Regulation D-65 (September 6, 1979, G.C. Exh. 3), which, inter alia, provided that the paid parking program would be effective November 1, 1979. Both the DOD Instruction of September 18, 1979 (G.C. Exh. 16) and the Directive of October 11, 1979 (G.C. Exh. 17) provided for implementation of monthly fees beginning November 1, 1979. The effective date of implementation of the program, November 1, 1979, was not subject to negotiation by HDL inasmuch as the date of implementation had been fixed by OMB's Government-wide regulations as well as by agency regulation. HDL received notice on October 16, 1979, that it was to be included in the paid parking program; on October 17, 1979, HDL advised the Union; and on October 19, 1979, HDL gave the Union copies of DA's TWX of October 15 and DOD's Directive of October 11, 1979, and discussed the matter with Mr. Kershaw who gave HDL's Chief negotiator two "off-the-cuff" proposals. The parties did not meet again until October 26, 1979; however, on October 22, HDL: a) requested a 120 day delay in implementing the paid parking program, a primary justification being to allow completion of discussions with the Union; and b) filed an appeal for exemption. At the October 26, 1979, meeting HDL told the Union that the paid parking program would be implemented, pursuant to direct orders from higher headquarters, on November 1; the parties did enter upon meaningful negotiations but at the end of the October 26th session several items were unresolved. Although HDL was ready and willing to meet at any time convenient for the Union, Mr. Kershaw declined to meet over the weekend and told HDL's Chief negotiator that he would contact her the following Monday, October 29, concerning his availability for further discussions. Mr. Kershaw did not call on Monday, October 29, could not be reached on October 30, was still not in his office on October 31 and did not return Ms. Hering's calls until late in the afternoon on October 31. Mr. Kershaw refused Ms. Herings' offer to meet that night but, at Mr. Kershaw's request, there ensued a discussion by telephone. General Counsel is quite correct that negotiations were not fully completed by November 1, 1979, when HDL implemented paid parking. Indeed, as noted above, on one item, the daily rate, HDL placed into effect a daily rate which was less ($1.00) than its last counter proposal to the Union on October 26 ($1.25), and on another, method of payment, obviously, there had been no resolution of Union's proposal for payroll deductions. Nevertheless, under the circumstances I find no failure on the part of HDL to bargain in good faith. First, the Union failed to avail itself of the opportunity to continue negotiations. Second, the monthly rate for HDL had been fixed by DOD's Directive Enc. 2 and DA's TWX (G.C. Exh. 5) and Union's proposal for exemption of employees based on wage grade was precluded by the DOD Directive as well as DA's TWX and draft interim changes of AR 210-4 so that HDL's declaration, on October 26 and/or October 31, that these matters were not negotiable was correct. Nor were these proposals germane to impact and implementation of the regulations, cf., Delaware Army and Air National Guard, Case No. 23-CA-104 (ALJ, April 1981), but were, in fact, an attempt to "negotiate" the regulation which was not subject to negotiation unless and until the Authority should determine that no compelling need existed for the regulation. Third, the Union evinced a total lack of good faith as shown, inter alia, by its conceded objective to "talk it to death" and by its failure and refusal to meet after October 26. Fourth, HDL had, to the full extent possible, taken every action available to it. Thus, HDL had requested an extension of time for implementation of the program; had requested exemption; and had met with the Union to negotiate the matters left to its discretion by the regulations, i.e., impact and implementation of the regulations, and was available and ready to continue negotiations but Union failed and refused to meet. Fifth, HDL continued to meet with the Union after November 1st. Accordingly, I find no failure by HDL to negotiate in good faith nor did HDL violate the Statute by implementing the paid parking program on November 1, 1979. ii) Implementation of Government-wide Regulations Section 17(a) of the Statute wholly excludes from the duty to bargain "any Federal law or any Government-wide rule or regulation". Although not raised and, therefore not decided, I assume that if a Government-wide rule or regulation were effective immediately, bargaining on impact and implementation, at least prior to implementation, would be precluded. Here, while OMB issued a Government-wide regulation on August 13, 1979 (Circular No. A-118, G.C. Exh. 2), this regulation was not in all respects dispositive of all aspects of the paid parking program and, in particular as to military installations recognized the unique problems and in Paragraph 11 provided, in part, that, "The Secretary of Defense shall establish regulations at non-GSA controlled military installations consistent with this circular and the GSA regulations issued in conformance with this circular." Nevertheless, OMB by Government-wide regulations, had provided that the paid parking program should be made effective November 1, 1979, and the duty to bargain, pursuant to Sec. 17(a)(1) or (2), must not be "inconsistent with . . . any Government-wide rule or regulation". Accordingly, November 1, 1979, having been fixed by Government-wide regulation as the date of implementation of the paid parking program, the date of implementation of the program was not negotiable and DOD was obligated to act in conformance with the Government-wide regulation. Pursuant to Sec. 17(a)(2) and (3), as noted above, DOD and DA may issue regulations which are subject to bargaining only if: a) an exclusive representative represents not less than a majority of the employees in the issuing agency (DOD) or primary national subdivision (DA) or b) the Authority has determined that no compelling need exists for the rule or regulation. Neither condition pertains here. The fact that DOD's regulation narrowed the areas of discretion left both to DA and/or to management at the level of actual employee location and union representation is immaterial. The duty to bargain did not extend to matters subject to DOD's agency-wide regulation unless and until the Authority should determine that no compelling need exists for the rule or regulation. Where, as here, some discretion was left by DOD's regulation, I have found, in full agreement with Judge Arrigo's decisions in DCASR and Boston District, that there is both a right and an obligation to negotiate on those areas of discretion left to the judgment of management at the level of actual employee location and union representation. General Counsel asserts that DOD and DA acted in such a manner that the Union was deprived of the opportunity to bargain and, therefore DOD and DA violated Sec. 16(a)(1) by denying Union a meaningful opportunity to bargain with HDL. iii. DOD's Implementation OMB's Government-wide regulation on paid parking issued on August 13, 1979 (G.C. Exh. 2); GSA's Temporary Regulation D-65 issued on September 6, 1979 (G.C. Exh. 3); and DOD's Instruction issued on September 18, 1979 (G.C. Exh. 16). The transmittal stated, inter alia, "The enclosed draft DOD Instruction is intended to implement OMB Circular A-118 . . . . " The Instruction provided, in part, that, "1. This Instruction applies to the Office of the Secretary of Defense, the Military Departments, and the Defense Agencies (hereafter referred to as 'DOD Components'). "2. Its provisions encompass all military installations, facilities, and properties in the United States, its territories and possessions, the Commonwealth of Puerto Rico, and the Canal Zone whether owned or leased." . . . . "EFFECTIVE DATE AND IMPLEMENTATION "This Instruction is effective immediately. Forward two copies of implementing documents to the Assistant Secretary of Defense (Manpower, Reserve Affairs and Logistics) within 60 days of the date of this Instruction." (G.C. Exh. 16). Although the record shows that comments were submitted to DOD by, among others, DA, and that DOD issued its Directive on October 11, 1979, (G.C. Exh. 17), the Instruction, by its terms, was effective when issued, implemented OMB Circular A-118, and was obligatory to all DOD Components. Whether an agency rule or regulation is not before me. It was, in either event, an agency implementation of OMB Circular A-118; AFGE was, pursuant to Sec. 13 of the Statute, informed and permitted reasonable time to present its views; and all DOD Components, including DA, were given notice, as of September 18, 1979, of the parking program to be implemented November 1, 1979. The record firmly shows that DOD issued its Instruction with expedition after issuance of GSA's regulation, which was an essential prerequisite, and that its Instruction, provided full notice to all DOD Components on September 18, 1979, of its implementation of OMB Circular A-118 beginning November 1, 1979. DOD, obviously, acted with all reasonable dispatch and its Instruction afforded the maximum notice possible to all DOD Components of the implementation of OMB Circular A-118. Inasmuch as the DOD Instruction implemented OMB Circular A-118, it cannot be said that implementation was deferred by DOD pending issuance of its Directive on October 11, 1979, and/or that by delay in issuance of the Directive until October 11, 1979, DOD deprived the Union of a meaningful opportunity to bargain with HDL. iv. DA's Implementation The record shows that DA, although it submitted comments to DOD on the DOD Instruction, gave no notice to HDL either that HDL was to be included in the paid parking program or of the DOD Instruction. Indeed, the record shows that DA's first notice to HDL was on October 15, 1979 (G.C. Exh. 5), and was received by HDL on October 16, 1979. As noted above, the DOD Instruction implemented OMB Circular A-118 and DA, since a component activity performed the appraisal (See, G.C. Exhs. 18 and 19), knew by September 18, 1979, that an appraisal had been made of fair rental rates for outside parking at HDL. The failure of DA to give HDL notice, after receipt of the DOD Instruction, of the implementation of OMB Circular A-118 did, wholly without justification, severely restrict the Union's opportunity to bargain since, as the result of DA's failure to give notice to HDL of the DOD Instruction, HDL was not given notice until October 15, 1979, that it was to be included in the paid parking program effective November 1, 1979. Nevertheless, under the circumstances, I do not find that DA's failure to give HDL notice of the DOD Instruction, although without justification, deprived the Union of a meaningful opportunity to bargain with HDL so as to constitute a violation of 16(a)(1) of the Statute. First, perhaps contrary to my brother Judge Arrigo's conclusion in Department of the Army, supra, that "DOA inherently was given wide discretion in establishing and effectuating the details of the plan it chose to have implemented at its installations" (p. 9), I can perceive very little discretion left to DA /15/ and/or HDL. Second, HDL gave Union notice on October 17, 1979, and the parties met on October 19 and 26. Within the time available prior to the date of implementation, November 1, 1979, there was an opportunity for meaningful negotiations on the limited areas subject to negotiations, thwarted only by Union's failure and refusal to meet and negotiate. Third, implementation of the paid parking program at HDL on November 1, 1979, was controlled, in any event, by OMB Circular A-118, the DOD Instruction and the DOD Directive, subject, at most, to negotiations as to a daily rate and method of payment and HDL continued negotiations with the Union after November 1, 1979, until negotiations were suspended by Union. Accordingly, I do not find that DA's delay is giving notice to HDL deprived the Union of a meaningful opportunity to bargain with HDL. Mootness Pursuant to the injunction of the Authority in Case No. O-NG-229, supra, I have considered "issues as to whether, in the circumstances of this case, the Agency would have an obligation to bargain on other matters concerning the general subject of paid parking". I have serious reservations as to what issues, "apart from the particular paid parking program which is the subject of the proposals disputed in the instant appeal" remained for consideration. As an alternative basis I further conclude, as the Authority concluded in the negotiability appeal in this case, that this proceeding was rendered moot by the discontinuance of the paid parking program at HDL. This case, unlike DCASR and Boston District, supra, did not involve a refusal to bargain by HDL. To the contrary, the parties did bargain both before and after November 1, 1979, and, although I have found that, under the circumstances, DA's failure to give HDL notice of DOD's Instruction, which failure did severely restrict the Union's opportunity to bargain, did not deprive the Union of a meaningful opportunity to bargain with HDL. Even if I were wrong in this conclusion, DA's failure to give a more timely notice to HDL was rendered moot by the discontinuance of the paid parking program at HDL. Having found no violation of Secs. 16(a)(1) or (5) of the Statute by Harry Diamond Laboratories, Department of Defense, or Department of the Army; or, in the alternative, that if the Department of the Army violated Sec. 16(a)(1) of the Statute by its failure to give Harry Diamond Laboratories prompt and timely notice of Department of Defense's Instruction implementing, on September 18, 1979, OMB Circular A-118, such violation was, in any event rendered moot by the discontinuance of the paid parking program at Harry Diamond Laboratories, I recommend that the Authority issue the following, ORDER IT IS HEREBY ORDERED that the Complaint in Case Nos. 3-CA-719, 3-CA-889, and 3-CA-970 be, and it hereby is, dismissed. WILLIAM B. DEVANEY Administrative Law Judge Dated: May 18, 1981 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1) and (5) provides: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce an employee in the exercise by the employee of any right under this chapter; . . . . (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.) /2/ See Department of Housing and Urban Development, 9 FLRA 136 (1982). /3/ See Defense Logistics Agency (Cameron Station, Virginia), 12 FLRA No. 86 (1983), appeal docketed, No. 83-2017 (D.C. Cir. Sept. 26, 1983). /4/ The Judge found, and the Authority agrees, that the Union was not deprived by DOD or DOA of a meaningful opportunity to bargain with HDL. /5/ Compare Department of Health and Human Services, Social Security Administration, Region VI, and Department of Health and Human Services, Social Security Administration, Galveston, Texas District, 10 FLRA 26 (1982); Department of the Interior, Water and Power Resources Service, Grand Coulee Project, Grand Coulee, Washington, 9 FLRA 385 (1982). /6/ During the pendency of the instant case before the Authority, the United States District Court for the District of Columbia ruled that the paid parking plan, as embodied in OMB Circular A-118, was invalid, and ordered that the GSA regulation be set aside and its enforcement permanently enjoined. American Federation of Government Employees, AFL-CIO, et al. v. Freeman, 510 F.Supp. 596 (D.D.C. 1981). Thereafter GSA revised the regulation to suspend the collection of parking fees in accordance with the injunction. (46 F.R. 40191 (1981)). The District Court's decision was subsequently reversed. American Federation of Government Employees, AFL-CIO, et al. v. Carmen, Civil Action No. 81-1244 (D.C. Cir. Dec. 15, 1981). However, President Reagan has stated that the collection of parking fees will not be reinstated. Statement by the President on Parking Fees for Federal Employees, 17 Weekly Comp. of Pres. Doc. 1378 (Dec. 17, 1981). /7/ For convenience of reference, Sections of the Statute are, also, referred to hereinafter without inclusion of the initial "71", e.g., Section 7116(a)(1) will be referred to as "16(a)(1)". /8/ Counsel for General Counsel filed a Motion to Correct Transcript, received on September 12, 1980, to which no opposition was filed and, finding the requested corrections wholly proper, the motion is granted and the transcript is hereby corrected as follows: Page Line Change As Corrected 52 1 "10-24-79" "10-26-79" 99 2 "November 1979" "November 1977" 110 1 "General Counsel "General Counsel Exhibit 30" Exhibit 3" /9/ Obviously, the facts are interrelated, but as respects the obligation of each entity under the Statute, the facts pertinent to Department of Defense and Department of the Army are separately stated. /10/ I am aware that in the Boston District case, supra, the paid parking program was, apparently despite quite specific instructions to implement the program by November 1, 1979, deferred until December 1, 1979. /11/ By inference, it is assumed that one item declared non-negotiable on October 31 was Mr. Kershaw's commercial lot in the vicinity rate proposal but the date of a telephone conversation given was October 25 (Tr. 190) not October 31. As a practical matter, the Union's proposal that WG-3's and below be exempted and the commercial rate in the vicinity had been declared non-negotiable, inasmuch as Mr. Kershaw testified that management "indicated" that the monthly rate "was non-negotiable" (Tr. 58) and as to WG-3 and below exemption, "They rejected it . . . Because they had no authority as the regulations issued." (Tr. 55). Accordingly, the only fully open Union proposals after October 26 were: a) daily rate and b) method of payment, in particular, payroll deductions. /12/ The only reason for hesitation is that the Union had proposed payment by cash or money order, and such alternatives are wholly absent from HDL's Interim Parking Fee Policy implementation and the record does not show agreement that either cash or money orders would be accepted; nevertheless, it strains credulity to believe that cash would not be acceptable, e.g., "visitors who exceed the three hours free-parking limit will be required to exit at building 200 and to pay a $1.00 fee at that time." /13/ Pursuant to memorandum of August 3, 1979, to Chief of Engineers, Department of the Army Commander, Naval Facilities Engineering Command (G.C. Exh. 18); appraisal for HDL was dated August 31, 1979 (G.C. Exh. 19) (Estimated fair rental rate for outside parking $15.00 - rates in Wheaton, MD $16.00 less $1.00 = $15.00). /14/ I am aware that DCASR did not involve the American Federation of Government Employees; but Boston District, supra, and Department of the Army, supra, did, and Judge Arrigo in each of those cases specifically found that AFGE did not represent the majority of employees in DOD or DOA. The record here is fully in accord and I, also, find that AFGE did not represent a majority of employees in DOD or DA. /15/ DA's regulation, pursuant to Sec. 17(a)(2) and (3), issued by a primary national subdivision of DOD would not be subject to the duty to bargain unless the Authority had determined that no compelling need exists for the regulation; however, AR 210-4, as stated by the Intervenor, "made no changes of any significance, but rather was in nearly all respects a verbatim republication of Respondent Defense's instruction in the format used for directives of the Respondent Army." (Intervenor's Brief, pp. 15-16).