15:0720(142)CA - Boston District Recruiting Command, Boston, MA and AFGE Local 1900; Commander, Fort Devens, Fort Devens, MA and AFGE Local 1900; 94th Army Reserve Command, Hanscom AFB, MA and AFGE Local 1900; Army, Washington, DC and AFGE Local 1900; DOD, Washington, DC and AFGE Local 1900 -- 1984 FLRAdec CA
[ v15 p720 ]
15:0720(142)CA
The decision of the Authority follows:
15 FLRA No. 142
BOSTON DISTRICT RECRUITING COMMAND
BOSTON, MASSACHUSETTS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1900
Charging Party
Case No. 1-CA-206
COMMANDER, FORT DEVENS,
FORT DEVENS, MASSACHUSETTS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1900
Charging Party
Case Nos. 1-CA-207
1-CA-208
94th U.S. ARMY RESERVE COMMAND
HANSCOM AIR FORCE BASE, MASSACHUSETTS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1900
Charging Party
Case No. 1-CA-209
DEPARTMENT OF THE ARMY
WASHINGTON, D.C.
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1900
Charging Party
Case No. 1-CA-303
DEPARTMENT OF DEFENSE
WASHINGTON, D.C.
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1900
Charging Party
Case No. 1-CA-304
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled consolidated proceeding, finding that Respondents had
engaged in certain unfair labor practices alleged in the complaint, and
recommending that they be ordered to cease and desist therefrom and take
certain affirmative action. The Judge further found that the
Respondents had not engaged in certain other unfair labor practices and
recommended dismissal of the complaint with respect to them. Exceptions
to the Judge's Decision were filed by the General Counsel and
Respondents Department of Defense (DOD, Department of the Army (DOA),
and Fort Devens, an opposition to Fort Devens' exceptions was filed by
the General Counsel, and a brief amicus curiae was filed by the Office
of Personnel Management (OPM). /1/ parkinson
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order, only to the extent
consistent herewith.
The consolidated complaint alleged, inter alia, that Respondents DOD
and DOA, through the issuance of various directives, violated the
Statute by interfering with the right of the Charging Party, American
Federation of Government Employees, AFL-CIO, Local 1900 (the Union), to
bargain with respect to the impact and implementation of the paid
parking program. More specifically, it is asserted that DOD and DOA
were obliged under the Statute to bargain with the Union prior to
issuing directives to subordinate elements where the directives went
beyond the requirements of Government-wide regulations issued by the
Office of Management and Budget (OMB Circular No. A-118) and the General
Services Administration (Federal Property Management Regulations Temp.
Reg. D-65).
However, the Union is not the exclusive representative of a unit of
employees at the DOD or DOA level, but exclusively represents
appropriate units of employees in the Boston District Recruiting Command
(hereinafter Recruiting Command), and the 94th U.S. Army Reserve Command
(hereinafter 94th Command)-- i.e., at subordinate levels within the
agency. 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. 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, absent such exclusive recognition at
those levels, DOD and DOA 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
and DOA prevented those subordinate elements from fulfilling their duty
to bargain with the Union at the level of exclusive recognition, /4/ the
Authority finds that the complaint must be dismissed to the extent it
alleges that DOD and DOA violated section 7116(a)(1) and (5) of the
Statute. /5/
With respect to that portion of the complaint alleging a failure to
bargain over the impact and implementation of the paid parking program
by Respondents Fort Devens, Recruiting Command and 94th Command, the
Authority concludes, for the reasons which follow, that the complaint
must be dismissed against Fort Devens. The Authority further concludes,
however, that a violation of the Statute has occurred with respect to
the conduct of the Recruiting Command and the 94th Command.
As previously stated, the duty of an agency under the Statute is to
negotiate with an exclusive representative of an appropriate unit of its
employees concerning their conditions of employment, except as provided
otherwise by Federal law or regulation. The record in this case
indicates that, in October 1979, Fort Devens learned that it would be
responsible for implementing the paid parking program for the South
Boston Support Activity which housed a number of tenant activities,
including the Recruiting Command and the 94th Command. On November 6,
1979, a meeting was held between representatives of Fort Devens, the
Recruiting Command and the 94th Command, as well as other tenant
activities, and the Union, concerning the paid parking program. At the
meeting, the Union President asked whether the representative of Fort
Devens would be willing to bargain over the matter and the latter
replied that he would be willing to do so. Subsequently, on November 8,
the Union sent a letter to Fort Devens and also to the 94th Command
requesting to bargain over the impact and implementation of various
aspects of the program. The same letter was sent to the Recruiting
Command on November 10. No response was made by the Recruiting Command
to the Union's written request. However, in a separate, unrelated
bargaining session between the Union and the Recruiting Command in which
the matter of paid parking was briefly discussed, the latter indicated
that the matter was a presidential decision and therefore there was
nothing on which to negotiate. On November 17, the 94th Command replied
that Fort Devens would be the appropriate party with which to negotiate
since the latter was responsible for implementing the paid parking
program. In the meantime, Fort Devens had indicated its willingness to
bargain and, on November 26, Fort Devens and the Union met to negotiate
various aspects of the program.
In the Authority's view, the statutory obligation to bargain over the
impact and implementation of the paid parking program existed only at
the Recruiting Command and the 94th Command, at which level there exist
the units of exclusive recognition represented by the Union herein.
Therefore, management at each of these Commands was obligated to
bargain, upon request, over various aspects of the program to the extent
of its discretion, i.e., insofar as such matters concern conditions of
employment and do not involve matters inconsistent with law,
Government-wide rule or regulation, or an agency regulation for which a
compelling need exists. See American Federation of State, County and
Municipal Employees, AFL-CIO, Local 2477 and Library of Congress,
Washington, D.C., 7 FLRA 578 (1982), enforced sub nom. Library of
Congress v. Federal Labor Relations Authority, 699 F.2d 1280 (D.C. Cir.
1983). The record indicates, with respect to the 94th Command, that
following receipt of the Union's request to bargain, the 94th Command
stated that Fort Devens would be the appropriate bargaining party and
noted that Fort Devens had already invited the Union to bargain. By the
conduct of the 94th Command in referring the Union to Fort Devens and by
the conduct of Fort Devens in subsequently meeting and bargaining with
the Union, the Authority finds that Fort Devens was acting in a
representative capacity for the 94th Command which, as a matter of law,
at all times retained the statutory duty to bargain at the level of
exclusive recognition concerning unit employees' conditions of
employment. /6/ Thus, any improper acts or conduct engaged in by Fort
Devens would be attributable to the 94th Command, and not to Fort Devens
which itself had no statutory bargaining obligation vis-a-vis 94th
Command's employees in the bargaining unit represented by the Union.
Accordingly, when Fort Devens refused to bargain over the issue of a
daily parking rate as found by the Judge, in its representative capacity
for the 94th Command, the Authority concludes that such refusal
constituted a violation of section 7116(a)(1) and (5) of the Statute by
the 94th Command. Additionally, with regard to those Union proposals
which were asserted to conflict with DOD or DOA regulations, as the
record fails to demonstrate that a compelling need existed for those
regulations so as to bar negotiations on conflicting proposals, /7/ the
Authority concludes that Fort Devens' improper refusal to bargain over
such matters, again in its capacity as a representative of the 94th
Command, also constituted a violation of section 7116(a)(1) and (5) of
the Statute by the 94th Command. However, no violation will be found
with respect to a failure to bargain over those proposals which
conflicted with Government-wide regulations on paid parking, as found by
the Judge, and on those matters concerning which Fort Devens deferred
negotiations with the Union's acquiescence.
The Authority further concludes, but for a different reason, that the
Recruiting Command violated the Statute. As previously noted, the
Recruiting Command failed to negotiate following the Union's request to
bargain over the impact and implementation of the paid parking program
as it affected the Recruiting Command's employees in the bargaining unit
represented by the Union, and took the position instead that there was
nothing on which to negotiate, although as agency management at the
level of exclusive recognition, it was obligated to do so to the extent
of its discretion. The Authority thus finds that the Recruiting
Command's failure to bargain to this extent constituted a violation of
section 7116(a)(1) and (5) of the Statute. /8/
With regard to an appropriate order to remedy the unfair labor
practices found, the Authority concludes that, inasmuch as there is no
regulation in effect at this time requiring the collection of parking
fees, /9/ it is unnecessary to order that Respondent's Boston District
Recruiting Command and the 94th U.S. Army Reserve Command negotiate with
the Union regarding this matter at the present time.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, IT IS
HEREBY ORDERED that the Boston District Recruiting Command and the 94th
U.S. Army Reserve Command, shall:
1. Cease and desist from:
(a) Failing or refusing to give notice to and, upon request, bargain
with the American Federation of Government Employees, AFL-CIO, Local
1900, the exclusive bargaining representative of its employees located
at the South Boston Support Activity, before implementation of any
aspect of a 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
purpose and policies of the Statute:
(a) Post at the South Boston Support Activity copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by the
Commanders of the Boston District Recruiting Command and the 94th
Command, or their designees, and shall be posted and maintained by them
for 60 consecutive days thereafter, in conspicuous places, including
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that such
Notices are not altered, defaced, or covered by any other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region I, in writing, within
30 days from the date of this Order, as to what steps are being taken to
comply herewith.
IT IS FURTHER ORDERED that 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., August 28, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to give notice to and, upon request,
bargain with the American Federation of Government Employees, AFL-CIO,
Local 1900, the exclusive representative of employees located at the
South Boston Support Activity, before implementation of any aspect of a
paid parking program which may be established by Government-wide rule or
regulation.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce 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 Regional
Director, Region I, Federal Labor Relations Authority, whose address is:
441 Stuart Street, 9th Floor, Boston, MA 02116, and whose telephone
number is: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Samuel S. Horn, Esq.
For Respondents Department of Defense
and Department of the Army
William S. Key, Captain
For Respondents Boston District Recruiting
Command and Commander, Fort Devens
Neil J. Roche, Esq.
For Respondent 94th U.S. Army Reserve Command
John M. Esposito, President
For the Charging Party
James R. Collins, Esq. and
Richard D. Zaiger, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This case arose under the provisions of the Federal Service
Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq.
(herein referred to as the Statute) and the Rules and Regulations issued
thereunder.
Upon unfair labor practice charges filed by the American Federation
of Government Employees, AFL-CIO, Local 1900, (herein the Union) against
the Boston District Recruiting Command, Boston, Massachusetts, the 94th
U.S. Army Reserve Command, Hanscom AFB, Massachusetts, and the
Commander, Fort Devens on November 29, 1979 and against the Department
of the Army and the Department of Defense on March 24, 1980, the General
Counsel of the Authority, by the Regional Director for Region 1, issued
an Order Consolidating Cases, Complaint and Notice of Hearing on March
31, 1980 alleging Respondents engaged in unfair labor practices within
the meaning of sections 7116(a)(1) and (5) of the Statute. The
complaint, as amended at the hearing, essentially alleges that
Respondents together violated the Statute by failing to bargain in good
faith with the Union over the impact and implementation of a paid
parking program and Respondents Department of the Army and Department of
Defense, through the issuance of various directives, violated the
Statute by interfering with the Union's right to bargain with respect to
the paid parking program. /10/
A hearing on the complaint was conducted on May 22, 1980 in Boston,
Massachusetts, at which time the parties were represented and afforded
full opportunity to adduce evidence and call, examine and cross-examine
witnesses and argue orally. The parties joint request for an extension
of time to August 8 to file briefs was granted and briefs filed by the
parties have been duly considered. /11/
Upon the entire record in this matter, my observations of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
Background
The Department of Defense (herein DOD), an "Agency" within the
meaning of section 7117 of the Statute, is composed of numerous
subordinate bodies including the Department of the Army (herein DOA), a
"primary national subdivision" of DOD within the meaning of section 7117
of the Statute. DOA, in turn, is also comprised of subordinate
components, including the Boston District Recruiting Command (herein the
Recruiting Command), the 94th U.S. Army Reserve Command, Hanscom AFB,
Massachusetts (herein the 94th Command) and Fort Devens, Massachusetts
(herein Fort Devens), all of which are responsible to DOA through
various separate chains of command.
The Secretary of Defense is the highest authority within DOD, Overall
policy and coordinating responsibilities for labor-management relations
rest with the Office of the Secretary of Defense (OSD), which is
organizationally one level below the Secretary and Deputy Secretary of
Defense. While it is not OSD's normal procedure to direct subordinate
elements in labor negotiations, OSD does take positions on behalf of the
entire agency when issues of negotiability are brought before the
Authority. Accordingly, whenever an issue of importance to the agency
arises, OSD attempts to develop a DOD policy on the matter and if a
policy is adopted, subordinate components are obligated to adhere to
that position.
If problems arise with respect to a subordinate component's
labor-management relations program the component can and does seek
assistance and guidance from OSD. Regardless of whether a subordinate
component requests assistance from OSD, if OSD perceives that the
component has a labor-management problem, OSD can impose its policy and
authority on that component.
With regard to regulations issued by DOD, it is a common occurrance
for subordinate components to seek advice from OSD when the component
has a questions as to the meaning or implementation of the regulation.
At all times material hereto the Union has been the exclusive
collective bargaining representative of two separate appropriate units
of employees in the Recruiting Command and the 94th Command. Both the
Recruiting Command and the 94th Command are tenants at an installation
located at 666 Summer Street, Boston, Massachusetts, known as the South
Boston Support Facility (herein the South Boston Facility or the
Facility) and each Command has approximately 30 unit employees working
at that location. The physical property which constitutes the Facility,
including the parking lot, is under the managerial jurisdiction and
control of Fort Devens. /12/
The Paid Parking Program
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. /13/ According to OMB, a basis for charging for the use of
parking facilities needed to be established which was equitable among
employees and consistent with related policies regarding air quality,
energy conservation and reduced traffic congestion. In the Circular OMB
stated, in part:
" . . . It is the general policy of the executive branch to
limit Federal installation parking facilities to the minimum
necessary, to administer those facilities in full compliance with
carpooling regulations, and to assess Federal employees,
contractor employees and tenant employees who are provided parking
in Government-controlled space a charge equivalent to the fair
monthly rental value for the use of equivalent commercial space,
subject to the terms, exemptions and conditions stated in this
Circular."
The ten page Circular specifically addressed such matters as
conditions for exemptions from fees, the priorities to be considered for
the allocation and assignment of parking spaces, the establishment of
charges for employee parking, and the determination of rates. With
regard to matters concerning fees for parking, the Circular provided,
inter alia:
"a. Establishment of charges. Charges for employee use of
Government-owned or leased parking facilities shall be assessed at all
locations except where the rate, as determined in c. below, would be
less than $10.00 per month. For the initial period November 1, 1979,
through September 30, 1981, the charges to be collected shall be 50
percent of the full rate scheduled to be collected. If the full rate is
calculated to be between $10.00 and $19.99, the monthly charge between
November 1, 1979 and September 30, 1981, shall be $10.00. The full
charge shall be collected after October 1, 1981."
As to the determination of rates to be charged, the Circular stated:
" . . . The Administrator of GSA shall determine the rate to be
charged for Government furnished employee parking at each facility using
generally accepted appraisal techniques. Agencies other than GSA which
hold title to property and desire to arrange their own appraisals must
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 regulation 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 determination to be applied retroactively to
November 1. With guidance from GSA, agencies were permitted to conduct
their own appraisals to set parking rates. However rates developed in
this fashion were to be submitted to GSA for review and approval.
Agencies were further required to " . . . issue such instructions as may
be needed to maximize carpooling and implement the provisions of this
Circular and regulations issued by GSA". The OPM Circular also provided
that final agency regulations should be issued prior to November 1,
1979.
Pursuant to the above OMB Circular, GSA issued Government-wide
regulation FPMR Temp. Reg. D-51, dated September 6, 1979. /14/ The GSA
Federal employee parking regulation designated November 1, 1979 as the
effective date for agency implementation of the regulation and imposed
on agencies specific requirements relating to priority assignments of
parking spaces for non-employees and employees, methods to establish
parking fees, and rates to be charged, all of which were in accordance
with the OMB Circular. The GSA regulation provided that at non-GSA
controlled facilities, as in the cases herein the responsible agency
would allocate employee parking in accordance with OMB Circular No.
A-118.
On September 20, 1979 DOD forwarded a draft DOD "Instruction"
implementing OMB Circular A-118 to the National President of the
American Federation of Government Employees (AFGE). An accompanying
letter indicated that the Federal parking program mandated by OMB,
including assessment of fees, would become effective 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 suggested " . .
. that negotiating the . . . issues relating to parking are the best
actions which AFGE could pursue to successfully combat parking fees for
Federal employees." /15/
On October 11, 1979 DOD issued an "advance copy" of its interim paid
parking regulation to subordinate command activities. /16/ The DOD
directive designated the specific parking fees which would be charged at
various installations effective November 1, 1979. The parking fee for
South Boston Facility was set at $10.00 a month. /17/ A cover letter
accompanying the directive noted that the advance copy was being
provided " . . . to permit implementation of the President's program,
particularly the paid parking aspect, on November 1, 1979 . . . ". The
DOD directive designated specific parking fees which would be charged at
numerous DOD installations, including those controlled by DOA, effective
November 1, 1979. Further, the DOD regulation incorporated elements of
the OMB and GSA directives; set out an expanded list of specific
classes of personnel and vehicles which would be exempt from payment of
parking fees; set out certain priorities in the assignment and
allocation of parking spaces; and designated those responsible to
implement and enforce the regulation at various subordinate managerial
levels. In addition, DOD, inter alia, required Secretaries of the
military Departments and Directors of defense agencies to operate,
control and issue instructions relative to the paid parking program in
accordance with the provisions of the related OPM Circular, the GSA
regulation and the DOD directive.
DOD's directive treated numerous subjects in a rather comprehensive
manner thereby substantially limiting DOA's flexibility to independently
fashion its own regulations for implementation at the installation
level. Nevertheless, various matters in the DOD directive provided DOA
with considerable discretion including: establishing the number of
spaces assigned to employees working unusual hours; developing
incentives to encourage and facilitate the use of car and van pools and
public transportation; 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, DOA was left a substantial range of possible
avenues to utilize in implementing a paid parking program.
On October 19, 1979 DOA provided to its subordinate installations,
including Fort Devens, advance copies of its own regulation implementing
DOD's parking regulation of October 11. DOA's regulation (postdated to
October 24) took the form of an interim change to DOA parking regulation
AR 210-4. The DOA regulation essentially incorporated and made more
explicit the requirements contained in the OMB Circular and the GSA and
DOD regulations and required installation commanders to institute a
permit, fee collection and carpool program at their facilities. The
directive changed existing DOA parking regulations and provided guidance
to installation commanders on such matters as: the personnel to be used
to implement the program; alternatives available to installation
commanders for 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 discretion in implementing the program at
their local facilities and reminded installation commanders of the
obligation under the Statute " . . . to negotiate with exclusively
recognized labor organizations over the impact and implementation of the
installation's parking plan."
Fort Devens first received knowledge that a paid parking program
would be instituted at the South Boston Facility through receipt, in
mid-October 1979, of the October 11, 1979 DOD parking directive. Around
this time Colonel John M. Cononico, Director of Personnel and Community
Activities, Fort Devens, was informed by DOA through Forces Command,
Fort Devens next superior level in the chain of command, that Fort
Devens would be responsible for implementing the paid parking program at
the Facility. Colonel Cononico was placed in charge of implementing the
plan and on October 19 submitted a request to higher authority that Fort
Devens be excepted from the requirement for instituting a paid parking
program. Nevertheless, Cononico at the same time began to "gear up" to
implement a program. Sometime during the third week of October Fort
Devens received DOA's paid parking regulations dated October 19 and
Cononico was told on October 31 that, notwithstanding the pending
request for an exception, he was to implement a paid parking program at
the Facility by November 1, 1979.
The South Boston Facility houses approximately 25 "tenant"
activities, including the Recruiting Command and the 94th Command, and
contains approximately 800 parking spaces, the assignment of which were
under the control of Fort Devens. At Colonel Cononico's request the
various activity representatives at Fort Devens, including the
Recruiting Command and the 94th Command, met on November 6, 1979. AFGE,
Local 1900 was represented at the meeting by its President, John
Esposito. Copies of the DOA regulations of October 19 were circulated
and Colonel Cononico informed those in attendance that a paid parking
program was to be inaugurated at the Facility pursuant to order of the
President of the United States. It was explained that a survey would be
conducted to facilitate the use of carpools and permits for parking
would be issued at a cost of $10.00 per month, payable in advance,
beginning on or about December 1, 1979. The matter of a daily parking
fee, which was provided for in the DOA regulation, supra, was questioned
and Cononico replied that the Facility's program would not include a
daily parking fee since there was inadequate staff at Fort Devens to
implement that provision of the regulation. Various other questions
asked by those in attendance were responded to by management quoting
from "existing directives". Union President Esposito suggested that
management was not demonstrating good faith in this matter since a
change in a condition of employment was being implemented without prior
notice to the exclusive representatives of bargaining units at the
Facility. /18/ Colonel Cononico responded that the Union had its
"avenues to follow" if it felt it had a problem or objection. Esposito
asked if Cononico was willing to bargain with the Union on the matter
and Cononico answered in the affirmative. Immediately following the
meeting Esposito told Cononico he would be sending a letter requesting
bargaining over the impact and implementation of the paid parking
program.
On November 8, 1979, the Union sent the following letter to Fort
Devens and the 94th Command: /19/
"At a meeting convened by the Deputy Commander, Fort Devens, at
1100 Hours, 6 November 1979, at Fox Corner Auditorium, located at
the Boston USAR Center, AFGE Local 1900 was informed that the
Commander, Fort Devens, is implementing a Personal Parking
Facilities Program. This is a unilateral change of a condition of
employment and is being done without prior notice and notification
to Local 1900, the exclusive representative of the 94th ARCOM and
Boston DRC civilian employees, tenants of the Boston USAR Center.
"Accordingly, by copy of this letter, Local 1900 requests to
negotiate the impact and implementation of this program
immediately. The areas which we seek to negotiate are as follows:
"a. Allocation of parking spaces.
"b. Determination of exemptions from parking fees, in addition
to those set by OMB or GSA.
"c. Choice of appraisal techniques and the determination of
actual fees to be charged.
"d. Method of payment of fees, especially to avoid undue
hardship to lower paid employees.
"Non-compliance with our request within five working days from
receipt of this letter will be considered an unfair labor practice
and will initiate the charge.
"Further, until negotiations are completed, no positive action
will be taken and any implementation shall be deemed in violation
of the Civil Service Reform Act of 1978 and an unfair labor
practice charge as well as a motion for temporary restraining
order will be filed with the Federal Labor Relations Authority."
By letter to the Union dated November 9, 1979, Fort Devens indicated
its willingness to bargain with the Union "at the nearest possible date
and time that is agreeable to all parties", and, inter alia, suggested
that when the Union wished, it should contact Fort Devens'
representative to make arrangements for a meeting. Fort Devens stated
that a minimum of one day's advance notice for such a meeting would be
required. /20/
Representatives of Fort Devens and the Union met on November 26, 1979
for the purpose of negotiating on the paid parking program. /21/ The
parties discussed those matters the Union indicated it wished to pursue
in its November 8 letter, above. With regard to the subject of
allocations of parking spaces, while there was an existing system for
allotting spaces at the Facility the DOA directive, above, contained new
provisions for the allocation of spaces to various groups of employees
including handicapped, executive personnel and carpool employees and
Esposito wished to enter into negotiations on this feature of the
parking program. Management indicated it was willing to discuss any
aspect of the subject but pointed out that without first obtaining a
layout chart of the parking lot, the parties would not have enough
information to fully consider the subject and complete negotiations on
the matter. The Union did not attempt to pursue this issue further at
that time.
As to the Union's request to negotiate regarding the determination of
exemptions from parking fees, in addition to those set by OMB and GSA,
Esposito maintained that he considered the matter to be negotiable and
stated that no one at the Facility should be obligated to pay for
parking until every Federal employee in the country was paying for
parking. Esposito also contended that lower graded employees, GS 1-5,
should not be required to pay the same rate of parking as higher level
employees. Fort Devens took the position that these subjects were
non-negotiable. Esposito further expressed interest in visitor parking
at the Facility including where they would park, what fees they would
pay, and how long a visitor could park free before being deemed an
employee for parking fee purposes. Cononico replied that since the DOA
directive fully covered visitor parking, he considered the matter
non-negotiable and therefore had no intention of discussing this issue
any further. /22/
When the subject of the choice of appraisal techniques and
determination of actual fees arose, the Union argued that it should have
been involved in the selection of the appropriate appraisal technique
used to determine the fee at the Facility. It was the Union's
contention that in setting the fee, management incorrectly considered
the parking rates in downtown Boston, whereas the Facility was located
in South Boston, where, the Union contended, industry historically
provided free parking for its employees. Cononico however took the
position that the Union's request to negotiate on this subject was
non-negotiable and indicated he did not wish to discuss the matter
further.
Management agreed that the subject of the method of fee payment,
especially to avoid undue hardship to lower paid employees, was
negotiable to some extent, but, expressed the view that some aspects of
this subject might not be negotiable. Management suggested that the
Union point out the particular hardship situation about which it was
concerned. The parties discussed the possibility of payroll deduction
for parking fees and whether employees would be interested in payroll
deductions for this purpose. Management agreed that payment by check or
cash would be acceptable.
Union President Esposito also urged that, as mandated by the DOA
directive, a daily parking rate be established. /23/ Esposito argued
that if daily payment was not permitted, some employees who did not use
their cars every day during the entire month would be penalized by
paying the monthly rate. Management maintained that there were neither
funds nor personnel available to implement a daily parking fee program.
Management also pointed out that Fort Devens' reasons in support of its
application for an exemption from paid parking for the Facility included
the insufficient staffing and money problems. Esposito indicated that,
in any event, he wished to negotiate the details of a daily rate but
management declined.
Esposito also questioned who would be responsible for damage to cars
while parked at the Facility. Management took the position that
liability for damage would reside with the employees or their insurance
carriers.
The meeting of November 26, 1979 concluded by Colonel Cononico
summarizing, that December 3 would be the implementation date of the
paid parking program; Captain Andrews of Fort Devens would be sent to
the Facility on November 27 to begin collecting advance payments of the
$10.00 monthly parking fee; there would not be any daily parking rate
and anyone not paying $10.00 by December 3 would not be allowed to use
the Facility parking lot; since there was not enough time before
December 3 to allocate different parking areas, parking would remain as
it had been up to that point; and management agreed that allocation of
parking was a negotiable matter and the parties would meet again as soon
as management constructed a parking layout chart. /24/
On Tuesday, November 27, 1979, Captain Andrews began collecting the
$10.00 monthly parking fees. /25/ By Friday, November 30, Colonel
Cononico came to the conclusion that a number of employees would not
have had the opportunity to purchase monthly parking permits by Monday,
December 3. Cononico also concluded by this date that the Unnion's
position on establishing a daily parking rate was well taken.
Accordingly, on Friday, November 30, Cononico instructed Captain Andrews
to establish a system to sell daily parking permits on Monday, December
3. According to Cononico, the Union was not advised of this change due
to the lack of time available between the decision and the Monday date
of implementation and, in any event, notification to the Union was
deemed unnecessary since the Union had requested a daily permit. On
December 3, the paid parking program, including daily permits, was in
effect at the Facility. /26/
Issues
Counsel for the General Counsel contends that since on or about
November 7, 1979, and more particularly on December 3, Respondents Fort
Devens, the Recruiting Command, and the 94th Command failed to bargain
in good faith with the Union regarding the impact and implementation of
the paid parking program at the Facility. Counsel for the General
Counsel further contends that DOD and DOA, by issuance of their
respective directives of October 11 and October 19, 1979, interfered
with the Union's right to bargain with respect to the parking program by
denying the Union the opportunity to negotiate, prior to publication of
the directives or their implementation, concerning the impact of the
program on bargaining unit employees and the method and procedures to be
used in implementing the program, to the extent not mandated by
Government-wide rule or regulation. Thus, the General Counsel urges
that DOD and DOA were obliged under the Statute to bargain with the
Union prior to issuing directives to subordinate units where the
directives went beyond the requirements of the OPM Circular and GSA
regulation and contends that without doing so, the directives could not
preclude bargaining at the level of recognition with regard to any
discretionary matter which was not encompassed by the Government-wide
directives.
Respondents contend that the DOD directive of October 11, 1979 is an
"agency rule or regulation within the meaning of section 7117 et seq. of
the Statute and since DOA is a "primary national subdivision" of DOD,
its directive of October 19, 1979 is also an agency rule or regulation
within the meaning of the Statute. /27/ Accordingly, Respondents argue
no duty to bargain exists with regard to the terms of these regulations,
absent a determination by the Authority of "no compelling need" for the
regulations. /28/ Respondents further contend that at the Facility
level, Fort Devens fully negotiated with the Union to the extent it had
discretion under the parking regulations.
Discussion and Conclusions
It is clear that the OMB and GSA parking directives herein are
Government-wide regulations within the meaning of section 7117(a)(1) of
the Statute and, as such, no duty to bargain on the subject matter of
these regulations is required. However, while the OMB regulation sets
forth various specific instructions on paid parking, it did not cover
all matters relative to instituting a paid parking program. Rather, the
OMB regulation mandated all agencies, including DOD, issue such
instructions as may be needed to implement the provisions of the OMB and
GSA regulations. Thus, DOD, while obligated to follow the OMB and GSA
regulations, was left substantial discretion as to the practices and
procedures it might choose to utilize in formulating a paid parking
program for the agency. Pursuant to OMB and GSA regulations, DOD issued
its paid parking directive applicable to its subordinate bodies and
pursuant thereto, DOA issued its own directive applicable to its
subordinate organizations. I conclude, in these circumstances, that the
DOD directive of October 11, 1979, was an "agency" regulation and the
DOA directive of October 19, 1979 was a regulation issued by a "primary
national subdivision of (an) agency" within the meaning of section
7117(a)(3) of the Statute.
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 in effect. /29/ The Union herein does not represent the
majority of employees in DOD or DOA. However, Counsel for the General
Counsel urges that section 7117(a) of the Statute should be construed to
mean that a regulation of an agency or primary national subdivision of
an agency precludes negotiations on matters encompassed by such
regulation and calls into play procedures to determine compelling need
only where the regulation and conditions of employment under the
regulation are already in effect and a union thereafter seeks to bargain
on a matter covered by the regulation and the agency defends the
regulation by claiming compelling need.
The specific language of the Statute clearly does not impose any such
limitation of application suggested by Counsel for the General Counsel.
/30/ Further, 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, as distinguished from an
earlier bill which was not enacted into law, termed the "reported" bill:
/31/
"Under the reported bill, agency-wide rules or regulations are
never a bar to negotiations, and any Government-wide rule or
regulation may be removed as a bar to negotiations if there is no
"compelling need" for the rule or regulation, as determined by the
Federal Labor Relations Authority under the reported section 7117.
"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).
"Subsection (a)(3) states that the provisions of subsection
(a)(2) apply to any rule or regulation issued by any agency, or
issued by any primary national subdivision of such agency, unless
an exclusive representative represents an appropriate unit which
includes a majority of the employees in the issuing agency or
primary national subdivision to whom the rule or regulation is
applicable.
"The net effect of the substitute's subsection (a)(3) is to
make rules or regulations of agencies, or of primary national
subdivisions of agencies, bars to negotiation, subject to the
'compelling needs' test, except in cases in which an exclusive
representative represents a bargaining unit which includes a
majority of the employees in the issuing agency or primary
national subdivision to whom the rule or regulation is applicable.
In those latter cases, the agency or primary national subdivision
rule or regulation is not, for purposes of that unit, a bar to
negotiations on the subject matter of the rule or regulation."
Thus, it does not appear that an interpretation or limitation on the
application of section 7117 as urged by Counsel for the General Counsel
was envisioned by Congress. Rather, it appears 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. /32/
Counsel for the General Counsel also suggests, as an alternative
argument, that if the agency regulation 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." /33/ 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.
However, in the situation herein, I conclude that there existed a
duty to bargain with the Union as to matters which were not precluded by
express provisions of Government-wide regulations or the regulations
issued by DOD and DOA. The DOD AND DOA regulations were not self
implementing and the regulations did not provide for all possible
contingencies. Thus, installation commanders were instructed to
institute a parking plan applicable to their individual facilities.
Although any plan had to be in accord with the requirements of
outstanding regulations, management at levels subordinate to DOA, where
employees were represented by a union, as herein, were vested with
substantial discretion and authority as to both the content on the plan
and its operation. Moreover, the DOA regulation of October 19, 1979
itself envisioned that some matters regarding the specific paid parking
plan to be installed at the Facility were negotiable, the DOA regulation
specifically requiring that installation commanders " . . . negotiate
with exclusively recognized labor organizations over the impact and
implementation of the installation's plan", supra. Accordingly, I
conclude that Respondent's management was obligated under the Statute to
negotiate with the Union to whatever extent management had discretion
under applicable Government-wide and agency regulations in the
implementation of the paid parking program at the Facility. /34/
Pursuant to the Union's request, representatives of Fort Devens met
with the Union on November 26, 1979 to negotiate various aspects of the
paid parking program as it was to be implemented at the South Boston
Facility. Counsel for the General Counsel contends that the Recruiting
Command and the 94th Command violated the Statute by Recruiting
Command's failure to respond to the Union's request to bargain of
November 10 and the 94th Command's suggestion that Fort Devens would be
the appropriate party to negotiate on the parking program. I reject
these contentions.
The record reveals that at the level of implementation only Fort
Devens had control over the operation of the parking lot and the parking
program. Neither the Recruiting Command nor the 94th Command could
effectively negotiate on the parking program since the matter was not
the responsibility of either. The 94th Command referred the Union to
Fort Devens as the appropriate party to negotiate on the matter and
obviously the Union was aware that, absent authority from higher
command, only Fort Devens could realistically engage in negotiations
which would be binding. Indeed, Fort Devens accepted the obligation of
bargaining with the Union on behalf of those DOA subordinates which had
employees at the Facility represented by the Union. In these
circumstances no useful purpose would be served by the Recruiting
Command and the 94th Command acknowledging to the Union that they had a
duty to bargain and accordingly, I conclude that neither the 94th
Command nor the Recruiting Command independently violated the Statute,
as alleged above.
Turning now to the negotiations of November 26, 1979, I conclude
that, except for the issue of daily rates, the evidence fails to
establish that Fort Devens refused to bargain with the Union on the
parking program to the extent it had discretion over such matters and
was therefore obligated to do so. When the subject of allocation of
parking spaces was discussed, the Union acquiesced in management's
suggestion to withhold further negotiations until a layout chart of the
parking area was obtained. As to the Union's proposals regarding
determination of parking fees, no parking payments for Facility
employees until all Federal employees were paying for parking, lower
parking payments for lower grade employees, and the fees and duration of
visitor parking, these were all matters which were specifically mandated
by Government-wide, DOD and/or DOA regulations from which Fort Devens
had no discretion to deviate. The issue of where visitors parked was
intrinsically related to the allocation of parking spaces, above, and it
would appear that this subject, to the extent it was negotiable, would
more appropriate be a matter of discussion only after a layout was
available. The question of appraisal techniques was a matter solely
within the responsibility and control of DOD and the technique used in
the appraisal was obviously outside the discretionary area for
negotiations at the Fort Devens level.
As to the Union's demand to bargain on the method of parking fee
payments including the aspect of undue hardship, management's position
was that the subject might or might not be negotiable, and essentially
asked Esposito what particular hardship situation he had in mind. The
record discloses that the discussion on this topic concerned only the
possibility of payroll deductions and payment by cash or checks and,
other than as stated above, it appears that the hardship issue was not
pursued further by the Union. The question of liability for damages to
employees' cars while parked was discussed and management took the
position that liability would rest with the employee with apparently no
further conversation occurring on this topic.
In summary, during the above discussions, on some matters management
refused to bargain with the Union since the items were ones over which
Fort Devens had no authority to vary; on other matters the Union
acquiesced in management's position, such as postponing negotiations
until a parking layout was obtained; and on the remaining subjects the
parties discussed the issues but management simply did not agree with
the Union's position and the Union did not pursue the issue further. In
these circumstances I conclude that the preponderance of evidence does
not establish that Respondents violated sections 7116(a)(1) or (5) of
the Statute by failing to negotiate in good faith with the Union on the
above matters.
With regard to the daily parking rate issue, at the Monday, November
26 meeting, management refused to fully discuss a daily rate since it
believed, at the time, that it did not have sufficient funds or
personnel to implement a daily fee program. On Friday, November 30
management concluded it could institute daily parking rates and on
Monday, December 3, daily rates were effectuated. Management did not
attempt to contact the Union and the Union, therefore, was not notified,
prior to implementation, of management's change in disposition and given
an opportunity to bargain about the daily fee program or the procedures
used to collect the money involved. I recognize that in these
circumstances it might have been difficult to contact the Union to set
up a bargaining meeting to discuss the subject, but, in my view,
management was obliged to make a reasonable effort to fulfill its
bargaining obligations with the Union. However, management made no
attempt to contact the Union on November 30 or during the following
weekend. Rather, it unilaterally devised a program and without notice
to the Union unilaterally implemented it. Accordingly, in these
circumstances I find that by its conduct with regard to the
establishment and implementation of a daily parking rate at the
Facility, Respondents failed and refused to bargain with the Union and,
thereby, violated sections 7116(a)(1) and (5) of the Statute.
Remedy
The remedial aspects of this case present an unusual situation.
Thus, while Fort Devens has managerial control over the South Boston
Facility, it is the Recruiting Command and the 94th Command whose
employees are represented by the Union. However, in the peculiar
circumstances herein I conclude that DOD, DOA, Fort Devens, the
Recruiting Command, and the 94th Command together constitute an
affiliated or joint enterprise with regard to the implementation of the
paid parking program at the South Boston Facility.
Organizationally there is a commonality which binds together all
these components of DOD. While Fort Devens, the Recruiting Command, and
the 94th Command have separate chains of command to DOA, all are
ultimately responsible to and are subordinate components of DOD which,
through OSD, has overall policy components within DOD. In this regard
it is DOD which decides the policy to be adopted when negotiability
matters under the Statute are at issue and represents component
organizations in the presentation of such cases before the Authority.
Further, DOD is available to subordinate components for assistance and
guidance, and if DOD deems it appropriate, it can impose its policies on
any subordinate entity.
In the case herein, not only did DOD and DOA have an integral
relationship with the organizations and employees most proximately
involved with the paid parking program, but DOD and DOA both played
essential roles in the chain of events which resulted in the
implementation of the program. It was DOD's regulations which were
acted upon and transmitted through DOA's regulations to Fort Devens for
implementation at the Facility and impacted on the Recruiting Command
and the 94th Command employees, all of whom were under the umbrella of
DOD's ultimate control. True, neither the Recruiting Command nor the
94th Command had an independent right to bargain with the Union on the
parking program and Fort Devens had no independent obligation to bargain
on the matter. However, all Respondents were inextricably involved in
the situation and Fort Devens, obviously aware of the responsibilities
which flowed from this relationship, accepted the obligation to bargain
with the Union on the matter.
Accordingly, while I have concluded that Fort Devens violated the
Statute in its dealings with the Union on the implementation of the paid
parking program at the South Boston Facility, all related organizations
involved are charged to cooperate in the effectuation of the order
recommended herein. /25/
Finally, the Union requests as a remedy to any violation found herein
that the situation be restored to the status quo ante until such time as
negotiations have been completed and an agreement is reached by the
parties. I do not conclude that the circumstances of this case warrant
this remedy and, therefore, will not recommend the Authority impose such
an order. /36/
Having found and concluded that by the conduct described above,
Respondents, by the actions of Fort Devens, violated sections 7116(a)(1)
and (5) of the Statute, I recommend the Authority issue the following:
/37/
Order
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's regulations and section 7118 of the Federal Service
Labor-Management Relations Statute, it is hereby ordered that the
Department of Defense, Department of the Army, the Boston District
Recruiting Command, and the 94th U.S. Army Reserve Command, and the
Commander, Fort Devens, shall:
1. Cease and desist from:
(a) Failing and refusing to negotiate with the American Federation of
Government Employees, AFL-CIO, Local 1900, the exclusive representative
of Boston District Recruiting Command and 94th U.S. Army Reserve Command
employees at the South Boston Support Facility, with regard to the
establishment and Government-wide and agency regulations.
(b) Instituting changes with regard to the establishment and
implementation of a daily parking rate without notifying the American
Federation of Government Employees, AFL-CIO, Local 1900, the exclusive
representative of Boston District Recruiting Command and 94th U.S. Army
Reserve Command employees at the South Boston Support Facility, and
affording it a reasonable opportunity to negotiate on such matters to
the extent consonant with Government-wide and agency regulations.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of rights assured by the Federal
Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Upon request, meet and negotiate with the American Federation of
Government Employees, AFL-CIO, Local 1900, concerning the establishment
and the implementation of a daily parking rate at the South Boston
Support Facility to the extent consonant with Government-wide and agency
regulations.
(b) Post, at the South Boston Support Facility, copies of the
attached Notice marked "Appendix" on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms they
shall be signed by the Commander, Fort Devens, and shall be posted and
maintained by him for 60 consecutive days thereafter, in conspicuous
places, including bulletin boards and other places where notices are
customarily posted. The Commander shall take reasonable steps to insure
that such Notices are not altered, defaced or covered by any other
material.
(c) Notify the Federal Labor Relations Authority, in writing, within
30 days from the date of this order as to what steps have been taken to
comply herewith.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: December 22, 1980
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to negotiate with the American Federation
of Government Employees, AFL-CIO, Local 1900, the exclusive bargaining
representative of Boston District Recruiting Command and 94th U.S. Army
Reserve Command employees, with regard to the establishment and
implementation of a daily parking rate at the South Boston Support
Facility to the extent consonant with Government-wide and agency
regulations.
WE WILL NOT institute changes with regard to the establishment and
implementation of a daily parking rate at the South Boston Support
Facility without notifying the American Federation of Government
Employees, AFL-CIO, Local 1900, the exclusive bargaining representative
of Boston District Recruiting Command and 94th U.S. Army Reserve Command
employees, and affording it a reasonable opportunity to bargain to the
extent consonant with Government-wide and agency regulations.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce employees in the exercise of their rights assured by the Statute.
WE WILL, upon request, meet and negotiate with the American
Federation of Government Employees, AFL-CIO, Local 1900, the exclusive
bargaining representative of Boston District Recruiting Command and 94th
U.S. Army Reserve Command employees, concerning the establishment and
implementation of a daily parking rate at the South Boston Support
Facility to the extent consonant with Government-wide and agency
regulations.
(Agency or Activity)
By: (Signature)
Dated: . . .
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have question concerning this Notice, or compliance with
any of its provisions, they may communicate directly with the Regional
Director, Federal Labor Relations Authority, Region I, whose address is:
441 Stuart Street, 9th Floor, Boston, Massachusetts 02116.
--------------- FOOTNOTES$ ---------------
/1/ The Office of Personnel Management was granted permission to
participate in this proceeding as amicus curiae pursuant to section
2429.9 of the Authority's Rules and Regulations.
/2/ See Department of Housing and Urban Development, 9 FLRA 136
(1982).
/3/ See Defense Logistics Agency (Cameron Station, Virginia), 12 FLRA
No. 86 n.9 (1983), appeal docketed, No. 83-2017 (D.C. Cir. Sept. 26,
1983).
/4/ To the contrary, as found by the Judge, DOA's proposed
implementing regulation distributed to subordinate installations
specifically reminded them of their obligation under the Statute "to
negotiate with exclusively recognized labor organizations over the
impact and implementation of the installation's parking plan."
/5/ The Authority has previously held that the acts and conduct of
higher level agency management may constitute an unfair labor practice
where such conduct prevents agency management at the level of exclusive
recognition from fulfilling its bargaining obligation under the Statute.
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/ The Authority has held that "the Statute clearly requires the
parties to provide representatives who are empowered to negotiate and
enter into agreements on all matters within the scope of negotiations
within the bargaining unit." National Treasury Employees Union and
Department of the Treasury, Internal Revenue Service, 13 FLRA No. 93
(1983). See also American Federation of Government Employees, AFL-CIO,
Local 3656 and Federal Trade Commission, Boston Regional Office,
Massachusetts, 4 FLRA 702 (1980).
/7/ After the Judge issued his decision herein, the Authority
concluded, contrary to the Judge, that questions concerning the
existence of a compelling need for agency regulations may appropriately
be decided in an unfair labor practice proceeding, and that management
is required to come forward with affirmative support for its assertion
that there is a compelling need for the regulation in question which
justified its refusal to bargain. 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); United States Marshals Service,
12 FLRA No. 129 (1983).
/8/ See Veterans Administration Central Office, Veterans
Administration Medical Center, Long Beach, 9 FLRA 325 (1982); General
Services Administration, Region 8, Denver, Colorado, 10 FLRA 257 (1982).
/9/ 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, 669 F.2d 815 (D.C. Cir.
1981). However, President Reagan has stated that the collection of
parking fees will not be reinstated. Statement by the President on
Parking Fees for Federal Employees, 17 Weekly Comp.of Pres.Doc. 1161
(Dec. 17, 1981).
/10/ While the caption of the complaint included the Commander, Fort
Devens, the Department of the Army, and the Department of Defense as
Respondents, it was not alleged in the gravamen of the complaint that
these parties violated the Statute. However, the Commander, Fort Devens
was named in the complaint as an agent of Respondents; answers to the
complaint were filed on behalf of all Respondents; and the complaint
was amended at the hearing to include an allegation that certain
Department of Defense and Department of the Army conduct interfered with
the Union's bargaining rights. Moreover, the theory of the case
expressed by Counsel for the General Counsel at the opening of the
hearing was that all named Respondents were collectively obligated to
bargain with the Union over discretionary aspects of published
Government-wide regulations, infra, and all Respondents were represented
by counsel at the hearing. Accordingly, I conclude that the omission in
the gravamen of the complaint as stated above is of no significance with
regard to the litigation or disposition of the matter at issue herein.
/11/ In his submission, counsel for Respondent Commander, Fort Devens
moved that the complaint against the Commander, Fort Devens, be
dismissed. For reasons explicated hereinafter, the motion is denied.
/12/ See Defense Contracts Administration Services Region, Boston,
Massachusetts, et al., Case Nos. 1-CA-212, et al., Decision and Order of
the undersigned issued this day.
/13/ 44 Fed.Reg.No. 161, at 48638-48641 (August 17, 1979).
/14/ 44 Fed.Reg.No. 179, at 53161-53163 (September 13, 1979).
/15/ Section 7117(a)(1) of the Statute provides: "subject to
paragraph (2) of this subsection, the duty to bargain in good faith
shall, to the extent not inconsistent with any Federal law or any
Government-wide rule or regulation, extend to matters which are the
subject of any rule or regulation only if the rule or regulation is not
a Government-wide rule or regulation." However, AFGE's response, while
quoting this section, omitted the words "Subject to paragraph (2) of
this subsection."
/16/ DOD issued its final parking regulation on December 7, 1979
which, in large measure, was identical to the earlier interim
regulation.
/17/ A draft of the OMB Circular, dated April 6, 1979, which was
circulated to various Government agencies for comment, indicated that
GSA would establish the parking fee to be assessed at all Government
installations. Subsequent to the circulation of this draft, DOD
"negotiated" with OMB and GSA on the matter and received permission to
do the appraising at its military installations. The permission was
conditioned on the use of professional appraisers of the U.S. Corps of
Engineers and the Naval Facilities Engineering Command; that the
appraisals be performed using commonly accepted appraisal standards;
that the GSA appraisal form be used; and that GSA would have final
authority on the appraisal. DOD's appraisal and a determination of a
parking rate at the South Boston Facility was completed on August 24,
1979.
/18/ Previously, parking at the Facility was provided at no cost to
employees.
/19/ The Union sent an identical letter to the Recruiting Command on
November 10.
/20/ The 94th Command declined the Union's request to bargain by
letter of November 17, 1979 and suggested that Fort Devens, since it was
charged with implementing the paid parking program, would be the
appropriate party with whom to seek to negotiate on the matter. The
Recruiting Command did not specifically respond to the Union's request
to bargain.
/21/ The record does not reveal any contact between the parties after
November 9 and before November 26.
/22/ The DOA directive of October 19, 1979 treats visitor parking in
numerous sections of that document, e.g., paragraph 7(a)(2)(c) states
that "visitor parking should be identified in convenient locations", and
paragraph 11(e)(1)(b), et seq., exempts from payment of a parking fee
official and unofficial visitors up to a limit of 3 hours, daily rates
to apply thereafter.
/23/ Paragraph 11(h)(3) of the directive provides: "Commanders will
make arrangements for the selling of daily rate permits to accommodate
personnel who desire to use and pay for parking on a daily basis".
/24/ Subsequently, after numerous telephone conversations between the
parties, Fort Devens met with the Union on February 7, 1980 and
presented the Union with a proposal on the allocation of parking spaces
and negotiations continued thereon.
/25/ On November 29, 1979, the Union filed unfair labor practice
charges alleging Fort Devens, the Recruiting Command, and the 94th
Command on November 26 refused to negotiate with the Union to the extent
required by the Statute and on November 27, unilaterally implemented a
new paid parking program.
/26/ Esposito testified that he was not satisfied with the system
used for selling daily parking permits and the procedure produced
"chaos".
/27/ Sections 7117(a)(1), (2), and (3) of the Statute provide:
"(a)(1) Subject to paragraph (2) of this subsection, the duty
to bargain in good faith shall, to the extent not inconsistent
with any Federal law or any Government-wide rule or regulation,
extend to matters which are the subject of any rule or regulation
only if the rule or regulation is not a Government-wide rule or
regulation.
"(2) The duty to bargain in good faith shall, to the extent not
inconsistent with Federal law or any Government-wide rule or
regulation, extend to matters which are the subject of any agency
rule or regulation referred to in paragraph (3) of this subsection
only if the Authority has determined under subsection (b) of this
section that no compelling need (as determined under regulations
prescribed by the Authority) exists for the rule or regulation.
"(3) Paragraph (2) of the subsection applies to any rule or
regulation issued by any agency or issued by any primary national
subdivision of such agency, unless an exclusive representative
represents an appropriate unit including not less than a majority
of the employees in the issuing agency or primary national
subdivision, as the case may be, to whom the rule or regulation is
applicable."
/28/ The Union has not sought nor has the Authority been presented
with a request for a compelling need determination regarding the
regulations under consideration herein.
/29/ Section 7117(b) sets forth the process and standards for
Authority determination of no compelling need. Procedures and criteria
for determining compelling need are found in Authority regulations,
sections 2424.1 and 2424.11.
/30/ Counsel for the General Counsel cites no legislative history to
support his position.
/31/ Legislative History of the Federal Service Labor-Management
Relations Statute, Title VII of the Civil Service Reform Act of 1978,
96th Congress, 1st Session, Committee Print No. 96-7, (November 19,
1979) at 927.
/32/ It is not alleged nor do the facts herein support a finding that
Respondents' claim of non-negotiability is based upon a patently
inapplicable regulation or that the contention was frivolously raised.
/33/ See also section 2423.18 of the Authority's regulations.
/34/ Cf. National Treasury Employees Union Chapter 6 and Internal
Revenue Service, New Orleans District, 3 FLRA No. 118 (1980).
/35/ Cf. Internal Revenue Service, Washington, D.C. and Internal
Revenue Service, Hartford District Office, 4 FLRA No. 37 (1980).
/36/ See The Adjutant General's office, Puerto Rico Air National
Guard, 3 FLRA No. 55 (1980).
/37/ 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.