15:0750(143)CA - Defense Contract Administration Services Region, Boston, MA and NAGE Local R1- 210; DOD, Washington, DC and NAGE Local R1-210; Defense Logistics Agency, Washington, DC and NAGE Local R1-210; Commander, Fort Devens, Fort Devens, MA and NAGE Local R1-210 -- 1984 FLRAdec CA
[ v15 p750 ]
The decision of the Authority follows:
15 FLRA No. 143 DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, BOSTON, MASSACHUSETTS Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-210 Charging Party Case No. 1-CA-212 DEPARTMENT OF DEFENSE, WASHINGTON, D.C. Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-210 Charging Party Case No. 1-CA-298 DEFENSE LOGISTICS AGENCY, WASHINGTON, D.C. Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-210 Charging Party Case No. 1-CA-299 COMMANDER, FORT DEVENS, FORT DEVENS, MASSACHUSETTS Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-210 CHarging Party Case No. 1-CA-300 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled consolidated proceeding, finding that the Respondents had engaged in certain unfair labor practices alleged in the complaint, and recommending that they cease and desist therefrom and take certain affirmative action. Exceptions to the Judge's Decision were filed by the General Counsel, the Department of Defense (DOD), and the Defense Contract Administration Services Region, Boston, Massachusetts (DCASR Boston). /1/ Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order to the extent consistent herewith. The consolidated complaint alleged, inter alia, that Respondent DOD violated section 7116(a)(1) and (5) of the Statute by issuing an agency-wide regulation concerning the paid parking program, thereby interfering with the rights of the Charging Party, National Association of Government Employees, Local R1-210 (the Union), to bargain with respect thereto. For the reasons set forth in Boston District Recruiting Command, Boston, Massachusetts, 15 FLRA No. 142 (1984), and cases cited therein, and noting that the Union does not hold exclusive recognition in a unit of employees at the level of DOD and therefore DOD had no statutory obligation to bargain with the Union prior to issuing its parking regulation, the Authority concludes that the complaint must be dismissed with respect to Respondent DOD. The Authority further notes, in this connection, the absence of any showing that DOD prevented subordinate elements from fulfilling whatever bargaining obligations may have existed with the Union at the level of exclusive recognition. The complaint further alleged, and the Judge found, that Respondents DOD, Defense Logistics Agency (DLA), DCASR Boston and Fort Devens violated section 7116(a)(1) and (5) of the Statute by failing to bargain with the Union concerning the impact and implementation of the paid parking program at the South Boston Support Facility. In reaching this result, the Judge found that the four named Respondents constituted an affiliated or joint enterprise with regard to the implementation of the paid parking program at the Activity. The Authority disagrees. Thus, as found by the Judge, the Union is the exclusive representative for a unit of DCASR Boston employees located at the South Boston Support Facility. Fort Devens, the host Activity, is party to an agreement with DCASR Boston (one of the tenants) to provide parking spaces to DCASR employees at the Facility on a "pro-rata basis, as available," but has no collective bargaining relationship with the Union. Similarly, no such bargaining relationship exists between the Union and either DLA or DOD. Accordingly, the Authority concludes that the Judge improperly found DOD, DLA and Fort Devens to have violated a nonexistent duty to bargain with the Union concerning the impact and implementation of the paid parking program at the Facility. Rather, the Authority finds that the obligation to bargain over the impact and implementation of the paid parking program resided with DCASR Boston, the entity at the level of exclusive recognition involved herein. It is well-established that the duty of an agency under the Statute is to negotiate with an exclusive representative of an appropriate unit of its employees concerning conditions of employment affecting them, to the extent of its discretion, i.e., except as provided otherwise by Federal law or Government-wide rule or regulation or agency regulation for which a compelling need exists. See Boston District Recruiting Command, supra, and Department of Housing and Urban Development, 9 FLRA 136 (1982). Further, it is undisputed that the impact and implementation of the paid parking program falls within the duty to bargain. /2/ In the instant case, the record indicates that following issuance by DCASR Boston of a bulletin to employees regarding aspects of the paid parking program, the Union requested bargaining over such matters as method of payment, exemptions from parking fees, allocation of spaces, etc. In its response to the Union, DCASR Boston refused to negotiate on the basis that it lacked the authority to do so and noted instead that Fort Devens had been charged with the responsibility for implementing the paid parking program. Subsequently, DCASR Boston forwarded the Union's bargaining request to Fort Devens which itself refused to bargain. Fort Devens indicated that bargaining with the Union would be inappropriate inasmuch as the Union held exclusive recognition with a different organizational component. In the Authority's view, DCASR Boston was obligated to bargain with the Union to the extent of its discretion concerning the paid parking program prior to its implementation. In this regard, the Statute requires the parties to provide representatives who are empowered to negotiate and enter into agreements on all matters within the scope of negotiations within the bargaining unit. See Boston District Recruiting Command, supra, n.6. While the record indicates that a meeting was held between DCASR Boston and the Union to discuss the program, this meeting occurred after the implementation of the program and was in response to the filing of the Union's unfair labor practice charge herein and, in the Authority's view, was not sufficient to fulfill DCASR Boston's bargaining obligation. As the record indicates that DCASR Boston refused to bargain in good faith upon the Union's request prior to the implementation of the paid parking program, the Authority concludes that such conduct constituted a violation of section 7116(a)(1) and (5) of the Statute. /3/ With regard to an appropriate order to remedy the unfair labor practice found, however, the Authority concludes that, inasmuch as there is no regulation in effect at this time requiring the collection of parking fees, /4/ it is unnecessary to order that DCASR Boston negotiate regarding this matter at the present time. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, IT IS HEREBY ORDERED that Defense Contract Administration Services Region, Boston, Massachusetts, shall: 1. Cease and desist from: (a) Failing or refusing to bargain, upon request, with the National Association of Government Employees, Local R1-210, the exclusive bargaining representative of its employees located at the South Boston Support Facility, to the extent of its discretion, concerning the impact and implementation of any aspect of a paid parking program which may be established by the Government-wide rule or regulation. (b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purpose and policies of the Statute: (a) Post at the South Boston Support Facility copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by an authorized representative of Defense Contract Administration Services Region, Boston, Massachusetts, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. (b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, in writing within 30 days from the date of this Order, as to what steps are being taken to comply herewith. IT IS FURTHER ORDERED that the unfair labor practice allegations against the other named Respondents contained in the consolidated complaint be, and they hereby are, dismissed. Issued, Washington, D.C., August 28, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail or refuse to give notice to and bargain, upon request, with the National Association of Government Employees, Local R1-210, the exclusive representative of our employees located at the South Boston Support Facility, to the extent of our discretion, concerning the impact and implementation of any aspect of a paid parking program which may be established by Government-wide rule or regulation. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute. (Activity) By: (Signature) (Title) Dated: . . . This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region I, Federal Labor Relations Authority, whose address is: 441 Stuart Street, 9th Floor, Boston, MA 02116, and whose telephone number is: (617) 223-0920. -------------------- ALJ$ DECISION FOLLOWS -------------------- Samuel S. Horn, Esq. For Respondents Department of Defense and Defense Logistics Agency Robert B. Hearne, Esq. For Respondent Defense Contract Administration Services Region William S. Key, Captain For Respondent Fort Devens Richard Remmes, Esq. For the Charging Party James R. Collins, Esq. and Richard D. Zaiger, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge DECISION Statement of the Case This case arose under the provisions of the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (herein referred to as the Statute) and the Rules and Regulations issued thereunder. Upon unfair labor practice charges filed by the National Association of Government Employees, Local R1-201, (herein the Union) against Respondent Defense Contract Administration Services Region, Boston on December 4, 1979 and against Respondents Commander, Fort Devens, the Defense Logistics Agency, and the Department of Defense on March 19, 1980, the General Counsel of the Authority, by the Regional Director for Region 1, issued an Order Consolidating Cases, Complaint and Notice of Hearing on March 31, 1980 alleging Respondents engaged in and are engaging in unfair labor practices within the meaning of sections 7116(a)(1) and (%) of the Statute. The complaint, as amended at the hearing, essentially alleges that Respondents together violated the Statute by failing to bargain over the impact and implementation of a paid parking program and Respondent Department of Defense violated the Statute by interfering with the Union's right to bargain with respect to the paid parking program. A hearing on the complaint was conducted on May 20 and 21, 1980 in Boston, Massachusetts, at which time all parties were represented by counsel and afforded full opportunity to adduce evidence and call, examine and cross-examine witnesses and argue orally. The parties joint request for an extension of time to August 8 to file briefs was granted and briefs filed by the parties have been duly considered. /5/ Upon the entire record in this matter, my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following: Findings of Fact Background The Department of Defense (DOD), an "Agency" within the meaning of section 7117 of the Statute, is comprised of numerous subordinate bodies including the Defense Logistics Agency (DLA) and the Department of the Army (DOA), the latter two organizations being "primary national subdivisions" of the DOD within the meaning of the Statute. DLA and DOA, in turn, are also comprised of subordinate components, with DLA being the command agency of the Defense Contract Administration Services Region, Boston (DCASR) and DOA being the command agency of Fort Devens. The Secretary of Defense is the highest authority within DOD. Overall policy and coordinating responsibilities for labor-management relations rests with the Office of the Secretary of Defense (OSD), which is organizationally one level below the Secretary and Deputy Secretary of Defense. While it is not OSD's normal procedure to direct subordinate elements in labor negotiations, OSD does take positions on behalf of the entire agency when issues of negotiability are brought before the Authority. Accordingly, whenever an issue of importance to the agency arises, OSD attempts to develop a DOD policy on the matter and if a policy is adopted, subordinate components are obligated to adhere to that position. If problems arise with respect to a subordinate component's labor-management relations program, the component can and does seek assistance and guidance from OSD. Regardless of whether a subordinate component requests assistance from OSD, if OSD perceives that the component has a labor-management problem, OSD can impose its policy and authority on that component. With regard to regulations issued by DOD, it is a common occurrance for subordinate components to seek advice from OSD when the component has a question as to the meaning or implementation of the regulation. The Union herein is the exclusive collective bargaining representative of General Schedule and Wage Board employees of DCASR employed at 666 Summer Street, Boston, Massachusetts, the location also known as the South Boston Support Facility (herein the South Boston Facility or the Facility). The physical property which constitutes the South Boston Facility is under the managerial jurisdiction and control of Fort Devens. Fort Devens, by agreement, provides space and various services to approximately 25 "tenants" at the Facility. Fees are assessed for space and some services. Other services are supplied on a nonreimbursable basis, the tenant agreeing it will comply with directives of Fort Devens. DCASR is a tenant of Fort Devens at the facility and, as such, is party to an agreement with Fort Devens for use of space and services. The agreement provides that parking spaces for privately owned vehicles of DCASR employees will be provided on a "prorata basis, as available", with parking permits to be issued by Army Security Police. DCASR has approximately 925 civilian employees located at the facility and was allocated approximately 500 parking spaces. DCASR is not obligated to reimburse Fort Devens for parking spaces but is obligated to "comply with host directives." Accordingly, DCASR employees were not charged a fee for parking. The Paid Parking Program By Circular No. A118, dated August 13, 1979, the Executive Office of the President, Office of Management and Budget (OMB) announced the establishment of a Government-wide policy dealing with Federal parking facilities. /6/ According to OMB, a basis for charging for the use of parking facilities needed to be established which was equitable among employees and consistent with related policies regarding air quality, energy conservation and reduced traffic congestion. In the Circular OMB stated, in part: " . . . It is the general policy of the executive branch to limit Federal installation parking facilities to the minimum necessary, to administer those facilities in full compliance with carpooling regulations, and to assess Federal employees, contractor employees and tenant employees who are provided parking in Government-controlled space a charge equivalent to the fair monthly rental value for the use of equivalent commercial space, subject to the terms, exemptions and conditions stated in this Circular." The ten page Circular specifically addressed such matters as conditions for exemptions from fees, the priorities to be considered for the allocation and assignment of parking spaces, the establishment of charges for employee parking, and the determination of rates. With regard to matters concerning fees for parking, the Circular provided, inter alia: "a. Establishment of charges. Charges for employee use of Government-owned or leased parking facilities shall be assessed at all locations except where the rate, as determined in c. below, would be less than $10.00 per month. For the initial period November 1, 1979, through September 30, 1981, the charges to be collected shall be 50 percent of the full rate scheduled to be collected. If the full rate is calculated to be between $10.00 and $19.99, the monthly charge between November 1, 1979 and September 30, 1981, shall be $10.00. The full charge shall be collected after October 1, 1981." As to the determination of rates to be charged, the Circular stated: " . . . The Administrator of GSA shall determine the rate to be charged for Government furnished employee parking at each facility using generally accepted appraisal techniques. Agencies other than GSA which hold title to property and desire to arrange their own appraisals must advice GSA in writing of their intent, and shall conduct such appraisals in accordance with GSA guidelines. GSA shall review and approve all rates in accordance with 40 U.S.C. 490(k). The rates shall approximate the prevailing value of comparable commercial property in the vicinity. The rate basis will be the fair rental value of such property as used in calculating Standard Level User Charges. Fair rental value includes an allowance for the costs of parking facility management. The rates so established shall be adjusted annually by the Administrator to reflect increases or decreases in value." The Circular further mandated that General Services Administration (GSA) "issued regulations implementing the provisions of this Circular regarding the determination of commercially equivalent rates for Government parking . . . (and) revise regulations and priorities as necessary, for the assignment of parking spaces." Rates at non-GSA facilities were to be determined by October 1, 1979. Heads of departments and agencies were directed to assess charges consistent with the provisions of the Circular and GSA regulations and immediately request GSA to determine rates to be assessed at their facilities " . . . to enable rate determination to be completed prior to November 1, 1979", with late rate determinations to be applied retroactively to November 1. With guidance from GSA, agencies were permitted to conduct their own appraisals to set parking rates. However, rates developed in this fashion were to be submitted to GSA for review and approval. Agencies were further required to " . . . issue such instructions as may be needed to maximize carpooling and implement the provisions of this Circular and regulations issued by GSA". The OPM Circular also provided that final agency regulations should be issued prior to November 1, 1979. Pursuant to the above OMB Circular, GSA issued Government-wide regulation FPMR Temp. Reg. D-51, dated September 6, 1979. /7/ The GSA Federal employee parking regulation designated November 1, 1979 as the effective date for agency implementation of the regulation and imposed on agencies specific requirements relating to priority assignments of parking spaces for non-employees and employees, methods to establish parking fees, and rates to be charged, all of which were in accordance with the OMB Circular. The GSA regulation provided that at non-GSA controlled facilities, as in the cases herein the responsible agency would allocate employee parking in accordance with OMB Circular No. A-118. On October 11, 1979 DOD issued an "advance copy" of its interim paid parking regulation to subordinate command activities. /8/ The DOD directive designated the specific parking fees which would be charged at various installations effective November 1, 1979. The parking fee for the South Boston Facility was set at $10.00 a month. /9/ A cover letter accompanying the directive noted that the advance copy was being provided " . . . to permit implementation of the President's program, particularly the paid parking aspect, on November 1, 1979 . . . " The DOD directive designated specific parking fees which would be charged at numerous DOD installations, including those controlled by DOA, effective November 1, 1979. Further, the DOD regulation incorporated elements of the OMB and GSA directives; set out an expanded list of specific classes of personnel and vehicles which would be exempt from payment of parking fees; set out certain priorities in the assignment and allocation of parking spaces; and designated those responsible to implement and enforce the regulation at various subordinate managerial levels. In addition, DOD, inter alia, required Secretaries of the military Departments and Directors of defense agencies to operate, control, and issue instructions relative to the paid parking program in accordance with the provisions of the related OPM Circular, the GSA regulation and the DOD directive. DOD's directive treated numerous subjects in a rather comprehensive manner thereby substantially limiting DOA's flexibility to independently fashion its own regulations for implementation at the installation level. Nevertheless, various matters in the DOD directive provided DOA with considerable discretion including: establishing the number of spaces assigned to employees working unusual hours; developing incentives to encourage and facilitate the use of car and van pools and public transportation; the issuance of parking permits to individuals who use their privately owned vehicles for government business; and developing a mechanism for determining abuse of parking space allocation. Moreover, since DOA was directed to establish a paid parking program for its subordinates bodies, and since various matters were not governed by OMB, GSA or DOD directives, DOA was left a substantial range of possible avenues to utilize in implementing a paid parking program. On October 6, 1979 DCASR distributed to its employees at the Facility a bulletin to " . . . let (employees) know the current state of affairs on the parking costs." The bulletin outlined what DCASR considered to be "significant provisions" of OPM Circular A-118 and indicated that DCASR's "landlord" at the Facility was advised by DOA that employees at the Facility would be required to pay a parking fee of $10.00 a month beginning on November 1, 1979. It was further announced in the bulletin that additional implementing instructions would be published when received. On October 19, 1979 DOA provided to its subordinate installation, including Fort Devens, advance copies of its own regulation implementing DOD's parking regulation of October 11. DOA's regulation that the form of an interim change to DOA parking regulation AR 210-4. The DOA regulation essentially incorporated and made more explicit the requirements contained in the OMB Circular and the GSA and DOD regulations and required installation commanders to institute a permit, fee collection and carpool program at their facilities. The directive changed existing DOA parking regulations and provided guidance to installation commanders on such matters as: the personnel to be used to implement the program; alternatives available to installation commanders for operation of the program (automated, contractor operated, or installation operated); the sales of parking permits on a yearly, quarterly, bi-monthly, or daily basis; the site used for the sale of permits; standards for enforcing the program; and the manner of collecting fees. The DOA regulation left installation commanders with a substantial amount of discretion in implementing the program at their local facilities and reminded installation commanders of the obligation under the Statute " . . . to negotiate with exclusively recognized labor organizations over the impact and implementation of the installation's parking plan." On November 7, DCASR issued another bulletin on employee parking announcing that the Commander of Fort Devens would institute a paid parking program at the Facility on December 1, 1979. The bulletin indicated the parking fee would be $10.00 a month, payable in advance, and rebates would not be made to employees who did not use a parking space for the entire month. It was noted that there presently was no fee collection provision in the program for the payment of parking fees on a daily or quarterly basis. Among other things, the bulletin set out various exemptions from the program as well as some specific rules relative to reserved parking areas. Applications for parking permits were to be forwarded to the Fort Devens Parking Program Coordinator "for review" and parking permits were to be issued upon payment of the parking fee. The bulletin indicated that further information would be furnished to employees as it was received from Fort Devens. Union President Christopher Themistocles telephoned a representative of Fort Devens on November 7, 1980 and informed him that the Union took exception to the implementation of paid parking and wanted to "discuss" it. /10/ Themistocles was told that there was nothing which could be done but that Fort Devens planned to seek a waiver of paid parking through higher authority. By letter dated November 9, 1979 from the Union to DCASR, Themistocles made a request that DCASR " . . . negotiate the impact and procedures as they relate to our employees and parking policy." The letter continued: "We would like to discuss and negotiate methods of payment, discipline, exemptions from parking fees, reserved free parking for NAGE R1-210 officials, allocation of parking spaces, POV for job duties and fees, availability of government vehicles (sic). We would also like to see the facts and figures used to determine the rate of parking fees. Another item we wish to discuss is the effective date. We would also like to discuss refunds, daily payment, damage to vehicle and liability, security etc." DCASR refused to negotiate with the Union on the matter. DCASR's November 21, 1979 response to the Union stated: "This replies to your request dated 9 Nov 79 to negotiate 'the impact and procedures as they relate to our employee and parking policy.' The Commanding Officer, Fort Devens, is charged with the implementation of paid parking at 666 Summer Street for all federal tenants. Lacking any authority in this regard, I am not in a position to negotiate with you regarding employee parking including the implementation thereof. "I understand that you met with Mr. Pleva and Mr. Cooper on 20 Nov 79. At that time, it was agreed that a daily parking rate was necessary and you were informed that one had already been requested. You were also told that DCASR, Boston has not yet been provided detailed information as to how the parking program will be administered. "We will continue to consult with you and our other union as the parking situation develops. In particular, I am asking Mr. Cooper to keep you completely up-to-date so that you can provide us with your views on any procedural flexibilities that develop. We must, of course, provide our other union with the same prerogatives. "In addition, we will forward any representations you care to make to Fort Devens. In this regard, we have taken the liberty to forward a copy of your letter of 9 Nov 1979 (see enclosure). "As the exclusive representative of most of our employees here at Region and DCASMA Headquarters, and in consideration of the highly controversial nature of the paid parking requirement, I assure you that your views on this matter are indispensable. Should any impact or procedural areas develop appropriate to negotiations with your Local and the other Local having exclusive recognition at 666 Summer Street, I trust we will be able to work out some practical method of joint decision-making." Respondent DCASR forwarded the Union's demand to negotiate to Fort Devens on November 21. DCASR's cover letter to Fort Devens stated: "Forwarded for your information is a request we received from NAGE Local R1-210 and our reply to this request. This Local holds exclusive recognition for a unit consisting of approximately 800 800 DCASR non-professional employees located at 666 Summer St. We also have a professional unit at this facility represented by AFGE Local 1906. It may be to the best interest of DOD if your representative met on a regular basis with these unions and others holding recognition at this facility to hear their views on parking matters perhaps as part of a tenant council. I will be glad to discuss this suggestion with your designee if you find it has merit." On November 27, 1979, Fort Devens began selling monthly parking permits at the rate of $10.00 per month. On November 28, Themistocles met with Captain Andrews, the Fort Devens' representative coordinating the parking program, and raised the question of daily parking permits for employees who traveled frequently. Captain Andrews indicated there was nothing she could do at that time to change the program but would let Themistocles know during the following week if anything could be done about the problem. By letter to the Commander of DCASR dated November 30, 1979, Fort Devens responded to DCASR's referral to it of the Union's demand to bargain of November 9, above. Fort Devens refused to negotiate with the Union on the paid parking issue, stating: "We believe it would be inappropriate for officials of Fort Devens to negotiate the subject issue with AFGE Local R1-210 or with any other bargaining unit at 666 Summer Street, unless that bargaining unit has exclusive recognition with a Department of Army organization. Rather, we feel that any communication on the issue on our part should be with your Command management. Accordingly, we will be available to discuss pertinent questions with you or your representative, including questions which may have been surfaced by NAGE Local R1-210, assuming that those issues have not been addressed on OMB Circular A-115 and/or implementing DOD direction. But we will decline any efforts by NAGE Local R1-210 to meet and bargain with this HQ. We believe that any dialogue with that unit is proper only if done by your HQ." On Monday December 3, 1979 Fort Devens began requiring all employees to either display a monthly parking permit or to purchase a daily pass in order to park at the Facility. Daily parking coupons were sold at the rate of 50 cents a day. Representatives of DCASR and the Union met on December 13, 1979. The meeting was arranged by DCASR in response to the Union's unfair labor practice charge filed against DCASR on December 4, 1979 which alleged, inter alia, " . . . that the action of DCASR Boston was a refusal to negotiate on the impact and procedures of the new (parking) policy . . . " During the meeting DCASR Labor Relations Officer Edwin Newdick stated that management was prepared to negotiate on the paid parking program. /11/ The Union representative responded that they were willing to meet and discuss these matters but contended that management's claim that the meeting was for negotiations was a "pretense" and suggested that management was not really ready to negotiate. Newdick disagreed and asked for proposals relative to parking. Themistocles responded with a request that free parking be provided all employees. /12/ Management agreed that the proposal had merit, but indicated that Regional management did not know how to accomplish it. The Union then suggested that government funds or any funds available be used to pay employees' parking fees. Management answered that they had no funds for this purpose nor knew of any way they could obtain them. The Union indicated that management's response demonstrated that management was not negotiating. Management replied that negotiations do not mean automatic execution of any union proposal but meant "joint decisions on practical alternatives." The Union concluded by pointing out that unfair labor practice charges had already been filed with the Federal Labor Relations Authority, and that they would continue to press them. Management replied this was "OK," but stated they wanted to make sure that no bad labor-management relations were continuing. The Union stated that they were not satisfied that the best possible case had been made for the exemption of the South Boston Facility from the paid parking requirement. Management concurred and the parties agreed to join in an effort to help Fort Devens appeal the designation of the installation as a paid parking facility. /13/ In March 1980 the Union, with DCASR assistance, filed a request with DLA for an exemption from paid parking obligations. Issues The complaint, as amended at the hearing, alleges that since on or about November 21, 1979 Respondents have individually and/or collectively failed to bargain in good faith with the Union regarding the impact and implementation of the paid parking program at the South Boston Facility and Respondent DOD, through the issuance of its October 11, 1979 regulation, interfered with the Union's right to bargain on the paid parking program. Counsel for the General Counsel concedes that OMB Circular No. A-118 and GSA regulation FPMR Temp. Reg. D-51 are Government-wide regulations within the meaning of Section 7117(a)(1) of the Statute and accordingly, no duty to bargain attaches with regard to these regulations. However, Counsel for the General Counsel contends that Respondents were obliged to bargain with the Union to the extent that DOD and its components had discretion under the Government-wide regulations regarding the manner in which the paid parking program was implemented at the South Boston Facility. Counsel for the General Counsel further maintains that even though the Union's representational status extends only to DCASR employees at the Facility, DOD and its subordinate bodies, Respondents DLA, Fort Devens, and DCASR, constitute a unitary organization under the circumstances herein and accordingly, should be treated as a single entity for the purpose of attaching responsibility for unfair labor practice conduct under the Statute. Respondents argue that: the DOD regulation of October 11, 1979 is an agency regulation within the meaning of section 7117(a)(2) and (3) of the Statute and the DOA regulation of October 19, 1979 is a regulation of a primary national subdivision of an agency within the meaning of section 7117(a)(2) and (3) of the Statute and no duty to bargain exists with regard to the terms of those regulations absent a determination by the Authority of no compelling need for the regulations; /14/ neither Respondents DOD, DLA nor Fort Devens has any obligation to bargain with the Union regarding the paid parking program since the Union's representational status extends only to DCASR; as a lessee, DCASR had no authority to bargain with the Union on the paid parking program since DCASR has no control over parking at the Facility, control residing with the lessor, Fort Devens; and, in any event, the Union's November 9, 1979 demand that DCASR negotiate included some items which were preempted from bargaining by the terms of the OMB and GSA Government-wide regulations, namely exemptions from parking fees, reserved free parking for Union officials, the rate of parking fees and the effective date. Respondent Fort Devens also contends that no demand to bargain was ever made to Fort Devens and accordingly, no refusal to bargain can lie with regard to that Respondent. Discussion and Conclusions There is no contention that the OMB and GSA regulations on paid parking are negotiable matters. Indeed, it is clear that these regulations are Government-wide regulations within the meaning of Section 7117(a)(1) of the Statute, and, as such, no duty to bargain is required regarding the subject matter contained therein. /15/ However, the OMB parking regulation, while setting forth various specific instructions on paid parking, required GSA and all agencies to issue instructions relative to the implementation of the OMB regulation. DOD was, therefore, obligated to adopt the specific requirements of OMB and GSA but, nevertheless, was left discretion as to various practices and procedures relating to the implementation of the OMB and GSA regulations. Sections 7117(a)(2) and (3) of the Statute govern an agency's duty to bargain with a union with regard to matters encompassed by agency wide regulations. /16/ Thus, under the Statute, an agency or a primary national subdivision of an agency is obligated to bargain with a union regarding matters encompassed by their regulations only where the union represents the majority of employees in the agency or primary national subdivision, or when the Authority has determined under 7117(b) of the Statute that no compelling need exists for the regulation in effect. /17/ In the case herein DOD's parking regulation of October 11, 1979 and DOA's regulation of October 19, 1979 were applicable to all their subordinate bodies and I conclude the DOD regulation was an "agency" regulation and the DOA regulation was a regulation issued by a "primary national subdivision of such agency" within the meaning of Section 7117(a)(3) of the Statute. Further, the Union herein does not represent a majority of the employees in DOD or DOA nor has the Authority determined that no compelling need exists for the DOD or DOA regulations in effect, the issue having never been presented to the Authority for such a determination. Accordingly, I conclude that prior to their issuance, neither DOD nor DOA was obligated to bargain with the Union regarding the matters which were the subject of the parking regulations referred to herein. However, the DOD and DOA regulations were not self implementing. Rather, in order to be effectuated, components subordinate to DOD and DOA were required to implement them as they would affect employees within their jurisdiction. The regulations did not provide for all possible contingencies and, therefore, various areas of discretion were left to the judgment of management at the level of actual employee location and union representation. The Authority has held in National Treasury Employees Union Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA No. 119, that "to the extent that an agency has discretion with respect to a matter affecting conditions of employment of its employees, that matter is within the duty to bargain of the agency." Clearly, the paid parking program at the Facility is a condition of employment. Accordingly, I conclude that management was obligated under the Statute to negotiate with the Union to whatever extent management had discretion under applicable Government-wide and agency regulations in the implementation of the paid parking at the Facility. The Union, on November 9, 1979, made a request that the management of DCASR negotiate on "impact and procedures as they relate to our employee and parking policy." I construe this to be a demand that management bargain with the Union to the extent the Statute required negotiation even though some of the specific demands in the letter may have been non-negotiable under the circumstances. DCASR by its letter of November 21, refused to negotiate with the Union on parking policy "including the implementation thereof," taking the position that Fort Devens, as the landlord at the Facility, was the party responsible for implementation of the program. Later, after DCASR took it upon itself to forward the Union's request to Fort Devens, Fort Devens also refused to bargain with the Union when it notified DCASR, by letter dated November 30, 1979, that it would be "inappropriate" for Fort Devens to negotiate unless the Union was the representative of a DOA organization. Fort Devens' response to DCASR's referral of the Union's demand to bargain discloses that it interpreted the referral as a request that they bargain with the Union about the implementation of the parking program at the Facility. Indeed, subsequent action by Captain Andrews, Fort Devens' representative coordinating the implementation of the new parking program, further demonstrated Fort Devens' disinclination to bargain with the Union. Thus, on November 27, 1979, when Themistocles raised the question of daily parking with Captain Andrews, he was informed that there was nothing she could do at that time. I conclude, therefore, that Fort Devens was aware of the Union's desire to bargain on the matter and it concluded that, because no bargaining relationship existed between Fort Devens and the Union, it would not negotiate with the Union on the matter. In these circumstances it is obvious that any further demand to Fort Devens to negotiate implementation of the parking program at the Facility would have been a futile act, and the law does not require futile gestures. Clearly, both DCASR or Fort Devens declined to bargain with the Union on any aspect of the matter although both tenant and landlord knew of the Union's desire to negotiate on the implementation of the parking program at the Facility. The focal point in the failure to bargain alleged herein is whether, in the circumstances of this case, any of the named Respondents had an obligation to bargain with the Union over whatever aspects of the paid parking program may have been negotiable under the Statute. The Union is the exclusive representative of DCASR's employees. However, DCASR does not control parking at the Facility, control residing with Fort Devens. Fort Devens, on the other hand, has no bargaining relationship with the Union since the Union is not the exclusive representative of any of its employees. Therefore, according to Respondents, since DCASR had no right to negotiate with the Union and Fort Devens had no obligation to bargain with the Union, no unfair labor practice can be established with regard to the implementation of the paid parking program at the Facility. In the peculiar circumstances herein I conclude that DOD, DLA, DCASR, and Fort Devens together constitute an affiliated or joint enterprise with regard to the implementation of the paid parking program at the South Boston Facility. Organizationally there is a commonality which binds together all these components of DOD. While Fort Devens, and DCASR have separate chains of command to DOD, DCASR through DLA and Fort Devens through DOA, all components are ultimately responsible to and are subordinate of DOD which, through OSD, has overall policy and coordinating responsibility for labor-management relations for all components within DOD. In this regard it is DOD which decides the policy to be adopted when negotiability matters under the Statute are at issue and represents component organizations in the presentation of such cases before the Authority. Further, DOD is available to subordinate components for assistance and guidance and, if DOD deems it appropriate, can impose its policies on any subordinate entity. In the case herein not only did DOD have an integral relationship with the organizations and employees involved in the paid parking program but DOD played an essential role in the chain of events which resulted in the implementation of the program. Thus, DOD's implementing regulation was transmitted through DOA's regulation to Fort Devens for implementation at the Facility and impacted on DCASR's employees who were also under the umbrella of ultimate control of DOD. True, neither DCASR nor DLA had an independent right to bargain with the Union on the matter and Fort Devens had no independent obligation to bargain on the matter. Nevertheless, DOD, as the parent organization of all these subordinate activities and a moving party through the issuance of its parking regulations, was inextricably involved in the situation. Moreover, only DOD, by virtue of its organizational position with overall policy and coordinating responsibility for labor-management relations for all components within DOD had the authority to resolve the predicament in which it was enmeshed with subordinate components and the Union by imposing its presence in the matter. DOD however failed to act and the Union was deprived of a statutory right. Therefore, for the reasons set forth above and in the circumstances of this case, I conclude that Respondents DOD, DLA, DCASR and Fort Devens violated sections 7116(a)(1) and (5) of the Statute by the failure to negotiate with the Union with regard to the impact and implementation of the paid parking program at the Facility, as alleged. /18/ Counsel for Respondents DOD and DLA argues that some of the matters about which the Union sought to negotiate by its demand of November 9, 1979, such as exemption from parking fees, reserved free parking for Union officials, the rate of parking fees, and the effective date, were issues fully covered by the OMB, GSA and DOD regulations and therefore, were preempted from negotiation. With regard to this contention Respondents at no time prior to implementation of this parking program presented the Union with an opportunity to perfect its demand to bargain whereby the Union could explicate specifics regarding these matters. While Respondents may not have been obligated to negotiate on matters clearly and fully treated in government-wide or agency regulations, this would not justify refusing to meet with the Union. Such an occasion might have resulted in the Union presenting specific proposals which were not precluded from negotiation by OMB, GSA or DOD regulations. On the other hand, if after affording the Union with such an opportunity Respondents still were of the opinion that the demands were not negotiable due to the operation of higher regulations, the Union could then have sought a negotiability determination from the Authority and litigated the subject of compelling need. However, no such opportunity was provided the Union since, prior to implementation, Respondents DCASR and Fort Devens maintained neither were obligated to meet with the Union to negotiate in any manner on the subjects of "impact and procedures" as they related to unit employees. Moreover, there is no contention that all of the subjects the Union desired to negotiate on were non-discretionary at the level of implementation and thereby outside the scope of bargaining. Indeed, the DOA regulation of October 19, 1979 assumes the existence of some discretionary, bargainable aspects of the parking program in that the DOA regulation instructed installation or activity commanders " . . . to negotiate with exclusively recognized labor organizations over the impact and implementation of the installation's parking plan." Accordingly, when the Union was denied the opportunity to meet with a representative of management who could negotiate those aspects of the parking program which were statutorily bargainable, the Union was completely frustrated and precluded from submitting any specific bargainable proposals. Accordingly, in the circumstances of this case, I conclude that Respondents, by failing to provide the Union with an opportunity to bargain prior to implementation of the parking program at the South Boston Facility, deprived the Union of its right to bargain on those decisions relating to substantive provisions of the parking program over which management at the level of recognition had discretion and, with regard to those provisions over which management at the level of recognition had no discretion but to implement, on the procedures which management would observe in putting the program into effect and on appropriate arrangements for employees adversely affected by the new program. I further conclude that the colloquy which occurred between the Union and DCASR on December 13, 1979, after the implementation of the paid parking program, did not remedy the prior failure to negotiate. Prior to implementation of the parking program at the Facility DCASR unmistakably refused to negotiate with the Union, claiming lack of authority. Subsequent to implementation DCASR informed the union that it was now prepared to negotiate, with apparently no explanation being given as to how it achieved this new found authority. In this context the Union's view that DCASR's offer to negotiate was merely a pretense is understandable and reasonable. In any event, I conclude that the belated offer to negotiate after implementation, did not serve to remedy the refusal and failure to negotiate prior to implementation. /19/ Having found and concluded that by the failure and refusal to negotiate with the Union with regard to the implementation of the paid parking program at the South Boston Facility Respondents have violated sections 7116(a)(1) and (5) of the Statute, /20/ recommend the Authority issued the following: Order Pursuant to section 2423.29 of the Federal Labor Relations Authority's regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the Department of Defense, Defense Logistics Agency, Defense Contract Administration Services Region, Boston, Massachusetts, and the Commander, Fort Devens, shall: 1. Cease and desist from: (a) Failing and refusing to negotiate with the National Association of Government Employees, Local R1=210, the exclusive representative of Defense Contract Administration Services Region's employees at the South Boston Support Facility, with regard to the implementation of the paid parking program to the extent consonant with Government-wide and agency regulations. (b) Instituting changes with regard to the employee paid parking program without notifying the National Association of Government Employees, Local R1-210, the exclusive representative of Defense Contract Administration Services Region's employees at the South Boston Support Facility, and affording it a reasonable opportunity to negotiate on matters related to the implementation of the paid parking program to the extent consonant with Government-wide and agency regulations. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights assured by the Federal Labor-Management Relations Statute. 2. Take the following affirmative action: (a) Upon request, meet and negotiate with National Association of Government Employees, Local R1-210, the exclusive representative of Defense Contract Administration Services Region's employees concerning matters relating to the implementation of the paid parking program at the South Boston Support Facility to the extent consonant with Government-wide and agency regulations. (b) Post, at the South Boston Support Facility, copies of the attached Notice marked "Appendix" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Director of the Office of the Secretary of Defense, and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places where Notices are customarily posted. The Director shall take reasonable steps to insure that such Notices are not altered, defaced or covered by any other material. (c) Notify the Federal Labor Relations Authority, in writing, within 30 days from the date of this order as to what steps have been taken to comply herewith. SALVATORE J. ARRIGO Administrative Law Judge Dated: December 22, 1980 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail or refuse to negotiate with National Association of Government Employees, Local R1-210, the exclusive bargaining representative of Defense Contract Administration Services Region's employees, with regard to the implementation of the paid parking program at the South Boston Support Facility to the extent consonant with Government-wide and agency regulations. WE WILL NOT institute changes with regard to the paid employee parking program at the South Boston Support Facility without notifying the National Association of Government Employees, Local R1-210, the exclusive representative of Defense Contract Administration Services Region's employees, and affording it a reasonable opportunity to bargain on matters relating to the implementation of the program to the extent consonant with Government-wide and agency regulations. WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of their rights assured by the Statute. WE WILL, upon request, meet and negotiate with National Association of Government Employees, Local R1-210, the exclusive representative of Defense Contract Administration Services Region's employees, concerning matters relating to the implementation of the paid parking program at the South Boston Support Facility to the extent consonant with Government-wide and agency regulations. (Agency or Activity) By: (Signature) Dated: . . . This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerning this Notice, or compliance with any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region I, whose address is: 441 Stuart Street, 9th Floor, Boston, Massachusetts 02116. --------------- FOOTNOTES$ --------------- /1/ The Office of Personnel Management was granted permission to participate in this proceeding as amicus curiae pursuant to section 2429.9 of the Authority's Rules and Regulations but did not file any submissions with the Authority. /2/ The Authority has so concluded. See, e.g., General Services Administration, Region 8, Denver, Colorado, 10 FLRA 257 (1982); Veterans Administration Central Office, Veterans Administration Medical Center, Long Beach, 9 FLRA 325 (1982); and Department of Housing and Urban Development, supra. /3/ See Internal Revenue Service (District, Region and National Office Unit and Service Center Unit), 10 FLRA 326 (1982). See also U.S. Customs Service, Region V, New Orleans, Louisiana, 9 FLRA 116 (1982). /4/ During the pendency of the instant case before the Authority, the United States District Court for the District of Columbia rules that the paid parking plan, as embodied in OMB Circular A-118, was invalid, and ordered that the GSA regulation be set aside and its enforcement permanently enjoined. American Federation of Government Employees, AFL-CIO, et al. v. Freeman, 510 F.Supp. 596 (D.D.C. 1981). Thereafter, GSA revised the regulation to suspend the collection of parking fees in accordance with the injunction. (46 F.R. 40191 (1981)). The District Court's decision was subsequently reversed. American Federation of Government Employees, AFL-CIO, et al. v. Carmen, 669 F.2d 815 (D.C. Cir. 1981). However, President Reagan has stated that the collection of parking fees will not be reinstated. Statement by the President on Parking Fees for Federal Employees, 17 Weekly Comp.of Pres.Doc. 1161 (Dec. 17, 1981). /5/ In its submission, counsel for Respondent Commander, Fort Devens moved that the complaint against Commander, Fort Devens be dismissed. For reasons which shall be explicated hereinafter, the motion is denied. /6/ 44 Fed.Reg.No. 161, at 48648-48641 (August 17, 1979). /7/ 44 Fed.Reg.No. 179, at 53161-53163 (September 13, 1979). /8/ DOD issued its final parking regulation on December 7, 1979 which, in large measure, was identical to the earlier interim regulation. /9/ A draft of the OMB Circular, dated April 6, 1979, which was circulated to various Government agencies for comment, indicated that GSA would establish the parking fee to be assessed at all Government installations. Subsequent to the circulation of this draft, DOD "negotiated" with OMB and GSA on the matter and received permission to do the appraising at its military installations. The permission was conditioned on the use of professional appraisers of the U.S. Corps of Engineers and the Naval Facilities Engineering Command; that the appraisals be performed using commonly accepted appraisal standards; that the GSA appraisal form be used; and that GSA would have final authority on the appraisal. DOD's appraisal and a determination of a parking rate at the South Boston Facility was completed on August 24, 1979. /10/ Themistocles, whose testimony on this conversation was fragmentary at best, acknowledge under cross-examination that he never made a demand on Fort Devens to "negotiate" with the Union on this matter. /11/ This account is taken largely from management's minutes of the meeting which were received in evidence without objection. /12/ According to the unchallenged testimony of Newdick, the Union was convinced that management was conducting "sham" negotiations and the Union's proposal for "free parking" was made in a "jocular fashion." /13/ DCASR and the Union had previously agreed in November to jointly seek exclusion from paid parking status for the Facility. /14/ The Union has not sought nor has the Authority been presented with a request for a compelling need determination regarding the regulations under consideration herein. /15/ Section 7117(a)(1) provides, in relevant part: " . . . the duty to bargain in good faith shall . . . extend to matters which are the subject to any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation." /16/ Sections 7117(a)(2) and (3) of the Statute provide: "(2) The duty to bargain in good faith shall, to the extent not inconsistent with Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection only if the Authority has determined under subsection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation." "(3) Paragraph (2) of the subsection applies to any rule or regulation issued by any agency or issued by any primary national subdivision of such agency, unless an exclusive representative represents an appropriate unit including not less than a majority of the employees in the issuing agency or primary national subdivision, as the case may be, to whom the rule or regulation is applicable." /17/ Section 7117(b) sets forth the process and standards for Authority determination of no compelling need. Procedures and criteria for determining compelling need are found in Authority regulations, sections 2424.1 and 2424.11. /18/ Cf. Internal Revenue Service, Washington, D.C., and Internal Revenue Service, Hartford District Office, 4 FLRA No. 37 (1980). /19/ Department of the Air Force, 47th Flying Training Wing, Laughlin Air Force Base, Texas, 2 FLRA No. 24 (1979). /20/ I am aware of the decision of the U.S. District Court for the District of Columbia in American Federation of Government Employees, AFL-CIO, et al. v. R. G. Freeman, III, U.S.D.C. No. 79-2955, decided September 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 impact on the matters treated herein is too speculative for consideration in this decision.