[ v12 p216 ]
12:0216(51)CA
The decision of the Authority follows:
12 FLRA No. 51
DEPARTMENT OF THE ARMY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 3-CA-766
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. The General Counsel
and the Charging Party filed exceptions to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations, as modified below.
The Judge found that the Respondent, Department of the Army (DOA),
did not afford the Charging Party (AFGE) reasonable time to comment on
DOA's proposed parking regulation as required by section 7113(b)(1) of
the Statute, /1/ but that DOA acted as promptly and prudently as could
reasonably be expected under the circumstances and therefore did not
violate the Statute as alleged in the complaint.
In agreement with the Judge, the Authority concludes that DOA did not
violate section 7116(a)(1) and (5). /2/ However, the Authority does not
agree with the Judge's reasoning in this regard. Thus, noting that
Government-wide regulations designated November 1 as the effective date
for agencies to implement the paid parking program and that DOA could
not notify AFGE of proposed parking regulations until it received
directives from DOD, the Authority finds, contrary to the Judge, that
DOA's letter to AFGE on October 18 explaining the November 1 deadline
and containing a copy of its proposed regulations for comments in
writing or by telephone constituted sufficient advance notice in the
particular circumstances of this case to permit AFGE a reasonable time
to respond before DOA was required to take final action. /3/
Accordingly, the Authority concludes that DOA did not violate section
7116(a)(1) and (5) of the Statute and that the complaint therefore must
be , dismissed. /4/
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-766 be, and it
hereby is, dismissed.
Issued, Washington, D.C., June 20, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 3-CA-766
Samuel S. Horn, Esq.
For the Respondent
Gary S. Miller, Esq.
and Doris O. Hildreth on the brief
For the Charging Party
Peter B. Robb, Esq. and Erick Genser, Esq.
and Susan Shinkman, Esq. on the brief
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This case arose under the provisions of the Federal Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (herein referred
to as the Statute) and the Rules and Regulations issued thereunder.
Upon unfair labor practice charges filed by the American Federation
of Government Employees, AFL-CIO (herein the Union) against the
Department of the Army (herein DOA or the Respondent) on December 20,
1979, the General Counsel of the Authority, by the Regional Director for
Region 3, issued a Complaint and Notice of Hearing on March 26, 1980,
which was amended on April 24, 1980, alleging Respondent engaged in
unfair labor practice conduct violative of sections 7116(a)(1) and (5)
of the Statute. Essentially, the complaint alleges Respondent initiated
substantive changes in conditions of employment relative to instituting
a paid parking program without affording the Union, which has National
consultation rights, a reasonable opportunity to present its views and
recommendations on the changes as required by section 7113 of the
Statute.
A hearing on the complaint was conducted on May 29, 1980 in
Washington, D.C., at which time all parties were represented by counsel
and afforded full opportunity to adduce evidence and call, examine and
cross-examine witnesses and argue orally. Briefs filed by all parties,
including the Charging Party's reply brief filed August 4, 1979, have
been carefully considered. /5/
Upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
By Circular No. A-118, dated August 13, 1979, the Executive Office of
the President, Office of Management and Budget (OMB) announced the
establishment of a Government-wide policy dealing with Federal parking
facilities. /6/ According to OMB, a basis for charging for the use of
parking facilities needed to be established which was equitable among
employees and consistent with related policies regarding air quality,
energy conservation and reduced traffic congestion. In the Circular OMB
stated, in part:
" . . . It is the general policy of the executive branch to
limit Federal installation parking facilities to the minimum
necessary, to administer those facilities in full compliance with
carpooling regulations, and to assess Federal employees,
contractor employees and tenant employees who are provided parking
in Government-controlled space a charge equivalent to the fair
monthly rental value for the use of equivalent commercial space,
subject to the terms, exemptions and conditions stated in this
Circular."
The ten page Circular specifically addressed such matters as:
conditions for exemptions from fees; the priorities to be considered
for the allocation and assignment of parking spaces; the establishment
of charges for employee parking; and the determination of rates. With
regard to matters concerning fees for parking, the Circular provided,
inter alia:
"a. Establishment of charges. Charges for employee use of
Government-owned or leased parking facilities shall be assessed at
all locations except where the rate, as determined in c. below,
would be less than $10.00 per month. For the initial period
November 1, 1979, through September 30, 1981, the charges to be
collected shall be 50 percent of the full rate scheduled to be
collected. If the full rate is calculated to be between $10.00
and $19.99, the monthly charge between November 1, 1979 and
September 30, 1981, shall be $10.00. The full charge shall be
collected after October 1, 1981."
As to the determination of rates to be charged, the Circular stated:
"c. . . . (1) The Administrator of GSA shall determine the
rate to be charged for Government furnished employee parking at
each facility using generally accepted appraisal techniques.
Agencies other than GSA which hold title to property and desire to
arrange their own appraisals must advise GSA in writing of their
intent, and shall conduct such appraisals in accordance with GSA
guidelines. GSA shall review and approve all rates in accordance
with 40 U.S.C. 490(k). The rates shall approximate the prevailing
value of comparable commercial property in the vicinity. The rate
basis will be the fair rental value of such property as used in
calculating Standard Level User Charges. Fair rental value
includes an allowance for the costs of parking facility
management. The rates so established shall be adjusted annually
by the Administrator to reflect increases or decreases in value."
The Circular further mandated that General Services Administration
(GSA) "issue regulations implementing the provisions of this Circular
regarding the determination of commercially equivalent rates for
Government parking . . . (and) revise regulations and priorities as
necessary, for the assignment of parking spaces." Rates at non-GSA
facilities were to be determined by October 1, 1979. Heads of
departments and agencies were directed to assess charges consistent with
the provisions of the Circular and GSA regulations and immediately
request GSA to determine rates to be assessed at their facilities " . .
. to enable rate determination to be completed prior to November 1,
1979," with late rate determinations to be applied retroactively to
November 1. The OMB Circular also provided that final agency
regulations should be issued prior to November 1, 1979. Agencies were
further required to " . . . issue such instructions as may be needed to
maximize carpooling and implement the provisions of this Circular and
regulations issued by GSA".
Pursuant to the above OMB Circular, GSA issued Government-wide
regulation FPMR Temp. Reg. D-51, dated September 6, 1979. /7/ The GSA
Federal employee parking regulation designated November 1, 1979 as the
effective date for agency implementation of the regulation and imposed
on agencies specific requirements relating to priority assignments of
parking spaces for non-employees and employees, methods to establish
parking fees, and rates to be charged, all of which were in accordance
with the OMB Circular. The GSA regulation provided that at non-GSA
controlled facilities the responsible agency would allocate employee
parking in accordance with OMB Circular No. A-118.
The Department of Defense (DOD) issued to its subordinate agencies,
on September 18, 1979, a draft instruction dealing with the
implementation of the Federal paid parking program. At all times
relevant herein, DOD has accorded the Union national consultation
rights. Accordingly, DOD also sent a copy of the draft instruction to
the Union on September 20, 1979. /8/ An accompanying letter to the
Union indicated that the parking program mandated by OMB, including the
assessment of fees, would become effective on November 1, 1979. The
letter continued:
"The DOD Instruction must . . . be issued as early as possible
in October so that it will reach installation commanders
responsible for its implementation before November 1. Accordingly
I must ask that you review the draft Instruction and forward any
comments to reach this office by the close of business on October
3 at the latest."
The National office of AFGE responded to DOD by letter of September
26. In that letter AFGE indicated it had reviewed the draft DOD
"Instruction" and suggested that the document including the subject of
parking fees, was "negotiable between the parties", in accordance with
the provisions of section 7117(a)(1) of the Statute and " . . .
negotiating the . . . issues relating to parking are the best actions
which AFGE could pursue to successfully combat parking fees for Federal
employees".
The Department of the Army (DOA) is a subordinate component of DOD.
As such, it operates under the authority, direction and control of the
Secretary of Defense and, therefore, is legally bound to comply with
directives of DOD. /9/ Upon receipt and review of DOD's draft
instruction of September 18, 1979, DOA, in a five page memorandum to DOD
dated October 9, 1979, offered numerous comments on DOD's draft
implementing regulation. DOA noted that the most significant problem it
had with the draft instruction related to the November 1 implementation
date. In particular, DOA referred to an outstanding Army Chief of Staff
regulation which provides, inter alia, that unions accorded national
consultation rights:
" . . . must be provided with reasonable notice (e.g. 30-45
days) of proposed new or revised policies which impact on the
conditions of employment of both appropriated and nonappropriated
fund employees (and)
"(b) . . . must be given opportunity to comment on such
proposals and suggest changes to the proposals." /10/
DOA's reply further stated:
"The CSR goes on to say that failure to provide labor
organizations the opportunity to comment, before issuance, on
proposed policies that affect Army civilian employees is a
violation of Title VII. In view of the above, it is recommended
that the Army program not be implemented until such time as the
unions are given an opportunity to review any implementing
instructions and Army regulations pertaining to this program.
This should equally apply to the DODI."
Although previously DOD's proposed regulations had frequently been
revised based upon subordinate unit's recommendation, DOA received no
specific response to its comments or suggestions and on October 11, 1979
DOD issued an "advance copy" of its interim paid parking regulations to
DOA and its other subordinate command activities. /11/ A cover letter
accompanying the directive noted that the advance copy was being
provided " . . . to permit implementation of the President's program,
particularly the paid parking aspect, on November 1, 1979 . . . " The
DOD directive designated specific parking fees which would be charged at
numerous DOD installations, including those controlled by DOA, effective
November 1, 1979. Further, the DOD regulation incorporated elements of
the OMB and GSA directives; set out an expanded list of specified
classes of personnel and vehicles which would be exempt from payment of
parking fees; set out certain priorities in the assignment and
allocation of parking spaces; and designated those responsible to
implement and enforce the regulation at various subordinate managerial
levels. The DOD directive also provided that "labor organizations with
national consultation rights . . . must be consulted before the issuance
of any implementing policies and regulations that affect DOD civilian
employees". In addition, DOD, inter alia, required Secretaries of the
military Departments and Directors of defense Agencies to operate,
control and issue instructions relative to the paid parking program in
accordance with the provisions of the related OPM Circular, the GSA
regulation and the DOD regulation.
DOD's directive treated numerous subjects in a rather comprehensive
manner thereby substantially limiting DOA's flexibility to independently
fashion its own regulation for implementation at the installation level.
Nevertheless, various matters in the DOD directive provided DOA with
considerable discretion including: establishing the number of spaces
assigned to employees working unusual hours; developing incentives to
encourage and facilitate the use of car and van pools, and public
transportation; issuance of parking permits to individuals who use
their privately owned vehicles for government business; and developing
a mechanism for deterring abuse of parking space allocation. Moreover,
since DOA was directed to establish a paid parking program for its
subordinate bodies, and since various matters were not governed by OMB,
GSA or DOD directives, DOD was left a substantial range of possible
procedures to utilize in implementing a paid parking program.
Major Paul T. Gerard, "Action Officer" for DOA's paid parking
program, received a copy of the DOD October 11 directive late in the
afternoon of Friday, October 12, 1979. That week-end, Major Gerard
developed proposed changes to DOA's parking regulations to conform to
DOD requirements.
On Monday, October 15, DOA telegramed a draft of its proposed changes
to the Command Officers for the twelve DOA installations affected by the
regulation. The parties were notified that the changes to the parking
program were to become effective on November 1, 1979 and a list of fees
was included. Prior hereto no fees were charged for parking. The
Command operations were requested to provide comments or concurrence to
DOA by October 17.
At all times material herein AFGE has been accorded national
consultation rights with DOA in accordance with section 7113 of the
Statute. Accordingly, on October 16, 1979 Colonel Thomas A. MacDonnell,
Chief of DOA's Law Enforcement Division, drafted a letter to AFGE
National President Kenneth T. Blaylock attaching a copy of DOA's
proposed changes to its parking regulations and advising that the
program would be implemented on November 1, 1979. However, for reasons
not entirely clear in the record, the letter was not mailed to the Union
until Thursday, October 18. The letter stated, inter alia, that "(d)ue
to OMB requirement to implement this program by 1 November 1979, we are
publishing this change as soon as possible in order to give commanders
sufficient time to prepare for implementation". The letter further
suggested that any comments or observations the Union might have
concerning this matter could be forwarded in writing or by telephone,
not later than November 16, 1979.
On October 19, 1979 DOA published and distributed to its subordinate
Commands its paid parking regulation. /12/ DOA's directive (dated
October 24) took the form of an interim change to DOA parking regulation
AR210-4 and was virtually identical to the proposed changes previously
sent to Command Officers and the Union. The DOA regulation essentially
incorporated and made more explicit the requirements contained in the
OMB Circular and the GSA and DOD regulations and required installation
commanders to institute a permit, fee collection, and carpool program at
their facilities. Exercising its discretionary authority, DOA included
in the regulation additional provisions which provided instructions and
guidance to installation commanders in implementing the program. Thus,
for example, the DOA regulation advised installation commanders as to:
the personnel to be used to implement the program; alternatives
available to installation commanders for the operation of the program
(automated, contractor operated, or installation operated); the sale of
parking permits on a yearly, quarterly, bi-monthly, or daily basis; the
site used for the sale of permits; standards for enforcing the program;
and the manner of collecting fees.
The DOA regulation left installation commanders with a substantial
amount of flexibility in implementing the program at their local
facilities and specifically required installation commanders " . . . to
negotiate with exclusively recognized labor organizations over the
impact and implementation of the installation's parking plan".
The Union received Major MacDonnell's letter of October 18, 1979 with
the attached "proposed" changes to DOA's parking regulations on Monday,
October 22. According to the testimony of Ms. Mary Lynn Walker, AFGE
Director of Organization and a supervisory Labor Relations Specialist in
charge of DOA national consultation rights matters in October 1979, the
Union's practice when receiving a notice of a proposed change from DOA
subject to national consultation rights was to forward such notice to
representatives at the affected field installations for comment before
responding to the agency. When comments were received from the Union's
locals they were compiled with National office comments and, thereafter,
sent to DOA, a process usually taking about 30 days. /13/ However, when
DOA's proposed changes were received on October 22, the Union concluded
there was insufficient time to obtain comments from representatives at
the installations involved, evaluate the documents and reply to DOA by
November 1, the effective date of the new program.
Commencing November 1, 1979, Respondent's installations began
implementing DOA's paid parking program. By letter dated November 7,
1979 the Union responded to DOA by indicating it did not "recognize the
provision" of OMB Circular A-118 or GSA's Temp. Reg. "D-65" (sic).
After noting that unions held exclusive recognition rights at many of
the installations affected by the new parking fees, the Union suggested
that negotiations be conducted at those sites, particularly as to " . .
. scope, payment procedures, enforcement, fees, exemptions, assignments,
etc. . . " The Union concluded:
"The above constitutes the AFGE's comments to the Department of
the Army's regulation on parking. We must remind you that under
Title VII, Sec. 7117 of the Civil Service Reform Act that National
Consultation Rights are guaranteed with sufficient amount of time
for unions to review agency regulations and submit appropriate
comments. In order for this organization to allow sufficient time
for appropriate consultations, we request that we be given at
least thirty (30) days within which to provide our comments."
DOA replied to the Union by letter dated November 30, 1979 at which
time it agreed that "certain aspects" of the parking program were
negotiable but took the position that such matters as whether there
would be a fee, the amount of the fee and any exemptions were dictated
by higher authority outside DOA and, therefore, were not negotiable. In
closing, DOA informed the Union that it intended to revise Army
Regulation 210-4 "within the next few months" at which time the Union
would be asked for its observations and comments on the "total
carpooling and parking control program". /14/
Issues
Section 7113 of the Statute provides, in relevant part, that:
"(b)(1) Any labor organization having national consultation
rights in connection with any agency under subsection (a) of this
section shall--
"(A) be informed of any substantive change in conditions of
employment proposed by the agency, and
"(B) be permitted reasonable time to present its views and
recommendations regarding the changes.
(2) If any views or recommendations are presented under
paragraph (1) of this subsection to an agency by any labor
organization--
"(A) the agency shall consider the views or recommendations
before taking final action on any matter with respect to which the
views or recommendations are presented . . . "
Counsel for the General Counsel contends that Respondent failed to
fulfill the obligations imposed by section 7113 and, thereby, violated
sections 7116(a)(1) and (5) of the Statute by implementing on November
1, 1979 the interim change to regulation AR 210-4 without affording the
Union a reasonable time to carry out the process of consultation on the
change. Thus, Counsel for the General Counsel takes the position that,
in the circumstances of this case, Respondent was required to give the
Union notice of the specific change at least 30 days prior to the day
conditions of employment regarding employee parking were changed in
order to assure that consultation would be completed before the actual
change was put into effect.
Essentially, Respondent contends that: (1) DOA itself did not
propose any substantive change within the meaning of sections 7113 of
the Statute; (2) the Union received adequate notice of the proposed
implementation of the paid parking program; (3) Respondent provided as
much advance notice of the implementation of its regulation as it
reasonably could under the circumstances; (4) DOA considered the
Union's views and recommendations; and (5) Respondent took no final
action in the matter by November 30, 1979.
Discussion and Conclusions
Clearly, the paid parking program under consideration herein is a
condition of employment within the meaning of the Statute and, beginning
November 1, 1979, Respondent's installations were required to put into
effect a parking program which involved fees for parking, priorities for
the allocation of parking spaces, and other significant matters
affecting employees for whom the Union had national consultation rights.
It is also clear that DOA was considerably circumscribed by OMB, GSA
and DOD parking regulations as to the mandatory contents of its own
regulation. Nevertheless, DOD's regulation provided DOA with
substantial flexibility in establishing a paid parking program for its
subordinate installations by specifically indicating to DOA areas of
discretion in whatever plan it adopted. Moreover, by virtue DOD's
instruction to DOA to issue and administer a paid parking program, all
the facets of which were not covered by OMB, GSA, or DOD regulations,
DOA inherently was given wide discretion in establishing and
effectuating the details of the plan it chose to have implemented at its
installations. Accordingly, I conclude that DOA's interim change to
regulation AR 210-4, effective November 1, 1979, encompassed substantive
changes within the meaning of section 7113 of the Statute and therefore,
Respondent was required to fulfill the obligation imposed by section
7113 to consult with the Union with regard to such changes.
As to the "notice" issue presented herein, under section 7113 of the
Statute the Union was entitled to be informed of DOA's parking
regulation sufficiently in advance of the day of implementation, a
"final" action, so that the Union could have a reasonable opportunity to
present its views on the matter and have those views considered by DOA
before it implemented the regulation. /15/ Respondent suggests that the
Union was aware of DOD's proposed regulation in September 1979 and this
provided adequate notice to the Union as to the substance of DOA's
regulation. While the Union had notice in September 1979 of DOD's
directive to DOA that it implement a paid parking program by November 1,
notice of the DOD regulation is not at issue herein. But more
importantly, the DOD and DOA regulations were not identical in content.
Therefore, until receiving a copy of DOA's regulation on October 22,
1979, the Union had little knowledge of how DOD would interpret the OMB,
GSA and DOD directives or what DOA would ultimately issue as a paid
parking program for its facilities.
Further, the Statute expressly required that Respondent afford the
Union a reasonable time to comment on the proposed regulation so that
DOA could consider the comments before taking final action. When the
Union received notice of DOA's proposed directive it had only until
October 30 to get its comments to Respondent before the regulation was
implemented on November 1. Therefore, although Respondent notified the
Union that it had until November 16 to comment on the regulation,
Respondent cannot rely on post-implementation comment time to support
its claim that it complied with the requirements of the Statute.
Moreover, the directive, which had a substantial impact on employee
parking at Respondent's numerous facilities, encompassed nine pages of
specific material and required careful evaluation to discern which
provisions followed the mandatory requirements of the OMB, GSA and DOD
regulations and which provisions represented DOA's exercise of
discretion. In addition, Respondent's own Army Chief of Staff
regulation and past practice of providing the Union at least 30 days
notice of a final action lends support to the conclusion that Respondent
was aware that the Union would require more than the time Respondent
allowed for the Union to respond to the proposed parking program and
have its response receive good faith consideration prior to
implementation. Accordingly, in these circumstances I conclude that
Respondent did not afford the Union a reasonable time to comment on the
proposed regulation and then consider such views before taking final
action on the matter as required by the Statute.
In my view, the fact that on November 7, 1979 the Union replied to
Respondent's October 18 communication is of no consequence in the
disposition of this matter. In the November 7 letter the Union
expressed its "views and comments" by challenging the legality of the
entire process of imposing the Federal employee paid parking program,
reminding DOA of its obligation to negotiate with unions at those
installations where exclusive representatives were recognized, and,
having noted the November 1 implementation date, requesting that it be
given sufficient time of at least 30 days to review and comment on the
regulation. Respondent's reply, 23 days later failed to address the
Union's request for more time to comment on the regulation and, in
essence, viewed the matter as closed, noting however that further
revision of the parking program was envisioned and, in that event, the
Union would again be asked for its views and comments. Thus, the
Union's comments were not expressed until after the program was
implemented and the comments were primarily a request for additional
time to respond, a general objection to the legality of the entire
program and a suggestion that DOA fulfill its bargaining obligations
imposed by the Statute. Respondent's consideration of those comments
amounted to no more than a belated acknowledgement of receipt of the
Union's letter, and at no time did Respondent indicate a willingness to
comply with the provisions of the Statute which mandated notice in
advance of taking a final act. In these circumstances I conclude that
Respondent's claim that the Union expressed its views on the matter and
Respondent considered those views to be without merit as a defense to
the allegations made herein.
However, I further conclude that DOA acted as promptly and prudently
as could reasonably be expected under the circumstances in informing the
Union of proposed changes mandated to take effect November 1, 1979.
Thus, DOD was aware of the November 1, 1979 date of implementation when,
on September 18, 1979, it forwarded to subordinates its proposed
regulation for comment. The comments DOD received from DOA clearly
indicated that the time frame set by DOD did not permit DOA to implement
a paid parking program without laying itself open to violating the
consultation requirements of the Statute. DOA was unable to provide the
Union with advance notice of its proposed regulations since DOA itself
was awaiting final parking regulations from DOD. The evidence reveals
that DOD's proposed regulations had in the past frequently been revised
based upon subordinate recommendations. Notwithstanding such warning,
DOD, in its regulations issued on October 11, 1979, mandated that DOA
and all subordinate organizations implement a paid parking program by
November 1.
Upon receipt of DOD's regulations, DOA expeditiously developed its
own proposed regulation by October 15, 1979 and immediately sent it to
subordinate commands for comment. The period for comment by subordinate
commands was limited to two days. The directive was then mailed to the
Union on October 18. DOA was obligated to follow the mandate of the DOD
regulation and DOD was fully aware of the proscriptions of the Statute
as well as DOA's apprehension regarding the implementation date and its
inability to grant the Union appropriate time for consultation.
Accordingly, I find and conclude that it was DOD's timing of actions
which set into motion a chain of events whereby DOA's conduct became a
virtual ministerial act of issuing a parking program in a time frame
that practically assured that DOA would be unable to comply with the
consultation requirements of section 7113 of the Statute. However, DOD
has not been named as a Respondent herein.
It has been held by the Federal Labor Relations Council in a case
decided under Executive Order 11491, that the acts and conduct of agency
management, at a higher level of an agency's organization, may provide
the basis for finding a violation of any part of section 19(a) of the
Order, but, may not, standing alone, provide the basis for finding a
separate violation by agency management at a lower organizational level
of the agency solely on the basis of its ministerial actions in
implementing the directions of higher agency authority. /16/
Subsequently, the, Authority, in deciding a case which arose under the
Order, followed the rule of Naval Air Rework Facility. /17/
The Statute specifically provides that the policies and decisions
issued under the Order " . . . shall remain in full force and effect . .
. unless superseded by specific provisions of (the Statute) or by
regulations or decisions issued pursuant to (the Statute)". /18/ The
provisions of the Order dealing with national consultation rights do not
differ in substance from the provisions of the Statute applicable herein
/19/ and the Authority has not, to date, departed from the holding of
Naval Air Rework Facility. /20/
Accordingly, in the circumstances of this case, wherein DOA had no
choice but to comply with the directive of DOD; DOA's failure to
provide adequate notice to the Union resulted from ministerially
fulfilling its obligations to comply with DOD's directive; DOD did all
it could to reasonably meet the requirements of section 7113 of the
Statute; and DOD not having been named as a Respondent in this
proceeding, I conclude that the evidence is insufficient to establish a
violation under the Statute. /21/
Based upon the foregoing findings and conclusions I recommend the
complaint herein be dismissed. /22/
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: December 22, 1980
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Section 7113(b)(1) provides:
(b)(1) Any labor organization having national consultation
rights in connection with any agency under subsection (a) of this
section shall--
(A) be informed of any substantive change in conditions of
employment proposed by the agency, and
(B) be permitted reasonable time to present its views and
recommendations regarding the changes.
/2/ Section 7116(a)(1) and (5) of the Statute provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/3/ While there were approximately two weeks between DOA's notice to
AFGE and the announced effective date of the paid parking program, DOD
did not issue its final parking regulation until December 7, as noted by
the Judge. AFGE did not submit any views or recommendations to DOA
concerning the substantive provisions of DOA's proposed parking
regulation at any time, but did challenge the legality of the process
imposing the paid parking and requested thirty days to review and
comment on the regulation.
/4/ In view of the foregoing conclusion, and noting that DOD was not
named as a Respondent or alleged to have violated the Statute, the
Authority finds it unnecessary to consider the Judge's comments
concerning the actions of higher level management herein.
/5/ Counsel for the General Counsel's unopposed motion to correct the
transcript is hereby granted.
/6/ 44 Fed.Reg.No. 161, at 48638-48641 (August 17, 1979).
/7/ 44 Fed.Reg.No. 179, at 53161-53163 (September 13, 1979).
/8/ A schedule of parking fees to be assessed at the installation
within the control of DOD did not accompany this document.
/9/ 10 U.S.C. 133(b) and Sec. 3010.
/10/ CSR 690-10, dated March 21, 1979.
/11/ DOD issued its final parking regulation on December 7, 1979
which essentially parallels the earlier interim regulation.
/12/ The regulation also was sent to the printer for final
reproduction on October 19.
/13/ The record reveals that during 1979, AFGE received 25 other
notifications of proposed changes from DOA and in none of those cases
was AFGE given less than 30 days to comment on the matter.
/14/ DOA did not thereafter revise the parking provisions encompassed
in its interim change to AR 210-4 at any time prior to the date of the
hearing of this case.
/15/ Respondent's contention that even though DOA's installations
were obligated to implement the directive on November 1, 1979, since the
regulation could have been changed thereafter, then no "final action"
was taken is without merit and accordingly, rejected. It is difficult
to conceive of any government regulation which is immutable.
/16/ Naval Air Rework Facility, Pensacola, Florida and Secretary of
the Navy, Department of the Navy, Washington, D.C. 5 FLRC 303, FLRC No.
76A-37 (May 4, 1977), Report No. 125.
/17/ Veterans Administration, 1 FLRA No. 101 (1979).
/18/ 5 U.S.C. 7135(b).
/19/ Executive Order 11491, as amended, Sec. 9(b).
/20/ Cf. Internal Revenue Service, Washington, D.C., and Internal
Revenue Service, Hartford District Office, 4 FLRA No. 37 (1980).
/21/ Naval Air Rework Facility, supra.
/22/ I am aware of the decision of the U.S. District Court for the
District of Columbia in American Federation of Government Employees,
AFL-CIO, et al., v. R. G. Freeman, III, U.S.D.C. No. 79-2955, decided
September 25, 1980, which deals with certain aspects of the Federal
employee parking fee program herein. However, at this time that case
has not been fully adjudicated and its ultimate outcome and possible
impact on the matters treated herein is too speculative for
consideration in this decision.