[ v15 p750 ]
15:0750(143)CA
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.