15:0216(43)CA - Harry Diamond Laboratories and Army and DOD and AFGE Local 2 and OPM -- 1984 FLRAdec CA
[ v15 p216 ]
15:0216(43)CA
The decision of the Authority follows:
15 FLRA No. 43
HARRY DIAMOND LABORATORIES
and
DEPARTMENT OF THE ARMY
and
DEPARTMENT OF DEFENSE
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2, AFL-CIO
Charging Party
and
OFFICE OF PERSONNEL MANAGEMENT
Intervenor
Case Nos. 3-CA-719
3-CA-889
3-CA-970
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondents had not engaged
in the unfair labor practices alleged in the consolidated complaint and
recommending that the consolidated complaint be dismissed in its
entirety. The General Counsel and the Charging Party filed exceptions
to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations, as modified herein.
The consolidated complaint alleged in part that the Respondents
Department of Defense (DOD) and Department of the Army (DOA) violated
section 7116(a)(1) and (5) of the Statute /1/ by issuing directives
concerning implementation of the paid parking program, thereby
interfering with the collective bargaining relationship between Harry
Diamond Laboratories (HDL) and the Charging Party, American Federation
of Government Employees, AFL-CIO, Local 2 (the Union). It further
alleged that HDL also violated section 7116(a)(1) and (5) of the Statute
by implementing the paid parking program at that facility without
bargaining with the Union concerning its implementation and impact on
bargaining unit employees.
The Judge concluded that DOD and DOA did not violate section
7116(a)(1) and (5) of the Statute as alleged. The Authority agrees.
Thus, the Union is not the exclusive representative of a unit of
employees at the DOD or DOA level, but exclusively represents an
appropriate unit of employees at HDL, a subordinate level within the
agency. Inasmuch as the duty of an agency under the Statute is to
negotiate with an exclusive representative of an appropriate unit of its
employees concerning conditions of employment affecting them, except as
provided otherwise by Federal law and regulation, including
Government-wide regulation, and therefore DOD and DOA would have been
required to bargain to the extent of their discretion in implementing
the Government-wide paid parking program if exclusive recognition had
existed at those levels, /2/ the Authority concludes that they had no
duty to bargain with the Union before issuing internal directives to
subordinate elements concerning the paid parking program. /3/ Moreover,
in the absence of any showing that DOD or DOA prevented their
subordinate element, HDL, from fulfilling its duty to bargain with the
Union at the level of exclusive recognition, /4/ the Authority finds
that the consolidated complaint must be dismissed to the extent it
alleges that DOD and DOA violated section 7116(a)(1) and (5) of the
Statute. /5/
The Judge further found that HDL had provided the Union with adequate
notice that the paid parking program would be instituted as required by
Government-wide regulations, and had bargained in good faith with the
Union concerning those aspects of the paid parking program that were
within HDL's discretion. The Authority adopts the Judge's findings and
conclusions in this regard, except as indicated below.
The Authority cannot agree with the Judge's conclusion that HDL
properly refused to bargain concerning certain Union proposals (e.g.,
the appropriate monthly parking rate for HDL employees and the exemption
of certain employees from coverage) on the basis that those matters were
controlled by DOD and DOA regulations. In this regard, the Judge found
that HDL's duty to bargain did not extend to matters subject to DOD's
agency-wide regulation unless the Authority determined that no
compelling need existed for the DOD regulation, a determination which
the Judge concluded could not be made in an unfair labor practice
proceeding. However, after the Judge issued his Decision herein, the
Authority concluded that questions concerning the existence of a
compelling need for regulations issued at the agency or primary national
subdivision level so as to bar negotiations on inconsistent proposals at
the level of exclusive recognition may appropriately be decided in an
unfair labor practice proceeding, and that where compelling need is
raised as an affirmative defense in an unfair labor practice proceeding,
management is required, as it would be in a negotiability proceeding, to
come forward with affirmative support for that assertion. See Defense
Logistics Agency (Cameron Station, Virginia), supra n.3. See also U.S.
Army Engineer Center and Fort Belvoir, 13 FLRA No. 116 (1984). Since
HDL refused to bargain concerning two Union proposals solely on the
basis that they were nonnegotiable under DOD directives, but neither
asserted nor established the existence of a compelling need for such
agency regulation, the Authority concludes that HDL thereby failed to
meet its duty to bargain with the Union to the extent of its discretion
in implementing the Government-wide paid parking program and therefore
violated section 7116(a)(1) and (5) of the Statute. Department of
Housing and Urban Development, 9 FLRA 136 (1982); Veterans
Administration Central Office, Veterans Administration Medical Center,
Long Beach, 9 FLRA 325 (1982).
With regard to an appropriate order to remedy such unfair labor
practice, however, the Authority concludes that, inasmuch as there is no
regulation in effect at this time requiring the collection of parking
fees, /6/ it is unnecessary to order that the Respondent negotiate
regarding this matter.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Harry Diamond Laboratories shall:
1. Cease and desist from:
(a) Failing or refusing to bargain with the American Federation of
Government Employees, Local 2, AFL-CIO, the exclusive representative of
its employees, before implementation of any paid parking program which
may be established by Government-wide rule or regulation.
(b) In any like or related manner interfering with, restraining, or
coercing any employee in the exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its facilities copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receiving
such forms, they shall be signed by an appropriate official of the
Respondent and shall be posted and maintained by such official for 60
consecutive days thereafter, in conspicuous places, including bulletin
boards and all other places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such Notices are
not altered, defaced, or covered by other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Acting Regional Director, Region III, in
writing, within 30 days from the date of this Order, as to what steps
are being taken to comply herewith.
IT IS FURTHER ORDERED that those portions of the consolidated
complaint alleging violations of the Statute by the other named
Respondents be, and they hereby are, dismissed.
Issued, Washington, D.C., July 2, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to bargain with the American Federation of
Government Employees, Local 2, AFL-CIO, the exclusive representative of
our employees, before implementation of any paid parking program which
may be established by Government-wide rule or regulation.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce any employee in the exercise of rights assured by the Statute.
(Activity)
By: (Signature) (Title)
Dated: . . .
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice, or compliance
with its provisions, they may communicate directly with the Acting
Regional Director, Region III, Federal Labor Relations Authority, whose
address is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose
telephone number is: (202) 653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Doris O. Hildreth
On brief: John W. Mulholland
For the Charging Party
Joseph M. Davis, Esquire
For Harry Diamond Laboratories
Samuel S. Horn, Esquire
For the Department of the Army and
For the Department of Defense
Stuart M. Foss, Esquire
For the Intervenor
Erick J. Genser, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101 et seq. /7/ and the Final Rules and Regulations
issued thereunder, Federal Register, Vol. 45, No. 12, January 29, 1980,
5 C.F.R. 2415.1 et seq., is a further chapter in the continuing saga of
President Carter's paid parking program for government employees. I am
fully aware that: a) On February 5, 1981, the Authority, without
passing on the merits of the dispute, dismissed the negotiability appeal
in Case No. O-NG-229 which directly involved the paid parking
implemented at Harry Diamond Laboratories. American Federation of
Government Employees, AFL-CIO, Local 2 and Department of the Army, Harry
Diamond Laboratories, Adelphi, Maryland, 5 FLRA No. 13 (1981). However,
the Authority stated, in part, that,
"Furthermore, issues as to whether, in the circumstances of
this case, the Agency would have an obligation to bargain on
matters concerning the general subject of paid parking, apart from
the particular paid parking program which is the subject of the
proposals disputed in the instant appeal, may properly be raised
in the unfair labor practice procedures under section 7118 of the
Statute. Cf. American Federation of Government Employees,
AFL-CIO, Local 2782 and Department of Commerce, Bureau of the
Census, Washington, D.C., 4 FLRA No. 93 (1980)."
b) On March 3, 1981, the United States District Court for the
District of Columbia (per Judge Harold H. Greene) granted a permanent
injunction enjoining the government from continuing the parking fee
program, holding that the program had been illegally instituted by
former President Carter without approval of Congress as required by the
Energy Policy and Conservation Act of 1975. American Federation of
Government Employees v. Freeman, C.A. No. 79-2955 (U.S. DC DC, March 3,
1981).
In addition, most of the legal contentions involved in this
consolidated case were decided by Judge Arrigo in three decisions issued
on December 22, 1980, which are more particularly described hereinafter.
I have given careful consideration to Judge Arrigo's decisions, agree
therewith, and, fully to the extent that he has decided issues also
raised in this case, I intend to follow and to apply his decisions. The
decisions are as follows: Defense Contract Administration Services
Region, Boston, Massachusetts; Commander, Fort Devens, Fort Devens,
Massachusetts; Defense Logistics Agency, Washington, D.C.; Department
of Defense, Washington, D.C. and National Association of Government
Employees, Local R1-210, Case Nos. 1-CA-212, 1-CA-298, 1-CA-299 and
1-CA-300 (December 22, 1980) (hereinafter, also, referred to as
"DCASR"); Boston District Recruiting Command, Boston, Massachusetts;
96th U.S. Army Reserve Command, Hanscom Air Force Base, Massachusetts;
Department of the Army, Washington, D.C.; Department of Defense,
Washington, D.C. and American Federation of Government Employees,
AFL-CIO, Local 1900, Case Nos. 1-CA-206, 1-CA-207, 1-CA-208, 1-CA-209,
1-CA-303, 1-CA-304 (December 22, 1980) (hereinafter, also, referred to
as "Boston District"); and Department of the Army and American
Federation of Government Employees, AFL-CIO, Case No. 3-CA-766 (December
22, 1981) (hereinafter, also, "Department of the Army").
The charge in Case No. 3-CA-719 was filed on December 5, 1979 (G.C.
Exh. 1(a)) alleging violations of Secs. 16(a)(1), (5) and (8) of the
Statute by Harry Diamond Laboratories (hereinafter, also, "HDL"); the
charge in Case No. 3-CA-889 was filed on February 21, 1980 (G.C. Exh.
1(c)) alleging a violation of Sec. 16(a)(1) of the Statute by Department
of the Army (hereinafter, also, "DA") and a First Amended Charge was
filed on April 7, 1980 (G.C. Exh. 1(e)) which alleged, in addition to
Sec. 16(a)(1), a violation of Sec. 16(a)(5) of the Statute; the charge
in Case No. 3-CA-970 was filed on March 14, 1980 (G.C. Exh. 1(g))
alleging a violation of Sec. 16(a)(1) of the Statute by the Department
of Defense (hereinafter, also, "DOL") and a First Amended Charge was
filed on April 7, 1980 (G.C. Exh. 1(i)) which alleged, in addition to
Sec. 16(a)(1), a violation of Sec. 16(a)(5) of the Statute; and an
Order Consolidating Cases, Complaint and Notice of Hearing issued on
April 30, 1980, alleging violations of Secs. 16(a)(1) and (5) of the
Statute and set the hearing for July 30, 1980. (G.C. Exh. 1(k)). On
May 20, 1980, an order issued rescheduling the hearing for July 23,
1980, pursuant to which a hearing was duly held on July 23, 1980, before
the undersigned, in Washington, D.C.
At the commencement of the hearing the Motion of the Office of
Personnel Management to Intervene was granted.
All parties were represented, were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein; and the parties were afforded
full opportunity to present oral argument at the conclusion of the
testimony, which right was waived by each party. At the close of the
hearing, August 25, 1980, was fixed as the date for mailing post-hearing
briefs, which time was subsequently extended, by motion and for good
cause shown, to September 12, 1980. Each party, i.e. the Charging
Party, Counsel for the General Counsel, Harry Diamond Laboratories,
Department of Defense and Department of the Army, and Office of
Personnel Management, timely filed an excellent brief, received on or
before September 16, 1980, which have been carefully considered. Upon
the basis of the entire record, /8/ including my observation of the
witnesses and their demeanor, I make the following findings and
conclusions:
Findings
A. Harry Diamond Laboratories /9/
1. DOD is an agency within the meaning of Sec. 3(a)(3) of the
Statute; DA is a primary subdivision of DOD within the meaning of Sec.
2421.5 of the Rules and Regulations; HDL is a subordinate activity of
DA within the meaning of Sec. 2421.4 of the Rules and Regulations;
American Federation of Government Employees, AFL-CIO, Local 2
(hereinafter, also, referred to as "Union") is a labor organization
within the meaning of Sec. 3(a)(4) of the Statute; and the Union is,
and has been since the early 1960's, the certified exclusive
representative of HDL's guard force and janitorial employees in separate
bargaining units; however, at no time material was there any collective
bargaining agreement between the Union and HDL, although HDL and the
Union were, at such time, engaged in negotiations looking toward a
comprehensive bargaining contract for employees in the affected units.
2. On October 16, 1979, HDL was advised by DA that it was to be
included in the paid parking program (G.C. Exh. 5). DA directed HDL
that, beginning November 1, 1979, it must begin charging a monthly fee
for parking private vehicles on the installation. The fee for HDL,
"based on appraisals made by the Office, Chief of Engineers and . . .
approved by GSA . . . " (G.C. Exh. 5) was fixed as $10.00 per month.
3. Prior to receipt of DA's notification of October 16, HDL had been
led to believe it would be exempt from the paid parking program. Thus,
in May, 1979, after announcement of the paid parking program at Federal
installations, a program was initiated at HDL to determine what, if any,
effect this program would have on it. HDL's review of Office of
Management and Budget (OMB) Circular A-118 (G.C. Exh. 2) showed that the
program specifically applied to those installations "in densely
populated urban locations where commercial practice is to charge for the
use of parking spaces." (G.C. Exh. 2). HDL is located in the Hillandale
residential area of Montgomery and Prince Georges Counties, a low
density, suburban, and primarily residential area. In addition, the
nearest commercial parking facility is located more than 5 miles from
the HDL site in downtown Silver Spring. Moreover, in August, 1979, HDL
received a message that most Army installations would be exempted from
the paid parking program (Tr. 79).
4. On October 17, Mr. Joseph M. Davis, of the HDL legal office,
personally told Mr. Douglas H. Kershaw, National Representative of the
American Federation of Government Employees, that HDL was to be included
in the paid parking program (Tr. 67).
5. On October 19, Mr. Kershaw was provided a copy of the DOD
Memorandum (Directive), dated October 11, 1979, Subject: Implementation
of Personnel Parking Facilities Program (G.C. Exh. 17) which, inter
alia, on an attachment entitled "Monthly Parking Charges", dated October
4, 1979, showed the monthly charge for HDL as $10.00 per month
representing "one half appraised monthly rate or $10.00 whichever is
larger per OMB Circular A-118 . . . . " (G.C. Exh. 17, Enclosures) and
the DA TWX of October 15, 1979 (G.C. Exh. 5), which, inter alia, stated
that the monthly charges, including the $10.00 per month fee for HDL,
were "based on appraisals . . . . " Mr. Kershaw, at request of HDL's
chief spokesman, Ms. Hering, made two "off the cuff" proposals: a) that
HDL charge bargaining unit employees the same fee as was being charged
in commercial parking lots adjacent to the HDL complex (obviously, as
HDL and the Union well knew, there were no commercial parking lots
adjacent to the HDL complex and Union was proposing, in reality, that no
charge be made for bargaining unit employees); and b) that shift
employees be exempted from the paid parking requirement.
6. On October 22, 1979, HDL requested a 120 day delay in
implementing the program, a primary justification being that, "Because
of the late notification . . . our negotiating team has been unable to
conduct meaningful discussions with union representatives concerning
this change in general working conditions. To implement this program
prior to reaching agreement or going to impasse with the union on this
matter, will not only have an adverse impact upon our present
negotiations but may also subject the activity to an Unfair Labor
Practice . . . . " (G.C. Exh. 10)
7. Also on October 22, 1979, HDL submitted an appeal for exemption
from the requirements of the paid parking program (G.C. Exh. 8).
8. Both the request for delay and the appeal for exemption were
indorsed by higher headquarters (G.C. Exhs. 22a-22c, 20a-20d) but were
denied by DOD on November 19, 1979 (G.C. Exhs. 9c, 21). As to delay in
implementation, DOD stated, in part, "Delay in implementation . . .
should be avoided in view of the requirements of the OMB Circular . . .
) /10/ and as exemption stated, in part, "The Department of Defense does
not have authority to exempt military installations . . . except as
specified in OMB Circular A-118 and the draft DoD directive. None of
the requests received to date have been justified for exemption on the
basis of these regulations . . . . "
9. On October 25, 1979, HDL's draft implementing instructions, dated
October 24, 1979, (G.C. Exh. 4) were hand-carried to Mr. Kershaw's
office by Ms. Hering; however, Mr. Kershaw was not present and he
testified that, as he noted on the draft copy, he received the document
at 0800, October 26, 1979 (Tr. 51-52). The parties discussed HDL's
draft on October 26. At the outset, Mr. Kershaw, as he readily
admitted, stated that one of the simplest ways to avoid implementation
of paid parking was to talk it to death, his assumption being that it
could not be implemented while negotiations were in progress; but Ms.
Hering told Mr. Kershaw that HDL was under direct orders to implement
the program on November 1 and that it would be implemented on that date.
Mr. Kershaw was advised that HDL had submitted a formal appeal
requesting exemption and Mr. Kershaw proposed several times that
negotiations be suspended on implementation because he was confident HDL
would be excluded; however, Ms. Hering insisted that negotiations
continue because she believed a response on the appeal would not be
received by November 1. After a caucus, Mr. Kershaw presented several
counter proposals. Again, Mr. Kershaw proposed that the monthly rate be
equal to that charged by commercial lots in the vicinity and there was
discussion of "vicinity", Mr. Kershaw proposing "three blocks" and HDL
"five miles" (Tr. 53). Mr. Kershaw also renewed his proposal that all
shift workers be exempt (Tr. 53) (management had, in fact, already
agreed to Mr. Kershaw's October 19 proposal and its October 24 draft had
exempted "Shiftworkers" as well as "those on weekend duty"; "Personnel
on temporary duty not to exceed 2 weeks" and "Part-time volunteers, such
as Red Cross or Travelers Aid personnel, Gray Ladies, or thrift shop
helpers, etc."; and "Official visitors, including employment
applicants, parking up to a limit of 3 hours." (G.C. Exh. 4, par. 5))
and management responded that they were exempt and that the afternoon
shift of the janitors were exempt because they met the criteria, which I
agreed, and that would leave approximately 20 people left in the janitor
force that would be subject to paid parking" (Tr. 54). Mr. Kershaw
further proposed that Union visitors park free; that WG-3's and below
be exempt; and that the daily fee be 45[. Management asserted that it
had no control over exempting union visitors, that DOD and DA
regulations required that anything over three hours be charged for and
had proposed a daily fee of $1.50 but, in response to Mr. Kershaw's
proposal of 45[ made a counter proposal of $1.25. The Union agreed to
encourage carpooling and/or use of mass transportation but declined to
urge Union employees not to park in the surrounding residential area.
Mr. Kershaw stated that management "indicated at that first session"
that the monthly rate "was non-negotiable" (Tr. 58). Management had
proposed that payment be permitted in cash, by money order or by payroll
deduction. Ms. Hering told Mr. Kershaw she would have to check with
payroll to see if payroll deductions was a feasible proposal. At the
end of the January 26 session, several issues remained outstanding,
including payroll deductions, exemptions for WG-3's and Union visitors,
daily charge and Union support in discouraging unit employees from
parking in residential areas. Mr. Kershaw advised Ms. Hering he would
contact her the following Monday, October 29, concerning his
availability for further discussions.
10. Mr. Kershaw did not contact Ms. Hering on October 29 as he had
agreed to do at the conclusion of the October 26th meeting. On October
30, Ms. Hering attempted to reach Mr. Kershaw at his office but he was
not in and did not respond to her message that he call regarding another
negotiating meeting.
11. Ms. Hering called Mr. Kershaw again on October 31 and, again,
left a message for him to call her. Late in the afternoon of October
31, Mr. Kershaw returned Ms. Hering's call and she told him she would
meet with him that evening but Mr. Kershaw said he was not available and
suggested negotiating by telephone and, accordingly, the issues, which
had been left unresolved at the close of the October 26 meeting, were
discussed by telephone. Ms. Hering testified that, "we declared two of
them (open Union proposals) non-negotiable based on the DOD Directives"
(Tr. 194); however, she did not identify the two proposals declared
non-negotiable on October 31st. /11/ Ms. Hering on October 31 did
advise Mr. Kershaw that paid parking would be implemented the following
day, November 1 (Tr. 184-185).
12. HDL issued "Interim Parking Fee Policy", dated October 30, 1979
(G.C. Exh. 6), effective November 1, 1979, which, inter alia, set forth
a daily rate of $1.00 per day, which was less than HDL's counterproposal
to the Union on October 26 of $1.25, and provided for payment by check
although, by inference cash appears acceptable. /12/
13. Further meetings were held on November 9 and 21 on paid parking
but, on November 21, further negotiations were suspended until January
25, 1980, although parking, by the Union's earlier declination to
discuss the matter, was not discussed until February 9, 1980, and
thereafter.
B. Department of Defense and Department of the Army
14. OMB Circular No. A-118, "Federal Employee Parking Facilities",
was issued on August 13, 1979 (G.C. Exh. 2), although, as Mr. Francis B.
Roche, Director for Real Property and Natural Resources, Office of the
Assistant Secretary of Defense for Manpower, Reserve Affairs and
Logistics, testified, OMB had issued an initial draft in April, 1979,
subsequently followed by a second and third draft reflecting comments
and input from various agencies, including the Department of Defense,
and DOD knew by about July 16, 1979, "approximately what this final
circular would look like (Tr. 108).
15. General Services Administration issued Federal Property
Management Regulations, Temporary Regulation D-65, on September 6, 1979.
16. DOD issued a draft Instruction on September 18, 1979 (G.C. Exh.
16) and its Directive on October 11, 1979, implementing the personnel
parking facilities program encompassing all military installations,
facilities, and properties, whether owned or leased, in the United
States, its territories and possessions and the Commonwealth of Puerto
Rico and, further, to all space in Government-owned or leased buildings
assigned to DOD components by the GSA or to buildings leased by DOD
components (G.C. Exh. 17). Mr. Roche testified that there was no
difference in content, only semantical changes, between the Instruction
and the Directive, although the Instruction did not carry the weight of
a DOD Directive. The Department of the Army was, specifically, an
addressee of each. Enclosure (2) to the Directive, dated October 4,
1979, listed the monthly parking fee for HDL as $10.00. /13/
17. Lieutenant Colonel Paul T. Gerard, Department of the Army, Law
Enforcement Division, Director of Human Resources Development, Office of
the Deputy Chief of Staff for Personnel, testified that on the day he
reported for duty, July 23, 1979, he attended a meeting of a steering
group, chaired by Mr. Roche, whose function was to "come up with DOD
guidelines for implementing "the paid parking program within the DOD;
that he served as an adviser on this group from July 23 until the first
of October, 1979; and that he had replaced another person from DA who
had been on this team (Tr. 90-91). Colonel Gerard further testified
that after he received the DOD Instruction in September, he "submitted
some comments in the latter part of September to the Office of the Chief
of Staff, United States Army" (Tr. 92) and that these comments were
consolidated with other comments from DA staff and forwarded to DOD;
that in the latter part of September he began work on a draft interim
changes of Army Regulations 210-4 to incorporate provisions for paid
parking; and that a draft of AR-210-4 "Interim Change", implementing
the DOD Directive of October 11, 1979, was distributed by DA on October
17 and 19, 1979 (G.C. Exhs. 11, 12, 13). Colonel Gerard explained that
he received the DOD Directive late in the afternoon on Friday, October
12, 1979; that over the weekend he worked on his rough draft of AR
210-4 to conform to the DOD Directive and to prepare something to send
to concerned installations on Monday, October 15; and that a TWX (G.C.
Exh. 5) was issued on October 15, 1979 (Tr. 94).
18. Colonel Clifton R. Goodwin, at the time of the hearing Director
of the Systems Engineering and Technology Directorate, United States
Army Research and Development Command, Electronics Research and
Development Command, and from February, 1977, to December 4, 1979, had
been Commander of HDL, testified that Lieutenant Colonel, then Major,
Gerard had called him on October 16, 1979, to alert him to the fact that
a message had been sent designating HDL as one of the installations
where paid parking would be initiated (Tr. 78-79); that immediately
thereafter he had gone to the message center and found the TWX, General
Counsel's Exhibit 5 (Tr. 79); that no prior communication on paid
parking had been received by HDL, except a message received in August
that it was thought that Army installations might be exempted. A copy
of the DOD Directive of October 11, 1979, was transmitted to various
commanders, including HDL, on October 17, 1979, together with a copy of
draft interim change to AR 210-4 (G.C. Exh. 11). The printed version of
AR 210-4 was issued November 16, 1979 (G.C. Exh. 15).
19. By letter dated September 20, 1979, Mr. William C. Valdes,
Acting Deputy Assistant Secretary of Defense (Civilian Policy),
transmitted to Mr. Kenneth T. Blaylock, National President of American
Federation of Government Employees, a copy of DOD's Instruction and
asked, "that you review the draft Instruction and forward any comments
to reach this office by the close of business on October 3 at the
latest." (Res. Exh. 1). Mr. Ronald D. King, AFGE's Director of Contract
and Appeals Division, declined Mr. Valdes' offer of national
consultation and instead, suggested negotiation of DOD's Instruction.
(Res. Exh. 2).
Conclusions
For reasons well stated by Judge Arrigo in DCASR, supra, which I
fully adopt,
"There is no contention that the OMB and GSA regulations on
paid parking are negotiable matters. Indeed, it is clear that
these regulations are Government-wide regulations within the
meaning of Section 7117(a)(1) of the Statute, and, as such, no
duty to bargain is required regarding the subject matter contained
therein. However, the OMB parking regulation, while setting forth
various specific instructions on paid parking, required GSA and
all agencies to issue instructions relative to the implementation
of the OMB regulation. DOD was, therefore, obligated to adopt the
specific requirements of OMB and GSA but, nevertheless, was left
discretion as to various practices and procedures relating to the
implementation of the OMB and GSA regulations.
"Sections 7117(a)(2) and (3) of the Statute govern an agency's
duty to bargain with a union with regard to matters encompassed by
agency wide regulations. Thus, under the Statute, an agency or a
primary national subdivision of an agency is obligated to bargain
with a union regarding matters encompassed by their regulations
only where the union represents the majority of employees in the
agency or primary national subdivision, or when the Authority has
determined under 7117(b) of the Statute that no compelling need
exists for the regulation . . .
"In the case herein DOD's parking regulation of October 11,
1979 and DOA's regulation of October 19, 1979 were applicable to
all their subordinate bodies and I conclude the DOD regulation was
an 'agency' regulation and the DOA regulation was a regulation
issued by a 'primary national subdivision of such agency' within
the meaning of Section 7117(a)(3) of the Statute. Further, the
Union herein /14/ does not represent a majority of the employees
in DOD or DOA nor has the Authority determined that no compelling
need exists for the DOD or DOA regulations in effect, the issue
having never been presented to the Authority for such a
determination. Accordingly, I conclude that prior to their
issuance, neither DOD nor DOA was obligated to bargain . . .
regarding the matters which were the subject of the parking
regulations referred to herein.
"However, the DOD and DOA regulations were not self
implementing. Rather, in order to be effectuated, components
subordinate to DOD and DOA were required to implement them as they
would affect employees within their jurisdiction. The regulations
did not provide for all possible contingencies and, therefore,
various areas of discretion were left to the judgement of
management at the level of actual employee location and union
representation.
"The Authority has held in National Treasury Employees Union,
Chapter 6 and Internal Revenue Service, New Orleans District, 3
FLRA No. 119, that 'to the extent that an agency has discretion
with respect to a matter affecting conditions of employment of its
employees, that matter is within the duty to bargain of the
agency.' Clearly, the paid parking program at the Facility is a
condition of employment. Accordingly, I conclude that management
was obligated under the Statute to negotiate . . . to whatever
extent management had discretion under applicable Government-wide
and agency regulations in the implementation of the paid parking
at the Facility." (DCASR, supra, pp. 12-14) (footnotes omitted)
(To like effect, see, also, Boston District, supra; Department of
the Army, supra.)
As noted above, I fully ascribe to Judge Arrigo's conclusions, set
forth above, and the application of those conclusions to the particular
facts of this case are discussed hereinafter. But first, is a further
contention by the General Counsel concerning compelling need (General
Counsel's Brief, pp. 16-19), an issue also considered in detail by Judge
Arrigo in Boston District, supra. For reasons well stated by Judge
Arrigo in Boston District, supra, which I fully adopt, I conclude that a
determination of "compelling need" may not be made in an unfair labor
practice proceeding. Judge Arrigo noted, in part, as follows:
"Under section 7117(a)(2) and (3) of the Statute, an agency or
a primary national subdivision of an agency is not obligated to
bargain with a union regarding matters encompassed by their
regulations unless a union represents the majority of employees in
the agency or national primary subdivision or unless the Authority
has determined, under section 7117(b) of the Statute, that no
compelling need exists for the regulation . . . The Union herein
(AFGE) does not represent the majority of employees in DOD or DOA
. . .
" . . . an examination of the legislative history of the
Statute discloses the following explanation given by Senator
Morris Udall on September 13, 1978 regarding the meaning of
section 7117 ultimately enacted into law, termed the 'substitute'
bill . . . :
. . . .
"'The substitute's section 7117 makes Government-wide rules and
regulations an absolute bar to negotiations (subsection (a)(1)).
"'Subsection (a)(2) of the substitute provides that agency
rules or regulations are a bar to negotiations, subject to
subsection (a)(3), unless a finding of "no compelling need" for
the rule or regulation is made by the Authority (as determined
under regulations prescribed by the Authority);
. . . .
" . . . the terms of section 7117 were meant to apply generally
to all situations where an agency defends against a demand to
negotiate on a matter by interposing the existence of an
appropriate regulation.
"Counsel for the General Counsel also suggests . . . that if
the agency regulations stands as a bar to negotiations, then the
proceeding herein served to put the issue of compelling need
before the Authority for determination. In my view neither the
Statute nor the Authority's regulations appear to envision this
approach. Indeed, section 7117(b)(3) of the Statute provides that
where a hearing is held to make a determination of compelling
need, it, ' . . . shall not include the General Counsel as a
party.' Accordingly, to combine a compelling need determination
with an unfair labor practice proceeding, where the General
Counsel has the responsibility of presenting the evidence in
support of the complaint and carries the burden of proving the
allegations of the complaint, would run contrary to Statutory
prohibition. Therefore, Counsel for General Counsel's contention
is rejected." (Boston District, supra, pp. 13-15) (footnotes
omitted).
For reasons set forth above, an agency regulation, whether issued by
an agency, such as DOD, or by a primary national subdivision, such as
DA, is not subject to negotiation unless the Authority has determined,
pursuant to Sec. 17(b), that no compelling need exists for such rule or
regulation. General Counsel's assertion that, "DOD and Department of
the Army must demonstrate that a compelling need exists for specific
provisions of their regulations which extend beyond the dictates of the
Government-wide regulations . . . " (General Counsel Brief, p. 16), is
without merit and is rejected. To the contrary, such regulations bar
negotiations unless and until the Authority, pursuant to Sec. 17(b)
determines that no compelling need exists for such rule or regulation.
The Bargaining Obligation
As set forth above, there was a duty to bargain with the Union as to
matters not precluded by express provisions of Government-wide
regulations or the regulations issued by DOD and DA. In this case, HDL,
as the unit of exclusive recognition, was obligated to bargain with the
Union.
i) HDL's compliance with its obligations
It must be recognized at the outset that this case involves a
Government-wide regulation, OMB Circular No. A-118 (August 13, 1979,
G.C. Exh. 2), supplemented by a further Government-wide regulation, GSA
Temporary Regulation D-65 (September 6, 1979, G.C. Exh. 3), which, inter
alia, provided that the paid parking program would be effective November
1, 1979. Both the DOD Instruction of September 18, 1979 (G.C. Exh. 16)
and the Directive of October 11, 1979 (G.C. Exh. 17) provided for
implementation of monthly fees beginning November 1, 1979. The
effective date of implementation of the program, November 1, 1979, was
not subject to negotiation by HDL inasmuch as the date of implementation
had been fixed by OMB's Government-wide regulations as well as by agency
regulation.
HDL received notice on October 16, 1979, that it was to be included
in the paid parking program; on October 17, 1979, HDL advised the
Union; and on October 19, 1979, HDL gave the Union copies of DA's TWX
of October 15 and DOD's Directive of October 11, 1979, and discussed the
matter with Mr. Kershaw who gave HDL's Chief negotiator two
"off-the-cuff" proposals. The parties did not meet again until October
26, 1979; however, on October 22, HDL: a) requested a 120 day delay in
implementing the paid parking program, a primary justification being to
allow completion of discussions with the Union; and b) filed an appeal
for exemption. At the October 26, 1979, meeting HDL told the Union that
the paid parking program would be implemented, pursuant to direct orders
from higher headquarters, on November 1; the parties did enter upon
meaningful negotiations but at the end of the October 26th session
several items were unresolved. Although HDL was ready and willing to
meet at any time convenient for the Union, Mr. Kershaw declined to meet
over the weekend and told HDL's Chief negotiator that he would contact
her the following Monday, October 29, concerning his availability for
further discussions. Mr. Kershaw did not call on Monday, October 29,
could not be reached on October 30, was still not in his office on
October 31 and did not return Ms. Hering's calls until late in the
afternoon on October 31. Mr. Kershaw refused Ms. Herings' offer to meet
that night but, at Mr. Kershaw's request, there ensued a discussion by
telephone. General Counsel is quite correct that negotiations were not
fully completed by November 1, 1979, when HDL implemented paid parking.
Indeed, as noted above, on one item, the daily rate, HDL placed into
effect a daily rate which was less ($1.00) than its last counter
proposal to the Union on October 26 ($1.25), and on another, method of
payment, obviously, there had been no resolution of Union's proposal for
payroll deductions. Nevertheless, under the circumstances I find no
failure on the part of HDL to bargain in good faith. First, the Union
failed to avail itself of the opportunity to continue negotiations.
Second, the monthly rate for HDL had been fixed by DOD's Directive Enc.
2 and DA's TWX (G.C. Exh. 5) and Union's proposal for exemption of
employees based on wage grade was precluded by the DOD Directive as well
as DA's TWX and draft interim changes of AR 210-4 so that HDL's
declaration, on October 26 and/or October 31, that these matters were
not negotiable was correct. Nor were these proposals germane to impact
and implementation of the regulations, cf., Delaware Army and Air
National Guard, Case No. 23-CA-104 (ALJ, April 1981), but were, in fact,
an attempt to "negotiate" the regulation which was not subject to
negotiation unless and until the Authority should determine that no
compelling need existed for the regulation. Third, the Union evinced a
total lack of good faith as shown, inter alia, by its conceded objective
to "talk it to death" and by its failure and refusal to meet after
October 26. Fourth, HDL had, to the full extent possible, taken every
action available to it. Thus, HDL had requested an extension of time
for implementation of the program; had requested exemption; and had
met with the Union to negotiate the matters left to its discretion by
the regulations, i.e., impact and implementation of the regulations, and
was available and ready to continue negotiations but Union failed and
refused to meet. Fifth, HDL continued to meet with the Union after
November 1st. Accordingly, I find no failure by HDL to negotiate in
good faith nor did HDL violate the Statute by implementing the paid
parking program on November 1, 1979.
ii) Implementation of Government-wide Regulations
Section 17(a) of the Statute wholly excludes from the duty to bargain
"any Federal law or any Government-wide rule or regulation". Although
not raised and, therefore not decided, I assume that if a
Government-wide rule or regulation were effective immediately,
bargaining on impact and implementation, at least prior to
implementation, would be precluded.
Here, while OMB issued a Government-wide regulation on August 13,
1979 (Circular No. A-118, G.C. Exh. 2), this regulation was not in all
respects dispositive of all aspects of the paid parking program and, in
particular as to military installations recognized the unique problems
and in Paragraph 11 provided, in part, that, "The Secretary of Defense
shall establish regulations at non-GSA controlled military installations
consistent with this circular and the GSA regulations issued in
conformance with this circular." Nevertheless, OMB by Government-wide
regulations, had provided that the paid parking program should be made
effective November 1, 1979, and the duty to bargain, pursuant to Sec.
17(a)(1) or (2), must not be "inconsistent with . . . any
Government-wide rule or regulation". Accordingly, November 1, 1979,
having been fixed by Government-wide regulation as the date of
implementation of the paid parking program, the date of implementation
of the program was not negotiable and DOD was obligated to act in
conformance with the Government-wide regulation.
Pursuant to Sec. 17(a)(2) and (3), as noted above, DOD and DA may
issue regulations which are subject to bargaining only if: a) an
exclusive representative represents not less than a majority of the
employees in the issuing agency (DOD) or primary national subdivision
(DA) or b) the Authority has determined that no compelling need exists
for the rule or regulation. Neither condition pertains here. The fact
that DOD's regulation narrowed the areas of discretion left both to DA
and/or to management at the level of actual employee location and union
representation is immaterial. The duty to bargain did not extend to
matters subject to DOD's agency-wide regulation unless and until the
Authority should determine that no compelling need exists for the rule
or regulation.
Where, as here, some discretion was left by DOD's regulation, I have
found, in full agreement with Judge Arrigo's decisions in DCASR and
Boston District, that there is both a right and an obligation to
negotiate on those areas of discretion left to the judgment of
management at the level of actual employee location and union
representation. General Counsel asserts that DOD and DA acted in such a
manner that the Union was deprived of the opportunity to bargain and,
therefore DOD and DA violated Sec. 16(a)(1) by denying Union a
meaningful opportunity to bargain with HDL.
iii. DOD's Implementation
OMB's Government-wide regulation on paid parking issued on August 13,
1979 (G.C. Exh. 2); GSA's Temporary Regulation D-65 issued on September
6, 1979 (G.C. Exh. 3); and DOD's Instruction issued on September 18,
1979 (G.C. Exh. 16). The transmittal stated, inter alia, "The enclosed
draft DOD Instruction is intended to implement OMB Circular A-118 . . .
. " The Instruction provided, in part, that,
"1. This Instruction applies to the Office of the Secretary of
Defense, the Military Departments, and the Defense Agencies
(hereafter referred to as 'DOD Components').
"2. Its provisions encompass all military installations,
facilities, and properties in the United States, its territories
and possessions, the Commonwealth of Puerto Rico, and the Canal
Zone whether owned or leased."
. . . .
"EFFECTIVE DATE AND IMPLEMENTATION
"This Instruction is effective immediately. Forward two copies
of implementing documents to the Assistant Secretary of Defense
(Manpower, Reserve Affairs and Logistics) within 60 days of the
date of this Instruction." (G.C. Exh. 16).
Although the record shows that comments were submitted to DOD by,
among others, DA, and that DOD issued its Directive on October 11, 1979,
(G.C. Exh. 17), the Instruction, by its terms, was effective when
issued, implemented OMB Circular A-118, and was obligatory to all DOD
Components. Whether an agency rule or regulation is not before me. It
was, in either event, an agency implementation of OMB Circular A-118;
AFGE was, pursuant to Sec. 13 of the Statute, informed and permitted
reasonable time to present its views; and all DOD Components, including
DA, were given notice, as of September 18, 1979, of the parking program
to be implemented November 1, 1979.
The record firmly shows that DOD issued its Instruction with
expedition after issuance of GSA's regulation, which was an essential
prerequisite, and that its Instruction, provided full notice to all DOD
Components on September 18, 1979, of its implementation of OMB Circular
A-118 beginning November 1, 1979. DOD, obviously, acted with all
reasonable dispatch and its Instruction afforded the maximum notice
possible to all DOD Components of the implementation of OMB Circular
A-118. Inasmuch as the DOD Instruction implemented OMB Circular A-118,
it cannot be said that implementation was deferred by DOD pending
issuance of its Directive on October 11, 1979, and/or that by delay in
issuance of the Directive until October 11, 1979, DOD deprived the Union
of a meaningful opportunity to bargain with HDL.
iv. DA's Implementation
The record shows that DA, although it submitted comments to DOD on
the DOD Instruction, gave no notice to HDL either that HDL was to be
included in the paid parking program or of the DOD Instruction. Indeed,
the record shows that DA's first notice to HDL was on October 15, 1979
(G.C. Exh. 5), and was received by HDL on October 16, 1979. As noted
above, the DOD Instruction implemented OMB Circular A-118 and DA, since
a component activity performed the appraisal (See, G.C. Exhs. 18 and
19), knew by September 18, 1979, that an appraisal had been made of fair
rental rates for outside parking at HDL. The failure of DA to give HDL
notice, after receipt of the DOD Instruction, of the implementation of
OMB Circular A-118 did, wholly without justification, severely restrict
the Union's opportunity to bargain since, as the result of DA's failure
to give notice to HDL of the DOD Instruction, HDL was not given notice
until October 15, 1979, that it was to be included in the paid parking
program effective November 1, 1979. Nevertheless, under the
circumstances, I do not find that DA's failure to give HDL notice of the
DOD Instruction, although without justification, deprived the Union of a
meaningful opportunity to bargain with HDL so as to constitute a
violation of 16(a)(1) of the Statute. First, perhaps contrary to my
brother Judge Arrigo's conclusion in Department of the Army, supra, that
"DOA inherently was given wide discretion in establishing and
effectuating the details of the plan it chose to have implemented at its
installations" (p. 9), I can perceive very little discretion left to DA
/15/ and/or HDL. Second, HDL gave Union notice on October 17, 1979, and
the parties met on October 19 and 26. Within the time available prior
to the date of implementation, November 1, 1979, there was an
opportunity for meaningful negotiations on the limited areas subject to
negotiations, thwarted only by Union's failure and refusal to meet and
negotiate. Third, implementation of the paid parking program at HDL on
November 1, 1979, was controlled, in any event, by OMB Circular A-118,
the DOD Instruction and the DOD Directive, subject, at most, to
negotiations as to a daily rate and method of payment and HDL continued
negotiations with the Union after November 1, 1979, until negotiations
were suspended by Union.
Accordingly, I do not find that DA's delay is giving notice to HDL
deprived the Union of a meaningful opportunity to bargain with HDL.
Mootness
Pursuant to the injunction of the Authority in Case No. O-NG-229,
supra, I have considered "issues as to whether, in the circumstances of
this case, the Agency would have an obligation to bargain on other
matters concerning the general subject of paid parking". I have serious
reservations as to what issues, "apart from the particular paid parking
program which is the subject of the proposals disputed in the instant
appeal" remained for consideration. As an alternative basis I further
conclude, as the Authority concluded in the negotiability appeal in this
case, that this proceeding was rendered moot by the discontinuance of
the paid parking program at HDL. This case, unlike DCASR and Boston
District, supra, did not involve a refusal to bargain by HDL. To the
contrary, the parties did bargain both before and after November 1,
1979, and, although I have found that, under the circumstances, DA's
failure to give HDL notice of DOD's Instruction, which failure did
severely restrict the Union's opportunity to bargain, did not deprive
the Union of a meaningful opportunity to bargain with HDL. Even if I
were wrong in this conclusion, DA's failure to give a more timely notice
to HDL was rendered moot by the discontinuance of the paid parking
program at HDL.
Having found no violation of Secs. 16(a)(1) or (5) of the Statute by
Harry Diamond Laboratories, Department of Defense, or Department of the
Army; or, in the alternative, that if the Department of the Army
violated Sec. 16(a)(1) of the Statute by its failure to give Harry
Diamond Laboratories prompt and timely notice of Department of Defense's
Instruction implementing, on September 18, 1979, OMB Circular A-118,
such violation was, in any event rendered moot by the discontinuance of
the paid parking program at Harry Diamond Laboratories, I recommend that
the Authority issue the following,
ORDER
IT IS HEREBY ORDERED that the Complaint in Case Nos. 3-CA-719,
3-CA-889, and 3-CA-970 be, and it hereby is, dismissed.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: May 18, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce an employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ See Department of Housing and Urban Development, 9 FLRA 136
(1982).
/3/ See Defense Logistics Agency (Cameron Station, Virginia), 12 FLRA
No. 86 (1983), appeal docketed, No. 83-2017 (D.C. Cir. Sept. 26, 1983).
/4/ The Judge found, and the Authority agrees, that the Union was not
deprived by DOD or DOA of a meaningful opportunity to bargain with HDL.
/5/ Compare Department of Health and Human Services, Social Security
Administration, Region VI, and Department of Health and Human Services,
Social Security Administration, Galveston, Texas District, 10 FLRA 26
(1982); Department of the Interior, Water and Power Resources Service,
Grand Coulee Project, Grand Coulee, Washington, 9 FLRA 385 (1982).
/6/ During the pendency of the instant case before the Authority, the
United States District Court for the District of Columbia ruled that the
paid parking plan, as embodied in OMB Circular A-118, was invalid, and
ordered that the GSA regulation be set aside and its enforcement
permanently enjoined. American Federation of Government Employees,
AFL-CIO, et al. v. Freeman, 510 F.Supp. 596 (D.D.C. 1981). Thereafter
GSA revised the regulation to suspend the collection of parking fees in
accordance with the injunction. (46 F.R. 40191 (1981)). The District
Court's decision was subsequently reversed. American Federation of
Government Employees, AFL-CIO, et al. v. Carmen, Civil Action No.
81-1244 (D.C. Cir. Dec. 15, 1981). However, President Reagan has stated
that the collection of parking fees will not be reinstated. Statement
by the President on Parking Fees for Federal Employees, 17 Weekly Comp.
of Pres. Doc. 1378 (Dec. 17, 1981).
/7/ For convenience of reference, Sections of the Statute are, also,
referred to hereinafter without inclusion of the initial "71", e.g.,
Section 7116(a)(1) will be referred to as "16(a)(1)".
/8/ Counsel for General Counsel filed a Motion to Correct Transcript,
received on September 12, 1980, to which no opposition was filed and,
finding the requested corrections wholly proper, the motion is granted
and the transcript is hereby corrected as follows:
Page Line Change As Corrected
52 1 "10-24-79" "10-26-79"
99 2 "November 1979" "November 1977"
110 1 "General Counsel "General Counsel
Exhibit 30" Exhibit 3"
/9/ Obviously, the facts are interrelated, but as respects the
obligation of each entity under the Statute, the facts pertinent to
Department of Defense and Department of the Army are separately stated.
/10/ I am aware that in the Boston District case, supra, the paid
parking program was, apparently despite quite specific instructions to
implement the program by November 1, 1979, deferred until December 1,
1979.
/11/ By inference, it is assumed that one item declared
non-negotiable on October 31 was Mr. Kershaw's commercial lot in the
vicinity rate proposal but the date of a telephone conversation given
was October 25 (Tr. 190) not October 31. As a practical matter, the
Union's proposal that WG-3's and below be exempted and the commercial
rate in the vicinity had been declared non-negotiable, inasmuch as Mr.
Kershaw testified that management "indicated" that the monthly rate "was
non-negotiable" (Tr. 58) and as to WG-3 and below exemption, "They
rejected it . . . Because they had no authority as the regulations
issued." (Tr. 55). Accordingly, the only fully open Union proposals
after October 26 were: a) daily rate and b) method of payment, in
particular, payroll deductions.
/12/ The only reason for hesitation is that the Union had proposed
payment by cash or money order, and such alternatives are wholly absent
from HDL's Interim Parking Fee Policy implementation and the record does
not show agreement that either cash or money orders would be accepted;
nevertheless, it strains credulity to believe that cash would not be
acceptable, e.g., "visitors who exceed the three hours free-parking
limit will be required to exit at building 200 and to pay a $1.00 fee at
that time."
/13/ Pursuant to memorandum of August 3, 1979, to Chief of Engineers,
Department of the Army Commander, Naval Facilities Engineering Command
(G.C. Exh. 18); appraisal for HDL was dated August 31, 1979 (G.C. Exh.
19) (Estimated fair rental rate for outside parking $15.00 - rates in
Wheaton, MD $16.00 less $1.00 = $15.00).
/14/ I am aware that DCASR did not involve the American Federation of
Government Employees; but Boston District, supra, and Department of the
Army, supra, did, and Judge Arrigo in each of those cases specifically
found that AFGE did not represent the majority of employees in DOD or
DOA. The record here is fully in accord and I, also, find that AFGE did
not represent a majority of employees in DOD or DA.
/15/ DA's regulation, pursuant to Sec. 17(a)(2) and (3), issued by a
primary national subdivision of DOD would not be subject to the duty to
bargain unless the Authority had determined that no compelling need
exists for the regulation; however, AR 210-4, as stated by the
Intervenor, "made no changes of any significance, but rather was in
nearly all respects a verbatim republication of Respondent Defense's
instruction in the format used for directives of the Respondent Army."
(Intervenor's Brief, pp. 15-16).