15:0720(142)CA - Boston District Recruiting Command, Boston, MA and AFGE Local 1900; Commander, Fort Devens, Fort Devens, MA and AFGE Local 1900; 94th Army Reserve Command, Hanscom AFB, MA and AFGE Local 1900; Army, Washington, DC and AFGE Local 1900; DOD, Washington, DC and AFGE Local 1900 -- 1984 FLRAdec CA
[ v15 p720 ]
15:0720(142)CA
The decision of the Authority follows:
15 FLRA No. 142 BOSTON DISTRICT RECRUITING COMMAND BOSTON, MASSACHUSETTS Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1900 Charging Party Case No. 1-CA-206 COMMANDER, FORT DEVENS, FORT DEVENS, MASSACHUSETTS Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1900 Charging Party Case Nos. 1-CA-207 1-CA-208 94th U.S. ARMY RESERVE COMMAND HANSCOM AIR FORCE BASE, MASSACHUSETTS Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1900 Charging Party Case No. 1-CA-209 DEPARTMENT OF THE ARMY WASHINGTON, D.C. Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1900 Charging Party Case No. 1-CA-303 DEPARTMENT OF DEFENSE WASHINGTON, D.C. Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1900 Charging Party Case No. 1-CA-304 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled consolidated proceeding, finding that Respondents had engaged in certain unfair labor practices alleged in the complaint, and recommending that they be ordered to cease and desist therefrom and take certain affirmative action. The Judge further found that the Respondents had not engaged in certain other unfair labor practices and recommended dismissal of the complaint with respect to them. Exceptions to the Judge's Decision were filed by the General Counsel and Respondents Department of Defense (DOD, Department of the Army (DOA), and Fort Devens, an opposition to Fort Devens' exceptions was filed by the General Counsel, and a brief amicus curiae was filed by the Office of Personnel Management (OPM). /1/ parkinson Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order, only to the extent consistent herewith. The consolidated complaint alleged, inter alia, that Respondents DOD and DOA, through the issuance of various directives, violated the Statute by interfering with the right of the Charging Party, American Federation of Government Employees, AFL-CIO, Local 1900 (the Union), to bargain with respect to the impact and implementation of the paid parking program. More specifically, it is asserted that DOD and DOA were obliged under the Statute to bargain with the Union prior to issuing directives to subordinate elements where the directives went beyond the requirements of Government-wide regulations issued by the Office of Management and Budget (OMB Circular No. A-118) and the General Services Administration (Federal Property Management Regulations Temp. Reg. D-65). However, the Union is not the exclusive representative of a unit of employees at the DOD or DOA level, but exclusively represents appropriate units of employees in the Boston District Recruiting Command (hereinafter Recruiting Command), and the 94th U.S. Army Reserve Command (hereinafter 94th Command)-- i.e., at subordinate levels within the agency. The duty of an agency under the Statute is to negotiate with an exclusive representative of an appropriate unit of its employees concerning conditions of employment affecting them, except as provided otherwise by Federal law and regulation, including Government-wide regulation. DOD and DOA would have been required to bargain to the extent of their discretion in implementing the Government-wide paid parking program if exclusive recognition had existed at those levels. /2/ The Authority concludes that, absent such exclusive recognition at those levels, DOD and DOA had no duty to bargain with the Union before issuing internal directives to subordinate elements concerning the paid parking program. /3/ Moreover, in the absence of any showing that DOD and DOA prevented those subordinate elements from fulfilling their duty to bargain with the Union at the level of exclusive recognition, /4/ the Authority finds that the complaint must be dismissed to the extent it alleges that DOD and DOA violated section 7116(a)(1) and (5) of the Statute. /5/ With respect to that portion of the complaint alleging a failure to bargain over the impact and implementation of the paid parking program by Respondents Fort Devens, Recruiting Command and 94th Command, the Authority concludes, for the reasons which follow, that the complaint must be dismissed against Fort Devens. The Authority further concludes, however, that a violation of the Statute has occurred with respect to the conduct of the Recruiting Command and the 94th Command. As previously stated, the duty of an agency under the Statute is to negotiate with an exclusive representative of an appropriate unit of its employees concerning their conditions of employment, except as provided otherwise by Federal law or regulation. The record in this case indicates that, in October 1979, Fort Devens learned that it would be responsible for implementing the paid parking program for the South Boston Support Activity which housed a number of tenant activities, including the Recruiting Command and the 94th Command. On November 6, 1979, a meeting was held between representatives of Fort Devens, the Recruiting Command and the 94th Command, as well as other tenant activities, and the Union, concerning the paid parking program. At the meeting, the Union President asked whether the representative of Fort Devens would be willing to bargain over the matter and the latter replied that he would be willing to do so. Subsequently, on November 8, the Union sent a letter to Fort Devens and also to the 94th Command requesting to bargain over the impact and implementation of various aspects of the program. The same letter was sent to the Recruiting Command on November 10. No response was made by the Recruiting Command to the Union's written request. However, in a separate, unrelated bargaining session between the Union and the Recruiting Command in which the matter of paid parking was briefly discussed, the latter indicated that the matter was a presidential decision and therefore there was nothing on which to negotiate. On November 17, the 94th Command replied that Fort Devens would be the appropriate party with which to negotiate since the latter was responsible for implementing the paid parking program. In the meantime, Fort Devens had indicated its willingness to bargain and, on November 26, Fort Devens and the Union met to negotiate various aspects of the program. In the Authority's view, the statutory obligation to bargain over the impact and implementation of the paid parking program existed only at the Recruiting Command and the 94th Command, at which level there exist the units of exclusive recognition represented by the Union herein. Therefore, management at each of these Commands was obligated to bargain, upon request, over various aspects of the program to the extent of its discretion, i.e., insofar as such matters concern conditions of employment and do not involve matters inconsistent with law, Government-wide rule or regulation, or an agency regulation for which a compelling need exists. See American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA 578 (1982), enforced sub nom. Library of Congress v. Federal Labor Relations Authority, 699 F.2d 1280 (D.C. Cir. 1983). The record indicates, with respect to the 94th Command, that following receipt of the Union's request to bargain, the 94th Command stated that Fort Devens would be the appropriate bargaining party and noted that Fort Devens had already invited the Union to bargain. By the conduct of the 94th Command in referring the Union to Fort Devens and by the conduct of Fort Devens in subsequently meeting and bargaining with the Union, the Authority finds that Fort Devens was acting in a representative capacity for the 94th Command which, as a matter of law, at all times retained the statutory duty to bargain at the level of exclusive recognition concerning unit employees' conditions of employment. /6/ Thus, any improper acts or conduct engaged in by Fort Devens would be attributable to the 94th Command, and not to Fort Devens which itself had no statutory bargaining obligation vis-a-vis 94th Command's employees in the bargaining unit represented by the Union. Accordingly, when Fort Devens refused to bargain over the issue of a daily parking rate as found by the Judge, in its representative capacity for the 94th Command, the Authority concludes that such refusal constituted a violation of section 7116(a)(1) and (5) of the Statute by the 94th Command. Additionally, with regard to those Union proposals which were asserted to conflict with DOD or DOA regulations, as the record fails to demonstrate that a compelling need existed for those regulations so as to bar negotiations on conflicting proposals, /7/ the Authority concludes that Fort Devens' improper refusal to bargain over such matters, again in its capacity as a representative of the 94th Command, also constituted a violation of section 7116(a)(1) and (5) of the Statute by the 94th Command. However, no violation will be found with respect to a failure to bargain over those proposals which conflicted with Government-wide regulations on paid parking, as found by the Judge, and on those matters concerning which Fort Devens deferred negotiations with the Union's acquiescence. The Authority further concludes, but for a different reason, that the Recruiting Command violated the Statute. As previously noted, the Recruiting Command failed to negotiate following the Union's request to bargain over the impact and implementation of the paid parking program as it affected the Recruiting Command's employees in the bargaining unit represented by the Union, and took the position instead that there was nothing on which to negotiate, although as agency management at the level of exclusive recognition, it was obligated to do so to the extent of its discretion. The Authority thus finds that the Recruiting Command's failure to bargain to this extent constituted a violation of section 7116(a)(1) and (5) of the Statute. /8/ With regard to an appropriate order to remedy the unfair labor practices found, the Authority concludes that, inasmuch as there is no regulation in effect at this time requiring the collection of parking fees, /9/ it is unnecessary to order that Respondent's Boston District Recruiting Command and the 94th U.S. Army Reserve Command negotiate with the Union regarding this matter at the present time. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, IT IS HEREBY ORDERED that the Boston District Recruiting Command and the 94th U.S. Army Reserve Command, shall: 1. Cease and desist from: (a) Failing or refusing to give notice to and, upon request, bargain with the American Federation of Government Employees, AFL-CIO, Local 1900, the exclusive bargaining representative of its employees located at the South Boston Support Activity, before implementation of any aspect of a paid parking program which may be established by Government-wide rule or regulation. (b) In any like or related manner interfering with, restraining or coercing any employee in the exercise of rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purpose and policies of the Statute: (a) Post at the South Boston Support Activity copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Commanders of the Boston District Recruiting Command and the 94th Command, or their designees, and shall be posted and maintained by them for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. (b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, in writing, within 30 days from the date of this Order, as to what steps are being taken to comply herewith. IT IS FURTHER ORDERED that those portions of the consolidated complaint alleging violations of the Statute by the other named Respondents be, and they hereby are, dismissed. Issued, Washington, D.C., August 28, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail or refuse to give notice to and, upon request, bargain with the American Federation of Government Employees, AFL-CIO, Local 1900, the exclusive representative of employees located at the South Boston Support Activity, before implementation of any aspect of a paid parking program which may be established by Government-wide rule or regulation. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employee in the exercise of rights assured by the Statute. (Activity) By: (Signature) (Title) Dated: . . . This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region I, Federal Labor Relations Authority, whose address is: 441 Stuart Street, 9th Floor, Boston, MA 02116, and whose telephone number is: (617) 223-0920. -------------------- ALJ$ DECISION FOLLOWS -------------------- Samuel S. Horn, Esq. For Respondents Department of Defense and Department of the Army William S. Key, Captain For Respondents Boston District Recruiting Command and Commander, Fort Devens Neil J. Roche, Esq. For Respondent 94th U.S. Army Reserve Command John M. Esposito, President For the Charging Party James R. Collins, Esq. and Richard D. Zaiger, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge DECISION Statement of the Case This case arose under the provisions of the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (herein referred to as the Statute) and the Rules and Regulations issued thereunder. Upon unfair labor practice charges filed by the American Federation of Government Employees, AFL-CIO, Local 1900, (herein the Union) against the Boston District Recruiting Command, Boston, Massachusetts, the 94th U.S. Army Reserve Command, Hanscom AFB, Massachusetts, and the Commander, Fort Devens on November 29, 1979 and against the Department of the Army and the Department of Defense on March 24, 1980, the General Counsel of the Authority, by the Regional Director for Region 1, issued an Order Consolidating Cases, Complaint and Notice of Hearing on March 31, 1980 alleging Respondents engaged in unfair labor practices within the meaning of sections 7116(a)(1) and (5) of the Statute. The complaint, as amended at the hearing, essentially alleges that Respondents together violated the Statute by failing to bargain in good faith with the Union over the impact and implementation of a paid parking program and Respondents Department of the Army and Department of Defense, through the issuance of various directives, violated the Statute by interfering with the Union's right to bargain with respect to the paid parking program. /10/ A hearing on the complaint was conducted on May 22, 1980 in Boston, Massachusetts, at which time the parties were represented and afforded full opportunity to adduce evidence and call, examine and cross-examine witnesses and argue orally. The parties joint request for an extension of time to August 8 to file briefs was granted and briefs filed by the parties have been duly considered. /11/ Upon the entire record in this matter, my observations of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following: Findings of Fact Background The Department of Defense (herein DOD), an "Agency" within the meaning of section 7117 of the Statute, is composed of numerous subordinate bodies including the Department of the Army (herein DOA), a "primary national subdivision" of DOD within the meaning of section 7117 of the Statute. DOA, in turn, is also comprised of subordinate components, including the Boston District Recruiting Command (herein the Recruiting Command), the 94th U.S. Army Reserve Command, Hanscom AFB, Massachusetts (herein the 94th Command) and Fort Devens, Massachusetts (herein Fort Devens), all of which are responsible to DOA through various separate chains of command. The Secretary of Defense is the highest authority within DOD, Overall policy and coordinating responsibilities for labor-management relations rest with the Office of the Secretary of Defense (OSD), which is organizationally one level below the Secretary and Deputy Secretary of Defense. While it is not OSD's normal procedure to direct subordinate elements in labor negotiations, OSD does take positions on behalf of the entire agency when issues of negotiability are brought before the Authority. Accordingly, whenever an issue of importance to the agency arises, OSD attempts to develop a DOD policy on the matter and if a policy is adopted, subordinate components are obligated to adhere to that position. If problems arise with respect to a subordinate component's labor-management relations program the component can and does seek assistance and guidance from OSD. Regardless of whether a subordinate component requests assistance from OSD, if OSD perceives that the component has a labor-management problem, OSD can impose its policy and authority on that component. With regard to regulations issued by DOD, it is a common occurrance for subordinate components to seek advice from OSD when the component has a questions as to the meaning or implementation of the regulation. At all times material hereto the Union has been the exclusive collective bargaining representative of two separate appropriate units of employees in the Recruiting Command and the 94th Command. Both the Recruiting Command and the 94th Command are tenants at an installation located at 666 Summer Street, Boston, Massachusetts, known as the South Boston Support Facility (herein the South Boston Facility or the Facility) and each Command has approximately 30 unit employees working at that location. The physical property which constitutes the Facility, including the parking lot, is under the managerial jurisdiction and control of Fort Devens. /12/ The Paid Parking Program By Circular No. A-118, dated August 13, 1979, the Executive Office of the President, Office of Management and Budget (OMB) announced the establishment of a Government-wide policy dealing with Federal parking facilities. /13/ According to OMB, a basis for charging for the use of parking facilities needed to be established which was equitable among employees and consistent with related policies regarding air quality, energy conservation and reduced traffic congestion. In the Circular OMB stated, in part: " . . . It is the general policy of the executive branch to limit Federal installation parking facilities to the minimum necessary, to administer those facilities in full compliance with carpooling regulations, and to assess Federal employees, contractor employees and tenant employees who are provided parking in Government-controlled space a charge equivalent to the fair monthly rental value for the use of equivalent commercial space, subject to the terms, exemptions and conditions stated in this Circular." The ten page Circular specifically addressed such matters as conditions for exemptions from fees, the priorities to be considered for the allocation and assignment of parking spaces, the establishment of charges for employee parking, and the determination of rates. With regard to matters concerning fees for parking, the Circular provided, inter alia: "a. Establishment of charges. Charges for employee use of Government-owned or leased parking facilities shall be assessed at all locations except where the rate, as determined in c. below, would be less than $10.00 per month. For the initial period November 1, 1979, through September 30, 1981, the charges to be collected shall be 50 percent of the full rate scheduled to be collected. If the full rate is calculated to be between $10.00 and $19.99, the monthly charge between November 1, 1979 and September 30, 1981, shall be $10.00. The full charge shall be collected after October 1, 1981." As to the determination of rates to be charged, the Circular stated: " . . . The Administrator of GSA shall determine the rate to be charged for Government furnished employee parking at each facility using generally accepted appraisal techniques. Agencies other than GSA which hold title to property and desire to arrange their own appraisals must advise GSA in writing of their intent, and shall conduct such appraisals in accordance with GSA guidelines. GSA shall review and approve all rates in accordance with 40 U.S.C. 490(k). The rates shall approximate the prevailing value of comparable commercial property in the vicinity. The rate basis will be the fair rental value of such property as used in calculating Standard Level User Charges. Fair rental value includes an allowance for the costs of parking facility management. The rates so established shall be adjusted annually by the Administrator to reflect increases or decreases in value." The Circular further mandated that General Services Administration (GSA) "issue regulations implementing the provisions of this Circular regarding the determination of commercially equivalent rates for Government parking . . . (and) revise regulation and priorities as necessary, for the assignment of parking spaces." Rates at non-GSA facilities were to be determined by October 1, 1979. Heads of departments and agencies were directed to assess charges consistent with the provisions of the Circular and GSA regulations and immediately request GSA to determine rates to be assessed at their facilities " . . . to enable rate determination to be completed prior to November 1, 1979", with late rate determination to be applied retroactively to November 1. With guidance from GSA, agencies were permitted to conduct their own appraisals to set parking rates. However rates developed in this fashion were to be submitted to GSA for review and approval. Agencies were further required to " . . . issue such instructions as may be needed to maximize carpooling and implement the provisions of this Circular and regulations issued by GSA". The OPM Circular also provided that final agency regulations should be issued prior to November 1, 1979. Pursuant to the above OMB Circular, GSA issued Government-wide regulation FPMR Temp. Reg. D-51, dated September 6, 1979. /14/ The GSA Federal employee parking regulation designated November 1, 1979 as the effective date for agency implementation of the regulation and imposed on agencies specific requirements relating to priority assignments of parking spaces for non-employees and employees, methods to establish parking fees, and rates to be charged, all of which were in accordance with the OMB Circular. The GSA regulation provided that at non-GSA controlled facilities, as in the cases herein the responsible agency would allocate employee parking in accordance with OMB Circular No. A-118. On September 20, 1979 DOD forwarded a draft DOD "Instruction" implementing OMB Circular A-118 to the National President of the American Federation of Government Employees (AFGE). An accompanying letter indicated that the Federal parking program mandated by OMB, including assessment of fees, would become effective November 1, 1979. The letter continued: "The DOD Instruction must . . . be issued as early as possible in October so that it will reach installation commanders responsible for its implementation before November 1. Accordingly I must ask that you review the draft Instruction and forward any comments to reach this office by the close of business on October 3 at the latest." The National office of AFGE responded to DOD by letter of September 26. In that letter AFGE indicated it had reviewed the draft DOD "Instruction" and suggested that the document, including the subject of parking fees, was "negotiable between the parties" in accordance with the provisions of section 7117(a)(1) of the Statute and suggested " . . . that negotiating the . . . issues relating to parking are the best actions which AFGE could pursue to successfully combat parking fees for Federal employees." /15/ On October 11, 1979 DOD issued an "advance copy" of its interim paid parking regulation to subordinate command activities. /16/ The DOD directive designated the specific parking fees which would be charged at various installations effective November 1, 1979. The parking fee for South Boston Facility was set at $10.00 a month. /17/ A cover letter accompanying the directive noted that the advance copy was being provided " . . . to permit implementation of the President's program, particularly the paid parking aspect, on November 1, 1979 . . . ". The DOD directive designated specific parking fees which would be charged at numerous DOD installations, including those controlled by DOA, effective November 1, 1979. Further, the DOD regulation incorporated elements of the OMB and GSA directives; set out an expanded list of specific classes of personnel and vehicles which would be exempt from payment of parking fees; set out certain priorities in the assignment and allocation of parking spaces; and designated those responsible to implement and enforce the regulation at various subordinate managerial levels. In addition, DOD, inter alia, required Secretaries of the military Departments and Directors of defense agencies to operate, control and issue instructions relative to the paid parking program in accordance with the provisions of the related OPM Circular, the GSA regulation and the DOD directive. DOD's directive treated numerous subjects in a rather comprehensive manner thereby substantially limiting DOA's flexibility to independently fashion its own regulations for implementation at the installation level. Nevertheless, various matters in the DOD directive provided DOA with considerable discretion including: establishing the number of spaces assigned to employees working unusual hours; developing incentives to encourage and facilitate the use of car and van pools and public transportation; issuance of parking permits to individuals who use their privately owned vehicles for government business; and developing a mechanism for deterring abuse of parking space allocation. Moreover, since DOA was directed to establish a paid parking program for its subordinate bodies, and since various matters were not governed by OMB, GSA or DOD directives, DOA was left a substantial range of possible avenues to utilize in implementing a paid parking program. On October 19, 1979 DOA provided to its subordinate installations, including Fort Devens, advance copies of its own regulation implementing DOD's parking regulation of October 11. DOA's regulation (postdated to October 24) took the form of an interim change to DOA parking regulation AR 210-4. The DOA regulation essentially incorporated and made more explicit the requirements contained in the OMB Circular and the GSA and DOD regulations and required installation commanders to institute a permit, fee collection and carpool program at their facilities. The directive changed existing DOA parking regulations and provided guidance to installation commanders on such matters as: the personnel to be used to implement the program; alternatives available to installation commanders for the operation of the program (automated, contractor operated, or installation operated); the sale of parking permits on a yearly, quarterly, bi-monthly, or daily basis; the site used for the sale of permits; standards for enforcing the program; and the manner of collecting fees. The DOA regulation left installation commanders with a substantial amount of discretion in implementing the program at their local facilities and reminded installation commanders of the obligation under the Statute " . . . to negotiate with exclusively recognized labor organizations over the impact and implementation of the installation's parking plan." Fort Devens first received knowledge that a paid parking program would be instituted at the South Boston Facility through receipt, in mid-October 1979, of the October 11, 1979 DOD parking directive. Around this time Colonel John M. Cononico, Director of Personnel and Community Activities, Fort Devens, was informed by DOA through Forces Command, Fort Devens next superior level in the chain of command, that Fort Devens would be responsible for implementing the paid parking program at the Facility. Colonel Cononico was placed in charge of implementing the plan and on October 19 submitted a request to higher authority that Fort Devens be excepted from the requirement for instituting a paid parking program. Nevertheless, Cononico at the same time began to "gear up" to implement a program. Sometime during the third week of October Fort Devens received DOA's paid parking regulations dated October 19 and Cononico was told on October 31 that, notwithstanding the pending request for an exception, he was to implement a paid parking program at the Facility by November 1, 1979. The South Boston Facility houses approximately 25 "tenant" activities, including the Recruiting Command and the 94th Command, and contains approximately 800 parking spaces, the assignment of which were under the control of Fort Devens. At Colonel Cononico's request the various activity representatives at Fort Devens, including the Recruiting Command and the 94th Command, met on November 6, 1979. AFGE, Local 1900 was represented at the meeting by its President, John Esposito. Copies of the DOA regulations of October 19 were circulated and Colonel Cononico informed those in attendance that a paid parking program was to be inaugurated at the Facility pursuant to order of the President of the United States. It was explained that a survey would be conducted to facilitate the use of carpools and permits for parking would be issued at a cost of $10.00 per month, payable in advance, beginning on or about December 1, 1979. The matter of a daily parking fee, which was provided for in the DOA regulation, supra, was questioned and Cononico replied that the Facility's program would not include a daily parking fee since there was inadequate staff at Fort Devens to implement that provision of the regulation. Various other questions asked by those in attendance were responded to by management quoting from "existing directives". Union President Esposito suggested that management was not demonstrating good faith in this matter since a change in a condition of employment was being implemented without prior notice to the exclusive representatives of bargaining units at the Facility. /18/ Colonel Cononico responded that the Union had its "avenues to follow" if it felt it had a problem or objection. Esposito asked if Cononico was willing to bargain with the Union on the matter and Cononico answered in the affirmative. Immediately following the meeting Esposito told Cononico he would be sending a letter requesting bargaining over the impact and implementation of the paid parking program. On November 8, 1979, the Union sent the following letter to Fort Devens and the 94th Command: /19/ "At a meeting convened by the Deputy Commander, Fort Devens, at 1100 Hours, 6 November 1979, at Fox Corner Auditorium, located at the Boston USAR Center, AFGE Local 1900 was informed that the Commander, Fort Devens, is implementing a Personal Parking Facilities Program. This is a unilateral change of a condition of employment and is being done without prior notice and notification to Local 1900, the exclusive representative of the 94th ARCOM and Boston DRC civilian employees, tenants of the Boston USAR Center. "Accordingly, by copy of this letter, Local 1900 requests to negotiate the impact and implementation of this program immediately. The areas which we seek to negotiate are as follows: "a. Allocation of parking spaces. "b. Determination of exemptions from parking fees, in addition to those set by OMB or GSA. "c. Choice of appraisal techniques and the determination of actual fees to be charged. "d. Method of payment of fees, especially to avoid undue hardship to lower paid employees. "Non-compliance with our request within five working days from receipt of this letter will be considered an unfair labor practice and will initiate the charge. "Further, until negotiations are completed, no positive action will be taken and any implementation shall be deemed in violation of the Civil Service Reform Act of 1978 and an unfair labor practice charge as well as a motion for temporary restraining order will be filed with the Federal Labor Relations Authority." By letter to the Union dated November 9, 1979, Fort Devens indicated its willingness to bargain with the Union "at the nearest possible date and time that is agreeable to all parties", and, inter alia, suggested that when the Union wished, it should contact Fort Devens' representative to make arrangements for a meeting. Fort Devens stated that a minimum of one day's advance notice for such a meeting would be required. /20/ Representatives of Fort Devens and the Union met on November 26, 1979 for the purpose of negotiating on the paid parking program. /21/ The parties discussed those matters the Union indicated it wished to pursue in its November 8 letter, above. With regard to the subject of allocations of parking spaces, while there was an existing system for allotting spaces at the Facility the DOA directive, above, contained new provisions for the allocation of spaces to various groups of employees including handicapped, executive personnel and carpool employees and Esposito wished to enter into negotiations on this feature of the parking program. Management indicated it was willing to discuss any aspect of the subject but pointed out that without first obtaining a layout chart of the parking lot, the parties would not have enough information to fully consider the subject and complete negotiations on the matter. The Union did not attempt to pursue this issue further at that time. As to the Union's request to negotiate regarding the determination of exemptions from parking fees, in addition to those set by OMB and GSA, Esposito maintained that he considered the matter to be negotiable and stated that no one at the Facility should be obligated to pay for parking until every Federal employee in the country was paying for parking. Esposito also contended that lower graded employees, GS 1-5, should not be required to pay the same rate of parking as higher level employees. Fort Devens took the position that these subjects were non-negotiable. Esposito further expressed interest in visitor parking at the Facility including where they would park, what fees they would pay, and how long a visitor could park free before being deemed an employee for parking fee purposes. Cononico replied that since the DOA directive fully covered visitor parking, he considered the matter non-negotiable and therefore had no intention of discussing this issue any further. /22/ When the subject of the choice of appraisal techniques and determination of actual fees arose, the Union argued that it should have been involved in the selection of the appropriate appraisal technique used to determine the fee at the Facility. It was the Union's contention that in setting the fee, management incorrectly considered the parking rates in downtown Boston, whereas the Facility was located in South Boston, where, the Union contended, industry historically provided free parking for its employees. Cononico however took the position that the Union's request to negotiate on this subject was non-negotiable and indicated he did not wish to discuss the matter further. Management agreed that the subject of the method of fee payment, especially to avoid undue hardship to lower paid employees, was negotiable to some extent, but, expressed the view that some aspects of this subject might not be negotiable. Management suggested that the Union point out the particular hardship situation about which it was concerned. The parties discussed the possibility of payroll deduction for parking fees and whether employees would be interested in payroll deductions for this purpose. Management agreed that payment by check or cash would be acceptable. Union President Esposito also urged that, as mandated by the DOA directive, a daily parking rate be established. /23/ Esposito argued that if daily payment was not permitted, some employees who did not use their cars every day during the entire month would be penalized by paying the monthly rate. Management maintained that there were neither funds nor personnel available to implement a daily parking fee program. Management also pointed out that Fort Devens' reasons in support of its application for an exemption from paid parking for the Facility included the insufficient staffing and money problems. Esposito indicated that, in any event, he wished to negotiate the details of a daily rate but management declined. Esposito also questioned who would be responsible for damage to cars while parked at the Facility. Management took the position that liability for damage would reside with the employees or their insurance carriers. The meeting of November 26, 1979 concluded by Colonel Cononico summarizing, that December 3 would be the implementation date of the paid parking program; Captain Andrews of Fort Devens would be sent to the Facility on November 27 to begin collecting advance payments of the $10.00 monthly parking fee; there would not be any daily parking rate and anyone not paying $10.00 by December 3 would not be allowed to use the Facility parking lot; since there was not enough time before December 3 to allocate different parking areas, parking would remain as it had been up to that point; and management agreed that allocation of parking was a negotiable matter and the parties would meet again as soon as management constructed a parking layout chart. /24/ On Tuesday, November 27, 1979, Captain Andrews began collecting the $10.00 monthly parking fees. /25/ By Friday, November 30, Colonel Cononico came to the conclusion that a number of employees would not have had the opportunity to purchase monthly parking permits by Monday, December 3. Cononico also concluded by this date that the Unnion's position on establishing a daily parking rate was well taken. Accordingly, on Friday, November 30, Cononico instructed Captain Andrews to establish a system to sell daily parking permits on Monday, December 3. According to Cononico, the Union was not advised of this change due to the lack of time available between the decision and the Monday date of implementation and, in any event, notification to the Union was deemed unnecessary since the Union had requested a daily permit. On December 3, the paid parking program, including daily permits, was in effect at the Facility. /26/ Issues Counsel for the General Counsel contends that since on or about November 7, 1979, and more particularly on December 3, Respondents Fort Devens, the Recruiting Command, and the 94th Command failed to bargain in good faith with the Union regarding the impact and implementation of the paid parking program at the Facility. Counsel for the General Counsel further contends that DOD and DOA, by issuance of their respective directives of October 11 and October 19, 1979, interfered with the Union's right to bargain with respect to the parking program by denying the Union the opportunity to negotiate, prior to publication of the directives or their implementation, concerning the impact of the program on bargaining unit employees and the method and procedures to be used in implementing the program, to the extent not mandated by Government-wide rule or regulation. Thus, the General Counsel urges that DOD and DOA were obliged under the Statute to bargain with the Union prior to issuing directives to subordinate units where the directives went beyond the requirements of the OPM Circular and GSA regulation and contends that without doing so, the directives could not preclude bargaining at the level of recognition with regard to any discretionary matter which was not encompassed by the Government-wide directives. Respondents contend that the DOD directive of October 11, 1979 is an "agency rule or regulation within the meaning of section 7117 et seq. of the Statute and since DOA is a "primary national subdivision" of DOD, its directive of October 19, 1979 is also an agency rule or regulation within the meaning of the Statute. /27/ Accordingly, Respondents argue no duty to bargain exists with regard to the terms of these regulations, absent a determination by the Authority of "no compelling need" for the regulations. /28/ Respondents further contend that at the Facility level, Fort Devens fully negotiated with the Union to the extent it had discretion under the parking regulations. Discussion and Conclusions It is clear that the OMB and GSA parking directives herein are Government-wide regulations within the meaning of section 7117(a)(1) of the Statute and, as such, no duty to bargain on the subject matter of these regulations is required. However, while the OMB regulation sets forth various specific instructions on paid parking, it did not cover all matters relative to instituting a paid parking program. Rather, the OMB regulation mandated all agencies, including DOD, issue such instructions as may be needed to implement the provisions of the OMB and GSA regulations. Thus, DOD, while obligated to follow the OMB and GSA regulations, was left substantial discretion as to the practices and procedures it might choose to utilize in formulating a paid parking program for the agency. Pursuant to OMB and GSA regulations, DOD issued its paid parking directive applicable to its subordinate bodies and pursuant thereto, DOA issued its own directive applicable to its subordinate organizations. I conclude, in these circumstances, that the DOD directive of October 11, 1979, was an "agency" regulation and the DOA directive of October 19, 1979 was a regulation issued by a "primary national subdivision of (an) agency" within the meaning of section 7117(a)(3) of the Statute. Under section 7117(a)(2) and (3) of the Statute, an agency or a primary national subdivision of an agency is not obligated to bargain with a union regarding matters encompassed by their regulations unless a union represents the majority of employees in the agency or national primary subdivision or unless the Authority has determined, under section 7117(b) of the Statute, that no compelling need exists for the regulation in effect. /29/ The Union herein does not represent the majority of employees in DOD or DOA. However, Counsel for the General Counsel urges that section 7117(a) of the Statute should be construed to mean that a regulation of an agency or primary national subdivision of an agency precludes negotiations on matters encompassed by such regulation and calls into play procedures to determine compelling need only where the regulation and conditions of employment under the regulation are already in effect and a union thereafter seeks to bargain on a matter covered by the regulation and the agency defends the regulation by claiming compelling need. The specific language of the Statute clearly does not impose any such limitation of application suggested by Counsel for the General Counsel. /30/ Further, an examination of the legislative history of the Statute discloses the following explanation given by Senator Morris Udall on September 13, 1978 regarding the meaning of section 7117 ultimately enacted into law, termed the "substitute" bill, as distinguished from an earlier bill which was not enacted into law, termed the "reported" bill: /31/ "Under the reported bill, agency-wide rules or regulations are never a bar to negotiations, and any Government-wide rule or regulation may be removed as a bar to negotiations if there is no "compelling need" for the rule or regulation, as determined by the Federal Labor Relations Authority under the reported section 7117. "The substitute's section 7117 makes Government-wide rules and regulations an absolute bar to negotiations (subsection (a)(1)). "Subsection (a)(2) of the substitute provides that agency rules or regulations are a bar to negotiations, subject to subsection (a)(3), unless a finding of "no compelling need" for the rule or regulation is made by the Authority (as determined under regulations prescribed by the Authority). "Subsection (a)(3) states that the provisions of subsection (a)(2) apply to any rule or regulation issued by any agency, or issued by any primary national subdivision of such agency, unless an exclusive representative represents an appropriate unit which includes a majority of the employees in the issuing agency or primary national subdivision to whom the rule or regulation is applicable. "The net effect of the substitute's subsection (a)(3) is to make rules or regulations of agencies, or of primary national subdivisions of agencies, bars to negotiation, subject to the 'compelling needs' test, except in cases in which an exclusive representative represents a bargaining unit which includes a majority of the employees in the issuing agency or primary national subdivision to whom the rule or regulation is applicable. In those latter cases, the agency or primary national subdivision rule or regulation is not, for purposes of that unit, a bar to negotiations on the subject matter of the rule or regulation." Thus, it does not appear that an interpretation or limitation on the application of section 7117 as urged by Counsel for the General Counsel was envisioned by Congress. Rather, it appears the terms of section 7117 were meant to apply generally to all situations where an agency defends against a demand to negotiate on a matter by interposing the existence of an appropriate regulation. /32/ Counsel for the General Counsel also suggests, as an alternative argument, that if the agency regulation stands as a bar to negotiations, then the proceeding herein served to put the issue of compelling need before the Authority for determination. In my view neither the Statute nor the Authority's regulations appear to envision this approach. Indeed, section 7117(b)(3) of the Statute provides that where a hearing is held to make a determination of compelling need, it " . . . shall not include the General Counsel as a party." /33/ Accordingly, to combine a compelling need determination with an unfair labor practice proceeding, where the General Counsel has the responsibility of presenting the evidence in support of the complaint and carries the burden of proving the allegations of the complaint, would run contrary to Statutory prohibition. Therefore, Counsel for General Counsel's contention is rejected. However, in the situation herein, I conclude that there existed a duty to bargain with the Union as to matters which were not precluded by express provisions of Government-wide regulations or the regulations issued by DOD and DOA. The DOD AND DOA regulations were not self implementing and the regulations did not provide for all possible contingencies. Thus, installation commanders were instructed to institute a parking plan applicable to their individual facilities. Although any plan had to be in accord with the requirements of outstanding regulations, management at levels subordinate to DOA, where employees were represented by a union, as herein, were vested with substantial discretion and authority as to both the content on the plan and its operation. Moreover, the DOA regulation of October 19, 1979 itself envisioned that some matters regarding the specific paid parking plan to be installed at the Facility were negotiable, the DOA regulation specifically requiring that installation commanders " . . . negotiate with exclusively recognized labor organizations over the impact and implementation of the installation's plan", supra. Accordingly, I conclude that Respondent's management was obligated under the Statute to negotiate with the Union to whatever extent management had discretion under applicable Government-wide and agency regulations in the implementation of the paid parking program at the Facility. /34/ Pursuant to the Union's request, representatives of Fort Devens met with the Union on November 26, 1979 to negotiate various aspects of the paid parking program as it was to be implemented at the South Boston Facility. Counsel for the General Counsel contends that the Recruiting Command and the 94th Command violated the Statute by Recruiting Command's failure to respond to the Union's request to bargain of November 10 and the 94th Command's suggestion that Fort Devens would be the appropriate party to negotiate on the parking program. I reject these contentions. The record reveals that at the level of implementation only Fort Devens had control over the operation of the parking lot and the parking program. Neither the Recruiting Command nor the 94th Command could effectively negotiate on the parking program since the matter was not the responsibility of either. The 94th Command referred the Union to Fort Devens as the appropriate party to negotiate on the matter and obviously the Union was aware that, absent authority from higher command, only Fort Devens could realistically engage in negotiations which would be binding. Indeed, Fort Devens accepted the obligation of bargaining with the Union on behalf of those DOA subordinates which had employees at the Facility represented by the Union. In these circumstances no useful purpose would be served by the Recruiting Command and the 94th Command acknowledging to the Union that they had a duty to bargain and accordingly, I conclude that neither the 94th Command nor the Recruiting Command independently violated the Statute, as alleged above. Turning now to the negotiations of November 26, 1979, I conclude that, except for the issue of daily rates, the evidence fails to establish that Fort Devens refused to bargain with the Union on the parking program to the extent it had discretion over such matters and was therefore obligated to do so. When the subject of allocation of parking spaces was discussed, the Union acquiesced in management's suggestion to withhold further negotiations until a layout chart of the parking area was obtained. As to the Union's proposals regarding determination of parking fees, no parking payments for Facility employees until all Federal employees were paying for parking, lower parking payments for lower grade employees, and the fees and duration of visitor parking, these were all matters which were specifically mandated by Government-wide, DOD and/or DOA regulations from which Fort Devens had no discretion to deviate. The issue of where visitors parked was intrinsically related to the allocation of parking spaces, above, and it would appear that this subject, to the extent it was negotiable, would more appropriate be a matter of discussion only after a layout was available. The question of appraisal techniques was a matter solely within the responsibility and control of DOD and the technique used in the appraisal was obviously outside the discretionary area for negotiations at the Fort Devens level. As to the Union's demand to bargain on the method of parking fee payments including the aspect of undue hardship, management's position was that the subject might or might not be negotiable, and essentially asked Esposito what particular hardship situation he had in mind. The record discloses that the discussion on this topic concerned only the possibility of payroll deductions and payment by cash or checks and, other than as stated above, it appears that the hardship issue was not pursued further by the Union. The question of liability for damages to employees' cars while parked was discussed and management took the position that liability would rest with the employee with apparently no further conversation occurring on this topic. In summary, during the above discussions, on some matters management refused to bargain with the Union since the items were ones over which Fort Devens had no authority to vary; on other matters the Union acquiesced in management's position, such as postponing negotiations until a parking layout was obtained; and on the remaining subjects the parties discussed the issues but management simply did not agree with the Union's position and the Union did not pursue the issue further. In these circumstances I conclude that the preponderance of evidence does not establish that Respondents violated sections 7116(a)(1) or (5) of the Statute by failing to negotiate in good faith with the Union on the above matters. With regard to the daily parking rate issue, at the Monday, November 26 meeting, management refused to fully discuss a daily rate since it believed, at the time, that it did not have sufficient funds or personnel to implement a daily fee program. On Friday, November 30 management concluded it could institute daily parking rates and on Monday, December 3, daily rates were effectuated. Management did not attempt to contact the Union and the Union, therefore, was not notified, prior to implementation, of management's change in disposition and given an opportunity to bargain about the daily fee program or the procedures used to collect the money involved. I recognize that in these circumstances it might have been difficult to contact the Union to set up a bargaining meeting to discuss the subject, but, in my view, management was obliged to make a reasonable effort to fulfill its bargaining obligations with the Union. However, management made no attempt to contact the Union on November 30 or during the following weekend. Rather, it unilaterally devised a program and without notice to the Union unilaterally implemented it. Accordingly, in these circumstances I find that by its conduct with regard to the establishment and implementation of a daily parking rate at the Facility, Respondents failed and refused to bargain with the Union and, thereby, violated sections 7116(a)(1) and (5) of the Statute. Remedy The remedial aspects of this case present an unusual situation. Thus, while Fort Devens has managerial control over the South Boston Facility, it is the Recruiting Command and the 94th Command whose employees are represented by the Union. However, in the peculiar circumstances herein I conclude that DOD, DOA, Fort Devens, the Recruiting Command, and the 94th Command together constitute an affiliated or joint enterprise with regard to the implementation of the paid parking program at the South Boston Facility. Organizationally there is a commonality which binds together all these components of DOD. While Fort Devens, the Recruiting Command, and the 94th Command have separate chains of command to DOA, all are ultimately responsible to and are subordinate components of DOD which, through OSD, has overall policy components within DOD. In this regard it is DOD which decides the policy to be adopted when negotiability matters under the Statute are at issue and represents component organizations in the presentation of such cases before the Authority. Further, DOD is available to subordinate components for assistance and guidance, and if DOD deems it appropriate, it can impose its policies on any subordinate entity. In the case herein, not only did DOD and DOA have an integral relationship with the organizations and employees most proximately involved with the paid parking program, but DOD and DOA both played essential roles in the chain of events which resulted in the implementation of the program. It was DOD's regulations which were acted upon and transmitted through DOA's regulations to Fort Devens for implementation at the Facility and impacted on the Recruiting Command and the 94th Command employees, all of whom were under the umbrella of DOD's ultimate control. True, neither the Recruiting Command nor the 94th Command had an independent right to bargain with the Union on the parking program and Fort Devens had no independent obligation to bargain on the matter. However, all Respondents were inextricably involved in the situation and Fort Devens, obviously aware of the responsibilities which flowed from this relationship, accepted the obligation to bargain with the Union on the matter. Accordingly, while I have concluded that Fort Devens violated the Statute in its dealings with the Union on the implementation of the paid parking program at the South Boston Facility, all related organizations involved are charged to cooperate in the effectuation of the order recommended herein. /25/ Finally, the Union requests as a remedy to any violation found herein that the situation be restored to the status quo ante until such time as negotiations have been completed and an agreement is reached by the parties. I do not conclude that the circumstances of this case warrant this remedy and, therefore, will not recommend the Authority impose such an order. /36/ Having found and concluded that by the conduct described above, Respondents, by the actions of Fort Devens, violated sections 7116(a)(1) and (5) of the Statute, I recommend the Authority issue the following: /37/ Order Pursuant to section 2423.29 of the Federal Labor Relations Authority's regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the Department of Defense, Department of the Army, the Boston District Recruiting Command, and the 94th U.S. Army Reserve Command, and the Commander, Fort Devens, shall: 1. Cease and desist from: (a) Failing and refusing to negotiate with the American Federation of Government Employees, AFL-CIO, Local 1900, the exclusive representative of Boston District Recruiting Command and 94th U.S. Army Reserve Command employees at the South Boston Support Facility, with regard to the establishment and Government-wide and agency regulations. (b) Instituting changes with regard to the establishment and implementation of a daily parking rate without notifying the American Federation of Government Employees, AFL-CIO, Local 1900, the exclusive representative of Boston District Recruiting Command and 94th U.S. Army Reserve Command employees at the South Boston Support Facility, and affording it a reasonable opportunity to negotiate on such matters to the extent consonant with Government-wide and agency regulations. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights assured by the Federal Labor-Management Relations Statute. 2. Take the following affirmative action: (a) Upon request, meet and negotiate with the American Federation of Government Employees, AFL-CIO, Local 1900, concerning the establishment and the implementation of a daily parking rate at the South Boston Support Facility to the extent consonant with Government-wide and agency regulations. (b) Post, at the South Boston Support Facility, copies of the attached Notice marked "Appendix" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Commander, Fort Devens, and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places where notices are customarily posted. The Commander shall take reasonable steps to insure that such Notices are not altered, defaced or covered by any other material. (c) Notify the Federal Labor Relations Authority, in writing, within 30 days from the date of this order as to what steps have been taken to comply herewith. SALVATORE J. ARRIGO Administrative Law Judge Dated: December 22, 1980 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail or refuse to negotiate with the American Federation of Government Employees, AFL-CIO, Local 1900, the exclusive bargaining representative of Boston District Recruiting Command and 94th U.S. Army Reserve Command employees, with regard to the establishment and implementation of a daily parking rate at the South Boston Support Facility to the extent consonant with Government-wide and agency regulations. WE WILL NOT institute changes with regard to the establishment and implementation of a daily parking rate at the South Boston Support Facility without notifying the American Federation of Government Employees, AFL-CIO, Local 1900, the exclusive bargaining representative of Boston District Recruiting Command and 94th U.S. Army Reserve Command employees, and affording it a reasonable opportunity to bargain to the extent consonant with Government-wide and agency regulations. WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of their rights assured by the Statute. WE WILL, upon request, meet and negotiate with the American Federation of Government Employees, AFL-CIO, Local 1900, the exclusive bargaining representative of Boston District Recruiting Command and 94th U.S. Army Reserve Command employees, concerning the establishment and implementation of a daily parking rate at the South Boston Support Facility to the extent consonant with Government-wide and agency regulations. (Agency or Activity) By: (Signature) Dated: . . . This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have question concerning this Notice, or compliance with any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region I, whose address is: 441 Stuart Street, 9th Floor, Boston, Massachusetts 02116. --------------- FOOTNOTES$ --------------- /1/ The Office of Personnel Management was granted permission to participate in this proceeding as amicus curiae pursuant to section 2429.9 of the Authority's Rules and Regulations. /2/ See Department of Housing and Urban Development, 9 FLRA 136 (1982). /3/ See Defense Logistics Agency (Cameron Station, Virginia), 12 FLRA No. 86 n.9 (1983), appeal docketed, No. 83-2017 (D.C. Cir. Sept. 26, 1983). /4/ To the contrary, as found by the Judge, DOA's proposed implementing regulation distributed to subordinate installations specifically reminded them of their obligation under the Statute "to negotiate with exclusively recognized labor organizations over the impact and implementation of the installation's parking plan." /5/ The Authority has previously held that the acts and conduct of higher level agency management may constitute an unfair labor practice where such conduct prevents agency management at the level of exclusive recognition from fulfilling its bargaining obligation under the Statute. Department of Health and Human Services, Social Security Administration, Region VI, and Department of Health and Human Services, Social Security Administration, Galveston, Texas District, 10 FLRA 26 (1982); Department of the Interior, Water and Power Resources Service, Grand Coulee Project, Grand Coulee, Washington, 9 FLRA 385 (1982). /6/ The Authority has held that "the Statute clearly requires the parties to provide representatives who are empowered to negotiate and enter into agreements on all matters within the scope of negotiations within the bargaining unit." National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 13 FLRA No. 93 (1983). See also American Federation of Government Employees, AFL-CIO, Local 3656 and Federal Trade Commission, Boston Regional Office, Massachusetts, 4 FLRA 702 (1980). /7/ After the Judge issued his decision herein, the Authority concluded, contrary to the Judge, that questions concerning the existence of a compelling need for agency regulations may appropriately be decided in an unfair labor practice proceeding, and that management is required to come forward with affirmative support for its assertion that there is a compelling need for the regulation in question which justified its refusal to bargain. See Defense Logistics Agency (Cameron Station, Virginia), supra n. 3. See also U.S. Army Engineer Center and Fort Belvoir, 13 FLRA No. 116 (1984); United States Marshals Service, 12 FLRA No. 129 (1983). /8/ See Veterans Administration Central Office, Veterans Administration Medical Center, Long Beach, 9 FLRA 325 (1982); General Services Administration, Region 8, Denver, Colorado, 10 FLRA 257 (1982). /9/ During the pendency of the instant case before the Authority, the United States District Court for the District of Columbia ruled that the paid parking plan, as embodied in OMB Circular A-118, was invalid, and ordered that the GSA regulation be set aside and its enforcement permanently enjoined. American Federation of Government Employees, AFL-CIO, et al. v. Freeman, 510 F.Supp. 596 (D.D.C. 1981). Thereafter, GSA revised the regulation to suspend the collection of parking fees in accordance with the injunction. (46 F.R. 40191 (1981)). The District Court's decision was subsequently reversed. American Federation of Government Employees, AFL-CIO, et al. v. Carmen, 669 F.2d 815 (D.C. Cir. 1981). However, President Reagan has stated that the collection of parking fees will not be reinstated. Statement by the President on Parking Fees for Federal Employees, 17 Weekly Comp.of Pres.Doc. 1161 (Dec. 17, 1981). /10/ While the caption of the complaint included the Commander, Fort Devens, the Department of the Army, and the Department of Defense as Respondents, it was not alleged in the gravamen of the complaint that these parties violated the Statute. However, the Commander, Fort Devens was named in the complaint as an agent of Respondents; answers to the complaint were filed on behalf of all Respondents; and the complaint was amended at the hearing to include an allegation that certain Department of Defense and Department of the Army conduct interfered with the Union's bargaining rights. Moreover, the theory of the case expressed by Counsel for the General Counsel at the opening of the hearing was that all named Respondents were collectively obligated to bargain with the Union over discretionary aspects of published Government-wide regulations, infra, and all Respondents were represented by counsel at the hearing. Accordingly, I conclude that the omission in the gravamen of the complaint as stated above is of no significance with regard to the litigation or disposition of the matter at issue herein. /11/ In his submission, counsel for Respondent Commander, Fort Devens moved that the complaint against the Commander, Fort Devens, be dismissed. For reasons explicated hereinafter, the motion is denied. /12/ See Defense Contracts Administration Services Region, Boston, Massachusetts, et al., Case Nos. 1-CA-212, et al., Decision and Order of the undersigned issued this day. /13/ 44 Fed.Reg.No. 161, at 48638-48641 (August 17, 1979). /14/ 44 Fed.Reg.No. 179, at 53161-53163 (September 13, 1979). /15/ Section 7117(a)(1) of the Statute provides: "subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation." However, AFGE's response, while quoting this section, omitted the words "Subject to paragraph (2) of this subsection." /16/ DOD issued its final parking regulation on December 7, 1979 which, in large measure, was identical to the earlier interim regulation. /17/ A draft of the OMB Circular, dated April 6, 1979, which was circulated to various Government agencies for comment, indicated that GSA would establish the parking fee to be assessed at all Government installations. Subsequent to the circulation of this draft, DOD "negotiated" with OMB and GSA on the matter and received permission to do the appraising at its military installations. The permission was conditioned on the use of professional appraisers of the U.S. Corps of Engineers and the Naval Facilities Engineering Command; that the appraisals be performed using commonly accepted appraisal standards; that the GSA appraisal form be used; and that GSA would have final authority on the appraisal. DOD's appraisal and a determination of a parking rate at the South Boston Facility was completed on August 24, 1979. /18/ Previously, parking at the Facility was provided at no cost to employees. /19/ The Union sent an identical letter to the Recruiting Command on November 10. /20/ The 94th Command declined the Union's request to bargain by letter of November 17, 1979 and suggested that Fort Devens, since it was charged with implementing the paid parking program, would be the appropriate party with whom to seek to negotiate on the matter. The Recruiting Command did not specifically respond to the Union's request to bargain. /21/ The record does not reveal any contact between the parties after November 9 and before November 26. /22/ The DOA directive of October 19, 1979 treats visitor parking in numerous sections of that document, e.g., paragraph 7(a)(2)(c) states that "visitor parking should be identified in convenient locations", and paragraph 11(e)(1)(b), et seq., exempts from payment of a parking fee official and unofficial visitors up to a limit of 3 hours, daily rates to apply thereafter. /23/ Paragraph 11(h)(3) of the directive provides: "Commanders will make arrangements for the selling of daily rate permits to accommodate personnel who desire to use and pay for parking on a daily basis". /24/ Subsequently, after numerous telephone conversations between the parties, Fort Devens met with the Union on February 7, 1980 and presented the Union with a proposal on the allocation of parking spaces and negotiations continued thereon. /25/ On November 29, 1979, the Union filed unfair labor practice charges alleging Fort Devens, the Recruiting Command, and the 94th Command on November 26 refused to negotiate with the Union to the extent required by the Statute and on November 27, unilaterally implemented a new paid parking program. /26/ Esposito testified that he was not satisfied with the system used for selling daily parking permits and the procedure produced "chaos". /27/ Sections 7117(a)(1), (2), and (3) of the Statute provide: "(a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation. "(2) The duty to bargain in good faith shall, to the extent not inconsistent with Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection only if the Authority has determined under subsection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation. "(3) Paragraph (2) of the subsection applies to any rule or regulation issued by any agency or issued by any primary national subdivision of such agency, unless an exclusive representative represents an appropriate unit including not less than a majority of the employees in the issuing agency or primary national subdivision, as the case may be, to whom the rule or regulation is applicable." /28/ The Union has not sought nor has the Authority been presented with a request for a compelling need determination regarding the regulations under consideration herein. /29/ Section 7117(b) sets forth the process and standards for Authority determination of no compelling need. Procedures and criteria for determining compelling need are found in Authority regulations, sections 2424.1 and 2424.11. /30/ Counsel for the General Counsel cites no legislative history to support his position. /31/ Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, 96th Congress, 1st Session, Committee Print No. 96-7, (November 19, 1979) at 927. /32/ It is not alleged nor do the facts herein support a finding that Respondents' claim of non-negotiability is based upon a patently inapplicable regulation or that the contention was frivolously raised. /33/ See also section 2423.18 of the Authority's regulations. /34/ Cf. National Treasury Employees Union Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA No. 118 (1980). /35/ Cf. Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Hartford District Office, 4 FLRA No. 37 (1980). /36/ See The Adjutant General's office, Puerto Rico Air National Guard, 3 FLRA No. 55 (1980). /37/ I am aware of the decision of the U.S. District Court for the District of Columbia in American Federation of Government Employees, AFL-CIO, et al. v. R. G. Freeman, III, U.S.D.C. No. 79-2955, decided September 25, 1980, which deals with certain aspects of the Federal employee parking fee program herein. However, at this time that case has not been fully adjudicated and its ultimate outcome and possible impact on the matters treated herein is too speculative for consideration in this decision.