[ v19 p1103 ]
19:1103(125)CA
The decision of the Authority follows:
19 FLRA No. 125
OFFICE OF THE ASSISTANT SECRETARY
OF DEFENSE FOR PUBLIC AFFAIRS
Respondent
and
WASHINGTON HEADQUARTERS SERVICES
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2
Charging Party
and
OFFICE OF PERSONNEL MANAGEMENT
Intervenor
Case Nos. 3-CA-718
3-CA-1024
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondents had engaged in
certain unfair labor practices as alleged in the consolidated 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 alleged unfair labor
practices and recommended dismissal of the consolidated complaint with
respect to them. Exceptions to the Judge's Decision were filed by the
Respondents, the Charging Party and the General Counsel.
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, only to the extent
consistent herewith.
The consolidated complaint alleges that Respondent Washington
Headquarters Services (WHS) violated section 7116(a)(1) and (5) of the
Statute when it issued Building Circular, PBA No. 79-38, entitled
"Assessment of Parking Fees," which prescribed procedures for the
assessment of charges for the use of Pentagon parking spaces and when it
established a Parking Fee Collection Office in the Pentagon Building in
order to collect parking fees. The WHS, a field activity of the Office
of the Secretary of the Department of Defense (Administration), acts as
the designated Department of Defense component for administering the
parking program in the National Capital Region, including the Pentagon.
/1/ Such conduct by WHS is alleged to have interfered with the
bargaining relationship between the Charging Party, American Federation
of Government Employees, AFL-CIO, Local 2 (the Union), and the
Respondent, Office of Assistant Secretary of Defense for Public Affairs
(OASD/PA), /2/ thus denying the Union an opportunity to bargain
concerning procedures and appropriate arrangements for employees
adversely affected by the establishment of the paid parking program to
the extent not precluded by Government-wide rule or regulation. The
consolidated complaint further alleges that Respondent OASD/PA violated
section 7116(a)(1) and (5) of the Statute by its failure to provide
prior notification to the Union, the exclusive representative of its
employees, of the implementation of paid parking at the Pentagon and an
opportunity for the Union to request to bargain concerning procedures
and appropriate arrangements for employees adversely affected by the
establishment of the paid parking program.
The Judge concluded that the issuance of the Building Circular by WHS
precluded OASD/PA from providing prior notice to the Union at the level
of exclusive recognition, thereby interfering with Respondent OASD/PA's
obligation to bargain in violation of section 7116(a)(1) of the Statute.
The Judge also concluded that OASD/PA violated section 7116(a)(1) when,
upon receipt of the Building Circular, it did not thereafter give notice
to the Union. However, the Judge further concluded that Respondent
OASD/PA did not violate section 7116(a)(5) of the Statute because, after
distribution of the Building Circular, the Union made no request to
bargain. /3/ In this regard, the Judge inferred from the record before
him that the Union was "aware" of the distribution of the Building
Circular and of the implementation of the paid parking program and
failed to request bargaining.
The record reflects that WHS, as the administrator of parking at the
Pentagon, issued Building Circular, PBA No. 79-38, dated September 26,
1979, entitled "Assessment of Parking Fees," based upon the authority
contained in Office of Management and Budget Circular No. A-118, Federal
Employee Parking Facilities; Federal Property Management Regulations
(FPMR Temporary Regulation D-65); and the Federal Property and
Administrative Services Act (40 U.S.C. 490). This Circular set forth
the parking charges and exemptions from those charges; established a
fee collection office, effective October 3, 1979; and set forth a fee
payment schedule beginning on October 3, 1979. Updated information
concerning the implementation of the parking program was provided in
Building Circulars issued on October 24, 1979 and November 29, 1979. It
is undisputed that WHS distributed the initial implementing Circular
through the Pentagon's internal mail system to all Pentagon employees,
including those of the OASD/PA, on or about September 26, 1979, and that
no copies of the Circular were provided to the Union by either WHS or
OASD/PA.
Turning first to the allegations of the consolidated unfair labor
practice complaint concerning WHS, the Authority concludes, contrary to
the Judge, that such allegations must be dismissed. In this regard, a
statutory obligation to bargain to the extent consonant with law and
regulation exists only at the level of exclusive recognition. WHS has
no collective bargaining relationship with the Union and, therefore, no
obligation to bargain. /4/ Moreover, inasmuch as WHS is a field
activity of the Office of the Secretary of Defense and not in a position
of organizational superiority with respect to the Office of the
Assistant Secretary (PA), the issuance of the Circular by WHS could not
have interfered with or prevented OASD/PA from fulfilling its bargaining
obligation at the level of exclusive recognition. /5/
Rather, the obligation to provide notice to the Union, and thus an
opportunity for the latter to request bargaining to the extent consonant
with law and regulation, /6/ rested solely with OASD/PA, agency
management at the level of exclusive recognition. In agreement with the
Judge, the Authority views OASD/PA's failure to provide such notice to
the Union to be violative of the Statute. Further, the Authority finds,
contrary to the Judge, that OASD/PA's conduct in this regard was
violative of both section 7116(a)(1) and section 7116(b)(5) of the
Statute. In so finding, the Authority rejects the Judge's inference
that the Union must have received actual notice of the Circular via the
normal distribution to employees and thus had an opportunity to request
bargaining which was not exercised. In this regard, the Authority notes
particularly that it is undisputed that OASD/PA, agency management at
the level of exclusive recognition, provided no notice to the Union upon
receiving notice itself of the change in the paid parking program, and
that there was no evidence presented concerning whether the Union,
through its designated representatives, in fact received actual timely
notice. /7/ Inasmuch as implementation of the paid parking program
began shortly after the Circular's distribution, timely notice from
OASD/PA was imperative to insure that the Union was accorded a
reasonable opportunity to request bargaining to the extent consonant
with law and regulation, i.e., concerning the procedures to be observed
in effectuating the paid parking program and over appropriate
arrangements for adversely affected employees. /8/
Accordingly, the Authority concludes that the allegations of the
consolidated complaint that WHS violated section 7116(a)(1) and (5) of
the Statute based upon its issuance of Building Circular PBA No. 79-38
should be dismissed in its entirety. Further, the Authority concludes
that Respondent OASD/PA violated section 7116(a)(1) and (5) of the
Statute based on its failure, upon receipt of the Circular from WHS, to
provide timely notice of the change in parking regulations so as to
accord the exclusive representative a reasonable opportunity to request
bargaining to the extent consonant with law and regulations concerning
the procedures to be observed in effectuating the change and regarding
appropriate arrangements for adversely affected employees.
With regard to an appropriate remedy, 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 negotiations
regarding this matter at the present time. Moreover, the Union's
request that employees be reimbursed for all parking fees collected
pursuant to the regulation cannot be granted. The mechanism for
determining the amount of fees to be collected and the conditions for
exemptions from such fees were specifically addressed in the regulation.
It appears, therefore, that the regulation did not leave the amount of
the fees open to "implementation" negotiation and the fees would have
been collected regardless of the results of negotiations over the
implementation of the program.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, it is hereby ordered that the Office of the Assistant Secretary
of Defense for Public Affairs shall:
1. Cease and desist from:
(a) Failing to provide timely notice to the American Federation of
Government Employees, AFL-CIO, Local 2, the exclusive representative of
its employees, of changes in parking regulations and to afford such
exclusive representative reasonable opportunity to request bargaining to
the extent consonant with law and regulations concerning the procedures
to be observed in effectuating the change and regarding appropriate
arrangements for adversely affected employees.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at the facilities of the Office of the Assistant Secretary
of Defense for Public Affairs in the Pentagon 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
Assistant Secretary of Defense for Public Affairs, or his designee, and
shall be posted and maintained 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 any other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, 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.
IT IS FURTHER ORDERED that the consolidated complaint, insofar as it
alleges a violation of section 7116(a)(1) and (5) of the Statute by the
Respondent Washington Headquarters Services, be, and it hereby is,
dismissed.
Issued, Washington, D.C., August 30, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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 to provide timely notice of changes in parking
regulations to the American Federation of Government Employees, AFL-CIO,
Local 2, the exclusive representative of our employees, and afford such
exclusive representative a reasonable opportunity to request bargaining
to the extent consonant with law and regulations concerning the
procedures to be observed in effectuating the change and regarding
appropriate arrangements for adversely affected employees. WE WILL NOT
in any like or related manner interfere with, restrain, or coerce our
employees in the exercise of their rights assured by the Statute.
(Activity)
Dated: . . . By: (Signature) (Title) 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 III,
Federal Labor Relations Authority, whose address is: P.O. Box 33758,
Washington, D.C. 20033-0758 and whose telephone number is: (202)
653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos.: 3-CA-718, 3-CA-1024
Doris O. Hildreth
On brief: John W. Mulholland For the Charging Party
Samuel J. Horn, Esquire
For the Respondents
James F. Hicks, Esquire
For the Intervenor
Eileen H. Hamamura, Esquire
Peter B. Robb, 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. /10/ and the Final Rules and
Regulations issued thereunder, Federal Register, Vol. 45, No. 12,
January 29, 198u, 5 C.F.R. 2415.1 et seq., is yet another chapter in the
continuing saga of President Carter's paid parking program for
government employees. I am fully aware that, 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).
I am issuing simultaneously with this decision, my decision in Harry
Diamond Laboratories, Department of the Army, Department of Defense and
American Federation of Government Employees, AFL-CIO, Local 2, Case Nos.
3-CA-719, 3-CA-889, and 3-CA-970 (1981) (hereinafter, also, referred to
as "HDL") which, as noted therein, adopted and applied certain legal
conclusions of Judge Arrigo in three decisions issued by him on December
22, 1980, in: 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; Commander, Fort Devens,
Fort Devens, 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, 1980) (hereinafter, also, referred to as "Department of
the Army"). Fully to the extent applicable, I shall apply and follow
the legal conclusions in HDL, DCASR, Boston District and Department of
the Army, supra, in this case.
The charge in Case No. 3-CA-718 was filed on December 5, 1979 (G.C.
Exh. 1(a)) and alleged a violation of Secs. 16(a)(1), (5), and (8) of
the Statute by the Office of the Assistant Secretary of Defense for
Public Affairs by implementation of paid parking without notice to
American Federation of Government Employees, AFL-CIO, Local 2
(hereinafter referred to as "Union") and without giving the Union an
opportunity to negotiate on procedures or adverse impact in violation of
Sec. 6(b)(2) and (3) of the Statute; the charge in Case No. 3-CA-1024
was filed on March 24, 1980 (G.C. Exh. 1(c)) and alleged a violation by
Washington Headquarters Services of Sec. 16(a)(1) by the issuance on, or
about, October 11, 1979, of "final regulations and procedures by which
paid parking would be implemented thus committing a violation of Section
7116(a)(1) of the FSLMR Statute and interfering with the bargaining
relationship . . . in requiring that the Office of the Assistant
Secretary of Defense for Public Affairs implement paid parking before
negotiations between the parties on the procedures . . . and the impact
and implementation thereof had been completed"; an amended charge in
Case No. 3-CA-1024 was filed on April 7, 1980, to allege a violation of
Sec. 16(a)(5), in addition to 16(a)(1), but the basis of the allegation
was as set forth in the charge of March 24, 1980; an Order
Consolidating Cases, Complaint and Notice of Hearing issued on April 30,
1980, which set the hearing for July 14, 1980 (G.C. Exh. 1(g)); on July
11, 1980, an Order issued rescheduling the hearing in Case Nos. 3-CA-718
and 3-CA-1024 to July 21, 1980, and indefinitely postponing a number of
other cases (G.C. Exh. 1(k)), and pursuant thereto a hearing was duly
held in Washington, D.C. on July 21, 1980, before the undersigned.
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, to introduce evidence
bearing on the issues involved herein, and 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 21, 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 timely filed a most helpful
brief which have been carefully considered. Upon the basis of the
entire record, /11/ including my observation of the witnesses and their
demeanor, I make the following findings and conclusions:
Findings
1. The Union is the recognized exclusive representative of all
non-supervisory, non-professional general schedule and wage grade
employees in the Office of the Assistant Secretary of Defense for Public
Affairs (hereinafter, also, referred to as "PA"); PA and the Union are
parties to a collective bargaining agreement covering employees in the
unit (G.C. Exh. 9), but the agreement does not contain any provisions
covering employee parking (Tr. 89; G.C. Exh. 9); and the parties
stipulated that the unit covered approximately 75 employees (Tr. 16).
2. Washington Headquarters Services (hereinafter, also referred to
as "WHS") is an activity of the Department of Defense.
3. On August 13, 1979, OMB issued its Circular No. A-118 (G.C. Exh.
2); and on September 6, 1979, GSA issued Temporary Regulation D-65
(G.C. Exh. 3). General Counsel stated that,
"In this case only the OMB and GSA regulations are involved.
DOD-- Department of Defense-- and Department of Army issued
regulations which are not involved in this case . . . . " (Tr.
20).
Although it does not wholly alter the allegations of the Complaint,
General Counsel was in error. As more fully set forth in HDL, supra,
DOD on September 18, 1979, issued an Instruction which applied to the
Office of the Secretary of Defense, the Military Departments, and the
Defense Agencies and its provisions encompassed, inter alia, all
military installations, facilities, and properties in the United States,
was effective when issued and implemented OMB Circular A-118 (See, HDL,
supra,). In addition, DOD, on October 11, 1979, issued its Directive
(See, HDL, supra).
4. On September 26, 1979, WHS issued Building Circular, No. PBA
79-38 (G.C. Exh. 4), which, inter alia, provided that "During the month
of October 1979 and each month thereafter, a monthly parking fee will be
collected in advance for the use of Pentagon parking spaces. This
charge is determined by GSA on an annual basis . . . "; set forth fee
collection procedures; stated that, "On October 3, 1979, a Parking Fee
Collection Office will be established at the South end of the Concourse
. . . Room 2E165 . . . . "; and attached a fee payment schedule for
various types of permit holders beginning October 3 and extending
through October 31, with hours of operation as 0800 to 1630 (G.C. Exh.
4).
5. Some 4197 copies (Distribution B) of PBA 79-38 were distributed
in the Pentagon (G.C. Exh. 8) of which number 50 copies went to PA. In
addition, copies were posted at strategic locations (Tr. 101), including
a wall in the corridor of PA (Tr. 99). In addition, Mr. Robert C.
Kinkor, Director for Management, PA, testified that it was circulated
among employees of PA.
6. It is admitted that, notwithstanding the posting, distribution
and circulation within PA of PBA 79-38, the Union, per se, was not given
a copy. Ms. Patricia Strong, Business Agent of the Union, a/k/a/ Mrs.
Douglas H. Kershaw, whose office is in the Pentagon, testified that she
did not know about the Circular (PBA 79-38) until somewhere between the
25th and 31st of October (Tr. 72); however, I give little or no weight
to this testimony and/or her testimony that she was not aware that a
parking fee collection office was established in the Pentagon on October
3, 1979 (Tr. 90) for the reason that she stated that she was on leave
from the first to the seventeenth of October (Tr. 90-91). Mr. Douglas
H. Kershaw, National Representative of American Federation of Government
Employees, 14th District, whose business address is in Hyattsville,
Maryland, testified that he received the Circular in late October, 1979,
when his wife brought it home. Mr. Gamble, a Vice-President of the
Union and Ms. Mildred Wykoff, a shop steward, both of whom are in the PA
unit, were present during the portion of October (1st - 17th) that Ms.
Strong was on leave; however, neither was called as a witness. While I
am aware that Mr. Kershaw testified that he asked other officials of the
Union whether they had received "any document" (Tr. 62) and they did
not, it is apparent that Mr. Kershaw meant, specifically, that they did
not receive the Circular in their capacity as Union officials.
7. Both Mr. Kershaw and his wife, Ms. Strong, testified that they
did not request bargaining on impact and implementation because " . . .
they had implemented paid parking before I knew about it." (Tr. 63, 91,
92). Ms. Strong stated that she would have wanted to negotiate the
November 1 starting date, exemptions, and, perhaps, the rates and method
of payment (Tr. 91-92); however, General Counsel made it clear that the
obligation to bargain concerns only impact and implementation, and not
the decision itself (Tr. 19; General Counsel Brief, e.g., pp. 1, 19).
8. Ms. Strong testified that she received, in her capacity as a
Union official, PBA 79-46, dated October 24, 1979 (G.C. Exh. 5), but
could be no more precise as to the date of receipt than that she
received it around October 25 to 31, 1979. PBA 79-46 provided "updated
information concerning paid parking and associated changes" including
"Fee Collection Deadline"; "Special Fee Window" (for the purpose of
collecting fees for November, 1979); "Temporary Parking Area"; "Lost
or Stolen Stickers"; and "December Fee Collection". Although Ms.
Strong admitted receipt of PBA 79-46 in her capacity as a Union officer,
no request to negotiate on impact or implementation was made.
Conclusions
Implementation of government-wide and/or agency-wide rules or
regulations, of which paid parking is an example, has resulted in
substantial misconceptions with regard to the duty to bargain. These
issues were addressed in detail by Judge Arrigo in his decision in
DCASR, supra; Boston District, supra; and Department of the Army,
supra; and in my decision in HDL, supra. OMB Circular No. A-118,
August 13, 1979, was a Government-wide regulation, supplemented by a
further Government-wide regulation, GSA Temporary Regulation D-65,
September 6, 1979. Pursuant to Sec. 17(a)(1) there was no duty to
bargain regarding the subject matter of such Government-wide
regulations. DOD was obligated to adopt the specific requirements of
OMB and GSA but was left discretion as to various practices and
procedures relating to the implementation of the OMB and GSA
regulations. An agency, here the Department of Defense, may issue
agency-wide regulations and is obligated to bargain with a Union
regarding matters encompassed by its regulation only where the Union
represents the majority of employees in the agency, or when the
Authority has determined under Sec. 17(b) of the Statute that no
compelling need exists for the regulation. Pursuant to Sec. 17(a)(2)
and (3) of the Statute, DOD by its Instruction, issued September 18,
1979, implemented OMB Circular A-118 and on October 11, 1979, DOD issued
its Directive, which, while of greater "weight", was identical in
content to the Instruction (See, HDL, supra). DOD's Instruction, by its
terms, was effective when issued, implemented OMB Circular A-118, and
was obligatory to all DOD Components, including Washington Headquarters
Services (WHS), a field activity of the Office of the Secretary of
Defense, the designated Administering Component in the National Capitol
Region (NCR). Contrary to the assertion of General Counsel, the DOD
regulations (Instruction of September 18, 1979, and Directives of
October 11, 1979) were, necessarily, directly involved inasmuch as: a)
DOD's regulations, as agency-wide regulations were not subject to the
duty to bargain unless and until the Authority should determine that no
compelling need exists for the rule or regulation; and b) DOD's
regulations did narrow the areas of discretion left to WHS. Thus, by
way of example, OMB by Government-wide regulation had provided that the
paid parking program should be made effective November 1, 1979, and,
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 was not negotiable and, notwithstanding Ms.
Strong's desire to negotiate the November 1 starting date, this was not,
in any event, subject to negotiation. By like token, DOD's regulation
did narrow WHS's discretion in various respects, for example, as to
exceptions, visitor parking up to a limit of three hours. Again, as to
matters specifically covered by the DOD regulation, there was no duty to
bargain, unless and until the Authority should determine that no
compelling need exists for the rule or regulation. Stated otherwise,
the fact that WHS's Circular PBA 79-38 restated the provisions of DOD's
regulation which, in turn, implemented OMB Circular No. A-118, did not
render negotiable matters specifically subject to Government-wide and/or
Agency-wide regulations.
Nevertheless, as to those areas of discretion left to the judgment of
management at the level of actual employee location and union
representation, there is both a right and an obligation to negotiate.
WHS is not a national primary subdivision of DOD and its Circular PBA
79-38 was not exempt from the obligation to bargain, pursuant to Sec.
17(a)(2) or (3); but only as to the extent that WHS had discretion. To
repeat, the duty to bargain does not extend to matters specifically
subject to Government-wide and/or Agency-wide regulations and the
Union's assertion, although not the General Counsel's, that it wanted to
negotiate matters subject to OMB or DOD regulation is without
justification.
I quite agree with General Counsel that the Union was entitled to the
opportunity to bargain on the impact and implementation of matters left
to the discretion of WHS as the designated administering component for
the parking program at the Pentagon. Meaningful exercise of the right
to bargain requires notice to the exclusive representative prior to
implementation of action affecting or changing conditions of employment.
Paid parking affected and changed a condition of employment and WHS had
certain, albeit limited, discretion in its implementation of the paid
parking program pursuant to OMB, GSA and DOD regulations. WHS issued
its Building Circular PBA 79-38 on September 26, 1979, without prior
notice to the Union directly, although WHS had itself met earlier with
the Union about the anticipated paid parking program, or through PA, the
unit in which the Union holds exclusive recognition. I am aware that
DOD's Instruction, implementing OMB Circular A-118, did not issue until
September 18, 1979; nevertheless, there was ample time, prior to
issuance of PBA 79-38, for notice to the Union. It is also recognized
that the unit of exclusive recognition was, and is, PA; but the
issuance and distribution of the Circular by WHS precluded prior notice
by PA to the Union and by such action WHS interfered with the obligation
of PA to notify the Union and with the right of the Union to have notice
and opportunity to bargain on the impact and implementation of WHS's
implementation of the paid parking program and WHS thereby violated Sec.
16(a)(1) of the Statute. PA, upon receipt of PBA 79-38, did not give
notice to the Union and PA thereby violated Sec. 16(a)(1) of the
Statute. In each instance, the failure to give notice prior to
implementation of a change affecting conditions of employment and to
afford a reasonable opportunity for the Union to bargain on impact and
implementation prior to implementation of the change inherently
interferes with, restrains and coerces unit employees in their right to
have their exclusive representative act for and represent their
interests. San Antonio Air Logistics Center, San Antonio Air Materiel
Area (AFLC), Kelly Air Force Base, Texas, A/SLMR No. 540, 5 A/SLMR 502
(1975). As the Authority has stated,
" . . . it is equally clear that even when an Activity is
privileged to take such an action without first bargaining about
the basic decision, it is obligated to notify and bargain, upon
request, with the exclusive representative of its employees
concerning the procedure for implementing the decision and the
impact of the decision on the employees." Internal Revenue
Service, Austin Service Center, 2 FLRA No. 97 (1980).
Sec. 6(b)(2) and (3) of the Statute provides for negotiation of "(2)
procedures which management . . . will observe in exercising any
authority under this section; or (3) appropriate arrangements for
employees adversely affected . . . . ", and the failure to notify the
exclusive representative violated Sec. 16(a)(1) of the Statute.
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 5 FLRA No. 48 (1981); Department of Health and Human
Services, Social Security Administration, Southeastern Program Service
Center, Birmingham, Alabama, 5 FLRA No. 52 (1981).
However, I do not find any refusal by Respondent PA to negotiate in
violation of Sec. 16(a)(5) of the Statute for the reason that the Union
after notification of PBA 79-38, and subsequent Circulars, made no
request for bargaining on impact and/or implementation. U.S. Department
of Air Force, Norton Air Force Base, A/SLMR No. 261, 3 A/SLMR 175
(1973); Southeast Exchange Service, Rosewood Warehouse, Columbia, South
Carolina, A/SLMR No. 656, 6 A/SLMR 237 (1976). The record shows,
without contradiction, that: a) 50 copies of PBA 79-38 were sent to PA
and distributed to employees in PA; b) that the Circular was circulated
to employees of PA; and c) that a copy of the Circular was posted in
the corridor of PA. From this, it was shown beyond doubt that notice
was in fact given to all employees on, or about, September 26, 1979, of
PBA 79-38. The only reasonable inference which can be drawn, and the
inference which I draw, is that the Union was, in fact, aware of the
Circular on, or about, September 26, 1979. The evidence to the contrary
is apropos only of the fact that Ms. Strong did not personally know of
the Circular on, or about, September 26, 1979, because she was on leave
from October 1 to October 17, and that officers told Mr. Kershaw they
had not received the Circular in their capacity as Union officials, and
Respondents admit that no formal notice was given to the Union. Indeed,
in view of the distribution, circulation and posting of the Circular I
find Ms. Strong's testimony that she did not learn of the Circular until
between October 25 and October 31, although she returned from leave on
October 17, incredible and unworthy of belief. Nor was the Union's
excuse for not requesting bargaining on impact and implementation,
namely, that the program had been implemented by the collection of fees,
at the time the Union admitted knowledge of PBA 79-38, convincing. To
the contrary, although collection of parking fees had commenced, the
paid parking program did not become effective until November 1, 1979,
and, indeed, DOD had by its Instruction issued on September 18, 1979,
already implemented OMB Circular A-118 although final implementation at
the Pentagon was left to WHS. While the Union might have discussed the
collection procedure, PBA 79-38 concerned, in the main, a repetition of
matters specifically subject to OMB Circular A-118 and DOD's Instruction
of September 18, 1979, implementing OMB Circular A-118. For the most
part, matters which General Counsel asserts were appropriate for
negotiation, such as Temporary Parking Area, Lost or Stolen Stickers,
appear first in PBA 79-46, dated October 24, 1979, which Ms. Strong
admitted she received in her capacity as a Union official, and, again,
Union made no request to bargain on impact and/or implementation.
I am aware that the decisions which found a violation of Sec.
19(a)(1) of the Order, or Sec. 16(a)(1) of the Statute, also found a
violation of Sec. 19(a)(6) of the Order, or Sec. 16(a)(5) of the
Statute. Indeed, both in Norton Air Force Base, supra, and in Rosewood
Warehouse, supra, where, as here, no formal notice had been given to the
union, but the union after knowledge failed to request bargaining, the
absence of a request to bargain on impact resulted in dismissal of both
the 19(a)(1) and (6) allegations of the Complaint. Nevertheless, the
failure of Respondents to give Union notice and to afford a reasonable
opportunity to bargain on impact and implementation prior to
implementation of the change does, as well stated by Judge Sternburg, in
San Antonio Air Logistics Center, supra, inherently interfere with,
restrain and coerce unit employees in their right to have their
exclusive representative act for and represent their interests. Indeed,
to relegate Union's right to notice to the point and time of general
dissemination bypasses the Union and for this reason, further, violates
Sec. 16(a)(1) of the Statute. I am aware that DOD in its Instruction,
of September 18, 1979, and in its Directive, of October 11, 1979, which
implemented OMB Circular A-118, made specific provision for consultation
with labor organization with "national consultation" rights but, here,
certainly, no prior notice was given by WHS or by PA to the Union of
WHS's intended implementation; nor, does there appear to have been any
awareness of the obligation to notify the bargaining representative at
the level of exclusive representation prior to final implementation.
See, also, HDL, supra. Accordingly, I recommend that the Authority
issue the following:
ORDER
Pursuant to Sections 5(g)(3) and 18(a)(7)of the Statute, 5 U.S.C.
7105(g)(3) and 7118(a)(7), and Section 2423.29 of the Final Rules and
Regulations, 5 C.F.R. Chapter XIV, Sec. 2423.29, Federal Register, Vol.
45, No. 12, January 17, 1980, the Authority hereby orders that Office of
the Assistant Secretary of Defense For Public Affairs and Washington
Headquarters Services, a field activity of the Office of the Secretary
of Defense shall:
1. Cease and desist from:
a) Failing and refusing to give American Federation of Government
Employees, AFL-CIO, Local 2, the recognized exclusive representative in
the Office of the Assistant Secretary of Defense for Public Affairs
(hereinafter, also, referred to as "Local 2"), adequate notice, prior to
issuance, of any action, including, but not limited to, Building
Circulars, changing or affecting conditions of employment to afford
Local 2 the opportunity to request bargaining on the impact and
implementation of such action prior to its implementation.
b) In any like or related manner interfering with, restraining, or
coercing their employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purpose and provision of the Statute:
a) Post at its facilities in the Office of the Assistant Secretary of
Defense for Public Affairs and in the Office of Washington Headquarters
Services, Pentagon, Washington, D.C., copies of the attached notice
marked "Appendix" on forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by the Assistant Secretary
of Defense for Public Affairs and by the Pentagon Area Administrator,
DOD Building Administrator, Washington Headquarters Services, and shall
be posted and maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. The Assistant Secretary of
Defense for Public Affairs and the Pentagon Area Administrator, DOD
Building Administrator shall take reasonable steps to insure that such
notices are not altered, defaced, or covered by any other material.
b) Pursuant to Section 2423.30 of the Final Rules and Regulations,
notify the Regional Director of Region 3, Room 300, 1133 - 15th Street,
N.W., Washington, D.C. 20005, in writing, within 30 days from the date
of this Order as to what steps have been taken to comply herewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: May 18, 1981
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 give American Federation of Government
Employees, AFL-CIO, Local 2, the recognized exclusive representative in
the Office of the Assistant Secretary of Defense for Public Affairs
(hereinafter, also referred to as "Local 2"), adequate notice, prior to
issuance, of any action, including, but not limited to Building
Circulars, changing or affecting conditions of employment to afford
Local 2 the opportunity to request bargaining on the impact and
implementation of such action prior to its implementation.
Office of the Assistant Secretary
of Defense for Public Affairs
Dated: . . . By: Assistant Secretary
Pentagon Area Administrator
DOD Building Administrator
Washington Headquarters Service
Dated: . . . By: Pentagon Area Administrator This Notice must remain
posted for 60 consecutive days from the date of posting and must not be
altered, defaced or covered by any other material. If employees have
any questions concerning this Notice, or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Federal Labor Relations Authority, Region 3, whose address is: Room
300, 1133 15th Street, N.W., Washington, D.C. 20005, and whose
telephone number is: (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ See Office of the Federal Register, National Archives and Records
Service, General Services Administration, United States Government
Manual 1984/85 (rev. May 1, 1984).
/2/ The Union is the exclusive representative of all nonprofessional
employees of the OASD/PA located in the Washington, D.C. metropolitan
area.
/3/ The Judge made no finding with regard to the allegation in the
consolidated complaint that WHS's conduct violated section 7116(a)(5) of
the Statute.
/4/ See Boston District Recruiting Command, Boston, Massachusetts, et
al., 15 FLRA No. 142 (1984) and Defense Contract Administration Services
Region, Boston, Massachusetts, et al., 15 FLRA No. 143 (1984).
/5/ Compare Boston District Recruiting Command, Boston,
Massachusetts, et al., 15 FLRA No. 142 (1984), wherein neither the
Department of Defense nor the Department of the Army was found to have
prevented its respective subordinates from fulfilling their duty to
bargain, and Department of Health and Human Services, Social Security
Administration, Galveston, Texas District, 10 FLRA 26 (1982), wherein
the Authority concluded that the Respondent Department of Health and
Human Services prevented its subordinate, Region VI, from fulfilling its
bargaining obligation under the Statute.
/6/ The Authority has held that procedures and appropriate
arrangements for employees adversely affected by the establishment of
the paid parking program fall within the duty to bargain. See, e.g.,
General Services Administration, Region 8, Denver, Colorado, 10 FLRA 257
(1982) and Department of Housing and Urban Development, 9 FLRA 136
(1982), n.4.
/7/ Indeed, the applicable record evidence indicates that the Union's
Business Agent was out of town from October 1 through October 17, 1979,
and did not get any official notice until late October after
implementation had already begun. With respect to management's
obligation to notify the designated agent of its employees' exclusive
representative concerning changes in conditions of employment, see
generally, Department of the Air Force, Scott Air Force Base, 5 FLRA 9
(1981) and United States Air Force, Lowry Air Force Base, Denver,
Colorado, 16 FLRA No. 128 (1984).
/8/ Inasmuch as OASD/PA violated section 7116(a)(1) and (5) of the
Statute by failing to notify the Union of a change in conditions of
employment, the Authority finds it unnecessary to pass upon what the
extent of OASD/PA's bargaining obligation would have been if the Union
had been given the opportunity to make a timely request to bargain.
/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/ 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)".
/11/ 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
20 14 "OPM" "OMB"
47 24 "GAO" "GSA"
62 12 "did" "didn't"
74 20 "consultation" "consolidation"
83 19 "Administrative Law "Ms. Hamamura"
Judge Devaney"