[ v22 p875 ]
22:0875(93)CA
The decision of the Authority follows:
22 FLRA No. 93
Case No. 3-CA-664
HEADQUARTERS, DEFENSE LOGISTICS AGENCY
WASHINGTON, D.C.
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2449, AFL-CIO
Charging Party
and
OFFICE OF PERSONNEL MANAGEMENT
Intervenor
Case No. 3-CA-1044
DEPARTMENT OF DEFENSE
WASHINGTON, D.C.
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2449, AFL-CIO
Charging Party
and
OFFICE OF PERSONNEL MANAGEMENT
Intervenor
Case No. 3-CA-1089
DEPARTMENT OF THE ARMY
WASHINGTON, D.C.
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2449, AFL-CIO
Charging Party
and
OFFICE OF PERSONNEL MANAGEMENT
Intervenor
Case No. 3-CA-1090
POST COMMANDER, CAMERON STATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2449, ALF-CIO
Charging Party
and
OFFICE OF PERSONNEL MANAGEMENT
Intervenor
Case No. 3-CA-1091
HEADQUARTERS, U.S. ARMY MILITARY
DISTRICT OF WASHINGTON
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2449, AFL-CIO
Charging Party
and
OFFICE OF PERSONNEL MANAGEMENT
Intervenor
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the General
Counsel; the Charging Party (Union); Respondents Headquarters, U.S.
Army Military District of Washington (MDW) and Cameron Station; and the
Intervenor, Office of Personnel Management. The consolidated complaint,
as amended, alleged that Respondent Defense Logistics Agency (DLA)
violated section 7116(a)(1) and (5) of the Statute by failing to bargain
in good faith with the Union concerning the impact and implementation of
a paid parking program at Cameron Station pursuant to a Government-wide
policy to charge for employee parking. It further alleged that the
other named Respondents violated section 7116(a)(1) and (5) of the
Statute by their interference with the bargaining relationship between
the Union and DLA which resulted in the Union being denied the
opportunity to negotiate concerning the impact and implementation of the
paid parking program prior to implementation at Cameron Station; and
that Cameron Station, MDW and Department of the Army (DOA) additionally
interfered with the bargaining relationship between the Union and DLA by
their acts and conduct in connection with the assessment of parking fees
for two reserved parking spaces assigned to the Union pursuant to its
contract with DLA.
II. Background
The facts are fully set forth in the Judge's Decision. The Authority
notes here, however, that the Union is the exclusive representative for
a unit of DLA employees located at Cameron Station. DLA is a primary
national subdivision of the Department of Defense (DOD), and it is a
tenant of Cameron Station. DOA is a wholly distinct primary national
sub-division of DOD, MDW is a subordinate command within DOA, and
Cameron Station is an activity within, and subordinate to, MDW. Thus,
there is no command relationship between DOA, MDW, and Cameron Station
on the one hand and DLA on the other. Cameron Station, the host
Activity, provides office and warehouse space and support services to
DLA, but has no collective bargaining relationship with the Union.
Similarly, no bargaining relationship exists between the Union and DOD,
DOA or MDW.
III. Judge's Decision
The Judge found that Respondent DLA violated section 7116(a)(1) and
(5) of the Statute by refusing to bargain with the Union concerning the
impact and implementation of the paid parking program at Cameron
Station. The Judge further found that Respondent DOD had not violated
the Statute and recommended dismissal of this portion of the complaint.
As to Respondents DOA, MDW and Cameron Station, who were charged with
violating the Statute by denying the Union an opportunity to negotiate
prior to implementation of the paid parking program and by assessing
parking fees for two reserved spaces assigned to the Union pursuant to
an existing contract with DLA, the Judge found that they had not
violated section 7116(a)(5) of the Statute. However, the Judge
concluded that Cameron Station had violated section 7116(a)(1) of the
Statute by denying the Union an opportunity to negotiate, and that
Cameron Station, MDW and DOA had all violated section 7116(a)(1) of the
Statute for assessing fees.
IV. Positions of the Parties
The parties excepted to various legal conclusions made by the Judge.
In their jointly filed exceptions, MDW and Cameron Station excepted to
the Judge's findings that each had violated section 7116(a)(1) of the
Statute. The Intervenor, Office of Personnel Management, excepted to
the finding of a violation against DLA.
As to the above findings, the General Counsel excepted to the Judge's
failure to find that Cameron Station had violated section 7116(a)(5) of
the Statute by interfering with the bargaining relationship between DLA
and the Union, and to the Judge's failure to conclude that DOD, DOA and
MDW violated section 7116(a)(1) and (5) of the Statute based on their
involvement in denying the Union an opportunity to bargain over the
impact and implementation of the paid parking program.
The only exception filed by the Charing Party was to the Judge's
remedy. The Charging Party urged the Authority to order that all
employees who were charged fees for parking be reimbursed for such
payments.
V. Analysis
The Authority will address the responsibility of each of the
Respondents in turn. First, as to DLA, it is well established that the
duty of an agency under the Statute is to negotiate with an exclusive
representative of an appropriate unit of its employees concerning
conditions of employment affecting them, except as provided otherwise by
Federal law or Government-wide rule or regulation or agency regulation
for which a compelling need exists. The Authority has concluded that
the impact and implementation of a paid parking program concerns unit
employees' "conditions of employment" and falls within the duty to
bargain. /1/ In this case, when the Union learned of the proposed
parking requirements to be implemented at Cameron Station, it requested
negotiations with DLA to resolve the alleged conflict with the parties'
existing collective bargaining agreement and requested to bargain over
matters left to agency discretion under the "Government-wide regulation"
directing the implementation of paid parking programs. In its response
to the Union, DLA refused to negotiate on the ground that it lacked any
authority with respect to the implementation of the paid parking program
at Cameron Station and noted that the MDW Post Commander located at
Cameron Station had the responsibility for implementing the program.
However, 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 in
the bargaining unit." /2/ Thus, DLA failed to meet its bargaining
obligation under the Statute by refusing to negotiate or to obtain duly
authorized representatives of the Agency to negotiate on its behalf with
the Union at the level of exclusive recognition as to matters within the
scope of bargaining. /3/
As for the allegations against Respondent DOD, the Union is not the
exclusive representative of a unit of employees at the DOD level, but
rather is the exclusive representative of units of employees at a
subordinate level within the Agency. Thus, the Authority notes that DOD
had no duty to bargain with the Union prior to issuing internal
directives to subordinate elements concerning the paid parking program.
See Boston District Recruiting Command, Boston, Massachusetts, 15 FLRA
720 (1984), and cases cited therein. Also, in the absence of any
showing that DOD prevented DLA from fulfilling its duty to bargain with
the Union at the level of exclusive recognition, the Authority finds
that DOD has not violated the Statute as alleged. It should be noted,
however, that if DLA had requested DOD's assistance in resolving the
matter and the latter had refused, DOD's conduct would have violated the
Statute. As indicated by the Judge, however, that is not the case here.
We turn next to the allegation that DOA, MDW and Cameron Station
violated section 7116(a)(1) and (5) of the Statute by their actions in
implementing the paid parking program. The Judge found that the only
violation committed was by Cameron Station which interfered with the
rights of DLA employees to exercise their statutory collective
bargaining rights. This conduct was found to be violative of section
7116(a)(1) of the Statute. The Judge found that neither DOA nor MDW had
violated section 7116(a)(1) in this regard and, further, that no
violation of section 7116(a)(5) had been committed by either DOA, MDW or
Cameron Station.
We agree with the Judge's conclusions that none of these Respondents
violated section 7116(a)(5) of the Statute. We note that these
Respondents do not have a collective bargaining relationship with the
Union and therefore could not have violated a nonexistent duty to
bargain. We also agree with the Judge's conclusion that neither DOA nor
MDW engaged in conduct which was violative of Section 7116(a)(1) of the
Statute. However, we disagree with the Judge's finding that Cameron
Station violated section 7116(a)(1). We view Cameron Station's conduct
in implementing the paid parking program as a proper exercise of its
managerial prerogative and find that it has not been established how the
act of implementing the program interfered with any protected rights
under the Statute. There is no showing, for example, that
implementation of the program by Cameron Station prevented DLA from
meeting its bargaining obligations and no showing that Cameron Station
in any way instructed DLA not to meet those obligations.
Finally, we address the allegation that Respondents DOA, MDW and
Cameron Station violated section 7116(a)(1) and (5) of the Statute by
assessing parking fees for two spaces used by the Union. As the Judge
noted in his decision, DLA and the Union had a contractual arrangement
whereby the Union was provided two reserved spaces which it had used
free of charge. Although the contract did not specify that the spaces
were to be used without charge, at the time the agreement was negotiated
there was no question that the spaces were free of charge. Also, OMB
Circular A-118, one of the Government-wide parking regulations giving
rise to the paid parking program, expressly provided that it was not to
be interpreted as rendering null and void any valid negotiated
agreements covering employee parking which were in effect on the
effective date of the Circular, until such time as the agreements
expired. At some point, Cameron Station indicated that parking fees
would have to be assessed for the two parking spaces. The commander of
DLA requested reconsideration of this decision, relying in part upon a
proposed internal DOD directive on parking which provided that valid
agreements were to remain in effect until their expiration, and further
relying upon the agreement between DLA and the Union that the two
reserved Union spaces were to be provided free of charge. /4/ Cameron
Station responded that the Union could retain the use of the two
reserved spaces but that essentially it would have to pay the fees. DLA
repeated its request that Cameron Station reconsider its decision.
Cameron Station then forwarded DLA's two requests to MDW which forwarded
the requests to DOA. In its response, DOA stated as follows:
Any valid, negotiated agreement between installation/activity
commanders and unions in effect on 13 August 1979, that
specifically state(s) free parking will be provided will remain in
effect until the expiration of the agreement . . . . If free
parking is not specifically provided for in the agreement, then it
should not be provided. Commanders may provide reserved parking
spaces or passes that facilitate parking for union
representatives; however, fees should be collected for their use
when the union representative is an official visitor parking over
three hours.
In the meantime, the Union had purchased permits for its two reserved
spaces.
The Judge found that neither DOA, MDW nor Cameron Station had
violated section 7116(a)(5) of the Statute concerning the assessment of
fees for the two spaces. We agree for the reasons set forth in his
decision. We also agree with the Judge's conclusion that DOA and
Cameron Station committed independent violations of section 7116(a)(1)
of the Statute by interfering with the relationship between DLA and the
Union but disagree with his finding as to Respondent MDW. DLA and the
Union had a collective bargaining agreement providing the Union with two
free parking spaces, which agreement was made known to DOA and Cameron
Station by DLA. OMB Circular A-118 itself provided for the continuation
of valid negotiated agreements covering employee parking. Although
aware of these facts, Cameron Station made the determination that fees
would have to be imposed for the spaces in question. Together with DOA,
it subsequently denied requests for reconsideration of that decision and
thereafter imposed such fees contrary to both the contractual commitment
between DLA and the Union and the terms of the OMB Circular. In our
view, such conduct interfered with the Union's right to the use of two
free parking spaces, as contractually agreed upon, thereby unlawfully
interfering with the exclusive bargaining relationship between DLA and
the Union in violation of section 7116(a)(1) of the Statute. MDW, on
the other hand, merely transmitted communications between Cameron
Station and DOA. There is no evidence that MDW itself was involved in
the deliberative process. Therefore, it did not engage in conduct which
interfered with the relationship between DLA and the Union, and this
allegation of the complaint shall be dismissed as to Respondent MDW.
In concluding that DOA and Cameron Station violated section
7116(a)(1) of the Statute by interfering with protected rights of DLA
employees, the Authority has the opportunity for the first time under
the Statute to decide that organizational entities of the same agency
not in the same "chain of command" as the entity at the level of
exclusive recognition may commit violations of section 7116(a)(1) of the
Statute if they are found to have unlawfully interfered with the
protected rights of employees other than their own by taking action
which conflicts with the bargaining relationship between the parties at
the level of exclusive recognition. While this is a case of first
impression under the Statute, such findings are supported by private
sector precedent. Thus, the National Labor Relations Board has decided
with court approval that an employer as defined in the National Labor
Relations Act may be found to have violated certain unfair labor
practice sections of the NLRA with respect to employees other than its
own. /5/ There is nothing in the Statute or its legislative history
which would preclude a similar finding when a component of an agency has
interfered with the protected rights of employees employed by an entity
within a different primary national subdivision of the same agency.
Section 7116(a)(1) of the Statute makes it an unfair labor practice
"for an agency . . . to interfere with, restrain, or coerce any employee
in the exercise by the employee of any right under this chapter(.)"
(Emphasis added.) The term "agency" is defined in section 7103(a)(3) of
the Statute as "an Executive agency" (with various inclusions and
exclusions not here relevant) and, as relevant here, the term "employee"
is defined in section 7103(a)(2) of the Statute as "an individual . . .
employed in an agency(.)" A literal reading of these provisions supplies
clear support for the conclusion that "an agency" which interferes with,
restrains or coerces "any employee" in the exercise of that employee's
protected rights commits a violation of section 7116(a)(1) of the
Statute, even if the agency's actions are not directed at an employee
for which it is the employer at the level of exclusive recognition, as
in this case.
Underlying our holding here is the policy consideration that in our
judgment an agency should not be able to escape liability for conduct
which has unlawfully interfered with, restrained or coerced employees in
the exercise of their rights simply because it is not in the chain of
command with the "employer" at the level of exclusive recognition.
Particularly in this instance, where Cameron Station was responsible for
providing and maintaining a variety of services to DLA and its
employees, including parking facilities, Cameron Station's actions in
assessing parking fees for the two spaces directly interfered with the
contractually agreed upon provision between DLA and the Union, thereby
unlawfully interfering with the rights of DLA employees. The conduct of
DOA similarly interfered with the rights of DLA employees because DOA
was directly involved in the process of causing the fees to be assessed
even though it knew that the collective bargaining agreement between DLA
and the Union provided two free parking spaces to the Union.
We wish to caution, however, that our decision should not be
construed as implying that agencies -- even those with Government-wide
responsibilities -- automatically run the risk of violating the Statute
when regulations relating to conditions of employment of unit employees
are simply promulgated. Rather, our finding here is that when a
component of an agency engages in conduct which unlawfully interferes
with the protected rights of employees of another component, a violation
of section 7116(a)(1) of the Statute will be found to have occurred.
It should also be noted that the reasons leading to the finding of a
violation of section 7116(a)(1) by Cameron Station and DOA would not
apply to a section 7116(a)(5) allegation. Thus, while a party outside
of the chain of command could -- and in this case did -- interfere with
employees' rights by disrupting an agreement between the employees'
exclusive representative and the agency component at the level of
exclusive recognition, that outside party cannot be found to have failed
or refused to negotiate in good faith because, in the absence of a
collective bargaining relationship, no duty to bargain exists and thus
there can be no violation of section 7116(a)(5) of the Statute. This is
consistent with our findings above concerning all the named Respondents
not party to the collective bargaining relationship with the Union.
VI. Remedy
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, /6/ it is unnecessary to order DLA to
negotiate 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. The regulation did not, therefore, leave the amount of the
fees open to "implementation" negoations and the fees would have been
collected regardless of the results of negotiations over implementation
of the program. However, as to the fees paid by the Union for the two
reserved spaces, OMB Circular A-118 essentially permitted the
continuation of valid negotiated agreements, until their expiration,
and, as noted, the agreement between DLA and the Union allowed for two
free spaces. Therefore we find that it will effectuate the purposes and
policies of the Statute to order that the Union be reimbursed for such
fees paid, to the extent that such monies have not already been
refunded.
VII. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision and the entire record in this case, and adopts the
Judge's findings, conclusions and recommended Order, as modified.
We find in agreement with the Judge's conclusion, that Respondent DLA
violated section 7116(a)(1) and (5) of the Statute. /7/ We also agree
with the Judge's conclusion that Respondent DOD did not violate the
Statute. As to the Judge's findings regarding DOA, MDW and Cameron
Station, and their actions in implementing the paid parking program, we
agree that none of these Respondents violated section 7116(a)(5) of the
Statute and that neither DOA nor MDW violated section 7116(a)(1).
However, we find, contrary to the Judge, that Cameron Station did not
commit a violation of section 7116(a)(1) in this regard.
As to the assessment of parking fees for two contractually reserved
spaces, we agree that no violation of section 7116(a)(5) was committed
by DOA, MDW or Cameron Station. We further adopt the Judge's findings
that DOA and Cameron Station violated section 7116(a)(1) of the Statute
by requiring the payment of parking fees for those two spaces, but
disagree with his finding that MDW also violated the Statute in this
regard.
Accordingly, we shall issue the following order for the conduct found
to have violated the Statute and shall dismiss the complaint as to the
matters found not to have violated the Statute.
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:
A. Headquarters, Defense Logistics Agency, shall:
1. Cease and desist from:
(a) Failing or refusing to bargain, upon request, with the American
Federation of Government Employees, Local 2449, AFL-CIO, the exclusive
bargaining representative of its employees located at Cameron Station,
Alexandria, Virginia, concerning the impact and 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 its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Post at Cameron Station copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms they shall be signed by an authorized representative of
Defense Logistics Agency, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including bulletin
boards and other places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure 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, in writing,
within 30 days from the date of this Order, as to what steps have been
taken to comply with it.
B. Department of the Army, Washington, D.C. and Cameron Station
shall:
1. Cease and desist from:
(a) Assessing parking fees for two reserved spaces provided in the
collective bargaining agreement between Headquarters, Defense Logistics
Agency and the American Federation of Government Employees, Local 2449,
AFL-CIO, thereby unlawfully interfering with the bargaining relationship
between the parties.
(b) In any like or related manner interfering with, restraining, or
coercing employees represented by the American Federation of Government
Employees, Local 2449, AFL-CIO and employed by Headquarters, Defense
Logistics Agency, in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purpose and polciies of the Statute:
(a) Reimburse the American Federation of Government Employees, Local
2449, AFL-CIO, for the fees it paid for the two reserved parking spaces
provided in the collective bargaining agreement with Headquarters,
Defense Logistics Agency, to the extent that such monies have not
already been refunded.
(b) Post at Cameron Station copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by an authorized representative of both
the Department of the Army, Washington, D.C. and Cameron Station, and
shall be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to ensure that such Notices are not altered, defaced, or covered
by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, in writing,
within 30 days from the date of this Order, as to what steps have been
taken to comply with it.
IT IS FURTHER ORDERED that the remaining unfair labor practice
allegations in the complaints against Respondents Department of Defense,
Department of the Army, Headquarters, U.S. Army Military District of
Washington, and Cameron Station be, and they hereby are, dismissed.
Issued, Washington, D.C., July 30, 1986.
/s/ JERRY L. CALHOUN
Jerry L. Calhoun, Chairman
/s/ HENRY B. FRAZIER III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL
LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES
THAT:
WE WILL NOT fail or refuse to give notice to and bargain, upon
request, with the American Federation of Government Employees, Local
2449, AFL-CIO, the exclusive representative of our employees located at
Cameron Station, concerning the impact and implementation of any aspect
of a paid parking program which may be established by Government-wide
rule or regulation.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
Headquarters,
Defense Logistics Agency
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: 1111 18th Street, N.W., 7th Floor (P.O. Box 33758), Washington,
D.C. 20033-0758, and whose telephone number is: (202) 653-8500.
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 EMPLOYEES THAT:
WE WILL NOT assess parking fees for two reserved spaces provided in
the collective bargaining agreement between Headquarters, Defense
Logistics Agency and the American Federation of Government Employees,
Local 2449, AFL-CIO, thereby unlawfully interfering with the bargaining
relationship between the parties.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees represented by the American Federation of Government
Employees, Local 2449, AFL-CIO and employed by Headquarters, Defense
Logistics Agency, in the exercise of their rights assured by the
Statute.
WE WILL reimburse the American Federation of Government Employees,
Local 2449, AFL-CIO, for the fees it paid for the two parking spaces
provided in the collective bargaining agreement with Headquarters,
Defense Logistics Agency, to the extent that such monies have not
already been refunded.
Department of the Army,
Washington, D.C.
Dated:
By: (Signature) (Title)
Cameron Station
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 complaince
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, NW., 7th Floor (P.O. Box 33758), Washington, D.C.
20033-0758, and whose telephone number is: (202) 653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 3-CA-664
3-CA-1044
3-CA-1089
3-CA-1090
3-CA-1091
HEADQUARTERS, DEFENSE LOGISTICS AGENCY
and
DEPARTMENT OF THE ARMY
and
DEPARTMENT OF DEFENSE
and
CAMERON STATION
and
HEADQUARTERS, U.S. ARMY MILITARY DISTRICT OF WASHINGTON
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2449, AFL-CIO
Charging Party
and
OFFICE OF PERSONNEL MANAGEMENT
Intervenor
Erick J. Genser, Esq. and
Peter B. Robb, Esq.
For the General Counsel
Doris O. Hildreth
For the Charging Party
Sam Horn, Esq.
For the Department of Defense
and Department of Army
Capt. Helen Sharetts, Esq.
For Cameron Station and Headquarters
U.S. Army Military District of Washington
Thomas P. Rhodes, Esq.
For Headquarters, Defense
Logistics Agency
Stuart M. Foss, Esq.
For the Intervenor,
Office of Personnel Management
Before: FRANCIS E. DOWD
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Labor Relations Statute (the
Statute), 92 Stat. 1191, 5 U.S.C. Section 7101 et seq. It was
instituted by the filing of a Complaint and Notice of Hearing, and Order
Consolidating Case Nos. 3-CA-664, 3-CA-1044, and 3-CA-1089 on April 30,
1980. A Complaint and Notice of Hearing, and Order Consolidating Cases
3-CA-1090 and 1091 was issued on June 18, 1980. As more specifically
detailed in the Index and Description of Formal Documents to General
Counsel Exhibits 7(a) to 7(bb), the Complaints were based on separate
charges filed against each Respondent. An Order Consolidating all the
above mentioned cases and Rescheduling the Hearing was issued on June
19, 1980.
The General Counsel alleges that the Respondents, during the course
of their implementation of President Carter's paid parking program,
violated Section 7116(a)(1) and (5) as follows:
1. Respondent Defense Logistics Agency refused to negotiate with
Local 2449 over the impact and implementation of paid parking at Cameron
Station.
2. Respondent Cameron Station implemented a paid parking program
without giving due consideration to Local 2449's right to negotiate over
its impact and implementation.
3. Respondents Department of Defense, Department of the Army, and
Military District of Washington curtailed Local 2449's statutory right
to negotiate fully over the impact and implementation of the paid
parking program at Cameron Station.
4. Respondents Department of the Army, Military District of
Washington, and Cameron Station unilaterally assessed parking fees to
Local 2449 for two parking spaces assigned to it.
Respondents deny committing any unfair labor practices; their
specific defenses will be discussed later in this decision.
It would also point that this is the sixth and last in a series of
"parking" cases litigated by the General Counsel. Decisions in the
other cases have already been issued by the two Administrative Law
Judges and are pending review by the Authority. Those decisions
rendered by Judge Salvatore Arrigo are as follows: Defense Contract
Administration Services Region, Boston, Massachusetts; Commander, Fort
Devens, Fort Devens, Massachusetts; Defense Logistics Agency,
Washington, D.C.; Department of Defense, Washington, D.C. and National
Association of Government Employees, Local R1-210, Case Nos. 1-CA-212,
1-CA-298, 1-CA-299, and 1-CA-300 (December 22, 1980) (hereinafter
referred to as "DCASR"); Boston District Recruiting Command, Boston,
Massachusetts; 96th U.S. Army Reserve Command, Hanscom Air Force Base,
Massachuestts; 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 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 referred to as "Department of the Army"). Those
decisions issued by Judge William Devaney are as follows: Office of the
Assistant Secretary of Defense for Public Affairs and Washington
Headquarters Services and American Federation of Government Employees,
AFL-CIO, Local 2, Case Nos. 3-CA-718 and 1026 (May 18, 1981)
(hereinafter referred to as "PA"); and Harry Diamond Laboratories,
Department of the Army, and Department of Defense, and American
Federation of Government Employees, AFL-CIO, Local 2, Case Nos.
3-CA-719, 819, and 970 (May 18, 1981) (hereinafter referred to as
"HDL").
At the hearing in Washington, D.C. all parties were afforded full
opportunity to be heard, adduce evidence, examine and cross-examine
witnesses, and argue orally. Thereafter, Respondents, the Intervenor,
/8/ and the General Counsel filed briefs which have been duly
considered.
Upon consideration of the entire record /9/ in this case, from my
observation of the witnesses and their demeanor, and from all of the
testimony and evidence presented at the hearing, I make the following
findings of fact, /10/ conclusions or law, and recommended order.
Findings of Fact
1. Respondent Department of Defense ("DOD") is an agency within the
meaning of Section 7103(a)(3) of the Statute. Respondents Department of
the Army ("DA or DOA") and Headquarters, Defense Logistics Agency
("DLA") each are separate primary national subdivisions of the
Department of Defense within the meaning of Section 2421.5 of the Rules
and Regulations of the Authority. Respondents Headquarters, U.S. Army
Military District of Washington ("MDW") and Cameron Station are
subordinate activities of the Department of the Army within the meaning
of Section 2421.4 of the Rules and Regulations of the Authority.
2. Respondent Cameron Station is under the jurisdiction of MDW;
that is, the Commanding Officer of Cameron Station reports directly to
the Commander of MDW. There is an organizational "chain of command"
that exists from DOD at the top of the chain, to DA, then to MDW, and
finally to Cameron Station. Each "link" reports directly to the
organizational entity immediately above it in the chain.
3. Respondent DLA's Director reports directly to DOD. Respondents
DLA and DA appear on the same level in an organizational chart. DLA is
located on the premises of Cameron Station in alexandria, Virginia and
can be described as a "tenant" of Cameron Station. As the "landlord" of
DLA, Cameron Station provides office and warehouse space to DLA and
customary support services that are normally provided by a landlord to a
tenant.
4. The Charging Party/Union is the American Federation of Government
Employees, Local 2449, AFL-CIO (hereinafter "Local 2449"), a labor
organization within the meaning of Section 7103(a)(4). At all times
material herein, the American Federation of Government Employees,
AFL-CIO has been certified as the exclusive representative of two
separate consolidated units of professional and non-professional
employees of DLA nationwide. Local 2449 at all times material herein
has been designated by the American Federation of Government Employees,
AFL-CIO to act as the exclusive representative for those DLA bargaining
unit employees located at Cameron Station. Official notification of the
delegation of authority authorizing local bargaining unit officials to
act as the exclusive representative for employees in matters of local
concern was transmitted to the Director of DLA on or about May 30, 1979.
5. The organizational relationship of the parties to this
proceeding, as described above, may be summarized and perhaps better
understood by the following chart:
CHART OMITTED
6. The allegations in this case arise from the implementation of a
paid parking program at Cameron Station in the Fall of 1979. The
implementation of the program was the result of government-wide
regulations issued by the Office of Management and Budget (OMB) and the
General Services Administration (GSA) on August 17, 1979 and September
13, 1979, respectively, directing Federal agencies to implement paid
parking at non-exempt facilities (where free parking existed before), as
a means of promoting certain policy goals, e.g., energy conservation and
cleaner air.
7. As a result of orders received on or about October 29, 1979 from
MDW, the Command Officer of Cameron Station proceeded to devise and
implement a paid parking program at that facility. All employees who
worked on the premises of Cameron Station (regardless of the employer)
and who were not exempted were required to pay a $10.00 parking fee for
the month of November to park on the facility. Those non-exempt
employees who had not purchased parking permits by November 10, 1979
were subject to penalties.
8. By letter dated October 9, 1979, DLA forwarded a copy of the GSA
government-wide parking regulation to Local 2449. Subsequent to the
receipt of this letter, the President of Local 2449, Mr. Gus
Apostalakis, sent a letter dated October 16, 1979 to Captain W. I.
Starrett, Jr., Commander of the DLA Administrative Support Unit,
requesting negotiations concerning the paid parking program to be
implemented at Cameron Station. After receiving the letter from Local
2449 dated October 16, 1979, Captain Starrett spoke with Mr. Apostalakis
over the telephone and informed him of his position that he (DLA) did
not have authority to enter into negotiations over the matter. Captain
Starrett then put this position in writing to Mr. Apostalakis in a
letter dated October 18, 1979.
9. After Mr. Apostalakis received this letter, Mr. Apostalakis and
Captain Starrett had another discussion, and it was agreed that the
parties would meet to discuss the matter. Officials of Local 2449
thereafter met with Captain Starrett and another DLA official on October
19, 1979. At this meeting, Local 2449 officials again requested to
negotiate, but Captain Starrett refused, reiterating his position that
he had no authority to negotiate the matter. Captain Starrett explained
that he wasn't in a position to negotiate because DLA was a tenant on a
MDW post. Throughout this meeting, Captain Starrett took the position
that the purpose of the meeting was a consultation session rather than a
negotiating session.
10. After this meeting, Captain Starrett sent a memo to the Post
Commander of Cameron Station dated October 19, 1979 requesting a meeting
and information regarding the paid parking program. In his memo,
Captain Starrett made reference to the contract between DLA and Local
2449 and to "our obligations to our work force and the Union." Captain
Starrett was uncertain as to whether he ever specifically communicated
Local 2449's desire to negotiate to Cameron Station, but he was sure he
had at least expressed the Union's concern during informal discussions.
Accordingly, I find that Cameron Station was never presented with a
specific request to bargain.
11. On November 11, 1979, Local 2449 filed an unfair labor practice
charge against DLA alleging a refusal to bargain, copies of which were
served on General Post, Captain Starrett and Mr. Frank Scutch.
12. On November 1, 1979, a meeting was held between Cameron Station
and DLA officials at which time Cameron Station requested that DLA
assist in the collection of parking fees from DLA employees. DLA
officials agreed to assist in collecting the fees for the month of
November. A memo was then issued by Captain Starrett to all DLA
personnel at Cameron Station on or about November 2, 1979, detailing the
DLA parking fee collection system for the month of November. Actually,
DLA had devised this plan prior to the meeting with Cameron Station
officials on November 1, 1979. Captain Starrett correctly had
anticipated Cameron Station's request for assistance, and therefore
asked the DLA Resource Management Officer to develop a fee collection
system a few days prior to November 1, 1979. DLA did not meet with
Local 2449, however, prior to developing the fee collection procedures
for November. The fee collection method was determined without allowing
Local 2449 to provide any input.
13. Captain Starrett did call Peter Morgus, (who was acting
president of Local 2449 at the time) shortly after November 1 to inform
Mr. Morgus that DLA would collect parking fees from employees for the
month of November. /11/ Mr. Morgus voiced his objection to Captain
Starrett, noting that Local 2449 had attempted to negotiate the impact
and implementation of paid parking at Cameron Station. Captain Starrett
responded by stating only that DLA had to do it; he did not inform Mr.
Morgus of the collection procedures that were to be used or provide an
opportunity for Mr. Morgus to submit comments. Mr. Morgus subsequently
received the memo concerning the parking fee collection system on or
about November 5, 1979 through the normal employee distribution system.
14. On or about November 8, 1979, Mr. Morgus, who was still acting
as President of Local 2449, sent a letter to Captain Starrett regarding
two parking spaces assigned to Local 2449 in accordance with Article
XXXIX of the contract between DLA and Local 2449. The letter expressed
the opinion that the two spaces should not be subject to a parking fee
and warned that imposition of a fee would be regarded as abrogation of
the contract. Captain Starrett agreed with Mr. Morgus that the two
spaces assigned to Local 2449 pursuant to the contract were not to be
charged a fee, and informed Mr. Morgus of his concurrence with this
position by letter dated November 26, 1979. In his deposition, Captain
Starrett stated that he was only expressing his personal opinion.
15. Captain Starrett then wrote to Colonel Briggs, the Post
Commander of Cameron Station, on or about November 26, 1979, requesting
that Colonel Briggs reconsider his decision to assess parking fees to
Local 2449 for these two spaces. /12/ Captain Starrett's letter
indicated that the bargaining history and intent of both Local 2449 and
DLA was that these spaces were to be free spaces, and that OMB Circular
A-118 stated that any contract provision covering employee parking in
effect as of August 13, 1979 shall remain in effect until the expiration
of the agreement (G.C. Exh. No. 5). The Deputy Post Commander responded
to Captain Starrett's letter, informing Captain Starrett that the two
spaces assigned to Local 2449 were subject to the parking fees (G.C.
Exh. No. 17). Colonel Briggs made the determination of his own at this
time that the spaces were not to be free spaces (Tr. 80). Subsequently,
on December 11, 1979 and again on December 12, 1979, Cameron Station
Security Police issued a parking citation to an official of Local 2449
who had parked in one of the two assigned spaces without a valid permit
(G.C. Exh. No. 12). Local 2449 officials thereafter purchased permits
for the two assigned spaces.
16. Captain Starrett subsequently wrote another letter to Colonel
Briggs on or about January 25, 1980, attempting once again to have
Colonel Briggs reconsider his decision to assess fees for the two spaces
assigned to Local 2449. Sometime after receipt of this letter, Colonel
Briggs transmitted both letters from Captain Starrett concerning the two
spaces to MDW for a legal interpretation. The request for a legal
interpretation was then forwarded to the Department of the Army, who, in
turn, responded on March 28 that the two spaces assigned to Local 2449
pursuant to the collective-bargaining agreement were not to be exempt
from the parking fees (TR. 81, 82; Resp. Cameron Station Exh. No. 1).
Local 2449 has continued to purchase permits for the two spaces since
receiving the parking tickets in December 1979.
(Involvement of DOD, DA, and MDW) /13/
17. Respondent DOD and Department of the Army's involvement with the
implementation of the paid parking program dates back several months
prior to October 29, 1979, when Cameron Station was directed to begin
collecting parking fees. Mr. Francis B. Roche of the Office of the
Assistant Secretary of Defense for Manpower, Reserve Affairs and
Logistics chaired a DOD working group charged with the responsibility of
working out the details of the program within DOD. The Department of
the Army had various individuals on this committee as representatives.
18. As early as April 1979, Mr. Roche sent a draft OMB circular to
DOD components for comment. Mr. Roche then consolidated the comments
received from DOD components and forwarded them to OMB in June 1979. By
mid-July 1979, it was known to DOD (and to the Department of the Army
through its representatives on the DOD working group) what direction the
final parameters of the OMB circular would take.
19. Based on this knowledge, and its previous involvement, DOD
approached OMB and reached an agreement with OMB whereby DOD real estate
units would appraise the parking facilities at DOD component activities
to arrive at a figure for parking charges at each facility. Having
reached this agreement to conduct its own appraisals, DOD then met with
officials from OMB and GSA in late July 1979, at which time DOD was
given four general guidelines to use in conducting the appraisals.
Neither OMB nor GSA, however, gave DOD instructions on specific
appraisal techniques to be used.
20. After receiving permission to conduct its own appraisals, DOD
directed its real estate appraisers on or about August 3, 1979 to take
immediate steps to determine the rates to be charged for
Government-furnished employee parking at military installations (G.C.
Exh. No. 28). An appraiser from the Army Corps of Engineers then
conducted an appraisal survey and, using his subjective judgment, based
on nothing more definitive than "commonly accepted appraisal
techniques", determined a value for parking at Cameron Station (G.C.
Exh. No. 29). The completed survey form indicates that the appraiser
went outside the area surrounding Cameron Station as there are no known
commercial parking facilities nearby. At no time did DOD notify the
Unions that it was carrying out the appraisal.
21. DOD (through the efforts of Mr. Roche) then developed draft
parking regulations of its own which were sent to component activities
for comment, including the Department of the Army, on or about September
18, 1979 (G.C. Exh. No. 26). Subsequently, on or about October 11, a
DOD parking directive was issued to component activities (including the
Department of the Army) which contained DOD procedures for implementing
the Government-wide parking regulations (G.C. Exh. No. 27). No
substantive changes were made in the October 11, 1979 document from the
September 18, 1979 draft.
22. The October 11, 1979, DOD parking directive did, however, go
beyond the Government-wide regulations in certain significant respects.
Beyond the paramount consideration of the fee, which was not contained
in the OMB or GSA regulations, DOD made an administrative determination
to limit free visitor parking to 3 hours which was then binding on
subordinate activities. Further, in a series of questions and answers
which were attached to the DOD directive, a policy limiting rebates was
outlined (G.C. Exh. No. 27).
23. The DOD parking directive was a regulation that directed, among
others, the Department of the Army to implement the paid parking program
at its installations. In implementing the program, the Department of
the Army, through Lt. Colonel Paul T. Gerard, Jr., devised its own set
of implementing instructions to guide its subordinate activities. These
implementing instructions took the form of a revision to already
existing Army Carpooling and Parking Regulations (G.C. Exh. Nos. 23, 24,
25).
24. Colonel Gerard began working on the Department of the Army's
revised parking regulations in September 1979. Prior to this, however,
Colonel Gerard was a Department of the Army representative on the DOD
working group concerned with the paid parking program. His involvement
with the program included a review of the draft DOD directive sometime
in August or the first part of September 1979 and a subsequent
submission of comments upon the completion of this review.
25. Upon receipt of the DOD directive on October 12, 1979, a message
was drafted and sent to affected Army installations on October 15, 1979.
This message directed affected installations (including Cameron
Station) to implement a paid parking program by November 1, 1979 and
included the fee to be charged (G.C. Exh. No. 13).
26. Colonel Gerard then finalized the draft of the revised
Department of the Army parking regulations he had been working on and
sent a copy of the draft to MDW and Cameron Station on October 17, 1979
(G.C. Exh. No. 21). Two days later an advance copy of the revised
parking regulation was forwarded to MDW and Cameron Station (G.C. Exh.
22). The Department of the Army's parking regulation contained
provisions of the DOD directive which went beyond the contents of the
Government-wide regulations, including the limitations on visitor
parking and parking fee rebates. There is no evidence, however, that
the Department of the Army ever sent its parking regulation to Local
2449 for review and/or discussion.
27. MDW thereafter drafted a Letter of Instruction (LOI) to guide
installations within its jurisdiction in implementing the paid parking
program (G.C. Exh. No. 19). These instructions were developed pursuant
to the DOD directive and the Department of the Army regulations and were
then sent to Colonel Briggs at Cameron Station. The MDW Letter of
Instruction, like the DOD and Department of the Army regulations, was
never submitted to Local 2449, nor did MDW conduct negotiations with
Local 2449 concerning MDW's implementing instructions. It should be
noted, however, that MDW did provide copies of the LOI to Union
representatives with which MDW holds exclusive recognition at a meeting
on October 26, 1979.
Discussion and Conclusions of Law
A. The Effect of Government-wide and Agency Regulations
In my judgment, no useful purpose would be served in exploring ab
initio this particular subject which has already been treated fully by
Judge Arrigo in DCASR Boston, supra., and adopted by Judge Devaney in
HDL, supra. Judge Arrigo's conclusions and reasoning, which I adopt,
are as follows:
"There is no contention that the OMB and GSA regulations on
paid parking are negotiable matters. Indeed, it is clear that
these regulations are Government-wide regulations within the
meaning of Section 7117(a)(1) of the Statute, and, as such, no
duty to bargain is required regarding the subject matter contained
therein. However, the OMB parking regulation, while setting forth
various specific instructions on paid parking, required GSA and
all agencies to issue instructions relative to the implementation
of the OMB regulation. DOD was, therefore, obligated to adopt the
specific requirements of OMB and GSA but, nevertheless, was left
discretion as to various practices and procedures relating to the
implementation of the OMB and GSA regulations.
"Sections 7117(a)(2) and (3) of the Statute govern an agency's
duty to bargain with a union with regard to matters encompassed by
agency wide regulations. Thus, under the Statute, an agency or a
primary national subdivision of an agency is obligated to bargain
with a union regarding matters encompassed by their regulations
only where the union represents the majority of employees in the
agency or primary national subdivision, or when the Authority has
determined under 7117(b) of the Statute that no compelling need
exists for the regulation . . .
"In the case herein DOD's parking regulation of October 11,
1979 and DOA's regulation of October 19, 1979 were applicable to
all their subordinate bodies and I conclude the DOD regulation was
an 'agency' regulation and the DOA regulation was a regulation
issued by a 'primary national subdivision of such agency' within
the meaning of Section 7117(a)(3) of the Statute. Further, the
Union herein does not represent a majority of the employees in DOD
or DOA nor has the Authority determined that no compelling need
exists for the DOD or DOA regulations in effect, the issue having
never been presented to the Authority for such a determination.
Accordingly, I conclude that prior to their issuance, neither DOD
nor DA was obligated to bargain . . . regarding the matters which
were the subject of the parking regulations referred to herein.
"However, the DOD and DOA regulations were not self
implementing. Rather, in order to be effectuated, components
subordinate to DOD and DOA were required to implement them as they
would affect employees within their jurisdiction. The regulations
did not provide for all possible contingencies and, therefore,
various area of discretion were left to the judgement of
management at the level of actual employee location and union
representation.
"The Authority has held in National Treasury Employees Union,
Chapter 6 and Internal Revenue Service, New Orleans District, 3
FLRA No. 119, that 'to the extent that an agency has discretion
with respect to a matter affecting conditions of employment of its
employees, that matter is within the duty to bargain of the
agency.' Clearly, the paid parking program at the Facility is a
condition of employment. Accordingly, I conclude that management
was obligated under the Statute to negotiate . . . to whatever
extent management had discretion under applicable Government-wide
and agency regulations in the implementation of the paid parking
at the Facility." (DCASR, supra, pp. 12-14) (footnotes omitted) To
like effect, see, also, Boston District, supra; Department of the
Army, supra.)
The effect of the foregoing, as applied to the instant case, is that
the regulations issued by DOD and DA were agency regulations, and that
MDW and Cameron Station had discretion in their implementation.
B. Whether the Compelling Need for an Agency Regulation
May be Litigated in a Section 7116 Proceeding.
The General Counsel asserts that Local 2449 may challenge the
validity of agency regulations as a bar to negotiations in an unfair
labor practice proceeding and it is not limited to raising such
challenge in a negotiability proceeding. I disagree. This contention
previously was rejected by Judge Arrigo in Boston District, supra, and
by Judge Devaney in HDL, supra. I also rejected this contention
recently in Defense Logistics Agency et al, 1-CA-213, OALJ-81-131 (July
7, 1981). In reaching this conclusion I adopted Judge Arrigo's views
and supplemented them with additional reasoning of my own. Since these
views are applicable herein, and are dispositive of General Counsel's
contentions, I shall quote them as follows:
Section 7117 of the Statute has the effect of removing from the ambit
of collective bargaining those matters which are the subject of a
government-wide or agency-wide rule or regulation under certain
circumstances. Thus, Section 7117 states as follows:
"Section 7117. Duty to bargain in good faith; compelling
need; duty to consult
"(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
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.
The regulations prescribed by the Authority are set forth in Part
2424 of the Rules and Regulations. There is no dispute that the Unions
herein failed to utilize the procedures established by the Board to
resolve issues concerning "compelling need."
Respondent contends that Section 7117 of the Statute is a bar to
negotiations because DLAR 5500.1 is an agency-wide regulation and the
Authority has not made a determination that "no compelling need" exists
for the regulation. I find merit to this defense. Indeed, I
specifically find and conclude that Part 2424 of the Rules and
Regulations is the exclusive procedure wherein the Authority may
determine whether compelling need exists for an agency-wide regulation.
To begin with, a literal reading of the statutory language makes
clear that it is "only if the Authority has determined" (past tense)
that no compelling need exists for an agency-wide regulation that the
duty to bargain even arises. Thus, an initial determination by the
Authority pursuant to its prescribed procedures is a condition precedent
which must be satisfied before a determination can be made that a duty
to bargain in fact exists. The Authority's function under Section 7117
is to determine whether the agency-wide regulation is a bar to
negotiations. Stated differently, the Authority's role is to resolve a
"negotiability" issue; its role is not to resolve the underlying
"obligation to bargain" in the same proceeding.
The General Counsel contends, however, that the issue of "compelling
need" may be resolved in an unfair labor practice proceeding. I reject
this contention for the same reasons stated by Judge Arrigo in Boston
District Recruiting Command, Boston, Massachusetts, Case No. 1-CA-206
et. al, OALJ-81-023, at pp. 13-15, (December 22, 1980). In that case,
Judge Arrigo concluded as follows:
Counsel for the General Counsel also suggests . . . 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 Cousnel as a
party.' Accordingly, to combine a compelling need determination
with an unfair labor practice proceeding, where the General
Counsel has the responsibility of presenting the evidence in
support of the complaint and carries the burden of proving the
allegations of the complaint, would run contrary to Statutory
prohibition. Therefore, Counsel for General Counsel's contention
is rejected." (footnote omitted).
Therefore, based upon the foregoing reasoning, I conclude that the
Authority does not even have the option of litigating the compelling
need issue in a Section 7116 proceeding where the General Counsel is a
party.
When the Union first learned of the issuance of this agency-wide
regulation, it could have sought a determination by the Authority on the
compelling need issue. Regardless of which way the Authority decided
the case, it is my opinion that its decision would have removed an
impediment to meaningful negotiations and may have assisted in paving
the way to voluntary settlement of the unfair labor practice issues.
Even if a Section 7116 proceeding could not be avoided altogether, the
issues to be litigated might well be narrowed and simplified. In short,
the Statutory scheme of providing an expedited forum before the
Authority, without the presence of the General Counsel, makes sense.
In an excellent brief filed by Counsel for the General Counsel, the
contention is made that the compelling need aspects of Section
7116(a)(2) are only applicable in cases where an agency invokes an
existing rule or regulation as a bar to negotiations. It is argued that
the present case should be viewed as a unilateral change (or revision)
of an existing regulation. Accordingly, it is argued that this issue
may be litigated in a Section 7116 proceeding and that "the compelling
need provisions of the Statute are in reality not applicable to the
facts of this case." I disagree. The problem with this theory is that
its practical effect is to prevent an agency "from acting at all", that
is, issuing a regulation containing a change in conditions of
employment. Moreover, under this theory, even if an agency informed a
Union and proposed putting into effect an agency-wide regulation, and
the Union failed to seek a compelling need determination from the
Authority, the agency still would be required to act at its peril and
risk the allegation that it violated the Act, if it decided to make the
regulation effective notwithstanding the Union's inaction. While it is
true that the legislative history does not envision that an agency may
unilaterally remove issues from the bargaining table merely by issuing
regulations, it does not follow that an agency is prohibited from acting
at all. Section 7117(b)(1) and (2) clearly contemplate that agencies
may issue regulations prior to their being put to a compelling need
challenge. Thus, Section 7117(b)(1) refers to an exclusive
representative challenging a regulation "which is then in effect" and
Section 7117(b)(2)(A) refers in the past tense to an agency "which
issued" the rule or regulation. It follows, therefore, that the
Authority is not deprived of jurisdiction in a Part 2424 proceeding
simply because the agency regulation involves a "unilateral" change.
Furthermore, if a union were permitted to litigate compelling need
issues in an unfair labor practice proceeding with the aid of the
General Counsel, it would mean the union had a choice of forums and
could choose to by-pass the expedited forum designated by the Authority
in Part 2424 of the Rules and Regulations. I concede that Sections
2423.5 and 2426.5 of the Rules and Regulations may raise some doubt as
to my interpretation. However, I believe that the last sentence in
those sections is intended to reserve to the Authority exclusive
jurisdiction of (1) all compelling need issues and (2) those
negotiability issues which, because no action has been taken, may not
form the basis for a possible unfair labor practice and therefore may
not be litigated in a Section 7116 proceeding. I further note than even
in cases where a party elects to file a negotiability petition and is
referred by the Authority to a Section 7116 proceeding it is because (1)
the Respondent denies any changes occurred or (2) resolution of the
dispute is dependent upon the resolution of the dispute is dependent
upon the resolution of factual issues related to the parties' conduct,
both of which are more related to the underlying obligation to bargain.
National Treasury Employees Union and NTEU Chapter 66, 6 FLRA No. 16.
Since neither of these situations obtains here, I believe the Authority
could have made a "compelling need" determination had the Union only
invoked the expedited procedures of Part 2424.
Finally, I would observe that, in the absence of a clear delegation
from the Authority, I am reluctant to assume that I have the authority
to make compelling need determinations in an unfair labor practice
proceeding. And, unless I have that authority, an agency will be
foreclosed from ever obtaining such a determination since, as noted
above, it cannot initiate a petition for review under Section 2424.2 of
the Rules and Regulations. The net result of this discussion is that
the agency regulation is a bar to negotiations.
C. Respondent DLA's Obligation to Negotiate the Impact and
Implementation of Paid Parking
1. As noted above, the DOD and DA regulations were not self
implementing. In order to be effectuated, components subordinate to DOD
and DA were required to implement these as they would affect employees
within their jurisdiction. DLA had a duty to notify Local 2449 and
bargain upon request concerning the impact and implementation of the
paid parking program because DLA is the Activity with which Local 2449
had a contract and for whose employees Local 2449 was the exclusive
representative.
2. Local 2449, through its President, made a timely request to
bargain which was refused by DLA through its agent, Captain Starrett.
By such conduct, DLA violated Section 7116(a)(1) and (5) of the Statute.
3. Respondent DLA's principal defense is that it was only a tenant
at Cameron Station and therefore lacked the authority to bargain about
this particular subject matter. There is a significant difference,
however, between an agent lacking authority and an agent not having an
obligation to bargain. In a recent negotiability decision, /14/ the
Authority rejected an Agency argument that it had no duty to bargain
because it was inappropriate for negotiations to proceed at the local
level since it intended to retain authority over such matters at the
Agency level. The Authority held that the Agency's allegations "does
not relate to the bases for finding that a proposal is not within the
duty to bargain under Section 7117" and, further, that Section
7114(b)(2) includes the obligation for an agency to be represented at
negotiations "by representatives who are empowered to negotiate and
enter into agreements on all matters within the scope of negotiations"
in the bargaining unit. In other words, the Authority correctly pointed
out the Agency that the obligation to bargain encompassed the obligation
to appoint representatives who are empowered to negotiate. Respondent's
defense is accordingly rejected. It was incumbent upon DLA to obtain
the requisite authority for itself or arrange for bargaining between
Local 2449 and an agency empowered to negotiate. While it is not my
responsibility to suggest how this could be accomplished I feel
compelled to observe that a chain of command is a two-way street. It
can be utilized from top to bottom for issuance of circulars,
regulations, directives, and LOI; it can be used in reverse order for
transmitting input to higher echelon and for obtaining advisory
opinions, as was done in this case by Colonel Briggs who sought advice
as to whether Local 2449's revised parking speces were "free." In like
manner, why couldn't DLA request its immediately higher level
organization DOD to ensure that DOD instructs its agent DA, to instruct
its agent MDW, to instruct its agent Cameron Station, to make
appropriate arrangements whereby another DOD agent (DLA) is not left
holding the bag with no authority to negotiate on the subject of paid
parking? If the facts were different and it were shown that DOD refused
a request from DLA to intervene for the purpose of resolving this
conflict, I would agree that DOD should share liability for DLA's
violation either as a joint tortfeasor or on a principal-agent theory.
However, that does not appear to be the case.
D. Respondent Cameron Station's Implementation of the Paid
Parking Program was a Violation of Section 7116(a)(1)
but not Section 7116(a)(5).
Respondent Cameron Station implemented the paid parking program at
its facility through the issuance of formal memoranda to employees
located at Cameron Station (G.C. Exh. Nos. 14, 15). It is undisputed
that these memoranda were issued without prior notice to the Union, but
a legal issue which must be resolved is whether or not Cameron Station
had any legal obligation to provide Local 2449 with such notice. While
the desire on the part of Local 2449 to bargain was not specifically
made known to Cameron Station, the Post Commander was nevertheless aware
of the fact that a labor organization represented a group of DLA
employees located on his post that would be affected by paid parking. A
letter was sent to Colonel Briggs, the Post Commander, dated October 19,
1979, which noted that paid parking would have implications for the
contract between DLA and Local 2449 (G.C. Exh. No. 4). Notwithstanding
such knowledge, Cameron Station implemented the paid parking program
which immediately affected DLA and its employees.
The General Counsel contends that Cameron Station inhibited the
collective bargaining process by acting without giving due consideration
to Local 2449's right to negotiate over the impact and implementation of
the paid parking program. On the factual situation presented herein, I
am constrained to find that Cameron Station violated Section 7116(a)(1)
because its conduct did in fact, interfere with the rights of DLA
employees to exercise their collective bargaining rights set forth in
the Statute. However, I am persuaded that this same conduct constitutes
a violation of Section 7116(a)(5) which makes it an unfair labor
practice for an agency "to refuse to consult or negotiate in good faith
with a labor organization as required by this chapter." The principal
reason for my reaching this conclusion is that Cameron Station does not
owe any duty to bargain to Local 2449 since it does not have an
exclusive representative relationship with Local 2449. It is only when
an agency has an obligation to bargain that it also has the concomitant
obligation to provide a Union with adequate advance notice of a change
in conditions of employment so that the Union has a reasonable
opportunity to request negotiations.
I agree with the position taken by Intervenor in its excellent
brief in the HDL case that Naval Air Rework, as Executive Order case, is
of doubtful validity by virtue of the enactment of the Statute. In any
event, it is not applicable herein because Cameron Station is not in the
same chain of command and therefore is not a higher level part of
"agency management" vis-a-vis DLA. Nor can Naval Air Rework be relied
upon as a defense to my finding of a Section 7116(a)(1) violation for
even though it is a subordinate activity of DOD and therefore an agent
of DOD, its conduct was not "ministerial" when it implemented the paid
parking program. Thus, close analysis discloses that Cameron Station
simply does not occupy a position similar to either the agency or
activity in Naval Air Rework. In fact, Cameron Station is a third party
vis-a-vis its relationship to DLA and Local 2449 who have a contractual
relationship. Essentially what I am deciding is that a third party
cannot stand in the shoes of a contractual party and be said to have
violated Section 7116(a)(5) but this does not mean that its conduct
cannot independently constitute interference with a contractual
relationship in violation of Section 7116(a)(1).
E. Whether DOD, DA and/or MDW Share in Cameron Station's
Liability for Violating Section 7116(a)(1).
In my opinion, DOD and DA clearly are free of any liability. There
agency regulations were a bar to negotiations. The responsibility for
implementing these regulations was with subordinate activities like MDW
and Cameron Station and it is their conduct which was at issue. I agree
with the General Counsel that MDW's regulation does not fall within the
purview of an agency regulation within the meaning of Section 7117. But
I fail to see why MDW should be saddled with an unfair labor practice by
virtue of Cameron Station's conduct simply because it is a higher level
activity in that chain of command, unless the Authority decides to use
the single employer theory. I am not persuaded by the evidence that MDW
required Cameron Station to act as it did in precipitously implementing
the paid parking program. In my view, Cameron Station had considerable
discretion in implementing the program; it was a free agent and is
solely responsible for its conduct. Indeed, the arguments in General
Counsel's brief (at p. 15) explaining why Cameron Station's actions were
not "ministerial" is precisely the reason why it alone is responsible
and why MDW cannot be held to share liability.
In concluding that DOD, DA, and MDW are free from liability, I would
be remiss if I did not point out that a different conclusion was reached
by Judge Arrigo in DCASR Boston, supra, a similar situation involving a
landlord (Ft. Devens) and a tenant (DCASR), each in a different chain of
command, but with each having DOD at the top of the chain. Judge Arrigo
concluded that "DOD, as the parent organization of all these subordinate
activities and a moving party through the issuance of its parking
regulations, was inextricably involved in the situation" and further,
that only DOD "has the authority to resolve the predicament in which it
was enmeshed" with its subordinate components which Judge Arrigo
characterized as a "joint enterprise".
While I do not disagree with Judge Arrigo's approach in DCASR, I
reach a different conclusion because I feel compelled to do so by the
Authority's continued adherence to the doctrine enumciated by the
Federal Labor Relations Council's in Naval Air Rework which (1) did not
consider utilizing a single employer concept and (2) did not treat the
lower level activity as an agent/accomplice to the unfair labor practice
committed by the parent agency at a higher organizational level.
Instead, Naval Air Rework viewed the conduct of each activity in
isolation from the other when the Council stated that the "acts and
conduct of agency management at a higher level of an agency's
organization may provide the basis for finding a violation of any part
of Section 19(a) of the Order by 'agency management,' but may not,
standing alone, provide the basis for finding a separate violation by
'agency management' at a lower organizational level of the agency where
a unit of exclusive recognition exist." (Emphasis in original). In
reaching my conclusions in the instant case concerning the respective
liability of the named Respondents I have, in effect, followed the
Council's "standing alone" test.
These paid parking cases of Judges Arrigo, Devaney, and myself
present novel legal issues and are significant in that they aptly
illustrate what has been described as "the problem of identifying the
proper respondent." /15/
F. Respondent Cameron Station Violated Section 7116(a)(1)
By Unilaterally Assessing Parking Fees To Local 2449 For
The Two Spaces Assigned To It
Local 2449 had been assigned two parking spaces at Cameron Station
pursuant to Article XXXIX of the contract between Local 2449 and DLA.
Upon implementation of the paid parking program, and prior to November
26, Colonel Briggs of Cameron Station assessed parking fees for these
two spaces and officials of Local 2249 received parking tickets for
parking in the spaces without having purchased a parking permit.
Officials of Local 2449 have purchased monthly permits since receiving
these tickets. The General Counsel contends that assessment of these
fees ignored the valid contractual agreement in effect between Local
2449 and DLA and therefore violates the Statute.
OMB Circular No. A-118 expressly states that the policy to institute
parking fees was not to be interpreted to render null and void any valid
negotiated agreement covering any provision of employee parking in
effect on the effective date of the Circular (G.C. Exh. No. 8). Article
XXXIX of the contract thus remained in full force and effect upon the
implementation of the paid parking program and Cameron Station could not
change it anymore than DLA could. Moreover, the contracting parties
themselves -- DLA and Local 2449 -- both regarded Article XXXIX as
providing two free spaces, (I need not decide whether their
interpretation was correct). This mutual interpretation of the
agreement was communicated to Colonel Briggs by Captain Starrett in two
different letters. Notwithstanding the position of the two parties to
the contract, Colonel Briggs unilaterally determined that Local 2449
should pay for these spaces. This action by Colonel Briggs is a blatant
abrogation by an outside third party of a term and condition of
employment agreed to between the two parties to a valid collective
bargaining agreement.
In my opinion, it would effectuate the purposes of the Federal
Service Labor-Management Relations Statute to protect this collective
bargaining relationship from interference by a third-party government
agency. Accordingly, I concluded that Cameron Station violated Section
7116(a)(1) by interfering with the collective bargaining relationship of
DLA and Local 2449. However, I do not find this conduct also violated
Section 7116(a)(5) for the same reasons discussed earlier.
The foregoing unfair labor practice took place prior to the November
26 letter from Captain Starrett requesting reconsideration by Colonel
Briggs of his decision. Thereafter, in January, Captain Starrett again
wrote a letter requesting reconsideration. At the hearing, the General
Counsel learned for the first time /16/ that Colonel Briggs -- after
receiving Captain Starrett's second letter -- sent both of Captain
Starrett's letters to MDW for a legal interpretation. This request was
in turn forwarded to DA which responded in March that the Union's
reserved parking spaces were not free. Thus, we have a situation where
an unfair labor practice in November 1979 continued in effect through
March 1980 at which time it could very well have ceased at the direction
of higher authority had DA concluded that Cameron Station had acted
improperly in the first instance. Such a conclusion by DA surely would
have permitted it to escape liability (1) by not joining in the unfair
labor practice and (2) by ordering Cameron Station to cease requiring
the Union to pay for the parking spaces. Instead, DA (the principal)
chose to place its stamp of approval on the conduct of Cameron Station
(its agent) and by allowing the unlawful interference to continue, DA
thereby condoned Cameron Station's unlawful conduct. It follows from
this that DA also violated Section 7116(a)(1) by interfering with the
contractual relationship of DLA and Local 2449, by requiring Local 2449
to continue paying for the reserved parking spaces. Finally, turning
now to MDW, I think it would ill behoove MDW to defend its role in this
incident by asserting that it was merely a middleman or conduit between
Cameron Station and DA. It played a part in this process -- as
principal or agent or both -- and should not be permitted to escape
liability. I find that MDW also violated Section 7116(a)(1).
G. Summary
Having found that Department of Defense did not violate the Statute I
recommend that the Complaint be dismissed as to it. Having found no
violations of Section 7116(a)(5) against any Respondent, except DLA, I
recommend dismissal of the allegations against all other Respondents.
Having found that Headquarters, Defense Logistics Agency violated
Section 7116(a)(1) and (5) by refusing to bargain with Local 2449 of
AFGE, about implementation of the paid parking program I recommend the
Authority issue a separate Order applicable to this Respondent, as set
forth below.
Having found that Department of the Army, Headquarters, U.S. Army
Military District of Washington, and Cameron Station each violated
Section 7116(a)(1) by interfering with the contractual relationship
between Headquarters Defense Logistics Agency and AFGE Local 2449, and
in the interest of not unduly complicated this decision with individual
tailored orders and notices, I recommend that these Respondents only be
required to sign one Notice to Employees, as set forth below.
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
Headquarters, Defense Logistics Agency shall:
1. Cease and desist from:
(a) Refusing to negotiate in good faith with the American
Federation of Government Employees, Local 2449, AFL-CIO, the
exclusive representative of a bargaining unit of employees at
Cameron Station, Alexandria, Virginia concerning the
implementation of a paid parking program at Cameron Station to the
extent consonant with government-wide and agency regulations.
(b) Instituting changes in conditions of employment, including
changes concerning a paid parking program, without negotiating in
good faith with American Federation of Government Employees, Local
2449, AFL-CIO.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Upon request, meet and negotiate with the American
Federation of Government Employees, Local 2449, AFL-CIO concerning
the implementation of a paid parking program at Cameron Station,
Alexandria, Virginia to the extent consonant with government-wide
and agency regulations.
(b) Post, at its Cameron Station, Alexandria, Virginia
facility, copies of the attached Notice marked Appendix A on forms
to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms they shall be signed by an appropriate
official and be posted and maintained by him or her for 60
consecutive days thereafter, in conspicuous places, including
bulletin boards and other places where notices are customarily
posted. Reasonable steps shall be taken to insure that such
Notice is 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.
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 Department
of the Army, Headquarters, U.S. Army Military District Washington, and
Cameron Station shall:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing employees in
the exercise of their rights under the Federal Service
Labor-Management Relations Statute by implementing a paid parking
program at Cameron Station in such a manner as to preclude
American Federation of Government Employees, Local 2449, AFL-CIO
from exercising its statutory right to negotiate the impact and
implementation of such program with Headquarters, Defense
Logistics Agency, prior to such implementation.
(b) Interfering with, restraining, and coercing employees in
the exercise of their rights under the Federal Service
Labor-Management Relations Statute by assessing parking fees for
two parking spaces assigned to American Federation of Government
Employees, Local 2449, AFL-CIO at Cameron Station in accordance
with the collective bargaining agreement between said Union and
Headqarters, Defense Logistics Agency.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(1) Reimburse American Federation of Government Employees,
Local 2449, AFL-CIO for all money paid since November 1, 1979 to
purchase parking permits for two parking spaces assigned to it at
Cameron Station in accordance with the collective bargaining
agreement between American Federation of Government Employees,
Local 2449, AFL-CIO and Headquarters, Defense Logistics Agency.
(b) Post, at its Cameron Station, Alexandria, Virginia
facility, copies of the attached Notice marked Appendix B on forms
to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms they shall be signed by an appropriate
official and be posted and maintained by him or her for 60
consecutive days thereafter, in conspicuous places, including
bulletin boards and other places where such notices are
customarily posted. Reasonable steps shall be taken to insure
that such Notice is 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.
/s/ FRANCES E. DOWD
FRANCIS E. DOWD
Administrative Law Judge
Dated: July 10, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) See, for example, Department of Housing and Urban Development, 9
FLRA 136 (1982); 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).
(2) Boston District Recruiting Command, Boston, Massachusetts, 15
FLRA 720, 724 n.6 (1984). See also National Treasury Employees Union
and Department of the Treasury, Internal Revenue Service, 13 FLRA 554
(1983); American Federation of Government Employees, AFL-CIO, Local
3656 and Federal Trade Commission, Boston Regional Office,
Massachusetts, 4 FLRA 702, 703 (1980).
(3) Section 7114(b)(2) of the Statute provides:
Section 7114. Representation rights and duties
* * *
(b) The duty of an agency and an exclusive representative to
negotiate in good faith . . . shall include the obligation --
* * *
(2) to be represented at the negotiations by duly authorized
representatives prepared to discuss and negotiate on any condition
of employment(.)
(4) The Judge found it unnecessary to interpret the parties'
agreement because DLA and the Union agreed that the two spaces were to
be provided free of charge. In view of the parties' agreed
interpretation, we also find it unnecessary to interpret the contract
provision.
(5) See Hudgens v. NLRB, 424 U.S. 507, 510 (1976). See also
Operating Engineers Local Union No. 3 v. NLRB, 266 F.2d 905, 909 (D.C.
Cir. 1959) and Austin Co., 101 NLRB 1257, 1258-1259 (1952).
(6) During the pendency of the instant case before the Authority, the
United States District Court for the District of Columbia ruled that the
paid parking plan, as embodied in OMB Circular A-118, was invalid, and
ordered that the GSA regulation be set aside and its enforcement
permanently enjoined. American Federation of Government Employees,
AFL-CIO, et al. v. Freeman, 510 F.Supp. 596 (D.D.C. 1981). Thereafter,
GSA revised the regulation to suspend the collection of parking fees in
accordance with the injunction (46 F.R. 40191 (1981)). The District
Court's decision was subsequently reversed. American Federation of
Government Employees, AFL-CIO, et al. v. Carmen, 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, Public Papers of the Presidents
(Ronald Reagan) 1981, 1161.
(7) See Defense Contract Administration Services Region, Boston,
Massachusetts, 15 FLRA 750 (1984).
(8) The Charging Party objected to intervention by the Office of
Personnel Management (OPM) on the ground that OPM was not a party to the
rule making involved herein. The motion was denied at the hearing.
(9) Counsel for the General Counsel and Counsel for the Department of
Defense and Department of the Army filed Motions to Correct the
Transcript. The requested corrections being proper, the motions are
hereby granted and the transcript is corrected as follows:
(TABLE OMITTED)
(10) There being no serious factual disputes, I have adopted, to the
maximum extent possible, the findings of fact proposed by Counsel for
the General Counsel, with appropriate deletions and additions of my own.
(11) DLA asserts, and I agree, that Mr. Morgus did not thereafter
make additional requests to bargain. In my opinion, such requests were
not necessary since DLA had already refused to negotiate and Local 2449
had already filed an unfair labor practice charge.
(12) It is not clear from the record precisely when that decision was
made and communicated to DLA and Local 2449.
(13) For the most part, the following facts in pargaraphs 17-27 are
based upon Jt. Exh. No. 1, testimony from the Harry Diamond case which
was stipulated as part of the present record. Precise page references
are contained in the General Counsel's brief pp. 6-9.
(14) American Federation of Government Employees, AFL-CIO, Local
3656, 4 FLRA No. 92.
(15) Internal Revenue Service, Washington, D.C. and Internal Revenue
Service, Hartford District Office, 4 FLRA No. 37 (1980).
(16) At this juncture in the hearing, the General Counsel moved to
amend the Complaint to add DA and MDW as Respondents for this additional
alleged violation relating to the two parking spaces. Since this
evidence was not made available to the General Counsel during the
investigation, and since it is related to the basic allegations in the
charges, and since there appears to be no basis for claiming surprise,
unfairness, or prejudice, the motion is hereby granted.
APPENDIX A
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, upon request, negotiate in good faith with the American
Federation of Government Employees, Local 2449, AFL-CIO, the exclusive
representative of our bargaining unit employees at Cameron Station,
Alexandria, Virginia concerning the implementation of a paid parking
program at Cameron Station to the extent consonant with government-wide
and agency regulations.
WE WILL NOT institute changes in conditions of employment, including
changes concerning a paid parking program, without negotiating in good
faith with American Federation of Government Employees, Local 2449,
AFL-CIO.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of rights guaranteed under the
Federal Service Labor-Management Relations Statute.
Headquarters, Defense Logistics
Agency
(Agency or Activity)
Dated:
By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and most be altered, defaced, or covered by any other
material.
If employees have any question concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region III for the Federal Labor Relations Authority whose
address is: 1133 15th St., NW., Suite 300, Washington, DC 20005;
Telephone No. (202) 653-8452.
APPENDIX B
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 interfere with, restrain, or coerce employees in the
exercise of their rights under the Federal Service Labor-Management
Relations Statute by implementing a paid parking program at Cameron
Station in such a manner as to preclude American Federation of
Government Employees, Local 2449, AFL-CIO from exercising its statutory
right to negotiate the impact and implementation of such program with
Headquarters, Defense Logistics Agency, prior to such implementation.
WE WILL NOT interfere with, restrain, or coerce employees in the
exercise of their rights under the Federal Service Labor-Management
Relations Statute by assessing parking fees for the two parking spaces
assigned to the American Federation of Government Employees, Local 2449,
AFL-CIO at Cameron Station in accordance with the collective-bargaining
agreement between the American Federation of Government Employees, Local
2449, AFL-CIO and Headquarters, Defense Logistics Agency.
WE WILL reimburse the American Federation of Government Employees,
Local 2449, AFL-CIO for all money paid since November 1, 1979 to
purchase parking permits for the two parking spaces assigned to it at
Cameron Station in accordance with the collective-bargaining agreement
between the American Federation of Government Employees, Local 2449,
AFL-CIO and Headquarters, Defense Logistics Agency.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of rights guaranteed under the
Federal Service Labor-Management Relations Statute.
Department of the Army
(Agency or Activity)
Dated:
By: (Signature)
Headquarters, U.S. Army
Military District of Washington
(Agency or Activity)
Dated:
By: (Signature)
Cameron Station
(Agency or Activity)
Dated:
By: (Signature)
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 for the Federal Labor Relations Authority whose
address is: 1133 15th St., NW., Suite 300, Washington, DC 20005;
Telephone No. (202) 653-8452.