American Federation of Government Employees, Local 2, AFL-CIO (Union) and Department of the Army, Harry Diamond Laboratories, Adelphi, Maryland (Agency)

 



[ v05 p68 ]
05:0068(13)NG
The decision of the Authority follows:


 5 FLRA No. 13
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2
 Union
 
 and
 
 DEPARTMENT OF THE ARMY, HARRY
 DIAMOND LABORATORIES, ADELPHI,
 MARYLAND
 Agency
 
                                            Case No. 0-NG-229
 
                DECISION AND ORDER ON NEGOTIABILITY APPEAL
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SEC. 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
    PURSUANT TO DEPARTMENT OF DEFENSE DIRECTIVE 4165.62, IMPLEMENTING
 OFFICE OF MANAGEMENT AND BUDGET CIRCULAR A-118, THE DEPARTMENT OF THE
 ARMY ESTABLISHED A PAID PARKING PROGRAM AT HARRY DIAMOND LABORATORIES.
 IN RESPONSE, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2 (THE UNION) REQUESTED NEGOTIATIONS CONCERNING THE IMPACT AND
 IMPLEMENTATION OF THAT PROGRAM AND SUBMITTED SEVERAL PROPOSALS.  THE
 DEPARTMENT OF THE ARMY RESPONDED THAT THE UNION'S PROPOSALS REGARDING
 PARKING RATES AND EXEMPTIONS FROM PARKING RATES WERE OUTSIDE THE DUTY TO
 BARGAIN.  THE UNION THEN FILED THE INSTANT NEGOTIABILITY APPEAL WITH THE
 AUTHORITY.
 
    WHILE THIS APPEAL WAS PENDING BEFORE THE AUTHORITY, THE DEPARTMENT OF
 THE ARMY INFORMED THE AUTHORITY THAT PAID PARKING AT HARRY DIAMOND
 LABORATORIES WOULD BE DISCONTINUED EFFECTIVE JULY 31, 1980.  FURTHER,
 THE DEPARTMENT OF THE ARMY REQUESTED THAT THE AUTHORITY DISMISS THE
 UNION'S NEGOTIABILITY APPEAL SINCE THE MATTERS PREVIOUSLY IN DISPUTE
 RELATE TO THE DISCONTINUED PAID PARKING PROGRAM AND, THEREFORE, THE
 UNION'S APPEAL HAS BECOME MOOT.  IN RESPONSE TO THIS REQUEST BY THE
 DEPARTMENT OF THE ARMY, THE UNION TAKES THE POSITION THAT THIS APPEAL IS
 NOT MOOT.  THE UNION ARGUES THAT, NOTWITHSTANDING THE FACT THE
 DEPARTMENT OF THE ARMY RESCINDED THE PAID PARKING PROGRAM AT HARRY
 DIAMOND LABORATORIES, THE OBLIGATION OF THE DEPARTMENT OF THE ARMY TO
 BARGAIN WITH THE UNION STILL EXISTS WITH RESPECT TO THIS MATTER, I.E.,
 THE ISSUE OF PAID PARKING IS STILL IN DISPUTE BETWEEN THE PARTIES.
 
    UNDER THE CIRCUMSTANCES SET FORTH IN THE RECORD IN THIS CASE, IT IS
 CONCLUDED, AS THE DEPARTMENT OF THE ARMY CONTENDED, THAT THE
 NEGOTIABILITY ISSUES RAISED WITH RESPECT TO THE DISPUTED PROPOSALS
 INVOLVED IN THE INSTANT APPEAL WERE RENDERED MOOT BY THE DISCONTINUANCE
 OF THE PAID PARKING PROGRAM AT HARRY DIAMOND LABORATORIES WHICH WAS THE
 SUBJECT OF THE PROPOSALS.  SEE FEDERAL UNION OF SCIENTISTS AND
 ENGINEERS, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-144
 AND NAVAL UNDERWATER SYSTEMS CENTER, NEWPORT NAVAL BASE, NEWPORT, RHODE
 ISLAND, 3 FLRA NO. 24(1980).  THAT IS, DISCONTINUANCE OF THE PAID
 PARKING PROGRAM HAS REMOVED THE BASIS FOR THE DISPUTE CONCERNING THE
 UNION'S PROPOSALS SO THAT ISSUES REGARDING THOSE PROPOSALS ARE NO LONGER
 VIABLE.  CF. STATE OF ALABAMA EX REL. BAXLEY V. WOODY, 473 F.2D 10 (5TH
 CIR. 1973).
 
    FURTHERMORE, ISSUES AS TO WHETHER, IN THE CIRCUMSTANCES OF THIS CASE,
 THE AGENCY WOULD HAVE AN OBLIGATION TO BARGAIN ON OTHER MATTERS
 CONCERNING THE GENERAL SUBJECT OF PAID PARKING, APART FROM THE
 PARTICULAR PAID PARKING PROGRAM WHICH IS THE SUBJECT OF THE PROPOSALS
 DISPUTED IN THE INSTANT APPEAL, MAY PROPERLY BE RAISED IN THE UNFAIR
 LABOR PRACTICE PROCEDURES UNDER SECTION 7118 OF THE STATUTE.  CF.
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2782 AND
 DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, WASHINGTON, D.C., 4 FLRA
 NO. 93(1980).
 
    ACCORDINGLY, WITHOUT PASSING ON THE MERITS OF THE DISPUTE, IT IS
 ORDERED THAT THE UNION'S APPEAL BE DISMISSED.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 5, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY