National Federation of Federal Employees, Local 1461 (Union) and U.S. Naval Observatory, Washington, DC (Activity)



[ v06 p696 ]
06:0696(119)NG
The decision of the Authority follows:


 6 FLRA No. 119
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1461
 Union
 
 and
 
 U.S. NAVAL OBSERVATORY,
 WASHINGTON, D.C.
 Activity
 
                                            Case No. O-NG-280
 
                   ORDER DISMISSING NEGOTIABILITY APPEAL
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2) (E)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE)
 (5 U.S.C. 7101-7135).
 
    THE RECORD INDICATES THAT, PURSUANT TO OFFICE OF MANAGEMENT AND
 BUDGET (OMB) CIRCULAR A-118 AND A DEPARTMENT OF DEFENSE (DOD) DIRECTIVE
 IMPLEMENTING THE OMB CIRCULAR, DATED OCTOBER 11, 1979, THE U.S. NAVAL
 OBSERVATORY ESTABLISHED A PAID PARKING PROGRAM.  THE UNION REQUESTED
 LOCAL NEGOTIATIONS CONCERNING THE IMPLEMENTATION OF THAT PROGRAM.  IN
 PARTICULAR, THE UNION PROPOSED THAT EMPLOYEES WHOSE SCHEDULED DUTY
 HOURS
 DIFFERED FROM THE NAVAL OBSERVATORY'S "NORMAL DUTY HOURS" BE CLASSIFIED
 AS "SHIFT WORKERS" WHO, UNDER THE CIRCULAR AND THE DIRECTIVE, ARE EXEMPT
 FROM PAYING ANY PARKING FEES.  IN RESPONSE TO THE UNION'S REQUEST FOR
 NEGOTIATIONS, THE U.S.  NAVAL OBSERVATORY ALLEGED THAT THE MATTER OF
 INTERPRETING THE DEFINITION OF "SHIFT WORKER," AS SET FORTH IN THE OMB
 CIRCULAR AND THE DOD DIRECTIVE, FOR PURPOSES OF EXEMPTING SUCH WORKERS
 FROM PAYMENT OF PARKING FEES WAS NONNEGOTIABLE.  /1/ THE UNION THEN
 FILED THE INSTANT NEGOTIABILITY APPEAL WITH THE AUTHORITY.
 
    WHILE THIS APPEAL WAS PENDING 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 THUS DID NOT
 CONVEY ANY AUTHORITY TO THE GENERAL SERVICES ADMINISTRATION (GSA) TO
 ISSUE A GSA REGULATION IMPOSING FEES FOR PREVIOUSLY FREE PARKING.  SINCE
 THE UNITED STATES DISTRICT COURT ORDERED THAT THE GSA REGULATION BE SET
 ASIDE AND ITS ENFORCEMENT PERMANENTLY ENJOINED, /2/ GSA HAS REVISED THE
 REGULATION TO SUSPEND THE COLLECTION OF PARKING FEES AT THIS TIME IN
 ACCORDANCE WITH THE INJUNCTION.  /3/
 
    UNDER THESE CIRCUMSTANCES, SINCE IT HAS BEEN HELD THAT THE OMB
 CIRCULAR PURSUANT TO WHICH THE PAID PARKING PLAN WAS ESTABLISHED COULD
 NOT CONVEY AUTHORITY TO IMPOSE FEES FOR PARKING, THE IMPOSITION OF SUCH
 FEES PURSUANT TO A DOD DIRECTIVE IMPLEMENTING THE OMB CIRCULAR WOULD BE
 UNLAWFUL AT THIS TIME.  IT IS THUS APPARENT THAT EMPLOYEES AT THE U.S.
 NAVAL OBSERVATORY ARE NOT CURRENTLY BEING CHARGED FOR PARKING PURSUANT
 TO THE OMB CIRCULAR AND DOD DIRECTIVE.
 
    THEREFORE, SINCE THE SUBJECT OF THE UNION'S PROPOSAL CONCERNS THE
 ABOVE-MENTIONED PAID PARKING PROGRAM, IT IS CONCLUDED THAT THE
 NEGOTIA