Veterans Administration Medical Center, Salisbury, North Carolina (Activity) and American Federation of Government Employees, Local 1738, AFL-CIO (Union)

 



[ v08 p262 ]
08:0262(59)AR
The decision of the Authority follows:


 8 FLRA No. 59
 
 VETERANS ADMINISTRATION MEDICAL
 CENTER, SALISBURY, NORTH CAROLINA
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 1738
 Union
 
                                            Case No. O-AR-179
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR DENNIS R. NOLAN FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. SEC,
 7122(A)) (THE STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE ACTIVITY FILED AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR'S AWARD, A GRIEVANCE WAS FILED CLAIMING
 THAT THE ACTIVITY'S ALLOCATION AND ASSIGNMENT OF EMPLOYEE PARKING WHICH
 RESERVED A NUMBER OF PARKING SPACES FOR CARPOOLS WAS IN VIOLATION OF
 ARTICLE II, SECTION 9 OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
 WHICH PROVIDED THAT "EMPLOYEE PARKING . . . WILL BE ON A FIRST COME,
 FIRST SERVED BASIS." THE GRIEVANCE WAS NOT RESOLVED AND WAS ULTIMATELY
 SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR DETERMINED THAT ARTICLE II, SECTION 9 OF THE AGREEMENT
 WAS INCONSISTENT WITH THE PROVISION OF OFFICE OF MANAGEMENT AND BUDGET
 (OMB) CIRCULAR NO. A-118 ALLOCATING AND ASSIGNING EMPLOYEE PARKING.
 BECAUSE HE FOUND THAT OMB CIRCULAR NO. A-118 WAS A GOVERNMENT-WIDE
 REGULATION, THE ARBITRATOR HELD THAT IT WAS CONTROLLING AND CONSEQUENTLY
 DENIED THE GRIEVANCE.
 
    AS ITS EXCEPTIONS, THE UNION CONTENDS THAT THE COURT IN AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES V. FREEMAN, 510 F. SUPP. 596 (D.D.C.
 1981) INVALIDATED OMB CIRCULAR NO. A-118 AND THAT CONSEQUENTLY THE AWARD
 IS CONTRARY TO THE STATUTE, IS BASED ON A NONFACT, AND FAILS TO DRAW ITS
 ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT.  THIS CONTENTION
 HOWEVER FAILS TO PROVIDE A BASIS FOR FINDING THE ARBITRATOR'S AWARD
 DEFICIENT.  CONTRARY TO THE UNION'S ASSERTION, THE COURT IN AFGE DID NOT
 INVALIDATE THE APPLICABLE ALLOCATION AND ASSIGNMENT OF PARKING SPACES
 BECAUSE THE COURT NEVER ADDRESSED THOSE PORTIONS OF THE GOVERNING
 REGULATIONS.  IN ANY EVENT, THE DECISION IN AFGE, ON WHICH THE
 EXCEPTIONS ARE SOLELY BASED, HAS BEEN REVERSED.  THUS, THE UNION'S
 EXCEPTIONS FAIL TO ESTABLISH THAT THE AWARD IS IN ANY MANNER DEFICIENT
 UNDER THE STATUTE.  /1/ ACCORDINGLY, THE UNION'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., MARCH 24, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ OMB CIRCULAR NO. A-118 (44 FED. REG. 48638) SET THE POLICY
 GOVERNING THE ALLOCATION OF AND ASSESSMENT OF CHARGES FOR EMPLOYEE
 PARKING AND DIRECTED THE GENERAL SERVICES ADMINISTRATION (GSA) TO ISSUE
 IMPLEMENTING REGULATIONS.  IN PARTICULAR, WITH RESPECT TO THE ALLOCATION
 AND ASSIGNMENT OF EMPLOYEE PARKING, IT WAS PROVIDED THAT THE ALLOCATION
 AND ASSIGNMENT "SHALL BE ON THE BASIS OF REGULATIONS PROMULGATED BY
 GSA." ACCORDINGLY, GSA ISSUED FPMR TEMPORARY REGULATION D-65 (44 FED.
 REG. 53161) PROVIDING FOR THE ASSESSMENT OF PARKING FEES AND THE
 ASSIGNMENT OF PARKING SPACES, INCLUDING AN ALLOCATION FOR CARPOOLS.  THE
 COURT IN AFGE ONLY ADDRESSED THE ASSESSMENT OF PARKING FEES AND HELD
 THAT THE PAID PARKING PLAN OF OMB CIRCULAR NO. A-118 WAS INVALID AND
 THEREFORE DID NOT AUTHORIZE GSA TO ISSUE A REGULATION IMPOSING FEES FOR
 PARKING THAT WAS PREVIOUSLY FREE.  IN ACCORDANCE WITH THE COURT'S
 DECISION, GSA REVISED THE REGULATION TO SUSPEND THE COLLECTION OF
 PARKING FEES, BUT THE ORIGINAL PRIORITY OF ASSIGNMENT OF PARKING SPACES
 REMAINED IN EFFECT.  46 FED. REG. 40191.  THUS, CONTRARY TO THE UNION'S
 ASSERTION, THE COURT IN AFGE DID NOT INVALIDATE THE ALLOCATION AND
 ASSIGNMENT OF PARKING SPACES BECAUSE THE COURT NEVER ADDRESSED THOSE
 PORTIONS OF THE GOVERNING REGULATIONS.  RATHER, THE DECISION IN AFGE
 PERTAINED ONLY TO THE VALIDITY OF THE PAID PARKING ASPECT OF THE
 REGULATIONS AND, IN ANY EVENT, THAT DECISION HAS NOW BEEN REVERSED SUB
 NOM. IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES V. CARMEN, NO.
 81-1244 (D.C. CIR. DEC. 15, 1981).