American Federation of Government Employees, Local 2782, AFL-CIO (Union) and Department of the Commerce, Bureau of the Census, Washington, DC (Agency)  

 6 FLRA No. 117
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2782
 Union
 
 and
 
 DEPARTMENT OF COMMERCE,
 BUREAU OF THE CENSUS,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. O-NG-235
 
                DECISION AND ORDER ON 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 ET SEQ.).
 
    THE RECORD INDICATES THAT, ON AUGUST 13, 1979, THE OFFICE OF
 MANAGEMENT AND BUDGET (OMB) ISSUED CIRCULAR NO. A-118, WHICH ESTABLISHED
 A GOVERNMENT-WIDE PAID PARKING PROGRAM FOR FEDERAL EMPLOYEES AND
 DIRECTED THE GENERAL SERVICES ADMINISTRATION (GSA) TO DEVELOP
 REGULATIONS FOR THIS PROGRAM.  ON SEPTEMBER 6, 1979, GSA ISSUED FPMR
 TEMPORARY REGULATION D-65 (44 F.R.  53161), WHICH PRESCRIBED PROCEDURES
 FOR THE ASSIGNMENT OF PARKING SPACES AND THE ASSESSMENT OF FEES.  THE
 RECORD FURTHER INDICATES THAT ON THE EFFECTIVE DATE OF THE GSA
 REGULATION, THE UNION REQUESTED THAT THE AGENCY BARGAIN OVER "THE
 EXISTENCE AND AMOUNT OF MONTHLY PARKING FEES," AND ASKED THE AGENCY FOR
 ANY NONNEGOTIABILITY DETERMINATION THAT IT MAY CHOOSE TO ASSERT.  THE
 AGENCY ALLEGED THAT THE SUBJECT MATTER WAS NONNEGOTIABLE BECAUSE IT
 CONFLICTED WITH A GOVERNMENT-WIDE REGULATION.  THE UNION THEN FASHIONED
 A SECOND PROPOSAL, THE PROPOSAL AT ISSUE HEREIN, AND SUBMITTED IT TO THE
 AGENCY FOR CONSIDERATION.  /1/ THE AGENCY ALLEGED THAT THIS SECOND
 PROPOSAL WAS FOR THE SAME REASON NONNEGOTIABLE AND THE UNION APPEALED TO
 THE AUTHORITY.  /2/
 
    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 NO. A-118 WAS INVALID AND THUS DID NOT
 CONVEY ANY AUTHORITY TO GSA TO ISSUE A 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, /3/ GSA HAS REVISED THE REGULATION TO SUSPEND THE COLLECTION
 OF PARKING FEES AT THIS TIME IN ACCORDANCE WITH THE INJUNCTION.  /4/
 
    INASMUCH AS THE U.S. DISTRICT COURT HAS DECLARED THE GSA PARKING FEE
 REGULATION IMPLEMENTING OMB CIRCULAR NO. A-118 TO BE INVALID AND HAS
 PERMANENTLY ENJOINED ITS ENFORCEMENT, AND INASMUCH AS THE REGULATION IS
 NOT BEING EFFECTUATED AT THIS TIME IN ACCORDANCE WITH THE INJUNCTION, IT
 IS CONCLUDED, APART FROM OTHER CONSIDERATIONS, THAT THE NEGOTIABILITY
 ISSUE RAISED WITH RESPECT TO THE DISPUTED PROPOSAL INVOLVED IN THE
 INSTANT APPEAL HAS BEEN RENDERED MOOT.
 
    ACCORDINGLY, IT IS ORDERED THAT THE UNION'S APPEAL BE DISMISSED,
 WITHOUT PREJUDICE TO THE APPROPRIATE RENEWAL OF ITS CONTENTION THAT THE
 MATTER IN DISPUTE, AS PROPOSED TO BE NEGOTIATED, IS NEGOTIABLE UNDER THE
 STATUTE SHOULD THE INJUNCTION AGAINST THE ENFORCEMENT OF THE GSA PARKING
 FEE REGULATION SUBSEQUENTLY BE REMOVED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 25, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE PROPOSAL STATED:
 
            PROPOSALS ON PROCEDURES FOR DETERMINING PARKING FEE
 
    IF A WORKSITE IS LOCATED SUCH THAT THE USE OF PUBLIC TRANSPORTATION
 LENGTHENS COMMUTING TIME FOR AT LEAST HALF OF THE EMPLOYEES BY AT LEAST
 25% THEN NO PARKING FEE WILL BE ASSESSED AT THAT WORKSITE, ELSE IF THE
 VALUE OF A PARKING SPACE IN A 1/2-MILE RADIUS OF THE WORKSITE IS LESS
 THAN $10/MONTH AS DETERMINED BY A MUTUALLY AGREED ON APPRAISER, THEN NO
 PARKING FEE WILL BE ASSESSED AT THAT WORKSITE, ELSE IF THE COST OF
 MAINTAINING, LIGHTING AND PATROLLING THE PARKING LOT AT A WORKSITE IS
 LESS THAN $10/MONTH SPACE THEN NO PARKING FEE WILL BE ASSESSED AT THAT
 WORKSITE, ELSE THE PARKING FEE WILL BE WHICHEVER IS LOWER OF THE
 FOLLOWING AMOUNTS:  THE ACTUAL COST OF LIGHTING, MAINTAINING AND
 PATROLLING THE PARKING SPACE, THE CORRESPONDING COMMERCIAL RATE WITHIN A
 1/2-MILE RADIUS OF THE WORKSITE, AS DETERMINED BY A MUTUALLY AGREED UPON
 APPRAISER.
 
    /2/ THE AGENCY ALSO CONTENDS THAT THE UNION'S APPEAL WAS UNTIMELY
 FILED.  HOWEVER, IN VIEW OF THE AUTHORITY'S DISPOSITION HEREIN, IT IS
 UNNECESSARY TO PASS UPON SUCH CONTENTION.
 
    /3/ THE AUTHORITY TAKES NOTE OF THE FACT THAT THE INJUNCTION ORDERED
 BY THE UNITED STATES DISTRICT COURT IN AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, ET AL.  V. FREEMAN, 510 F.SUPP. 596 (D.D.C. 1981), IS
 CURRENTLY BEING APPEALED, APPEAL DOCKETED, NO.  81-1244 (D.C. CIR. APR.
 24, 1981).  IN THIS REGARD, GSA TWICE SOUGHT A STAY OF THE PERMANENT
 INJUNCTION PENDING THE APPEAL, FIRST WITH THE U.S. DISTRICT COURT FOR
 THE DISTRICT OF COLUMBIA, WHICH MOTION WAS DENIED BY MEM. ORDER IN CIV.
 NO. 79-2955 (D.D.C. MAR. 6, 1981) AND THEN WITH THE U.S. COURT OF
 APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, WHICH MOTION WAS DENIED BY
 ORDER IN NO.  81-1244 (D.C. CIR. MAR. 13, 1981).
 
    /4/ 46 F.R. 40191(1981).