National Treasury Employees Union (Union) and Department of the Treasury, U.S. Customs Service, Washington, DC (Agency) 

 6 FLRA No. 118
 
 NATIONAL TREASURY EMPLOYEES UNION
 (Union)
 
 and
 
 DEPARTMENT OF THE TREASURY,
 U.S. CUSTOMS SERVICE,
 WASHINGTON, D.C.
 (Agency)
 
                                            Case No. O-NG-248
 
                DECISION AND ORDER ON NEGOTIABILITY APPEAL
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).
 
    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 FED.REG. 53161), WHICH PRESCRIBED
 PROCEDURES FOR THE ASSIGNMENT OF PARKING SPACES AND THE ASSESSMENT OF
 FEES.  THEREAFTER, THE AGENCY SUBMITTED TO THE UNION A DRAFT DIRECTIVE
 IMPLEMENTING THE PARKING POLICY ESTABLISHED ON OMB CIRCULAR A-1D1 DURING
 RELATED NEGOTIATIONS, THE AGENCY ALLEGED THAT FOUR OF THE UNION
 PROPOSALS (SET FORTH IN AN APPENDIX HERETO), WHICH ATTEMPTED TO EXEMPT
 CERTAIN GROUPS OF EMPLOYEES FROM PARKING FEES, WERE NONNEGOTIABLE ON THE
 GROUND THAT THE PROPOSALS CONFLICTED WITH A GOVERNMENT-WIDE REGULATION.
 THE UNION FILED AN APPEAL WITH THE AUTHORITY UNDER SECTION 7117 OF THE
 STATUTE, AND THE AGENCY FILED A STATEMENT OF POSITION IN WHICH IT
 ESSENTIALLY REASSERTED THAT THE DISPUTED PROPOSALS WERE INCONSISTENT
 WITH OMB CIRCULAR A-118 AND/OR FPMR TEMPORARY REGULATION D-65 AND HENCE
 WERE NONNEGOTIABLE.
 
    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, /1/ GSA HAS REVISED THE
 REGULATION TO SUSPEND THE COLLECTION OF PARKING FEES AT THIS TIME IN
 ACCORDANCE WITH THE INJUNCTION.  /2/
 
    INASMUCH AS THE U.S. DISTRICT COURT HAS DECLARED THE GSA PARKING FEE
 REGULATION IMPLEMENTING OMB CIRCULAR 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 THAT THE NEGOTIABILITY ISSUES RAISED WITH RESPECT TO THE
 DISPUTED PROPOSALS INVOLVED IN THE INSTANT APPEAL HAVE 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
 MATTERS IN DISPUTE, AS PROPOSED TO BE NEGOTIATED, ARE 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
 
                                 APPENDIX
 
                              UNION PROPOSALS
 
    1.  ALL EMPLOYEES WHO ARE ASSIGNED TO REGULARLY ROTATING SHIFTS WHICH
 FROM TIME TO TIME DO START AND END OUTSIDE THE NORMAL CUSTOMS SERVICE
 EIGHT HOUR WORKING DAY SHALL BE EXEMPT FROM THE INSTITUTION OF PARKING
 FEES EXCEPT EMPLOYEES ON FLEXI-TIME OR OVERTIME.
 
    2.  ANY EMPLOYEE WHO IS REQUIRED TO WORK ON A WEEKEND DURING ANY
 MONTH OF THE YEAR SHALL BE EXEMPT FROM THE INSTITUTION OF PARKING FEES
 DURING SUCH MONTH.
 
    3.  ANY EMPLOYEE WHOSE WORK WEEK REGULARLY INCLUDES THE WEEKEND SHALL
 BE EXEMPT FROM THE INSTITUTION OF PARKING FEES.
 
    4.  ANY CUSTOMS EMPLOYEE WHO UTILIZES HIS/HER POV 12 OR MORE WORKDAYS
 PER MONTH FOR GOVERNMENT BUSINESS FOR WHICH THE CUSTOMS EMPLOYEE
 RECEIVES REIMBURSEMENT FOR MILEAGE AND PARKING FEES UNDER GOVERNMENT
 TRAVEL REGULATIONS, SHALL BE EXEMPT FROM THE INSTITUTION OF PARKING FEES
 DURING SUCH MONTH.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 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).
 
    /2/ 46 F.R. 40191(1981).