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

 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
 NEGOTIABILITY ISSUES RAISED IN THE PRESENT APPEAL WERE RENDERED MOOT BY
 JUDICIAL INVALIDATION OF PAID PARKING PROGRAMS INSTITUTED PURSUANT TO
 OMB CIRCULAR A-118.  THAT IS, UNDER THESE CIRCUMSTANCES, THERE IS NO
 LONGER ANY BASIS FOR THE DISPUTE CONCERNING THE UNION'S PROPOSAL IN THAT
 ISSUES RAISED BY THE PROPOSAL ARE NOT LONGER VIABLE.  SEE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2 AND DEPARTMENT OF
 THE ARMY, HARRY DIAMOND LABORATORIES, ADELPHI, MARYLAND, 5 FLRA NO.
 13(1981).
 
    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 CHANGED CIRCUMSTANCES GIVE RISE TO LAWFUL ENFORCEMENT OF
 THE DOD DIRECTIVE.
 
    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 U.S. NAVAL OBSERVATORY ALSO CONTENDS THAT THE UNION'S APPEAL
 SHOULD BE DISMISSED BECAUSE IT DOES NOT CONTAIN A SPECIFIC PROPOSAL.
 HOWEVER, IN VIEW OF THE AUTHORITY'S DISPOSITION HEREIN, IT IS
 UNNECESSARY TO PASS UPON SUCH CONTENTION.
 
    /2/ 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).
 
    /3/ 46 F.R. 40191(1981).