American Federation of Government Employees, Local 1118, AFL-CIO (Union) and Transportation, Federal Aviation Administration, Washington, DC (Activity)  

 6 FLRA No. 120
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1118
 Union
 
 and
 
 DEPARTMENT OF TRANSPORTATION,
 FEDERAL AVIATION ADMINISTRATION,
 WASHINGTON, D.C.
 Activity
 
                                            Case No. O-NG-300
 
                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, PURSUANT TO THE FOREGOING REGULATIONS, THE ACTIVITY
 PRESENTED THE UNION WITH A DRAFT DIRECTIVE REGARDING "PROCEDURES FOR THE
 ISSUANCE, FEES, COLLECTION AND USE OF EMPLOYEE PARKING PERMITS AT
 WASHINGTON NATIONAL AIRPORT." IN RESPONSE, THE UNION SUBMITTED A
 PROPOSAL WHICH PROVIDED, IN PART, THAT EMPLOYEE PARKING WILL BE BASED ON
 THE "RECOVERY FEE," I.E., THE ACTUAL COSTS INCURRED IN OPERATING THE
 PARKING FACILITY.  /1/ THE ACTIVITY ALLEGED THAT THE PROPOSAL WAS
 NONNEGOTIABLE, ON THE GROUND THAT IT CONFLICTED WITH GOVERNMENT-WIDE
 REGULATIONS, SPECIFICALLY OMB CIRCULAR A-118 AND FPMR TEMPORARY
 REGULATION D-65.  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 PROPOSAL
 WAS INCONSISTENT WITH OMB CIRCULAR A-118 AND FPMR TEMPORARY REGULATION
 D-65 AND HENCE WAS 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, /2/ GSA HAS REVISED THE
 REGULATION TO SUSPEND THE COLLECTION OF PARKING FEES AT THIS TIME IN
 ACCORDANCE WITH THE INJUNCTION.  /3/
 
    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 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 UNION'S PROPOSAL SUBMITTED TO THE ACTIVITY PROVIDED AS
 FOLLOWS:
 
    PURSUANT TO THE PROVISIONS OF OMB A118, THE FAIR VALUE OF EMPLOYEE
 PARKING WILL BE BASED ON THE RECOVERY FEE, AS IT HAS BEEN FOR THIS
 COMMERCIAL PARKING IN THE PAST.  THE RATE FOR THE PERIOD NOVEMBER 1,
 1979 THROUGH SEPTEMBER 30, 1980 WILL BE $19.00.  THIS IS CONSISTENT WITH
 FAA ORDER 5400.1A.
 
    /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).