American Federation of Government Employees, Local 1935 (Union) and Department of the Army, Headquarters, Army Military District of Washington, Fort Lesley J. McNair, Washington, DC (Activity) 

 6 FLRA No. 121
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1935
 Union
 
 and
 
 DEPARTMENT OF THE ARMY,
 HEADQUARTERS, U.S. ARMY
 MILITARY DISTRICT OF WASHINGTON,
 FORT LESLEY J. McNAIR,
 WASHINGTON, D.C.
 Activity
 
                                            Case No. O-NG-348
 
                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 DEPARTMENT OF DEFENSE (DOD) DIRECTIVE
 4165.62 IMPLEMENTING THE PARKING POLICY ESTABLISHED IN OMB CIRCULAR
 A-118, THE DEPARTMENT OF THE ARMY ESTABLISHED A PAID PARKING PROGRAM
 APPLICABLE TO EMPLOYEES AT THE ACTIVITY.  IN RESPONSE, THE UNION
 SUBMITTED A PROPOSAL /1/ SEEKING TO EXEMPT CERTAIN LOWER GRADED
 EMPLOYEES FROM PAYING PARKING FEES.  THE ARMY ALLEGED THAT THE UNION'S
 PROPOSAL WAS NONNEGOTIABLE BECAUSE IT CONFLICTED WITH THE OMB CIRCULAR
 AND THE DOD DIRECTIVE.  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 HENCE WAS NONNEGOTIABLE.
 /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 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, /3/ GSA HAS REVISED THE
 REGULATION TO SUSPEND THE COLLECTION OF PARKING FEES AT THIS TIME IN
 ACCORDANCE WITH THE INJUNCTION.  /4/
 
    UNDER THESE CIRCUMSTANCES, SINCE 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, THE REGULATION IS
 NOT BEING EFFECTUATED AT THIS TIME IN ACCORDANCE WITH THE INJUNCTION.
 SIMILARLY, THE IMPOSITION OF FEES PURSUANT TO THE IMPLEMENTING DOD
 DIRECTIVE WOULD BE UNLAWFUL AT THIS TIME.
 
    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 PROPOSAL STATED THAT "(A)LL EMPLOYEES GS 1-5 AND ALL
 EMPLOYEES WG 2-5 WILL BE EXEMPT FROM PAYING PARKING FEES."
 
    /2/ THE AGENCY ALSO CONTENDED 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. 4019 (1981).