American Federation of Government Employees, Local 2151, AFL-CIO (Union) and General Services Administration, National Capital Region, Washington, D.C. (Agency) 

 7 FLRA No. 79
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2151
 (Union)
 
 and
 
 GENERAL SERVICES ADMINISTRATION,
 NATIONAL CAPITAL REGION,
 WASHINGTON, D.C.
 (Agency)
 
                                            Case No. O-NG-294
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    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 UNION ATTEMPTED TO NEGOTIATE NINE PROPOSALS
 SEEKING TO EXEMPT CERTAIN GROUPS OF EMPLOYEES FROM PAYING PARKING FEES,
 TO ALLOCATE PARKING SPACES, AND TO SET PARKING RATES.  ALL THE PROPOSALS
 WERE ALLEGED BY THE AGENCY TO BE NONNEGOTIABLE ON THE GROUND THAT THEY
 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 PROPOSALS WERE INCONSISTENT WITH OMB CIRCULAR A-118 AND/OR
 FPMR TEMPORARY REGULATION D-65 AND HENCE WERE NONNEGOTIABLE.  /1/
 
    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 GSA TO ISSUE A GSA REGULATION IMPOSING FEES
 FOR PREVIOUSLY FREE PARKING.  THE UNITED STATES DISTRICT COURT ORDERED
 THAT THE GSA REGULATION BE SET ASIDE AND ITS ENFORCEMENT PERMANENTLY
 ENJOINED, /2/ AND GSA THEREAFTER REVISED THE REGULATION TO SUSPEND THE
 COLLECTION OF PARKING FEES IN ACCORDANCE WITH THE INJUNCTION.  /3/ THE
 DISTRICT COURT'S DECISION WAS SUBSEQUENTLY REVERSED.  /4/ HOWEVER, NO
 NEW DIRECTIVE TO REINSTITUTE THE COLLECTION OF PARKING FEES HAS BEEN
 PROMULGATED OR ANNOUNCED.
 
    INASMUCH AS THERE IS NO REGULATION IN EFFECT AT THIS TIME REQUIRING
 THE COLLECTION OF PARKING FEES, IT IS CONCLUDED THAT THE NEGOTIABILITY
 ISSUES RAISED WITH RESPECT TO THE DISPUTED PROPOSALS INVOLVED IN THE
 INSTANT APPEAL /5/ HAVE BEEN RENDERED MOOT.  AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2782 AND DEPARTMENT OF COMMERCE,
 BUREAU OF THE CENSUS, WASHINGTON, D.C., 6 FLRA NO. 117(1981);  NATIONAL
 TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, U.S. CUSTOMS
 SERVICE, WASHINGTON, D.C., 6 FLRA NO. 118(1981);  AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1118 AND DEPARTMENT OF
 TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, WASHINGTON, D.C., 6
 FLRA NO. 120(1981).
 
    ACCORDINGLY, IT IS ORDERED THAT THE UNION'S APPEAL WITH RESPECT TO
 UNION PROPOSALS 1, 2, 4, 5 AND 8 BE, AND IT HEREBY IS, DISMISSED WITHOUT
 PREJUDICE TO THE APPROPRIATE RENEWAL OF ITS CONTENTION THAT THE MATTERS
 IN DISPUTE ARE NEGOTIABLE UNDER THE STATUTE SHOULD THE ENFORCEMENT OF
 THE GSA PARKING FEE REGULATION SUBSEQUENTLY BE REINSTITUTED.
 
    THE ONLY ISSUES REMAINING ARE THOSE RAISED IN UNION PROPOSALS 6 AND
 9, SET FORTH BELOW, WHICH PERTAIN TO THE ALLOCATION OF PARKING SPACES.
 
                          UNION PROPOSALS 6 AND 9
 
    6.  WHERE AN EMPLOYEE WOULD OTHERWISE BE ON THE PUBLIC TRANSPORTATION
 FOR A PERIOD OF OVER 1 1/2 HOURS PER DAY TO AND FROM HIS JOB, HE SHALL
 BE ALLOCATED A RESERVED PARKING SPACE.  THIS WOULD APPLY ONLY TO GSA
 EMPLOYEES WITHIN THE BARGAINING UNITS OF AFGE LOCAL 2151 DURING THE LIFE
 OF THE NEGOTIATED AGREEMENT.
 
    9.  CONTINUOUS DUTY EMPLOYEES, EMPLOYEES WHO ARE CALLED BACK ON
 SPECIAL ASSIGNMENTS, AND NIGHT DUTY EMPLOYEES, SHALL BE ALLOCATED
 RESERVED PARKING SPACES IN PROXIMITY TO THE BUILDING IN WHICH THEY WORK.
  THIS WILL APPLY ONLY TO EMPLOYEES WITHIN THE BARGAINING UNIT OF AFGE
 LOCAL 2151.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSALS 6 AND 9, WHICH PERTAIN TO THE
 ALLOCATION OF RESERVED PARKING SPACES, ARE WITHIN THE DUTY TO BARGAIN
 OR, AS ALLEGED BY THE AGENCY, ARE OUTSIDE THE DUTY TO BARGAIN UNDER
 SECTION 7117(A)(1) OF THE STATUTE BECAUSE THEY CONFLICT WITH
 GOVERNMENT-WIDE REGULATIONS.  /6/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  AS DRAFTED, UNION PROPOSALS 6 AND 9 CONCERNING
 THE ALLOCATION OF RESERVED PARKING SPACES CONFLICT WITH GOVERNMENT-WIDE
 REGULATIONS, SPECIFICALLY, OMB CIRCULAR A-118 AND FPMR TEMPORARY
 REGULATION D-65, AND THEREFORE ARE NOT WITHIN THE DUTY TO BARGAIN UNDER
 SECTION 7117(A)(1) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
 IT IS ORDERED THAT THE PETITION FOR REVIEW CONCERNING THESE PROPOSALS
 BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  BOTH OF THE DISPUTED PROPOSALS CONCERN THE ASSIGNMENT TO
 EMPLOYEES BY THE AGENCY OF PARKING SPACES WITHIN THE AGENCY'S CONTROL.
 UNION PROPOSAL 6 WOULD REQUIRE THAT BARGAINING UNIT EMPLOYEES WHOSE
 DAILY COMMUTE BY PUBLIC TRANSPORTATION WOULD EXCEED 1 1/2 HOURS BE
 ALLOCATED RESERVED PARKING SPACES;  UNION PROPOSAL 9 WOULD REQUIRE THAT
 SUCH SPACES BE MADE AVAILABLE NEAR THE WORK SITES OF THOSE EMPLOYEES WHO
 PERFORM CONTINUOUS OR NIGHT DUTY, OR WHO ARE CALLED BACK ON SPECIAL
 ASSIGNMENTS.  AS PREVIOUSLY STATED, THE AGENCY ALLEGES THAT BOTH
 PROPOSALS CONFLICT WITH GOVERNMENT-WIDE RULES OR REGULATIONS WITHIN THE
 MEANING OF SECTION 7117(A)(1) OF THE STATUTE (SUPRA N. 6), SPECIFICALLY
 OMB CIRCULAR A-118 AND FPMR TEMPORARY REGULATION D-65, AND THEREFORE ARE
 OUTSIDE THE DUTY TO BARGAIN.  MORE PARTICULARLY, THE AGENCY ASSERTS
 (WITH OBVIOUS REFERENCE TO UNION PROPOSAL 6) THAT "TIME SPENT ON PUBLIC
 TRANSPORTATION TRAVELING TO AND FROM THE WORK LOCATION IS NOT . . . ONE
 OF THE LISTED PRIORITIES TO CONSIDER WHEN ASSIGNING PARKING SPACES,"
 REFERRING TO THE PRIORITIES STATED IN OMB CIRCULAR A-118 AND FPMR
 TEMPORARY REGULATION D-65, WHICH AGENCIES ARE TO OBSERVE IN ASSIGNING
 THE PARKING SPACES UNDER THEIR CONTROL.  /7/ THE UNION, ON THE OTHER
 HAND, CONTENDS THAT NEITHER OMB CIRCULAR A-118 NOR FPMR TEMPORARY
 REGULATION D-65 AS AMENDED IS A GOVERNMENT-WIDE REGULATION WITHIN THE
 MEANING OF THE STATUTE, AND, IN ANY EVENT, THAT THE FOREGOING
 REGULATIONS DO NOT PRECLUDE THE MATTERS THAT ARE THE SUBJECT OF THE
 DISPUTED PROPOSALS.  IN THIS LATTER REGARD, THE UNION STATES THAT "THE
 INTENT OF SUCH PROPOSALS IS TO PROVIDE FOR ALLOCATION IN ADDITION TO
 THOSE SET BY OMB AND GSA(,)" AND ASSERTS THAT "NOTHING IN THE UNION'S
 PROPOSALS WOULD CONFLICT WITH OMB CIRCULAR A-118 OR (FPMR TEMPORARY)
 REGULATION D-65."
 
    THE AUTHORITY PREVIOUSLY HAS DETERMINED THAT THE GSA'S FEDERAL
 PROPERTY MANAGEMENT REGULATIONS AS CODIFIED AT TITLE 41 OF THE CODE OF
 FEDERAL REGULATIONS GENERALLY CONSTITUTE "GOVERNMENT-WIDE REGULATIONS"
 WITHIN THE MEANING OF SECTION 7117(A) OF THE STATUTE, AND THAT FPMR
 TEMPORARY REGULATION D-65 IN PARTICULAR IS A GOVERNMENT-WIDE REGULATION
 WHICH PRECLUDES NEGOTIATION OF A CONFLICTING UNION PROPOSAL.  NATIONAL
 TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL REVENUE SERVICE, NEW
 ORLEANS DISTRICT, 3 FLRA NO. 118(1980).  /8/ THE ISSUE THEN BECOMES
 WHETHER THE DISPUTED PROPOSALS IN THIS CASE ARE INCONSISTENT WITH SUCH
 REGULATION.
 
    8.  PRIORITIES FOR EMPLOYEE PARKING.  AGENCIES SHALL ENCOURAGE THE
 CONSERVATION OF ENERGY BY TAKING POSITIVE ACTION TO INCREASE CARPOOLING.
 
    A.  ASSIGNMENT OF SPACES.  IN MEETING THEIR RESPONSIBILITIES TO
 PROMOTE CARPOOLING, AGENCIES SHALL ASSIGN EMPLOYEE PARKING AS FOLLOWS:
 
    (1) HANDICAPPED EMPLOYEES . . .
 
    (2) A GOAL OF NOT MORE THAN 10 PERCENT OF THE TOTAL SPACES AVAILABLE
 ON AN AGENCYWIDE BASIS
 
    (EXCLUDING THE SPACES ASSIGNED TO SEVERELY HANDICAPPED EMPLOYEES) TO
 EXECUTIVE PERSONNEL
 
    AND/OR PERSONS WHO ARE ASSIGNED UNUSUAL HOURS. EXECUTIVE PERSONNEL
 SHOULD MAKE EVERY EFFORT TO
 
    CARPOOL.
 
    (3) VANPOOLS.
 
    (4) CARPOOLS BASED ON THE NUMBER OF MEMBERS.
 
    WHILE THE AGENCY DOES NOT ADDRESS UNION PROPOSAL 9 IN TERMS OF THE
 FOREGOING REGULATION, IT SHOULD BE NOTED THAT PARAGRAPH 8 A (2) THEREOF
 SPECIFIES A PARKING SPACE ASSIGNMENT PRIORITY FOR "PERSONS WHO ARE
 ASSIGNED UNUSUAL HOURS."
 
    AS PREVIOUSLY NOTED, WITH RESPECT TO BOTH PROPOSALS THE UNION'S
 STATED INTENT IS TO ADD TO RATHER THAN SUPERSEDE THE LIST OF PRIORITIES
 SPECIFIED BY REGULATION FOR AGENCIES TO FOLLOW IN ASSIGNING ALLOCATED
 PARKING SPACES TO EMPLOYEES.  HOWEVER, THE LITERAL LANGUAGE AND CLEAR
 MEANING OF UNION PROPOSALS 6 AND 9 WOULD REQUIRE THE AGENCY TO ALLOCATE
 RESERVED PARKING SPACES TO EMPLOYEES WHO MEET THE CONDITIONS SET FORTH
 IN THE PROPOSALS, NOTWITHSTANDING THE MANDATORY PRIORITIES ESTABLISHED
 BY GOVERNMENT-WIDE REGULATION TO GOVERN THE ALLOCATIONS OF SUCH PARKING
 SPACES.  ACCORDINGLY, AS DRAFTED, UNION PROPOSALS 6 AND 9 MUST BE FOUND
 TO CONFLICT WITH GOVERNMENT-WIDE REGULATIONS AND ARE, THEREFORE, OUTSIDE
 THE DUTY TO BARGAIN UNDER THE STATUTE.
 
    OF COURSE, IF THE PROPOSALS WERE MODIFIED TO REFLECT THE UNION'S
 STATED INTENT, I.E., THAT EMPLOYEES WHO SATISFY THE REQUIREMENTS OF THE
 PROPOSALS SHALL BE ALLOCATED RESERVED PARKING SPACES IF ANY REMAIN AFTER
 THE PRIORITIES SPECIFIED BY REGULATION ARE SATISFIED, SUCH PROPOSALS
 WOULD NOT CONFLICT WITH GOVERNMENT-WIDE REGULATIONS AND THEREFORE
 WOULD
 BE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.  /9/
 
    ISSUED, WASHINGTON, D.C., DECEMBER 31, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER  
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ UNION PROPOSALS 3 AND 7, WHICH PERTAIN TO SETTING PARKING RATES,
 SUBSEQUENTLY WERE WITHDRAWN FROM CONSIDERATION BY THE UNION AND ARE,
 THEREFORE, NOT BEFORE THE AUTHORITY FOR DECISION AT THIS TIME.
 
    /2/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, ET AL. V.  FREEMAN,
 510 F. SUPP. 596 (D.D.C. 1981).
 
    /3/ 46 F.R. 40191(1981).
 
    /4/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, ET AL.  V.
 CARMEN, CIVIL ACTION NO. 81-1244 (D.C. CIR. DEC. 15, 1981).
 
    /5/ UNION PROPOSALS 1, 2, 4, 5, AND 8 READ AS FOLLOWS:
 
    1.  EXEMPT ALL HOTA EMPLOYEES FROM PAYING FEES.
 
    2.  EXEMPT ALL CONTINUOUS DUTY EMPLOYEES.
 
    4.  EXEMPT ALL FRANCONIA WAREHOUSE EMPLOYEES FROM PAYING
 
    5.  EXEMPT ALL EMPLOYEES IN OUR BARGAINING UNITS FROM PAYING PARKING
 FEES.
 
    8.  ALL EMPLOYEES WHO WOULD BE PLACED IN A HARDSHIP STATUS DUE TO
 HAVING TO PAY A PARKING FEE SHALL BE EXEMPT FROM PAYING A PARKING FEE.
 THIS WOULD APPLY ONLY TO EMPLOYEES WITHIN THE BARGAINING UNIT OF AFGE
 LOCAL 2151.  THIS WOULD APPLY TO WG-6 AND BELOW.
 
    /6/ SECTION 7117(A)(1) OF THE STATUTE READS, IN PERTINENT PART, AS
 FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY
 FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
 WHICH ARE THE SUBJECT OF ANY RULE OR REGULATION ONLY IF THE RULE OR
 REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
 
    /7/ PARAGRAPH 8 OF OMB CIRCULAR A-118 ADDRESSES THE ALLOCATION AND
 ASSIGNMENT OF PARKING FACILITIES AND STATES, IN PART, THAT "(TO)
 MAXIMIZE THE EFFICIENT UTILIZATION OF AVAILABLE PARKING SPACES,
 ASSIGNMENTS OF SPACES TO FEDERAL EMPLOYEES SHALL BE ON THE BASIS OF THE
 REGULATIONS PROMULGATED BY GSA (FPMR 101-20.111 AND 101-20.117), AS
 AMENDED TO COMPLY WITH THIS CIRCULAR."
 
    PARAGRAPH 8 OF GSA'S IMPLEMENTING REGULATION, FPMR TEMPORARY
 REGULATION D-65, AS AMENDED, SETS FORTH CERTAIN PRIORITIES FOR THE
 ASSIGNMENT OF PARKING SPACES TO EMPLOYEES.  PARAGRAPH 8 STATES AS
 FOLLOWS:
 
    8.  PRIORITIES FOR EMPLOYEE PARKING.  AGENCIES SHALL ENCOURAGE THE
 CONSERVATION OF ENERGY BY TAKING POSITIVE ACTION TO INCREASE CARPOOLING.
 
    A.  ASSIGNMENT OF SPACES.  IN MEETING THEIR RESPONSIBILITIES TO
 PROMOTE CARPOOLING, AGENCIES SHALL ASSIGN EMPLOYEE PARKING AS FOLLOWS:
 
    (1) HANDICAPPED EMPLOYEES . . .
 
    (2) A GOAL OF NOT MORE THAN 10 PERCENT OF THE TOTAL SPACES AVAILABLE
 ON AN AGENCYWIDE BASIS
 
    (EXCLUDING THE SPACES ASSIGNED SEVERELY HANDICAPPED EMPLOYEES) TO
 EXECUTIVE PERSONNEL AND/OR
 
    PERSONS WHO ARE ASSIGNED UNUSUAL HOURS.  EXECUTIVE PERSONNEL SHOULD
 MAKE EVERY EFFORT TO
 
    CARPOOL.
 
    (3) VANPOOLS.
 
    (4) CARPOOLS BASED ON THE NUMBER OF MEMBERS.
 
    WHILE THE AGENCY DOES NOT ADDRESS UNION PROPOSAL 9 IN TERMS OF THE
 FOREGOING REGULATION, IT SHOULD BE NOTED THAT PARAGRAPH 8 A (2) THEREOF
 SPECIFIES A PARKING SPACE ASSIGNMENT PRIORITY FOR "PERSONS WHO ARE
 ASSIGNED UNUSUAL HOURS."
 
    /8/ WHILE THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HAS
 INVALIDATED THE PAID PARKING PLAN AS EMBODIED IN OMB CIRCULAR A-118 AND
 HAS RULED THAT GSA HAD NO AUTHORITY TO ISSUE A REGULATION IMPOSING FEES
 FOR PREVIOUSLY FREE PARKING, THE COURT DID NOT ADDRESS THOSE PORTIONS OF
 THE APPLICABLE REGULATIONS CONCERNING THE ALLOCATION AND ASSIGNMENT OF
 EMPLOYEE PARKING.  ACCORDINGLY, THE AUTHORITY REAFFIRMS ITS CONCLUSION
 THAT FPMR TEMPORARY REGULATION D-65 (AS NOW AMENDED IN LIGHT OF THE
 COURT'S DECISION) CONSTITUTES A GOVERNMENT-WIDE REGULATION.
 
    /9/ THE AUTHORITY NOTES THAT PARAGRAPH 8 OF OMB CIRCULAR A-118, AFTER
 LISTING A NUMBER OF PRIORITY CATEGORIES FOR RESERVED PARKING (INCLUDING
 OFFICIAL VEHICLES USED DURING THE DAY, HANDICAPPED EMPLOYEES, VANPOOLS
 AND CARPOOLS), CONCLUDES THE LIST WITH A REFERENCE TO "SINGLE OCCUPANT
 CARS," SPACE PERMITTING.