American Federation of Government Employees, Local 2782, AFL-CIO (Union) and Department of the Commerce, Bureau of the Census, Washington, DC (Agency) (Authority decision, September 25, 1981)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A Census union challenged the agency’s refusal to bargain over a proposed parking fee arrangement. While the appeal was pending, a federal court invalidated the government parking fee program and enjoined enforcement. The Authority held that the negotiability dispute was moot and dismissed the appeal without prejudice to renewal if the injunction was lifted.

Decision snapshot

• Authority: 5 U.S.C. § 7105(a)(2)(E), 5 U.S.C. § 7117.
• Outcome: Negotiability appeal dismissed without prejudice as moot.
• Key point: The parking fee dispute was no longer live under the injunction.

Full text (FLRA public release)

[ v06 p690 ]

06:0690(117)NG

The decision of the Authority follows:

6 FLRA No. 117

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2782
Union

and

DEPARTMENT OF COMMERCE,
BUREAU OF THE CENSUS,
WASHINGTON, D.C.
Agency

Case No. O-NG-235

DECISION AND ORDER ON 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 ET SEQ.).

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 F.R. 53161), WHICH PRESCRIBED PROCEDURES
FOR THE ASSIGNMENT OF PARKING SPACES AND THE ASSESSMENT OF FEES. THE
RECORD FURTHER INDICATES THAT ON THE EFFECTIVE DATE OF THE GSA
REGULATION, THE UNION REQUESTED THAT THE AGENCY BARGAIN OVER "THE
EXISTENCE AND AMOUNT OF MONTHLY PARKING FEES," AND ASKED THE AGENCY FOR
ANY NONNEGOTIABILITY DETERMINATION THAT IT MAY CHOOSE TO ASSERT. THE
AGENCY ALLEGED THAT THE SUBJECT MATTER WAS NONNEGOTIABLE BECAUSE IT
CONFLICTED WITH A GOVERNMENT-WIDE REGULATION. THE UNION THEN FASHIONED
A SECOND PROPOSAL, THE PROPOSAL AT ISSUE HEREIN, AND SUBMITTED IT TO THE
AGENCY FOR CONSIDERATION. /1/ THE AGENCY ALLEGED THAT THIS SECOND
PROPOSAL WAS FOR THE SAME REASON NONNEGOTIABLE AND THE UNION APPEALED TO
THE AUTHORITY. /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 NO. A-118 WAS INVALID AND THUS DID NOT
CONVEY ANY AUTHORITY TO GSA TO ISSUE A 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/

INASMUCH AS THE U.S. DISTRICT COURT HAS DECLARED THE GSA PARKING FEE
REGULATION IMPLEMENTING OMB CIRCULAR NO. 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, APART FROM OTHER CONSIDERATIONS, 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 PROPOSAL STATED:

PROPOSALS ON PROCEDURES FOR DETERMINING PARKING FEE

IF A WORKSITE IS LOCATED SUCH THAT THE USE OF PUBLIC TRANSPORTATION
LENGTHENS COMMUTING TIME FOR AT LEAST HALF OF THE EMPLOYEES BY AT LEAST
25% THEN NO PARKING FEE WILL BE ASSESSED AT THAT WORKSITE, ELSE IF THE
VALUE OF A PARKING SPACE IN A 1/2-MILE RADIUS OF THE WORKSITE IS LESS
THAN $10/MONTH AS DETERMINED BY A MUTUALLY AGREED ON APPRAISER, THEN NO
PARKING FEE WILL BE ASSESSED AT THAT WORKSITE, ELSE IF THE COST OF
MAINTAINING, LIGHTING AND PATROLLING THE PARKING LOT AT A WORKSITE IS
LESS THAN $10/MONTH SPACE THEN NO PARKING FEE WILL BE ASSESSED AT THAT
WORKSITE, ELSE THE PARKING FEE WILL BE WHICHEVER IS LOWER OF THE
FOLLOWING AMOUNTS: THE ACTUAL COST OF LIGHTING, MAINTAINING AND
PATROLLING THE PARKING SPACE, THE CORRESPONDING COMMERCIAL RATE WITHIN A
1/2-MILE RADIUS OF THE WORKSITE, AS DETERMINED BY A MUTUALLY AGREED UPON
APPRAISER.

/2/ THE AGENCY ALSO CONTENDS 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. 40191(1981).