National Treasury Employees Union (Union) and Department of the Treasury, U.S. Customs Service, 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

The Treasury employees union proposed four exemptions from parking fees for Customs employees, including shift, weekend, and government business parking. While the negotiability appeal was pending, a federal court invalidated the government parking fee program and enjoined enforcement. The Authority dismissed the appeal as moot without prejudice to renewal if the injunction was removed.

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 Authority did not decide the exemptions while the underlying parking fee program was enjoined.

Full text (FLRA public release)

[ v06 p693 ]

06:0693(118)NG

The decision of the Authority follows:

6 FLRA No. 118

NATIONAL TREASURY EMPLOYEES UNION
(Union)

and

DEPARTMENT OF THE TREASURY,
U.S. CUSTOMS SERVICE,
WASHINGTON, D.C.
(Agency)

Case No. O-NG-248

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, THE AGENCY SUBMITTED TO THE UNION A DRAFT DIRECTIVE
IMPLEMENTING THE PARKING POLICY ESTABLISHED ON OMB CIRCULAR A-1D1 DURING
RELATED NEGOTIATIONS, THE AGENCY ALLEGED THAT FOUR OF THE UNION
PROPOSALS (SET FORTH IN AN APPENDIX HERETO), WHICH ATTEMPTED TO EXEMPT
CERTAIN GROUPS OF EMPLOYEES FROM PARKING FEES, WERE NONNEGOTIABLE ON THE
GROUND THAT THE PROPOSALS CONFLICTED WITH A GOVERNMENT-WIDE REGULATION.
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.

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, /1/ GSA HAS REVISED THE
REGULATION TO SUSPEND THE COLLECTION OF PARKING FEES AT THIS TIME IN
ACCORDANCE WITH THE INJUNCTION. /2/

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 ISSUES RAISED WITH RESPECT TO THE
DISPUTED PROPOSALS INVOLVED IN THE INSTANT APPEAL HAVE 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
MATTERS IN DISPUTE, AS PROPOSED TO BE NEGOTIATED, ARE 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

APPENDIX

UNION PROPOSALS

1. ALL EMPLOYEES WHO ARE ASSIGNED TO REGULARLY ROTATING SHIFTS WHICH
   FROM TIME TO TIME DO START AND END OUTSIDE THE NORMAL CUSTOMS SERVICE
   EIGHT HOUR WORKING DAY SHALL BE EXEMPT FROM THE INSTITUTION OF PARKING
   FEES EXCEPT EMPLOYEES ON FLEXI-TIME OR OVERTIME.

2. ANY EMPLOYEE WHO IS REQUIRED TO WORK ON A WEEKEND DURING ANY
   MONTH OF THE YEAR SHALL BE EXEMPT FROM THE INSTITUTION OF PARKING FEES
   DURING SUCH MONTH.

3. ANY EMPLOYEE WHOSE WORK WEEK REGULARLY INCLUDES THE WEEKEND SHALL
   BE EXEMPT FROM THE INSTITUTION OF PARKING FEES.

4. ANY CUSTOMS EMPLOYEE WHO UTILIZES HIS/HER POV 12 OR MORE WORKDAYS
   PER MONTH FOR GOVERNMENT BUSINESS FOR WHICH THE CUSTOMS EMPLOYEE
   RECEIVES REIMBURSEMENT FOR MILEAGE AND PARKING FEES UNDER GOVERNMENT
   TRAVEL REGULATIONS, SHALL BE EXEMPT FROM THE INSTITUTION OF PARKING FEES
   DURING SUCH MONTH.

--------------- FOOTNOTES: ---------------

/1/ 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).

/2/ 46 F.R. 40191(1981).