National Federation of Federal Employees, Local 1461 (Union) and U.S. Naval Observatory, Washington, DC (Activity) (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 Naval Observatory union sought to exempt employees with unusual schedules from parking fees as shift workers. While its negotiability appeal was pending, a federal court invalidated the government parking fee program. The Authority held the proposal no longer presented a live dispute and dismissed the appeal without prejudice to renewal if fees lawfully resumed.

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 invalid parking fee program could not support a live negotiability dispute.

Full text (FLRA public release)

[ v06 p696 ]

06:0696(119)NG

The decision of the Authority follows:

6 FLRA No. 119

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1461
Union

and

U.S. NAVAL OBSERVATORY,
WASHINGTON, D.C.
Activity

Case No. O-NG-280

ORDER DISMISSING 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. 7101-7135).

THE RECORD INDICATES THAT, PURSUANT TO OFFICE OF MANAGEMENT AND
BUDGET (OMB) CIRCULAR A-118 AND A DEPARTMENT OF DEFENSE (DOD) DIRECTIVE
IMPLEMENTING THE OMB CIRCULAR, DATED OCTOBER 11, 1979, THE U.S. NAVAL
OBSERVATORY ESTABLISHED A PAID PARKING PROGRAM. THE UNION REQUESTED
LOCAL NEGOTIATIONS CONCERNING THE IMPLEMENTATION OF THAT PROGRAM. IN
PARTICULAR, THE UNION PROPOSED THAT EMPLOYEES WHOSE SCHEDULED DUTY
HOURS
DIFFERED FROM THE NAVAL OBSERVATORY'S "NORMAL DUTY HOURS" BE CLASSIFIED
AS "SHIFT WORKERS" WHO, UNDER THE CIRCULAR AND THE DIRECTIVE, ARE EXEMPT
FROM PAYING ANY PARKING FEES. IN RESPONSE TO THE UNION'S REQUEST FOR
NEGOTIATIONS, THE U.S. NAVAL OBSERVATORY ALLEGED THAT THE MATTER OF
INTERPRETING THE DEFINITION OF "SHIFT WORKER," AS SET FORTH IN THE OMB
CIRCULAR AND THE DOD DIRECTIVE, FOR PURPOSES OF EXEMPTING SUCH WORKERS
FROM PAYMENT OF PARKING FEES WAS NONNEGOTIABLE. /1/ THE UNION THEN
FILED THE INSTANT NEGOTIABILITY APPEAL WITH THE AUTHORITY.

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/

UNDER THESE CIRCUMSTANCES, SINCE IT HAS BEEN HELD THAT THE OMB
CIRCULAR PURSUANT TO WHICH THE PAID PARKING PLAN WAS ESTABLISHED COULD
NOT CONVEY AUTHORITY TO IMPOSE FEES FOR PARKING, THE IMPOSITION OF SUCH
FEES PURSUANT TO A DOD DIRECTIVE IMPLEMENTING THE OMB CIRCULAR WOULD BE
UNLAWFUL AT THIS TIME. IT IS THUS APPARENT THAT EMPLOYEES AT THE U.S.
NAVAL OBSERVATORY ARE NOT CURRENTLY BEING CHARGED FOR PARKING PURSUANT
TO THE OMB CIRCULAR AND DOD DIRECTIVE.

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 U.S. NAVAL OBSERVATORY ALSO CONTENDS THAT THE UNION'S APPEAL
SHOULD BE DISMISSED BECAUSE IT DOES NOT CONTAIN A SPECIFIC PROPOSAL.
HOWEVER, IN VIEW OF THE AUTHORITY'S DISPOSITION HEREIN, IT IS
UNNECESSARY TO PASS UPON SUCH CONTENTION.

/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).