American Federation of Government Employees, Local 1118, AFL-CIO (Union) and Transportation, Federal Aviation Administration, 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 union proposed using actual operating costs to set employee parking fees at Washington National Airport. While the negotiability appeal was pending, a federal court invalidated the government parking fee program and enjoined its enforcement. The Authority dismissed the appeal as moot, without prejudice to renewal if the injunction was removed. It did not decide whether the proposal was negotiable.

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 ceased to be live under the court injunction.

Full text (FLRA public release)

[ v06 p699 ]

06:0699(120)NG

The decision of the Authority follows:

6 FLRA No. 120

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1118
Union

and

DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
WASHINGTON, D.C.
Activity

Case No. O-NG-300

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 THE FOREGOING REGULATIONS, THE ACTIVITY
PRESENTED THE UNION WITH A DRAFT DIRECTIVE REGARDING "PROCEDURES FOR THE
ISSUANCE, FEES, COLLECTION AND USE OF EMPLOYEE PARKING PERMITS AT
WASHINGTON NATIONAL AIRPORT." IN RESPONSE, THE UNION SUBMITTED A
PROPOSAL WHICH PROVIDED, IN PART, THAT EMPLOYEE PARKING WILL BE BASED ON
THE "RECOVERY FEE," I.E., THE ACTUAL COSTS INCURRED IN OPERATING THE
PARKING FACILITY. /1/ THE ACTIVITY ALLEGED THAT THE PROPOSAL WAS
NONNEGOTIABLE, ON THE GROUND THAT IT 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 PROPOSAL
WAS INCONSISTENT WITH OMB CIRCULAR A-118 AND FPMR TEMPORARY REGULATION
D-65 AND HENCE WAS 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, /2/ GSA HAS REVISED THE
REGULATION TO SUSPEND THE COLLECTION OF PARKING FEES AT THIS TIME IN
ACCORDANCE WITH THE INJUNCTION. /3/

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 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 UNION'S PROPOSAL SUBMITTED TO THE ACTIVITY PROVIDED AS
FOLLOWS:

PURSUANT TO THE PROVISIONS OF OMB A118, THE FAIR VALUE OF EMPLOYEE
PARKING WILL BE BASED ON THE RECOVERY FEE, AS IT HAS BEEN FOR THIS
COMMERCIAL PARKING IN THE PAST. THE RATE FOR THE PERIOD NOVEMBER 1,
1979 THROUGH SEPTEMBER 30, 1980 WILL BE $19.00. THIS IS CONSISTENT WITH
FAA ORDER 5400.1A.

/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).