American Federation of Government Employees, Local 1935 (Union) and Department of the Army, Headquarters, Army Military District of Washington, Fort Lesley J. McNair, 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 exempting lower grade employees from parking fees at Fort McNair. While the negotiability appeal was pending, a federal court invalidated the government parking fee program and enjoined its enforcement. The Authority held that the dispute was moot and dismissed the appeal without prejudice to renewal if lawful fees returned. 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 proposal no longer presented a live dispute while the parking fee program was enjoined.

Full text (FLRA public release)

[ v06 p701 ]

06:0701(121)NG

The decision of the Authority follows:

6 FLRA No. 121

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1935
Union

and

DEPARTMENT OF THE ARMY,
HEADQUARTERS, U.S. ARMY
MILITARY DISTRICT OF WASHINGTON,
FORT LESLEY J. McNAIR,
WASHINGTON, D.C.
Activity

Case No. O-NG-348

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 DEPARTMENT OF DEFENSE (DOD) DIRECTIVE
4165.62 IMPLEMENTING THE PARKING POLICY ESTABLISHED IN OMB CIRCULAR
A-118, THE DEPARTMENT OF THE ARMY ESTABLISHED A PAID PARKING PROGRAM
APPLICABLE TO EMPLOYEES AT THE ACTIVITY. IN RESPONSE, THE UNION
SUBMITTED A PROPOSAL /1/ SEEKING TO EXEMPT CERTAIN LOWER GRADED
EMPLOYEES FROM PAYING PARKING FEES. THE ARMY ALLEGED THAT THE UNION'S
PROPOSAL WAS NONNEGOTIABLE BECAUSE IT CONFLICTED WITH THE OMB CIRCULAR
AND THE DOD DIRECTIVE. 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 HENCE WAS NONNEGOTIABLE.
/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 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, /3/ GSA HAS REVISED THE
REGULATION TO SUSPEND THE COLLECTION OF PARKING FEES AT THIS TIME IN
ACCORDANCE WITH THE INJUNCTION. /4/

UNDER THESE CIRCUMSTANCES, SINCE 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, THE REGULATION IS
NOT BEING EFFECTUATED AT THIS TIME IN ACCORDANCE WITH THE INJUNCTION.
SIMILARLY, THE IMPOSITION OF FEES PURSUANT TO THE IMPLEMENTING DOD
DIRECTIVE WOULD BE UNLAWFUL AT THIS TIME.

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 PROPOSAL STATED THAT "(A)LL EMPLOYEES GS 1-5 AND ALL
EMPLOYEES WG 2-5 WILL BE EXEMPT FROM PAYING PARKING FEES."

/2/ THE AGENCY ALSO CONTENDED 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. 4019 (1981).