National Treasury Employees Union, Chapter 207 (Union) and Federal Deposit Insurance Corporation, Washington, D.C. (Agency)

[ v58 p409 ]

58 FLRA No. 99

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 207
(Union)

and

FEDERAL DEPOSIT
INSURANCE CORPORATION
WASHINGTON, D.C.
(Agency)

0-NG-2668

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 31, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of two proposals. For the reasons that follow, we find that the first proposal is moot, and the second proposal has no effect independent of the first proposal. Accordingly, we dismiss the petition for review.

II.     Background

      When the Agency proposed to conduct a reduction-in-force (RIF), the Union submitted a series of proposals (the RIF proposals) that included the two proposals at issue in this case (the instant proposals). As relevant here, the Agency responded that some of the RIF proposals, including the instant proposals, are inconsistent with management rights set out in the Statute. The Union requested a formal allegation of nonnegotiability, and when the Agency did not respond, the Union filed the negotiability appeal over the instant proposals on March 29, 2002.

      The Agency implemented the RIF in May 2002. The Union filed an unfair labor practice (ULP) charge alleging that the Agency failed to bargain over the RIF proposals, as well as a grievance requesting a status quo ante remedy.

III.     Proposals

      Proposal 1

A. Section 3 - Implementation of the RIF. The RIF shall be implemented in three stages. After management has developed the retention register for this RIF, it will then divide the group of affected employees at Headquarters and at the Dallas Office into thirds according to the order of retention. The HQ and Dallas Office groups with the lowest retention shall then be released on May __, 2002. The next group shall be released on May __, 2003 and the final group of employees shall be released on May __, 2004.

      Proposal 2

B. The employees in the first group shall be considered displaced employees and the employees in the second two groups shall be considered surplus employees. Employees in the second two groups shall become displaced employees when they receive their specific RIF notices.

IV.     Positions of the Parties

A.     Agency

      The Agency argues that the proposals are moot because they address a RIF that has already occurred. In the alternative, the Agency contends that the petition should be dismissed without prejudice under 5 C.F.R. § 2424.30(a) (§ 2424.30(a)) because the petition concerns issues that are directly related to the Union's ULP charge. [n2]  The Agency also contends that the proposals: affect management's right to layoff employees; are not procedures or appropriate arrangements; and are "covered by" various agreements between the parties.

B.     Union

      The Union contends that the petition is not moot because, if the Union prevails in the related grievance, then it will result in "reinstatement of the displaced employees until bargaining is completed." Response at 11. The Union also contends that the petition should not be dismissed under § 2424.30(a) because the negotiability petition and the ULP charge involve different issues. [ v58 p410 ] Further, the Union contends that the proposals are appropriate arrangements and procedures, and that they "reaffirm[]" management's rights to layoff employees. Id. at 6.

V.     Meaning of the Proposals

      The parties agree that both proposals concern a particular RIF that has already occurred. See Record of Post-Petition Conference at 2. It is undisputed that, under the first proposal, once the Agency has developed a RIF retention register, the Agency would be required to: (1) divide the affected employees into three groups according to the order of retention; and (2) release the group with the lowest retention in May 2002, with the second group to be released in May 2003, and the third group in May 2004.

VI.     Analysis and Conclusions

      Where a proposal addresses an event that has already occurred, the Authority will find that the proposal is moot and will dismiss the petition. See, e.g., Int'l Fed'n of Prof'l & Technical Eng'rs, Local 35, 54 FLRA 1384, 1387-88 (1998) (Member Wasserman dissenting) (citations omitted) (IFPTE); NFFE, Local 1482, 45 FLRA 52, 66 (1992); NTEU, 35 FLRA 7, 11 (1990). In this connection, where a proposal has become moot, issuance of a ruling on the merits of the proposal would constitute an advisory opinion, which is prohibited under 5 C.F.R. § 2429.10. [n3] Am. Fed'n of State, County & Mun. Employees, Local 1418, 53 FLRA 1191, 1195 (1998). Even where a union has argued that the issues raised by a proposal could be relevant in future situations, the Authority has dismissed the petition, noting that the concerns could be adequately addressed in a "reformulated" proposal. AFGE, Local 12, 39 FLRA 1496, 1499 (1991). Similarly, the Authority has found a proposal moot even where the union is challenging, in a pending proceeding, the legality of the action that rendered the negotiability petition moot. See IFPTE, 54 FLRA at 1385.

      The instant proposals address a particular RIF that has already occurred. In particular, the first proposal would require that the first group of employees be RIF'd in May 2002 -- a date that has passed. Although the second proposal does not contain any dates that have passed, it would have no effect without the first proposal. Thus, if the first proposal is found to be moot, then it would be meaningless for the Authority to separately address the negotiability of the second proposal. Cf. Int'l Fed'n of Prof'l & Technical Eng'rs, Local 49, 52 FLRA 813, 821 (1996) (Authority dismissed petition with regard to proposals that were "inextricably intertwined" with proposal found nonnegotiable); Int'l Org. of Masters Mates & Pilots, Marine Div., Pan. Canal Pilots Branch, 51 FLRA 333, 350-51 (1995) (where the negotiability of a proposal cannot be addressed without also addressing the negotiability of wording that is not properly before the Authority, the Authority will dismiss the petition with respect to that proposal).

      The Union asserts that the proposals are not moot because the arbitration case could result in reinstatement of the RIF'd employees, at which time the proposals could be implemented. However, the Union does not explain how, as worded, the proposals can be implemented at a future date. In this regard, the proposals expressly require the Agency to take action on specific dates that have passed. As such, even if the RIF'd employees were reinstated and the Agency were ordered to bargain over the proposals, the Agency could not implement the proposals [n4]  Accordingly, the Union's assertion does not support a conclusion that the proposals are not moot.

      For the foregoing reasons, we dismiss the petition. [n5] 

VII.     Order

      The petition for review is dismissed.


Dissenting Opinion of Chairman Cabaniss:

      I dissent from the majority's application of the mootness doctrine to instances where a bargaining proposal "as worded" has become moot by virtue of unilateral agency action, and the passage of time while the parties litigate over the agency action that make the proposal impossible to implement (such as here, where specific action dates are set out in the proposal), and the union also is alleging a bargaining obligation dispute. In such circumstances, I would instead apply the methodology set out at 5 C.F.R. § 2424.30 of our Regulations to determine whether or not to dismiss the negotiability appeal. To resolve this case as suggested by the majority has the consequence of seeming to reward an agency for taking questionable unilateral action while the negotiability appeal was pending, thereby mooting out its obligation to take part in the negotiability appeal process.



Footnote # 1 for 58 FLRA No. 99 - Authority's Decision

   Chairman Cabaniss' dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 58 FLRA No. 99 - Authority's Decision

   5 C.F.R. § 2424.30(a) provides, in pertinent part:

Except for proposals or provisions that are the subject of an agency's compelling need claim under 5 U.S.C. 7117(a)(2), where an exclusive representative files an unfair labor practice charge pursuant to part 2423 of this subchapter or a grievance alleging an unfair labor practice under the parties' negotiated grievance procedure, and the charge or grievance concerns issues directly related to the petition for review filed pursuant to this part, the Authority will dismiss the petition for review . . . without prejudice.

Footnote # 3 for 58 FLRA No. 99 - Authority's Decision

   5 C.F.R. § 2429.10 provides: "The Authority and the General Counsel will not issue advisory opinions."


Footnote # 4 for 58 FLRA No. 99 - Authority's Decision

   If bargaining results and the Agency alleges that a subsequent Union proposal is nonnegotiable, then the Union may file a negotiability appeal regarding that proposal. See AFGE, Local 12, 39 FLRA at 1499 (Authority dismissed petition but noted union's concerns could be "adequately addressed in a proposal reformulated" to exclude specific dates."). As such, and consistent with IFPTE, 54 FLRA at 1388 n.4, the dismissal of the petition here is without prejudice to the Union's right to file a