Association of Civilian Technicians, Show-Me Army Chapter (Union) and United States, Department of the Army, Missouri National Guard, Jefferson City, Missouri (Agency)

[ v59 p378 ]

59 FLRA No. 53




(58 FLRA 154 (2002))



October 1, 2003


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

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Richard John Miller filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The award was issued on remand from the Authority's decision in ACT, Show-Me Army Chapter, 58 FLRA 154 (2002) (ACT). The Agency filed an opposition to the Union's exceptions. In addition, the Authority issued an Order to Show Cause why the exceptions should not be dismissed as moot, to which the Union filed a response.

      In the award at issue here, the Arbitrator found that the Agency did not violate regulations or the parties' agreement when it placed an employee (the selectee) into a GS-9 position. For the following reasons, we find the dispute moot and dismiss the exceptions.

II.     Background

      When the Agency noncompetitively promoted the selectee from a WG-8 to a WG-11 position, the Union filed a grievance. In his first award, the Arbitrator sustained the grievance and directed that the Agency vacate the position. The Agency did so but, rather than returning the selectee to his previous WG-8 position, the Agency placed the selectee in a GS-9 position. No exceptions were filed to the first award. [ v59 p379 ]

      The Union filed another grievance, alleging that the placement of the selectee in the GS-9 position violated law, Agency regulation, and the parties' agreement. After the Union filed a related unfair labor practice (ULP) charge that was dismissed, the Arbitrator held, in his second award, that the grievance was not substantively arbitrable due to the filing of the ULP charge. On review of the Union's exceptions to that award, the Authority set aside the award as contrary to § 7116(d) of the Statute because the ULP charge was filed subsequent to the grievance and, thus, did not bar the grievance. See ACT, 58 FLRA at 155. The Authority remanded the matter to the parties for resubmission, absent settlement, for a decision on the merits of the grievance. See id.

      On remand, in the award at issue here (the third issued by this Arbitrator), the Arbitrator held that the Union failed to establish that placement of the selectee in the GS-9 position violated the parties' agreement or regulation. The Arbitrator held that although placement of the selectee in the GS-9 position constituted a promotion, that promotion was the result of the selectee completing training that provided him with a higher military grade. The Arbitrator determined that, once the selectee had completed that training and received that higher military grade, returning him to his original WG-8 position would have created an illegal military grade inversion. [n1]  According to the Arbitrator, "[t]he only legal solution" was to do what the Agency did here: "to find a comparable position to the WG-08 position, which would allow [the selectee] to retain the Military grade of Warrant Officer." Award at 16. Because the Union failed to demonstrate that the Agency's actions were improper, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Union Exceptions

      The Union argues that the award is contrary to law. Specifically, the Union claims that nothing in 32 U.S.C. § 709(b) or (f) (§ 709(b) and (f)), "or the regulatory prohibition against grade inversion, either trumps or creates an exemption from lawful regulatory and contractual provisions requiring that competitive procedures be used to select employees for promotion." [n2] / Exceptions at 4. In this connection, the Union contends that the Arbitrator erred by stating that the Agency's only legal option was to place the selectee in the GS-9 position because the Agency had other legal options, including terminating the selectee.

      The Union requests that the Authority set aside the award and remand it for resubmission, absent settlement, for the Arbitrator to determine whether: (1) the Agency violated Agency regulation and the contract by placing the selectee in the GS-9 position; and (2) 5 C.F.R. § 532.405(a)(1) (§ 532.405(a)(1)) permits the Agency to use the selectee's previous WG-11, step 3 pay rate to determine his new pay rate in the event that he is placed into a new position. [n3] / Id. In the alternative, the Union states that if the Authority "deems the arbitrator implicitly to have decided" that the Agency properly based the selectee's GS-9, step 9 pay rate on the WG-11, step 3 rate, then the Authority should set aside the award as contrary to § 532.405(a)(1) because the selectee never lawfully held the WG-11 position. Id. at 5.

B.     Agency Opposition

      According to the Agency, the dispute in this case is moot. Specifically, the Agency contends that the selectee is no longer in the disputed GS-9 position because he has been properly selected (again) for the WG-11 position to which he previously had been promoted, and there is no reasonable expectation that he will return to the GS-9 position. The Agency also contends that the award is not contrary to law.

IV.     Order to Show Cause and Union Response

      Based on the Agency's argument that this dispute is moot, the Authority issued an Order to Show Cause directing the Union to state why the Union's exceptions should not be dismissed. In response, the Union argues that the selectee was promoted out of the GS-9 position prior to the Arbitrator's second award and, because the Agency failed to raise a mootness argument before the Arbitrator issued that award or in its exceptions to that award, 5 C.F.R. § 2429.5 (§ 2429.5) precludes the Agency from raising the argument now. [n4]  The Union [ v59 p380 ] also claims that the Agency is precluded from now asserting that the dispute is moot because the Authority's direction in ACT, 58 FLRA 154, "requiring `a decision on the merits[,]' is the law of the case." Response at 2 (citation omitted).

      The Union claims that, in any event, the dispute is not moot. Specifically, the Union asserts that removal of the selectee from the GS-9 position "is not the only relief the Union may seek" if the Authority remands the third award because it "may seek an award that invalidates the Agency's `misinterpretation[s] . .  of law'" and that "order[s] the Agency not to base future personnel actions on these misinterpretations." Id. at 1 (citations omitted). The Union also claims that it "does challenge the reselection of [the selectee]" into the WG-11 position, and that "the Arbitrator properly may address this issue on remand[,]" which could lead to the Agency removing the selectee from the WG-11 position and returning him to the disputed GS-9 position. Id. at 3 n.7.

V.     Analysis and Conclusion

      As an initial matter, we reject the Union's claim that the Agency is precluded from raising mootness because it failed to raise that argument previously. Mootness is a threshold jurisdictional issue, Int'l Fed'n of Prof'l & Technical Eng'rs, Local 35, 54 FLRA 1384, 1387 n.3 (1998) (IFPTE), that may be raised at any stage of the Authority's proceedings, United States Dep't of the Interior, Nat'l Park Serv., Golden Gate Nat'l Recreation Area, S.F., Cal., 55 FLRA 193, 195 (1999). We also reject the Union's assertion that the dispute may not be found moot because the Authority's decision in ACT, 58 FLRA 154, directed the Arbitrator to resolve the merits on remand. In ACT, there was no indication that the dispute was moot and, as such, the Authority did not, explicitly or implicitly, address that issue or preclude it from being raised at this stage of the proceedings.

      With regard to the merits of the Agency's mootness argument, a dispute becomes moot when the parties no longer have a legally cognizable interest in the outcome. See Soc. Sec. Admin., Boston Region (Region 1), Lowell Dist. Office, Lowell, Mass., 57 FLRA 264, 268 (2001) (SSA Boston). The burden of demonstrating mootness is a heavy one. Id. The party urging mootness meets its burden by demonstrating that: (1) there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely or irrevocably eradicated the effects of the alleged violation. Id. The Authority has found that, where a selectee is no longer in a particular position, a dispute concerning a portion of an arbitral award directing the agency to remove the selectee from that position is moot. See Nat'l Labor Relations Bd., 50 FLRA 88, 93 (1995) (NLRB).

      With regard to the first mootness requirement, as in NLRB, 50 FLRA at 93, it is undisputed that the selectee is no longer in the disputed GS-9 position. Instead, the selectee has applied, and again been selected, for the WG-11 position into which he was initially selected. Although the Union argues that placement of the selectee into the GS-9 position may recur because the Union "does challenge the reselection" of the selectee for the WG-11 position, Response at 3 n.7, the reselection for the WG-11 position was not at issue before the Arbitrator. Further, the Union does not allege that it has filed a separate grievance over the reselection, and the possibility that it might do so in the future provides no basis for finding that the dispute now before the Authority is not moot. See NFFE, Local 1998, 48 FLRA 1074, 1074-75 (1993). Moreover, the Union's claim that the Arbitrator could address this issue on remand also provides no basis for finding that the dispute is not moot. In this regard, even if the Authority resolved the Union's exceptions in its favor and remanded for further proceedings, the