United States, Department of Defense, Defense Logistics Agency, Defense Supply Center Columbus, Columbus, Ohio (Activity) and International Federation of Professional and Technical Engineers, Local 7, AFL-CIO (Petitioner) and United States, Department of Defense, Defense Logistics Agency, Defense Supply Center, Columbus, Columbus, Ohio (Activity) and American Federation of Government Employees, Local 1148, AFL-CIO, (Petitioner)

[ v60 p974 ]

60 FLRA No. 174

UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE SUPPLY CENTER COLUMBUS
COLUMBUS, OHIO
(Activity)

and

INTERNATIONAL FEDERATION
OF PROFESSIONAL AND
TECHNICAL ENGINEERS
LOCAL 7, AFL-CIO
(Petitioner)

and

UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE SUPPLY CENTER
COLUMBUS, COLUMBUS, OHIO
(Activity)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1148, AFL-CIO
(Petitioner)

CH-RP-02-0025
CH-RP-02-0031
(60 FLRA 523)

_____

DECISION ON REVIEW

May 31, 2005

_____

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

I.      Statement of the Case

      By Order dated December 29, 2004, the Authority granted, in part, and denied, in part, the application for review, filed under § 2422.31 of the Authority's Regulations, of the International Federation of Professional and Technical Employees, Local 7, AFL-CIO (IFPTE), of the Regional Director's (RD) Decision and Order. United States Dep't of Def., Def. Logistics Agency, Def. Supply Ctr. Columbus, Columbus, Ohio, 60 FLRA 523 (2004) (DOD). Subsequently, the Office of Personnel Management (OPM) issued a Classification Appeal Decision, Case No. C-1910-11-02 (January 31, 2005) (OPM Decision) that affects the positions at issue in DOD.

      Upon consideration of OPM's Decision, we find that the entire matter has become moot. Accordingly, we vacate the Order issued in DOD and the underlying RD's Decision and Order, and we dismiss the application for review and the petitions filed by IFPTE and AFGE.

II.     The Authority's Decision in DOD

      The Activity involved in this case is a field component of the Defense Logistics Agency (DLA). The IFPTE is the exclusive representative for "[a]ll non-professional and technical employees located at the [the Activity] holding career or career-conditional appointments in the classifications of Equipment Specialists (Series GS-1670) [ES] and Quality Assurance Specialists (Series GS-1910) [QAS]." DOD, 60 FLRA at 523. The unit specifically excludes all non-professional employees who are not in the ES or QAS positions. Id. AFGE is the exclusive representative of a nationwide consolidated unit of the DLA that includes non-professionals employees of the Activity, excluding the ES and QAS positions represented by IFPTE.

      The Activity created a new Product Specialist (PS) position, GS-301-11 by "combining some of the job duties of the ES and QAS positions." Id., 60 FLRA at 524. Both IFPTE and AFGE filed petitions concerning the bargaining unit placement of the newly created PS position. IFPTE asserted that the position should be placed in its unit because those employees share a community of interest with the ES and QAS who are represented by IFPTE. Id. Both the Activity and AFGE contended that the PS position should be placed in AFGE's bargaining unit because the incumbents of that position share a community of interest with employees in AFGE's unit and the inclusion of them would promote effective dealings and efficiency of operations at the Activity. Id. In addition, the Activity argued that by the express terms of AFGE's bargaining unit certificate, the PS position is automatically included in the AFGE unit.

      The RD's Decision and Order dismissed IFPTE's petition, finding that the PS position should be included in the bargaining unit represented by the AFGE and clarified AFGE's unit to include the new position. The RD's Decision and Order stated that: "the AFGE-DLA unit is clarified by including the [PS position] in the unit." RD's Decision at 6. [ v60 p975 ]

      In granting review, the Authority directed the parties to file briefs addressing the following question:

What standard should the Authority apply in determining the unit status of a new position created by combining the duties of two existing positions comprising a functional bargaining unit (unit A), where the new position is dissimilar in nature but has the same classification series as positions in a different bargaining unit and also falls within the description of that different bargaining unit (unit B)? How should that standard be applied to this case?

DOD, 60 FLRA at 527.

      The Order also directed the parties to file briefs on the above question by January 28, 2005. The parties filed briefs as directed.

III.     OPM Decision

      On January 31, 2005, subsequent to the parties having filed briefs as directed by the Authority's Order, OPM issued a classification decision concerning positions encumbered by employees involved in this case. In the OPM Decision, a group of employees represented by IFPTE, who occupy positions at the Activity classified as PS, GS-301-11, filed a classification appeal with OPM asserting that their positions should be classified as Quality Assurance Specialists, GS-1910-13. OPM accepted the appeal and concluded, based on a comparison of the employees' current duties and responsibilities to OPM's standards and guidelines, that the positions that the employees occupy are "properly classified as [QA] Specialist, GS-1910-11." OPM Decision at 15. Accordingly, the decision "set[] aside any previous [Activity] decision." Id. at 2.

IV.     Positions of the Parties

A.     The Activity

      The Activity filed a supplemental submission informing the Authority of OPM's Decision. The Activity asserts that in light of OPM's Decision: (1) the petition filed by AFGE to "include the Product Specialist GS-301-11 position in its bargaining unit is moot[;]" (2) "matters should return to the status quo ante[;]" and (3) the "[QA] Specialist GS-1910-11 position is included in the bargaining unit represented by [IFPTE]." Activity's Supplemental Submission at 1.

B.     AFGE

      AFGE filed a supplemental submission asserting that the "OPM [D]ecision placed the [PS] position within the plain language of the certification of [IFPTE]." AFGE's Supplemental Submission at 1. "Given this development," it is AFGE's position that the OPM Decision "renders both IFPTE's and AFGE's petitions moot." Id. AFGE further notes that the Activity also asserts that the petition is moot. Therefore, AFGE contends that it "seeks" by its submission "to either withdraw its petition or have the Authority dismiss both AFGE's and IFPTE's petitions." Id.

C.     IFPTE

      IFPTE did not file a supplemental submission.

IV.     The Supplemental Submissions Will Be Considered                                                            

      Although the Authority's Regulations do not provide for the filing of supplemental submissions, the Authority may, in its discretion, pursuant to 5 C.F.R. § 2429.26, grant leave to file documents as the Authority deems appropriate. See, e.g., United States Dep't of Housing & Urban Dev., Denver, Colo., 53 FLRA 1301, 1309 n.6 (1998) (where party had not previously requested permission to file a supplemental submission, Authority accepted and considered the submission); United States Equal Employment Opportunity Comm'n, 51 FLRA 248 n.1 (1995). Neither the Activity nor AFGE requested leave to file supplemental submissions. However, as the Authority may grant leave to file documents as the Authority deems appropriate, and in light of OPM's Decision and the issue in dispute, as discussed below, we believe it appropriate to consider the submissions.

V.     Analysis and Conclusions

      The record evidence clearly shows that IFPTE is the certified exclusive representative of employees occupying the position of "[QA] Specialists (Series GS-1910)." DOD, 60 FLRA at 523. The issue in this case arises from a dispute over whether the newly created PS position should be included in AFGE's or IFPTE's bargaining unit, which the OPM Decision clearly resolves. In that regard, the OPM Decision finds that the proper classification of the PS position is QAS, GS-1910-11. Both the Activity and AFGE concede that the dispute is controlled by OPM's Decision and that OPM has determined that the proper classification for employees occupying PS positions is QAS, which position is included in IFPTE's certified unit. Therefore, both seek to have AFGE's petition dismissed as moot.

      The Authority has held that 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., [ v60 p976 ] 57 FLRA 264, 268 (2001) (SSA). The burden of demonstrating mootness is a heavy one. Ass'n of Civilian Technicians, Show-Me Army Chapter, 59 FLRA 378, 380 (2003) (citing SSA, 57 FLRA at 268). 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.

      In this case, the RD's Decision dismissed IFPTE's petition and clarified AFGE's unit by including the PS position. The Authority granted review in part to consider what standard should apply in determining the unit status of the PS position. However, subsequent events--OPM's Decision that the proper classification for the PS position is as a QAS, which is in IFPTE's unit, and AFGE's and the Activity's acknowledgment that OPM's decision controls the issue in dispute-