National Treasury Employees Union (Union) and United States Department of Homeland Security, United States Customs and Border Protection, Washington, D.C. (Agency)

[ v63 p28 ]

63 FLRA No. 12

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
UNITED STATES
CUSTOMS AND BORDER PROTECTION
WASHINGTON, D.C.
(Agency)

0-MC-24

_____

ORDER

December 9, 2008

_____

Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      The Union has filed with the Authority a request that the Authority issue a stay directing the Federal Service Impasses Panel (the Panel) to defer any proceedings in United States Department of Homeland Security, United States Customs and Border Protection, Washington, D.C., Case No. 07 FSIP 92, which concerns the parties' bargaining dispute over Foreign Language Allowance Program (FLAP) performance awards. Pursuant to an order of the Authority, the Agency filed an opposition to the Union's request.

      For the reasons that follow, we dismiss the Union's request as moot.

II.      Background

      In March 2003, several federal agencies were transferred to the United States Department of Homeland Security (DHS) pursuant to the Homeland Security Act of 2002. The Act established the Agency as a division of DHS. The Agency is staffed with employees of three former agencies: (1) Immigration and Naturalization Service (INS); (2) United States Customs Service (Customs Service); and (3) United States Department of Agriculture (Agriculture). At their former agencies, these employees were represented by different unions. In 2004, petitions were filed to determine the exclusive representative of these employees. In 2007, the Union, which represented employees transferred from the Customs Service, was certified as the exclusive representative of a unit of the Agency's employees.

      Prior to that certification, the Agency had proposed changes to the FLAP performance award program and reached agreement with the unions representing employees transferred from INS and Agriculture. The Union and the Agency began bargaining on the proposed changes as they pertained to employees transferred from Customs Service. The bargaining continued after the Union was certified as the exclusive representative of the Agency's employees. Union's Request for a Stay (Request) at 9. The parties were unable to reach an agreement, and the Union requested the assistance of the Panel. At the same time, the Union requested to negotiate an initial term collective bargaining agreement, and its proposals for that agreement included a proposal addressing FLAP awards.

      Following an investigation of the request for assistance, the Panel asserted jurisdiction and ordered the parties to return to the bargaining table with the assistance of the Federal Mediation and Conciliation Service (FMCS). The Panel advised the parties that, if any issues remained unresolved, then they should submit their final offers and the Panel would resolve the impasse through the issuance of a binding decision, selecting between the offers on a package basis, "to the extent they otherwise appear to be legal." Decision and Order at 1-2. The Panel explained that the proviso was designed to provide flexibility for it to modify a final offer to ensure that its imposition would withstand legal scrutiny in view of the parties' dispute over whether a Panel order should apply to the bargaining unit certified by the Authority in 2007.

      Pursuant to the Panel order, the parties met with FMCS and reached agreement on most of the issues raised in bargaining. As to the remaining issues, the parties submitted their final offers to the Panel. At the same time, the Union requested that the Panel decline to retain jurisdiction. Id. at 5. In this regard, the Union challenged the Panel's jurisdiction on the basis of the parties' dispute over the issue of the employees to be covered by any agreement. The Union also asserted that it had the right to insist that bargaining only occur in the context of the parties' negotiations for a term collective bargaining agreement. When the Panel did not withdraw its jurisdiction, the Union filed its request that the Authority stay the proceedings. [ v63 p29 ]

III.      Positions of the Parties

A.      Union's Request for a Stay

      The Union argues that the Authority is empowered under the Statute to grant its request for a stay of the Panel proceedings. In support of its request, the Union relies on NTEU, 32 FLRA 1131 (1988), in which the Authority granted stays of Panel orders. The Union notes that the Authority ruled in NTEU that the Statute confers on the Authority the power to stay Panel proceedings and asserts that the Authority should exercise this power in this case because this case is identical in all material respects to NTEU. The Union further asserts that the equities of this case warrant the issuance of a stay.

      More specifically, the Union argues that the Authority should grant the stay request because of the Union's right to refuse to bargain in a "piecemeal" fashion. Request at 3. The Union also argues that the Authority should grant the stay request to bar any further action in this case until the Panel follows the decisions of the Authority, which find that the issue of performance awards is substantively negotiable.

      With respect to the equities of this case, the Union asserts that it would be inequitable to permit this case to proceed in two forums -- before the Panel and litigation of an alleged unfair labor practice before the Authority or an arbitrator. The Union also asserts that if Panel proceedings are allowed to continue, the Union's bargaining position in term negotiations would be irreparably damaged. The Union further asserts that the Authority should issue a stay to prevent the Agency from benefiting from its bad-faith conduct and from the Panel's refusal to follow Authority decisions on the negotiability of performance awards. In the Union's view, a stay would guarantee that the statutory framework for the resolution of duty-to-bargain disputes is respected.

B.      Agency's Opposition

      The Agency contends that the Authority should deny the Union's request so as to afford the Panel the opportunity to issue a binding decision resolving the parties' negotiation impasse. In opposition to the request, the Agency asserts that the Union's claims that the Union is under no obligation to bargain over the matter of FLAP performance awards apart from term negotiations and that the Agency's bargaining approach constituted insistence on taking a permissive subject to impasse are unsupported. The Agency also asserts that, contrary to the Union's position, there is no negotiability issue presented or inherent in the Panel's acceptance of jurisdiction. The Agency also disputes the Union's alleged equities for granting a stay and argues, to the contrary, that to stay the Panel's proceedings would irreparably harm the collective bargaining process.

IV.      Panel's Decision and Order in 07 FSIP 92

      After the Union filed its request to stay the Panel's proceedings, the Panel issued a decision and order in 07 FSIP 92. In its decision and order the Panel rejected the Union's jurisdictional arguments. The Panel concluded that there is no support under the Statute for the Union's claim that it is an unfair labor practice to attempt to force a party to bargain apart from term negotiations. The Panel rejected the Union's reliance on private sector precedent because of the Panel's view that the bargaining rules in the federal sector are significantly different. Decision and Order at 10 n.8.

      In resolution of the negotiation impasse, the Panel ordered the adoption of the Agency's final package with a modification. The Panel rejected the Agency's claim that any ordered agreement should be limited to former Customs Service employees, and determined that, to be legally sufficient, the Panel order must apply to all eligible employees in the Union's bargaining unit, as certified by the Authority. Accordingly, in ordering adoption of the Agency's final package, the Panel modified the package to apply to all eligible employees in the unit certified by the Authority in 2007. Id. at 10-11.

V.      Analysis and Conclusion

      The Panel's issuance of a decision and order in 07 FSIP 92 presents a threshold question of mootness. The Authority has repeatedly recognized that a dispute becomes moot when there is no longer a legally cognizable interest in the case before the Authority. E.g., Ass'n of Civilian Technicians, Show-Me Army Chapter, 59 FLRA 378, 380 (2003). In this respect, the mootness doctrine provides that, although there may have been a justiciable controversy when a case was filed, once that controversy ceases to exist, the case will be dismissed for want of jurisdiction. 15 Moore's Federal Practice, § 101.90 (Matthew Bender 3d ed.). Questions of mootness typically focus on whether relief can any longer be granted as the result of changes of circumstances. See id. Specifically, courts dismiss cases as moot when the issue involved has been resolved by interim events leaving nothing that can be affected by a court decision. See id. In particular, appeals from denials of preliminary injunctions are ordinarily mooted by occurrence of the action sought to be enjoined. E.g., Moore v. Consol. Edison Co., 409 F.3d 506, 509-10 (2d Cir. 2005). Courts recognize that, as a result of the occurrence of the action sought to be enjoined, no effective relief can [ v63 p30