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39:1496(132)NG - - AFGE Local 12 and DOL, Washington, DC - - 1991 FLRAdec NG - - v39 p1496

[ v39 p1496 ]
The decision of the Authority follows:

39 FLRA No. 132












March 27, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one proposal providing that, if the Agency agreed not to schedule any furloughs before October 16, 1990, the Union would withdraw its proposal that the Agency rescind furlough notices. For the following reasons, we find that the Union's petition for review must be dismissed as moot.

II. The Proposal

We agree to withdraw Union proposal #1 [which states that "The Department shall immediately rescind the furlough notices issued to bargaining unit employees."] if the Department agrees not to schedule any furloughs before October 16, 1990.

III. Background

On October 12, 1990, the Union filed a petition for review of a negotiability issue pursuant to section 7117(c) of the Statute and section 2424.1 of our Rules and Regulations. The petition for review concerned the negotiability of the proposal set forth above. On November 6, 1990, the Authority issued an order to the Union noting that the deadline in the proposal (October 16, 1990) had elapsed and requesting the Union to review its appeal to determine whether the Authority should continue to process the case. The Union did not respond to that order.

On November 30, 1990, the Authority issued another order to the Union. The Authority noted that "[s]ince the budget deficit has been resolved . . . and the October 16th deadline has elapsed, it appears that the . . . proposal is moot." Order at 1. Accordingly, the Authority directed the Union to show cause why its petition for review should not be dismissed for failure to raise negotiability issues which may be addressed by the Authority.

The Union replied on December 12, 1990, requesting a ruling from the Authority on the negotiability of the proposal for the following reasons: (1) although the timeframe referenced in the proposal has passed, the issue of whether proposals concerning the scheduling of furlough days are negotiable remains relevant; (2) to dismiss the appeal on the basis of mootness would allow the Agency to avoid negotiating over such proposals in the future by alleging that they are nonnegotiable and stalling negotiations until after the effective date; (3) a ruling on the proposal would allow the Union to pursue an unfair labor practice charge against the Agency if similar allegations are made about similar proposals in the future; and (4) although the budget issue was resolved without furloughs this year, the Union does not expect this to always be the case.

On December 20, 1990, the Authority issued an order to the parties stating that it would resume processing the Union's petition for review, without ruling at that time on the mootness issue. The Authority's order of December 20, 1990, permitted the Agency to file a statement of position and the Union to file a response thereto.

By letter dated December 24, 1990, the Agency filed a submission with the Authority noting that an appropriation bill had been signed for the Agency and the furlough notices that had triggered the bargaining had been rescinded. The Agency stated that it considered the matter to be moot and requested that the negotiability appeal be dismissed. The Agency's letter of December 24, 1990, appears to have been submitted without knowledge of the Authority's order dated December 20, 1990.

In response to the Authority's order of December 20, 1990, the Agency, by letter of January 22, 1991, restated its position set forth in its earlier letter that the matter is moot and that the Authority should dismiss the appeal. The Union did not file a response to the Agency's statement of position.

IV. Analysis and Conclusions

In National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 35 FLRA 7 (1990) (IRS), the Authority addressed the use of specific dates in bargaining proposals or provisions. The provision in IRS provided that specific actions were to be taken by specific dates, all of which had passed by the time that the union had filed its response to the agency's statement of position. The Authority discussed what action it would take in future negotiability appeals relating to proposals or provisions that contain specific dates. The Authority stated that

[i]n future cases . . . where proposals or provisions contain specific dates that may pass before final Authority action, the parties should address how compliance with the proposal or provision could be effected. If specific dates have passed and the parties have not addressed this matter (and it is not otherwise apparent how compliance could be effected), the proposals or provisions will be found moot and petitions for review will be dismissed.

. . . As an alternative to incorporating specific dates in proposals or provisions, the parties are encouraged to consider using specific time frames or periods when fashioning proposals. In doing so, the parties could avoid a finding by the Authority that the matter proposed to be bargained has become moot by the passage of time.

Id. at 11.

Applying IRS to this case, we find that the petition for review must be dismissed as moot. Because the date in the proposal has passed, and the parties have not addressed, nor is it otherwise apparent, how compliance with the date set forth in the proposal could be effected, the proposal is moot. With respect to the Union's concerns as to why the Authority should rule on the negotiability of the proposal despite the fact that the timeframe referenced in the proposal has passed, those concerns can be adequately addressed in a proposal reformulated in accordance with the Authority's suggestion in IRS.

We note that the decision in IRS was issued on March 8, 1990, and stated that it would apply to "future cases . . . where proposals or provisions contain specific dates that may pass before final Authority action[.]" IRS, 35 FLRA at 11. The proposal in the case before us was submitted in response to events commencing in August 1990. The Union filed its petition for review on October 12, 1990, regarding a proposal with a deadline of October 16, 1990. In these circumstances, consistent with IRS, we will dismiss the petition for review.

V. Order

The petition for review is dismissed.

(If blank, the decision does not have footnotes.)