U.S. Federal Labor Relations Authority

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49:0545(48)NG - - AFGE, National Border Patrol Council, Local 2544 and Justice, INS, Border Patrol, Tucson, Arizona - - 1994 FLRAdec NG - - v49 p545

[ v49 p545 ]
The decision of the Authority follows:

49 FLRA No. 48






LOCAL 2544









(46 FLRA 930 (1992))



March 18, 1994


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This negotiability case is before the Authority on remand from the United States Court of Appeals for the Ninth Circuit. U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, Tucson, Arizona v. FLRA, Nos. 93-70137 and 93-70293 (9th Cir. Oct. 5, 1993). The court granted the Authority's motion to dismiss as moot the Agency's petition for review of 46 FLRA 930 (INS) and the Authority's cross-application for enforcement of the order in that case. Further, pursuant to the Authority's request, the court vacated the bargaining order in INS. The court also denied, without prejudice to presenting the matter to the Authority, the Agency's motion to vacate the decision in INS and remanded the case to the Authority to permit the Agency to seek vacatur of the decision in INS.

The Agency has filed with the Authority a motion to vacate the decision in INS. The Union has filed an opposition to the Agency's motion. For the following reasons, we deny the Agency's motion to vacate the decision in INS.

II. Background

As relevant here, in INS the Authority found negotiable a portion of Proposal 1 and all of Proposal 11, which required the Agency to create, respectively, a Union office and an additional employee break room in a facility which the Agency intended to restructure.(1) The Agency filed with the court a petition for review of the Authority's decision in INS and the Authority filed a cross-application for enforcement of its order. The Union intervened in the court proceeding in support of the Authority's position.

Subsequently, the Agency decided not to undertake the restructuring changes which prompted the Union's proposals at issue in INS. Accordingly, the Authority moved that the court dismiss as moot the Agency's petition for review and the Authority's cross-application for enforcement of INS, with direction that the Authority vacate for mootness the bargaining order in INS. The court granted the Authority's motion and vacated the bargaining order in INS. Further, the court dismissed, without prejudice to presenting the matter before the Authority, the Agency's motion to vacate the decision in INS. The court remanded the case to the Authority to permit the Agency to seek vacatur of the Authority's decision in INS. The Agency moved that the Authority vacate its decision in INS.

III. Positions of the Parties

A. Agency

Noting that the Authority sought dismissal of the Agency's appeal in this case "on the grounds that there was no longer a case or controversy, and, thus, the [Agency] would not be prejudiced" by the dismissal of its appeal, the Agency asserts that if the decision in INS is permitted to stand, the Agency would be prejudiced. Motion at 1. In particular, the Agency contends that INS establishes precedent which will subject it to unfair labor practice charges in the future, if the Agency rejects as nonnegotiable proposals that have already been found negotiable by the Authority in INS. Further, the Agency contends that "it has no obligation to negotiate below the level of recognition" on the proposals at issue in this case. Id. at 2.

The Agency contends that the effect of permitting INS to stand would be "to leave the [Agency] open to the broader remedies" which the Authority may order under the Federal Service Labor-Management Relations Statute (the Statute) "in an unfair labor practice case as compared to the remedy which may be ordered in a negotiability appeal" under section 7117(c) of the Statute, "including a retroactive bargaining order." Id. at 2-3. The Agency asserts that "Congress enacted section 7117(c) [of the Statute] in order to give [F]ederal sector employers a means of challenging the negotiability of union proposals without subjecting themselves to unfair labor practice remedies in those circumstances where they refrain from implementing." Id. at 3 (citing America Federation of Government Employees, Local 2736 v. FLRA, 715 F.2d 627 (D.C. Cir. 1983) (AFGE v. FLRA)).

B. Union

The Union contends that "[a] simple order by the Authority relieving the [A]gency of the obligation to comply" with the Authority's bargaining order in INS because of mootness "will satisfy the [A]gency's needs in this case." Opposition at 2. In this regard, the Union claims that a repudiation of the decision in INS "is unnecessary to grant the [A]gency the full relief contemplated by the Authority motion to the court of appeals and by the court's order granting the motion." Id.

Further, the Union contends that an order vacating INS "will violate the rights of the Union . . . and similarly situated unions." Id. at 2. In this regard, the Union asserts that "[b]oth the Authority and the D.C. Circuit have recognized a union's right to have the [Authority] decide the negotiability of union bargaining language" in a section 7117(c) proceeding "without regard to any factual defenses an agency may have to a duty to bargaining claim." Id. at 3 (citing American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984); AFGE v. FLRA).

The Union claims that the Agency will not be prejudiced if the Union "re-raises" the proposals found negotiable in INS because the Agency "may still maintain its allegations of nonnegotiability as well as any factual defenses to the duty to bargain [it] may have." Id. Additionally, the Union notes that if the Authority rejects the Agency's positions in any subsequent proceeding, the Agency may again seek judicial review pursuant to section 7123(a) of the Statute. Moreover, the Union notes that any other agency affected by INS may assert allegations of nonnegotiability as a defense to bargaining and pursue judicial review should the Authority disagree with the agency's positions.

III. Analysis and Conclusions

Based on a review of the Agency's motion, the Union's opposition, and the entire record before us, we will deny the Agency's motion.

Where cases become moot on appeal, the general practice is for the reviewing court to remand the case to the lower court with instructions to vacate the judgment below. United States v. Munsingwear Inc., 340 U.S. 36, 39-40 (1950) (Munsingwear). The practice applies to review of administrative orders as well as district court judgments. A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 329-30 (1961). Such an action is proper because a party should not be subjected to the consequences of an adverse ruling where appellate review of that ruling, otherwise available as a matter of right, fails because of intervening mootness. Id. at 330-31. The Supreme Court has not distinguished between the judgment or order to be vacated and any underlying decision setting forth supporting rationale.

The Munsingwear rule is not absolute. In particular, two courts have found that in cases where the policy behind the Munsingwear rule is not applicable, vacatur of the unreviewed decision is not appropriate. See Allard v. DeLorean, 884 F.2d 464, 466-67 (9th Cir. 1989) (Allard); United States v. Garde, 848 F.2d 1307, 1310-11 (D.C. Cir. 1988) (Garde). Ordinarily, this exception applies where appellate review is prevented not by happenstance, but by the deliberate action of the losing party below. Garde, 848 F.2d at 1310. The rationale for the exception is that a dissatisfied litigant should not be allowed to destroy the collateral consequences of an adverse ruling by deliberately taking actions destroying its right to appeal. Allard, 884 F.2d at 467. The exception has been applied where the parties have executed a settlement agreement while the case was on appeal (Allard, 884 F.2d at 467) and where the losing party has taken unilateral action which moots the underlying case (Scott v. Iron Workers Local 118, 928 F.2d 863 (9th Cir. 1991)).

In Allard, the Ninth Circuit remanded the case with instructions that the lower court determine whether the judgment should be vacated. The court in Allard said that the district court should "balance the competing interests of the parties in order to determine whether the judgment below should be vacated." Allard, 884 F.2d at 467. See also Ringsby Truck Lines, Inc. v. Western Conference of Teamsters, 686 F.2d 720 (9th Cir. 1982) (Ringsby) (court dismissed appeal as moot, but denied motion to vacate the judgment of the court below, leaving that decision, should vacatur be sought, for the lower court to make based upon the "consequences and attendant hardships" that would accompany that action).

In view of the actions taken by the Ninth Circuit with respect to the instant case, we think it appropriate to apply the principles of Allard here. Like Allard, the Ninth Circuit in this case declined to follow a strict Munsingwear approach and automatically vacate the Authority's decision. Rather, the court remanded the case to the Authority for consideration as to whether the decision should be vacated. Thus, as in Allard, the court left to the forum below certain questions as to the propriety of vacatur. Accordingly, we will look at "the consequences and attendant hardships" as they relate to the interests involved to determine if the decision should be vacated. See Allard, 884 F.2d at 467; Ringsby, 686 F.2d at 722.

We find that the Agency would incur only minimal harm if the decision is not vacated. First, there is clearly no prejudice to the Agency if the restructuring does not occur. Second, the decision finds only that the proposals submitted by the Union are consistent with law and regulations. The Agency remains free to raise any defenses it deems appropriate concerning the duty to bargain should similar circumstances arise in the future.(2)

Third, while it is true that a refusal to bargain over a substantially identical proposal in the future could subject the Agency to an unfair labor practice charge, we do not believe this should weigh heavily in the balance. Although there has not been appellate review of the Authority's decision, the Agency is not subject to particular prejudice. Any agency is subject to unfair labor practice liability when it refuses to bargain over a proposal which is substantially identical to one previously found negotiable by the Authority, regardless of whether the agency had been a party to the prior decision. Authority negotiability orders are binding on all Federal agencies faced with the same proposal. FLRA v. Office of Personnel Management, Washington, D.C., 778 F.2d 844, 847 (D.C. Cir. 1985). The Agency is therefore in no different position with respect to this decision than it would be with respect to an Authority negotiability decision to which the Agency was not a party and thus could not have challenged. Moreover, "'where [an agency's] refusal to negotiate is accompanied by unilateral changes in conditions of employment[,]'" a union can always elect to process the negotiability dispute under the unfair labor practice procedure, even where the Authority has not previously considered proposals that are similar to those involved in the dispute. U.S. Department of Defense, National Guard Bureau, Alexandria, Virginia and Illinois Army National Guard, Springfield, Illinois, 42 FLRA 877, 882 (1991) (quoting Decision on Petition for Amendment of Rules, 23 FLRA 405, 407-08 (1986), aff'd by National Labor Relations Board Union v. FLRA, 834 F.2d 191 (D.C. Cir. 1987)). 

On the other hand, there is significant value to retaining the Authority's decision as precedent. The Authority was created by the Congress to provide leadership and guidance with respect to matters arising under the Statute. 5 U.S.C. § 7105(a)(1). Maintaining the decision as precedent would provide clear guidance to Federal agencies and unions concerning the issues discussed and decided by the Authority in this case. Moreover, with regard to the parties involved in this case, should the Agency decide to restructure a facility, unnecessary delay concerning the resolution of any issue discussed and decided by the Authority in INS would be avoided because the negotiability determination by the Authority would have already been made.

Further, the Union here properly exercised its right to obtain a negotiability determination from the Authority. Vacation of the Authority's negotiability decision simply because the Agency decided not to proceed with the change which precipitated the Union's bargaining request and subsequent negotiability appeal would frustrate the Union's right to a negotiability determination.(3)

Therefore, after considering the competing interests involved, we find that the Authority's decision should not be vacated. Accordingly, we will deny the Agency's motion to vacate INS.

IV. Order

The Agency's motion to vacate the decision in INS is denied.


Proposal 1 provides in relevant part that:

The building should be extended twenty feet to provide an additional 440 square feet. Using the additional 20 feet in length, the intelligence officer's office will be lengthened by four feet and the remaining sixteen feet on the north side of the building will be used for a breakroom. The remainder of the addition will be used to house the Air Force personnel temporarily on loan to the Border Patrol.

Proposal 11 provides that:

The existing building would be extended an additional 30 feet rather than the originally proposed 20 feet. 100 square feet of the additional 220 square feet gained by this change would be used for Union office space. This space would include [access to] all telephone lines available in the building, with the exception of secure lines.

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

1. The relevant portion of Proposal 1 and all of Proposal 11 are found in the Appendix to this decision.

2. We note the Agency's contention that the decision should be vacated because the Agency has "no obligation to negotiate below the level of recognition" on the proposals which are at issue in this case. Motion at 2. We reject that contention. As the Authority noted in INS, under longstanding Authority precedent, where the conditions for review of negotiability issues have been met, a union is entitled to a decision by the Authority as to whether its proposals are within the duty to bargain under the Statute. To the extent that there are additional issues regarding the duty to bargain or the parties' master agreement in the specific circumstances of this case, those issues should be resolved in other appropriate proceedings. See 45 FLRA at 936-37.

3. The case was not moot at the time it was before the Authority. Accordingly, there was nothing to prevent the thorough litigation of the issues at that time.