U.S. Federal Labor Relations Authority

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53:1191(98)NG - - AFSCME Local 1418 and USIA - - 1998 FLRAdec NG - - v53 p1191

[ v53 p1191 ]
The decision of the Authority follows:

53 FLRA No. 98













January 27, 1998


Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.(2)

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns one proposal relating to "back pay." For the reasons that follow, we dismiss the petition for review because the proposal is moot.

II. Background and Interest Arbitration Award

The Union represents employees who are authorized to negotiate over pay and pay practices in accordance with section 9(b) of the Prevailing Rate Systems Act, 5 U.S.C. § 5343 note, and section 704 of the Civil Service Reform Act. According to the Union, employees' pay was "frozen" during the period 1989 to 1994. Response at 9. During subsequent negotiations for a collective bargaining agreement, the parties reached an impasse with regard to a number of issues, including back pay. The Federal Service Impasses Panel (FSIP) directed the parties to interest arbitration pursuant to section 7119(b)(1) of the Statute. Each party submitted a proposal, for the arbitrator's consideration, regarding the amount of compensation that employees would be given for the period of time in which they did not receive wage increases.(3) The Union's proposal was entitled "back pay," while the Agency's proposal was entitled "additional pay."

As a threshold matter, the arbitrator found that he lacked the authority to rule on the Union's specific proposal, based on Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988), because the Agency had asserted that it was not within the duty to bargain. In addressing the dispute over appropriate compensation, the arbitrator considered the parties' respective positions, including the rationale behind each party's proposal. He ordered the parties to adopt the Agency's proposal, which called for lump sum payments to be made to various employees. He also modified the Agency's proposal to increase the number of employees who would receive such payments.(4) The arbitrator found that the Agency's proposal had the characteristics of, and was a substitute for, a retroactive wage increase since it was designed to compensate employees for the lower wages they had received during the previous few years relative to employees in comparable positions in private industry.

Following the issuance of the arbitrator's award, the Union filed a petition for review with the Authority seeking a determination as to whether or not the Union's proposal was within the duty to bargain.

III. Authority's Show Cause Order and Parties' Responses (5)

A. Show Cause Order

Following review of the Union's petition for review and the interest arbitrator's award, the Authority issued an order to show cause order why the Union's petition should not be dismissed on the basis that the proposal was moot.

B. Union's Response

The Union argues that the interest arbitrator did not make a determination on back pay and did not render a back pay award. The Union states that, during the interest arbitration proceeding, the Agency took the position that "back pay" was illegal, offering, instead, a proposal for "additional pay." When, according to the Union, the arbitrator found that he could not order back pay because of its contested negotiability, the arbitrator "simply provided for additional pay as proposed by the Agency with slight modification by the Arbitrator." Response to Show Cause Order at 2. The Union adds that "if the Agency believed that the Arbitrator had awarded retroactive pay, it would have declared such a provision illegal during its review period; it did not do so." Id.

The Union asserts that, as the arbitrator did not resolve the dispute over back pay, the proposal is not moot. Rather, according to the Union, the proposal has continuing effect and, if the Authority were to find the proposal to be within the duty to bargain, the Union would be free to institute negotiations with the Agency.

C. Agency's Opposition

The Agency contends that the arbitrator "considered and decided the matter of retroactive pay on its merits." Opposition at 3. The Agency points to the fact that the arbitrator viewed the Agency's proposal as a substitute for a retroactive pay proposal, analyzed and compared the employees' past wages to the relevant industry comparitor, considered the parties' wage bargaining history and ordered payment to various employees for periods of time in which he found a wage disparity. The Agency further contends that the position it took before the arbitrator regarding the illegality of back pay was limited to the Union's particular proposal, and not to back pay generally.

IV. Analysis and Conclusions

For the following reasons, we conclude that the petition for review must be dismissed because the proposal is moot.

Initially, we find, contrary to the Union's claim, that the arbitrator resolved the back pay dispute. Our review of the award shows that the arbitrator expressly viewed the Agency's proposal as a substitute for a retroactive pay increase. In addition, the arbitrator examined the evidence presented to him pertaining to the wages of unit employees' for the period 1989 to 1994 and found that there was a disparity in their wages relative to wages in private industry for at least some of that time period. As a result, the arbitrator ordered the Agency to make payments to employees to compensate for that disparity. It is clear that, even though the proposal that the arbitrator directed the parties to adopt was not called "back pay," the arbitrator resolved the dispute over the amount of compensation that employees should receive.(6)

We also reject the Union's claim that an Authority decision addressing the merits of the Union's proposal would not constitute an advisory opinion. The parties' dispute over the appropriate amount of compensation to be paid employees has been resolved. See, e.g., Tidewater Virginia Federal Employees Metal Trades Council and Department of the Navy, Naval Public Works Center, Norfolk, Virginia, 14 FLRA 309 (1984) (Naval Public Works Center). Bargaining over the Union's proposal, which calls for a different method of compensating employees, would serve no purpose. See, e.g., National Treasury Employees Union and Department of Health and Human Services, Region X, 25 FLRA 1041, 1054 (1987). Since the Agency has already been directed to make payments to employees to compensate them for the period of time in which they did not receive wage increases, the Union's proposal is moot. The Authority dismisses petitions for review where, as here, a proposal has become moot. See, e.g., National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 52 FLRA 1265, 1279 (1997). Issuance of a ruling on the merits of the Union's proposal under these circumstances would constitute an advisory opinion, which is prohibited under section 2429.10 of the Authority's Regulations. See Naval Public Works Center, 14 FLRA at 310.

This case is distinguishable from FLRA v. Office of Personnel Management, 778 F.2d 844 (D.C. Cir. 1985). In that case, the court granted enforcement of an Authority order directing an agency to bargain prospectively over various union proposals that the FSIP had declined to address when it ordered the parties to adopt a collective bargaining agreement. The agency argued that the Authority's bargaining order was without legal effect because the FSIP-imposed agreement had expired prior to issuance of the bargaining order. The court rejected the argument, finding that the agency had a continuing obligation to bargain over the proposals, in the absence of any agreement, waiver, or other circumstances that would limit the union's bargaining right. In this case, the arbitrator's award resolved the manner in which the Agency would compensate employees for a specific period in the past. There is no continuing obligation to bargain over the method to be used in compensating employees for that same period.

The Authority's decision in National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, Washington, D.C., 40 FLRA 570 (1991) (Customs Service), does not compel a contrary conclusion. In that case, the Authority rejected a claim that a proposal was moot because a mediator-arbitrator had imposed alternative language during an impasse resolution proceeding. However, unlike the proposal in this case, which involves compensation for a past disparity in wages, the proposal in Customs Service concerned the future application of an agency's performance appraisal system. Accordingly, without addressing the continued viability of Customs Service, we conclude that no prospective bargaining is possible here because the matter of compensation for that past disparity has been decided.

In sum, the proposal contained in the petition for review is moot. Accordingly, the petition must be dismissed. In view of this ruling, there is no need to address other arguments the parties raised with regard to the petition for review.

V. Order

The petition for review is dismissed.


The Union's proposal provides as follows:

Back pay will be calculated by comparing the employee's actual pay with what it would have been if there had been across-the-board increases of 0.92% on January 1 of each year from 1989 to 1994.

For former employees, the same calculations will be made subject to termination when the employee left the job.

The Agency's proposal provides as follows:

Additional Pay

Technicians hired after January 1, 1984, or later, and continuously employed by the Agency as NFFE-represented RBTs from the date of hiring through the ratification date of this contract will receive a flat rate of five hundred dollars ($500) for each full year of employment which: (1) begins after his or her first full year of employment and (2) begins after January 31, 1989. Payment under this section is limited to a maximum of two thousand dollars ($2000) for any one employee. Payment under this section will be made no later than one (1) year after the effective date of this contract.

The Arbitrator modified the Agency's proposal by adding the following paragraph:

All other currently employed bargaining unit technicians will receive a lump sum payment reflecting any time periods during 1989-1994 when their pay rates were below levels for comparable technicians under the ABC contract. The payment is limited to a maximum of $2,000 for any one employee and will be made no later than one year after the effective date of the contract.

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

1. During the pendency of this case, the Union's unit certification was amended to reflect a change in affiliation from a different labor organization to the American Federation of State, County and Municipal Employees (AFSCME).

2. Member Wasserman has recused himself from participation in the resolution of this case as the events giving rise to it occurred during his employment with AFSCME.

3. The text of the proposals is set forth in an Appendix to this order.

4. The arbitrator's modification is set forth in the Appendix.

5. The Agency requested permission to file, and filed, an opposition to the Union's response. We grant the Agency's request and consider the opposition. See American Federation of Government Employees, Local 900 and U.S. Department of the Army, U.S. Army Reserve Personnel Center, St. Louis, Missouri, 46 FLRA 1494, 1495-97 (1993). See also U.S. Department of the Air Force, Albrook Air Force Base, Panama and National Maritime Union, 39 FLRA 629 (1991).

6. The Union's contention that the Agency would have declared the award illegal under section 7114(c) of the Statute, had it believed that the arbitrator awarded retroactive pay, is not persuasive. The Agency head was not required to disapprove the arbitrator-imposed provision under that section of the Statute and the Union's speculation does not establish that this would have occurred.