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U.S. Federal Labor Relations Authority

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54:1384(120)NG - - Intl. Federation of Professional and Technical Engineers and Navy, Norfolk Naval Shipyard, Portsmouth, Virginia - - 1998 FLRAdec NG - - v54 p1384

[ v54 p1384 ]
The decision of the Authority follows:

54 FLRA No. 120
















October 30, 1998


Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.(1)

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 the negotiability of one proposal. For the reasons that follow, we dismiss the petition for review as moot.

II. Background

Prior to the events giving rise to this case, food services for military and civilian personnel at the Agency's facility were provided primarily by the Norfolk Naval Shipyard Cooperative Association (COOP)(2) and a snack bar operated by a licensed visually handicapped vendor.

The Agency notified the Union of plans to renovate a laundry building on its facility to include a "full-service food facility." Petition for Review at 2. The Union requested a copy of the renovation plans and proposed that "any food services that were not in the laundry prior to the renovations be removed from [the] renovation plans." Enclosure 3 to Petition for Review. The Agency rejected the Union's request, stating that there were no written plans for the renovation. The Agency also stated that the Union's "proposal not to place any new food service operation in the building" does not concern the conditions of employment of unit employees. Enclosure 4 to Petition for Review.

The renovated laundry building, including the full-service food facility, opened for business before the Union filed its petition for review in this case. See Petition for Review at 2; Enclosure 10 to Petition for Review. The Union also filed an unfair labor practice (ULP) charge (Case No. WA-CA-60434) alleging that the Agency had refused to bargain over the renovation. In its Petition for Review, the Union requested that its negotiability appeal and ULP charge proceed simultaneously. Subsequently, the Union elected to proceed first with the negotiability procedure.

The Authority issued an order requiring the Union to show cause why its petition should not be dismissed as moot and the Union filed a supplemental submission addressing that issue.

III. Proposal

Any food services that were not in the laundry prior to the renovations be removed from the renovation plans.

IV. Positions of the Parties

A. Agency

The Agency asserts that the proposal does not concern a condition of employment and is outside the duty to bargain because: (1) there is no direct connection between the purpose of the proposal as to the fiscal viability of the COOP and the work situation or the employment relationship of bargaining unit employees; and (2) it would have an impact on supervisory personnel and employees in other bargaining units. The Agency concedes, however, that the location of food services for unit employees concerns the conditions of employment of those employees.

B. Union

In its response to the Authority's show cause order, the Union states that the Authority "is questioning why a proposal that appears to address details of a renovation plan is still relevant when the renovations have been completed." Response to Show Cause Order at 1. The Union explains that the reference to "plans" in its proposal reflects that the proposal was written before the renovation was completed. According to the Union, only the Agency's unilateral implementation made the timing aspect of its proposal an issue. The Union states that it did not intend "to limit its issues to the planning stage of the renovations." Id. The Union argues that the proposal continues to be viable because it concerns the financial impact of the new food services on existing food services and that impact only began when those new services opened for business.

The Union asserts that the "new food service" would adversely affect the COOP's ability "to generate sufficient revenue to continue to operate its food services[.]" Response at 1. According to the Union, that adverse effect establishes the requisite "nexus" between the proposal and conditions of employment because the COOP is "employee owned." Id. The Union also argues that, under the "vitally affects" standard, any impact of the proposal on non-bargaining unit employees does not render the proposal nonnegotiable. Response at 2-3.

V. Analysis and Conclusions

A. Meaning of the Proposal

In interpreting a proposal, the Authority looks to its plain wording and any union statement of intent. If the union's explanation is not inconsistent with the plain wording, the Authority adopts that explanation for the purpose of construing what the proposal means and, based on its meaning, deciding whether it is, or is not, within the duty to bargain. E.g., American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 138-39 (1995). When a union's explanation is not supported by a reasonable construction, however, the explanation is deemed inconsistent with the plain wording, and the Authority does not adopt it for the purpose of determining whether the proposal is within the duty to bargain. E.g., International Federation of Professional and Technical Engineers, Local 3 and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 51 FLRA 451, 459 (1995).

By its literal terms, the proposal would require the Agency to remove from the "renovation plans" for the laundry building any food services that were not in the building prior to the renovation. The Union states that it did not intend to limit its proposal to the planning stage of the renovations. However, the plain words of the proposal contain that limitation. Moreover, although the Union asserts that the proposal would apply to the completed renovations as well, the Union does not explain how a requirement to eliminate a full-service food facility at the planning stage could have any effect after the planning stage was completed.

Thus, the Union's explanation is inconsistent with the plain wording of the proposal. Accordingly, we conclude that the proposal applies only to the planning stage of the renovation.

B. Mootness

Authority precedent establishes that where a proposal addresses an event that has already occurred, that proposal is moot.(3) See, e.g., American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 32 FLRA 210 (1988); International Association of Machinists and Aerospace Workers, Local Lodge 2424 and U.S. Department of the Army, Aberdeen Proving Ground, Maryland, 31 FLRA 205 (1988). The planning process for the renovation of the laundry building has been completed and the plans have been implemented. There is no way now that the proposal, requiring removal of the full-service food facility from the renovation plans, can be implemented.

Although the Union explains that the proposal refers to "plans" because it was offered at the planning stage of the renovation, the Union does not explain how the proposal can have meaning once the renovation is completed. In this regard, the proposal is analogous to cases in which the passage of time has rendered a proposal moot. See, e.g., National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 52 FLRA 1265, 1279 (1997). Once the planning stage of the renovation was over, there no longer was any point to the proposal. Even assuming the proposal was negotiable, a bargaining order would serve no purpose. Id.

Moreover, once the Union became aware that the Agency was proceeding with the implementation of the renovation, if it wished to preclude the full-service food facility, it could have, but did not, revise its proposal to clarify its intent. In this regard, the Union has explained in its supplemental submission why the proposal refers to "plans." However, the Union has not explained how the proposal can now have effect consistent with that reference.

The proposal in International Federation of Professional and Technical Engineers, Local 35 and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 54 FLRA No. 119 (1998), a companion case to this case, was not limited to the planning stage of the agency's action and is thus distinguishable. The proposal in that case concerns the location of a restaurant on the agency's facility and it continues to have meaning despite the fact that the restaurant was built at a different site. Negotiation on the location of the restaurant at the site proposed by the union is still viable because the existing restaurant could be moved or a new one built. In this case, by contrast, negotiation over the content of plans that have been implemented is not viable.

Consequently, for the reasons set forth above, we find that the proposal in this case is moot and dismiss the petition for review.(4)

VI. Order

The petition for review is dismissed.

Dissenting Opinion of Member Wasserman:

I do not believe that the proposal is moot. In my view, the proposal requires the Agency to remove the new food service facility from the renovated laundry building. I accept the Union's stated meaning to the effect that the reference to "plans" was simply because the renovation was not complete at the time of the proposal. Union's Response to the Authority's Order to Show Cause at 1. As the Union noted, it could not foresee that the Agency would proceed with implementation prior to the conclusion of bargaining. Clearly, the purpose of removing the food facility from the plans was to preclude the placement of a food service in the laundry building. The meaning attributed to the proposal is not inconsistent with its plain wording. I believe that the phrase "renovation plans" does not refer only to the blueprint, for if that were true, the Agency could remove the facility from the blueprint but still place the food service in the laundry building; such a result would be nonsensical. The Union's intent was clear all along, and there was no need to revise its proposal to clarify what I am sure the Agency already understood.(*)

Removal of the food facility from the laundry building is not moot, since it can still be accomplished. This proposal is like those presented in Overseas Education Association and U.S. Department of Defense Dependents Schools, FPO, Seattle, 42 FLRA 197 (1991), petition for review denied, as to other matters, 961 F.2d 36 (2d Cir. 1992). In that case, the agency had moved from a daytime open house meeting like that held in September, 1988, to an evening open house for September, 1989. In contemplation of the up-coming change in September, 1989, the union proposed, among other things, "Open House be held during the school day as was held last school year." Id. at 201. The Authority decided the case after the September, 1989 open house had occurred, and held that the proposal was not moot since it did not refer to specific dates that had passed. Clearly, the OEA proposal addressed the 1989 meeting time in relation to the 1988 time, but the Authority determined that it could apply equally to future open house meetings. In the case at hand, the request to remove the food facility from the laundry building can apply at any time, since the proposal was not date specific, and its adoption would simply result in the food facility being shut down or moved out.

Likewise, because of my view of the meaning of the proposal, this case is distinguishable from International Federation of Professional and Technical Engineers, Local 35 and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 54 FLRA No. 119, the companion case to this one. Fundamentally, in both cases, the Union is making proposals about the location of the food service facilities; its reference to "plans" in this case does not change that fact. Accordingly, I think that neither case is moot.

Since I believe the proposal is not moot, I would analyze the merits of the other arguments. Contrary to the Agency's contention, the proposal does affect conditions of employment. The location of food services has been deemed negotiable. See National Association of Government Employees, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 43 FLRA 1331, 1347-48 (1992). The fact that non-unit employees would be affected by the location of the food service facility does not undermine the fact that unit employees are also affected. Accordingly, I would reject the Agency's contentions and issue a bargaining order.


Authority's Footnotes Follow:

1. Member Wasserman's dissent is found at the end of this decision.

2. The COOP, which is employee-owned, was established "to provide hot meals and other daily necessities and conveniences at minimum cost" to military and civilian employees of the Agency's facility. COOP Constitution, Enclosure 5 to Petition for Review, page 1.

3. The Agency does not argue that the negotiability dispute in this case is moot. However, mootness is a threshold jurisdictional issue and may be raised by the Authority sua sponte. See, e.g., National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 52 FLRA 1265, 1278-79 (1997).

4. In reaching this result, we take note of the pending related ULP. The dismissal of the petition in this case is without prejudice to the Union's right to institute a new negotiability appeal in the event that resolution of the ULP results in further negotiations.

Footnote from the Opinion of Member Wasserman Follows:

*/ Indeed, the Agency did not claim this proposal was moot.