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59 FLRA No. 111
OF GOVERNMENT EMPLOYEES
January 30, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority, pursuant to § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations, on the Union's exceptions to Arbitrator Daniel M. Winograd's award dismissing the grievance as moot. [n2] The Agency filed an opposition to the Union's exceptions. [n3] For the reasons that follow, we conclude that the Arbitrator's mootness determination is contrary to law.
II. Background and Arbitrator's Award
The grievant was placed on a 90-day performance improvement plan (PIP) after receiving an unacceptable performance rating. A grievance was filed alleging, inter alia, that the PIP was in retaliation for the grievant having successfully filed a prior grievance. The parties' dispute was unresolved and was submitted to arbitration.
Prior to arbitration, the Agency filed a motion to dismiss the grievance as moot. In its motion, the Agency claimed that the grievant had performed successfully under the PIP, that all references to the PIP had been removed from her personnel file, and that she was no longer subject to any adverse effects resulting from the unacceptable performance appraisal. The Arbitrator found these contentions to be undisputed. See Award at 14.
The Arbitrator determined that, "[e]ven if the Union is able to prove all of the charges it has made against the Agency[,] . . . the [A]rbitrator could not craft and enforce a remedy which would have any real meaning or practical effect." Id. at 16. Specifically, the Arbitrator concluded that he lacked "the authority to grant the requested [declaratory and injunctive] relief[.]" Id. at 17. Consequently, the Arbitrator concluded that the grievance was moot and dismissed the grievance. In doing so, the Arbitrator specifically addressed each of the Union's nine enumerated requests for relief.
III. Union's Exceptions
The Union argues that the award is contrary to law because the Arbitrator incorrectly found that the grievance was moot. In this connection, the Union asserts that an unfair labor practice (ULP) can be raised in arbitration and, under Authority precedent, "the arbitrator must apply the same standards and burdens that would be applied by an administrative law judge [ALJ] in a [ULP] proceeding under 5 U.S.C. § 7118." Exceptions at 12 (citing NTEU, Chapter 168, 55 FLRA 237, 241 (1999)). According to the Union, a ULP claim of illegal retaliation was "asserted in the initial grievance[,] and consistently throughout the proceedings," and was identified by both parties as an issue to be resolved in arbitration. Id. at 11 (citing Union's Ex. C). The Union claims that the requested remedies are "precisely the [ v59 p611 ] type" that an ALJ in a ULP case could award and, therefore, "[t]he Arbitrator's holding that he lacked authority to award such remedies is contrary to law." Id. at 13. The Union asserts that "a case is not moot merely because a particular remedy may no longer be appropriate." Id. at 16.
The Union also argues that the award is contrary to law because the Arbitrator made "frequent reference to `management's rights'" in denying its requested remedies, even though the Agency never claimed that granting the requested remedies would violate its rights. Id. The Union further asserts that the Arbitrator improperly resolved material disputed facts in the Agency's favor when he found that the "grievant was not disciplined for raising `a good faith concern' that she had been directed to perform an illegal act" but was disciplined "for the manner and persistence with which [she] posed her questions[.]" Id. at 18 (quoting Award at 20). The Union argues that the award also violates the First Amendment by denying certain declaratory relief. See id. at 23.
According to the Union, the Arbitrator did not conduct a fair hearing because he did not hold an evidentiary hearing. The Union claims it was prejudiced by this because it was unable to call witnesses "to testify regarding the two essential elements of proving mootness" or address the issue which the Arbitrator found to be dispositive of the case, contrary to the parties' arguments. Id. at 24. The Union also claims it "was prejudiced by the Arbitrator's reliance on evidentiary materials submitted by . . . only the Agency[.]" Id.
Finally, the Union claims that the award fails to draw its essence from § 42.03(b)(3) of the parties' agreement. In this regard, the Union asserts that the Arbitrator failed "to hear and issue [a] final and binding decision in accordance with applicable law[,]" because he incorrectly found that the grievance was moot. Id. at 4. In addition, the Union claims that, under § 41.03 of the parties' agreement, "questions of procedural arbitrability are deemed waived unless raised before the conclusion of Step 3 of the grievance procedure[,]" id. at 4, and the Agency's mootness argument was raised for the first time in its motion to dismiss. See id. at 4-5.
IV. The Arbitrator's Mootness Determination Is Contrary To Law
The Union's exceptions challenge the award as a matter of law. Therefore, the Authority reviews the questions of law raised in the exceptions and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
It is well settled that, when a grievance under § 7121 of the Statute involves an alleged ULP, the arbitrator must apply the same standards and burdens that would be applied by an ALJ in a ULP proceeding under § 7118 of the Statute. See AFGE, Local 3529, 57 FLRA 464, 465 (2001). As the Arbitrator acknowledged, the Union's grievance involves an alleged ULP claim of illegal retaliation under § 7116(a) of the Statute. See Award at 8, 14. Accordingly, the Arbitrator was required to apply the same standard that would be applied by an ALJ in determining whether the alleged ULP was moot. Under that standard, a dispute becomes moot when the parties no longer have a legally cognizable interest in the outcome of the dispute. See Soc. Sec. Admin., Boston Region (Region 1), Lowell Dist. Office, Lowell, Mass., 57 FLRA 264, 268 (2001). The burden of demonstrating mootness is a heavy one. Id. The party asserting mootness meets its burden by demonstrating that: (1) there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely or irrevocably eradicated the effects of the alleged violation. Id.
The Arbitrator in this case did not base his conclusion that the grievance was moot on the foregoing standard. Rather, the Arbitrator concluded that the grievance was moot because he "could not craft and enforce a remedy which would have any real meaning or practical effect[,]" given that the grievant had successfully performed under the PIP, and the PIP had been removed from her file. Award at 16-17. For the following reasons, the Arbitrator's conclusion in this regard is wrong.
Where, as here, a dispute involves an alleged ULP, the matter does not become moot simply because the grievant's file has been expunged of the disputed disciplinary action. See, e.g., United States Air Force Academy, Colo. Springs, Colo., 52 FLRA 874, 878 (1997). This is because "other remedies, including a cease and desist order and the posting of a notice, remain viable if it is determined that an unfair labor practice occurred . . . ." Id. (citing Dep't of Justice v. FLRA, 991 F.2d 285, 289 (5th Cir. 1993) and cases cited therein); see [ v59 p612 ] also AFGE, Local 1941 v. FLRA, 837 F.2d 495, 497 n.2 (D.C. Cir. 1988) (even after employee's death, suitable remedies, such as cease and desist order or posting of notice to employees by respondent agency, were still available).
Consistent with the foregoing, remedies of a cease and desist order and posting of notice to employees remain available in this case, notwithstanding the undisputed fact that the PIP has been removed from the grievant's file. See, e.g., NTEU, 48 FLRA 566, 570 (1993). Indeed, the Union specifically requested these remedies. See id. at 8-9. Therefore, we conclude that the Arbitrator's determination that the grievance was moot is contrary to law, and we find that the Arbitrator should have addressed the merits of the grievance.
Where the Authority finds an award deficient because an arbitrator erred as a matter of law by not addressing the merits of a grievance, "the Authority has routinely remanded to the parties with the direction to resubmit the matter, absent settlement, to an arbitrator of their choice." See AFGE, Local 1757, 58 FLRA 575, 576 (2003) (Chairman Cabaniss concurring in relevant part) and cases cited therein. Consequently, we remand the award to the parties for submission to an arbitrator of their choice, absent settlement, to resolve the merits of the alleged ULP. [n4]
The Arbitrator's determination that the alleged ULP is moot is set aside. The matter is remanded to the parties consistent with this decision.
Dissenting opinion of Member Armendariz:
The Arbitrator in this case issued an award finding that the grievance was moot. For the following reasons, I would deny the Union's exceptions to the award.
The Authority addressed the appropriate standard of review in cases like this in NFFE Council of Consolidated Locals, 52 FLRA 137 (1996) (NFFE Council). There, an arbitrator ruled that a grievance was moot, and the union filed exceptions to the award, contending that the ruling was contrary to Authority case precedent. The Authority noted that it had not previously set forth the standard of review to be applied to an arbitrator's ruling that a grievance was moot. Specifically addressing this issue, the Authority held that "we will accord such a determination the same deference we accord an arbitrator's decision regarding procedural arbitrability of a grievance under the parties' collective bargaining agreement." 52 FLRA at 139. In other words, an arbitrator's mootness ruling is not subject to challenge except on grounds that do not challenge the mootness ruling itself. See id. at 139-40.
The Authority explained that an arbitrator has discretion to make determinations regarding the mootness of the grievance submitted to arbitration and that the determination is akin to a ruling on procedural arbitrability. The Authority noted that although a mootness determination may not depend on an interpretation of the parties' collective bargaining agreement, it disposes of the grievance procedurally and not on the merits. The Authority cited the decision in Local Union No. 370 v. Morrison-Knudsen Co., 786 F.2d 1356, 1358 (9th Cir. 1986), in which the court, in reliance on John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964), held that mootness is an issue for arbitration because procedural questions which grow out of a dispute and bear on its final disposition should be left to the arbitrator.
The Authority also indicated that these determinations are factually based and that an arbitrator's factual determinations are not subject to review. See NFFE Council, 52 FLRA at 139-40 (citing Dep't of the Air Force, Civilian Personnel Branch, Carswell Air Force Base, Tex., 5 FLRA 40, 42 (1981)). Finally, the Authority specifically distinguished cases in which the Authority, itself, reviewed whether an award or grievance was moot. In these cases, the Authority acknowledged that the review would be de novo. See id. at 139 n.2.
Because this case involves the review of the Arbitrator's mootness determination and the Union's exceptions [ v59 p613 ] directly challenge that determination, I would apply the standard of NFFE Council. I would defer to the Arbitrator's determination and would deny the Union's exceptions.
In this regard, I note that the initial grievance alleged only that the Agency violated certain provisions of the parties' collective bargaining agreement (Article 5, Sections 5.02 and 5.10; Article 21; and Article 40) and a portion of an EEOC Order (540.008--Performance Management). Grievance at 1. In elaboration, the grievance alleged that the Agency's extension of the grievant's performance improvement plan (PIP) "is merely further retaliation against grievant because of her previously filed grievance which thwarted the supervisor's efforts last year to put grievant on a PIP." Id. at 2. Accordingly, nowhere in the grievance did the Union allege that the Agency's actions constituted an unfair labor practice under the Statute. Similarly, nowhere in its appeals of the Agency's decisions to deny the grievance did the Union claim that the Agency's actions constituted an unfair labor practice under the Statute.
The parties never entered into a stipulation of the issues presented to the Arbitrator. In its prehearing statement to the Arbitrator, the Union "focus[ed] attention on the critical issues and arguments . . . ." Union's Prehearing Statement at 6. Among the critical issues identified by the Union was the issue of whether the Agency's actions "are part of a continuing pattern of unlawful harassment." Id. In a summary of its legal arguments, the Union contended that the "PIP is unlawful because it is part of a continuing pattern of harassment designed to stifle [g]rievant's conduct and speech protected by the First Amendment . . . ." Id. at 7. In its citation of relevant authorities, the Union repeats the provisions cited in the initial grievance and again does not specify § 7116 or any other provision of the Statute as relevant. See id. In its prehearing statement, the Agency viewed the Union's retaliation claims to be alleged violations of the employee rights provisions of the parties' collective bargaining agreement, rather than an alleged unfair labor practice under the Statute. See Agency's Prehearing Statement at 4.
In sum, I find nothing in the record to warrant a conclusion that the grievance itself alleged an unfair labor practice under § 7116 of the Statute or that the Arbitrator viewed the grievance as alleging such a statutory unfair labor practice. Consequently, nothing required the Arbitrator to apply the standards that would have been applied by an administrative law judge in resolving a statutory unfair labor practice. In these circumstances, I would apply the standard of review under NFFE Council and I would defer to the Arbitrator's determination of mootness. Accordingly, I dissent.
Footnote # 1 for 59 FLRA No. 111 - Authority's Decision
Member Armendariz' dissenting opinion is set forth at the end of this decision.
Footnote # 2 for 59 FLRA No. 111 - Authority's Decision
The Union also requests oral argument. As the record is sufficient to resolve the issue on which this decision is based, we deny the request. See 5 C.F.R. § 2429.6.
Footnote # 3 for 59 FLRA No. 111 - Authority's Decision
The Authority issued an Order to Show Cause why the Agency's opposition should not be dismissed as untimely. In its response to the Order, the Agency claims that its opposition was timely under 5 C.F.R. § 2429.22, which allows 5 days to be added to the filing deadline when exceptions are served by mail. In the alternative, the Agency argues that extraordinary circumstances prevented timely filing. Under the Authority's Regulations, the time limit for filing an opposition is 30 days after the date of service of the exception, 5 C.F.R. § 2425.1(c), which is the date the exception is either deposited in the U.S. mail, delivered in person, or received from commercial delivery. Id. at § 2429.27(d). Only if the exception is served by U.S. mail are 5 days added to the filing period. See id. at § 2429.22; see, e.g., AFGE, Local 3434, 49 FLRA 382, 384 (1994). The Union's exceptions were served by commercial delivery, not by U.S. mail and, therefore, the 5-day extension does not apply to the Agency's filing deadline. In addition, the Agency has not shown that extraordinary circumstances warrant waiving the expired deadline. Accordingly, we will not consider the Agency's opposition.
Footnote # 4 for 59 FLRA No. 111 - Authority's Decision
In view of this decision, we do not address the Union's exceptions that the award is deficient on fair hearing and essence grounds.