National Treasury Employees Union (Union) and United States Department of the Treasury, Internal Revenue Service (Agency)

[ v63 p26 ]

63 FLRA No. 11

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

and

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
(Agency)

0-MC-23

_____

ORDER

December 9, 2008

_____

Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      The Union has filed with the Authority a request that the Authority issue a stay directing the Federal Service Impasses Panel (the Panel) to defer conducting any proceedings or taking any action in Department of the Treasury, Internal Revenue Service, Washington, D.C., Case No. 07 FSIP 10. Pursuant to an order of the Authority, the Agency filed an opposition to the Union's request.

      For the reasons that follow, we dismiss the Union's request as moot.

II.      Background

      The Agency filed a request for assistance with the Panel to consider a negotiation impasse concerning ground rules to govern negotiations over the parties' successor national agreement. Following an investigation of the request for assistance, the Panel determined that the dispute should be resolved through an informal conference with two Panel members. The Panel informed the parties that, if no settlement was reached, then the members would notify the Panel of the status of the dispute and that, after considering this information, the Panel would take whatever action it deemed appropriate, including issuing a binding decision imposing one of the parties' final offers on a package basis. When the parties were unable to resolve the dispute at the meeting with the Panel members, the Panel requested that the parties submit their final offers. The Agency submitted its final offer. However, the Union declined to submit a final offer and, instead, contended that the Panel lacked jurisdiction.

      According to the Union, before meeting with the Panel members, the parties were in "term contract negotiations." Union's Request for a Stay at 1. During bargaining over ground rules, the Union filed two grievances claiming that the Agency had committed unfair labor practices under the Statute and violated the parties' collective bargaining agreement by failing to bargain in good faith over the ground rules. In an arbitration award resolving the grievances, Arbitrator M. David Vaughn determined that the Agency had failed to bargain in good faith and that, consequently, "[t]he [p]arties are not, and have not been, at impasse." Award at 66, Union Attachment 2. [n*]  On the basis of this award, the Union moved for the Panel to relinquish jurisdiction over the dispute and to order the parties to return to the bargaining table. The Union then filed its request that the Authority stay the Panel proceedings.

III.      Positions of the Parties

A.      Union's Request for a Stay

      The Union argues that the Authority is empowered to grant the request for a stay on the basis of Arbitrator Vaughn's determination that, as a matter of law, there is no impasse. In support of its request, the Union relies on NTEU, 32 FLRA 1131 (1988), in which the Authority granted stays of Panel orders. The Union notes that the Authority ruled in NTEU that the Statute confers on the Authority the power to stay Panel proceedings and asserts that the Authority should exercise this power in this case because this case is identical in all material respects to NTEU. The Union further asserts that the equities of this case warrant the issuance of a stay.

B.      Agency's Opposition

      The Agency acknowledges that the Authority ruled in NTEU that it had the power under the Statute to stay a Panel order. However, the Agency asserts that NTEU is the only case in which the Authority has ordered Panel proceedings stayed and that, in subsequent cases, the Authority has not found the "unusual circumstances" of NTEU so as to warrant issuance of a stay. Opposition at 11 (citing AFSCME, Council 26, Local 2830, AFL-CIO, 59 FLRA 802 (2004); United States Dep't of the [ v63 p27 ] Treasury, United States Customs Serv., 34 FLRA 137 (1990)). The Agency contends that those unusual circumstances are also lacking in this case. The Agency also disputes the Union's alleged "equities" for granting a stay and argues, to the contrary, that granting a stay would frustrate the statutory framework for resolving impasses and promoting effective and efficient government. Id. at 14.

IV.      Panel's Decision and Order in 07 FSIP 10

      After the Union filed its request to stay the Panel's proceedings, the Panel issued a decision and order in 07 FSIP 10. After considering the parties' positions on the jurisdictional issues raised by the Union, the Panel relinquished jurisdiction over fifteen proposals in the Agency's twenty-three proposal package. The Panel found that the Union had consistently refused to participate in bargaining and mediation over these fifteen proposals and that, consequently, regardless of the validity of the Union's negotiability arguments, the parties had not reached a negotiation impasse as to these proposals. Accordingly, the Panel ruled that the underlying threshold questions must be resolved in an appropriate forum, and an impasse reached, before the Panel can resolve the dispute as it pertains to these proposals. Decision and Order at 16.

      The Panel distinguished the circumstances of the remaining eight Agency proposals. The Panel found that the Union had never raised questions concerning its obligation to bargain over these proposals and that the proposals had been on the bargaining table throughout the bilateral negotiations and the mediation sessions. Id. The Panel also rejected the Union's claim that there had not been any "legitimate" mediation by the Federal Mediation and Conciliation Service over these proposals. Id. In resolution of the negotiation impasse as to these proposals, the Panel imposed the Agency's final offer on a package basis. Id. at 17.

V.      Analysis and Conclusion

      The Panel's issuance of a decision and order in 07 FSIP 10 presents a threshold question of mootness. The Authority has repeatedly recognized that a dispute becomes moot when there is no longer a legally cognizable interest in the case before the Authority. E.g., Ass'n of Civilian Technicians, Show-Me Army Chapter, 59 FLRA 378, 380 (2003). In this respect, the mootness doctrine provides that, although there may have been a justiciable controversy when a case was filed, once that controversy ceases to exist, the case will be dismissed for want of jurisdiction. 15 Moore's Federal Practice, § 101.90 (Matthew Bender 3d ed.). Questions of mootness typically focus on whether relief can any longer be granted as the result of changes of circumstances. See id. Specifically, courts dismiss cases as moot when the issue involved has been resolved by interim events leaving nothing that can be affected by a court decision. See id. In particular, appeals from denials of preliminary injunctions are ordinarily mooted by occurrence of the action sought to be enjoined. E.g., Moore v. Consol. Edison Co., 409 F.3d 506, 509-10 (2d Cir. 2005). Courts recognize that, as a result of the occurrence of the action sought to be enjoined, no effective relief can be ordered. Id. at 510. Similarly, the Authority has concluded that a bargaining proposal that sought to delay implementation of a regulation became moot when the regulation was implemented. Overseas Educ. Ass'n, Inc., 29 FLRA 628 (1987) (proposal 3a).

      Applying these principles of mootness in this case, we conclude that the Panel's issuance of a decision and order in 07 FSIP 10 has mooted the Union's request that the Authority issue a stay of the Panel proceedings in the case. That is, since the Panel has completed its proceedings, there is nothing for the Authority to stay. Accordingly, we dismiss the Union's request.

VI.      Order