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52 FLRA No. 14

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

COUNCIL OF CONSOLIDATED LOCALS

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIRS

ALBUQUERQUE AREA OFFICE

(Agency)

0-AR-2722

_____

DECISION

September 10, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Sanford Cohen filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exceptions.

The Union filed a grievance alleging that the Agency improperly failed to give an employee a career ladder promotion. The Arbitrator determined that the grievance was moot.

We conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievance filed by the Union challenged the Agency's failure to give the grievant a career ladder promotion to a GS-8 position in the Land, Titles and Records Office (Title Plant) area office in Albuquerque. Before the grievance was filed, the grievant transferred from that position to another position in the Agency. When the grievance was not resolved, it was submitted to arbitration where the Arbitrator framed the issue as "[w]as the grievant . . . improperly denied a career-ladder promotion and, if so, at what point of time should the remedy be dated?" Award at 1.

The Arbitrator concluded that the grievance was moot and, therefore, did not address the merits of the grievance. He found that, if he were to sustain the grievance, the only relief available to the grievant would be reinstatement to her former position in the Title Plant. He noted that the grievant testified that she would not accept reinstatement unless her former supervisor, whom she blamed for her nonpromotion, was transferred from the Title Plant. The Arbitrator concluded that this condition would not be met and, consequently, that the issues before him had been "deprived of practical significance" because the grievant, by her testimony, had waived her right to the only relief available to her. Id. at 6.

III. Union's Exceptions

The Union contends that the Arbitrator's determination not to address the merits of the grievance does not conform to Authority precedent. The Union argues that it was "inaccurately inferred" from the grievant's testimony that she did not want to be reinstated to her former position. Exceptions at 1. In addition, the Union claims that, in reaching his determination, the Arbitrator failed to consider relief other than reinstatement.

IV. Analysis and Conclusions

The Authority has not previously set forth the standard of review to be applied to an arbitrator's determination regarding the mootness of a grievance or an issue.⁽¹⁾ We now conclude that, for the reasons discussed below, we will accord such a determination the same deference we accord an arbitrator's decision regarding the procedural arbitrability of a grievance under the parties' collective bargaining agreement.⁽²⁾ In this regard, an arbitrator's determination of the procedural arbitrability of a grievance under the parties' collective bargaining agreement is not subject to challenge except on grounds that do not challenge the determination of procedural arbitrability itself. See American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185-86 (1995) (AFGE, Local 2921); cf. American Federation of Government Employees, Local 2459 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Texarkana, Texas, 51 FLRA 1602, 1606 (1996) (Federal Correctional Institute) (the Authority accords substantial deference to an arbitrator's determination that an earlier award has binding effect). See also John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964).

An arbitrator has discretion to make determinations regarding the mootness of a grievance or an issue. See Local Union No. 370 of the International Union of Operating Engineers and Morrison-Knudsen Company, 786 F.2d 1356, 1357-58 (9th Cir. 1986) (Morrison-Knudsen) (mootness is an issue for the arbitrator to decide); Department of the Air Force, Civilian Personnel Branch, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 5 FLRA 40, 42 (1981) (union's assertion that award finding grievance moot was deficient constituted mere disagreement with arbitrator's findings of fact and his reasoning and conclusion based on those findings); O. Fairweather, Practice and Procedure in Labor Arbitration 104 (3d ed. 1991) (Fairweather) (an arbitrator may apply the principle of mootness recognized in law "under which matters which are no longer disputed may not be relitigated"). In this regard, an arbitrator's determination regarding the mootness of a grievance or an issue is akin to an arbitrator's determination of procedural arbitrability under the parties' collective bargaining agreement. In particular, although a determination of mootness may not depend on an interpretation of the parties' collective bargaining agreement, it disposes of a grievance, in whole or in part, procedurally and not on the merits. See Morrison-Knudsen, 786 F.2d at 1358 (discussing as procedural "matters that are 'extrinsic' to the process of interpreting the collective bargaining agreement, such as defenses of collateral estoppel and equitable estoppel"); Federal Correctional Institute, 51 FLRA at 1607 (an arbitrator's determination that an earlier award has binding effect is akin to an arbitrator's determination of procedural arbitrability under the parties' collective bargaining agreement). See generally Fairweather at 79-116.

The Union's contention that the arbitrator was required to address the merits of the grievance directly challenges the Arbitrator's findings and reasoning for concluding that the grievance was not arbitrable. Accordingly, based on the foregoing, it provides no basis for finding the award deficient. AFGE, Local 2921, 50 FLRA at 186.

V. Decision

The Union's exceptions are denied.

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

1. See U.S. Department of the Army, Fort Eustis, Virginia and National Association of Government Employees, 39 FLRA 768, 772 (1991) (exceptions to an award dismissing a grievance as moot did not demonstrate that the award was deficient on the asserted grounds of essence, nonfact or inconsistency with law; the Authority found it unnecessary to determine whether a finding of mootness constitutes a procedural arbitrability determination). Cf. Army & Air Force Exchange Service (Fort Hood, Texas) and Local 1920, American Federation of Government Employees, 32 FLRA 124 (1988) (arbitrator did not exceed his authority by concluding that the grievance was not moot, as claimed by the union).

2. This case is distinguishable from cases where the Authority itself on de novo review has determined that an award or grievance is moot. E.g., National Labor Relations Board and National Labor Relations Board Professional Association, 50 FLRA 88, 93 (1995) (Authority found portion of an award requiring the agency to remove a selectee from a position moot because the selectee had voluntarily terminated her employment with the agency); Social Security Administration and American Federation of Government Employees, Local 2369, 34 FLRA 866, 871-72 (1990) (Authority found that the arbitrator lacked authority to modify his original award to remedy the denial of a within-grade increase because the grievant had been granted a within-grade increase and, thus, the grievance had become moot).

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