United States Department of Labor (Agency)
| Decision Date | 21 November 2018 |
| Docket Number | WA-RP-16-0027,70 FLRA 452 (2018) |
| Court | Federal Labor Relations Authority Decisions |
| Parties | United States Department of Labor (Agency) and American Federation of Government Employees Local 12, AFL-CIO (Union/Petitioner) |
Before the Authority: Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members
In this motion for reconsideration, the Union fails to establish that extraordinary circumstances exist to justify reconsideration of U.S. DOL (DOL). [1]
Upon a clarification petition (the petition) filed by the Union Federal Labor Relations Authority (FLRA) Regional Director Jessica Bartlett (the RD) issued a decision finding, as relevant here, that two employees are not "confidential employee[s]" under § 7103(a)(13) of the Federal Service Labor-Management Relations Statute (the Statute). [2] Accordingly, the RD concluded that the employees should be included in the bargaining unit that the Union represents. The Agency filed an application for review with the Authority challenging the RD's decision. After the Authority informed the parties that the Agency's application raised issues that warranted further consideration, the Union filed two submissions with the Authority seeking to withdraw the petition.
In DOL, the Authority held that it would not permit the Union to withdraw the petition. Accordingly, the Authority addressed the merits of the parties' dispute and ultimately, concluded that the two employees should be excluded from the bargaining unit as confidential employees.
The Union has now filed a motion for reconsideration (motion) of DOL under § 2429.17 of the Authority's Regulations. [3] Because the Union has not established extraordinary circumstances that warrant reconsideration of DOL, we deny its motion.
The facts, summarized here, are set forth in greater detail in DOL. The Union petitioned the RD to clarify, as relevant here, the bargaining-unit status of two employees (the employees). The RD issued a decision concluding that the employees should be included in the bargaining unit (the unit). The Agency filed an application for review (application) with the Authority, alleging that the RD failed to apply established law.
In an order to the parties, the Authority granted review of the RD's decision, but deferred action on the merits of the case. In the order, the Authority stated that the Agency's application raised issues warranting further consideration. Shortly after receiving that order, the Union submitted to the Authority a "request to withdraw" the petition and, then, a "[n]otice of [w]ithdrawal." [4]
In DOL, the Authority asserted that nothing in the Authority's Regulations permitted the Union to unilaterally withdraw the petition at that stage of the proceeding. As such, the Authority exercised its discretion to determine whether to approve the Union's request to withdraw. The Authority denied the Union's request, noting that (1) it was unusual that the Union sought to withdraw the petition, without explanation, given that it had spent nearly two years alleging that the employees should be included in the unit; (2) after spending considerable time and resources attempting to resolve the bargaining-unit status of the employees, the FLRA had institutional interests in the dispute; and (3) the Agency not the Union brought the dispute before the Authority.
On the merits, the Authority concluded that the RD failed to apply established law and that the employees are confidential employees under § 7103(a)(13) of the Statute. Accordingly, the Authority directed the RD to clarify the unit to exclude the employees.
Subsequently, on April 27, 2018, the Union filed this motion for reconsideration of DOL. In response, the Agency requested leave to file an opposition to the motion. As "it is the Authority's practice to grant requests to file oppositions to motions for reconsideration," [5] the Authority granted that request. On July 26, 2018, the Agency filed an opposition to the motion.
The Authority's Regulations permit a party to request reconsideration of an Authority decision. [6] However, a "party seeking reconsideration bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action." [7] The Authority has identified only a limited number of situations in which extraordinary circumstances have been found to exist. [8] These include situations where: (1) an intervening court decision or change in the law affected dispositive issues; (2) evidence, information, or issues crucial to the decision had not been presented to the Authority; (3) the Authority erred in its remedial order, process, conclusion of law, or factual finding; and (4) the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in its decision. [9]
In its motion, the Union challenges the denial of its request to withdraw the petition. [10] In particular, it alleges that the Authority erred in its factual findings and conclusions of law, and raised issues sua sponte. [11]
1. The Union has not established that the bargaining unit status of the employees is a moot issue.
The Union argues that once it sought to withdraw the petition, the bargaining-unit status of the employees became a moot issue. [12] The Union maintains that because that matter is moot, the Authority's decision in DOL violates § 2429.10 of the Authority's Regulations [13] which states that the Authority "will not issue advisory opinions." [14]
It is well established that a dispute becomes moot when the parties no longer have a "legally cognizable interest" in the outcome. [15] The burden of demonstrating mootness is a "heavy one." [16] As relevant here, a party urging mootness meets that burden by establishing that it is "absolutely clear" [17] that "there is no reasonable expectation" that the same controversy will recur. [18] And when a dispute is moot, a decision on the merits of that dispute would constitute an advisory opinion in violation of § 2429.10. [19]
Here, the timing of the Union's withdrawal request militates against a finding of mootness. As noted above, the Union sought to withdraw the petition only after the Authority informed the parties that the Agency's application raised issues that warranted consideration of the RD's decision. [20] The Union did not provide any reason it was suddenly insistent on withdrawing the petition, after nearly two years of seeking to clarify the status of the employees. [21] Even now, in its motion, the Union fails to provide a definitive rationale. As the Authority referenced in DOL, we will not permit parties to utilize considerable FLRA resources and, then, in order to evade an Authority decision, withdraw before final resolution. [22] Allowing such conduct would be inconsistent with the fundamental principles of mootness [23] and "the requirement [for] an effective and efficient Government." [24]
It is also noteworthy that the bargaining-unit status of the employees is not rendered moot simply because the Union does not, at this time, desire to represent them. The Union is still the certified, exclusive representative of a bargaining unit of Agency employees, and it fails to provide any assurance that it will not, at a later time, seek to include the employees in that unit. [25] Moreover, without an Authority determination on the bargaining-unit status of the employees, nothing in the Statute or the Authority's regulations would preclude the Union from attempting to do so. Thus, the very conduct that triggered this dispute could reasonably be expected to recur. [26]
In addition, under § 2422.2(c) of the Authority's Regulations, both unions and agencies have the right to file petitions that seek to clarify the bargaining-unit status of employees. [27] Therefore, regardless of the Union's sudden disinterest in resolving the status of the employees, the Agency has a legally cognizable interest in that matter under the Authority's regulations. The Agency effectively expressed that interest by filing the application challenging the RD's decision and, again, by filing an opposition. [28]
Given that both parties have, at some point, expressed an interest in resolving the bargaining-unit status of the employees, it is not "absolutely clear" that this dispute would not recur. [29] Therefore, and for the reasons provided above, the issue of the bargaining-unit status of the employees is not moot. And because that issue is not moot, DOL does not violate § 2429.10's prohibition on issuing advisory opinions.
B. The Union has not established that the Authority's decision in DOL was arbitrary, capricious, or an abuse of discretion.
The Union argues that the Authority acted arbitrarily and capriciously by denying the Union's request to withdraw because, in prior cases, the Authority has granted similar requests. [30] Specifically, the Union cites U.S. EPA (EPA) [31] and AFGE, ICE, National Council (ICE). [32] However, as demonstrated below, both of those cases are distinguishable.
In EPA, the Authority in an unpublished order granted the union's request to withdraw its election petition. [33] Unlike the clarification petition at issue here, an election petition can be filed only by a union. [34] Thus, when the union in EPA sought to withdraw its petition, the agency had no legally cognizable interest in an Authority determination concerning whether an election would take place. [35] In addition, after that petition was withdrawn, the union was barred by regulation from filing a similar petition for six months [36] making it absolutely clear that the issue raised by the...
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