American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service (Authority decision, January 28, 1992)

Final FLRA decision. This is a final order dismissing a negotiability appeal as moot. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The National Border Patrol Council appealed the negotiability of proposals concerning Border Patrol agents, including a proposal to leave body armor use to each agent's discretion. The union had elected to pursue the same issues in an unfair labor practice case, and the Authority had already ruled on all four proposals there. The union then withdrew three proposals from this appeal and sought another ruling on the body armor proposal using the record developed here. The Authority held that its earlier decision had resolved that proposal and that the union identified no new issue for this proceeding. It dismissed the negotiability petition as moot without revisiting the earlier ruling.

Decision snapshot

• Authority: Negotiability appeals under 5 U.S.C. § 7105(a)(2)(E); management's internal security right under § 7106(a)(1).
• Outcome: Petition dismissed as moot; no proposal redecided.
• Key point: A second proceeding cannot relitigate proposal issues already resolved in the chosen unfair labor practice route.

Full text (FLRA public release)

[ v43 p1152 ]
43:1152(93)NG

The decision of the Authority follows:

43 FLRA No. 93

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

NATIONAL BORDER PATROL COUNCIL

(Union)

and

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

(Agency)

0-NG-1603

DECISION AND ORDER ON NEGOTIABILITY
ISSUES

January 28, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This case is before the Authority based on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). For the reasons that follow, we conclude that the petition must be dismissed as moot.

II. Background

The negotiability of the proposals that are the subject of the petition in this case was also raised in an unfair labor practice complaint filed in Case No. 8-CA-90083. Pursuant to section 2424.5 of the Authority's Rules and Regulations, the Union elected to proceed under the unfair labor practice procedure. Consequently, processing of this negotiability appeal was suspended pending the disposition of the unfair labor practice complaint. A decision on the unfair labor practice complaint was issued in United States Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 43 FLRA 642 (1991) (Border Patrol, San Diego). In that decision the Authority found that Proposals A and C were nonnegotiable and that Proposals B and D were negotiable. In particular, the Authority found that Proposal A, which would require that the wearing of body armor "remain a matter of individual discretion to be exercised by each agent[,]" excessively interfered with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

Upon issuance of the decision in Border Patrol, San Diego, the Authority ordered the Union to show cause why its petition for review in this negotiability case should not be dismissed as moot. In its response to the Authority's Order to Show Cause, the Union requests to withdraw Proposals B, C and D.(*) However, it asserts that the negotiability of Proposal A is not rendered moot by the Authority's decision in Border Patrol, San Diego. The Union contends that the Authority did not have the benefit of the record developed in this negotiability case when it decided Border Patrol, San Diego and requests that the Authority decide Proposal A "on the basis of the full record in this case." Union response to Order to Show Cause at 3. The Union contends that based on the record contained in this negotiability case, "Proposal A does not interfere with the exercise of the Agency's rights." Id.

III. Analysis and Conclusions

We conclude that the negotiability appeal in this case does not raise any issues that were not previously resolved in our decision in Border Patrol, San Diego. In its response to the Order to Show Cause, the Union contends that the Agency's statement of position in the negotiability case sets forth a different policy regarding the wearing of body armor than that addressed in the unfair labor practice proceeding. The Union further maintains that Proposal A merely reflects the Agency's policy and does not interfere with management's rights. The Union's arguments concerning Proposal A constitute nothing more than disagreement with the conclusion reached in Border Patrol, San Diego that Proposal A excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Thus, the Union's arguments are an attempt to relitigate the merits of our decision in Border Patrol, San Diego that Proposal A was nonnegotiable because of its conflict with a management right.

Absent a showing that the negotiability appeal raises issues that were not resolved in Border Patrol, San Diego, we dismiss the appeal in the instant case as moot. As we have previously explained, nothing in the Authority's regulation concerning a party's election to proceed under an unfair labor practice proceeding or a negotiability proceeding supports a conclusion that a party may litigate the same issues in both proceedings. Veterans Administration (Washington, D.C.) and Veterans Administration Hospital (Brockton) Massachusetts), 35 FLRA 188 (1990). Rather, the procedures enable the filing party to pursue in a second proceeding only those issues that remain unresolved after the first proceeding. Id.

IV. Order

The petition for review is dismissed.

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

*/ We grant the Union's request and will not address those proposals further in this decision.