Office of Hearings and Appeals, Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 3615 (Authority decision, February 11, 1985)

Final FLRA decision. This is a final Authority order dismissing exceptions to an arbitration award under 5 U.S.C. § 7122. Judicial review in a court of appeals is excluded by 5 U.S.C. § 7123(a)(1) because this order does not involve an unfair labor practice under 5 U.S.C. § 7118.

Plain-English summary

An arbitrator ordered the Social Security Administration's Office of Hearings and Appeals to stop using one performance appraisal element and change how it assessed another. The office filed exceptions, but then changed the elements and standards involved while those exceptions were pending. The union asked the Authority to dismiss the case as moot. The Authority agreed that the changes ended the live dispute and dismissed the exceptions without deciding whether the award was deficient.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Agency exceptions dismissed as moot; no ruling on the award's merits.
• Key point: The Authority will not decide a challenge to appraisal standards that have already been changed when doing so would issue an advisory opinion.

Full text (FLRA public release)

[ v17 p9 ]

17:0009(5)AR

The decision of the Authority follows:

17 FLRA No. 5

OFFICE OF HEARINGS AND APPEALS,
SOCIAL SECURITY ADMINISTRATION
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3615
Union

Case No. O-AR-596

ORDER DISMISSING EXCEPTIONS

This matter is before the Authority on exceptions to the award of Arbitrator Robert J. Ables filed by the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. /1/

The dispute in this matter concerned the Activity's appraisal of a number of employees under certain performance elements and standards. In his award, the Arbitrator did not disturb any of the appraisals but directed the Activity to discontinue applying one of the elements and to also change its prescribed method of determining the overall performance of employees under another element. While the Activity's exceptions to the award were pending before the Authority, the Union requested the Authority to dismiss the exceptions as moot because the Activity had implemented the Arbitrator's award and changed the elements and standards involved. In response, the Activity acknowledged that it had modified the elements and standards, but claimed that the question as to whether the Arbitrator's award was deficient had not been resolved and therefore requested a decision on the merits of its exceptions.

Upon careful consideration of the submissions of the parties, it has been determined that since the performance elements and standards have been changed, the underlying dispute between the parties and the Arbitrator's award concerning those elements and standards have been rendered moot. In these circumstances, to decide whether the Arbitrator's award is deficient as alleged by the Activity would be tantamount to issuing an advisory opinion, which is precluded by section 2429.10 of the Authority's Rules and Regulations.

Accordingly, the Activity's exceptions are dismissed. For the Authority. Issued, Washington, D.C. February 11, 1985 Harold D. Kessler Managing Director for Case Processing

--------------- FOOTNOTES$ ---------------

/1/ The Activity's request for a stay of the award was previously granted.