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59 FLRA No. 111
AFGE, Local 3230 and U. S. Equal Employment Opportunity Commission (Winograd, Arbitrator) 0-AR-3687 (Decided January 30, 2004)
The Authority concluded that the Arbitrator's mootness determination was contrary to law. The Authority noted that a dispute becomes moot when the parties no longer have a legally cognizable interest in the outcome of the dispute. The burden of demonstrating mootness is a heavy one. The party asserting mootness meets its burden by demonstrating that: (1) there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely or irrevocably eradicated the effects of the alleged violation.
The Authority found that the Arbitrator in this case did not base his conclusion that the grievance was moot on the foregoing standard. Rather, the Arbitrator concluded that the grievance was moot because he could not craft and enforce a remedy which would have any real meaning or practical effect, given that the grievant had successfully performed under the PIP, and the PIP had been removed from her file.
Where the Authority finds an award deficient because an arbitrator erred as a matter of law by not addressing the merits of a grievance, the Authority has routinely remanded to the parties with the direction to resubmit the matter, absent settlement, to an arbitrator of their choice. Consequently, the case was remanded the parties for submission to an arbitrator of their choice, absent settlement, to resolve the merits of the alleged ULP.