12:0475(93)RO - HHS, Boston Regional Office, Region I and NTEU and AFGE Local 2909 -- 1983 FLRAdec RP



[ v12 p475 ]
12:0475(93)RO
The decision of the Authority follows:


 12 FLRA No. 93
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES
 BOSTON REGIONAL OFFICE, REGION I
 Activity
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Petitioner
 
 and
 
 American FEDERATION OF GOVERNMENT EMPLOYEES,
 LOCAL 2909, AFL-CIO /1/
 Intervenor
 
                                            Case No. 1-RO-27
 
                    DECISION AND DIRECTION OF ELECTION
 
    Upon a petition duly filed under section 7111(b)(1) of the Federal
 Service Labor-Management Relations Statute (the Statute), a hearing was
 held before a hearing officer of the Authority.  The hearing officer's
 rulings made at the hearing are free from prejudicial error and are
 hereby affirmed.
 
    Upon the entire record in this case, including the parties'
 contentions, the Authority finds:  /2/ The Petitioner, National Treasury
 Employees Union (NTEU), seeks an election in a unit currently
 represented by the Intervenor, American Federation of Government
 Employees, Local 2909, AFL-CIO (AFGE), and composed of all
 nonprofessional employees of the Department of Health and Human
 Services, Boston Regional Office, Region I (the Activity).  The parties
 agree and the Authority finds, in accordance with the criteria set forth
 in section 7112 of the Statute, that the following constitutes an
 appropriate unit:
 
          All nonprofessional employees of the Department of Health and
       Human Services, Boston Regional Office, Region I, but excluding
       all professional employees, management officials, supervisors and
       employees described in section 7112(b)(2), (3), (4), (6) and (7)
       of the Statute.
 
    The sole issue before the Authority is whether a July 14, 1980
 agreement between the Activity and AFGE bars NTEU's petition of July 16,
 1980, pursuant to section 7111(f)(3) of the Statute.  /3/ AFGE contends
 that such a bar exists, while NTEU argues, pursuant to section 2422.3(f)
 of the Authority's Rules and Regulations, that the July 14, 1980
 agreement constitutes a premature extension of a March 1, 1980
 Memorandum of Understanding between AFGE and the Activity and therefore
 cannot serve as a bar to its petition.  /4/
 
    Following AFGE's certification in 1970, AFGE and the Activity
 (referred to as Region I of the Department of Health, Education and
 Welfare (HEW) prior to its reorganization in 1977) entered into a
 collective bargaining agreement with an effective date of November 13,
 1972.  Article XXIV, section 1 of that agreement stated:
 
               XXIV.  DURATION, AMENDMENTS AND MODIFICATION
 
          Section 1.  This agreement will remain in full force and effect
       for two years from its effective date and automatically renew
       itself from year to year thereafter.  However, either party may
       give written notice to the other party not more than 90 nor less
       than 60 days prior to the two year anniversary date, and each year
       thereafter, of its intention to reopen and amend, modify, or
       terminate the agreement.  When such notice is given, the parties
       shall meet for the purpose of negotiating the amendments or
       modifications not later than 30 days prior to the anniversary
       date.  The conduct of such negotiations shall be determined at
       that time by a memorandum of understanding.  If negotiations are
       not concluded prior to the expiration date, the agreement will
       terminate on the anniversary date but may be extended by mutual
       consent in increments of 30 days.
 
          This agreement may be modified or amended at any time upon
       mutual agreement of the parties.  Any such request for an
       amendment or modification from either party shall be in writing
       and shall include a summary of the proposed amendments or
       modifications and the reasons therefor.
 
 This collective bargaining agreement was in effect for a period of two
 years and was automatically renewed for one additional year.  On
 September 9, 1975, AFGE informed the Activity of its desire to reopen
 the agreement and proceed with negotiations.  From May 1976 to the
 spring of 1977, bargaining proceeded on a sporadic basis.  In march
 1977, pursuant to a reorganization within HEW, negotiations were stopped
 by mutual consent.  On June 10, 1980, following a request by AFGE,
 negotiations once again took place and a new two year collective
 bargaining agreement was signed on July 14, 1980.
 
    However, prior to commencing negotiations in May 1976, AFGE and HEW
 on April 5, 1976 had signed the first of a series of 16 memoranda of
 understanding in order to extend the collective bargaining agreement and
 "to insure that everyone understood that the terms of the agreement
 would continue and that we will get back to negotiating and have a new
 contract." /5/ These memoranda, which established specific expiration
 dates for each extension, covered an overall time period of April 5,
 1976 through September 30, 1980, with some lapses.  The Memorandum
 entered into on March 1, 1980 stated:
 
          The agreement between Local 2909, AFGE and Boston Regional
       Office dated November 13, 1972 has been and will remain in effect
       until end of business, September 30, 1980.  This agreement will
       remain in full force and effect until the date of expiration and
       represents the sole written agreement between the parties.
 
    In early 1980, NTEU had asked the Activity about the status of its
 agreement with AFGE and was furnished a copy of the November 13, 1972
 agreement and the various memoranda extending that agreement through
 September 30, 1980.  On July 16, 1980, NTEU filed the instant
 representation petition.  AFGE, in essence, argues that the new
 collective agreement entered into on July 14, 1980 serves as an
 agreement bar so as to mandate dismissal of NTEU's petition.  The
 Authority disagrees.
 
    Pursuant to section 2422.3(f) of the Authority's Rules and
 Regulations, the July 14, 1980 agreement between AFGE and the Activity
 would not constitute a bar if it were to be deemed "an extension of an
 agreement having a term of three (3) years or less," and was "signed
 more than sixty (60) days before (the) expiration date" of that
 agreement.  Thus, the controlling issue herein is whether a written
 collective bargaining agreement was in effect between AFGE and the
 Activity on July 14, 1980 and, if so, whether the signing of the July 14
 agreement occurred more than 60 days prior to the expiration date of the
 other agreement.  In this regard, the Authority notes that in their
 memorandum agreement of March 1, 1980, AFGE and the Activity mutually
 agreed to extend the terms of the original 1972 agreement up to and
 including September 30, 1980.  Further, it was agreed at that time that
 "the agreement will remain in full force and effect until the date of
 expiration and represents the sole written agreement between the
 parties." In the Authority's view, such a written extension of the terms
 of the original agreement for a specified period of time and purporting
 on its face to be referring to "the sole written agreement between the
 parties" is controlling for purposes of resolving the agreement bar
 issue herein.  /6/ Thus, it follows that the July 14, 1980 agreement,
 which was signed more than sixty days prior to the expiration date of
 the "sole written agreement between the parties," cannot serve as a
 basis for dismissing NTEU's petition pursuant to section 2422.3(f) of
 the Authority's Rules and Regulations.  Accordingly, since NTEU's
 petition was filed "not more than 150 days and not less than 60 days
 before the expiration of the collective bargaining agreement," it is
 timely pursuant to section 7111(f)(3) of the Statute.
 
    In view of all the above, the Authority shall order an election in
 the unit currently represented by AFGE.
 
                           DIRECTION OF ELECTION
 
    An election by secret ballot shall be conducted among employees in
 the unit described above as soon as feasible.  The appropriate Regional
 Director shall supervise or conduct the election, as appropriate,
 subject to the Authority's Rules and Regulations.  Eligible to vote are
 those in the voting group who were employed during the payroll period
 immediately preceding the date below, including employees who did not
 work during that period because they were out ill, or on vacation or on
 furlough, or in the military service, who appear in person at the polls.
  Ineligible to vote are employees who have quit or were discharged for
 cause since the designated payroll period and who have not been rehired
 or reinstated before the election date.  Those eligible shall vote on
 whether they desire to be represented for the purpose of exclusive
 recognition by the National Treasury Employees Union;  by the American
 Federation of Government Employees, Local 2909, AFL-CIO;  or by neither.
  Issued, Washington, D.C., August 4, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The name of the Intervenor appears as amended at the hearing.
 
 
    /2/ In accordance with the order of the Court in American Federation
 of Government Employees, AFL-CIO v. Ronald W. Haughton, Civil Action No.
 81-0168 (D.D.C. June 24, 1981), this case has been held in abeyance
 pending issuance of the Authority's decision in Department of Health and
 Human Services, Office of the Secretary, 11 FLRA No. 21 (1983).
 
 
    /3/ Section 7111(f)(3) provides that:
 
          (f) Exclusive recognition shall not be accorded to a labor
       organization--
 
                                .  .  .  .
 
          (3) if there is then in effect a lawful written collective
       bargaining agreement between the agency involved and an exclusive
       representative (other than the labor organization seeking
       exclusive recognition) covering any employees included in the unit
       specified in the petition, unless--
 
          (A) the collective bargaining agreement has been in effect for
       more than 3 years, or
 
          (B) the petition for exclusive recognition is filed not more
       than 105 days and not less than 60 days before the expiration date
       of the collective bargaining agreement(.)
 
 
    /4/ Section 2422.3(f) of the Authority's Rules and Regulations
 states:
 
          Sec. 2422.3 Timeliness of petition
 
                                .  .  .  .
 
          (f) When an extension of an agreement having a term of three
       (3) years or less, has been signed more than sixty (60) days