16:0281(42)DR - Army, Corpus Christi Army Depot, Corpus Christi, TX and William Charles Chism and IAM, Aeronautical Lodge 2049 -- 1984 FLRAdec RP



[ v16 p281 ]
16:0281(42)DR
The decision of the Authority follows:


 16 FLRA No. 42
 
 DEPARTMENT OF THE ARMY
 CORPUS CHRISTI ARMY DEPOT
 CORPUS CHRISTI, TEXAS
 Activity
 
 and
 
 WILLIAM CHARLES CHISM
 Individual/Petitioner
 
 and
 
 INTERNATIONAL ASSOCIATION OF MACHINISTS
 AND AEROSPACE WORKERS, AFL-CIO, AERONAUTICAL
 LODGE 2049
 
                                            Case No. 6-DR-30004
 
                    DECISION AND DIRECTION OF ELECTION
 
    Upon a petition duly filed with the Federal Labor Relations Authority
 under section 7111(b)(1)(B) of the Federal Service Labor-Management
 Relations Statute (the Statute), a hearing was held before a hearing
 officer of the Authority.  The Authority has reviewed the hearing
 officer's rulings made at the hearing and finds that they are free from
 prejudicial error.  The rulings are hereby affirmed.
 
    Upon the entire record in this case, the Authority finds:  The
 Petitioner, William Charles Chism, an employee of the Activity, seeks
 the decertification of the International Association of Machinists and
 Aerospace Workers, AFL-CIO, Aeronautical Lodge 2049 (IAM) as the
 exclusive representative of the unit of all employees of the Glass and
 Plastic Unit, and Rubber Equipment Unit, Structural Support Section,
 Structures Branch, Airframe Shops Division, Directorate for Maintenance
 of Corpus Christi Army Depot, Corpus Christi, Texas.  IAM contends that
 the petition should be dismissed because it was not timely filed as
 there is in effect a collective bargaining agreement for the unit
 involved that runs until March 13, 1984.  Alternatively, it argues that
 the ten units covered by its collective bargaining agreement have been
 merged into a single appropriate unit and consequently the
 decertification petition is invalid.
 
    On March 13, 1981, the IAM and the Activity entered into a collective
 bargaining agreement.  The sections of the contract that are relevant
 herein are:
 
                               ARTICLE XXXII
 
                    DURATION AND AMENDMENT OF AGREEMENT
 
          Section 1.  This Agreement as executed by the parties shall
       remain in full force and effect for a period of two (2) years from
       the date of its approval by the Commander, Corpus Christi Army
       Depot . . . .
 
          Section 2.  This Agreement may at the expiration of the second
       year from the date of its approval be extended for one year by
       mutual consent of the parties without any change in the provisions
       of the Agreement as it exists at that time.
 
          Section 3.  Unless otherwise agreed by the parties or provided
       this Agreement has not been terminated or extended, negotiations
       on a new Agreement shall convene not more than ninety (90) or less
       than sixty (60) days prior to the expiration date of this
       Agreement . . . .
 
    In January 1983, the president of IAM informed the Activity that it
 wished to engage in negotiations in the near future.  The Activity
 replied by letter that it was presently in negotiations with another
 union and that it would meet with the IAM in June.  On May 16, 1983, the
 Petitioner filed his original petition herein.  In June 1983, as
 negotiations with the other union were still taking place, the Activity
 stated that it would meet with IAM in September.  On August 12, 1983,
 the Petitioner filed an amended petition in this case.  The record
 indicates that the contract was not extended for an additional year
 under the provisions of Article XXXII, Section 2.  The Activity contends
 that the terms of the contract were extended to September 1983, by a
 series of correspondence between the parties beginning in January 1983,
 because of the Activity's inability to meet to negotiate with the union.
 
    Based on the above, the Authority finds that the Petitioner's
 petition was timely filed and that neither the collective bargaining
 agreement between IAM and the Activity dated March 13, 1981, nor their
 correspondence purporting to extend this agreement for the purpose of
 negotiating a new agreement, operated as a bar to the petition.  In the
 Authority's view, where parties execute a series of extension agreements
 in order to provide an opportunity for the parties to renegotiate an
 agreement, and agree to continue the terms of the earlier agreement
 until such negotiations are complete, those agreements may not operate
 as a bar to a petition which otherwise is timely filed.  Such a
 temporary stopgap agreement does not constitute a final agreement of
 fixed duration and lacks the stability sought to be achieved by the
 agreement bar principle.  /1/ Further, the fact that the parties desired
 to renegotiate the agreement and the fact that neither party expressed a
 desire to extend the agreement for an additional year pursuant to
 Article XXXII, Section 2 supports the finding that no agreement bar
 exists on the facts of this case.  /2/ Accordingly, the Authority
 concludes that there was no agreement of fixed duration in effect after
 March 13, 1983, the expiration date of the parties' agreement, which
 could serve as an "agreement bar" and that the Petitioner's petition
 dated May 16, 1983 and amended on August 12, 1983 was timely filed.
 
    The Authority further finds no merit in the IAM's argument that the
 10 units covered by the collective bargaining agreement, including the
 unit involved herein, were merged into one unit.  The record indicates
 that the unit of the Glass and Plastic Unit and Rubber Equipment Unit
 had been recognized as a separate bargaining unit since the Activity
 granted formal recognition to the IAM on February 1, 1966.  No evidence
 was introduced indicating that a consolidation was commenced or
 consummated under either Executive Order 11491, as amended, or the
 Statute.  Accordingly, the Authority finds, specifically noting the long
 time existence of the Unit, in accordance with section 7112 of the
 Statute, that the following continues to constitute an appropriate unit:
 
          Included:  All employees of the Glass and Plastic Unit, and
       Rubber Equipment Unit, Structural Support Section, Structures
       Branch, Airframe Shops Division, Directorate for Maintenance of
       Corpus Christi Army Depot, Corpus Christi, Texas.
 
          Excluded:  All professional employees, management officials,
       supervisors, and employees described in 5 U.S.C. 7112(b)(2), (3),
       (4), (6) and (7).
 
    In view of the above, the Authority shall order an election in the
 unit currently represented by IAM.
 
                           DIRECTION OF ELECTION
 
    An election by secret ballot shall be conducted among the 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, including those 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 or not they desire to be
 represented for the purpose of exclusive recognition by the
 International Association of Machinists and Aerospace Workers, AFL-CIO,
 Aeronautical Lodge 2049.  Issued, Washington, D.C., October 26, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
    NATIONAL FEDERATION OF
 
    FEDERAL EMPLOYEES, LOCAL 29
 
                                   Union
 
    and
 
    DEPARTMENT OF THE ARMY,
 
    KANSAS CITY DISTRICT,
 
    CORPS OF ENGINEERS
 
    KANSAS CITY, MISSOURI
 
                                  Agency
                                       Case No. O-NG-672
                                       15 FLRA No. 49
 
                 ORDER DENYING MOTION FOR RECONSIDERATION
 
    This case is before the Authority on a motion for reconsideration
 filed by the National Federation of Federal Employees, Local 29 on July
 25, 1984, seeking reconsideration of the Authority's Decision and Order
 of July 10, 1984.  For the reason set forth below, the motion must be
 denied.
 
    The Authority issued its Decision and Order in the above case on July
 10, 1984, finding in relevant part that the Union's proposal interfered
 directly with management's right, pursuant to section 7106(a)(2)(A) of
 the Statute, to assign employees, by requiring the application of
 reduction-in-force regulations to certain reassignments not involving
 reductions-in-force.
 
    Section 2429.17 of the Authority's Rules and Regulations provides, in
 part, that a party "who can establish . . . extraordinary circumstances
 . . . may move for reconsideration" of a decision of the Authority.  In
 support of the motion for reconsideration, the Union contends that the
 proposal is negotiable under section 7106(b)(3) of the Statute which
 provides for negotiation of "appropriate arrangements for employees
 adversely affected by the exercise of authority under this section by .
 . . management officials." However, the Union did not initially assert
 this argument in stating its position in full pursuant to section 2424.7
 of the Authority's Rules and Regulations.  Nor was it otherwise apparent
 in the record that the proposal constituted an appropriate arrangement
 within the meaning of section 7106(b)(3) of the Statute.  Thus, the
 Union's motion is merely an attempt to relitigate the matter.  The
 Authority concludes that, in light of the above, the National Federation
 of Federal Employees, Local 29 has failed to establish the existence of
 extraordinary circumstances.  Accordingly, apart from other
 considerations, IT IS HEREBY ORDERED that the motion for reconsideration
 be, and it hereby is, denied.  Issued, Washington, D.C., October 24,
 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
    NATIONAL TREASURY EMPLOYEES UNION
 
                                   Union
 
    and
 
    DEPARTMENT OF THE TREASURY,
 
    CUSTOMS SERVICE
 
                                  Agency
                                       Case No. O-NG-1024
                                       (15 FLRA No. 144)
 
                 ORDER DENYING MOTION FOR RECONSIDERATION
 
    This case is before the Authority for ruling on a motion filed by the
 Union seeking reconsideration of the Authority's Order of August 29,
 1984, dismissing the Union's petition for review as untimely filed.  For
 the reasons set forth below, the Union's motion must be denied.
 
    As stated in the Order dismissing the Union's petition for review,
 the Agency's allegation in this case was apparently served on the Union
 by mail by letter dated June 13, 1984.  Therefore, under sections 2424.3
 and 2429.22 of the Authority's Regulations, the Union's petition for
 review had to be filed with the Authority no later than July 3, 1984.
 The petition for review, however, was not filed until July 5, 1984, and
 was dismissed as untimely.
 
    In its motion for reconsideration, the Union asserts that the
 Authority's dismissal is based on two factors with which it disagrees:
 "(1) the presumption that the Agency's declaration of non-negotiability
 was served on June 13, 1984 and (2) the belief that NTEU's petition was
 not filed until July 5, 1984." In support of its first assertion,
 although the Union recognizes that the Agency's allegation was dated
 June 13, 1984, it argues that since that allegation was not received by
 the Union on that date, particularly since there is no evidence of that
 actual date of "service." Secondly, the petition for review was
 deposited with the U.S. Postal Service on July 2, 1984, for guaranteed
 next day delivery to the Authority by Express Mail and the Union should
 not be penalized because of the failure of the Postal Service to deliver
 the petition for review as promised.
 
    Section 2429.17 of the Authority's Rules and Regulations, effective
 September 10, 1981, provides in pertinent part:
 
          2429.17 Reconsideration.
 
          After a final decision or order of the Authority has been
       issued, a party to the proceeding before the Authority who can
       establish in its moving papers extraordinary circumstances for so
       doing, may move for reconsideration of such final decision or
       order.  The motion shall be filed within 10 days after service of
       the Authority's decision or order . . . .
 
    The situations adverted to in the Union's motion do not constitute
 "extraordinary circumstances" within the meaning of section 2429.17.  In
 regard to the Union's first argument, the Union has not offered any
 evidence that the Agency's allegation of nonnegotiability was served,
 i.e., deposited in the U.S. Mail or delivered in person, on a date
 subsequent to June 13, 1984.  Absent such evidence, the Union's mere
 assertion that service on a later date was a possibility is not
 sufficient to warrant reconsideration of the Authority's Order.  See
 Federal Employees Metal Trades Council, Fort Benning, Georgia and U.S.
 Army Infantry Center, Fort Benning, Georgia, 6 FLRA 462;  motion for
 reconsideration denied March 31, 1982.  In regard to the Union's second
 argument, it is well-established that the date a document is deposited
 with the U.S. Postal Service for delivery to the Authority is without
 controlling significance in timeliness determinations under the
 Authority's Rules and Regulations, and that the failure of the Postal
 Service to deliver a document by a certain date is not an "extraordinary
 circumstance." American Federation of Government Employees, AFL-CIO,
 Local 3896 and U.S. Department of Education, Region V, Chicago,
 Illinois, 11 FLRA No. 26 (1983);  motion for reconsideration denied
 August 10, 1983.
 
    Accordingly, since the Union has failed to establish the existence of
 extraordinary circumstances warranting reconsideration of the Order of
 August 29, 1984, the Union's motion is hereby denied.  Issued,
 Washington, D.C., October 24, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
    NATIONAL TREASURY EMPLOYEES UNION
 
                                   Union
 
    and
 
    DEPARTMENT OF THE TREASURY,
 
    INTERNAL REVENUE SERVICE
 
                                  Agency
                                       Case No. O-NG-600
                                       13 FLRA No. 93
 
  ORDER DENYING MOTION FOR RECONSIDERATION OF DECISION ON
 NEGOTIABILITY
 ISSUE
 
    This matter is before the Authority on a motion by the National
 Treasury Employees Union (the Union) for reconsideration of the
 Authority's decision in National Treasury Employees Union and Department
 of the Treasury, Internal Revenue Service, 13 FLRA No. 93 (1984).  In
 that decision, the Authority determined, among other things, that
 provisions of the parties' agreement were properly disapproved within
 the meaning of section 7114(c) of the Statute by "the head of the
 agency" or his designee.
 
    Section 2429.17 of the Rules and Regulations provides, in part, that
 a party who "can establish . . . extraordinary circumstances . . . may
 move for reconsideration" of an Authority decision.  Upon review of the
 Union's motion, the Authority concludes that no extraordinary
 circumstances warranting reconsideration have been established.
 Instead, the motion merely demonstrates the moving party's disagreement
 with the Authority's conclusion that the designee of an agency head may,
 under section 7114(c), properly disapprove a collective bargaining
 agreement.  In this regard, just as the Union may designate its
 representative before the Authority, the designation of the Agency's
 representative is a matter within the purview of the Agency.  In any
 event, the head of an agency clearly may delegate to subordinate
 officials authority vested in him or her by law.  See 5 U.S.C. 302.
 
    Accordingly, IT IS ORDERED that the motion for reconsideration of the
 Authority's decision be, and it hereby is, dismissed.  Issued,
 Washington, D.C., October 26, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ See Department of Health and Human Services, Region IX, 12 FLRA
 No. 46 (1983), enunciating this principle in a case under Executive
 Order 11491, as amended;  see also Department of Health and Human
 Services, Boston Regional Office, Region I, 12 FLRA No. 93 (1983),
 wherein the Authority found in a case under the Statute that memoranda
 executed by the