34:0059(14)RO - - DOD, Army NG, Camp Keyes, Augusta, ME and AFGE Local 3012 and ACT - - 1989 FLRAdec RP - - v34 p59



[ v34 p59 ]
34:0059(14)RO
The decision of the Authority follows:


34 FLRA No. 14

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

ARMY NATIONAL GUARD

CAMP KEYES, AUGUSTA, MAINE

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 3012

(Intervenor)

and

ASSOCIATION OF CIVILIAN TECHNICIANS

(Petitioner)

1-RO-80003

ORDER DENYING APPLICATION FOR REVIEW

December 27, 1989

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on an application for review filed by the American Federation of Government Employees, AFL-CIO, Local 3012 (AFGE or the Intervenor) under section 2422.17(a) of the Authority's Rules and Regulations.

On March 4, 1988, the Association of Civilian Technicians (ACT or the Petitioner) filed a petition for an election in the unit represented exclusively by AFGE. On August 31, 1988, the Regional Director issued a Decision and Order and Direction of Election finding that the petition was timely filed and ordering that an election be conducted. The Regional Director concluded that a 1981 collective bargaining agreement between AFGE and the Maine Army National Guard, Camp Keyes, Augusta, Maine (the Activity) was not a bar to the petition.

AFGE's application seeks review of the Regional Director's decision. The application also requested that the Authority stay the Regional Director's order that an election be conducted. ACT filed an opposition to the application for review.

Because two vacancies existed in the Authority, Acting Chairman McKee issued an Interim Order on December 27, 1988, directing that consideration of the application be deferred until further notice. The interim order preserved the parties' rights under the Statute to Authority consideration of the Regional Director's decision.

By letter to the parties dated March 1, 1989, the Regional Director indicated his intent to conduct an election in this matter and to impound the ballots cast and defer the count until the Authority rules on the application for review. By letter of March 6, 1989, AFGE requested that the interim order be clarified "by issuing an unambiguous stay of any election" until the Authority rules on the application for review. On April 11, 1989, Acting Chairman McKee denied AFGE's request, stating that "[t]he interim order did not address the Intervenor's request for a stay, nor is there anything in the interim order that provides a basis for altering the actions contemplated by the Regional Director in this case."

The Authority now considers AFGE's application for review. For the reasons set forth below, we conclude that the application should be denied.

II. Regional Director's Decision

On March 4, 1988, ACT filed a petition for an election in a unit consisting of all Wage Grade and General Schedule employees of the Activity. These employees have been represented exclusively by AFGE since 1969. The Regional Director found that the petition was timely filed and was not barred by the collective bargaining agreement between AFGE and the Activity. The Regional Director ordered that an election be conducted.

The Regional Director found that AFGE and the Activity are parties to an agreement which they have followed since 1981. The agreement was signed locally by the parties on October 13, 1981. The agreement provided that it was to become effective on the date of its approval by the Agency head or designee. The agreement was approved by the Agency head's designee on November 5, 1981. However, prior to January 1988, copies of the agreement reflected only the October 13, 1981 signing date, and did not reflect the November 5, 1981 approval date.

The agreement provides that it is effective for 2 years from the date of approval and will automatically renew for 2-year periods thereafter unless either party gives written notice, during specified times, of its intent to renegotiate the agreement. In 1983, the Activity timely gave notice of its intent to renegotiate the agreement. However, no negotiations took place. In 1986, the Activity discussed the possibility of renegotiations with AFGE, and in 1987, it notified AFGE that it wished to "update" the agreement. However, no negotiations took place. Since 1981, AFGE and the Activity have treated the agreement as having been automatically renewed.

The Regional Director found that "[i]t is well established in federal sector labor law that 'where, as here, a negotiated agreement provides for automatic renewal unless a party requests renegotiations, a party's request to renegotiate serves to terminate such a negotiated agreement, even if, in fact, no negotiations subsequently take place.'" Regional Director's Decision at 4. The Regional Director cited two cases decided by the Assistant Secretary of Labor for Labor-Management Relations under Executive Order 11491, Veterans Administration Center, Togus, Maine, 3 A/SLMR 568 (1973) and National Center for Mental Health Services, Training and Research, 1 A/SLMR 285 (1971), for this principle. The Regional Director found that the Activity's timely request to renegotiate the agreement in 1983 terminated the agreement as a bar to ACT's petition.

The Regional Director found, alternatively, that "even if the Activity's 1983 request to renegotiate did not serve to terminate the Agreement, it did not constitute a bar to ACT's petition." Regional Director's Decision at 5. The Regional Director noted the Authority's holding in Department of the Army, U.S. Army Concord District Recruiting Command, Concord, New Hampshire, 14 FLRA 73, 75 (1984), that "a negotiated agreement must contain a clear and unambiguous effective date and language setting forth its duration so that any potential challenging party may determine when the statutory open period will occur." Regional Director's Decision at 5. The Regional Director concluded that "AFGE's efforts [to insert the approval date], months after the close of the open period, did not effectively remedy the Agreement's failure to include an effective date so that a challenging labor organization such as ACT could determine the statutory open period." Id.

Having concluded that the 1981 agreement was not a bar to ACT's petition, the Regional Director ordered that an election be conducted.

III. Positions of the Parties

A. AFGE's Application for Review

AFGE argues that the Authority should grant review of the Regional Director's decision because: (1) a substantial question of law or policy is raised by the decision due to the absence of and/or departure from Authority precedent; (2) there are extraordinary circumstances warranting reconsideration of the Authority policy relied on by the Regional Director where the parties openly treat an agreement as having been renewed; (3) the decision's ruling that AFGE's contract does not bar ACT's petition manifests prejudicial error; and (4) the decision's finding that the October 13, 1981 date could not be used as the contract's effective date in calculating the period when a petition may be filed constitutes a clearly erroneous finding on a substantial factual issue. Application for Review (Application) at 1-3.

AFGE does not dispute the fact that the Activity sought to renegotiate the agreement. AFGE argues that the agreement has remained in full force and effect since it was signed on October 13, 1981, because: (1) the parties' agreement provided that it "will remain in full force and effect during the renegotiation of said Agreement and until such time as a new Agreement is approved"; and (2) the parties openly treated their agreement as having been renewed. AFGE contends, therefore, that the agreement should be found to be a bar to ACT's petition. AFGE argues that the Executive Order cases relied on by the Regional Director are not controlling. Application at 5-6.

AFGE argues that the agreement became effective when it was signed on October 13, 1981, and that the Regional Director should have used that date to calculate the period when a petition could have been timely filed. AFGE notes that the signature page of the agreement, which was signed by the Activity's Chief of Staff and by the Adjutant General, left no blank space for any further signature. AFGE argues that the agreement, therefore, "appears to have been approved by 'the Agency head or designee,'" as required by the agreement. Application at 7. AFGE argues that because the October 13, 1981 date is the only date that appears on the face of the agreement, ACT could not have been misled about when it must file a petition. AFGE argues that this fact distinguishes this case from the Authority cases cited by the Regional Director. Application at 7-9. AFGE concludes that the Regional Director's decision should be reversed.

B. ACT's Opposition

ACT agrees with the Regional Director's conclusion that the agreement between AFGE and the Activity did not contain a clear and unambiguous effective date and, therefore, could not bar ACT's petition. ACT argues that because the parties' agreement required Agency head approval to be effective, AFGE's argument that the signing date of October 13, 1981, should be considered as the effective date of the agreement cannot be sustained. Petitioner's Opposition to Application for Review (Opposition) at 2-6.

ACT also agrees with the Regional Director's conclusion that the Activity's 1983 request to renegotiate the agreement terminated the agreement as a bar to ACT's petition. ACT contends that the Executive Order cases cited by the Regional Director are not distinguishable from this case. ACT argues that the fact that AFGE and the Activity treated their agreement as continuously in force and effect is irrelevant to the issues in this case. ACT also argues that the wording of the provision extending the agreement until negotiations have ended is evidence that the agreement had no fixed expiration date and, therefore, that it cannot create a bar to the right to file a petition. Opposition at 6-9.

Finally, ACT disagrees with AFGE's argument that the signature of the Activity's Chief of Staff or the Adjutant General constituted approval by the Agency head. ACT contends that this argument is refuted by past practice and by the facts in this case. ACT argues that all the parties understood that "agency head" means the National Guard Bureau. ACT also disagrees with AFGE's argument that the signatures on the agreement on October 13, 1981, were sufficient to establish an effective date. ACT contends that this argument is belied by the fact that the agreement provides otherwise, that a signed and dated approval was obtained from another designee of the National Guard Bureau, and that considerable effort was made to create a new signature page in January 1988. Opposition at 9-13. ACT concludes that the application should be denied.

IV. Discussion

We conclude, for the reasons stated below, that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review.

We find that the application does not raise a substantial question of law or policy within the meaning of section 2422.17(c)(1) of our Regulations by reason of either the absence of or a departure from Authority precedent. The Regional Director found, and we agree, that the Activity's written request in 1983 to renegotiate its 1981 agreement with AFGE terminated the agreement as a bar to a petition. While the Regional Director relied on Executive Order precedent, the Authority has followed the same principles under the Statute.

The Statute provides with two exceptions that an existing collective bargaining agreement will bar a petition for exclusive recognition by labor organizations other than the exclusive representative which is a party to the agreement. Under section 7111(f)(3) of the Statute, a lawful, written, collective bargaining agreement between an agency and an exclusive representative will constitute a bar unless: (1) the agreement has been in effect for more than 3 years; or (2) the petition for exclusive recognition is filed not more than 105 days and not less than 60 days before the expiration date of the agreement. See also section 2422.3(d)(1) of our Rules and Regulations.

Under the Statute, an agreement to extend the terms of a collective bargaining agreement during renegotiations does not bar a petition. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas, 16 FLRA 281 (1984). "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." Id. at 282-83 (footnote omitted). Accordingly, we reject AFGE's contention that the provision in the parties' agreement that the "existing Agreement will remain in full force and effect during the renegotiation of said Agreement" barred ACT's petition.

Additionally, a timely request to modify or renegotiate an existing agreement prevents automatic renewal of the agreement and precludes that agreement from barring a petition, where, as here, a negotiated agreement provides for automatic renewal unless a party requests renegotiation. Office of the Secretary, Headquarters, Department of Health and Human Services, 11 FLRA 681 (1983). "To conclude otherwise would . . . unreasonably impede the ability to raise a question concerning representation for employees who had been covered by the agreement." Id. at 685. Once the Activity made a timely request in 1983 to renegotiate, the agreement could not serve as a bar to a petition beyond its expiration date in 1983.

The fact that AFGE and the Activity have treated their agreement as having been renewed is not an extraordinary circumstance within the meaning of section 2422.17(c)(2) of our Regulations which warrants reconsideration of the policy set forth in the cases cited. The Authority's policy regarding when an agreement bars a petition is consistent with the Statute because it both promotes stability during the term of an agreement of clearly fixed duration and does not unreasonably impede the ability of a competing union to raise a question concerning representation for the employees covered by an agreement. Corpus Christi Army Depot, 16 FLRA at 282-83; Department of Health and Human Services, 11 FLRA at 685. We reaffirm this policy. Therefore, we find no merit in AFGE's contention that by denying it the "protection of a contract bar," the Regional Director's decision amounts to prejudicial error within the meaning of section 2422.17(c)(3) of our Regulations.

We also find no merit in AFGE's contention that the Regional Director committed prejudicial error within the meaning of section 2422.17(c)(4) of our Regulations by not using the October 13, 1981 date to calculate when a petition could be filed.