37:1122(96)RO - - HUD, Newark Office, Newark, NJ and AFGE and NFFE Local 1616 - - 1990 FLRAdec RP - - v37 p1122

---

37 FLRA No. 96

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U. S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

NEWARK OFFICE

NEWARK, NEW JERSEY

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Petitioner)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1616

(Intervenor)

2-R0-00002

DECISION AND ORDER ON APPLICATION FOR REVIEW

October 22, 1990

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 National Federation of Federal Employees, Local 1616 (NFFE or Intervenor) under section 2422.17(a) of the Authority's Rules and Regulations.

On January 30, 1990, the American Federation of Government Employees, AFL-CIO (AFGE or the Petitioner) filed a petition for an election in a unit of the Activity's employees represented exclusively by NFFE. On July 30, 1990, the Regional Director issued a Decision and Order finding that the election petition was timely filed and ordered that an election be conducted. The Regional Director concluded that a collective bargaining agreement between NFFE and the Activity was not a bar to the petition.

NFFE's petition seeks review of the Regional Director's decision and a stay of the Regional Director's order that an election be conducted. Neither AFGE nor the Activity filed an opposition to the application for review.

We grant the application for review because the finding by the Regional Director that an agreement entered into by NFFE and the Activity in settlement of an unfair labor practice charge removed their collective bargaining agreement as a bar to AFGE's petition resulted in prejudicial error. On review of the Regional Director's Decision and Order, we find that the settlement agreement did not remove the collective bargaining agreement as a bar to AFGE's petition. Accordingly, as AFGE's petition was not timely filed, we shall dismiss the petition.

II. Regional Director's Decision

On January 30, 1990, AFGE filed a petition for an election in a unit consisting of all non-professional employees of the Activity. The unit employees were represented exclusively by NFFE. The Regional Director found that the petition was timely filed and not barred by the collective bargaining agreement between NFFE and the Activity. Accordingly, the Regional Director ordered that an election be conducted.

The Regional Director found that NFFE and the Activity have been parties to a collective bargaining agreement that became effective on November 13, 1981, and that, by its terms, was automatically renewed for 3-year terms in November 1984 and 1987.

On November 17, 1989, the then President of NFFE and the Activity entered into a written agreement in settlement of an unfair labor practice charge (Case No. 2-CA-90275). With respect to the settlement agreement, the Regional Director noted the following:

The agreement provided, in part, that the "Parties mutually agree to reopen the existing collective bargaining agreement and to begin negotiations on February 5, 1990." The agreement provided further that ". . . the present Labor Management Agreement shall be extended in its entirety until such time as a new Labor Management Agreement is negotiated and approved pursuant to Article 20."

Regional Director's Decision and Order at 2.

As previously noted, on January 30, 1990, AFGE filed a petition with the Regional Office of the Authority seeking to represent the bargaining unit represented exclusively by NFFE. By letter dated April 11, 1990, the Activity advised the Regional Office that if NFFE were to waive the contract bar to the election, the Activity would join NFFE in doing so. Id. By letter dated April 17, 1990, the then President of NFFE notified the Regional Office that NFFE waived any contract bar to AFGE's petition. Id. at 3. Shortly thereafter, in a letter dated April 30, 1990, the national office of NFFE advised the Activity that the Intervenor had been placed in trusteeship effective as of that date.

The Regional Director noted that the collective bargaining agreement between NFFE and the Activity was in effect on November 17, 1989, when they entered into the settlement of the unfair labor practice charge. The Regional Director found that, as part of the settlement, NFFE and the Activity agreed to renegotiate their current collective bargaining agreement and "to continue the . . . agreement in effect pending final approval." Id. The Regional Director concluded that "[t]he effect of [the] settlement agreement was to rescind the [collective bargaining] agreement's definite three year term and replace it with an indefinite term, with no ascertainable date certain for expiration." Id.

The Regional Director found that "[a]n agreement that does not have an ascertainable expiration date cannot serve as an election bar." Id. The Regional Director cited the Authority's decisions in Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas, 16 FLRA 281 (1982) (Corpus Christi Army Depot) and U.S. Department of Defense, Army National Guard, Camp Keyes, Augusta, Maine, 34 FLRA 59 (1989) (Army National Guard), for this principle. Relying on the Authority's decision in Office of the Secretary, Headquarters, Department of Health and Human Services, 11 FLRA 681 (1983) (Department of Health and Human Services), the Regional Director also found that "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." Id. The Regional Director, therefore, concluded that because NFFE and the Activity agreed to reopen and renegotiate their collective bargaining agreement and to continue its provisions for an indefinite term, that agreement could not serve as a bar to a petition. Having found that the agreement was not a bar to AFGE's petition, the Regional Director ordered that an election be conducted.

III. NFFE's Application for Review

NFFE contends that the Authority should grant review of the Regional Director's decision because a substantial question of law or policy is raised based on the absence of, or the departure from, Authority precedent. Application for Review at 1-3.

NFFE argues that the unfair labor practice settlement agreement entered into by NFFE and the Activity did not affect the term of the existing collective bargaining agreement, "which contained a clear statement as to its expiration date based upon which a rival could reasonably be able to raise a question concerning representation." Id. at 3. Otherwise, NFFE argues, a routine request to bargain prior to the expiration of a collective bargaining agreement would have the effect of removing the election bar assured by the expiration date of an existing agreement. Id. Therefore, NFFE argues that AFGE's petition is untimely because it was filed well before the expiration date of the collective bargaining agreement. NFFE further contends that the cases cited by the Regional Director are inapplicable because they are factually distinguishable.

IV. Analysis and Conclusions

We conclude that compelling reasons exist within the meaning of section 2422.17(c) of our Rules and Regulations for granting the application for review. We find, for the reasons stated below, prejudicial error in the Regional Director's finding that the settlement of the unfair labor practice charge entered into by NFFE and the Activity removed their collective bargaining agreement as a bar to AFGE's petition.

The Statute provides that an existing collective bargaining agreement will bar a petition for exclusive recognition by labor organizations other than the exclusive representative that 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 Authority Rules and Regulations.

Further, for a collective bargaining agreement to bar a representation petition, its effective date must be clear and unambiguous and it must clearly set forth its duration so that any potential challenging party may determine when the statutory open period will occur. Department of the Army, U.S. Army Concord District Recruiting Command, Concord, New Hampshire, 14 FLRA 73, 75 (1984).

In the instant case, on November 17, 1989, NFFE and the Activity entered into an agreement to settle Case No. 2-CA-90275. That case involved a dispute over the Activity's duty to engage in mid-term bargaining over flexitime. Transcript at 43, 45. In the settlement agreement, NFFE and the Activity agreed to reopen their current collective bargaining agreement and, at a specified date, commence negotiations for a new collective bargaining agreement, including a provision concerning flexitime. Id.

As pertinent here, the settlement agreement states the following:

5. It is understood and agreed by the parties herein above named that the present Labor Management Agreement, shall be extended in its entirety until such time as a new Labor Management Agreement is negotiated and approved pursuant to Article 20.

Thus, in the settlement agreement, NFFE and the Activity agreed that their current collective bargaining agreement "be extended in its entirety until such time" as a new collective bargaining agreement is negotiated. Additionally, they agreed that the new collective bargaining agreement be "negotiated and approved pursuant to Article 20" of their current collective bargaining agreement.

As pertinent here, Article 20 of NFFE and the Activity's current collective bargaining agreement provides as follows:

ARTICLE XX

DURATION AND EXTENT OF AGREEMENT

SECTION 20.01 EFFECTIVE DATE AND TERM: The