43:1475(119)RO - - FL Air and Army NG, St. Augustine, FL and FL Air and Army Chapters, ACT and NAGE Locals R5-91 and R5-120 - - 1992 FLRAdec RP - - v43 p1475



[ v43 p1475 ]
43:1475(119)RO
The decision of the Authority follows:


43 FLRA No. 119

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

FLORIDA (AIR) NATIONAL GUARD

ST. AUGUSTINE, FLORIDA

(Activity)

and

FLORIDA AIR CHAPTER

ASSOCIATION OF CIVILIAN TECHNICIANS (ACT)

(Petitioner/Labor Organization)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R5-91

(Intervenor/Labor Organization)

and

FLORIDA (ARMY) NATIONAL GUARD

ST. AUGUSTINE, FLORIDA

(Activity)

and

FLORIDA ARMY CHAPTER

ASSOCIATION OF CIVILIAN TECHNICIANS (ACT)

(Petitioner/Labor Organization)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R5-120

(Intervenor/Labor Organization)

4-RO-10004

4-RO-10005

ORDER DENYING APPLICATION FOR REVIEW

February 11, 1992

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 Association of Government Employees (NAGE), on behalf of the Intervenors, under section 2422.17(a) of the Authority's Rules and Regulations. In her Decision and Order on Petitions for Certification of Representative, the Regional Director (RD) found that the current agreement between the Florida National Guard and the Intervenors does not contain clear and unambiguous language setting forth the effective date of the agreement. Therefore, the RD found that the petitions filed by the Petitioners were timely.

NAGE seeks review of the RD's decision. The Association of Civilian Technicians (ACT), on behalf of the Petitioners, filed an opposition to NAGE's application for review. The Activity did not file a submission. For the reasons discussed below, we find that NAGE has not established any basis for review of the RD's decision and order. Accordingly, we deny the application for review.

II. Background and RD's Decision

On November 13, 1990,(*) in Case No. 4-RO-10004, the Florida Air Chapter, ACT, petitioned for a unit of all eligible, non-professional Wage Grade and General Schedule employees employed by the Florida Air National Guard statewide.

On November 13, 1990, in Case No. 4-RO-10005, the Florida Army Chapter, ACT (ACT Army), petitioned for a unit of all eligible, non-professional Wage Grade and General Schedule employees employed by the Florida Army National Guard statewide, except those represented by NAGE Local R5-107. On February 25, 1991, ACT Army amended its petition by deleting the reference that excluded those employees represented by NAGE Local R5-107.

NAGE Local R5-91, the Intervenor in Case No. 4-RO-10004, was certified on August 16, 1971, as the exclusive representative of a unit of all eligible, non-professional Wage Board and General Schedule Florida Air National Guard technicians, except for Army Aviation technicians at Craig Field, Jacksonville, Florida and Florida Army National Guard technicians.

NAGE Local R5-107 was recognized on December 5, 1969, as the exclusive representative of Wage Grade and General Schedule Army National Guard Technicians located at Craig Field, Jacksonville, Florida. On September 7, 1971, NAGE Local R5-120, the Intervenor in Case No. 4-RO-10005, was certified as the exclusive representative of a unit of all eligible, non-professional Wage Grade and General Schedule Florida Army National Guard technicians, except for Army Aviation technicians at Craig Field, Jacksonville, Florida and Florida Air National Guard technicians. Thereafter, on January 19, 1990, pursuant to a petition for amendment of recognition, the name of the exclusive representative of the Craig Field Army Aviation technicians unit was changed to NAGE Local R5-120 in order to reflect a merger of NAGE Locals R5-107 and R5-120. However, NAGE Local R5-120 continued to represent the employees in two separate bargaining units.

The RD found that the only issue presented by the petitions in these cases was whether the petitions were timely filed or whether the collective bargaining agreement between the Florida National Guard (FNG) and the Intervenors served as a bar to the petitions.

Negotiations leading to a single agreement between the FNG and the Intervenors began in 1978. On January 11, 1988, representatives of the NAGE locals and the FNG signed an agreement. Thereafter, pursuant to section 7114(c) of the Federal Service Labor-Management Relations Statute (the Statute), the agreement was forwarded to the Chief of the National Guard Bureau (NGB).

On February 9, 1988, the Chief of the NGB's Technician Labor Relations Division signed the signature page of the agreement with a stamp that stated "APPROVED: FOR THE CHIEF, NATIONAL GUARD BUREAU." Joint Exhibit 2. In a separate memorandum to the Adjutant General of the FNG, the Chief of the NGB Technician Labor Relations Office advised that he had approved the agreement with the exception of three provisions.

After receiving notification that the Agency head had disapproved certain provisions of the agreement, the Labor Relations Specialist of the FNG contacted the Intervenors. On March 16, 1988, the parties began renegotiations on the disapproved provisions; they completed those negotiations on May 23, 1988. On June 3, 1988, the negotiators signed a document entitled "AMENDMENT TO LABOR AGREEMENT BETWEEN THE FLORIDA NATIONAL GUARD AND THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-91, R5-107 and R5-120." Joint Exhibit 1. On June 15, 1988, the Chief of the NGB Technician Labor Relations Office stamped this document approved and signed it for the Agency head. This unnumbered document was then placed behind the title page of the parties' agreement.

The Petitioners contended before the RD that the agreement between the Intervenors and the FNG became effective for a three-year period on February 9, 1988, and that during the period between February and June 1988 the parties were operating under the new agreement. Therefore, the Petitioners maintained that their petitions filed on November 13, 1990, were filed within the open period and thus were timely. The Petitioners further argued that because there are two NGB approval dates in the agreement, the agreement does not contain a clear and unambiguous effective date with language setting forth the contract's duration and cannot, therefore, constitute a bar to its petitions. In support of its position, the Petitioners cited the Authority's decisions in U.S. Army, Concord District Recruiting Command, 14 FLRA 73 (1984) (Concord) and U.S. Department of the Army, Watervliet Arsenal, Watervliet, New York, 34 FLRA 98 (1989) (Watervliet).

The FNG and the Intervenors took the position that the agreement became effective on June 15, 1988, when the Agency Head approved the agreement in its entirety. Accordingly, they contended that the open period ran from February 13, 1991, to April 14, 1991, and that, therefore, the petitions filed by the Petitioners on November 13, 1990, were untimely. The Intervenors contended that pursuant to section 7114(c) of the Statute, the agreement, not a portion of it, must be approved by the agency head. It maintained that this final approval by the Agency head did not occur until June 15, 1988, and therefore, that the agreement did not take effect until after that date. The Intervenors further argued that the "four corners" of the agreement contain a clear and unambiguous effective date and language setting forth its duration. RD's decision at 8-9. In the Intervenors' view, the Petitioners should have been able to determine the statutory open period.

The RD reviewed the Authority's decision in Watervliet, noting that the Authority reaffirmed its previous holding that an agreement, not a portion of it, is subject to agency head approval under section 7114(c) of the Statute. She further noted that in Watervliet the Authority also stated that although the parties may agree to implement all portions of an agreement not specifically disapproved by the agency head, when a portion of a locally executed agreement has been disapproved by an agency head, any revised agreement is subject to review by the agency head. The RD found that in this case: (1) the parties locally executed an agreement on January 11, 1988, and portions of it were disapproved by the Agency head on February 9, 1988; (2) on June 3, 1988, the parties locally executed an "Amendment" to the agreement in lieu of those provisions previously disapproved by the Agency head; and (3) the Agency head approved the "Amendment" on June 15, 1988. RD's decision at 9. The RD rejected the Petitioners' contention that the parties agreed to implement portions of the agreement executed locally on January 11, 1988, and found instead that the agreement, "by operation of law, became effective on June 15, 1988." Id. at 10.

The RD then noted that in Concord the Authority held that in order to constitute a bar to a challenging petition, an agreement must contain a clear and unambiguous effective date and language setting forth its duration to allow any potential challenging party to determine the statutory open period. The RD reviewed the agreement at issue in this case. The RD noted that Article XXIII, entitled "Duration, Term of Agreement," states, in relevant part: "This Agreement shall be in full force and effect for three (3) years from the date of approval by the Chief, National Guard Bureau." RD's decision at 10. She also noted that the unnumbered document that the Agency head approved on June 15, 1988, states:

AMENDMENT TO LABOR AGREEMENT BETWEEN THE FLORIDA NATIONAL GUARD AND THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-91, R5-107 and R5-120.

The labor agreement signed on 11 January 1988 by the below parties, representing the employer and labor organization was approved by National Guard Bureau on 9 February 1988, but required some regulatory changes. Pages containing the changes have been reproduced, and said pages (6, 9, 11, 12 and 17) appear with a 24 March 1988 date on them.

IN WITNESS THEREOF the parties hereto have entered into this amendment to the 11 January 1988 agreement on this 3rd day of June 1988.

Id. (emphasis in original).

Observing that the unnumbered document states that the agreement was approved by the Agency head on February 9, 1988, that the amendment was approved by the Agency head on June 15, 1988, and that Article XXIII states that the agreement became effective for 3 years from the date of approval by the Agency head, the RD found that a question would exist for a potential challenging party as to when the agreement became effective. Under these circumstances, the RD found that the agreement "does not contain clear and unambiguous language setting forth the effective date of the Agreement as required by the FLRA in its Concord decision." Id. at 11. Accordingly, the RD concluded that the petitions were timely.

III. Positions of the Parties

A. NAGE's Application for Review

NAGE contends that the RD's decision should be set aside because the record establishes that the agreement serves as a bar to an election. NAGE argues that the RD erroneously determined that the agreement does not contain clear and unambiguous language setting forth the effective date of the agreement as required by the Authority's decision in Concord. NAGE contends that the RD's error prejudicially affects the rights of the incumbent labor organizations.

NAGE argues that under the plain language of section 7114(c) of the Statute, an agreement, not a portion of it, must be approved by the agency head. It further argues that where an agency head timely disapproves an agreement under section 7114(c) of the Statute, the agreement does not take effect and is not binding on the parties. NAGE notes that provisions of the January 11, 1988, agreement between it and the FNG were disapproved by the Agency head on February 9, 1988. NAGE contends that the agreement was not effected until the disapproved provisions were renegotiated, resubmitted for Agency head approval pursuant to section 7114(c), and finally approved in its entirety on June 15, 1988.

Further, NAGE disagrees with the RD's determination that the agreement does not contain a clear and unambiguous effective date and language setting forth its duration. NAGE contends that the "four corners" of the agreement do contain a clear and unambiguous effective date, June 15, 1988, and duration, "three (3) years from date of approval." NAGE's application at 4. Accordingly, it contends that the November 13, 1990, petitions were filed outside the statutory open period and that the agreement serves as a bar to an election.

B. ACT's Opposition

ACT contends that the RD properly determined that the agreement does not contain clear and unambiguous language setting forth the effective date of the agreement and that the petitions were filed timely. ACT argues that NAGE's application for review is nothing more than a disagreement with the findings of the RD and an attempt to relitigate the case.

IV. Analysis and Conclusions

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.

The Authority held in Concord that "to serve as a bar, 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." 14 FLRA at 75. Applying Concord to the facts and circumstances of this case, the RD reasonably concluded that a question would exist for any potential challenging party as to whether the agreement became effective on February 9, 1988, when approved by the Agency head, or on June 15, 1988, when the "amendment" was approved by the Agency head, and that, therefore, the agreement does not contain clear and unambiguous language setting forth its effective date.

Regardless of whether the agreement became effective on June 15, 1988, as the RD found, the agreement can not bar the Petitioners' petitions if it does not contain a clear and unambiguous effective date and language setting forth its duration so that the Petitioners could determine when the statutory open period would occur. In this case, the RD reasonably concluded that a document containing two Agency head approval dates--one referring to the approval of a "labor agreement" and the other referring to an "amendment" of that agreement--does not contain the required clear and unambiguous effective date which would enable a potential challenging party to determine when a petition could be timely filed. Thus, NAGE has not shown, as it contends, that the RD's findings on these substantial factual issues are clearly erroneous or that the RD's decision raises a substantial question of law or policy because it departs from Authority precedent. Rather, NAGE's application for review expresses mere disagreement with the RD's findings of fact and application of Authority precedent and, as such, provides no basis for granting review of the RD's decision.

V. Order

The application for r