47:0937(89)RO - - KS Army NG, Topeka, KS and ACT, Kansas Army Chapter and NAGE Local R14-87 - - 1993 FLRAdec RO - - v47 p937



[ v47 p937 ]
47:0937(89)RO
The decision of the Authority follows:


47 FLRA No. 89

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

KANSAS ARMY NATIONAL GUARD

TOPEKA, KANSAS

(Activity)

and

ASSOCIATION OF CIVILIAN TECHNICIANS

KANSAS ARMY CHAPTER

(Labor Organization/Petitioner)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R14-87

(Labor Organization/Intervenor)

DE-RO-20019

_____

DECISION AND ORDER ON APPLICATION FOR REVIEW

June 18, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority for review of the Regional Director's (RD) decision and order dismissing the petition for exclusive recognition filed by the Association of Civilian Technicians, Kansas Army Chapter (ACT), the Petitioner. ACT sought to represent a unit of Wage Grade and General Schedule technicians employed at the Kansas Army National Guard, the Activity. The RD found that ACT's petition was untimely filed because it was barred by a collective bargaining agreement in effect between the Activity and the National Association of Government Employees, Local R14-87 (NAGE), the Intervenor.

ACT filed an application for review of the Regional Director's decision pursuant to section 2422.17(a) of the Authority's Rules and Regulations. No opposition to the application for review has been filed. On consideration of the application for review, we find that a substantial question of law or policy is raised because of the absence of Authority precedent. Therefore, we grant the application for review. On review of the RD's decision, we order the petition dismissed.

II. Background and RD's Decision

In 1970, NAGE was certified as the exclusive representative for a bargaining unit consisting of all eligible Wage Grade and General Schedule technicians of the Activity. In 1989, the Activity and NAGE entered into a collective bargaining agreement covering that bargaining unit, which contained the following provision regarding its duration.

Article 26

Duration of Agreement

Section 1. This agreement shall be in full force and effect for three (3) years from the date of National Guard approval or thirty-one (31) days after the date of signature of the parties, whichever is earlier. This agreement shall be renewed for an additional three year period on each third anniversary date thereafter, subject to NGB re-review and approval, unless either party gives written notice to the other, not more than 90 days or less than 60 days prior to the expiration date, of their desires to renegotiate provisions of the agreement.

This agreement was signed by the local parties on March 13, 1989, and was approved by the National Guard Bureau on April 11, 1989.

On April 13, 1992, ACT filed a petition for an election to determine the exclusive representative for the bargaining unit described above. The RD found that the only issue presented by the petition was whether ACT's petition was timely filed or whether a collective bargaining agreement was in effect between the Activity and NAGE that served to bar the petition. The RD concluded that the collective bargaining agreement between NAGE and the Activity had been automatically renewed, that the 3-year durational period for the renewed agreement began on April 11, 1992, and that the renewed agreement served as a bar to ACT's petition.

In reaching this conclusion the RD found as follows. On January 3, 1992, representatives of NAGE and the Activity discussed reopening the expiring agreement. The Activity advised NAGE that it did not intend to request renegotiation of the agreement. NAGE advised that while it did not believe that it would desire to renegotiate the agreement, it was reserving final determination pending consultation with the bargaining unit. On February 14, 1992, which was after the contractual "window period" for requesting renegotiation of the expiring agreement had ended, representatives of NAGE met with an Activity representative and requested renegotiation of the agreement. Subsequently, the Activity denied the request and at the same time requested that NAGE execute a signature page for the renewal of the agreement. NAGE refused to sign the signature page, taking the position that no signatures were required in order for the Activity to forward the agreement to the National Guard Bureau for review. The Activity never forwarded the agreement for review.(1)

The RD rejected ACT's assertion that there was no valid agreement in effect on April 13, 1992, because the National Guard Bureau never reviewed or approved the renewed agreement, as ACT contends is required by Article 26 of the agreement. Rather, the RD found that the clause in Article 26 concerning "NGB re-review and approval" merely restates the National Guard Bureau's "right, under 5 USC [sic] § 7114(c), to review a roll-over agreement" and that "there is no evidence to indicate that the parties ever intended that clause to signify anything other than a reiteration of NGB's statutory right (as opposed to an obligation) to review the rolled over Agreement." RD's Decision at 9. The RD found that when the National Guard Bureau "failed either to approve or to disapprove the Agreement within the 30 day period, the Agreement took effect pursuant to 5 USC 7114(c)(3) [sic] and became binding on the Activity and the exclusive representative." Id. at 10. In this regard, the RD found that it was unnecessary to determine when the 30 day time limit for approval began to run, but concluded that no further action was necessary to renew the agreement once neither party filed a request to renegotiate the expiring agreement within the contractually prescribed time limits.

The RD further concluded that the renewed agreement has a clear and unambiguous effective date and durational period and, consequently, she rejected an assertion by ACT that under section 2422.3(i) of the Authority's Rules and Regulations it cannot constitute a bar to an election petition.

The RD dismissed ACT's petition as untimely filed.

III. The Application for Review

In filing an application for review of the RD's decision, ACT asserts that the decision raises a substantial question of law or policy regarding the Authority's contract bar doctrine, departs from Authority precedent, and is clearly and prejudicially erroneous on a substantial factual issue regarding the contract bar issue. In particular, ACT disagrees with the RD's statement that the terms of Article 26 "'restated' the Agency's § 7114(c) right to review." Application at 2. ACT contends that while the contractual language may mirror the statutory requirement, it also constitutes an independent contractual requirement that must be given effect. In support of its position, ACT cites Department of Health and Human Services, Philadelphia Regional Office, Region III, 12 FLRA 167 (1983).

ACT asserts that the RD's conclusion that there was no agreement regarding a requirement for National Guard Bureau re-review and approval is similarly erroneous. ACT contends that there was agreement between NAGE and the Activity that such review and approval was a precondition to renewal and that this agreement is demonstrated by the contract's express language. ACT argues that inquiry into the parties' subjective intent is improper and cannot alter the language itself. ACT maintains that because the National Guard Bureau never reviewed and approved the renewed agreement, a condition precedent to renewal was unfulfilled and the contract did not renew.

IV. Analysis and Conclusions

The application for review in this case raises issues concerning the operation of section 7114(c) of the Federal Service Labor-Management Relations Statute (the Statute) in the context of contracts that are automatically renewed. Specifically, the application and the RD's decision raise questions concerning how the execution and effective dates of an automatically renewed agreement are determined. Because of an absence of Authority precedent on these issues, we grant review of the RD's decision.

In the context of an agreement that is being negotiated for the first time or that is being renegotiated, we have held that for purposes of triggering the time limits for section 7114(c) review, the date of execution is the date on which no further action is necessary to finalize a complete agreement. See, for example, Fort Bragg Association of Teachers and U.S. Department of the Army, Fort Bragg Schools, Fort Bragg, North Carolina, 44 FLRA 852, 857 (1992) (Fort Bragg). Once execution occurs, if the agency head neither approves nor disapproves the agreement within the prescribed 30-day period, the agreement takes effect automatically on the thirty-first day after execution. See, for example, id.

Generally, an automatic renewal provision of a contract provides that the contract shall continue in effect after its expiration date if no action to amend or terminate it is taken within a specified period prior to its expiration date. See, for example, 1 Charles J. Morris et al., The Developing Labor Law: The Board, the Courts and the National Labor Relations Act, 722-23, 2d ed. (1983) (Developing Labor Law). Such automatic renewal provisions typically operate based on a fixed anniversary date that constitutes the point at which the contract "rolls over" or renews itself. See, for example, U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 37 FLRA 1218, 1225 (1990) (Defense Contract Audit Agency); Abbott House, Inc., 272 NLRB 78 (1984).

Automatic renewal of agreements has long been a wide-spread practice in the private sector. See, for example, Mill B, Inc., 40 NLRB 346, 350 (1942); Developing Labor Law at 722-23. In the private sector, it has been observed that "[i]t has never been doubted that such agreements are in harmony with the policy of the [National Labor Relations] Act." Mill B. Inc., 40 NLRB at 350. It is our experience that such agreements are also a wide-spread practice in the Federal sector. See, for example, U.S. Department of the Treasury, Bureau of Engraving and Printing and International Plate Printers, Die Stampers and Engravers Union, Washington Plate Printers Union, Local 2, 44 FLRA 926, 927 (1992) (Engraving and Printing); Defense Contract Audit Agency, 37 FLRA at 1225; Office of the Secretary, Headquarters, Department of Health and Human Services, 11 FLRA 681, 684 (1983). The availability of automatic renewal of agreements contributes to the stability of employer-employee relations. Promoting stability in labor management relations is in harmony with the purposes of the Statute. See, for example, section 7111(f)(3) and (4) of the Statute (specifically incorporates the concept of contract and certification bars to representation petitions into the Statute).

We find that preserving the ability of parties to avail themselves of the benefits of automatic renewal of agreements is consistent with the purposes and policies of the Statute. In addition to promoting labor management stability, a policy permitting automatic renewal is consistent with effective and efficient Government in that it preserves the time and resources that would be expended in renegotiating collective bargaining agreements where renegotiation is otherwise deemed unnecessary by the parties. Therefore, we conclude that section 7114(c) should be interpreted in a manner that is compatible with, and permits, automatic renewal of agreements.

However, we find that in the context of such an agreement, the determination of, and the relationship between, the execution and effective dates of an automatically renewed agreement often operate differently than in the context of an initial or renegotiated agreement. Initially, we note that an automatically renewed agreement is subject to agency-head approval under section 7114(c) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1071 (1988), reversed as to other matters, No. 88-7408 (9th Cir. Feb. 7, 1989). In this regard, while the terms of the agreement do not change, it is possible that applicable laws and regulations with which the agreement must comply may have changed during its term. The purpose of section 7114(c) is to ensure that collective bargaining agreements conform to applicable laws and regulations. See, for example, S. Rep. No. 95-969, 95th Cong., 2d Sess. 109 (1978), reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Comm. Print 1979), at 769. That purpose applies to automatically renewed agreements as well as to initial or renegotiated agreements.

As this case demonstrates, the principles that apply to the operation of section 7114(c) in the context of an initial or renegotiated agreement are incompatible with some of the fundamental aspects of agreements that are the result of automatic renewal. In particular, rigid application of those principles would preclude the establishment of a fixed, uniform anniversary date. For example, in this case, after the initial term of the agreement, the effective date of any renewal would become either the date on which the agency head approved the renewed agreement or the thirty-first day after execution of the renewed agreement. As a result, in all likelihood, the effective date would no longer correspond to the anniversary date referred to in the duration clause, creating ambiguity and confusion concerning the expiration date of the renewed agreement. Thus, the stability and predictability that the concept of automatic renewal offers would be seriously undermined.

Where a collective bargaining agreement automatically renews without further action by the parties, we hold that for purposes of triggering the time limits for section 7114(c) review, the execution date is the same as that which applies to initial or renegotiated agreements; namely, it is the date on which no further action is necessary to finalize a complete agreement. We find that in the circumstances of this case, that date was the point at which the time limits for making a request to renegotiate the agreement expired with no timely request forthcoming. However, we conclude that unlike an initial or renegotiated agreement, the effective date of a renewed agreement is not necessarily the date of approval or the thirty-first day after execution. Rather, the effective date is the date previously set by the parties for the renewal of the agreement. We find that this interpretation of section 7114(c) preserves the uniformity of the anniversary date and permits the orderly and predictable operation of automatic renewal provisions of collective bargaining agreements.

We emphasize that in the context of automatically renewed agreements, an agency is limited to a period of thirty days running from the date of execution in which to conduct its review under section 7114(c) of the Statute. Thus, in the circumstances of this case, the period for agency head review under section 7114(c) commenced on February 11, 1992, the day after the expiration of the contractual window period for requesting renegotiation of the expiring agreement, and ended 30 days thereafter on March 11, 1992, well before the effective date of the renewed agreement. The record in this case does not establish that the parties intended the finalizing of an agreement to be dependent on further action. Thus, the circumstances present in this case are distinguishable from those present in Fort Bragg, 44 FLRA at 57-58, where we found that it was evident from the record that the parties intended to have further action beyond what is normally construed to constitute execution of an agreement.

We agree with the RD's conclusion that the provisions of Article 26 of the agreement involved in this case were merely a restatement of the agency's rights under section 7114(c) of the Statute. Under that section, the agency head is not obligated to conduct a review of an agreement entered into locally but is provided the opportunity to conduct a review. See Engraving and Printing, 44 FLRA at 939 (1992) (Section 7114(c)(1) of the Statute states only that agreements shall "be subject to" agency head approval; the mechanics for approval of an agreement are management's responsibility; and an agency cannot avoid an agreement reached with a union based on its failure to seek agency head review.). Thus, we reject ACT's claim that the failure of the Activity to submit the renewed agreement for agency head review prevented the renewed agreement from going into effect.

Based on the foregoing, we agree with the RD that the renewed agreement was in effect on the date that ACT's petition was filed. No party involved in this case denies that, if the agreement automatically renewed, under the terms set forth in Article 26 the effective date as well as the expiration date were clear and unambiguous. An agreement