[ v11 p681 ]
The decision of the Authority follows:
11 FLRA NO. 114
OFFICE OF THE SECRETARY, HEADQUARTERS, DEPARTMENT OF HEALTH AND HUMAN SERVICES Activity and NATIONAL TREASURY EMPLOYEES UNION Labor Organization/Petitioner and LOCAL 41, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Labor Organization/Intervenor Case No. 3-RO-80
Upon a petition duly filed under section 7111(b)(1) of the Federal Service Labor - Management Relations Statute (the Statute), a hearing was held before a hearing officer of the Authority. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, including the parties' contentions, the Authority finds: 1
The National Treasury Employees Union (NTEU) seeks to represent a unit of all nonprofessional General Schedule and Wage Grade employees of the Office of the Secretary, Department of Health and Human Services [ v11 p 681] (HHS), located in the Washington, D.C. metropolitan Area. 2 AFGE contends, notwithstanding the Regional Director's finding to the 7111(f)(3) of the Statute. 3 Further, although agreeing with NTEU and the Activity that the petitioned for unit is appropriate, AFGE nevertheless contends that testimony on the continued appropriateness of the unit should be taken in view of the reorganization created by the Department of Education Organization Act. NTEU contends that the Regional Director's decision as to the timeliness of its petition is not appealable and, in any event, that the agreement between AFGE and the Activity had terminated prior to the filing of NTEU's petition and therefore does not constitute a bar to this proceeding. [ v11 p 682 ]
The Authority finds without merit NTEU's contention that AFGE does not have a right of appeal as to the Regional Director's refusal to notes particularly the following facts: By letter dated December 12, 1980, the Regional Director rejected AFGE's contention that an agreement bar resulted from the negotiated agreement between AFGE and HHS and found that NTEU's representation petition was timely filed. Notwithstanding its subsequent refusal to sign a consent election agreement, allegedly to preserve its standing to challenge the Regional Director's decision before the Authority, AFGE participated in and agreed to all details of the election, if one were to be directed. Subsequently, AFGE participated in a hearing directed by the Regional Director on the stated issue of whether AFGE's refusal to sign the consent election agreement was tantamount to a disclaimer of interest in representing the unit of employees involved herein.
Section 2422.5(a) of the Authority's Rules and Regulations provides an incumbent exclusive representative with intervenor status in a representation proceeding unless it serves on the Regional Director a written disclaimer of interest. Such intervention is qualified by the proviso that an incumbent exclusive representative that declines to sign an agreement for consent election because of a disagreement on the matters contained in section 2422.7(c) of the Rules and Regulations 4 as decided by the Regional Director "...shall be denied its status as an intervenor." Clearly, AFGE is not disqualified from participation in this proceeding by that provision. Further, section 2422.7(f) of the Rules and Regulations specifically contemplates a refusal by an intervenor to sign an agreement for an election, and authorizes the Regional Director to "... take such other action as the Regional Director deems appropriate." In this case, the Regional Director chose to conduct a hearing on whether AFGE's refusal to sign the consent agreement was tantamount to a disclaimer of interest. For the reasons already stated, the Authority answers this question in the negative. Accordingly, the Authority will now consider whether NTEU's petition was timely filed under section 7111(f)(3) of the Statute and section 2422.3 of the Rules and Regulations. For the reasons set forth below, the Authority concludes that NTEU's petition was timely. [ v11 p 683 ]
After AFGE was certified as the exclusive representative of the Activity's employees, the parties negotiated a collective bargaining agreement which became effective on June 24, 1977. Article 22, section 2 of that agreement stated:
This Agreement shall remain in full force and effect for a period of three (3) years from the effective date. It shall be automatically renewed for successive eighteen (18) month periods thereafter. However, upon written notice of either party to the other, the contract may be altered, changed, amended, or modified after eighteen (18) months from the effective date of this agreement, or upon reaching a renewal date, provided that notice is given at least sixty (60) days but not more than ninety (90) days prior to such dates....
On April 24, 1980, the Activity, pursuant to Article 22, section 2 of the parties' agreement, informed AFGE that it wished to "alter, change, amend or modify the General Agreement" and on the same day AFGE notified the Activity that it also wished to do so. The parties did negotiate on several occasions after that date, but no agreement was reached. On September 10, 1980, NTEU filed its petition in this case.
In denying AFGE's motion to dismiss, the Regional Director found NTEU's petition to be timely filed, noting particularly that the collective bargaining agreement between AFGE and HHS could not serve as a bar to such petition pursuant to the Authority's Rules and Regulations. 5 While the Authority adopts the Regional Director's conclusion that NTEU's petition was timely filed, it does so for a different reason. AFGE contends that the collective bargaining agreement between the parties [ v11 p 684 ] automatically renewed itself pursuant to Article 22, section 2 thereof despite the fact that the parties gave each other timely notice that they wanted to alter, change, and/or modify the agreement. In this regard, AFGE argues that such notice by the parties did not terminate the agreement on its expiration date or prevent its automatic renewal. The Authority disagrees. Rather, in the Authority's view, in circumstances such as those present in the instant case, a request to negotiate modifications in an existing agreement serves to prevent the automatic renewal of the agreement. To conclude otherwise would, in our view, unreasonably impede the ability to raise a question concerning representation for employees who had been covered by the agreement. Thus, the Authority finds that the parties' timely mutual notice of intent to negotiate changes in the agreement pursuant to Article 22, section 2, prevented the automatic renewal of that agreement for an additional 18-month period. Accordingly, the Authority concludes that there was no agreement of fixed duration in effect after June 14, 1980, the expiration date thereof, which could serve as an "agreement bar," and that NTEU's petition dated September 10, 1980 therefore was timely filed.
The parties stipulated 6 and the Authority finds, in accordance with the criteria set forth in section 7112 of the Statute, that the following continues to constitute an appropriate unit:
Included: All nonprofessional General Schedule and Wage Grade employees of the Office of the Secretary, Department of Health and Human Services Located in the Washington, D.C. metropolitan area.
Excluded: All professional employees, summer interns, summer aids, management officials, supervisors and employees described in section 7112(b)(2), (3), (4), (6) and (7) of the Federal Service Labor - Management Relations Statute. [ v11 p 685 ]
An election by secret ballot shall be conducted among 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 unit found appropriate herein 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 or 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 they desire to be represented for the purpose of exclusive recognition by the National Treasury Employees Union; Local 41, American Federation of Government Employees, AFL - CIO; or by neither.
Issued, Washington, D.C., March 18, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY
[ v11 p 686 ]
Footnote 1 In accordance with an order of the U.S. District Court for the District of Columbia in American Federation of Government Employees, AFL-CIO v. Haughton, Civil Action No. 81-0168 (D.D.C. June 24, 1981), this case has been held in abeyance pending the Authority's issuance of its decision on remand in Department of Health and Human Services, Office of the Secretary, 11 FLRA No. 21 (1983).
Footnote 2 On January 24, 1973, the Intervenor, Local 41, American Federation of Government Employees, AFL-CIO (AFGE), was certified as the exclusive representative for these employees.
Footnote 3 Section 7111(f)(3) provides: 7111. Exclusive recognition of labor organizations (f) Exclusive recognition shall not be accorded to a labor organization -- (3) if there is then in effect a lawful written collective bargaining agreement between the agency involved and an exclusive representative (other than the labor organization seeking exclusive recognition) covering any employees included in the unit specified in the petition, unless -- (A) the collective bargaining agreement has been effect for more than 3 years, or (B) the petition for exclusive recognition is filed not more than 105 days and not less than 60 days before the expiration date of the collective bargaining agreement(.)
Footnote 4 Section 2422.7(c) states as follows: The parties shall agree on the eligibility period for participation in the election, the date(s), hour(s), and place(s) of the election, the designations on the ballot and other related election procedures.
Footnote 5 The Regional Director inadvertently relied upon section 2423.3(f) of the Rules and Regulations. Section 2422.3(f) states: 2422.3 Timeliness of petition (f) When an extension of an agreement having a term of three (3) years or less, has been signed more than sixty (60) days before its expiration date, such extension shall not serve as a basis for the denial of a petition submitted in accordance with the time limitations provided herein....
Footnote 6 While AFGE stipulated at the hearing that the unit involved herein for which it is presently the certified exclusive representative continues to be appropriate, it further contends that the Authority should develop a complete record as to whether the reorganization of 1980 which involved the creation of the Department of Education had any impact on the appropriateness of that unit. In view of recent bargaining history and the parties' joint stipulation that the previously certified unit continues to be appropriate following the reorganization, the Authority finds it unnecessary to remand this case to the Regional Director for an evidentiary hearing.