12:0167(40)RO - HHS, Philadelphia Regional Office, Region III and NTEU and AFGE Local 3376 -- 1983 FLRAdec RP

 12 FLRA No. 40
 
 DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, PHILADELPHIA REGIONAL
 OFFICE, REGION III
 Activity
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Petitioner
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 3376, AFL-CIO
 Intervenor
 
                                            Case No. 2-RO-30
 
                    DECISION AND DIRECTION OF ELECTION
 
    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 Authority has
 reviewed the hearing officer's rulings made at the hearing and finds
 that they are free from prejudicial error.  The rulings are hereby
 affirmed.
 
    Upon the entire record in this case, the Authority finds:  /1/ The
 Petitioner, National Treasury Employees Union (NTEU), seeks an election
 in a unit currently represented by the Intervenor, American Federation
 of Government Employees, Local 3376, AFL-CIO (AFGE), and composed of all
 nonprofessional, nonsupervisory employees of the Department of Health
 and Human Services, Region III, employed in Philadelphia and Wilkes
 Barre, Pennsylvania (the Activity).  The parties stipulated and the
 Authority finds, in accordance with the criteria set forth in section
 7112 of the Statute, that the following constitutes an appropriate unit:
 
          Included:  All nonprofessional, nonsupervisory employees of the
       Department of Health and Human Services, Region III Office,
       employed in Philadelphia and Wilkes Barre, Pennsylvania.
 
          Excluded:  All Department of Health and Human Services Region
       III field and District Office employees, employees of the District
       and Branch Offices of the Social Security Administration, members
       of the Commissioned Officers Corps of Region III, stay in school
       students, summer students, student trainees and temporary
       employees with appointments of 90 days or less, professional
       employees, management officials, supervisors, guards, confidential
       employees, and employees engaged in Federal personnel work in
       other than a purely clerical capacity.
 
    The sole issue before the Authority is whether there is a valid
 agreement in effect between the Activity and AFGE which bars NTEU's
 petition pursuant to section 7111(f)(3) of the Statute.  /2/ Prior to
 commencing negotiations in 1975, the Activity and AFGE agreed to ground
 rules which stated, in part, that the "final Negotiated Agreement is
 subject to the approval of the Regional Director and the President of
 the Local." Negotiations between the parties then continued
 intermittently for some five years, during which time the parties
 reached agreement on various issues.  Finally, on February 29, 1980,
 subsequent to the effective date of the Statute, representatives of both
 parties initialed a document setting forth their agreement on the
 remaining disputed proposals.  AFGE claims that this document was a
 final and , binding collective bargaining agreement which bars the
 petition herein.  The Authority disagrees, noting particularly the
 parties' ground rules requirement that any final agreement must first be
 approved by both the Activity's Regional Director (the title had become
 Principal Regional Official by 1980) and AFGE Local 3376's President.
 Indeed, AFGE, in its memorandum to the Activity dated May 20, 1980,
 stated:  "I have been directed to inform you that we are in agreement
 with all articles and sections of the Labor-Management Agreement, which
 is now being reviewed by Management." Thus, even AFGE understood, almost
 three months after the date of the proposed agreement which it now
 claims was executed on February 29, 1980, that the initialed document
 was still subject to final approval.  Under these circumstances, the
 Authority concludes that there was not a " . . . written collective
 bargaining agreement . . . " between the Activity and AFGE within the
 meaning of section 7111(f)(3) of the Statute which may serve as a bar to
 NTEU's petition.  /3/
 
    Moreover, even assuming, as argued by AFGE, that the document
 initialed by the negotiators on February 29, 1980, constituted a
 collective bargaining agreement which went into effect automatically 30
 days thereafter in the absence of any disapproval by the Agency head
 pursuant to the provisions of section 7114(c) of the Statute, /4/ that
 agreement still could not serve as a bar.  In this regard, the Authority
 notes that, pursuant to section 2422.3(i) of the Authority's Rules and
 Regulations, "(a)greements which go into effect automatically pursuant
 to 5 U.S.C. 7114(c) and which do not contain the date on which the
 agreement became effective shall not constitute a bar to an election
 petition." As the alleged agreement does not contain an effective date,
 it could not under any circumstances constitute a bar to NTEU's
 petition.
 
    In view of the above, the Authority shall order an election in the
 unit currently represented by AFGE.
 
                           DIRECTION OF ELECTION
 
    An election by secret ballot shall be conducted among the 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 voting group 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, on
 vacation or on furlough, or 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;  by the American Federation of Government Employees, Local 3376,
 AFL-CIO;  or by neither.  Issued, Washington, D.C., June 7, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /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, et al. v. Haughton, et al., 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).
 
 
    /2/ Section 7111(f)(3) provides that:
 
          (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 in 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(.)
 
 
    /3/ The Authority's conclusion in this regard is consistent with the
 Regional Director's finding, in dismissing an unfair labor practice
 charge filed by AFGE in Case No. 2-CA-611, that the February 29, 1980
 document "was not a final negotiated collective bargaining agreement."
 This determination was not appealed by AFGE.
 
 
    /4/ Section 7114(c) provides that:
 
          (c)(1) An agreement between any agency and an exclusive
       representative shall be subject to approval by the head of the
       agency.
 
          (2) The head of the agency shall approve the agreement within
       30 days from the date the agreement is executed if the agreement
       is in accordance with the provisions of this chapter and any other
       applicable law, rule, or regulation (unless the agency has granted
       an exception to the provision).
 
          (3) If the head of the agency does not approve or disapprove
       the agreement within the 30-day period, the agreement shall take
       effect and shall be binding on the agency and the exclusive
       representative subject to the provisions of this chapter and any
       other applicable law, rule, or regulation.
 
          (4) A local agreement subject to a national or other
       controlling agreement at a higher level shall be approved under
       the procedures of the controlling agreement or, if none, under
       regulations prescribed by the agency.