[ v12 p167 ]
The decision of the Authority follows:
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.