12:0183(46)RO - HHS, Region IX, San Francisco CA and NTEU and Local 3159, AFGE -- 1983 FLRAdec RP

 12 FLRA No. 46
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES
 REGION IX, SAN FRANCISCO, CALIFORNIA
 Activity
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Petitioner
 
 and
 
 LOCAL 3159, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 Intervenor
 
                                            Case No. 70-6450(RO)
 
                    DECISION AND DIRECTION OF ELECTION
 
    Upon a petition duly filed under section 6 of Executive Order 11491,
 as amended, a hearing was held before a hearing officer of the
 Authority.  /1/ The hearing officer's rulings made at the hearing are
 free from prejudicial error and are hereby affirmed.
 
    The functions of the Assistant Secretary of Labor for
 Labor-Management Relations under Executive Order 11491, as amended, in a
 matter such as here involved, were transferred to the Authority under
 section 304 of Reorganization Plan No. 2 of 1978 (43 F.R. 36040), which
 transfer of functions is implemented by section 2400.2 of the
 Authority's Rules and Regulations.  The Authority continues to be
 responsible for the performance of these functions as provided in
 section 7135(b) of the Statute.
 
    Upon the entire record in this case, including the parties'
 contentions, the Authority finds:
 
    NTEU seeks to represent a unit of all professional and
 nonprofessional employees of the Department of Health and Human
 Services, Region IX, which is currently represented by the Intervenor,
 Local 3159, American Federation of Government Employees, AFL-CIO (AFGE).
  /2/ Relying upon Department of Health, Education and Welfare, Office of
 the Secretary, 3 FLRA 866 (1980), AFGE contends that the Authority
 should dismiss NTEU's petition because it was filed prior to January 11,
 1979, the effective date of the Statute.  In that case, the Authority
 originally dismissed without prejudice a unit consolidation (UC)
 petition filed by the American Federation of Government Employees,
 AFL-CIO, seeking to consolidate eight units within the Department of
 Health, Education and Welfare, Office of the Secretary, including the
 unit sought by NTEU herein.  In dismissing that petition, the Authority
 noted that the new Department of Education Organization Act would create
 significant changes in the proposed consolidated unit and that the
 Statute had become effective after the filing of the UC petition.
 Thereafter, the United States District Court for the District of
 Columbia, citing section 902(b) of the Civil Service Reform Act of 1978
 (CSRA), /3/ vacated the Authority's Decision and ordered the case
 reopened for reconsideration under the Executive Order.  American
 Federation of Government Employees, AFL-CIO, et al. v. Haughton, et al.
 Civil Action Number 81-0168 (D.D.C. June 24, 1981).  The Court also
 enjoined the Authority from taking any action regarding representation
 for purposes of collective bargaining of Department of Health and Human
 Services employees pending reconsideration of the UC petition.
 Thereafter, the Authority issued its decision on remand in Department of
 Health and Human Services, Office of the Secretary, 11 FLRA No. 21
 (1983), in which it dismissed the UC petition.  With regard to the
 instant petition, and pursuant to section 902(b) of the CSRA, the
 Authority concludes that it must now be processed unless it was untimely
 filed due to the existence of an agreement bar, as further contended by
 AFGE.
 
    Specifically, AFGE contends that, as neither the Activity nor AFGE
 had sought to renegotiate their collective bargaining agreement, such
 agreement, by its terms, automatically renewed itself and thus was a bar
 to NTEU's subsequently filed petition.  /4/ The Authority disagrees.
 Section 202.3(c) of the Assistant Secretary's Rules and Regulations
 establishes those requirements that must be met for determining whether
 NTEU's petition was timely filed.  /5/ The original agreement between
 AFGE and the Activity was effective December 16, 1975.  On October 14,
 1977, during that period of time under the agreement where either party
 might seek renegotiations, the parties signed a memorandum of
 understanding to extend that period for eight additional days to October
 24, 1977, in order to give AFGE more time to decide whether to seek
 renegotiations.  On October 20, 1977, the parties signed a second and
 more formal Memorandum of Agreement extending the period to February 15,
 1978 to "prevent the automatic renewal of the Agreement . . . "
 Paragraph 2 of that Memorandum states as follows:
 
          Notwithstanding any provision to the contrary in the Agreement,
       the Agreement shall remain in full force and effect, and its terms
       shall continue, for such period of time as necessary to permit the
       Union to meet all of the conditions set forth in paragraph 1 above
       (requirements of Article XXIII, Section B), and, if all of those
       conditions are met (so that the Agreement is not automatically
       renewed for a 3-year term), the Agreement shall terminate on the
       50th day after the date the Union submits its Notice . . . , but
       may be extended by mutual consent.
 
 Thereafter, the parties signed five additional memoranda of agreement,
 for the same intended purpose of extending the period and the duration
 of the 1975 agreement.  On January 8, 1980, the parties executed their
 final memorandum in which they modified Paragraph 1(a) of the October
 20, 1977 memorandum to read as follows:
 
          1.  A notice by the union of its intention to modify the
       collective bargaining agreement between the union and employees
       effective December 16, 1975 ("The Agreement") shall be deemed to
       have been presented to the Employees within the time limits
       prescribed by Article XXIII, Section B, of the Agreement to
       prevent the automatic renewal of the Agreement if all of the
       following conditions are met:
 
          (a) Such notice is presented within 20 calendar days of the
       final administrative resolution by the Federal Labor Relations
       Authority of Case No. 22-09477(UC) and Case No. 70-6450(RO),
       should the union continue to be the exclusive representative of
       the employees of the Employer.
 
 During the period covered by these extensions, NTEU filed the instant
 petition.  No evidence was presented that either party gave the
 appropriate notice and submitted proposals for renegotiations prior to
 the hearing herein, or that the parties in fact commenced negotiations.
 
    The Authority finds that NTEU's petition is timely within the meaning
 of section 202.3(c) of the Assistant Secretary's Rules and Regulations.
 In so finding, the Authority notes particularly that the parties, by
 mutually agreeing in consecutive memoranda to extend beyond January 8,
 1980, for an indefinite duration, the period for renegotiations
 contained in Article XXIII, Section B of their agreement, in effect
 prevented the automatic renewal of that agreement.  Further, the
 parties' actions in signing such memoranda indicate that neither party
 considered the automatic renewal clause to have taken effect.  Thus, the
 Authority finds that, as the agreement did not renew itself prior to
 January 8, 1980, but instead was extended by the parties for an
 indefinite period thereafter, no renewal agreement existed to bar from
 consideration by the Authority, pursuant to section 202.3(c), NTEU's
 petition filed on October 10, 1978.
 
    Moreover, the Authority finds that the series of memoranda of
 agreement executed by the parties over a period of years in order to
 extend the time for proposing negotiations under the parties' 1975
 agreement and to continue the terms of that agreement for such period,
 did not serve as a bar to NTEU's petition.  In the Authority's view,
 where parties execute a series of extension agreements in order to
 provide an opportunity for the parties to propose renegotiations, and to
 continue the terms of the earlier agreement until such negotiations are
 complete, those agreements may not operate as a bar to a petition which
 otherwise is filed timely, since such a temporary stopgap arrangement
 does not constitute a final agreement of fixed duration and lacks the
 stability sought to be achieved by the agreement bar principle.  /6/
 
    The parties stipulated and the Authority finds that the following
 unit is appropriate for the purpose of exclusive recognition under
 section 10(b) of Executive Order 11491, as amended:  /7/
 
          Included:  All professional and nonprofessional employees of
       the Department of Health and Human Services, Region IX, located in
       San Francisco, California.
 
          Excluded:  All Field or District Office employees, Social
       Security Administration employees under the Assistant Regional
       Commissioner for Field Operations, employees in the Stay in School
       Program, Commissioned Officers of the Public Health Service,
       Social Security Administration employees under the Assistant
       Regional Commissioner for Field Assessment, guards, management
       officials, employees engaged in Federal personnel work in other
       than a purely clerical capacity, and supervisors.
 
    However, it is noted that this unit includes professional employees
 and that the Authority is prohibited by section 10(b)(4) of Executive
 Order 11491, as amended, from including professional employees in a unit
 with employees who are not professionals unless a majority of the
 professionals votes for inclusion in such a unit.  Accordingly the
 desire of the professional employees as to inclusion with
 nonprofessional employees must be ascertained.  The Authority therefore
 directs separate elections in the following groups:
 
          Voting Group (a):  All professional employees of the Department
       of Health and Human Services, Region IX, located in San Francisco,
       California, excluding all nonprofessional employees, all Field or
       District Office employees, Social Security Administration
       employees under the Assistant Regional Commissioner for Field
       Operations, employees in the Stay in School Program, Commissioned
       Officers of the Public Health Service, Social Security
       Administration employees under the Assistant Regional Commissioner
       for Field Assessment, guards, management officials, employees
       engaged in Federal personnel work in other than a purely clerical
       capacity, and supervisors.
 
          Voting Group (b):  All nonprofessional employees of the
       Department of Health and Human Services, Region IX, located in San
       Francisco, California, excluding all professional employees, Field
       or District Office employees, Social Security Administration
       employees under the Assistant Regional Commissioner for Field
       Operations, employees in the Stay in School Program, Commissioned
       Officers of the Public Health Service, Social Security
       Administration employees under the Assistant Regional Commissioner
       for Field Assessment, guards, management officials, employees
       engaged in Federal personnel work in other than a purely clerical
       capacity, and supervisors.
 
    The employees in Voting Group (b) will be polled as to whether they
 desire to be represented by AFGE, by NTEU, or by neither.
 
    The employees in Voting Group (a) will be asked two questions on
 their ballot:  (1) whether they wish to be included with nonprofessional
 employees for the purpose of exclusive recognition, and (2) whether they
 wish to be represented for the purpose of exclusive recognition by AFGE,
 by NTEU, or by neither.  In the event that a majority of the valid votes
 is cast in favor of inclusion in the same unit as the nonprofessional
 employees, such ballots shall be combined with those of Voting Group
 (b).
 
    Unless a majority of the valid votes of Voting Group (a) is cast for
 inclusion in the same unit with nonprofessional employees, they will be
 taken to have indicated their desire to constitute a separate unit, and
 an appropriate certification will be issued indicating whether AFGE,
 NTEU, or neither was selected by the professional employee unit.
 
    Thus, the unit determination in the subject case is based, in part,
 upon the results of the election among the professional employees.
 However, the Authority makes the following findings in regard to the
 appropriate unit:
 
    1.  If a majority of the professional employees votes for inclusion
 in a unit with nonprofessional employees, the Authority finds that the
 following employees constitute a unit appropriate for the purpose of
 exclusive recognition within the meaning of section 10(b) of the Order:
 
          All professional and nonprofessional employees of the
       Department of Health and Human Services, Region IX, located in San
       Francisco, California, excluding all Field or District Office
       employees, Social Security Administration employees under the
       Assistant Regional Commissioner for Field Operations, employees in
       the Stay in School Program, Commissioned Officers of the Public
       Health Service, Social Security Administration employees under the
       Assistant Regional Commissioner for Field Assessment, guards,
       management officials, employees engaged in Federal personnel work
       in other than a purely clerical capacity, and supervisors.
 
    2.  If a majority of the professional employees does not vote for
 inclusion in the same unit as the nonprofessional employees, the
 Authority finds that the following two groups of employees constitute
 units appropriate for the purpose of exclusive recognition within the
 meaning of section 10(b) of the Order:
 
          (a) All professional employees of the Department of Health and
       Human Services, Region IX, located in San Francisco, California,
       excluding all nonprofessional employees, Field or District Office
       employees, Social Security Administration employees under the
       Assistant Regional Commissioner for Field Operations, employees in
       the Stay in School Program, Commissioned Officers of the Public
       Health Service, Social Security Administration employees under the
       Assistant Regional Commissioner for Field Assessment, guards,
       management officials, employees engaged in Federal personnel work
       in other than a purely clerical capacity, and supervisors.
 
          (b) All nonprofessional employees of the Department of Health
       and Human Services, Region IX, located in San Francisco,
       California, excluding all professional employees, Field or
       District Office employees, Social Security Administration
       employees under the Assistant Regional Commissioner for Field
       Operations, employees in the Stay in School Program, Commissioned
       Officers of the Public Health Service, Social Security
       Administration employees under the Assistant Regional Commissioner
       for Field Assessment, guards, management officials, employees
       engaged in Federal personnel work in other than a purely clerical
       capacity, and supervisors.
 
                           DIRECTION OF ELECTION
 
    An election by secret ballot shall be conducted among employees in
 the voting group 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 groups who were employed during
 the payroll period immediately preceding the date of this decision,
 including employees who did not work during that period because they
 were out ill, or on vacation or on 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 to vote shall vote on whether
 they desire to be represented for the purpose of exclusive recognition
 by Local 3159, American Federation of Government Employees, AFL-CIO;  by
 the National Treasury Employees Union;  or by neither.  Issued,
 Washington, D.C., June 13, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The National Treasury Employees Union (NTEU) originally filed
 this representation petition on October 16, 1978, under Executive Order
 11491, as amended.  Thereafter, NTEU filed an amended petition with the
 Authority on September 12, 1980, along with an updated showing of
 interest.
 
 
    /2/ The unit description appears as amended at the hearing and now
 conforms to the unit presently represented by AFGE.  At the hearing,
 AFGE challenged the adequacy and validity of NTEU's submitted showing of
 interest in light of the foregoing amendment to the unit description.
 Section 202.2(f) of the Assistant Secretary's Rules and Regulations
 provides that the Area Administrator shall determine the adequacy of the
 showing of interest administratively, and such decision shall not be
 subject to collateral attack at a unit or representation hearing.
 Accordingly, AFGE's challenge is hereby denied.
 
 
    /3/ Section 902(b) states in pertinent part:
 
          No provision of this Act shall affect any administrative
       proceedings pending at the time such provision takes effect.
       Orders shall be issued in such proceedings and appeals shall be
       taken therefrom as if this Act had not been enacted.
 
 
    /4/ Article XXIII of the agreement states:
 
          Section A. This Agreement shall be in full force and effect for
       a period of two (2) years from the date of final approval by the
       parties.
 
          Section B.  At the conclusion of the term of this Agreement, it
       shall be renewed for successive three (3) year terms unless either
       party shall notify the other of its intention to modify the
       Agreement.
 
          Such notice must be presented in writing and within a period of
       no more than 90 days or less than 60 days prior to the termination
       date of this agreement.  Such notice must be accompanied by
       written proposals covering all proposed additions or modifications
       of this Agreement.  The other party shall have 45 days to submit
       written proposals or counter-proposals.
 
          Section C. Where the renegotiation of this agreement is pending
       or in process, the Employer agrees to continue the provisions of
       Article 20, and the Union agrees to adhere to the provisions of
       Article IV, Section N.
 
          Section D.  If negotiations are not concluded prior to the
       expiration date, this agreement shall terminate ninety (90) days
       after its anniversary date but may be extended by mutual consent.
 
 
    /5/ Section 202.3(c)(1) of the Assistant Secretary's Rules and
 Regulations states:
 
          Sec. 202.3 Timeliness of petition
 
                                .  .  .  .
 
          (c) When an agreement covering claimed unit has been signed and
       dated by the activity and the incumbent exclusive representative,
       a petition for exclusive recognition or other election petition
       will be considered timely when filed as follows:
 
          (1) Not more than ninety (90) days and not less than sixty (60)
       days prior to the termination date of an agreement having a term
       of three (3) years or less from the date it was signed and dated
       by the activity and the incumbent exclusive representative(.)
 
 
    /6/ Department of the Treasury, Customs Service, St. Thomas, Virgin
 Islands, 7 A/SLMR 1000 (1977);  Department of Housing and Urban
 Development, Greensboro Area Office, Greensboro, North Carolina, 7
 A/SLMR 252 (1977);  and U.S. Department of the Air Force, Holloman Air
 Force Base, Alamogordo, New Mexico, 3 A/SLMR 23 (1973).
 
 
    /7/ As the original petition herein was filed under Executive Order
 11491, as amended, and before the effective date of the Statute, in
 conformity with section 902(b) of the CSRA, the instant case was decided
 solely on the basis of Executive Order 11491, as amended, as if the
 Statute had not been enacted.  The decision and direction of election
 does not prejudge in any manner either the meaning or application of
 related provisions in the Statute or the result which would be reached
 by the Authority if the case had arisen under the Statute rather than
 the Executive Order.