[ v12 p475 ]
The decision of the Authority follows:
12 FLRA No. 93 DEPARTMENT OF HEALTH AND HUMAN SERVICES BOSTON REGIONAL OFFICE, REGION I Activity and NATIONAL TREASURY EMPLOYEES UNION Petitioner and American FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2909, AFL-CIO /1/ Intervenor Case No. 1-RO-27 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 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: /2/ The Petitioner, National Treasury Employees Union (NTEU), seeks an election in a unit currently represented by the Intervenor, American Federation of Government Employees, Local 2909, AFL-CIO (AFGE), and composed of all nonprofessional employees of the Department of Health and Human Services, Boston Regional Office, Region I (the Activity). The parties agree and the Authority finds, in accordance with the criteria set forth in section 7112 of the Statute, that the following constitutes an appropriate unit: All nonprofessional employees of the Department of Health and Human Services, Boston Regional Office, Region I, but excluding all professional employees, management officials, supervisors and employees described in section 7112(b)(2), (3), (4), (6) and (7) of the Statute. The sole issue before the Authority is whether a July 14, 1980 agreement between the Activity and AFGE bars NTEU's petition of July 16, 1980, pursuant to section 7111(f)(3) of the Statute. /3/ AFGE contends that such a bar exists, while NTEU argues, pursuant to section 2422.3(f) of the Authority's Rules and Regulations, that the July 14, 1980 agreement constitutes a premature extension of a March 1, 1980 Memorandum of Understanding between AFGE and the Activity and therefore cannot serve as a bar to its petition. /4/ Following AFGE's certification in 1970, AFGE and the Activity (referred to as Region I of the Department of Health, Education and Welfare (HEW) prior to its reorganization in 1977) entered into a collective bargaining agreement with an effective date of November 13, 1972. Article XXIV, section 1 of that agreement stated: XXIV. DURATION, AMENDMENTS AND MODIFICATION Section 1. This agreement will remain in full force and effect for two years from its effective date and automatically renew itself from year to year thereafter. However, either party may give written notice to the other party not more than 90 nor less than 60 days prior to the two year anniversary date, and each year thereafter, of its intention to reopen and amend, modify, or terminate the agreement. When such notice is given, the parties shall meet for the purpose of negotiating the amendments or modifications not later than 30 days prior to the anniversary date. The conduct of such negotiations shall be determined at that time by a memorandum of understanding. If negotiations are not concluded prior to the expiration date, the agreement will terminate on the anniversary date but may be extended by mutual consent in increments of 30 days. This agreement may be modified or amended at any time upon mutual agreement of the parties. Any such request for an amendment or modification from either party shall be in writing and shall include a summary of the proposed amendments or modifications and the reasons therefor. This collective bargaining agreement was in effect for a period of two years and was automatically renewed for one additional year. On September 9, 1975, AFGE informed the Activity of its desire to reopen the agreement and proceed with negotiations. From May 1976 to the spring of 1977, bargaining proceeded on a sporadic basis. In march 1977, pursuant to a reorganization within HEW, negotiations were stopped by mutual consent. On June 10, 1980, following a request by AFGE, negotiations once again took place and a new two year collective bargaining agreement was signed on July 14, 1980. However, prior to commencing negotiations in May 1976, AFGE and HEW on April 5, 1976 had signed the first of a series of 16 memoranda of understanding in order to extend the collective bargaining agreement and "to insure that everyone understood that the terms of the agreement would continue and that we will get back to negotiating and have a new contract." /5/ These memoranda, which established specific expiration dates for each extension, covered an overall time period of April 5, 1976 through September 30, 1980, with some lapses. The Memorandum entered into on March 1, 1980 stated: The agreement between Local 2909, AFGE and Boston Regional Office dated November 13, 1972 has been and will remain in effect until end of business, September 30, 1980. This agreement will remain in full force and effect until the date of expiration and represents the sole written agreement between the parties. In early 1980, NTEU had asked the Activity about the status of its agreement with AFGE and was furnished a copy of the November 13, 1972 agreement and the various memoranda extending that agreement through September 30, 1980. On July 16, 1980, NTEU filed the instant representation petition. AFGE, in essence, argues that the new collective agreement entered into on July 14, 1980 serves as an agreement bar so as to mandate dismissal of NTEU's petition. The Authority disagrees. Pursuant to section 2422.3(f) of the Authority's Rules and Regulations, the July 14, 1980 agreement between AFGE and the Activity would not constitute a bar if it were to be deemed "an extension of an agreement having a term of three (3) years or less," and was "signed more than sixty (60) days before (the) expiration date" of that agreement. Thus, the controlling issue herein is whether a written collective bargaining agreement was in effect between AFGE and the Activity on July 14, 1980 and, if so, whether the signing of the July 14 agreement occurred more than 60 days prior to the expiration date of the other agreement. In this regard, the Authority notes that in their memorandum agreement of March 1, 1980, AFGE and the Activity mutually agreed to extend the terms of the original 1972 agreement up to and including September 30, 1980. Further, it was agreed at that time that "the agreement will remain in full force and effect until the date of expiration and represents the sole written agreement between the parties." In the Authority's view, such a written extension of the terms of the original agreement for a specified period of time and purporting on its face to be referring to "the sole written agreement between the parties" is controlling for purposes of resolving the agreement bar issue herein. /6/ Thus, it follows that the July 14, 1980 agreement, which was signed more than sixty days prior to the expiration date of the "sole written agreement between the parties," cannot serve as a basis for dismissing NTEU's petition pursuant to section 2422.3(f) of the Authority's Rules and Regulations. Accordingly, since NTEU's petition was filed "not more than 150 days and not less than 60 days before the expiration of the collective bargaining agreement," it is timely pursuant to section 7111(f)(3) of the Statute. In view of all 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 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, or 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 2909, AFL-CIO; or by neither. Issued, Washington, D.C., August 4, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The name of the Intervenor appears as amended at the hearing. /2/ In accordance with the order of the Court in American Federation of Government Employees, AFL-CIO v. Ronald W. Haughton, Civil Action No. 81-0168 (D.D.C. June 24, 1981), this case has been held in abeyance pending issuance of the Authority's decision in Department of Health and Human Services, Office of the Secretary, 11 FLRA No. 21 (1983). /3/ 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(.) /4/ Section 2422.3(f) of the Authority's Rules and Regulations states: Sec. 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. /5/ See testimony of John B. Brady, Personnel Officer of the Activity on p. 34 of the Transcript. /6/ This conclusion is consistent with the language in the first of the 16 prior memoranda of understanding, executed on April 5, 1976, to the effect that "everyone understood that the terms of the (1972) agreement would continue."