14:0073(16)CU - Army, Army Concord District Recruiting Command, Concord, NH and David Keuther -- 1984 FLRAdec RP

 14 FLRA No. 16
 
 DEPARTMENT OF THE ARMY
 U.S. ARMY CONCORD DISTRICT RECRUITING COMMAND
 CONCORD, NEW HAMPSHIRE
 Activity
 
 and
 
 DAVID KEUTHER
 Petitioner
 
                                            Case No. 1-DR-20001
 
    and
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO, LOCAL 1900
 
                       Labor Organization/Incumbent
 
                    DECISION AND DIRECTION OF ELECTION
 
    Upon a petition duly filed under section 7111(b)(1)(B) 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:  The
 Petitioner, David Keuther, an employee of the activity, seeks the
 decertification of the American Federation of Government Employees,
 AFL-CIO, Local 1900 (AFGE), as the exclusive representative of certain
 employees of 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 civilian employees of the U.S. Army
 Concord District Recruiting Command, Concord, New Hampshire.
 
    Excluded:  All professional employees, management officials,
 supervisors, and employees described in 5 U.S.C. 7112(b)(2), (3), (4),
 (6) and (7).
 
    The sole issue before the Authority is the timeliness of the instant
 petition.  AFGE contends that the petition was untimely filed as it was
 not filed within the challenge period provided for in section 2422.3(d)
 of the Authority's Rules and Regulations, which implements section
 7111(f)(3) of the Statute.  /1/ On May 14, 1980, the Activity and AFGE
 signed a collective bargaining agreement which provides, in Article
 XXXVII, section 1, that the "(A)greement will remain in full force and
 effect for two (2) years from the date of approval by the agency."
 However, section 5 of that same Article states that "(T)his agreement
 shall become effective thirty (30) days after signing by the Union
 President and the DRC Commander." Subsequently, the contract was
 reviewed by Headquarters, United States Army Recruiting Command,
 pursuant to section 7114(c) of the Statute, returned to the parties for
 revision, and ultimately approved by the Agency on July 3, 1980.
 Keuther, pursuant to his reading of section 1 of Article XXXVII of the
 agreement, filed the instant decertification petition on February 22,
 1982, believing that the contract became effective on May 14, 1980 when
 it was signed by the parties.  However, AFGE contends that the
 collective bargaining agreement was not effective until 30 days after it
 was signed, on June 14, 1980, pursuant to section 5 of Article XXXVII of
 the agreement, and thus it did not expire until two years thereafter on
 June 14, 1982.  AFGE concludes that Keuther's petition is untimely since
 it was not filed between 60 and 105 days prior to June 14, 1982.  The
 Activity takes no position.
 
    The Authority finds that in the circumstances of the case, there is
 no agreement bar to the holding of an election pursuant to the instant
 petition.  In the Authority's view, to serve as a bar, a negotiated
 agreement must contain a clear and unambiguous effective date and
 language setting forth its duration so that any potential challenging
 party may determine when the statutory open period will occur.  As the
 underscored language from the agreement set forth above establishes, the
 agreement contains two contradictory clauses concerning its effective
 date.  Thus, in the absence of a clear and unambiguous date upon which
 the agreement between the Activity and AFGE became effective, which
 results in ambiguity as to the agreement's expiration date, the
 Authority finds that the agreement does not bar the processing of the
 instant petition in the circumstances of this case.
 
    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, 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 shall vote on whether or not they desire to be
 represented for the purpose of exclusive recognition by the American
 Federation of Government Employees, AFL-CIO, Local 1900.
 
    Issued, Washington, D.C., March 16, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 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(.)