[ v15 p786 ]
The decision of the Authority follows:
15 FLRA No. 149 NATIONAL PARK SERVICE HARPERS FERRY, WEST VIRGINIA Activity and BRUCE GEYMAN Petitioner and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1982 Labor Organization/Incumbent Case No. 3-DR-30003 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed with the Authority 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, including the parties' contentions, the Authority finds: The Petitioner, Bruce Geyman, an employee of the Activity, seeks decertification of the National Federation of Federal Employees, Local 1982 (NFFE) 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 unit remains appropriate: Included: All nonprofessional GS and WG employees of the Harpers Ferry Center, National Park Service, Harpers Ferry, West Virginia. Excluded: All professional employees, management officials, supervisors, temporary employees, and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7). The sole issue before the Authority is whether an agreement entered into by the Activity and NFFE on October 15, 1982 is a bar to the decertification petition pursuant to section 7111(f)(3) of the Statute. /1/ The Activity and the NFFE completed negotiations and locally signed a collective bargaining agreement on October 15, 1982. This agreement was submitted to the Department of Interior for approval pursuant to section 7114(c) of the Statute on October 19, 1982. By memorandum dated November 1, 1982, the Director of Personnel for the Department of Interior, after noting reasons for such action, advised the Activity's Manager that the agreement had been disapproved. The Activity and NFFE subsequently met on January 18, 1933, revised their agreement so as to conform with the Department of Interior's objections, and submitted the revised agreement to the Department of Interior on January 21, 1983. The agreement received final agency approval on January 27, 1983. In the interval between the Department of Interior's original disapproval of the parties' agreement and the first meeting to deal with the objections raised by the Agency, specifically on January 10, 1983, Geyman filed his petition. NFFE contends that the negotiated agreement, entered into by the parties at the activity level on October 15, 1982, serves as a bar even though it was disapproved at the agency level pursuant to section 7114(c) of the Statute since the parties at the local level expeditiously brought their agreement into conformance with the objections raised by the Agency and no substantive changes in the agreement (except for those necessary to meet the Department of Interior's objections) were negotiated. In the circumstances of this case, the Authority finds that there is no agreement bar preventing the holding of an election pursuant to the instant petition. The Statute, pursuant to the provisions of section 7114(c), /2/ gives the head of an agency a fixed 30-day period in which to review agreements entered into at the local level, and the Authority's Rules and Regulations provide in section 2422.3(c) that the parties' agreement may serve as a bar to a challenging petition during that period of review. If the agency head timely approves an agreement pursuant to section 7114(c)(2), the agreement takes effect and is binding on the local parties, and serves as an agreement bar. If the agency head does not act during the 30 days provided for in section 7114(c), the "agreement shall take effect and shall be binding" under the provisions of section 7114(c)(3) of the Statute and, once again, would serve as an agreement bar. However, if, as in the instant case, the head of an agency timely disapproves an agreement for one of the valid reasons set forth in section 7114(c)(2), then the agreement may not take effect, is not binding on the parties, and therefore no longer serves as a bar to a challenging petition. Thus, during the interim period between the disapproval of the original agreement and the successful conclusion of a subsequent agreement herein, there was no lawful written collective bargaining agreement in effect between the parties at the local level which could serve as a bar to a petition under section 7111(f)(3) of the Statute. As the petition herein was filed during that interim period, it was timely filed. In view of the above, the Authority shall order an election in the unit currently represented by NFFE. 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 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 National Federation of Federal Employees, Local 1982. Issued, Washington, D.C., August 29, 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. Section 7111(f)(3) of the Statute is incorporated into the Authority's Rules and Regulations and its principles are extended to other election petitions by section 2422.3(d) of the Rules and Regulations, which provides that: (d) A petition for exclusive recognition or other election petition will be considered timely when filed as follows: (1) Not more than one hundred and five (105) days and not less than sixty (60) days prior to the expiration date of an agreement having a term of three (3) years or less from the date it became effective. (2) Not more than one hundred and five (105) days and not less than sixty (60) days prior to the expiration of the initial three (3) years period of an agreement having a term of more than three (3) years from the date it became effective, and any time after the expiration of the initial three (3) year period of such an agreement; and (3) Any time when unusual circumstances exist which substantially affect the unit or the majority representation. /2/ 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.