[ v16 p281 ]
The decision of the Authority follows:
16 FLRA No. 42 DEPARTMENT OF THE ARMY CORPUS CHRISTI ARMY DEPOT CORPUS CHRISTI, TEXAS Activity and WILLIAM CHARLES CHISM Individual/Petitioner and INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, AERONAUTICAL LODGE 2049 Case No. 6-DR-30004 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed with the Federal Labor Relations 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, the Authority finds: The Petitioner, William Charles Chism, an employee of the Activity, seeks the decertification of the International Association of Machinists and Aerospace Workers, AFL-CIO, Aeronautical Lodge 2049 (IAM) as the exclusive representative of the unit of all employees of the Glass and Plastic Unit, and Rubber Equipment Unit, Structural Support Section, Structures Branch, Airframe Shops Division, Directorate for Maintenance of Corpus Christi Army Depot, Corpus Christi, Texas. IAM contends that the petition should be dismissed because it was not timely filed as there is in effect a collective bargaining agreement for the unit involved that runs until March 13, 1984. Alternatively, it argues that the ten units covered by its collective bargaining agreement have been merged into a single appropriate unit and consequently the decertification petition is invalid. On March 13, 1981, the IAM and the Activity entered into a collective bargaining agreement. The sections of the contract that are relevant herein are: ARTICLE XXXII DURATION AND AMENDMENT OF AGREEMENT Section 1. This Agreement as executed by the parties shall remain in full force and effect for a period of two (2) years from the date of its approval by the Commander, Corpus Christi Army Depot . . . . Section 2. This Agreement may at the expiration of the second year from the date of its approval be extended for one year by mutual consent of the parties without any change in the provisions of the Agreement as it exists at that time. Section 3. Unless otherwise agreed by the parties or provided this Agreement has not been terminated or extended, negotiations on a new Agreement shall convene not more than ninety (90) or less than sixty (60) days prior to the expiration date of this Agreement . . . . In January 1983, the president of IAM informed the Activity that it wished to engage in negotiations in the near future. The Activity replied by letter that it was presently in negotiations with another union and that it would meet with the IAM in June. On May 16, 1983, the Petitioner filed his original petition herein. In June 1983, as negotiations with the other union were still taking place, the Activity stated that it would meet with IAM in September. On August 12, 1983, the Petitioner filed an amended petition in this case. The record indicates that the contract was not extended for an additional year under the provisions of Article XXXII, Section 2. The Activity contends that the terms of the contract were extended to September 1983, by a series of correspondence between the parties beginning in January 1983, because of the Activity's inability to meet to negotiate with the union. Based on the above, the Authority finds that the Petitioner's petition was timely filed and that neither the collective bargaining agreement between IAM and the Activity dated March 13, 1981, nor their correspondence purporting to extend this agreement for the purpose of negotiating a new agreement, operated as a bar to the petition. In the Authority's view, where parties execute a series of extension agreements in order to provide an opportunity for the parties to renegotiate an agreement, and agree 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 timely filed. Such a temporary stopgap agreement does not constitute a final agreement of fixed duration and lacks the stability sought to be achieved by the agreement bar principle. /1/ Further, the fact that the parties desired to renegotiate the agreement and the fact that neither party expressed a desire to extend the agreement for an additional year pursuant to Article XXXII, Section 2 supports the finding that no agreement bar exists on the facts of this case. /2/ Accordingly, the Authority concludes that there was no agreement of fixed duration in effect after March 13, 1983, the expiration date of the parties' agreement, which could serve as an "agreement bar" and that the Petitioner's petition dated May 16, 1983 and amended on August 12, 1983 was timely filed. The Authority further finds no merit in the IAM's argument that the 10 units covered by the collective bargaining agreement, including the unit involved herein, were merged into one unit. The record indicates that the unit of the Glass and Plastic Unit and Rubber Equipment Unit had been recognized as a separate bargaining unit since the Activity granted formal recognition to the IAM on February 1, 1966. No evidence was introduced indicating that a consolidation was commenced or consummated under either Executive Order 11491, as amended, or the Statute. Accordingly, the Authority finds, specifically noting the long time existence of the Unit, in accordance with section 7112 of the Statute, that the following continues to constitute an appropriate unit: Included: All employees of the Glass and Plastic Unit, and Rubber Equipment Unit, Structural Support Section, Structures Branch, Airframe Shops Division, Directorate for Maintenance of Corpus Christi Army Depot, Corpus Christi, Texas. Excluded: All professional employees, management officials, supervisors, and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7). In view of the above, the Authority shall order an election in the unit currently represented by IAM. 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 International Association of Machinists and Aerospace Workers, AFL-CIO, Aeronautical Lodge 2049. Issued, Washington, D.C., October 26, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29 Union and DEPARTMENT OF THE ARMY, KANSAS CITY DISTRICT, CORPS OF ENGINEERS KANSAS CITY, MISSOURI Agency Case No. O-NG-672 15 FLRA No. 49 ORDER DENYING MOTION FOR RECONSIDERATION This case is before the Authority on a motion for reconsideration filed by the National Federation of Federal Employees, Local 29 on July 25, 1984, seeking reconsideration of the Authority's Decision and Order of July 10, 1984. For the reason set forth below, the motion must be denied. The Authority issued its Decision and Order in the above case on July 10, 1984, finding in relevant part that the Union's proposal interfered directly with management's right, pursuant to section 7106(a)(2)(A) of the Statute, to assign employees, by requiring the application of reduction-in-force regulations to certain reassignments not involving reductions-in-force. Section 2429.17 of the Authority's Rules and Regulations provides, in part, that a party "who can establish . . . extraordinary circumstances . . . may move for reconsideration" of a decision of the Authority. In support of the motion for reconsideration, the Union contends that the proposal is negotiable under section 7106(b)(3) of the Statute which provides for negotiation of "appropriate arrangements for employees adversely affected by the exercise of authority under this section by . . . management officials." However, the Union did not initially assert this argument in stating its position in full pursuant to section 2424.7 of the Authority's Rules and Regulations. Nor was it otherwise apparent in the record that the proposal constituted an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Thus, the Union's motion is merely an attempt to relitigate the matter. The Authority concludes that, in light of the above, the National Federation of Federal Employees, Local 29 has failed to establish the existence of extraordinary circumstances. Accordingly, apart from other considerations, IT IS HEREBY ORDERED that the motion for reconsideration be, and it hereby is, denied. Issued, Washington, D.C., October 24, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF THE TREASURY, CUSTOMS SERVICE Agency Case No. O-NG-1024 (15 FLRA No. 144) ORDER DENYING MOTION FOR RECONSIDERATION This case is before the Authority for ruling on a motion filed by the Union seeking reconsideration of the Authority's Order of August 29, 1984, dismissing the Union's petition for review as untimely filed. For the reasons set forth below, the Union's motion must be denied. As stated in the Order dismissing the Union's petition for review, the Agency's allegation in this case was apparently served on the Union by mail by letter dated June 13, 1984. Therefore, under sections 2424.3 and 2429.22 of the Authority's Regulations, the Union's petition for review had to be filed with the Authority no later than July 3, 1984. The petition for review, however, was not filed until July 5, 1984, and was dismissed as untimely. In its motion for reconsideration, the Union asserts that the Authority's dismissal is based on two factors with which it disagrees: "(1) the presumption that the Agency's declaration of non-negotiability was served on June 13, 1984 and (2) the belief that NTEU's petition was not filed until July 5, 1984." In support of its first assertion, although the Union recognizes that the Agency's allegation was dated June 13, 1984, it argues that since that allegation was not received by the Union on that date, particularly since there is no evidence of that actual date of "service." Secondly, the petition for review was deposited with the U.S. Postal Service on July 2, 1984, for guaranteed next day delivery to the Authority by Express Mail and the Union should not be penalized because of the failure of the Postal Service to deliver the petition for review as promised. Section 2429.17 of the Authority's Rules and Regulations, effective September 10, 1981, provides in pertinent part: 2429.17 Reconsideration. After a final decision or order of the Authority has been issued, a party to the proceeding before the Authority who can establish in its moving papers extraordinary circumstances for so doing, may move for reconsideration of such final decision or order. The motion shall be filed within 10 days after service of the Authority's decision or order . . . . The situations adverted to in the Union's motion do not constitute "extraordinary circumstances" within the meaning of section 2429.17. In regard to the Union's first argument, the Union has not offered any evidence that the Agency's allegation of nonnegotiability was served, i.e., deposited in the U.S. Mail or delivered in person, on a date subsequent to June 13, 1984. Absent such evidence, the Union's mere assertion that service on a later date was a possibility is not sufficient to warrant reconsideration of the Authority's Order. See Federal Employees Metal Trades Council, Fort Benning, Georgia and U.S. Army Infantry Center, Fort Benning, Georgia, 6 FLRA 462; motion for reconsideration denied March 31, 1982. In regard to the Union's second argument, it is well-established that the date a document is deposited with the U.S. Postal Service for delivery to the Authority is without controlling significance in timeliness determinations under the Authority's Rules and Regulations, and that the failure of the Postal Service to deliver a document by a certain date is not an "extraordinary circumstance." American Federation of Government Employees, AFL-CIO, Local 3896 and U.S. Department of Education, Region V, Chicago, Illinois, 11 FLRA No. 26 (1983); motion for reconsideration denied August 10, 1983. Accordingly, since the Union has failed to establish the existence of extraordinary circumstances warranting reconsideration of the Order of August 29, 1984, the Union's motion is hereby denied. Issued, Washington, D.C., October 24, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE Agency Case No. O-NG-600 13 FLRA No. 93 ORDER DENYING MOTION FOR RECONSIDERATION OF DECISION ON NEGOTIABILITY ISSUE This matter is before the Authority on a motion by the National Treasury Employees Union (the Union) for reconsideration of the Authority's decision in National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 13 FLRA No. 93 (1984). In that decision, the Authority determined, among other things, that provisions of the parties' agreement were properly disapproved within the meaning of section 7114(c) of the Statute by "the head of the agency" or his designee. Section 2429.17 of the Rules and Regulations provides, in part, that a party who "can establish . . . extraordinary circumstances . . . may move for reconsideration" of an Authority decision. Upon review of the Union's motion, the Authority concludes that no extraordinary circumstances warranting reconsideration have been established. Instead, the motion merely demonstrates the moving party's disagreement with the Authority's conclusion that the designee of an agency head may, under section 7114(c), properly disapprove a collective bargaining agreement. In this regard, just as the Union may designate its representative before the Authority, the designation of the Agency's representative is a matter within the purview of the Agency. In any event, the head of an agency clearly may delegate to subordinate officials authority vested in him or her by law. See 5 U.S.C. 302. Accordingly, IT IS ORDERED that the motion for reconsideration of the Authority's decision be, and it hereby is, dismissed. Issued, Washington, D.C., October 26, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ See Department of Health and Human Services, Region IX, 12 FLRA No. 46 (1983), enunciating this principle in a case under Executive Order 11491, as amended; see also Department of Health and Human Services, Boston Regional Office, Region I, 12 FLRA No. 93 (1983), wherein the Authority found in a case under the Statute that memoranda executed by the parties which extended the terms of the original agreement for a specified period of time and purported on their face to be "the sole written agreement between the parties" acted as a bar and were controlling in determining the timeliness of a petition. /2/ See Office of the Secretary, Headquarters, Department of Health and Human Services, 11 FLRA No. 114 (1983).