98(24)RO
The decision of the Authority follows:
34 FLRA NO. 24
U.S. DEPARTMENT OF THE ARMY
WATERVLIET ARSENAL
WATERVLIET, NEW YORK
(Activity)
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 2109
(Petitioner)
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
LOCAL R2-98
(Intervenor)
1-R0-90003
ORDER DENYING APPLICATION FOR REVIEW
December 29, 1989
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an application for
review filed by the National Association of Government Employees,
Local R2-98, SEIU, AFL - CIO (NAGE or Intervenor) under section
2422.17(a) of the Authority's Rules and Regulations.
On January 6, 1989, the National Federation of Federal
Employees, Local 2109, Independent (NFFE or Petitioner) filed a
petition for an election in the unit represented exclusively by
NAGE. On June 30, 1989, the Regional Director issued a Decision
and Order and Direction of Election finding that the petition was
timely filed and ordering that an election be conducted. The
Regional Director concluded that a 1988 collective bargaining
agreement between NAGE and the Department of the Army, Watervliet
Arsenal, Watervliet, New York (the Activity) was not a bar to the
petition.
NAGE's application seeks review of the Regional Director's
decision. The application also requests that the Authority stay
the Regional Director's order that an election be conducted. NFFE
has filed an opposition to the application for review.
Because two vacancies existed in the Authority, Acting
Chairman McKee issued an Interim Order on October 18, 1989,
directing that consideration of the application be deferred until
further notice. The Interim Order preserved the parties' rights
under the Statute to Authority consideration of the Regional
Director's decision.
The Authority now considers NAGE's application for review
(application). For the reasons set forth below, we conclude that
the application should be denied.
II. Regional Director's Decision
On January 6, 1989, NFFE filed a petition for an election in
a unit consisting of certain employees of the Activity. These
employees have been represented exclusively by NAGE since 1977.
The Regional Director found that the petition was timely filed
and was not barred by a collective bargaining agreement between
NAGE and the Activity. The Regional Director ordered that an
election be conducted.
The Regional Director found that on May 5, 1988, the members
of the NAGE and Activity negotiating teams signed a new
collective bargaining agreement. Article 49, entitled "Effective
Dates and Duration," provided in relevant part:
Section 1
The signed Agreement will be forwarded to higher authority
to determine compliance with applicable laws, Title VII of the
Civil Service Reform Act of 1978, existing published agency
policies, and regulations (unless the agency has granted an
exception to a policy or regulation) of other appropriate
authorities. In the event non-compliance is determined by higher
authority, the Parties shall meet and negotiate with respect to
the exceptions taken by higher authority.
Section 2
This Agreement will remain in full force and effect for
three (3) years from the date of approval by the agency head or
designee. If neither an approval or disapproval has been effected
within 30 days of execution by the Parties, including
the installation Commander, the Agreement shall be binding on the
Parties on the 31st day after the date of execution subject to
provisions of 5 U.S.C 7114(c), and any other applicable laws,
rules, or regulations.
The agreement was submitted to Headquarters, U.S. Army
Material Command (the Agency) for review pursuant to section
7114(c) of the Statute. By memorandum dated June 1, 1988, the
Agency notified NAGE and the Activity that the agreement had been
"approved" with the exception of two provisions--Article 23,
section 1 and Article 43, section 2. The memorandum suggested
modifications to the two provisions to bring them into compliance
with section 7106 of the Statute.
NAGE and the Activity resumed negotiations. When a dispute
over the scope of negotiations arose, NAGE and the Activity filed
unfair labor practices charges against each other. On July 11,
NAGE issued an informational notice to bargaining unit employees
advising them that there was no new agreement in view of the
Agency's June 1 disapproval action. In September the unfair labor
practice charges were informally resolved.
On September 21, NAGE and the Activity signed off on a
revised Article 23, section 1, and a memorandum of understanding
clarifying the intent of Article 43, section 2. The Activity
submitted the revised section and the memorandum of understanding
to the Agency by memorandum dated September 21. The Agency took
no further action. Printed copies of the agreement showed dates
of June 5, 1988, on the cover and May 5, 1988, on the signature
page.
On September 26, 1988, NFFE filed a petition (Case No.
1-R0-80005) seeking an election in the same unit that is the
subject of the petition in this case. The Regional Director
subsequently found that under section 2422.3(c) of the
Authority's Rules and Regulations 1 the petition was
untimely filed because September 26 fell within the 30-day period
when the revised agreement was subject to agency-head review
under section 7114(c) of the Statute.
The Regional Director found, however, that the agreement
between the parties did not constitute a bar to the instant
petition filed by NFFE on January 6, 1989. Citing the provisions
of Article 49, sections 1 and 2, of the NAGE/Activity agreement
and section 7114(c)(3) of the Statute, the Regional Director
concluded that the NAGE/Activity agreement became effective on
October 22, 1988. Because that date was not contained in the
agreement, the Regional Director concluded that the agreement did
not constitute a bar to the January 6 petition. In so concluding,
the Regional Director relied on section 2422.3(i) of the
Authority's Regulations, which provides that an agreement that
goes into effect automatically pursuant to section 7114(c) and
does not contain the date on which it became effective shall not
constitute a bar to an election petition.
As an additional basis for his finding, the Regional
Director relied on Authority precedent holding that an agreement
must contain a clear and unambiguous effective date and language
setting forth its duration in order to constitute a bar to an
election petition. Department of the Army, U.S. Army Concord
District Recruiting Command, Concord, New Hampshire, 14 FLRA 73,
75 (1984). The Regional Director found that the NAGE/Activity
agreement did not meet this requirement and did not constitute a
bar to the January 6 petition. Consequently, the Regional
Director ordered that an election be conducted.
III. Positions of the Parties
A. NAGE's Application for Review
NAGE asserts that the Regional Director's decision is in
error and should be reversed. NAGE argues that the Authority
should grant review of the Regional Director's decision because:
(1) extraordinary circumstances exist that raise a substantial
question of law because of the absence of Authority precedent;
(2) the conduct of the hearing and rulings made at the hearing
resulted in prejudicial error; and (3) the Regional Director's
decision is erroneous on several substantial factual issues.
As to the first ground, NAGE asserts that subsequent to the
disapproval of the May 5 agreement, NAGE and the Activity were
anxious to avoid "reexecution" of the May 5 agreement
and resubmission for Agency-head approval. NAGE and the Activity
had been informed by the Agency that if the revisions to the May
5 agreement were limited to the modifications suggested by the
Agency in its June 1 memorandum, the Agency would not require the
parties to resubmit the agreement for Agency-head approval.
According to NAGE, the parties sought and received assurances
from an Authority employee who was assigned to the unfair labor
practice cases that a second Agency review under section 7114(c)
would not be required if the parties adopted the Agency's
suggested modifications. NAGE contends that the Regional
Director's conclusion that the revised agreement was subject to
Agency-head review was contrary to the advice given the parties
by the Authority employee. Additionally, NAGE asserts that
"(m)ost likely . . . there existed no Authority precedent for
(the Authority employee's) involvement." Application at 2.
As to the second ground, NAGE contends that the Hearing
Officer who presided over the hearing in this case demonstrated
"prejudicial bias" in favor of NFFE. NAGE contends that its
interests were prejudiced by the Hearing Officer's rejection of
two documents NAGE had sought to introduce into evidence. 2
Additionally, NAGE contends that the Hearing Officer showed
deferential treatment toward NFFE during the hearing.
As to the third ground, NAGE disputes several factual
findings made by the Regional Director in his decision. NAGE's
contentions are as follows:
1) The Regional Director's finding that the Hearing
Officer's rulings were free from prejudicial error is "ludicrous
and preposterous" and "not supported by the facts." Application
at 6.
2) The Regional Director's finding that the Agency's June 1
memorandum suggested modifications of two provisions is
erroneous. According to NAGE, the Agency suggested modification
of only one provision.
3) The Regional Director mischaracterized NAGE's July 11
informational notice. According to NAGE, the July 11 notice
advised that "a cited provision" of the agreement had
been disapproved as contrasted with the Regional Director's
characterization that "certain provisions" had been disapproved.
Application at 6-7.
4) The Regional Director erroneously found that NAGE and the
Activity agreed to the Agency's suggested modification of two
provisions. According to NAGE, the parties agreed to the Agency's
suggested modification of one provision.
5) The Regional Director erred in yet another portion of his
decision by using "the plural term changes" rather than "the
singular term change" to describe the action taken by NAGE and
the Activity on September 21. Application at 7.
6) The Regional Director erred by failing to indicate in his
decision that NFFE had incorrectly described the bargaining unit
in a petition which it had filed on September 26, 1988. 3
7) The Regional Director mischaracterized NAGE's position as
to when the NAGE/Activity agreement became effective. The
Regional Director stated in his decision that "NAGE's position is
that the agreement became legally effective on September 21,
1988(.)" Regional Director's decision at 4, n.4. NAGE contends
that its reference to the September 21, 1988, date related
"solely to the establishment of a contract bar on 21 September
1988. . . . (T)he effective date of the negotiated agreement was
5 June 1988(.)" Application at 8.
8) The Regional Director's finding that the agreement became
effective on October 22, 1988, is erroneous in view of the
agreement that the revised agreement would not be subject to
Agency-head review.
9) The Regional Director's finding that the June 5, 1988,
date on the cover of the agreement "is unexplained" is not
supported by the record. Application at 9-10. NAGE contends that
the June 5 date was the result of an agreement reached
between NAGE and the Activity on September 21.
B. NFFE's Opposition to the Application
NFFE contends that NAGE has not presented just cause for
granting the application for review of the Regional Director's
decision or the motion for stay of the election. NFFE contends
that NAGE's assertions do not provide a basis for overturning the
Regional Director's decision. NFFE argues that NAGE's contention
that extraordinary circumstances are present is unsupported and
constitutes nothing more than disagreement with the Regional
Director's decision. Similarly, NFFE contends that NAGE has
presented no evidence to support its claim that prejudicial error
occurred during the hearing but merely expresses disagreement
with the results. NFFE argues that the Regional Director's
factual findings are correct and that NAGE has merely attempted
to substitute its opinion for the Regional Director's findings of
fact. NFFE further asserts that insofar as NAGE takes issue with
the Regional Director's decision in Case No. 1-R0-80005, NAGE's
assertions should not be entertained because the appeal period on
that particular decision has expired.
IV. Discussion
We conclude, for the reasons stated below, that no
compelling reasons exist within the meaning of section 2422.17(c)
of the Authority's Rules and Regulations for granting the
application for review. We find that the application does not
meet any of the grounds warranting review of the Regional
Director's decision under section 2422.17(c). 4
A. The Regional Director's Conclusion That the Petition Was
Timely Filed Is Consistent with Authority Precedent
We reject NAGE's contention that the Regional Director's
decision is in error and should be reversed. Rather, we find that
the Regional Director's conclusion that the agreement between
NAGE and the Activity did not constitute a bar to the petition
filed by NFFE on January 6, 1989, is supported by Authority
precedent.
Under Authority precedent "the agreement," not a portion
thereof, is subject to agency-head approval under section
7114(c). See Department of the Interior, National Park Service,
Colonial National Historical Park, Yorktown, Virginia, 20 FLRA
537, 541 (1985), aff'd sub nom. National Association of
Government Employees, Local R4-68 v. FLRA, 802 F.2d 1484 (4th
Cir. 1986). Where an agency head timely disapproves an agreement
under section 7114(c) of the Statute, the agreement does not take
effect and is not binding on the parties. For example, Department
of the Interior, Washington, D.C., 31 FLRA 267, 276 (1988). Of
course, the parties may agree to implement all portions of their
local agreement not specifically disapproved by the agency head.
Colonial National Historical Park, 20 FLRA at 541 n.6. However,
when a portion of a locally executed agreement has been
disapproved by an agency head, any revised agreement reached is
subject to agency head review under section 7114(c). Compare
Department of the Interior, 31 FLRA 267 (an agency's request
that a union re-sign an agreement that had been previously
disapproved under section 7114(c) prior to resubmitting the
agreement for agency-head review did not constitute an unfair
labor practice).
In order to constitute a bar to a challenging petition, an
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. Department of the Army, U.S. Army Concord District
Recruiting Command, Concord, New York Hampshire, 14 FLRA 73
(1984). An agreement that goes into effect automatically and that
does not contain the date on which the agreement became
effective does not constitute a bar to an election petition. 5
C.F.R. 2422.3(i).
Within the context of Authority precedent, the Agency head's
June 1 memorandum constituted a disapproval of the agreement
reached locally between NAGE and the Activity. See Colonial
National Historical Park, 20 FLRA 537. Although the Agency
stated that the agreement was "approved," it actually disapproved
two provisions. The Agency suggested a revision to one provision
to cure a perceived legal deficiency. The Agency's disapproval of
the other provision was conditioned on the intent of the
provision--that is, if one meaning was intended, the provision
was disapproved; if another meaning was intended, the provision
was approved.
There is no indication that the parties agreed to implement
those portions of the agreement that were not specifically
disapproved by the Agency head. Rather, the record reveals that
in July NAGE expressed the belief that no new agreement was in
effect as a consequence of the Agency head's action.
Subsequently, on September 21 NAGE and the Activity adopted the
revised language suggested by the Agency as to the one provision
and entered into a memorandum of understanding as to the meaning
of the other provision.
It is uncontroverted that the agreement ultimately reached
by NAGE and the Activity was identical to the agreement reached
on May 5 except for the September 21 modification. The only dates
on the document were June 5, 1988, on the cover, and May 5, 1988,
on the signature page.
We find that the contract does not set forth, clearly and
unambiguously, information on which the open period could be
reliably computed. Specifically, Article 49--quoted above--states
that the agreement will remain in "effect for three (3) years
from the date of approval by the agency head(.)" In the event
that neither approval nor disapproval was forthcoming within 30
days of execution, the contract was to be binding "on the 31st
day after the date of execution(.)" Inasmuch as the contract was
disapproved by the Agency head on June 1, the date on the
cover--June 5, 1988--bears no rational relationship to the terms
for "Effective Dates and Duration" stated in Article 49.
Moreover, the parties to the contract make ambiguous statements
concerning the effective date of the contract. Specifically, NAGE
states in its application that a "contract bar" was established
on September 21, but that the effective date of the
contract was June 5. Application at 8. The Activity in its
post-hearing brief states: 5
When the parties received no response to their 21 September
1988 transmission to the agency head reviewing authority, the
contract became effective by operation of law on 21 October 1988
(see 5 USC 7114(c)(3)). The contract was implemented on or about
17 November 1988. . . . As the effective date stated on the face
of the contract document was not the subject of comment by the
reviewing authority, the published contract document retained the
5 June 1988 effective date.
Activity's post-hearing brief at 3-4. Additionally, the
Activity states:
Clearly, the date the agreement actually went into effect by
operation of law (21 October 1988) is later than the stated
effective date of 5 June 1988.
Id. at 8.
In agreement with the Regional Director, we conclude that
the NAGE/Activity agreement did not meet the requirements that it
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."
Department of the Army, 14 FLRA at 75. Consequently, the
agreement could not bar the NFFE petition filed on January 6,
1989.
Now we turn to the specific arguments raised by NAGE in
support of its application for review.
B. The Application Does Not Raise a Substantial Question of
Law or Policy
We reject NAGE's suggestion that no Authority precedent
exists for the involvement of an Authority employee in events
leading to the September 21 agreement reached by the NAGE and the
Activity. The material submitted by NAGE in support of its
assertion shows that the involvement of the Authority employee
was in the context of attempting to settle unfair labor practice
cases. It is a long-standing policy of the Authority to
encourage the settlement of unfair labor practice cases. See, for
example, 45 Fed. Reg. 3482, 3483 (1980). We do not find that it
is inappropriate for Authority employees to take an active role
in facilitating settlements.
Nothing submitted by NAGE provides any basis for concluding
that the Authority employee informed the parties that placing the
date of June 5, 1988, on the contract would result in that
contract serving as a bar to challenging petitions. Consequently,
we find no basis for concluding that the parties' action in
placing the June 5, 1988, date on the agreement was undertaken
with assurance from an employee of the Authority that the
agreement, so dated, would constitute a contract bar. We reject
the first ground raised by NAGE in support of its application.
C. The Application Does Not Establish That the Conduct of
the Hearing or Rulings Made Resulted in Prejudicial Error
As to the second ground, we reject NAGE's assertion that the
manner in which the hearing was conducted or the rulings made
resulted in prejudicial error. In response to the specific
matters raised by NAGE, we find that NAGE has not established
that the Hearing Officer's ruling that an affidavit should not be
admitted into evidence was prejudicial. That is, NAGE has
provided nothing to support a conclusion that the outcome of the
proceedings would have been different if the disputed affidavit
had been admitted. It is not apparent to us that the affidavit
would have supported a different conclusion as to the timeliness
of the petition. Therefore, we conclude that, even assuming that
the Hearing Officer's ruling rejecting the affidavit was
erroneous, it has not been shown that the ruling was
prejudicial.
In support of the second ground, NAGE also cites the Hearing
Officer's action in not allowing a witness to be questioned
concerning other collective bargaining agreements at the
Activity. NAGE asserts that this witness "could have supplied
valuable supporting testimony(.)" Application at 4. However, NAGE
has failed to show how that testimony would have produced a
different result in the case and that the Hearing Officer's
ruling, even if erroneous, was prejudicial. Above, we concluded
that the NAGE/Activity agreement did not constitute a contract
bar under Authority precedent because the agreement did not set
forth clear and unambiguous information on which the open period
reliably could be computed. In view of this conclusion, testimony
concerning other collective bargaining agreements at
the Activity would not have resulted in a different outcome in
this case.
NAGE asserts that the Hearing Officer showed deferential
treatment toward the Petitioner during the course of the hearing.
We do not find that the examples of conduct during the hearing
cited by NAGE in support of this assertion evidence bias on the
part of the Hearing Officer. NAGE cites an instance where an
individual was misidentified in the transcript of the hearing as
supporting this assertion. Application at 5. We have no basis for
concluding that this misidentification was anything other than a
reportorial error. Errors made by a court reporter do not, in our
view, reflect on the objectivity of a hearing officer.
NAGE also contends that questions by the Hearing Officer on
the origin of the June 5, 1988, date that appeared on the cover
of the NAGE/Activity agreement were an attempt by the Hearing
Officer "to distort the record." Application at 5. In our view,
those questions were merely an attempt to fulfill the Hearing
Officer's duty under section 2422.12 of the Authority's
Regulations "to inquire fully into the facts as they relate to
the matters before (the Hearing Officer)" and did not amount to
an attempt "to distort the record" as asserted by NAGE.
Based on the foregoing reasons, we reject NAGE's assertion
that the manner in which the hearing was conducted or the Hearing
Officer's rulings resulted in prejudicial error.
D. The Application Does Not Establish That the Regional
Director's Decision on Substantial Factual Issues Is Erroneous
We also reject the third ground raised by NAGE: that the
Regional Director's decision on substantial factual issues is
erroneous.
The support that NAGE provides for its first assertion with
respect to this ground is limited to a statement that the
Regional Director's finding that the Hearing Officer's rulings
are free from prejudicial error is "ludicrous and preposterous"
and "not supported by the facts." Application at 6. It is not
apparent to us that the Regional Director's finding is erroneous
and we reject NAGE's unsupported contention to the contrary.
NAGE's next four assertions essentially relate to the
Regional Director's characterization of the Agency's June 1,
1988, action concerning Article 43, section 2 of the
NAGE/Activity agreement as a "disapproval" and references to the
Agency's "disapproval" as involving two provisions of the
NAGE/Activity agreement--Article 23 and Article 43. The Agency's
June 1 memorandum stated in relevant part:
2. The agreement is approved with exception of the
following:
a. ARTICLE 23, JOB PERFORMANCE STANDARDS AND APPRAISALS,
Section 1 . . . .
b. ARTICLE 43, EMPLOYEE DISABILITY COMPENSATION, Section 2
states in part,
"Employer will attempt to assign the employee to duties
consistent with the employee's medical needs."
FINDING: If the intent of the parties is that this provision
will apply in accordance with determinations made solely by the
Employer's physician or medical personnel, Section 2 is approved.
However, if the intent is that any findings by the employee's
private (non-agency) physician may independently be used to
support an adjustment in duties for medical reasons, th(e)n
Section 2 is disapproved because it would interfere with the
Employer's right to assign work under 5 U.S.C. Section
7106(a)(2)(B). See 29 FLRA No. 69.
3. This letter constitutes the agency's written allegations
of nonnegotiability with regard to the disapproved provisions
(paragraph 2) of this agreement in accordance with Part 2424.3,
Rules and Regulations of the Federal Labor Relations Authority.
Application, Attachments in support of Ground No. 3.
In our view, the Regional Director's statements that two
provisions of the agreement were disapproved by the Agency is a
reasonable interpretation of the Agency's June 1 memorandum. In
any event, NAGE does not (1) dispute that one provision--Article
23, section 1--was disapproved, and (2) show how the
number of provisions disapproved makes a difference in the
outcome of this case.
NAGE's next assertion concerns the Regional Director's
failure to state in his decision that a petition NFFE filed on
September 26, 1988, 6 contained an "invalid description of the
bargaining unit sought." Application at 7. NAGE also contends
that the Region "grossly mishandled" the processing of that
petition. Id. at 8. It has not been shown and it is not apparent
to us that the matters cited by NAGE that related to the petition
in Case No. 1-R0-80005 are necessary or relevant to the
disposition in this case. Consequently, we reject NAGE's claim
that the Regional Director's failure to mention those matters
relating to Case No. 1-R0-80005 in his decision in this case
constituted prejudicial error.
In its next assertion, NAGE disagrees with the Regional
Director's characterization of NAGE's position regarding the
effective date of the agreement--that the NAGE/Activity agreement
became legally effective on September 21, 1988. In our view, the
Regional Director's statement constitutes a reasonable
interpretation of statements made by NAGE in its post-hearing
brief. 7 For instance, NAGE made the following statements.
"Said Agreement was considered valid as of 21 September
1988(.)" Intervenor's brief at 5.
"Said risk (of a challenge to NAGE's status as exclusive
representative) ended permanently with the action of the parties
on 21 September 1988(.)" Id. at 20.
Consequently, we reject NAGE's contention that the Regional
Director's statement was erroneous.
Next NAGE contends that the Regional Director's findings
that the NAGE/Activity agreement became effective on October 22,
1988, is erroneous. We disagree.
Under section 7114(c) of the Statute an agreement executed
between an agency and an exclusive representative is subject to
approval by the head of the agency. If the head of the
agency does not approve or disapprove an agreement within 30
days of its execution, the agreement goes into effect
automatically. See National Park Service, Harpers Ferry, West
Virginia, 15 FLRA 786 (1984).
In this case, the Agency's disapproval of provisions of the
NAGE/Activity agreement on June 1, 1988, prevented that agreement
from becoming effective. See, for example, Department of the
Interior, Washington, D.C., 31 FLRA 267 (1988). In our view, the
revised agreement reached on September 21 was subject to the
requirements of section 7114(c)--that is, it was "subject to
approval by the head of the agency." Thus, for that agreement to
become effective, it had to either (1) be approved by the agency
head, or (2) go into effect automatically under the terms of
section 7114(c)(3). 8 As there is no showing that the former
occurred, the Regional Director's finding that the latter applied
and that the agreement automatically became effective on October
22, 1988, under the provisions of section 7114(c)(3) of the
Statute and Authority precedent was reasonable.
Based on the foregoing, we reject NAGE's contention that the
Regional Director's finding that the agreement became effective
on October 22, 1988, was erroneous.
NAGE's last assertion is that the Regional Director's
description of the June 5, 1988, date on the cover of the
NAGE/Activity contract as "unexplained" was erroneous.
Application at 9-10. In its application, NAGE contends that the
June 5, 1988, date on the agreement was a product of the
September 21 "understanding" between NAGE and the Activity.
Application at 10.
We do not find that the Regional Director's description of
the June 5, 1988, date as "unexplained" is erroneous. Rather, it
is a reasonable characterization based on the circumstances
involved, especially when viewed in the context of the statutory
requirements for agency-head review and the Authority's precedent
concerning when agreements become effective for purposes of
constituting a contract bar. As discussed previously, the choice
of June 5, 1988, as an effective date does not conform to the
requirements of section 7114(c) and Authority precedent that
an agreement must be subject to agency-head review in
order to be effective for contract bar purposes. Moreover, as
also discussed earlier, NAGE and the Activity made ambiguous
statements in their post-hearing briefs concerning the date on
which their agreement became effective. We conclude that the
Regional Director's characterization of the June 5, 1988, date as
"unexplained" was a reasonable interpretation of the facts and
arguments before him.
Based on the foregoing, we reject NAGE's assertion that the
Regional Director's description of the June 5, 1988, date as
"unexplained" was erroneous.
V. Conclusion
For the foregoing reasons, we conclude that NAGE has not
shown that compelling reasons exist for review of the Regional
Director's finding that there was no bar to the petition filed by
NFFE on January 6, 1989, and his decision that an election should
be conducted. We deny the application for review.
VI. Order
The application for review of the Regional Director's
Decision and Order and Direction of Election is denied. The
Regional Director is directed to take appropriate action
consistent with this decision.
FOOTNOTES
Footnote 1 Section 2422.3(c) provides: (c) When an agreement
covering a 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 not be
considered timely if filed during the period of review by the
head of an agency as set forth in 5 U.S.C. 7114(c), absent
unusual circumstances.
Footnote 2 The Regional Director reversed the Hearing
Officer's ruling as to one of the documents.
Footnote 3 As indicated previously, this petition was
subsequently dismissed by the Regional Director as untimely
filed.
Footnote 4 Section 2422.17(c) provides: (c) The Authority
may grant an application for review only where it appears that
compelling reasons exist therefor. Accordingly, an application
for review may be granted only upon one or more of the following
grounds: (1) That a substantial question of law or policy is
raised because of (i) the absence of, or (ii) a departure from,
Authority precedent; (2) That there are extraordinary
circumstances warranting reconsideration of an Authority policy;
(3) That the conduct of the hearing held or any ruling made in
connection with the proceeding has resulted in prejudicial error;
or (4) That the Regional Director's decision on a substantial
factual issue is clearly erroneous and such error prejudicially
affects the rights of a party.
Footnote 5 NAGE submitted the Activity's post-hearing brief
with its application as documentation in support of "Ground No.
3."
Footnote 6 This petition was the subject of Case No.
1-R0-80005 and was dismissed by the Regional Director as untimely
on February 3, 1989.
Footnote 7 NAGE submitted its post-hearing brief with its
application as documentation in support of "Ground No. 3."
Footnote 8 We do not address the question of whether an
agreement would constitute a contract bar in circumstances where
parties have agreed to implement portions of an agreement that
have not been specifically disapproved by an agency head. Those
circumstances are not present here.