[ v51 p934 ]
The decision of the Authority follows:
51 FLRA No. 76
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE ARMY
III CORPS AND FORT HOOD
FORT HOOD, TEXAS
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1920, AFL-CIO
DECISION AND ORDER ON REVIEW
March 7, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members
I. Statement of the Case
By order dated October 27, 1995, the Authority granted the Petitioner's (NFFE) application for review of the Regional Director's (RD) decision and order in which the RD found that an election petition filed by NFFE was barred by a collective bargaining agreement executed between the Intervenor (AFGE) and the Agency.(1) The Authority granted review as to the following issue:
Was the petition for exclusive recognition, filed on the same day that the Agency and the incumbent exclusive representative executed a collective bargaining agreement, timely under section 2422.3(c) of the Authority's Regulations?
In response to the Authority's order granting review, only AFGE filed a brief.
For the reasons that follow, we find that the agreement executed between the Agency and AFGE barred the election petition filed by NFFE and that the petition should be dismissed as untimely filed. We affirm the RD's decision and order.
II. Background and Regional Director's Decision
On November 4, 1994, NFFE filed a petition for an election in a bargaining unit of certain employees at Fort Hood, Texas.(2) On the same date, the Agency and AFGE, the incumbent exclusive representative, executed a collective bargaining agreement covering the bargaining unit in which NFFE petitioned for an election.
The RD concluded that the agreement barred the petition and that the petition should be dismissed. In reaching this conclusion, the RD relied on Deluxe Metal Furniture Company, 121 NLRB 995, 999 (1958) (Deluxe Metal Furniture), which holds, among other things, that a contract that has been executed on the same day that a petition for an election is filed "will bar an election if [the contract] is effective immediately or retroactively and the employer has not been informed at the time of execution that a petition has been filed." The RD found that NFFE had not informed the Agency prior to execution of the agreement that it had filed the petition. The RD also found that ratification of the agreement was not required and that the executed agreement barred the petition at the time of filing even though the Agency head disapproved the executed agreement on November 23, 1994.(3)
III. Positions of the Parties
A. NFFE (4)
NFFE asserts that its petition is not barred by the agreement executed on November 4 because the filing of the petition occurred earlier in the day than execution of the contract. NFFE also alleges that unusual circumstances surrounded the execution of the agreement. Specifically, NFFE contends that the Agency convened a bargaining team and negotiated the agreement after the petition was filed and after the Agency received notice that a petition was being filed. NFFE also claims that the agreement lacked "vital language," relying on testimony by one employee that the negotiations failed to address the issues of a smoking policy and beeper compensation. Application at 6. NFFE also contends that the commanders of the tenant activities covered by the agreement signed a blank sheet of paper without having seen a copy of the agreement.
Alternatively, NFFE disputes the RD's application of Deluxe Metal Furniture, contending that, prior to execution of the agreement, it provided adequate notice to the Agency that it was going to file an election petition. NFFE also argues that even if it did not provide adequate notice, the agreement did not bar the petition because it did not become effective immediately or retroactively. Additionally, NFFE contends that the contract did not bar the petition because it was subsequently disapproved by the Agency head pursuant to section 7114(c) of the Federal Service Labor-Management Relations Statute (Statute) and was not subjected to required membership ratification.
AFGE proposes that the Authority adopt the following standard, a modification of the standard articulated in Deluxe Metal Furniture, for the purpose of determining whether a collective bargaining agreement bars an election petition that is filed on the same day that the agreement is executed:
Once a contract has been executed by the parties, if no further action is needed to effectuate the agreement, except for agency head review, and the agency did not have knowledge of the petition, then the contract will act as a bar to petitions. [Emphasis in original.]
AFGE Brief at 5.
AFGE asserts that, under this standard, the collective bargaining agreement executed on November 4 barred the NFFE petition.
AFGE contends that neither it nor the Agency had knowledge of the NFFE petition prior to the contract's execution on November 4 and that the agreement constituted a lawful written collective bargaining agreement, as defined by the Authority in U.S. Department of Health and Human Services, Social Security Administration, 44 FLRA 230 (1992) (SSA I).(5) AFGE maintains that agreement was not conditioned on membership ratification.
IV. Analysis and Conclusions
A. A Contract Bars a Rival Petition Filed on the Same Day as the Contract Is Executed Unless the Petitioner Notifies the Agency of the Filing of the Petition
1. Applicable Legal Principles and Precedents Under the Statute
Section 7111(f)(3) of the Statute provides that exclusive recognition shall not be accorded a labor organization "if there is then in effect a lawful written collective bargaining agreement between the agency involved and an exclusive representative" unless conditions specified by that subsection, but not relevant here, are met. Underlying legislative history confirms that this statutory provision for what is known as the "contract bar" is intended to lend stability to collective bargaining relationships by precluding continuous challenges to an exclusive representative's status, while at the same time giving employees the opportunity at reasonable intervals to choose, if they so desire, a new representative. H.R. Rep. No. 1403, 95th Cong., 2d Sess. 46, reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Comm. Print 1979) at 692.
Section 2422.3(c) of the Authority's Regulations extends the contract bar to election petitions filed during the period of agency-head review under section 7114(c) of the Statute.(6) Execution of the agreement triggers the period of agency head review.(7) International Organization of Masters, Mates and Pilots and Panama Canal Commission, 36 FLRA 555, 560 (1990). If, during that period, the agency head disapproves the agreement, it ceases to serve as a bar to a challenging petition on the date of disapproval. National Park Service, Harpers Ferry, West Virginia, 15 FLRA 786, 789 (1984) (Harpers Ferry). Thus, during the interim period between the date of disapproval of the original agreement and the execution of a subsequent agreement, there is no bar and a petition filed during the interim period is timely. Id.
2. An Executed Contract Generally Bars an Election Petition Filed on the Same Day That Execution Occurs
Although Authority precedent does not address the question of whether a contract bars an election petition that is filed on the same day the contract is executed, there is private sector precedent on this point. Under relevant private sector precedent, an executed contract generally bars an election petition filed on the same day as execution. Deluxe Metal Furniture, 121 NLRB at 999.
The contract bar concept originated under the National Labor Relations Act where contract bar rules were developed through National Labor Relations Board (NLRB) case law. See, e.g., NLRB v. Circle A & W Products Co., 647 F.2d 924, 926 (9th Cir. 1981) (Circle A & W) ("The [contract bar] rule does not find its source in the express language of the statute, nor is it judicially compelled."). In the private sector, the contract bar permits an existing collective bargaining agreement not exceeding a specified period (currently 3 years) to bar a petition for redetermination of representation in most instances. E.g., id. The purpose of the contract bar in the private sector is to provide a balance between the competing statutory objectives of (1) stability in industrial relations, and (2) employee freedom of choice in selecting bargaining representatives. Leedom v. IBEW, 278 F.2d 237, 242 (D.C. Cir. 1960).
As the purpose and function of the contract bar are the same in both the Federal and private sectors, it is appropriate to consider private sector precedent and to follow a similar approach in interpreting and applying contract bar provisions under the Statute. Cf. Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363, 367 (1995) (as differences that relate to successorship principles in private and Federal sectors are not significant, it is appropriate to bring the approach for determining successorship in the Federal sector into closer alignment with private sector treatment of the issue). Accordingly, consistent with the private sector rule established in Deluxe Metal Furniture, we will find that under section 2422.3(c) an executed contract bars an election petition that is filed on the same day as execution if all that remains for effectuation of the agreement is agency head review.(8) As in the private sector, this rule encompasses the entire day on which execution of the collective bargaining agreement occurs. This rule is preferable to an approach requiring parties to establish as an evidentiary matter the precise moment in time when execution and filing occur because such approach would be prone to disputes that could cause delays in representation matters. For this reason, we reject NFFE's suggestion that the existence of a bar should be decided by whether execution or the filing of the petition occurs first and we adopt instead an approach that is a long-standing one in the private sector and has withstood the test of time. We emphasize that the rule we are adopting is limited to the uncommon circumstance where a petition is filed on the same day as a contract is executed covering the same employees as the petition.
3. When Appropriate Notice of the Filing of a Petition Is Given, the Executed Contract Will Not Serve as a Bar
In Deluxe Metal Furniture, the NLRB carved one exception to the general rule that an executed agreement prevails over an election petition filed on the same day as execution. Under this exception, the agreement does not bar the petition if at the time of execution the employer has notice that a petition has been filed. This exception provides a means by which a non-incumbent union can defeat efforts by an agency and incumbent exclusive representative to thwart employee freedom of choice by colluding in the negotiation and execution of an agreement in order to bar a rival election petition. The exception thereby permits consideration of employee choice in circumstances where it appears particularly compelling. We find that applying a similar exception effectuates the policy underpinnings of the contract bar that were articulated in the legislative history of the Statute. That is, qualifying the general rule with an appropriate notice exception provides balance between the interests of stability in collective bargaining relationships and employee choice of representative. Cf. Circle A & W, 647 F.2d at 926 ("Where the objectives of contract stability and adequate employee representation conflict, the Board must exercise its discretion to reach an appropriate balance, but it must give explicit recognition to both sides of this balance.").
To this end, we adopt a notice exception similar to that applied in Deluxe Metal Furniture. In the interests of (1) providing parties with clear guidance as to what is expected of them in filing representation petitions and (2) reducing the potential for disputes that will delay the resolution of representation issues, we set forth the following requirements that the notice must meet in order to defeat a collective bargaining agreement that would otherwise operate as a bar.
The notice must be in writing and convey that the petitioning union has taken all steps necessary to file a petition with the Authority.(9) The notice must be served on a person having authority over agency negotiations, which could extend to and include the head of the agency, and must be received on the same day that the petition is filed(10) but prior to the point at which the collective bargaining agreement is executed. Receipt of the notice must be verifiable through documentary evidence.(11)
In summary, we conclude that where a petition is filed on the same day that an agreement is executed, and all that remains is agency-head review pursuant to section 7114(c), the agreement will bar the petition unless at the time of execution the agency received notice, which meets the above specifications, that all steps necessary to file a petition had been taken.
B. The Petition in This Case Is Untimely
In this case, it is undisputed that the petition was filed on the same day that an agreement was reached between the Agency and AFGE. Moreover, all that remained was agency-head review.
In this latter regard, we reject NFFE's claim that the agreement did not operate as a bar because it lacked required membership ratification. While, as the RD acknowledged, there is some evidence in the record of this case that prior collective bargaining agreements had been subject to ratification, there is no basis for concluding that AFGE had conditioned execution of the agreement reached on November 4 on ratification by its members. The contractual provision on which NFFE relies to support its claim (Article 2, section 3) does not, standing alone, constitute a ratification requirement.(12) As written, this contractual provision is limited to addressing what will occur in the event that the agreement is subjected to and fails union ratification. The record does not establish that any source of a membership ratification requirement existed with respect to the agreement executed on November 4.(13) Cf. SSA II, 46 FLRA at 1405 (agency had notice that agreements with union were subject to ratification and the union did not waive its right). Instead, we find that all that remained once agreement was reached on November 4 for the contract to take effect was agency-head review under section 7114(c).
We also reject NFFE's claim that the Agency head's subsequent disapproval of the agreement removed the contract as a bar to the petition in this case. The petition was filed prior to the date on which the Agency head disapproved the agreement and, consequently, the agreement served to bar the petition at the time of filing. See Harpers Ferry, 15 FLRA at 789 (when an executed agreement is disapproved by an agency head pursuant to section 7114(c), it no longer serves as a bar to petitions filed during the interim period between disapproval and successful conclusion of a subsequent agreement).
We reject NFFE's contention that unusual circumstances precluded the agreement reached on November 4 from operating as a bar. Even assuming that the Agency was aware that the filing of a petition was imminent, the speed with which the agreement was negotiated and executed, standing alone, does not establish an unusual circumstance. Moreover, review of the agreement reached reveals that with some exceptions it mirrored the predecessor agreement between the Agency and AFGE and contained substantial terms and conditions of employment sufficient to stabilize the bargaining relationship between the parties. That the negotiations and the resulting agreement may not have encompassed all possible conditions of employment does not preclude the agreement from operating as a lawful collective bargaining agreement that can bar the filing of a petition for exclusive recognition. See SSA I, 44 FLRA at 238-40. As to NFFE's claim that some commanders signed a blank sheet of paper, the record shows that the commanders were not members of the bargaining team; therefore, the fact that they may have signed the agreement reached by their duly authorized bargaining representatives without fully reviewing it does not raise a question about the validity of the agreement.(14)
Finally, we reject NFFE's contention that it provided notice of the filing of the petition, which precluded the executed agreement from operating as a bar. In this regard, NFFE claims that an employee informed an Agency representative in a telephone conversation on November 2, 1994, that a sufficient showing of interest had been collected and would be delivered to a representative who would then file the petition.(15) This claimed notice does not constitute notification to the Agency that NFFE had taken all steps necessary to file a petition with the Authority and, thus, was not adequate to preclude the collective bargaining agreement from operating as a bar to the petition.(16)
Based on the foregoing, we conclude that the petition was barred by the agreement executed on November 4, 1994, and that the petition was untimely filed.
We affirm the RD's decision and order dismissing NFFE's petition.
(If blank, the decision does not have footnotes.)
1. The decision was signed by an acting Regional Director.
2. The unit description is not at issue in this case and, therefore, is not set forth.
3. The RD found that a revised agreement was approved by the Agency head on December 1, 1994.
4. Although NFFE did not file a brief in response to the order granting its application for review, the arguments presented in conjunction with the application are relevant to the issue on which review was granted.
5. In SSA I, the Authority stated:
[I]n order for an agreement to constitute a "collective bargaining agreement" within the meaning of section 7111(f)(3) that can bar the filing of a petition for exclusive recognition, an agreement must contain substantial terms and conditions of employment sufficient to stabilize the bargaining relationship between the parties to the agreement.
44 FLRA at 239.
6. Section 2422.3(c) currently 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.
Although amendments to the Authority's Regulations governing representation proceedings have been published, they will not be effective until March 15, 1996, and, therefore, do not apply to the petition filed in this case. 60 Fed. Reg. 67288, 67288 (1995) (current regulations govern all cases in which representation petitions are filed before March 15, 1996). However, we see no reason that we would reach a different conclusion under the amended regulations.
7. A union is entitled to condition the execution of an agreement on ratification by its members provided: (1) the employer has notice of the ratification requirement, and (2) there is no waiver of the right by the union. E.g., Social Security Administration, 46 FLRA 1404, 1404 (1993) (SSA II).
8. The requirement in Deluxe Metal Furniture that a contract be effective immediately or retroactively in order to bar a petition filed on the same day that the agreement is executed is not relevant in the Federal sector where, as a consequence of the requirement under section 7114(c) of the Statute that executed agreements be subject to agency-head review, a contract cannot be effective immediately or retroactively upon execution. See, e.g., West Point Elementary School Teachers Association, NEA and United States Miliary Academy, West Point Elementary School, 34 FLRA 1008, 1021 (1990).
9. A copy of the petition would suffice.
10. Under both the current and revised regulations, a petition is deemed filed when it is received by the appropriate Regional Director. 5 C.F.R. § 2422.2(e)(4); 60 Fed. Reg. 67288, 67293 (1995) (to be codified at 5 C.F.R. § 2422.5(c)).
11. Among other things, a copy of the notice showing time and date of receipt would constitute adequate verification.
12. Article 2, section 3 provides:
In the event a portion [of the agreement] is not approved by the head of the agency or does not have union ratification, only that portion will be referred back to the table for further negotiations.
13. In view of the absence of a ratification requirement, the question of whether ratification, if required, must in all instances precede execution is not before us in this case.
14. In view of the fact that the commanders were not on the bargaining team, we need not address whether similar actions by bargaining team members would support a finding that contract negotiations were a sham or what the legal consequence of such a finding would be.
15. The Agency representative who allegedly received this notice testified that he did not recall being told that adequate signatures had been obtained for a showing of interest. However, resolution of this factual dispute is unnecessary to the disposition of this case.
16. In view of the fact that the content of the alleged notice was deficient, it is unnecessary to address whether the notice failed in other respects to meet the requirements set forth above.