U.S. Department of the Treasury, Internal Revenue Service, North-Atlantic Service Center, Andover, Massachusetts (Activity) and National Treasury Employees Union (Petitioner) and American Federation of Government Employees, Local 2078, AFL-CIO

 3 FLRA No. 59
 
 U.S. DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE,
 NORTH-ATLANTIC SERVICE CENTER,
 ANDOVER, MASSACHUSETTS
 Activity
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Petitioner
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2078, AFL-CIO
 Intervenor
 
                                            Case No. 1-RO-12
 
                    DECISION AND DIRECTION OF ELECTION
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY IN ACCORDANCE WITH SECTION 2429.1 OF THE RULES AND REGULATIONS
 OF THE AUTHORITY.
 
    UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES'
 STIPULATION AND BRIEFS SUBMITTED BY THE PETITIONER AND THE ACTIVITY, THE
 AUTHORITY FINDS:
 
    1.  THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
 EMPLOYEES OF THE ACTIVITY.
 
    2.  THE PETITIONER (NTEU), SEEKS AN ELECTION IN A UNIT OF ALL GENERAL
 SCHEDULE AND WAGE GRADE PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES,
 INCLUDING SEASONAL (WAE) AND PART-TIME EMPLOYEES, EMPLOYED AT THE
 INTERNAL REVENUE SERVICE, NORTH ATLANTIC SERVICE CENTER, ANDOVER,
 MASSACHUSETTS (THE ACTIVITY), EXCLUDING ALL MANAGEMENT OFFICIALS,
 SUPERVISORS, CONFIDENTIAL EMPLOYEES, ALL EMPLOYEES ENGAGED IN PERSONNEL
 WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND GUARDS.  THE
 INTERVENOR (AFGE), WAS RECOGNIZED IN 1968 AS THE EXCLUSIVE
 REPRESENTATIVE OF CERTAIN OF THE ACTIVITY'S EMPLOYEES.  THE RECORD
 REVEALS THAT A NEGOTIATED AGREEMENT WAS SIGNED AND DATED BY THE ACTIVITY
 AND AFGE ON AUGUST 26, 1976, AND BECAME EFFECTIVE ON OCTOBER 4, 1976,
 FOR A THREE-YEAR PERIOD.
 
    THE SOLE QUESTION IN ISSUE BEFORE THE AUTHORITY IS WHETHER NTEU'S
 PETITION WAS TIMELY FILED OR WHETHER THE AGREEMENT BETWEEN THE ACTIVITY
 AND AFGE CONSTITUTED A BAR TO THE FILING OF SAID PETITION.  THE ACTIVITY
 AND AFGE CONTEND THAT NTEU'S PETITION SHOULD BE DISMISSED AS UNTIMELY
 SINCE IT WAS NOT FILED WITHIN THE "OPEN PERIOD" AS MEASURED FROM THE
 EXECUTION DATE OF THE AGREEMENT BETWEEN THE ACTIVITY AND AFGE.  ON THE
 OTHER HAND, NTEU ASSERTS THAT ITS PETITION WAS TIMELY FILED UNDER
 SECTION 7111(F)(3)(B) OF THE STATUTE, I.E., WITHIN THE "OPEN PERIOD"
 BETWEEN THE 105TH AND THE 60TH DAY PRIOR TO THE EXPIRATION DATE OF THE
 AGREEMENT AS MEASURED FROM ITS EFFECTIVE DATE.
 
    INASMUCH AS THE INSTANT PETITION WAS FILED ON JULY 23, 1979, AFTER
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE BECAME EFFECTIVE,
 THE STATUTE GOVERNS THE RESOLUTION OF THE FOREGOING QUESTION.  SECTION
 7111(F)(3) OF THE STATUTE PROVIDES:
 
    (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.  . . .
 
    NOTING PARTICULARLY CONGRESSIONAL RELIANCE ON THE EFFECTIVE DATE OF
 THE AGREEMENT UNDER SECTION 7111(F)(3)(A) THE AUTHORITY FINDS, IN
 AGREEMENT WITH NTEU, THAT SECTION 7111(F)(3)(B) OF THE STATUTE ALSO
 REQUIRES THE USE OF THE EFFECTIVE DATE OF AN AGREEMENT RATHER THAN ITS
 DATE OF EXECUTION IN DETERMINING THE "OPEN PERIOD" PRIOR TO THE
 EXPIRATION DATE OF SUCH AGREEMENT DURING WHICH A PETITION FOR EXCLUSIVE
 RECOGNITION MAY BE TIMELY FILED.  CONSISTENT WITH THE FOREGOING
 INTERPRETATION OF THE STATUTE, SEC. 2422.3(D) OF THE AUTHORITY'S RULES
 AND REGULATIONS PROVIDES (45 F.R. 3501, JANUARY 17, 1980):
 
    (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.
 
    THUS, THE PETITION FILED ON JULY 23, 1979, WAS TIMELY FILED WITHIN
 THE OPEN PERIOD WHICH WAS FROM JULY 19, 1979 TO SEPTEMBER 4, 1979.
 
    ACCORDINGLY, THE AUTHORITY FINDS THAT THE FOLLOWING EMPLOYEES
 CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
 WITHIN THE MEANING OF SECTION 7112 OF THE STATUTE:
 
    ALL PROFESSIONAL AND NONPROFESSIONAL GENERAL SCHEDULE AND WAGE GRADE
 EMPLOYEES INCLUDING
 
    SEASONAL (WAE) AND PART-TIME EMPLOYEES, EMPLOYED AT THE INTERNAL
 REVENUE SERVICE, NORTH
 
    ATLANTIC SERVICE CENTER, ANDOVER, MASSACHUSETTS, EXCLUDING ALL
 MANAGEMENT OFFICIALS,
 
    SUPERVISORS, GUARDS, AND EMPLOYEES DESCRIBED IN U.S.C.  7112(B)(2),
 (3), (4), (6) AND (7).
 
    IT IS NOTED THAT THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
 EMPLOYEES AND THAT THE AUTHORITY IS PROHIBITED BY SECTION 7112(B)(5) OF
 THE STATUTE FROM INCLUDING PROFESSIONAL EMPLOYEES IN THE UNIT WITH
 EMPLOYEES WHO ARE NOT PROFESSIONALS UNLESS A MAJORITY OF THE
 PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION IN SUCH A UNIT.  ACCORDINGLY,
 THE DESIRES OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN THE UNIT
 WITH NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED.  THE AUTHORITY,
 THEREFORE, DIRECTS SEPARATE ELECTIONS IN THE FOLLOWING GROUPS:
 
    VOTING GROUP (A):  ALL PROFESSIONAL GENERAL SCHEDULE AND WAGE GRADE
 EMPLOYEES INCLUDING
 
    SEASONAL (WAE) AND PART-TIME EMPLOYEES, EMPLOYED AT THE INTERNAL
 REVENUE SERVICE, NORTH
 
    ATLANTIC SERVICE CENTER, ANDOVER, MASSACHUSETTS, EXCLUDING ALL
 NONPROFESSIONAL GENERAL
 
    SCHEDULE AND WAGE GRADE EMPLOYEES, MANAGEMENT OFFICIALS, SUPERVISORS,
 GUARDS AND EMPLOYEES
 
    DESCRIBED IN 5 U.S.C. 7112(B)(2), (3), (4), (6) AND (7).
 
    VOTING GROUP (B):  ALL NONPROFESSIONAL GENERAL SCHEDULE AND WAGE
 GRADE EMPLOYEES INCLUDING
 
    SEASONAL (WAE) AND PART-TIME EMPLOYEES, EMPLOYED AT THE INTERNAL
 REVENUE SERVICE, NORTH
 
    ATLANTIC SERVICE CENTER, ANDOVER, MASSACHUSETTS, EXCLUDING ALL
 PROFESSIONAL GENERAL SCHEDULE
 
    AND WAGE GRADE EMPLOYEES, MANAGEMENT OFFICIALS, SUPERVISORS, GUARDS,
 AND EMPLOYEES DESCRIBED
 
    IN 5 U.S.C. 7112(B)(2), (3), (4), (6) AND (7).
 
    THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
 AS TO WHETHER OR NOT THEY DESIRE TO BE REPRESENTED BY THE AFGE, BY THE
 NTEU OR BY NEITHER.
 
    THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
 QUESTIONS ON THEIR BALLOTS:  (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
 WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
 RECOGNITION, AND (2) WHETHER OR NOT THEY WISH TO BE REPRESENTED FOR THE
 PURPOSE OF EXCLUSIVE RECOGNITION BY THE AFGE, BY THE NTEU OR BY NEITHER.
 IN THE EVENT THAT A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) IS
 CAST IN FAVOR OF INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL
 EMPLOYEES, THE BALLOTS OF VOTING GROUP (A) SHALL BE COMBINED WITH THOSE
 OF VOTING GROUP (B).
 
    UNLESS A MAJORITY OF THE VOTES OF VOTING GROUP (A) IS CAST FOR
 INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, THEY WILL
 BE TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT,
 AND AN APPROPRIATE CERTIFICATION WILL BE ISSUED INDICATING WHETHER THE
 AFGE, THE NTEU OR NEITHER WAS SELECTED BY THE PROFESSIONAL EMPLOYEES
 UNIT.
 
    THE UNIT DETERMINATION IN THE SUBJECT CASE THUS IS BASED IN PART UPON
 THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES.  HOWEVER,
 THE AUTHORITY MAKES THE FOLLOWING FINDINGS IN REGARD TO THE APPROPRIATE
 UNIT:
 
    1.  IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION
 IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, THE AUTHORITY FINDS
 THAT THE FOLLOWING EMPLOYEES CONSTITUTE A UNIT APPROPRIATE FOR THE
 PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 7112 OF
 THE STATUTE:
 
    ALL PROFESSIONAL AND NONPROFESSIONAL GENERAL SCHEDULE AND WAGE GRADE
 EMPLOYEES INCLUDING
 
    SEASONAL (WAE) AND PART-TIME EMPLOYEES EMPLOYED AT THE INTERNAL
 REVENUE SERVICE, NORTH
 
    ATLANTIC SERVICE CENTER, ANDOVER, MASSACHUSETTS, EXCLUDING ALL
 MANAGEMENT OFFICIALS,
 
    SUPERVISORS, GUARDS, AND EMPLOYEES DESCRIBED IN 5 U.S.C.  7112(B)(2),
 (3), (4), (6) AND (7).
 
    2.  IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
 INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, THE
 AUTHORITY FINDS THAT THE FOLLOWING TWO GROUPS OF EMPLOYEES CONSTITUTE
 SEPARATE UNITS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
 WITHIN THE MEANING OF SECTION 7112 OF THE STATUTE:
 
    (A) ALL PROFESSIONAL GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES
 INCLUDING SEASONAL (WAE) AND
 
    PART-TIME EMPLOYEES, EMPLOYED AT THE INTERNAL REVENUE SERVICE, NORTH
 ATLANTIC SERVICE CENTER,
 
    ANDOVER, MASSACHUSETTS, EXCLUDING ALL NONPROFESSIONAL GENERAL
 SCHEDULE AND WAGE GRADE
 
    EMPLOYEES, MANAGEMENT OFFICIALS, SUPERVISORS, GUARDS AND EMPLOYEES
 DESCRIBED IN 5
 
    U.S.C. 7112(B)(2), (3), (4), (6) AND (7).
 
    (B) ALL NONPROFESSIONAL GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES
 INCLUDING SEASONAL (WAE)
 
    AND PART-TIME EMPLOYEES, EMPLOYED AT THE INTERNAL REVENUE SERVICE,
 NORTH ATLANTIC SERVICE
 
    CENTER, ANDOVER, MASSACHUSETTS, EXCLUDING ALL PROFESSIONAL GENERAL
 SCHEDULE AND WAGE GRADE
 
    EMPLOYEES, MANAGEMENT OFFICIALS, SUPERVISORS, GUARDS AND EMPLOYEES
 DESCRIBED IN 5
 
    U.S.C. 7112(B)(2), (3), (4), (6) AND (7).
 
                           DIRECTION OF ELECTION
 
    ELECTIONS BY SECRET BALLOT SHALL BE CONDUCTED AMONG EMPLOYEES IN THE
 VOTING GROUPS DESCRIBED ABOVE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
 60 DAYS FROM THE DATE BELOW.  THE APPROPRIATE REGIONAL DIRECTOR SHALL
 SUPERVISE THE ELECTION, SUBJECT TO THE AUTHORITY'S RULES AND
 REGULATIONS.  ELIGIBLE TO VOTE ARE THOSE IN THE VOTING GROUPS 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 WHETHER THEY DESIRE
 TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2078, AFL-CIO;  BY
 THE NATIONAL TREASURY EMPLOYEES UNION;  OR BY NEITHER.
 
    ISSUED, WASHINGTON, D.C., JUNE 10, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY