15:0786(149)DR - National Park Service, Harpers Ferry, WV and Bruce Geyman and NFFE Local 1982 -- 1984 FLRAdec RP

 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.