[ v16 p281 ]
16:0281(42)DR
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).