---

48 FLRA No. 68

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE INTERIOR

REDWOOD NATIONAL PARK

CRESCENT CITY, CALIFORNIA

(Activity)

and

THOMAS R. DORE

(Petitioner)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2091, INDEPENDENT

(Labor Organization/Incumbent)

SF-DR-30039

_____

ORDER DENYING APPLICATION FOR REVIEW

October 12, 1993

_____

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 Incumbent under section 2422.17(a) of the Authority's Rules and Regulations. The Regional Director (RD) found that the current collective bargaining agreement between the Activity and the Incumbent does not contain clear and unambiguous language setting forth the effective date of the agreement so as to constitute a bar to the processing of a representation petition. Therefore, the RD found that the petition filed by the Petitioner was timely filed and he directed an election among employees in the unit.

The Incumbent seeks review of the RD's decision. No opposition to the Incumbent's application was filed. For the reasons discussed below, we find that the Incumbent has not established any basis for review of the RD's decision and order. Accordingly, we will deny the application for review.

II. Background and RD's Decision

The petition in this case was filed by an individual and seeks an election to determine whether the Incumbent should continue as the exclusive representative of a unit of Activity employees.⁽¹⁾ The petition was filed on April 9, 1993, and was supported by evidence of interest sufficient to comply with the requirement of section 7111(b)(1)(B) of the Federal Service Labor-Management Relations Statute (the Statute). The Incumbent was automatically granted intervenor status and no other request for intervention was submitted or granted. The only issue before the RD was whether the petition was timely filed or whether the collective bargaining agreement between the Activity and the Incumbent served as a bar to the petition. The Activity took no position on the issue.

The RD found that both the effective date and duration of the agreement were covered in Article 25, Section 1 of the parties' agreement, which provided:

The effective date of this agreement will be the date of approval by the Director of Personnel, U.S. Department of the Interior, as provided by 5 USC 7114(c)(1), (2), and (3). It will be in effect for three years from the date of signing. The agreement will be automatically renewed for an additional two year period and on every second anniversary thereafter . . . [.]

RD's decision at 2.

The RD found that on May 5, 1988, representatives of the Activity and the Incumbent forwarded their initial collective bargaining agreement for agency head review; that the Agency head approved the agreement on June 2, 1988; and that this hand-written date appears on the signature page of the agreement. Thus, the RD found that the agreement was approved within 30 days of the date it was forwarded for agency head review. Accordingly, the RD concluded that the effective date of the original agreement was June 2, 1988.

When the agreement was reproduced, however, the date of the Agency head's approval was inadvertently "smudged or altered" with an extra mark on the line on which the approval date appears. Id. The RD found that "[t]his extra mark could be interpreted as a number appearing in front of the day of the month." Id. at 3. The RD concluded, therefore, that the date which appears in the reproduced copies of the agreement could be interpreted as a date other than June 2, 1988.

Pursuant to its terms, the parties' agreement was automatically renewed for a two-year period. The petition in this case was filed on April 9, 1993, during this two-year period. On the petition, the Petitioner listed the expiration date of the renewed agreement as June 12, 1993.⁽²⁾ The RD found that the filing of the petition would fall: (1) within the 45-day open period of a two-year agreement with an effective date of June 12, 1991; (2) outside the open period of a two-year agreement with an effective date of June 2, 1991; and (3) outside the open period of a two-year agreement with an effective date of June 5, 1991, which would be the effective date of the agreement if the Agency head had not acted within 30 days of execution by the local parties under section 7114(c) of the Statute.

The Incumbent conceded before the RD that a reasonable person may have read the date of approval of the contract as either June 2 or June 12, 1988. However, the Incumbent contended that a reasonable person would have noticed that the agreement was forwarded for agency head review on May 5, 1988. Therefore, according to the Incumbent, a reasonable person would have known that regardless of the date of approval, the agreement would have been effective 30 days after May 5, 1988. In addition, the Incumbent asserted that because Article 25, Section 1 of the agreement specifically cites section 7114(c)(1), (2), and (3) of the Statute, the Petitioner should have been able to determine for himself that the original effective date of the agreement could not legally have been June 12, 1988.

The RD noted that the Authority has held that under section 7114(c) of the Statute any negotiated agreement is subject to agency head approval within 30 days of the date of execution and that if the agreement is not approved or disapproved within 30 days, the agreement automatically takes effect on the thirty-first day. In this regard, the RD cited Fort Bragg Association of Teachers and U.S. Department of the Army, Fort Bragg Schools, Fort Bragg, North Carolina, 44 FLRA 852 (1992) (Ft. Bragg); Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795 (1991); and U.S. Department of the Army, Watervliet Arsenal, Watervliet, New York, 34 FLRA 98 (1989). Therefore, the RD found that the Incumbent was correct in contending that the agreement could not have had an effective date of June 12, 1988.

However, the RD further noted that to serve as a bar to a petition a collective bargaining agreement must contain a clear and unambiguous effective date and language setting forth its duration so that any potential petitioner may determine when the 45-day open period will occur.⁽³⁾ In this case, the RD noted that the agreement contains a smudge or extra mark that makes it impossible to determine whether the agreement was approved within 30 days of execution or whether the agreement improperly was approved beyond that 30-day period. The RD concluded that, in these circumstances, the agreement does not contain a clear and unambiguous effective date that would enable a potential challenging party to determine the 45-day open period when a petition could be timely filed. The RD cited Department of the Army, U.S. Army Concord District Recruiting Command, Concord, New Hampshire, 14 FLRA 73 (1984) (Concord); and U.S. Department of Housing and Urban Development, Newark Office, Newark, New Jersey, 37 FLRA 1122 (1990).

The RD found that the circumstances of this case were distinguishable from those involved in U.S. Department of Health and Human Services, Social Security Administration, 44 FLRA 230 (1992) (SSA). The RD noted that in SSA the Authority held that the determination of the effective date of a negotiated agreement required reference to another document, which did not, in the circumstances of that case, preclude the agreement from serving as a bar to a representation petition. The RD quoted the following passage from SSA as the Authority's clarification of its standard for determining whether a collective bargaining agreement serves as a bar to a petition:

Under the Statute, local agreements are subject to review by the agency head under section 7114(c) of the Statute. Therefore, as in this case, the effective date of a collective bargaining agreement may depend on the date of agency head approval and the date of agency head approval may have to be ascertained from a document other than the document signed locally by the parties. If a reading of a collective bargaining agreement in conjunction with the document containing the agency head's approval establishes a clear and unambiguous effective date, the agreement may serve as a bar to a petition . . . [.]

RD's decision at 4.

The RD found that in this case although the collective bargaining agreement contains the Agency head's approval, due to an error in reproduction the agreement itself contains an ambiguity concerning the date of that approval. The RD concluded that SSA does not require a potential challenger to refer to another document in order to resolve such an ambiguity, and that, under SSA, a bar will be found only where unambiguous documents read together establish an effective date. The RD concluded that in this case the collective bargaining agreement is ambiguous as to the effective date and a potential petitioner could not with accuracy determine when the statutory open period would occur. Accordingly, citing Florida (Air) National Guard, St. Augustine, Florida, 43 FLRA 1475 (1992) (Florida ANG), the RD found that the parties' agreement was not a bar to the petition.

III. Incumbent's Application for Review

The Incumbent first contends that the RD's decision was clearly erroneous regarding the factual issue of whether the effective date of the agreement was clear and unambiguous and that the RD's decision prejudicially affected its rights. In this regard, the Incumbent contends that there can be no ambiguity between a "legal effective date and an illegal effective date." Application at 1. The Incumbent concedes that the date written on the agreement could be June 2, 1988, or June 12, 1988, but argues that under section 7114(c) of the Statute, only the June 2, 1988 date could be the valid date for agency head approval. The Incumbent also argues that the effective date could have been easily determined by any potential challenging party because the date of execution by the local parties is clearly noted as May 5, 1988 on the same page as the date of agency head approval. The Incumbent contends that if the agency head had actually approved the agreement on June 12, 1988, the approval would have been invalid and, in accord with both the Statute and Ft. Bragg, the effective date would have been established as June 5, 1988, 31 days after agreement by the local parties.

Next, the Incumbent contends that the RD's decision constitutes a substantial departure from Authority precedent. The Incumbent claims that the RD's decision regarding the ambiguity of the effective date is significantly different from the Authority's ruling in Concord. The Incumbent argues that in Concord the agreement identified two dates, the date of execution by the local parties and the date of agency head approval, either of which could have been a valid effective date. The Incumbent contends that the RD departed from Concord in this case by determining that an ambiguity existed regarding two dates, only one of which could have been a valid effective date. In addition, the Incumbent argues that in Concord each of the parties had agreed to different dates as the effective date of the agreement, while in this case neither of the parties was aware of or intended the ambiguity in dates to occur.

IV. Analysis and Conclusions

We conclude, for 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.

The Authority held in Concord that "to serve as a bar, a negotiated 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." 14 FLRA at 75; see also Florida ANG, 43 FLRA at 1481. It is undisputed that the signature page of the reproduced agreement contains an effective date that is neither clear nor unambiguous. Applying Concord and other Authority decisions to the facts and circumstances of this case, the RD reasonably concluded that a potential challenging party could not ascertain whether the agreement became effective on June 2 or June 12, 1988. Thus, the Petitioner could not have determined with certainty the date on which the Agency head approved and signed the parties' agreement.

The Incumbent argues that it should have been clear to the Petitioner that only one of the two possible dates could have occurred within 30 days of local execution and that, therefore, there was no ambiguity. Although we agree that this is the more likely scenario, we recognize that it is conceivable that the Agency head could have timely disapproved the collective bargaining agreement within the 30-day period, but later come to an agreement with the Incumbent and approved the agreement on June 12. So long as such an outcome was possible, in the circumstances of this case the effective date was ambiguous and did not permit the Petitioner to determine with certainty when the open period would occur.

Thus, the Incumbent has not shown, as contended, that the RD's findings on substantial factual issues are clearly erroneous or that the RD's decision raises a substantial question of law or policy because it departs from Authority precedent. Rather, the Incumbent's application for review expresses mere disagreement with the RD's findings and application of Authority precedent and, as such, provides no basis for granting review of the RD's decision. Florida ANG.

V. Order

The application for review of the RD's decision and order is denied.

---

---

---

FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. On May 17, 1987, the Incumbent was certified as the exclusive representative of the following unit:

INCLUDED: All professional and nonprofessional employees of the Redwood National Park.

EXCLUDED: Management officials, supervisors and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7).

RD's decision at 2.

2. During the initial term of the agreement, the Petitioner filed a petition seeking to decertify the Incumbent. On that petition, the Petitioner listed the expiration date of the original agreement as June 22, 1991. However, no contract bar or timeliness issue was raised in that proceeding. The parties entered into an election agreement and an election was held and won by the Incumbent.

3. Pursuant to section 2422.3(d)(1) of the Authority's Rules and Regulations:

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.

---