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12:0183(46)RO
The decision of the Authority follows:
12 FLRA No. 46
DEPARTMENT OF HEALTH AND HUMAN SERVICES
REGION IX, SAN FRANCISCO, CALIFORNIA
Activity
and
NATIONAL TREASURY EMPLOYEES UNION
Petitioner
and
LOCAL 3159, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Intervenor
Case No. 70-6450(RO)
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under section 6 of Executive Order 11491,
as amended, a hearing was held before a hearing officer of the
Authority. /1/ The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
The functions of the Assistant Secretary of Labor for
Labor-Management Relations under Executive Order 11491, as amended, in a
matter such as here involved, were transferred to the Authority under
section 304 of Reorganization Plan No. 2 of 1978 (43 F.R. 36040), which
transfer of functions is implemented by section 2400.2 of the
Authority's Rules and Regulations. The Authority continues to be
responsible for the performance of these functions as provided in
section 7135(b) of the Statute.
Upon the entire record in this case, including the parties'
contentions, the Authority finds:
NTEU seeks to represent a unit of all professional and
nonprofessional employees of the Department of Health and Human
Services, Region IX, which is currently represented by the Intervenor,
Local 3159, American Federation of Government Employees, AFL-CIO (AFGE).
/2/ Relying upon Department of Health, Education and Welfare, Office of
the Secretary, 3 FLRA 866 (1980), AFGE contends that the Authority
should dismiss NTEU's petition because it was filed prior to January 11,
1979, the effective date of the Statute. In that case, the Authority
originally dismissed without prejudice a unit consolidation (UC)
petition filed by the American Federation of Government Employees,
AFL-CIO, seeking to consolidate eight units within the Department of
Health, Education and Welfare, Office of the Secretary, including the
unit sought by NTEU herein. In dismissing that petition, the Authority
noted that the new Department of Education Organization Act would create
significant changes in the proposed consolidated unit and that the
Statute had become effective after the filing of the UC petition.
Thereafter, the United States District Court for the District of
Columbia, citing section 902(b) of the Civil Service Reform Act of 1978
(CSRA), /3/ vacated the Authority's Decision and ordered the case
reopened for reconsideration under the Executive Order. American
Federation of Government Employees, AFL-CIO, et al. v. Haughton, et al.
Civil Action Number 81-0168 (D.D.C. June 24, 1981). The Court also
enjoined the Authority from taking any action regarding representation
for purposes of collective bargaining of Department of Health and Human
Services employees pending reconsideration of the UC petition.
Thereafter, the Authority issued its decision on remand in Department of
Health and Human Services, Office of the Secretary, 11 FLRA No. 21
(1983), in which it dismissed the UC petition. With regard to the
instant petition, and pursuant to section 902(b) of the CSRA, the
Authority concludes that it must now be processed unless it was untimely
filed due to the existence of an agreement bar, as further contended by
AFGE.
Specifically, AFGE contends that, as neither the Activity nor AFGE
had sought to renegotiate their collective bargaining agreement, such
agreement, by its terms, automatically renewed itself and thus was a bar
to NTEU's subsequently filed petition. /4/ The Authority disagrees.
Section 202.3(c) of the Assistant Secretary's Rules and Regulations
establishes those requirements that must be met for determining whether
NTEU's petition was timely filed. /5/ The original agreement between
AFGE and the Activity was effective December 16, 1975. On October 14,
1977, during that period of time under the agreement where either party
might seek renegotiations, the parties signed a memorandum of
understanding to extend that period for eight additional days to October
24, 1977, in order to give AFGE more time to decide whether to seek
renegotiations. On October 20, 1977, the parties signed a second and
more formal Memorandum of Agreement extending the period to February 15,
1978 to "prevent the automatic renewal of the Agreement . . . "
Paragraph 2 of that Memorandum states as follows:
Notwithstanding any provision to the contrary in the Agreement,
the Agreement shall remain in full force and effect, and its terms
shall continue, for such period of time as necessary to permit the
Union to meet all of the conditions set forth in paragraph 1 above
(requirements of Article XXIII, Section B), and, if all of those
conditions are met (so that the Agreement is not automatically
renewed for a 3-year term), the Agreement shall terminate on the
50th day after the date the Union submits its Notice . . . , but
may be extended by mutual consent.
Thereafter, the parties signed five additional memoranda of agreement,
for the same intended purpose of extending the period and the duration
of the 1975 agreement. On January 8, 1980, the parties executed their
final memorandum in which they modified Paragraph 1(a) of the October
20, 1977 memorandum to read as follows:
1. A notice by the union of its intention to modify the
collective bargaining agreement between the union and employees
effective December 16, 1975 ("The Agreement") shall be deemed to
have been presented to the Employees within the time limits
prescribed by Article XXIII, Section B, of the Agreement to
prevent the automatic renewal of the Agreement if all of the
following conditions are met:
(a) Such notice is presented within 20 calendar days of the
final administrative resolution by the Federal Labor Relations
Authority of Case No. 22-09477(UC) and Case No. 70-6450(RO),
should the union continue to be the exclusive representative of
the employees of the Employer.
During the period covered by these extensions, NTEU filed the instant
petition. No evidence was presented that either party gave the
appropriate notice and submitted proposals for renegotiations prior to
the hearing herein, or that the parties in fact commenced negotiations.
The Authority finds that NTEU's petition is timely within the meaning
of section 202.3(c) of the Assistant Secretary's Rules and Regulations.
In so finding, the Authority notes particularly that the parties, by
mutually agreeing in consecutive memoranda to extend beyond January 8,
1980, for an indefinite duration, the period for renegotiations
contained in Article XXIII, Section B of their agreement, in effect
prevented the automatic renewal of that agreement. Further, the
parties' actions in signing such memoranda indicate that neither party
considered the automatic renewal clause to have taken effect. Thus, the
Authority finds that, as the agreement did not renew itself prior to
January 8, 1980, but instead was extended by the parties for an
indefinite period thereafter, no renewal agreement existed to bar from
consideration by the Authority, pursuant to section 202.3(c), NTEU's
petition filed on October 10, 1978.
Moreover, the Authority finds that the series of memoranda of
agreement executed by the parties over a period of years in order to
extend the time for proposing negotiations under the parties' 1975
agreement and to continue the terms of that agreement for such period,
did not serve as a bar to NTEU's petition. In the Authority's view,
where parties execute a series of extension agreements in order to
provide an opportunity for the parties to propose renegotiations, and 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 filed timely, since such a temporary stopgap arrangement
does not constitute a final agreement of fixed duration and lacks the
stability sought to be achieved by the agreement bar principle. /6/
The parties stipulated and the Authority finds that the following
unit is appropriate for the purpose of exclusive recognition under
section 10(b) of Executive Order 11491, as amended: /7/
Included: All professional and nonprofessional employees of
the Department of Health and Human Services, Region IX, located in
San Francisco, California.
Excluded: All Field or District Office employees, Social
Security Administration employees under the Assistant Regional
Commissioner for Field Operations, employees in the Stay in School
Program, Commissioned Officers of the Public Health Service,
Social Security Administration employees under the Assistant
Regional Commissioner for Field Assessment, guards, management
officials, employees engaged in Federal personnel work in other
than a purely clerical capacity, and supervisors.
However, it is noted that this unit includes professional employees
and that the Authority is prohibited by section 10(b)(4) of Executive
Order 11491, as amended, from including professional employees in a unit
with employees who are not professionals unless a majority of the
professionals votes for inclusion in such a unit. Accordingly the
desire of the professional employees as to inclusion with
nonprofessional employees must be ascertained. The Authority therefore
directs separate elections in the following groups:
Voting Group (a): All professional employees of the Department
of Health and Human Services, Region IX, located in San Francisco,
California, excluding all nonprofessional employees, all Field or
District Office employees, Social Security Administration
employees under the Assistant Regional Commissioner for Field
Operations, employees in the Stay in School Program, Commissioned
Officers of the Public Health Service, Social Security
Administration employees under the Assistant Regional Commissioner
for Field Assessment, guards, management officials, employees
engaged in Federal personnel work in other than a purely clerical
capacity, and supervisors.
Voting Group (b): All nonprofessional employees of the
Department of Health and Human Services, Region IX, located in San
Francisco, California, excluding all professional employees, Field
or District Office employees, Social Security Administration
employees under the Assistant Regional Commissioner for Field
Operations, employees in the Stay in School Program, Commissioned
Officers of the Public Health Service, Social Security
Administration employees under the Assistant Regional Commissioner
for Field Assessment, guards, management officials, employees
engaged in Federal personnel work in other than a purely clerical
capacity, and supervisors.
The employees in Voting Group (b) will be polled as to whether they
desire to be represented by AFGE, by NTEU, or by neither.
The employees in Voting Group (a) will be asked two questions on
their ballot: (1) whether they wish to be included with nonprofessional
employees for the purpose of exclusive recognition, and (2) whether they
wish to be represented for the purpose of exclusive recognition by AFGE,
by NTEU, or by neither. In the event that a majority of the valid votes
is cast in favor of inclusion in the same unit as the nonprofessional
employees, such ballots shall be combined with those of Voting Group
(b).
Unless a majority of the valid votes of Voting Group (a) is cast for
inclusion in the same unit with 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 AFGE,
NTEU, or neither was selected by the professional employee unit.
Thus, the unit determination in the subject case 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 a unit with nonprofessional employees, the Authority finds that the
following employees constitute a unit appropriate for the purpose of
exclusive recognition within the meaning of section 10(b) of the Order:
All professional and nonprofessional employees of the
Department of Health and Human Services, Region IX, located in San
Francisco, California, excluding all Field or District Office
employees, Social Security Administration employees under the
Assistant Regional Commissioner for Field Operations, employees in
the Stay in School Program, Commissioned Officers of the Public
Health Service, Social Security Administration employees under the
Assistant Regional Commissioner for Field Assessment, guards,
management officials, employees engaged in Federal personnel work
in other than a purely clerical capacity, and supervisors.
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
units appropriate for the purpose of exclusive recognition within the
meaning of section 10(b) of the Order:
(a) All professional employees of the Department of Health and
Human Services, Region IX, located in San Francisco, California,
excluding all nonprofessional employees, Field or District Office
employees, Social Security Administration employees under the
Assistant Regional Commissioner for Field Operations, employees in
the Stay in School Program, Commissioned Officers of the Public
Health Service, Social Security Administration employees under the
Assistant Regional Commissioner for Field Assessment, guards,
management officials, employees engaged in Federal personnel work
in other than a purely clerical capacity, and supervisors.
(b) All nonprofessional employees of the Department of Health
and Human Services, Region IX, located in San Francisco,
California, excluding all professional employees, Field or
District Office employees, Social Security Administration
employees under the Assistant Regional Commissioner for Field
Operations, employees in the Stay in School Program, Commissioned
Officers of the Public Health Service, Social Security
Administration employees under the Assistant Regional Commissioner
for Field Assessment, guards, management officials, employees
engaged in Federal personnel work in other than a purely clerical
capacity, and supervisors.
DIRECTION OF ELECTION
An election by secret ballot shall be conducted among employees in
the voting group 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 groups who were employed during
the payroll period immediately preceding the date of this decision,
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 to vote shall vote on whether
they desire to be represented for the purpose of exclusive recognition
by Local 3159, American Federation of Government Employees, AFL-CIO; by
the National Treasury Employees Union; or by neither. Issued,
Washington, D.C., June 13, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The National Treasury Employees Union (NTEU) originally filed
this representation petition on October 16, 1978, under Executive Order
11491, as amended. Thereafter, NTEU filed an amended petition with the
Authority on September 12, 1980, along with an updated showing of
interest.
/2/ The unit description appears as amended at the hearing and now
conforms to the unit presently represented by AFGE. At the hearing,
AFGE challenged the adequacy and validity of NTEU's submitted showing of
interest in light of the foregoing amendment to the unit description.
Section 202.2(f) of the Assistant Secretary's Rules and Regulations
provides that the Area Administrator shall determine the adequacy of the
showing of interest administratively, and such decision shall not be
subject to collateral attack at a unit or representation hearing.
Accordingly, AFGE's challenge is hereby denied.
/3/ Section 902(b) states in pertinent part:
No provision of this Act shall affect any administrative
proceedings pending at the time such provision takes effect.
Orders shall be issued in such proceedings and appeals shall be
taken therefrom as if this Act had not been enacted.
/4/ Article XXIII of the agreement states:
Section A. This Agreement shall be in full force and effect for
a period of two (2) years from the date of final approval by the
parties.
Section B. At the conclusion of the term of this Agreement, it
shall be renewed for successive three (3) year terms unless either
party shall notify the other of its intention to modify the
Agreement.
Such notice must be presented in writing and within a period of
no more than 90 days or less than 60 days prior to the termination
date of this agreement. Such notice must be accompanied by
written proposals covering all proposed additions or modifications
of this Agreement. The other party shall have 45 days to submit
written proposals or counter-proposals.
Section C. Where the renegotiation of this agreement is pending
or in process, the Employer agrees to continue the provisions of
Article 20, and the Union agrees to adhere to the provisions of
Article IV, Section N.
Section D. If negotiations are not concluded prior to the
expiration date, this agreement shall terminate ninety (90) days
after its anniversary date but may be extended by mutual consent.
/5/ Section 202.3(c)(1) of the Assistant Secretary's Rules and
Regulations states:
Sec. 202.3 Timeliness of petition
. . . .
(c) When an agreement covering 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 be considered timely when filed as follows:
(1) Not more than ninety (90) days and not less than sixty (60)
days prior to the termination date of an agreement having a term
of three (3) years or less from the date it was signed and dated
by the activity and the incumbent exclusive representative(.)
/6/ Department of the Treasury, Customs Service, St. Thomas, Virgin
Islands, 7 A/SLMR 1000 (1977); Department of Housing and Urban
Development, Greensboro Area Office, Greensboro, North Carolina, 7
A/SLMR 252 (1977); and U.S. Department of the Air Force, Holloman Air
Force Base, Alamogordo, New Mexico, 3 A/SLMR 23 (1973).
/7/ As the original petition herein was filed under Executive Order
11491, as amended, and before the effective date of the Statute, in
conformity with section 902(b) of the CSRA, the instant case was decided
solely on the basis of Executive Order 11491, as amended, as if the
Statute had not been enacted. The decision and direction of election
does not prejudge in any manner either the meaning or application of
related provisions in the Statute or the result which would be reached
by the Authority if the case had arisen under the Statute rather than
the Executive Order.