[ v44 p230 ]
44:0230(20)RO
The decision of the Authority follows:
44 FLRA No. 20
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
(Activity)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO
(Labor Organization/Petitioner)
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
(Labor Organization/Intervenor)
3-RO-00014
DECISION AND ORDER ON REVIEW
March 3, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority for review of the Regional Director's Decision and Order dismissing the petition for exclusive recognition filed by the Petitioner (AFGE). AFGE sought to represent a unit of nonprofessional employees of the Activity (SSA). The Regional Director found that AFGE's petition was untimely filed because it was barred by a Memorandum of Understanding (MOU) between SSA and the Intervenor, the incumbent labor organization (NFFE).
AFGE filed an application for review of the Regional Director's decision. Susbsequently, we granted review pursuant to section 2422.17(c)(1) of the Authority's Rules and Regulations. We stated that it appears that substantial questions of law or policy are raised by the decision because of the absence of, or departure from, Authority precedent with respect to whether the NFFE-SSA MOU constituted a "collective bargaining agreement" within the meaning of section 7111(f)(3) which could bar the filing of a petition for exclusive recognition. We noted that the parties were permitted to submit briefs on the issue found meritorious for review. In response to our order, AFGE, NFFE, and SSA filed supplemental briefs.
For the reasons given below, we find that AFGE's petition was untimely filed because it was barred by an agreement between SSA and NFFE. We affirm the Regional Director's dismissal of AFGE's petition as untimely filed and we deny AFGE's request that an election be ordered.
II. Preliminary Matter
In their supplemental briefs, NFFE and SSA moved to strike from the record a letter dated May 15, 1991, from AFGE's National President concerning the application for review. NFFE and SSA asserted that the letter had not been served on them in the manner required by the Authority's Regulations. SSA further asserted that the letter was untimely filed under the Regulations.
By Order of July 29, 1991, the Authority directed AFGE to show whether the May 15, 1991 letter had been properly served on NFFE and SSA. The Authority stated that AFGE "may submit the mail receipt showing" such service. AFGE responded on August 7, 1991, and stated that due to "inadvertent error copies [of the May 15 submission] were not served on the designated representatives" of the other parties. AFGE also stated that "[t]he May 15, 1991, letter was not meant as an integral part of AFGE's May 13, 1991, Application for Review since it was sent after the due date for filing." Contending that the other parties would not be harmed by the Authority's acceptance of the May 15 submission, AFGE stated that it would not be opposed to the Authority granting the other parties time to respond to the submission.
Because the May 15 submission was not properly served as required by our Regulations, and because the submission was not timely with respect to the due date for an application for review, we have not considered the May 15 submission, or any of the references to that submission contained in AFGE's supplemental brief, in resolving the application for review.
III. Background and Regional Director's Decision
In 1980, NFFE was certified as the exclusive representative of a consolidated, nationwide unit of approximately 900 nonprofessional employees employed by SSA at various of its District and Branch Offices.
Since 1982, NFFE and SSA have entered into a series of negotiated agreements covering the bargaining unit. In 1987, the parties executed a National Agreement, effective March 1, 1987, for a 3-year period to expire on February 28, 1990. The agreement was to renew automatically thereafter for 1-year periods unless one of the parties gave timely written notice to modify the agreement.
On September 14, 1989, NFFE notified SSA of its intent to modify the agreement. The agreement expired by its terms on February 28, 1990. On May 11, 1990, SSA proposed that it and NFFE execute a Memorandum of Understanding (MOU) agreeing to renew the expired National Agreement for a new 3-year term and agreeing to reopen the agreement for the limited purpose of renegotiating Article 14 (safety and health), Article l7 (performance standards and evaluation), and Article 23 (flextime and hours of work). On May 14, 1990, NFFE agreed to SSA's proposal. On May 15, NFFE signed the MOU and the agreement was approved the same day by SSA's designated official in accordance with section 7114(c) of the Statute.
The MOU executed by NFFE and SSA consists of five paragraphs. Paragraphs 1-3 are as follows:
1. The parties agree that the National Agreement, effective March 1, 1987, shall be renewed for a three year term, effective as of the date of approval by the head of the agency in accordance with 5 U.S.C. 7114(c) or on the 31st day following execution of this Memorandum, whichever is sooner.
2. The agency shall distribute an official notice to all bargaining unit employees which shall state:
The National Federation of Federal Employees and the Social Security Administration have agreed to renew the National Agreement effective March 1, 1987 for an additional three year period which has commenced on May 15, 1990. The parties have also agreed to meet in the near future to negotiate over modifications to the National Agreement. Employees are advised to retain this notice with their copy of the National Agreement.
3. The parties mutually agree to reopen the following Articles under the terms of Article 31, Section 3 of the existing National Agreement, as renewed: Articles 14, 17 and 23. Such reopening is conditioned upon the Agency's receipt of written notice within 90 days of the effective date of [this] agreement, with the exception of Article 17. Notice to reopen Article 17 is required within 120 days of the conclusion of the work of the Commissioner's Task Force on Performance Standards.
Regional Director's Decision (Decision) at 4-5. The fourth paragraph of the MOU concerns the Agency's agreement to distribute copies of the MOU, and the fifth paragraph provides that the agreement may be modified or supplemented by mutual agreement and is enforceable under the terms of the agreement.
On May 22, 1990, AFGE filed its petition in this case, seeking to represent a unit of employees coextensive with the unit for which NFFE was certified. The parties agreed and the Regional Director found that the petitioned-for unit is appropriate under the Statute. The issue before the Regional Director was whether AFGE's petition was barred by the MOU and was, therefore, untimely.
AFGE argued before the Regional Director that the MOU was not a bar to the petition because it: (1) was not properly executed prior to the filing of the petition; (2) was not ratified by NFFE's membership; and (3) left open for negotiations at a later time certain terms and conditions of employment.
The Regional Director rejected these arguments. Citing Department of the Army, U.S. Army Concord District Recruiting Command, Concord, New Hampshire, 14 FLRA 73 (1984) (Concord), the Regional Director stated that "[i]n order to constitute a bar to a challenging petition, it is well-settled that a negotiated agreement must contain a clear and unambiguous effective date (prior to the filing of the petition) and language setting forth its duration so that any potential challenging party may determine when the statutory open period will occur." Decision at 6 (footnote omitted).
The Regional Director found that the MOU specifically stated that "the National Agreement shall be renewed for a three year term, effective as of the date of approval by the agency head[.]" Id. He further found that the evidence established that the MOU was approved by SSA on May 15, 1990. The Regional Director concluded, therefore, "that the renewed negotiated agreement became a final and binding agreement with a fixed duration that was in effect on May 15, l990, prior to the filing of the subject petition in this case." Id.
In support of his conclusion, the Regional Director noted that "the MOU was not merely a temporary, stopgap agreement or an extension of the parties' previous negotiated agreement until they completed their negotiations for a new agreement." Id. (footnote omitted). The Regional Director further found that "the MOU was not ambiguous," and that "any prospective petitioner, such as AFGE, could easily determine the statutory open period" for filing a petition. Id. at 6-7. The Regional Director also noted that the evidence showed that "the MOU was executed and approved by properly authorized representatives of the SSA and NFFE[.]" Id. at 7. The Regional Director also ruled that "AFGE's argument that the SSA and NFFE executed the MOU in order to create the protection of an agreement bar is not relevant to the timeliness issue in this case." Id. at 7 n.6.
On the issue of ratification of the MOU, the Regional Director found that NFFE's constitution contains no requirement for membership ratification of negotiated agreements. He also found that, although the 1987 National Agreement provided for ratification, the MOU did not condition the finality or effectiveness of the agreement on ratification and did not expressly incorporate the requirement of the 1987 Agreement into the MOU. The Regional Director concluded that "prior ratification of the MOU by NFFE's membership was not required as a condition precedent for the MOU to constitute a bar" to AFGE's petition. Id. at 8.
Finally, the Regional Director rejected AFGE's argument that the MOU could not bar an RO petition because the MOU provided for reopening as to Articles 14, 17, and 23.
The Regional Director found that the MOU expressly limited the scope of the matters that could be reopened for negotiations and contained final agreement for all other terms and conditions of employment. The Regional Director further found that, apart from the three articles that could be reopened,
[t]he renewed National Agreement contained agreed upon provisions for all other terms and conditions of employment including, inter alia: grievance and arbitration, disciplinary and adverse actions, official time, union dues allotments, awards, promotion, overtime, reductions in force, training, employee assistance program, leave provisions, union rights, unit recognition and the negotiation of local supplemental agreements.
Id. Under these circumstances, the Regional Director found that "the MOU which renewed the NFFE-SSA National Agreement contained numerous substantial terms and conditions of employment which clearly defined the rights and obligations of the parties and are sufficient to stabilize the parties' bargaining relationship." Id. at 8-9 (footnote omitted). In applying this standard to make his findings, the Regional Director relied upon decisions of the National Labor Relations Board (NLRB), as discussed below.
The Regional Director found that, when AFGE filed its petition on May 22, 1990, the MOU had already become effective on May 15, 1990, for a 3-year term. The Regional Director concluded that the petition, therefore, "was filed when the agreement had been in effect less than three years and was not filed during the 'open period' provided for in section 7111(f)(3)(B) of the Statute and section 2422.3(d)(1) of the Authority's Rules and Regulations." Id. at 9. Consequently, the Regional Director found that AFGE's petition was untimely filed because it was barred by the MOU.
IV. The MOU Constitutes a "Lawful Written Collective Bargaining Agreement" Within the Meaning of Section 7111(f)(3) of the Statute
A. Positions of the Parties
l. AFGE
AFGE contends that the MOU was not a substantive agreement which could constitute a bar because bargaining had not been completed and some articles were left open for negotiations. AFGE asserts that "only entire collective bargaining agreements may be approved or disapproved" by agency heads and, therefore, the MOU cannot bar AFGE's petition. AFGE cites U.S. Department of the Army, Watervliet Arsenal, Watervliet, New York, 34 FLRA 98 (1989) (Watervliet) in support of its argument. Application for Review (Application) at 11-12 (footnote omitted).
AFGE acknowledges that the Authority's contract bar doctrine has a stabilizing effect on labor relations and that an agreement that is a valid bar can include certain contingencies, such as a stipulation "to specifically set certain provisions totally aside for reopening." AFGE's Supplemental Brief (AFGE) at 5-6. AFGE contends, however, that the NFFE-SSA MOU goes beyond such allowances because the MOU provides that the parties have renewed their National Agreement, but also provides expressly that negotiations will be reopened as to three articles and provides generally that the MOU may be modified or supplemented by mutual agreement.
AFGE contends also that the MOU was a "sham." Application at 14. AFGE states that, although NFFE and SSA intended in January 1990 to begin renegotiations in June, the parties, after becoming aware of AFGE's gathering of a showing of interest in preparation for filing a petition, executed the MOU in May. AFGE argues that, under these circumstances, the parties' "sham agreement served not to provide substantive terms benefiting employees but, rather was merely a denial of the democratic will of the bargaining unit by attempting to manufacture a bar." Id.
2. NFFE
In its supplemental brief, NFFE supports the Regional Director's conclusion that the NFFE-SSA MOU constituted an agreement sufficient to bar AFGE's petition. NFFE agrees with the Regional Director's adoption of the NLRB principle that a contract will serve as a bar to a petition if the contract is "so complete as to substantially stabilize labor relations between the parties." NFFE's Brief at 2. Thus, NFFE states that "applying the principles" of NLRB case law "it is clear that the MOU contains substantial terms and conditions of employment sufficient to stabilize the parties['] bargaining relationship." Id. at 3. NFFE states that the parties "almost immediately after the renewed agreement became effective . . . began exercising rights established by the agreement," as demonstrated, for example, by the processing of grievances and the use of official time for union business. Id.
In its supplemental brief, NFFE does not make a separate response to AFGE's contention that the MOU was a sham.
3. SSA
In its supplemental brief, SSA argues in support of the Regional Director's decision. SSA asserts that, although the MOU provided for future bargaining limited to three specific issues necessitated by events that the parties had already anticipated, the remainder of the MOU "constituted a substantial agreement" that barred AFGE's petition in this case. SSA's Supplemental Brief at 2-3.
SSA argues that the provisions of the MOU are similar to those of contracts in the NLRB cases relied upon by the Regional Director in finding that the MOU was sufficient to act as a bar to AFGE's petition. SSA argues that "an agreement to later agree" does not remove an agreement as a bar. Id. at 4. In this regard, SSA cites Thiokol Corporation, 215 NLRB 908 (1974), in which the NLRB found that an agreement which incorporated the parties' expired agreement and which also included provisions for reopening the agreement was a bar to a petition. SSA also cites National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration Medical Center, Grand Junction, Colorado, 24 FLRA 147 (1986), in which the Authority held that a provision for mutual reopening of an agreement is negotiable. SSA contends that to conclude "that the presence of such a provision in an agreement renders the agreement ineffective for the purposes of [section] 7111(f)(3) would frustrate the purpose of the contract bar doctrine." Id. at 3.
SSA disputes AFGE's contention that the MOU was a sham. According to SSA, a finding that the MOU constitutes a bar does not deprive employees or AFGE of any statutory rights. SSA states that the Statute provides for "a guaranteed 45 day window during which an incumbent is not insulated from a challenge to its representational status." Id. at 5. SSA asserts that "AFGE's argument ignores the importance which Congress placed on stability in labor relations by providing for a contract bar at [section 7111(f)], whereunder an incumbent is insulated from a challenger." Id. at 6. SSA argues that "NFFE's action in renewing its agreement with the [A]gency guaranteed employees continuation of existing benefits, plus the ability to adapt the contract during its term to changing conditions. The result was a stable relationship consistent with the purpose of the Statute." Id.
B. Analysis and Conclusions
As an initial matter, we find that AFGE's reliance on Watervliet is misplaced. In Watervliet, the Authority held that "[w]here an agency head timely disapproves an agreement under section 7114(c) of the Statute, the agreement does not take effect[.]" 34 FLRA at 105. In this case, SSA did not disapprove any part of the MOU. SSA specifically approved the entire MOU. Consequently, the issue of whether the agreement became effective by reason of a timely disapproval by the Agency head is not before us.
We turn next to the question of whether the MOU, as timely approved by the Agency head, constituted an agreement that could bar the filing of AFGE's petition. Section 7111(f)(3) of the Statute provides that, in order to constitute a bar to the filing of a representation petition, an agreement must be a "lawful written collective bargaining agreement." For the following reasons, we conclude that the MOU constitutes a "lawful written collective bargaining agreement" within the meaning of section 7111(f)(3) of the Statute.
1. The MOU Constitutes a "Written Collective Bargaining Agreement" Within the Meaning of Section 7111(f)(3) of the Statute
As to the requirement that the agreement be a "written" agreement, we note that the MOU was in writing and was signed and dated by the parties. See also section 2422.3(a)-(d) of our Regulations.
As to the requirement that there be a "collective bargaining agreement," we note that the Authority has not had occasion to address the question of what constitutes a "collective bargaining agreement" within the meaning of section 7111(f)(3) of the Statute that can bar the filing of a petition. However, the issue of what constitutes a contract which would serve as a bar to a petition has been considered by the NLRB under the National Labor Relations Act and by the Assistant Secretary of Labor for Labor-Management Relations (the Assistant Secretary) under Executive Order 11491.
The Regional Director, citing Appalachian Shale Products Co., 121 NLRB 1160, 1163 (1958), stated that "[i]n order for an agreement to serve as a bar to an election in the private sector, the [NLRB's] longstanding rule requires that a contract must contain substantial terms and conditions of employment deemed sufficient to stabilize the bargaining relationship." Decision at 9 n.7. The Regional Director, citing Stur-Dee Health Products, 248 NLRB 1100 (1980); Levi Strauss and Co., 218 NLRB 625 (1975); and Spartan Aircraft Company, 98 NLRB 73 (1952), also noted that "the NLRB has held that contracts which fail to contain or delineate every possible provision" may nonetheless be "sufficiently complete to constitute a contract bar." Id. at 9 n.8.
Under Executive Order 11491, the Assistant Secretary applied a rule similar to that of the NLRB. In Department of the Navy, Navy Exchange, Miramar, California, 6 A/SLMR 44 (1976), the Assistant Secretary found that an agreement that was challenged as incomplete was a bar to a rival petition, noting that the agreed-upon articles "contained substantial and finalized terms and conditions of employment sufficient to stabilize the bargaining relationship." 6 A/SLMR at 46. See also United States Department of the Navy, U.S. Naval Station, Pearl Harbor, Hawaii, 5 A/SLMR 237, 238 (1975); and United States Air Force, 321st Combat Support Group, Grand Forks Air Force Base, North Dakota, 3 A/SLMR 573, 575 (1973).
We find that under the Statute, in this and future cases, in order for an agreement to constitute a "collective bargaining agreement" within the meaning of section 7111(f)(3) that can bar the filing of a petition for exclusive recognition, an agreement must contain substantial terms and conditions of employment sufficient to stabilize the bargaining relationship between the parties to the agreement. The fact that an agreement contains provisions permitting the parties to reopen certain matters or stating that the parties agree to alter portions of the agreement in the future does not automatically prevent an agreement from constituting a "collective bargaining agreement." We will make such determinations on a case-by-case basis.
As noted above, the MOU, which incorporated and renewed the National Agreement between NFFE and SSA, contained provisions dealing with grievance and arbitration, disciplinary and adverse actions, official time, union dues allotments, awards, promotion, overtime, reductions in force, training, an employee assistance program, leave, union rights and recognition, and the negotiation of local supplemental agreements. Applying the standard set forth above, we find that the MOU contained substantial terms and conditions of employment sufficient to stabilize the parties' bargaining relationship.
By the MOU's terms, Articles 14, 17, and 23 became effective (subject to possible subsequent modification) along with the remainder of the MOU. The fact that the MOU provided that those three articles may be reopened within a specified period after becoming effective did not mean that the MOU could not serve as a bar to AFGE's petition. Therefore, we find that the MOU constituted a "collective bargaining agreement" within the meaning of section 7111(f)(3) of the Statute. Moreover, we conclude that even if Articles 14, 17, and 23 had not become effective, the MOU without those articles contained substantial terms and conditions of employment sufficient to stabilize the parties' bargaining relationship so as to constitute a "collective bargaining agreement" within the meaning of section 7111(f)(3) of the Statute.
2. The MOU Constitutes a "Lawful" Agreement Within the Meaning of Section 7111(f)(3)
AFGE asserts that the MOU was a sham agreement because it "served not to provide substantive terms benefiting employees but, rather was merely a denial of the democratic will of the bargaining unit by attempting to manufacture a bar." Application at 14. To the extent that this assertion constitutes an argument that the MOU is not a "lawful" agreement under section 7111(f)(3), we reject this argument for two reasons.
First, we reject AFGE's claim that the MOU was a sham agreement because it did not contain "substantive terms benefiting employees . . . ." Id. As we noted above in determining that the MOU constituted a "collective bargaining agreement" within the meaning of section 7111(f)(3) of the Statute, the MOU contained provisions dealing with grievance and arbitration, disciplinary and adverse actions, official time, union dues allotments, awards, promotion, overtime, reductions in force, training, an employee assistance program, leave, union rights and recognition, and the negotiation of local supplemental agreements. Accordingly, AFGE's claim in this regard is without merit.
Second, we reject the assertion that the MOU was a sham agreement because it "was merely a denial of the democratic will of the bargaining unit by attempting to manufacture a bar." Id. AFGE's assertions as to the actions of SSA and NFFE and its related challenge to the legality of the MOU constitute an allegation that an unfair labor practice has occurred and should, therefore, have been alleged in an unfair labor practice charge. Such matters are not appropriate for resolution in a representation proceeding. See Veterans Administration Center, Togus, Maine, 3 A/SLMR 568 n.1 (1973). However, there is no evidence in the record indicating that AFGE filed such an unfair labor practice charge.
We note that AFGE does not assert that the MOU contained any unlawful provisions. Such a challenge would be appropriate for consideration in a representation proceeding. However, allegations involving unlawful considerations or actions in obtaining an agreement constitute allegations of unfair labor practices and must be resolved in that forum. The filing of such an unfair labor practice charge would block the processing of the representation proceeding until the unfair labor practice allegations were resolved. See Office of the General Counsel's Representation Case Handling Manual, Section 220.011.
Accordingly, we find that the NFFE-SSA MOU was a "lawful written collective bargaining agreement" within the meaning of section 7111(f)(3) of the Statute that could serve as a bar to AFGE's petition. We now address the remaining issues raised by AFGE's application for review.
V. The MOU's Effective Date Was Clear and Unambiguous
A. Positions of the Parties
1. AFGE
AFGE contends that a "substantial ambiguity was created regarding the effective date of the agreement." Id. AFGE states that although May 15, 1990, is claimed as the effective date of the MOU, a copy of the MOU given to AFGE on May 23 did not contain an effective date, and the record shows that an effective date was not entered on any copy of the agreement until after May 22, 1990, the date on which AFGE's petition was filed. AFGE states further that NFFE did not notify bargaining unit employees of the MOU until May 25, and SSA did not do so until June. AFGE asserts that "assuming arguendo, that the agency head approved the MOU on May 15, 1990, the document approved was an undated one, which after the fact was substantially altered by adding an effective date post hoc." Id. at 10 (emphasis in original).
AFGE contends that, because the copy of the MOU that was reviewed by the Agency head was undated, "the MOU constituted a mere extension with no date certain as to its beginning, nor its end," and cannot be a bar to AFGE's petition. Id. at 11.
2. NFFE
In its opposition to the application for review, NFFE asserts that "the Regional Director's decision is entirely faithful to the principles established by the Authority in previous contract bar cases, and is amply supported by the extensive record in this case." Opposition at 2. NFFE contends that AFGE's arguments "are mere expressions of disagreement with the decision of the Regional Director . . . ." Id.
NFFE states that the MOU's effective date was clear and unambiguous. NFFE argues that, as found by the Regional Director and based on uncontroverted evidence, the MOU was reviewed and approved in writing on May 15, 1990, by the Agency head's designee and became a final and binding agreement prior to the filing of AFGE's petition. NFFE states that paragraph 1 of the MOU determined the effective date of the agreement, while the space provided in paragraph 2 for entry of the effective date was filled in prior to the notice that was sent to bargaining unit employees.
3. SSA
In its supplemental brief, SSA does not make a separate response on the effective date issue.
B. Analysis and Conclusions
"[F]or a collective bargaining agreement to bar a representation petition, its effective date must be clear and unambiguous and it must clearly set forth its duration so that any potential challenging party may determine when the statutory open period will occur." U.S. Department of Housing and Urban Development, Newark Office, Newark, New Jersey, 37 FLRA 1122, 1126 (1990) (HUD, Newark).
With respect to the MOU's duration, the first paragraph of the MOU states that the agreement "shall be renewed for a three year term, effective as of the date of approval by the head of the agency in accordance with 5 U.S.C. 7114(c) or on the 31st day following execution of this Memorandum, whichever is sooner." Decision at 4. We find that Paragraph 1 of the MOU clearly sets forth the 3-year duration of the agreement. When that 3-year period begins and ends, however, depends on the effective date of the MOU. The remaining question, therefore, is whether the effective date of the MOU was clear and unambiguous so that any potential challenging party could determine when the statutory open period of the MOU would occur.
AFGE claims that there is an ambiguity as to the effective date of the MOU and the MOU is merely an attempt by the parties to extend their 1987 agreement. Initially, we find that the MOU was not an extension of the 1987 agreement. The 1987 agreement had terminated. Although the MOU adopted most of the terms of the 1987 agreement, the MOU was a new agreement.
AFGE's claim that there is an ambiguity as to the effective date of the MOU is based on its contention that the copy of the MOU that it received on May 23, 1990, a day after it filed its petition, did not have a specific date filled in on the MOU. In our view, the fact that the initial copy of the MOU given to AFGE did not have a specific date on it does not compel the conclusion that the effective date of the MOU is ambiguous. As clearly stated in the MOU, the date on which the MOU became effective was the date on which the Agency head approved the MOU. It is undisputed that the Agency head's approval of the MOU was contained in a separate document dated May 15, 1990, and that AFGE subsequently received a copy of that document along with a copy of the MOU showing May 15, 1990, as the effective date of the agreement. See Petitioner's Exhibit 12(a)-(c). Accordingly, there is no ambiguity as to the effective date of the MOU; rather, the effective date is the date on which the Agency head approved the MOU, May 15, 1990.
The fact that determination of the effective date of the MOU requires reference to a document other than the MOU does not preclude the MOU from serving as a bar to a petition. The NLRB was faced with a similar situation in Cooper Tire and Rubber Co., 181 NLRB 509 (1970) (Cooper Tire). In Cooper Tire, the duration clause of the parties' agreement provided that "this agreement shall become effective ......, 1968 and shall remain in full force and effect until ......, 1971 and thereafter for yearly periods." Id. The agreement also provided for three annual progressive wage increases effective as of September 1, 1968, 1969, and 1970. The NLRB stated that "in order for a contract to constitute a bar, it must be sufficient on its face, without having to resort to parol evidence and . . . the term of the agreement, as stated in the agreement, should be such that employees and outside unions may determine the appropriate time for filing representation petitions." Id. (footnote omitted). The NLRB found that, reading the duration clause in conjunction with the wage section, the agreement "reasonably construed on its face" provided for a 3-year term beginning on September 1, 1968, and the agreement barred the election petition. Id. See also Ben Franklin National Bank, 278 NLRB 986, 993 (1986).
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 the 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. In this case there is no doubt from a reading of the MOU in conjunction with the document containing the Agency head's approval that the approval was dated May 15, 1990, and, by application of the first paragraph of the MOU, the MOU was effective May 15, 1990. See Cooper Tire. Compare Florida (Air) National Guard, St. Augustine, Florida, 43 FLRA No. 119 (1992) (where an agreement contained two dates of the approval by the agency head, a potential challenging party could not determine the open period in which to file a petition and the petition was, therefore, not a bar to a petition).
Accordingly, we find that the MOU and the document containing the Agency head's approval together clearly and unambiguously establish May 15, 1990, as the effective date of the MOU. As stated in the first paragraph of the MOU, the agreement was renewed for a 3-year period from its effective date. Consequently, we agree with the Regional Director that "[t]he evidence established that on May 15, 1990, the SSA approved the parties' MOU renewing the National agreement for three years, effective on the same date." Id. at 6. We also conclude that the MOU contained language sufficient to allow AFGE or any other potential challenging party to determine the statutory open period in which a petition may be filed.
VI. Ratification of the MOU Was Not Required
A. Positions of the Parties
1. AFGE
AFGE states that the MOU incorporated Article 31, which required ratification. AFGE argues that ratification must take place prior to agency head review in order for the review to give validity to an agreement. AFGE contends that no ratification took place prior to Agency head review, and the MOU was, therefore, not a bar.
2. NFFE
NFFE states that the Regional Director properly rejected AFGE's argument about ratification. NFFE argues that the language of Article 31 of the 1987 National Agreement specifically applied to that agreement only, while the MOU specifically states that it would become effective on the date approved by the Agency head, without reference to any requirement of ratification. NFFE "acknowledge[d] that the issue of ratification was muddled somewhat by the testimony of" one of its own witnesses, but states that in fact NFFE's constitution does not impose ratification as a requirement for the approval of bargaining agreements. Id. at 12.
3. SSA
In its supplemental brief, SSA does not make a separate response on the ratification issue.
B. Analysis and Conclusions
We reject AFGE's argument that ratification of the MOU was required prior to Agency head review. We find that ratification was not required either by NFFE's constitution or by agreement of the parties.
The Regional Director found that ratification was not required by NFFE's constitution, and AFGE does not refute that finding. Because ratification of the MOU was not required by NFFE's constitution, the extent to which a NFFE official sought agreement of constituent locals is not relevant.
We note that the language of Article 31 of the National Agreement refers specifically to "this Agreement," and that the MOU does not state that it will be effective by the terms of Article 31, but rather contains its own specific terms for when the agreement will become effective. We find, therefore, that because the MOU did not contain a ratification requirement, ratification was not a condition precedent to the execution of the contract. Accordingly, the MOU may constitute a bar to AFGE's petition.
VII. Summary
We have found that the MOU was a lawful written collective bargaining agreement within the meaning of section 7111(f)(3) of the Statute. Under section 7111(f)(3), the "open period" during which a petition for exclusive recognition could be filed was not more than 105 days and not less than 60 days before the expiration date of the MOU. See HUD, Newark, 37 FLRA at 1125. See also section 2422.3(d)(1) of our Regulations.
The NFFE-SSA MOU was for a 3-year term, beginning on May 15, 1990. AFGE's petition was filed on May 22, 1990. Accordingly, we find that the MOU barred AFGE's petition, which was not filed during the "open period" provided for in section 7111(f)(3)(B) of the Statute and section 2422.3(d)(1) of our Rules and Regulations.
VIII. Order
We affirm the Regional Director's dismissal of AFGE's petition as untimely filed and we deny AFGE's request that an election be ordered.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)