U.S. Army Concord District Recruiting Command and David Keuther and American Federation of Government Employees, Local 1900 (Authority decision, March 16, 1984)

FLRA representation decision. The Authority directed a decertification election but did not decide whether the union would remain the representative. Its appropriate-unit determination is excluded from the 60-day judicial-review provision by 5 U.S.C. § 7123(a)(2).

Plain-English summary

An employee of the Army Concord District Recruiting Command petitioned for a vote on whether AFGE Local 1900 should remain the bargaining representative. The union argued that its contract barred the petition because it was filed outside the statutory challenge period. The Authority found conflicting contract provisions about when the agreement became effective, making its expiration date unclear. It held that the ambiguous agreement did not bar the petition and directed an election. This original Authority order did not decide the vote's result or decertify the union.

Decision snapshot

• Authority: Contract bar and election petition rules under 5 U.S.C. § 7111.
• Outcome: Decertification election directed; representation result remains pending.
• Key point: An agreement with conflicting effective-date clauses could not bar an election petition.

Full text (FLRA public release)

[ v14 p73 ]

14:0073(16)CU

The decision of the Authority follows:

14 FLRA No. 16

DEPARTMENT OF THE ARMY
U.S. ARMY CONCORD DISTRICT RECRUITING COMMAND CONCORD, NEW HAMPSHIRE Activity

and

DAVID KEUTHER
Petitioner

Case No. 1-DR-20001

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL 1900

Labor Organization/Incumbent

DECISION AND DIRECTION OF ELECTION

Upon a petition duly filed 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, David Keuther, an employee of the activity, seeks the decertification of the American Federation of Government Employees, AFL-CIO, Local 1900 (AFGE), 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 constitutes an appropriate unit:

Included: All nonprofessional civilian employees of the U.S. Army Concord District Recruiting Command, Concord, New Hampshire.

Excluded: All professional employees, management officials, supervisors, and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7).

The sole issue before the Authority is the timeliness of the instant petition. AFGE contends that the petition was untimely filed as it was not filed within the challenge period provided for in section 2422.3(d) of the Authority's Rules and Regulations, which implements section 7111(f)(3) of the Statute. /1/ On May 14, 1980, the Activity and AFGE signed a collective bargaining agreement which provides, in Article XXXVII, section 1, that the "(A)greement will remain in full force and effect for two (2) years from the date of approval by the agency." However, section 5 of that same Article states that "(T)his agreement shall become effective thirty (30) days after signing by the Union President and the DRC Commander." Subsequently, the contract was reviewed by Headquarters, United States Army Recruiting Command, pursuant to section 7114(c) of the Statute, returned to the parties for revision, and ultimately approved by the Agency on July 3, 1980. Keuther, pursuant to his reading of section 1 of Article XXXVII of the agreement, filed the instant decertification petition on February 22, 1982, believing that the contract became effective on May 14, 1980 when it was signed by the parties. However, AFGE contends that the collective bargaining agreement was not effective until 30 days after it was signed, on June 14, 1980, pursuant to section 5 of Article XXXVII of the agreement, and thus it did not expire until two years thereafter on June 14, 1982. AFGE concludes that Keuther's petition is untimely since it was not filed between 60 and 105 days prior to June 14, 1982. The Activity takes no position.

The Authority finds that in the circumstances of the case, there is no agreement bar to the holding of an election pursuant to the instant petition. In the Authority's view, 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. As the underscored language from the agreement set forth above establishes, the agreement contains two contradictory clauses concerning its effective date. Thus, in the absence of a clear and unambiguous date upon which the agreement between the Activity and AFGE became effective, which results in ambiguity as to the agreement's expiration date, the Authority finds that the agreement does not bar the processing of the instant petition in the circumstances of this case.

In view of the above, the Authority shall order an election in the unit currently represented by AFGE.

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 American Federation of Government Employees, AFL-CIO, Local 1900.

Issued, Washington, D.C., March 16, 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, unless--

(A) the collective bargaining agreement has been in effect for more than 3 years, or

(B) the petition for exclusive recognition is filed not more than 105 days and not less than 60 days before the expiration date of the collective bargaining agreement(.)