Corpus Christi Army Depot and William Charles Chism (Authority decision, October 26, 1984)

FLRA representation decision. The Authority directs an election on whether a bargaining unit wishes to retain its union representative. The election and any resulting certification remain to be completed. The order also determines that the existing unit is appropriate under 5 U.S.C. § 7112; § 7123(a)(2) excludes an appropriate unit determination from court of appeals review.

Plain-English summary

An employee at Corpus Christi Army Depot petitioned to decertify an International Association of Machinists lodge as the representative of a shop unit. The union argued that an existing agreement barred the petition and that ten covered units had merged into one. The Authority found the petition timely because the original agreement had expired and temporary arrangements during renegotiation did not create a new fixed term bar. It also found no evidence that the shop unit had merged with the other units. The Authority directed a secret ballot election; it did not decide whether employees would retain the union. The outcome is marked other because this was an original petition and election direction, with no Regional Director decision under review.

Decision snapshot

• Authority: 5 U.S.C. §§ 7111(b)(1)(B) and 7112.
• Outcome: Decertification election directed in the existing shop unit.
• Key point: A temporary extension for contract negotiations did not bar a timely decertification petition.

Full text (FLRA public release)

[ 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

--------------- 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).