Defense Industrial Plant and Equipment Center, Memphis, Tennessee, Assistant Secretary Case No. 41-5904 (DR), FLRC No. 78A-185

 1 FLRA No. 65
                                            JUNE 15, 1979
 
 MR. JOHN P. HELM
 STAFF ATTORNEY
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES
 1016 16TH STREET, N.W.
 WASHINGTON, D.C.  20036
 
                         RE:  DEFENSE INDUSTRIAL PLANT AND EQUIPMENT
                              CENTER, MEMPHIS, TENNESSEE, Assistant
                              Secretary Case No. 41-5904(DR), FLRC 
                              No. 78A-185
 
 DEAR MR. HELM:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
 REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION IN THE
 ABOVE-ENTITLED CASE.  /1/
 
    IN THIS CASE, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 259
 (THE UNION), THE INCUMBENT EXCLUSIVE REPRESENTATIVE OF A BARGAINING UNIT
 AT THE DEFENSE INDUSTRIAL PLANT AND EQUIPMENT CENTER, MEMPHIS, TENNESSEE
 (THE ACTIVITY), FILED OBJECTIONS TO AN ELECTION HELD PURSUANT TO A
 DECERTIFICATION PETITION FILED BY A UNIT EMPLOYEE.  THE UNION OBJECTED
 TO THE PROCEDURAL CONDUCT OF THE ELECTION AND TO CERTAIN CONDUCT ALLEGED
 TO HAVE IMPROPERLY AFFECTED THE RESULTS THEREOF.  IN THIS REPORT AND
 FINDINGS ON OBJECTIONS, THE REGIONAL ADMINISTRATOR (RA) OVERRULED THE
 UNION'S FOUR OBJECTIONS.  FIRST, HE CONCLUDED THAT THE MANNER IN WHICH
 THE AREA ADMINISTRATOR SCHEDULED THE ELECTION (AFTER THE INTERESTED
 PARTIES HAVING BEEN UNABLE TO AGREE UPON A DATE) WAS NOT ARBITRARY AND
 CAPRICIOUS.  IN THIS REGARD, HE REJECTED THE UNION'S CONTENTION THAT THE
 ELECTION SHOULD HAVE BEEN SCHEDULED FOR A LATER DATE TO ALLOW UNION
 OFFICERS TO PREPARE FOR THE UNION'S IMPENDING NATIONAL CONVENTION, TO
 AVOID THE ADVERSE EFFECT OF THE POLICE AND FIREFIGHTERS' STRIKE IN
 MEMPHIS ON THE DATE FIXED BY THE AREA ADMINISTRATOR, AND TO PERMIT THE
 UNION ADEQUATE TIME FULLY TO INFORM EMPLOYEES CONCERNING THE ISSUES.
 THE RA STATED THAT THE SELECTION OF THE ELECTION DATE WAS IN ACCORDANCE
 WITH THE ASSISTANT SECRETARY'S REGULATIONS AND FURTHER NOTED THAT THE
 UNION SUBMITTED NO EVIDENCE THAT ANY EMPLOYEES WERE DENIED THE
 OPPORTUNITY TO VOTE ON THE DATE FIXED OR THAT THE SCHEDULING WAS
 OTHERWISE ARBITRARY AND CAPRICIOUS.
 
    AS TO THE UNION'S SECOND OBJECTION, THAT" . . . A RELIEF OBSERVER FOR
 THE (DECERTIFICATION FACTION) WAS SEEN CAREFULLY REVIEWING THE
 ELIGIBILITY LIST DURING THE TIMES SHE SERVED AS OBSERVER (AND) (S)HORTLY
 THEREAFTER SHE WOULD BE RELIEVED WHEREUPON THERE WOULD BE A FLOURISH OF
 ACTIVITY AT THE POLLS," THE RA FOUND THAT THE UNION SUBMITTED NO
 EVIDENCE THAT THE RELIEF OBSERVER MADE ANY WRITTEN NOTATIONS FROM THE
 ELIGIBILITY LIST OR THAT SHE CAMPAIGNED OR URGED ANY EMPLOYEES TO VOTE
 DURING THE PERIOD THE POLLS WERE OPEN.  IN CONCLUDING THAT THIS
 OBJECTION WAS WITHOUT MERIT, THE RA STATED THAT THE EXAMINATION OF AN
 ELIGIBILITY LIST BY AN OFFICIAL OBSERVER WHILE SERVING IN THAT CAPACITY
 DOES NOT, WITHOUT MORE, CONSTITUTE CONDUCT IMPROPERLY AFFECTING THE
 RESULTS OF AN ELECTION.
 
    WITH REGARD TO THE UNION'S THIRD OBJECTION-- THAT A SUPERVISOR WAS
 SEEN AT THE POLLING PLACE TALKING TO THE DECERTIFICATION PETITIONER, WHO
 DID NOT ASK THE SUPERVISOR TO LEAVE-- THE RA NOTED THE ABSENCE OF
 EVIDENCE THAT ANY ELIGIBLE VOTERS, OTHER THAN OFFICIAL OBSERVERS, WERE
 PRESENT AT THE POLLING PLACE AT THE SAME TIME AS THE SUPERVISOR.  HE
 THEREFORE CONCLUDED THAT THE THIRD OBJECTION WAS WITHOUT MERIT.
 
    THE RA ALSO REJECTED THE UNION'S FOURTH OBJECTION THAT "(A)T THE
 CONCLUSION OF THE ELECTION, THERE WAS NO TALLY FROM THE LIST OF
 EMPLOYEES AS TO HOW MANY VOTED (AND) (T)HUS IT IS NOT KNOWN WHETHER THE
 NUMBER OF BALLOTS COUNTED EQUALS THE NUMBER OF EMPLOYEES CHECKED AS
 HAVING VOTED." IN SO FINDING, HE NOTED THAT THE UNION FAILED TO
 INTRODUCE ANY EVIDENCE OF TAMPERING WITH THE BALLOT BOX AND, FURTHER,
 OBSERVED THAT SECTION 202.19 OF THE ASSISTANT SECRETARY'S REGULATIONS
 ONLY REQUIRES THAT THE AREA ADMINISTRATOR " . . . SHALL CAUSE TO BE
 FURNISHED A TALLY OF BALLOTS."
 
    THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE RA, AND BASED ON HIS
 REASONING, FOUND THAT THE DISMISSAL OF THE UNION'S OBJECTIONS WAS
 WARRANTED AND ACCORDINGLY DENIED THE UNION'S REQUEST FOR REVIEW SEEKING
 REVERSAL OF THE RA'S REPORT AND FINDINGS ON OBJECTIONS.  (THEREAFTER THE
 INCUMBENT UNION WAS DECERTIFIED AS EXCLUSIVE REPRESENTATIVE OF THE UNIT
 INVOLVED.)
 
    IN THE UNION'S PETITION FOR REVIEW, IT IS ALLEGED THAT THE ASSISTANT
 SECRETARY'S DECISION IS "ARBITRARY AND CAPRICIOUS INSOFAR AS IT
 DISMISSES OBJECTIONS TO THE ELECTION BASED UPON CONDUCT WHICH OCCURRED
 DURING THE ELECTION", MORE SPECIFICALLY THE RELIEF OBSERVER'S CONDUCT
 AND THE SUPERVISOR'S PRESENCE AT THE POLLING PLACE, AS WELL AS THE
 ABSENCE OF A TALLY OF BALLOTS IMMEDIATELY AFTER THE ELECTION.  IT IS
 FURTHER ALLEGED THAT THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND
 CAPRICIOUS AND PRESENTS A MAJOR POLICY ISSUE INSOFAR AS IT DISMISSES
 OBJECTIONS REGARDING THE SCHEDULING OF THE ELECTION.  IN THIS LATTER
 REGARD, IT IS AGAIN ASSERTED THAT THE ELECTION SHOULD HAVE BEEN
 SCHEDULED FOR A LATER DATE IN VIEW OF THE UNION'S UPCOMING NATIONAL
 CONVENTION AND THE PUBLIC EMPLOYEES' STRIKE IN MEMPHIS AT THE TIME, AND
 THAT THE ASSISTANT SECRETARY IMPROPERLY FAILED TO ADDRESS THESE REASONS
 OR TO EXPLAIN WHY THE UNION'S PROPOSED ELECTION DATES WERE UNACCEPTABLE.
 
    IN THE AUTHORITY'S OPINION, THE PETITION FOR REVIEW OF THE ASSISTANT
 SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2400.2 OF
 THE AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY REFERENCE SECTION
 2411.12 OF THE COUNCIL'S RULES.  THAT IS, THE DECISION OF THE ASSISTANT
 SECRETARY DOES NOT APPEAR ARBITRARY AND CAPRICIOUS OR PRESENT A MAJOR
 POLICY ISSUE.
 
    WITH RESPECT TO THE ALLEGATION THAT THE ASSISTANT SECRETARY'S
 DECISION IS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE
 ASSISTANT SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING
 HIS DECISION.  RATHER, THE CONTENTIONS IN THIS REGARD CONSTITUTE
 ESSENTIALLY DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDING THAT NO
 OBJECTIONABLE PROCEDURAL OR OTHER CONDUCT OCCURRED WHICH MAY HAVE
 IMPROPERLY AFFECTED THE RESULTS OF THE ELECTION, AND THEREFORE DO NOT
 PROVIDE A BASIS FOR REVIEW.  SIMILARLY, THE ALLEGED MAJOR POLICY ISSUE
 CONCERNING THE SCHEDULING OF THE ELECTION AGAIN CONSTITUTES, IN ESSENCE,
 DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDING THAT NO
 OBJECTIONABLE PROCEDURAL CONDUCT OCCURRED WHICH MAY HAVE IMPROPERLY
 AFFECTED THE RESULTS OF THE ELECTION.  ACCORDINGLY, NO BASIS FOR REVIEW
 IS THEREBY PRESENTED.
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
 AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, THE APPEAL FAILS TO MEET
 THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2400.2 OF THE
 AUTHORITY'S TRANSITION RULES OF PROCEDURE WHICH INCORPORATES BY
 REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES.  ACCORDINGLY, THE
 PETITION FOR REVIEW IS HEREBY DENIED, AND THE REQUEST FOR A STAY OF THE
 ASSISTANT SECRETARY'S DECISION IS ALSO DENIED.  /2/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  COMMANDER
 
    DIPEC
 
    /1/ IN VIEW OF THE AUTHORITY'S DISPOSITION HEREIN, IT IS UNNECESSARY
 TO PASS UPON THE UNION'S ADDITIONAL "MOTION FOR ENFORCEMENT OF TEMPORARY
 STAY."
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.