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29 FLRA No. 82

DEPARTMENT OF THE ARMY HEADQUARTERS
WASHINGTON, D.C. AND U.S. ARMY
FIELD ARTILLERY CENTER AND FORT SILL
FORT SILL, OKLAHOMA

              Respondent

      and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

              Charging Party

         and

GENERAL DRIVERS, CHAUFFEURS AND HELPERS
LOCAL UNION NO. 886, AFFILIATED WITH THE
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA

               Party

Case No. 6-CA-60105

DEPARTMENT OF THE ARMY HEADQUARTERS
WASHINGTON, D.C. AND U.S. ARMY
FIELD ARTILLERY CENTER AND FORT SILL
FORT SILL, OKLAHOMA

               Agency

      and

GENERAL DRIVERS, CHAUFFEURS AND HELPERS
LOCAL UNION NO. 886, AFFILIATED WITH THE
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA

               Petitioner/Intervenor

      and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
INDEPENDENT, LOCAL 273

               Incumbent Labor Organization

Case No. 6-RO-40005

[PAGE]

DECISION AND ORDER AND DIRECTION OF THIRD ELECTION

The Administrative Law Judge issued his Decision in the above-entitled proceeding consolidating Case Nos. 6-CA-60105 and 6-RO-40005. In Case No. 6-CA-60l05, the Judge found that the Respondent had interfered with employees' exercise of their statutory rights by violating the neutrality to be maintained during the pendency of a question concerning representation (QCR). The Judge concluded that the Respondent had engaged in the unfair labor practices alleged in the complaint and recommended that it be ordered to cease and desist therefrom and take certain affirmative action.

In Case No. 6-RO-40005, the Judge recommended dismissal of six of the seven objections to the conduct improperly affecting the results of an election. The Judge recommended that the remaining objection, Objection 5, which dealt with the matter which was also the subject of the unfair labor practice proceeding in Case No. 6-CA-60105, be sustained. In accordance with section 2422.21(g)(2) of the Authority's Rules and Regulations, the Judge made no recommendation as to any remedial action to be taken concerning that objection.

A hearing was conducted on the consolidated case at Fort Sill, Oklahoma on June 26-28, 1986. At the outset of the hearing, the Judge granted the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Teamsters) status as a Party to the unfair labor practice case. After the hearing, briefs were submitted to the Judge. The Judge issued his decision on February 27, 1987. The Respondent and the Teamsters filed exceptions to the Judge's decision. The General Counsel filed an opposition to the exceptions.

Pursuant to sections 2422.21 and 2423.29 of the Authority's Rules and Regulations and sections 7111 and 7118 of the Federal Service Labor - Management Relations Statute (the Statute), we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are affirmed. The Judge's findings, as modified herein, and his conclusions and recommendations are adopted. On consideration of the entire record in this case, we conclude, in agreement with the Judge, that a preponderance of the evidence received demonstrates that the Respondent engaged in the unfair labor practices alleged, and we shall issue an appropriate remedial order. We also conclude that Objection No. 5 to the election should be sustained. We therefore will set aside the runoff election and direct that a third election be held. [ v29 p2 ]

Because of the nature and number of exceptions to the Judge's Decision submitted relating to the Judge's alleged failure to find certain facts, and to the Judge's alleged error in finding other facts, we have set forth our findings of fact below. We have prepared these findings of fact as a convenience to the reader, and to set forth those facts established by the record which we find are necessary to address the allegations of the complaint and objections to the election.

I. Statement of the Case

On April 20, 1984, the General Drivers, Chauffeurs and Helpers Local Union No. 886 (Teamsters Local 886) filed a petition to represent a 2500-employee bargaining unit at Fort Sill, Oklahoma which was then represented by the National Federation of Federal Employees (NFFE) Local 273. At that time, the Teamsters represented about 600 employees of the Directorate of Engineering and Housing at Fort Sill in a separate bargaining unit.

On June 20, 1985, an election was conducted for the bargaining unit at Fort Sill being sought by the Teamsters. NFFE received 493 votes, the Teamsters received 420 votes, and 251 votes were cast against exclusive recognition. 1 Because neither union received a majority of the votes cast, a runoff election between NFFE and the Teamsters was required. The runoff election was held on October 17, 1985 at Fort Sill. The Teamsters received 591 votes and NFFE received 515 votes. NFFE filed objections to the election on October 22, 1985.

On November 18, 1985, NFFE filed an unfair labor practice charge against the Department of the Army, Fort Sill. Amendments to the charge were filed on January 21 and February 12, 1986. On February 19, 1986, the General Counsel issued an unfair labor practice complaint. The complaint alleged that the Respondent violated section 7116(a)(1) of the Statute, since on or about October 10, 1985, and continuing to date, the Respondent interfered with, restrained and coerced employees in the exercise of their rights guaranteed in section 7102 of the Statute.

Specifically, the complaint alleged that the Respondent breached the requirement of neutrality during the pendency [ v29 p3 ] of a question concerning representation at its Fort Sill facility by conducting a meeting in the Old Executive Office Building at Washington, D.C. with representatives of Teamsters Local 886, Teamsters headquarters, and employees of the bargaining unit which was represented by NFFE during which matters concerning condition of employment were discussed. The complaint alleged, in the alternative, that the Respondent violated section 7116(a)(1) by conducting the meeting when the Respondent either knew or should have known that there was a question concerning representation and/or that the employees at the meeting were members of the bargaining unit represented by NFFE.

The complaint and the objections to the election were consolidated for hearing by the Authority's Regional Director on February 19, 1986. The hearing was conducted at Fort Sill on June 26-28, 1986. Extensive testimony and exhibits were received and all parties presented their positions in briefs to the Judge.

II. Findings of Fact

A. Case No. 6-CA-60105

1. Teamster's Request for a Meeting

On May 17, 1985, Teamsters General President Jackie Presser wrote to Edward J. Rollins, Assistant to the President for Political and Governmental Affairs, requesting a meeting regarding contracting out at Fort Sill, Oklahoma. The letter indicated that the Teamsters were involved in an election campaign to represent employees at Fort Sill. (The text of the letter is set forth at pages 6-7 of the Judge's Decision.) Rollins responded to Presser's letter on May 28, 1985, indicating his willingness to meet with Presser and representatives of Teamsters Local 886 to discuss the Fort Sill situation. See pages 7-8 of the Judge's Decision.

Presser had requested the meeting after Barry Feinstein, Director of the Teamsters' Public Employee Trade Division, told him about a problem identified at Fort Sill. Feinstein had learned about the contracting out issue from Charlie Thompson, President of Teamsters Local 886, who was organizing at Fort Sill. Thompson identified contracting out as the sole major issue there, and it appeared to Thompson and Feinstein that the regulations governing contracting out were not being followed at Fort Sill.

The Teamsters reproduced copies of the letters described above in a handbill which was distributed at Fort [ v29 p4 ] Sill prior to the first election on June 20, 1985. The handbill also stated: "Teamsters have gone to the top for you and we're not done yet."

On June 12, 1985, NFFE National President James M. Peirce wrote Rollins, requesting that Federal employees at Fort Sill be informed that the White House "takes no sides in the union representation election to be held there June 20, 1985. This request is made necessary by the publication and distribution of a handbill reproducing letters exchanged by Teamsters President Jackie Presser and yourself." The letter to Rollins stated that NFFE was the exclusive representative of the Fort Sill employees in question, and that the Teamsters had no standing to discuss contracting out on their behalf. Peirce requested a response from Rollins by June 14, 1985.

On July 1, 1985, Rollins wrote to Peirce stating that the White House was taking no sides in the election at Fort Sill. The letter further stated that NFFE's access to the White House is equal to that of any other organization, and that the President gives fair consideration to the legitimate concerns of all citizens and their organizations. See pages 8-9 of the Judge's Decision.

2. Teamsters' Preparation for the Meeting

Feinstein, Director of the Teamsters' Public Employee Trade Division, wanted the meeting to occur as soon as possible. The Teamsters' headquarters staff arranged the details for the meeting, which was scheduled for October 10, 1985. Feinstein testified that the purpose of the meeting was to alleviate fear of loss of jobs at Fort Sill because of contracting out, and to represent employees as best as the Teamsters could, since the Teamsters were going to win the election.

At the Teamsters' Fort Sill office, there had been general talk of a meeting in Washington, at the White House, for about 3 to 4 months prior to the event. Nothing definite was mentioned, however, until Paul Plumlee, a Teamsters business agent, contacted the selected employee-attendees on October 8, 1985, and asked whether the persons wished to attend. Thompson made the selections of the employees to attend the meeting. The selectees were not informed of the purpose of the meeting, but were told that they might meet the President. The selected employees flew to Washington at the Teamsters' expense. On arrival, the employees first went to the Teamsters' headquarters for a briefing and to meet national Teamsters' staff and officers. [ v29 p5 ]

3. Respondent's Preparation for the Meeting

A call was made from the White House to the Department of Defense and a request was made that someone attend the scheduled October 10, 1985 meeting. Marybell Batjer from the Department of Defense contacted the Department of the Army seeking someone to attend the meeting. Michael Owen, Principal Deputy Assistant Secretary of the Army for Installations and Logistics, and Valcris O. Ewell, Jr., Deputy Assistant Secretary of the Army for Programs and Logistics, learned of the meeting by a note dated October 3, 1985, signed by Katy Smith, secretary to Assistant Secretary of the Army John Shannon. Shannon asked Owen and Ewell to attend the meeting.

The October 3, 1985 note indicated that the topic of the meeting was "contracting out problems at OK Army base." The note also indicated that the meeting was being held at the Army's initiative, and that the meeting would not begin until the Army's representatives arrived. Owen did not have any other advance information about the meeting and was not aware of any background paper.

Ewell requested additional information in preparation for the meeting. He asked Col. James Schroeder, assigned to the Comptroller of the Army, to find out information for the meeting. On October 9th, Schroeder told Ewell information for the meeting, while walking down a hallway. Additional conversation about the meeting occurred during plane flights to and from Fort Dix early on October 10, 1985. Army files contain a memorandum from Schroeder to Ewell about this information (General Counsel's Exhibit 20) which is reprinted on pages 10 and 11 of the Judge's decision. The memorandum stated that "the Teamsters are trying to take over representation of the 2500 other (NFFE) employees(.) (T)he election will be on 17 Oct." The memorandum also stated that "your (Ewell's) meeting is a show the flag meeting to impress Fort Sill's workers that the Teamsters can do more for them than the NFFE." Ewell testified that he did not recall seeing the memorandum before the meeting, but that (1) the information told to him by Schroeder is essentially the same as the information contained in the memorandum; and (2) it would not be unusual to place a memo in the file as a record of information supplied. Ewell gave inconsistent replies to questions regarding his knowledge of the pending election at Fort Sill. However, Ewell indicated that regardless of the pending election, it would not have made any difference as to his attendance at the meeting. [ v29 p6 ]

4. Arrangements at the White House for the Meeting

On the morning of October 10, 1985, Andrew H. Card, Jr., Special Assistant to the President for Intergovernmental Affairs, was asked to attend a meeting later that day with Army and Teamsters attendees. The request was made by C. C. McInturff after a 9:30 a.m. staff meeting. Neither she nor Mitchell E. Daniels, Jr., or other assistants to the President, could attend the meeting because of schedule conflicts. 2 Card was told by McInturff that Army personnel would handle the meeting, which was to discuss contracting out, and that he should just be there, welcome everyone, and host the meeting. The meeting was to be held in Room 122 of the Old Executive Office Building. 3

5. The October 10, 1985 Meeting

When the Teamsters delegation arrived for the meeting, Card and Owen were already in the room. The Teamsters delegation included: Kenneth Fox, Wire Communications Cable Splicer, USAISC; Marge Duncan, Supply Clerk; Carl Stein, Electronic Systems Mechanic, Directorate of Logistics (formerly called Directorate of Industrial Operation); Aubrey Parks, Welder, DEH; Charlie Thompson, President of Teamsters Local 886; Barry Feinstein; Joe McDermott, Feinstein's assistant; and John Ring, a Teamsters Public Affairs Office representative. Employees Fox, Duncan, and Stein are in the NFFE bargaining unit where the election was being held; employee Parks is a member of the bargaining unit represented by the Teamsters at Fort Sill.

Card took care of introductions, but did not participate further in the meeting. Owen started the meeting, although Ewell had not yet arrived. The discussion began about contracting out and the lack of communication to employees about what was occurring. Ewell arrived about 10-15 minutes late, and those present introduced themselves. After Ewell arrived, he took over the meeting. [ v29 p7 ]

Parks spoke about the amount of money spent on contracting out surveys and studies and gave the Army representatives a written statement. Fox talked from a paper about cost plus contracting but did not provide a copy to the Army attendees. Stein talked about contracting out procedures. The employees also reported that the dates for some of the contracting out activities kept changing.

Ewell was asked whether he would exempt some activities from contracting out and whether he would change the fringe benefit rate used in computations. Ewell gave a negative answer, Ewell learned that there appeared to be a lack of communication with employees at Fort Sill, and that the employees' input was not being sought concerning the contracting out. Ewell said he would ensure that employees were kept informed and that their input would be sought, if it took him coming to Fort Sill personally. When informed that employees feared losing their jobs, Ewell said that there was no reason for any employee to be "shown the gates" of Fort Sill.

Owen left the meeting while it was still in progress. After the meeting had been in session for about 75 minutes, Card indicated that others needed to use the room, and began to escort the attendees from the room. As the Army attendees were leaving, Feinstein remarked that the Teamsters had done more in a short time than NFFE had done during the entire time that it had represented the unit.

Ewell testified that the purpose of the meeting was to "show the flag." He indicated that he would meet with anyone to discuss contracting out. Ewell recalled NFFE being referenced at the meeting, but did not recall a reference to an election.

6. Events After the October 10, 1985 Meeting

Shortly after the meeting, a flyer was prepared by the Teamsters about the meeting. The flyer, the text of which is set forth at pages 16-17 of the Judge's Decision, stated: "When we talk for you, the White House listens." It quoted Ewell as stating that there is no reason why any worker should be "shown the gates" of Fort Sill. The Teamsters' headquarters asked Thompson to have the flyers distributed at Fort Sill.

About 5 days after the meeting, Owen saw a copy of the Teamsters flyer. He read it carefully and thought it looked "OK," although he was not sure of Ewell's exact words. Owen considered the flyer a "reasonable dovetailing of my [ v29 p8 ] understanding of the meeting." Owen did not see it as important, and did not do anything specific when he first saw the flyer. Owen testified that he never thought to do anything about the flyer.

When Owen learned the results of the Fort Sill election, he sent a memo to Batjer, indicating that the Teamsters won the election. He attached a copy of the letter he received from McInturff, thanking him for attending the meeting, and indicating that the White House was glad to have provided a neutral ground for the meeting between Army and the Teamsters.

Ewell was shown a copy of the Teamsters' flyer at the hearing, reviewed it, and indicated that it quoted him fairly accurately. He specifically recalled using the term "shown the gates." After the meeting, Ewell had Schroeder check on the problem of communications to Fort Sill employees, as he had promised during the meeting.

Other events after the October 10, 1985 meeting concerning the objections to the election will be discussed below in connection with each specific objection. As noted earlier, the election was held October 17th, and the Teamsters received a majority of the votes cast.

B. Facts and Circumstances Regarding Case No. 6-RO-40005

For the convenience of the reader, we are providing a summary of the facts and circumstances relevant to the objections. We have thoroughly reviewed the record, and as stated above, we conclude that the Judge appropriately evaluated the evidence in this case.

1. Objection 1

Objection 1 involves alleged Teamsters entry and campaigning inside commissary work areas during duty time, at 3:15 p.m. on September 27, 1985. The Teamsters' representative mentioned is Marge Duncan. The Commissary requires that non-employees sign in at a log, and wear an identification badge. The log for September 27, 1985, reveals that Marge Duncan entered the Commissary at 11:25 a.m. and left at 12:03 p.m. There is no entry for her in the log book during that afternoon. There is evidence that Duncan was at a retirement service from 3:00 p.m. until after 4:00 p.m. that day. [ v29 p9 ]

The Commissary Officer reviewed the entire log for the period September 1, 1985 until the election on October 17, 1985. The log is kept in the Commissary manager's office or just outside the secretary's office, upstairs. After 4:00 p.m. the log is brought downstairs to the Commissary store manager's office. There is no guard by it. The secretary does not check entries. The Commissary manager said that someone could forget to enter the log, but the person would soon be stopped for not wearing the required badge.

2. Objection 2

Objection 2 concerns an allegation that a supervisor permitted the Teamsters representatives to enter an office during duty time and speak to employees. First, Sandra Heine, the employee reporting the incident, stated at the hearing that she was given the incorrect surname for the person who "permitted" the Teamsters' representative's presence. Mildred Hood, the name given in the objection, was a recently retired supervisor. The employee who spoke to the Teamsters representative and allegedly gave permission is Mildred Marshall, a secretary. Heine did not know Mildred's surname, asked another employee, and was told it was "Hood."

On October 9, 1985, at approximately 9:30 a.m., Carl Stein and another Teamsters' representative entered the office. Stein spoke to the secretary, Mildred Marshall. He asked whether the employees had a set break period, and was told there was no set break period for the building. Stein asked whether they might distribute literature, and Marshall had no objection. The Teamsters' representatives then proceeded to place Teamsters brochures on the desks in the office.

Stein testified that he asked Marshall whether there was a break area and was told there was not. Stein did not notice any area that looked like a break area.

Heine testified that occasionally workers take breaks at their desks, but that there is a break area. Heine stated that she and three other employees were clearly working on their side of the office, and that they were not on break. Stein stated that no other employees were present when the distribution of literature began, and that an employee, believed to be Heine, returned while the distribution was being made. He spoke to her for about 30 seconds, and left a brochure on her desk. Stein estimated that he and the other representative were in the building for about 5 or 6 minutes. [ v29 p10 ]

The supervisors for this office were not present at the time. Heine's supervisor was on leave, and Marshall's supervisor was at a meeting.

3. Objection 3

The third objection deals with an alleged meeting between Teamsters' representatives and an employee at the hospital reception desk on October 9, 1985 between 11:15 and 11:45 a.m. On October 9th, Wanda Seelig, an employee and NFFE supporter, saw three Teamsters' representatives talking to the receptionist during duty hours. She told them that it was illegal and would report it. Seelig contacted Velda Mullins, an assistant to the Chief of Personnel. Mullins received Seelig's call at 11:22 a.m. Mullins checked the clock immediately to see whether this was before the lunch period. Mullins went over to the hospital reception desk, which was about a 2-minute walk. She found three people, LaVona Gribble, Dorey Clark, and an unidentified woman, standing and talking to Archie Davis, who was behind the desk. Davis was on duty. She did not hear the conversation. Mullins asked whether they were discussing union business, and she was told they were not. Davis said that he was at lunch, but Mullins did not see any lunch present. Mullins asked them to step aside from the desk so that patients could sign in. They complied.

Gribble testified that the lunch period for hospital reception desk personnel is from 11:30 to 12:30. She stated that she, Clark, and a Teamsters organizer from Louisiana arrived there at 11:31. Davis called them earlier and asked them to stop by. He invited then to a dance he was planning for Saturday night at a hotel.

Later that day, Gribble, Clark, and the Teamsters organizer asked for and received permission to speak to Seelig. They wanted to explain to her that they had not been discussing union business, but had been discussing the dance which Davis was planning. Seelig stated that she did not hear the conversation at the reception desk, and that those present stopped talking when she walked in. Seelig said that usually people do not become quiet unless they have been caught, and that is why she reported this as a discussion of union business. She said that it is common sense that you do not call someone and ask them to come over just to invite them to a dance; you invite them over the phone. [ v29 p11 ]

4. Objection 4

Objection 4 alleges that the polling place within Building 4705 (polling site 7) was moved to an inappropriate area and that other improprieties occurred at that polling place.

During the first election at Fort Sill, in June 1985, NFFE did not like the location of polling site 7. So management, NFFE and the Teamsters representatives met and discussed alternate locations. The Building 4705, which housed the medical library, was selected as the place for polling site 7.

At approximately 7:05 a.m. on October 17, 1985, Mullins, assistant to the Chief of Personnel, received a call from Capt. Stokes, of the hospital staff, stating that the polling place was in the wrong part of the library. The polling place had been set up by other management staff. Stokes said that computer equipment was to be installed in that portion of the building that day. The Chief of Personnel was not yet in, so Mullins went to the polling site to explain the need to move the poll. Mullins explained the situation to the FLRA agent, the Teamsters' observer, 4 and NFFE's observer, Wanda Seelig. Seelig objected. The FLRA agent did not object or say anything. No one was voting at the time, although others had voted earlier.

Mullins and Stokes moved the voting booth, tables, and chairs to the next room, the medical library itself. After it was moved, the polling booth was the same proximity from the door as it had been in the other room. Mullins knew of no complaint concerning the location of the booth, nor any allegation that the new location compromised ballot secrecy. Likewise, Mullins knew of no objection to the placement of the tables and chairs in the medical library.

No one was turned away from voting during the move or because of relocation of the polling site. Arrows were placed outside the building pointing to where to go to vote. [ v29 p12 ]

During the hearing, the Judge obtained detailed information from various witnesses concerning the layout of the polling site, and the approximate distances involved in the site. The Judge had Crouse sketch a diagram of the polling site. The Judge also asked many witnesses about the voting booth itself, and it is apparent that the booth was fully covered on three sides, with a shorter curtain on the fourth, or entry side. Thus, no one could see inside the booth itself.

One allegation relating to the propriety of the new setting for the polling site involves traffic through the area by those using the library during the day. However, one witness testified that only one or two military doctors used the library for books, and that the doctors did not stay long. No other information on library patrons is contained in the record.

Another aspect of the objection involves communications workers who entered the polling site for the stated purpose of seeing about a telephone installation or installing a phone. The objection concerns a violation of the election ground rules which required that all campaigning be at least 50 feet away from a poll. The communications workers arrived at the medical library wearing Teamsters' paraphernalia--for example, T-shirts, hats, belt buckles, etc. Three communications workers were there, and it was objected that a telephone installation does not require that many people. The communications workers did not have a telephone with them. The workers laughed while they were there, staying in the polling area about 10 minutes. There were voters present at the poll at the time. The NFFE observer objected that the presence of the communications workers, who were Teamsters' supporters, would potentially intimidate voters. The Teamsters' observer testified that the workers came in, did not bother anyone, and were not close to the voting booth. The FLRA agent present at polling site 7 did not testify at the hearing.

Finally, the last part of the objection involves a Teamsters' campaigner escorting a lady to the observer's table inside the polling site. Both the Teamsters and the NFFE observers testified that a Teamsters* campaigner escorted a lady inside the polling site and indicated to her where to go to vote. Both also testified that the lady being escorted was a deaf, mute individual. The NFFE observer objected because she did not believe that the individual needed an escort. [ v29 p13 ]

5. Objection 5

This objection relates to the "White House" meeting of October 10, 1985, which was publicized by a flyer prepared by the Teamsters and distributed at Fort Sill just prior to the October 17, 1985 election. The facts regarding this objection are set forth above in the findings of fact dealing with the unfair labor practice.

6. Objection 6

Objection 6 deals with two allegations of Teamsters' representatives distributing literature and campaign paraphernalia and talking to employees in work areas on duty time.

Pam Hoover, a mail file clerk, testified that "Charlie from Florida" and "Major" Peterson were in the work area after the morning break. She also testified that on the day of the election, Marge Duncan and Peterson were in the work area passing out materials.

Norma Mullin, Chief, Supply Branch, Material Support Division, testified that on the day of the election, she received a call from a supervisor that Teamsters' representatives were in the material management section. She left her office and went there. The Teamsters were leaving as she arrived. She recognized one of them, Peterson, a retired sergeant major. She knew that he had been campaigning on behalf of the Teamsters.

7. Objection 7

Objection 7 addresses an allegation that Teamsters' representatives were given access to locked work areas, after hours, to distribute campaign literature.

On September 24, 1985, Katherine Crowl was the first employee to arrive at the Reynolds Army Hospital Transcription Center. She unlocked the door and found that two Teamsters brochures were on each desk. Within the office, only she and the work leader had keys to the room, which is locked during non-work time. Apparently there are master keys to the room, since cleaning service is performed there in the evening. Thus, there was no way to prove how the Teamsters gained entrance to distribute the literature. [ v29 p14 ]

III. Positions of the Parties

A. Department of the Army

The Department of the Army excepts to the Judge's conclusions that (1) the October 10th meeting constituted conduct by the Army which employees would reasonably interpret as an expression by the Army that it favored the Teamsters in the pending representation election; and (2) the meeting gave the appearance of bargaining concerning contracting out, or, alternatively, did constitute bargaining concerning contracting out and its impact and implementation. The Army essentially presents the same arguments in its exceptions and brief in support of exceptions that it presented to the Judge.

B. Teamsters

The Teamsters filed extensive exceptions to the findings of fact and the decision of the Judge. The Teamsters raise arguments regarding the underlying situation similar to those made in its briefs to the Judge.

C. The General Counsel

The General Counsel argues in opposition to the exceptions that neither the Department of the Army nor the Teamsters raises any arguments or legal theories not already considered by the Judge. The General Counsel asserts that the Judge's findings and decision are correct and should not be disturbed.

D. NFFE

The National Federation of Federal Employees did not file exceptions or any opposition to the exceptions of other parties.

IV. Discussion of Case No. 6-CA-60105

Section 7116(a)(1) of the Statute provides that it is an unfair labor practice for an agency to "interfere with, restrain, or coerce" any employee in the exercise of that employee's rights under the Statute. The test which the Authority has applied in order to determine whether an agency's conduct constitutes interference, restraint or coercion is not the subjective perceptions of the employee, nor is it the intent of the agency. Rather, the test is whether, under the circumstances of the case, the agency's [ v29 p15 ] conduct may reasonably tend to coerce or intimidate an employee, or, in the case of a statement, whether an employee could reasonably have drawn a coercive inference from the statement. Federal Mediation and Conciliation Service, 9 FLRA 199 (1982). See also, Department of Treasury, Internal Revenue Service, Louisville District, 20 FLRA 660 (1985); U.S. Department of Justice. U.S. Marshals Service, 17 FLRA 304 (1985).

The basic issue in Case No. 6-CA-60105 is whether the Department of the Army interfered with or coerced employees' free exercise of their rights to select an exclusive representative. The specific issue before us is whether Fort Sill bargaining unit employees would reasonably infer that management expressed a preference for the Teamsters from the actions of two key Army officials in meeting and dealing with Teamsters' representatives at an October 10th meeting regarding contracting out at Fort Sill. By use of the term "meeting and dealing," we include meeting with Teamsters' representatives, listening to their concerns, discussing their problems, and replying to those concerns and problems. Such replies include the promises or commitments that employees would not lose their jobs and that Ewell would personally come to Fort Sill, if necessary, to ensure that communication with employees was accomplished. If such a preference would reasonably have been inferred from the agency's conduct, the conduct constitutes a violation of section 7116(a)(1) of the Statute.

At the time of the events giving rise to this case, NFFE and the Teamsters were campaigning and preparing for a runoff election for a 2500-employee bargaining unit at Fort Sill. During an election campaign, management has the duty to remain neutral. Department of the Air Force, Air Force Plant Representative Office (AFPRO), Detachment 27, Ft. Worth, Texas, 5 FLRA 492 (1981). A question concerning representation (QCR) exists when a question regarding which labor organization should represent employees is pending. Should any matter arise concerning employees' conditions of employment, management must maintain existing conditions of employment until the QCR is resolved. Department of Justice, Immigration and Naturalization Service, 9 FLRA 253 (1982), rev'd as to other matters sub nom. U.S. Department of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984). In the instant situation, while the QCR was pending at Fort Sill, NFFE remained the exclusive representative of the bargaining unit employees in the unit at issue. Therefore, management was obligated to deal with NFFE during that period on matters which affected those bargaining unit employees' conditions of [ v29 p16 ] employment, and management's dealing instead with another labor organization concerning their conditions of employment would constitute interference with the rights of those bargaining unit employees. See id.

The facts reveal that Army officials did meet and deal with the Teamsters at the October 10th meeting, concerning a condition of employment, namely contracting out, for bargaining unit employees at Fort Sill. The meeting occurred during the pendency of a QCR at Fort Sill. While the Teamsters did represent a separate, smaller unit at Fort Sill, the Teamsters' allegation that the meeting was limited to that unit's conditions of employment is unsupported by the record. Rather, it is clear that the Teamsters and the NFFE bargaining unit members in attendance presented contracting out problems facing Fort Sill employees, including those employees in the unit which was the object of the runoff election. The management officials present at the October 10th meeting gave promises or assurances to the Teamsters' representatives and the NFFE bargaining unit members in response to their inquiries and concerns with respect to conditions of employment in the unit represented by the Teamsters and in the NFFE unit. Specifically, in response to NFFE unit member Stein's concern that workers would be unemployed as a result of contracting out, Ewell stated that there was no reason for employees to be "shown the gates" of Fort Sill. After Ewell was told by the Fort Sill employees that their input was not being solicited and that they were not being informed of contracting out developments, Ewell further stated that he would personally come to Fort Sill to ensure that full communication with the workers occurred. In agreement with the Judge, we find that this conduct by management provides a sufficient basis for finding that the Agency violated its duty of neutrality during the pendency of a QCR. From this conduct, employees reasonably could infer management's preference for the Teamsters. Such conduct constitutes interference with the employees' right to freely choose who should be their exclusive representative.

For the reasons discussed below, we conclude that the exceptions filed by the Respondent and the Teamsters do not provide any basis to overturn the Judge's conclusions that the Respondent's conduct constituted an unfair labor practice.

A. Exceptions by Department of the Army

The Department of the Army raised two exceptions regarding whether the actions by Army officials at the October 10th meeting would reasonably be interpreted by [ v29 p17 ] employees as an expression of preference for the Teamsters, and whether the meeting constituted bargaining or gave the appearance of bargaining concerning contracting out.

The Army's exceptions merely reflect disagreement with the Judge's well-reasoned conclusions which we have adopted. As indicated above, the facts clearly show that Army officials met with Teamsters representatives during the pendency of a QCR at Fort Sill and discussed matters affecting NFFE bargaining unit employees' conditions of employment. In agreement with the Judge, we find that the Army was aware of the pending election at Fort Sill through information provided by Schroeder and his memorandum. We have found this conduct sufficient to constitute interference with the employees' exercise of their rights. We therefore need not reach the issue of whether the conduct at the October 10th meeting actually constituted bargaining.

B. Exceptions by the Teamsters

Many of the Teamsters' exceptions, or portions of exceptions, relate to the Judge's findings of fact or to his failure to include certain alleged undisputed facts in his Decision. The Teamsters also allege that the Judge "plagiari(zed)" from portions of the General Counsel's brief. We have set out the facts of the case, above, necessary to resolve the complaint. In preparing our findings of fact, we have thoroughly reviewed the record and find that the Judge's findings are supported by the record in this case. The Teamsters' exceptions merely reflect disagreement with the Judge's interpretation of the record of this case.

The Teamsters also raise multiple exceptions, many of which are interrelated or repetitive, and which concern matters not relevant to this complaint or matters which we need not reach. As indicated below, we will not address exceptions regarding these issues.

Finally, the Teamsters except to the Judge's failure to record in his decision that the Teamsters are a &party' to both Case No. 6-CA-60105 and Case No. 6-RO-40005. We have noted the Teamsters as a party to both cases in the caption of this decision. Moreover, their status as a &party' to the unfair labor practice proceeding, granted by the Judge, is clearly expressed on the second page of this decision. [ v29 p18 ]

C. Teamsters' exceptions regarding section 7116(e)

Many of the Teamsters' exceptions relate to section 7116(e) of the Statute. The Teamsters argue that management's conduct at the October 10th meeting is protected by the provisions of that section, and that because of section 7116(e) there is no basis for finding an unfair labor practice complaint against management.

Section 7116(e) of the Statute states:

The expression of any personal view, argument, opinion or the making of any statement which--

(1) publicizes the fact of a representational election and encourages employees to exercise their right to vote in such election,

(2) corrects the record with respect to any false or misleading statement made by any person, or

(3) informs employees of the Government's policy relating to labor-management relations and representation,

shall not, if the expression contains no threat of reprisal or force or promise of benefit or was not made under coercive conditions,

(A) constitute an unfair labor practice under any provision of this chapter, or

(B) constitute grounds for the setting aside of any election conducted under any provisions of this chapter.

Based on our findings of fact, we find that management's actions at the October 10th meeting were not undertaken for any of the allowable purposes listed above in subsections (1), (2), or (3). Further, even if we were to find that management's actions fall within one of the three allowable categories, it is clear that at least two promises were made by representatives of the Department of the Army during the meeting: (a) that employees need not fear that they would be "shown the gates" of Fort Sill, that is, they need not fear losing employment if contracting out occurs; and (b) that officials of the Department of the Army would ensure that employees were informed of activities concerning contracting out at Fort Sill; that employees' input would be sought regarding contracting out; and that, if this did not occur, [ v29 p19 ] an Assistant Secretary of the Army would personally come to Fort Sill and conduct the required communication with the employees. Therefore, because these promises of benefit were made at the meeting in response to points raised by the Teamsters' attendees, the meeting does not fall within the protection of section 7116(e). See 162nd Tactical Fighter Group, Arizona Air National Guard, Tucson, Arizona, 18 FLRA 583, 607 (1985). For this reason, the exceptions raised by the Teamsters involving section 7116(e) of the Statute are without merit.

D. Teamsters' exceptions regarding consultation on policy

Several of the Teamsters' exceptions contend that the October 10th meeting constituted lawful consultation by a labor organization with management. The Statute provides for two types of consultation: national consultation rights and consultation rights on Government-wide rules or regulations. The authorities for these rights are found at 5 U.S.C. 7113 and 7117(d)(1), respectively. Implementing regulations for these consultation rights are found in Part 2426 of the Authority's Rules and Regulations. Neither the Teamsters nor the Department of the Army alleges that the Teamsters possess either of the consultation rights, nor does the record reflect that these consultation rights are accorded to the Teamsters. The "authorities" cited by the Teamsters in the exceptions do not support its contentions in this regard.

The Teamsters also argue that the October 10th meeting constituted "consultation" in general, under an entitlement established by the President's policy statement on consultation with organized labor, and the Secretary of Defense's implementing statement. This argument overlooks the fact that under the Statute, management must deal only with the exclusive representative of its employees regarding conditions of employment. Further, during the pendency of a QCR, any dealings must be with the incumbent exclusive representative. Thus, under this theory any consultations which management wished to conduct with respect to the NFFE unit could have lawfully involved only NFFE. See Department of Justice, Immigration and Naturalization Service, 9 FLRA 253, 283-86 (1982).

For the above stated reasons, the Teamsters' several exceptions regarding consultation and presentation of views on policy matters are without merit. [ v29 p20 ]

E. Teamsters' exceptions disagreeing with the Judge's conclusions or rulings

Several of the Teamsters' exceptions merely disagree with the Judge's findings, conclusions or rulings which we have adopted for the reasons and with the minor modifications set forth above. 5 As to those exceptions warranting separate consideration, we find, for the reasons stated below, that none present grounds to alter the Judge's Decision.

The Teamsters except to the Judge's admission of General Counsel's Exhibit 20, which is the memorandum from Schroeder regarding information provided to Ewell in preparation for the October 10th meeting. The Teamsters assert that the memorandum is inadmissible because it is hearsay since Schroeder did not testify and identify the memorandum at the hearing. The Judge found that the memorandum was admissible since it was contained in the Department of the Army's files, and because Ewell indicated, during his testimony, that the content of the memorandum is essentially the same as the information conveyed to him by Schroeder in advance of the meeting. Furthermore, 5 U.S.C. 7118(a)(6) provides that in hearings in unfair labor practice cases, traditional rules of evidence are not binding. Finally, Ewell testified concerning his office's practice of preparing "memos to the record." For these reasons, the Teamsters' exception is without merit.

The Teamsters except to the Judge's reliance on established Authority rulings that agencies have a duty to remain neutral during the pendency of a QCR, and that the incumbent union was and remains the representative of the employees during the pendency of a QCR. The Teamsters' exceptions amount to nothing more than disagreement with a long line of Authority decisions. We find no reason to overturn our established precedent, and, in agreement with the Judge, as explained above, we reaffirm the Authority's holding that agencies must remain neutral during the pendency of a QCR. See Department of the Air Force, AFPRO, 5 FLRA 492, 500 (1981). We also reaffirm the principle that during the pendency of a QCR the incumbent union was and remains the exclusive representative of the employees. See Department of Justice, Immigration and Naturalization Service, 9 FLRA 253, 283-86 (1982). [ v29 p21 ]

The Teamsters also disagree with the Judge's ultimate conclusion that the conduct of the Department of the Army constituted the unfair labor practice as alleged. The Judge properly stated the test to be used in judging conduct in situations concerning an agency's neutrality during the pendency of a question concerning representation, such as surrounded the October 10th meeting. The test is whether, under the circumstances of the case, the employer's conduct or statements reasonably tend to interfere with the exercise of employees' protected rights. Federal Mediation and Conciliation Service, 9 FLRA 199 (1982). The Judge based his conclusion on that test. The Judge explained in detail the facts relied upon to reach his conclusion. These included the events at the meeting, the matters discussed, and the promises made. The Judge noted especially the Respondent's statements that employees need not fear "being shown the gates of Fort Sill" should contracting out occur, and Ewell's commitment to personally come to Fort Sill, if necessary, to ensure that communications with employees concerning contracting out occurred. The Judge also pointed to Schroeder's memorandum, found in the Department of the Army's files, which Ewell testified was essentially the same as the information orally supplied to him by Schroeder in preparation for the meeting. The Teamsters' exception constitutes nothing more than disagreement with the Judge's evaluation of the facts of the case.

P. Teamsters' remaining exceptions

Finally, many Teamsters' exceptions address matters which are not relevant to this complaint, or matters which are not necessary to address in order to decide this case.

The Teamsters raise several exceptions regarding the Judge's failure to adopt facts found in the General Counsel's decision to dismiss another unfair labor practice charge against the Department of the Army. In agreement with the Judge, we find that this case must be decided on its own record. 5 U.S.C. 7118(a)(7). Further, the decision of the General Counsel on an appeal of a Regional Director's decision not to issue a complaint is final, and is not subject to review by the Authority or any other body. See Turgeon v. FLRA, 677 F.2d 937 (D.C. Cir. 1982).

The Teamsters except to the Judge's failure to find that bargaining about contracting out is outside the duty to bargain. The Federal Service Labor - Management Relations Statute, at 5 U.S.C. 7106(a)(2)(B), provides among other things that it is a reserved management right to decide whether to contract out. However, impact and implementation [ v29 p22 ] bargaining concerning contracting out is within the duty to bargain. See American Federation of Government Employees, AFL - CIO, Local 1923 and Department of Health and Human Services, Office of the Secretary, Office of the General Counsel, Baltimore, Maryland, 22 FLRA No. 106 (1986), enforced sub non.. U.S. Department of Health and Human Services v. FLRA, 822 F.2d 430 (1987); American Federation of Government Employees, Local 1904 and Department of the Army, 16 FLRA 358 (1984); and American Federation of Government Employees, AFL - CIO, National Council of EEOC Locals and Equal Employment Opportunity Commission, 10 FLRA 3 (1982), enforced sub nom. EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed, 106 S.Ct. 1678 (1986) (per curiam). While the negotiability of contracting out is not a part of the complaint before us, the Teamsters are raising the nonnegotiability of contracting out as an affirmative defense. The Teamsters assert that if a nonnegotiable subject were being discussed, the meeting could not have been a discussion on conditions of employment. As indicated above, while the right to make determinations with respect to contracting out is a reserved management right, aspects of the impact and implementation of that right are within the duty to bargain. Therefore, a meeting discussing such impact or implementation of a contracting out decision constitutes discussion on conditions of employment. Thus, the Teamsters' exception regarding the negotiability of contracting out matters is without merit.

Several Teamsters' exceptions involve matters which generally relate to employees' rights. These matters include, but are not limited to, freedom of speech under the First Amendment, the right to petition, and the right to seek information from appropriate sources within the Government. These issues do not relate to the conduct of the Department of the Army, which is the subject of this complaint. Since these exceptions raise issues which are not relevant to the issues in this case, the exceptions do not provide any support for the Teamsters' position that the Respondent did not commit the unfair labor practices alleged.

Other Teamsters' exceptions address the rights of the Teamsters, including rights associated with their status as an exclusive representative of another bargaining unit at Fort Sill. Again, the Teamsters' conduct is not the subject of the complaint in this case, and the issues which the Teamsters raise in this regard are therefore irrelevant.

The Teamsters argue that the October 10th meeting was a formal discussion concerning grievances or general conditions of employment at which the exclusive representative in to be [ v29 p23 ] given the opportunity to be present, in accord with section 7114(a)(2)(A) of the Statute. There were four Fort Sill employees present at the meeting. The Teamsters were the exclusive representative of the bargaining unit in which only one of the employees was located. The remaining three Fort Sill employees were in the bargaining unit represented by NFFE. Thus, this contention does not change the fact that management met and dealt with a labor organization other than the exclusive representative with respect to bargaining unit matters, during the pendency of a QCR.

Additional Teamsters' exceptions address the rights of NFFE. The rights and conduct of NFFE, separate from the rights of the employees it represents, are not involved in the actions of the Department of the Army which are the subject of this complaint. Therefore, the Teamsters' exceptions regarding NFFE's rights are irrelevant.

Lastly, other Teamsters' exceptions regard the "realities of electioneering" and campaigning between rival labor organizations. Our answers to these exceptions are contained in our overall findings and conclusions adjudicating the substance of the complaint before us under the statutory framework that regulates labor-management relations in the Federal sector.

G. Summary

Based on the discussion above, we find that the Department of the Army violated its duty to remain neutral during the pendency of a question concerning representation at Fort Sill, by meeting and dealing on conditions of employment of the NFFE bargaining unit with representatives of the Teamsters at a meeting on October 10, 1985. The Army knew of the pending election at Fort Sill. The meeting related to contracting out at Fort Sill, for employees in the bargaining unit then represented by NFFE, and for which the Teamsters were attempting to gain recognition. Thus, management was meeting and dealing on matters involving bargaining unit employees' conditions of employment with a labor organization other than the exclusive representative of those unit employees. Furthermore, Army management conducted these discussions with, among others, three employees from the NFFE bargaining unit. By this conduct, management's actions, reasonably interpreted, showed a preference for one of two competing labor organizations during the course of an election campaign. This conduct interfered with the bargaining unit employees' exercise of their rights to freely choose their exclusive representative, and therefore violates section 7116(a)(1) of the Statute. [ v29 p24 ]

V. Discussion of Case No. 6-RO-40005

Seven objections were raised regarding events related to the October 17, 1985 election between NFFE and Teamsters at Fort Sill. It is the goal of the Authority to maintain conditions which will best ensure that the employees' choice in selecting an exclusive representative will be free from outside influence. The same premise exists for conditions for elections of exclusive representative conducted by the National Labor Relations Board. While totally perfect conditions may not always exist, efforts must be made to retain as close to optimum conditions as possible.

The Judge recommended dismissal of six of the seven objections to conduct alleged to have improperly affected the results of the election. We find, in agreement with the Judge, that six of the seven objections should be dismissed. The Judge recommended that the remaining objection, Objection No. 5, be sustained. However, in accordance with the Authority's Rules and Regulations, the Judge made no recommendation as to any remedial action to be taken concerning that objection.

Objection No. 5 relates to the October 10th meeting which was the subject of a Teamster campaign flyer entitled "When we talk for you, the White House listens," and which was distributed less than 24 hours before the polls opened on October 17, 1985. The events surrounding the October 10th meeting have been discussed in detail in connection with Case No. 6-CA-60105 above, and need not be recounted here. We find, in agreement with the Judge, that Objection 5 should be sustained. In our view, the matters set forth in Objection 5 demonstrate impermissible interference with the conduct of a fair election.

We have reviewed the entire record in this case, and conclude that Objection No. 5 to the election should be sustained. We therefore find that the runoff election conducted on October 17, 1985, must be set aside and we will direct that a third election be held.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the Authority hereby orders that the Department of the Army, Washington, D.C. and the Department of the Army, Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma shall: [ v29 p25 ]

1. Cease and desist from:

(a) Conducting or participating in meetings requested by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or arranged by White House staff, with employees in a unit represented by the National Federation of Federal Employees, or any other labor organization, during which terms and conditions of employment and matters of concern to employees are discussed, while a question concerning representation involving the unit is pending before the Authority.

(b) In any like or related manner, expressing a preference as to which labor organization should prevail in a representation election.

(c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Post at the Department of the Army, Office of the Secretary, in Washington, D.C. and at all facilities of the Department of the Army, Fort Sill, Oklahoma, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Secretary of the Army, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VI, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

DIRECTION OF THIRD ELECTION

An election by secret ballot shall be conducted among the employees in the unit set forth in the Agreement for Consent or Directed Election in Case No. 6-RO-40005 approved September 26, 1985, as soon as feasible, but not earlier than sixty (60) days from the date of posting of the attached Notice To All Employees. The Regional Director, Region VI, Federal Labor Relations Authority shall supervise or conduct, [ v29 p26 ] as appropriate, the election subject to the Authority's Rules and Regulations. Eligible to vote are those in the unit who were employed during the payroll period immediately preceding the date below, including employees who did not work during the 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 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 whether they desire to be represented for the purpose of exclusive recognition by the National Federation of Federal Employees, Local 273, or by the General Drivers, Chauffeurs and Helpers Local Union 886, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.

Issued, Washington, D.C.,October 23, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 p27 ]

                     NOTICE TO ALL EMPLOYEES
       AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
              AND TO EFFECTUATE THE POLICIES OF THE
        FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
                  WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT conduct or participate in meetings requested by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or arranged by White House staff, with employees in a unit represented by the National Federation of Federal Employees, or any other labor organization, and during which terms and conditions of employment and matters of concern to such employees are discussed, while a question concerning representation for the unit is pending before the Federal Labor Relations Authority.

WE WILL NOT in any like or related manner, express a preference as to which labor organization should prevail in a representation election.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.

                             ______________________________
                                       (Agency)

Dated:____________________By:______________________________
                               (Signature)        (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region VI, Federal Labor Relations Authority, whose address is: 525 Griffin Street, Suite 926, Dallas, Texas 75202 and whose telephone number is: (214) 767-4996. [PAGE]

UNITED STATES DEPARTMENT OF
DEFENSE, DEPARTMENT OF THE
ARMY, WASHINGTON, D.C.

          Respondent

    and

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES

          Charging Party

    and

UNITED STATES DEPARTMENT OF
DEFENSE, DEPARTMENT OF THE
ARMY, HEADQUARTERS, U.S.
ARMY FIELD ARTILLERY CENTER
AND FORT SILL, FORT SILL,
OKLAHOMA

          Agency

GENERAL DRIVERS, CHAUFFEURS
AND HELPERS LOCAL UNION, NO.
866, AFFILIATED WITH
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS
OF AMERICA

          Petitioner/Intervenor

    and

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES,
INDEPENDENT, LOCAL 273

          Incumbent Labor
            Organization

Case No. 6-CA-60105
         6-RO-40005

[PAGE]

Sam Horn, Esq.
Russell D. Bennett
    For the Respondent and Agency

James W. Mast, Esq.
Christopher J. Ivits, Esq.
    For the General Counsel, FLRA

L. N. D. Wells, Esq.
    For Petitioner/Intervenor
      Local 886, IBT

David Dingee
    For the Charging Party/
      Incumbent Labor Organization
      NFFE, and NFFE Local 273

Before: Samuel A. Chaitovitz
         Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding arising under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101 et seq., 92 Stat. 1191, hereinafter referred to as the Statute, and the Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV, 2400 et seq., hereinafter called the FLRA's Rules and Regulations.

A Notice of Hearing on Objections in Case No. 6-RO-40005 was issued on November 6, 1985 by the Director of Region VI of the FLRA stating that a hearing would be held based on timely objections filed by National Federation of Federal Employees, 6 Local 273 (hereinafter called NFFE Local 273) with respect to a runoff election conducted on October 17, 1985.

On November 18, 1985 a charge was filed by NFFE alleging that Department of Defense, Department of the Army, Fort Sill, had violated the Statute. On January 31, 1986 a First Amended Charge was filed by NFFE alleging that Department of [ v29 p2 ] Defense, Department of the Army, Washington, D.C./Department of the Army, U.S. Army Field Artillery Center, Ft. Sill, Oklahoma violated the statute. On February 12, 1986 a Second Amended Charge was filed by NFFE alleging that Department of Defense, Department of the Army, Washington, D.C., hereinafter called Army, violated the Statute.

On February 19, 1986, the Director of Region 6 of the FLRA issued a Complaint and Notice of Hearing in Case No. 6-CA-60105 alleging that Army violated section 7116(a)(1) of the statute on or about October 10, 1985, by breaching the requirement of neutrality during the pendency of a question concerning representation of its Fort Sill, Oklahoma facility by conducting a meeting with representatives of the General Drivers, Chauffeurs and Helpers Local Union No. 886, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 7 and employees of the bargaining unit which was represented by NFFE, Local 273, during which matters concerning conditions of employment were discussed. In the alternative, the complaint alleged that Army violated section 7116(a)(1) of the statute on or about October 10, 1985, by breaching the requirement of neutrality during the pendency of a question concerning representation at its Fort Sill, Oklahoma facility by conducting a meeting with representatives of the Teamsters Local 886, Teamsters International, and employees of the bargaining unit which was represented by NFFE, Local 273, during which matters concerning conditions of employment were discussed when Army either knew or should have known that there was a pending question concerning representation and/or that the employees at the meeting were employees of the bargaining unit represented by NFFE, Local 273. On February 19, 1986, an order consolidating Case No. 6-RO-40005 and Case No. 6-CA-60105 issued. Army filed a timely answer denying it had violated the Statute.

A hearing was conducted before the undersigned in Fort Sill, Oklahoma. All parties were represented and afforded full opportunity to be heard, to examine and cross-examine [ v29 p3 ] witnesses, to introduce evidence and to argue orally. Post bearing briefs and reply briefs have been filed and fully considered.

Based upon the entire record In this matter, my observation of the witnesses and their demeanor, and my observation of the record, I make the following:

Findings of Fact

A. Facts Relating to the Representation Elections in Case No. 6-RO-40005

On April 20, 1984, IBT Local 886 filed a petition n Case No. 6-RO-40005 for election in a bargaining unit 8 which was represented by NFFE Local 273 and consisted of:

All nonsupervisory, nonprofessional appropriated fund employees stationed at Fort Sill, Oklahoma, for whom the Commanding General, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma; or the Commander, U.S. Army Medical Department Activity, Fort Sill; or the Commander, U.S. Army Dental Activity, Fort Sill; or the Director, U.S. Army Communications Command Agency, Fort Sill, or the Commissary Officer, Fort Sill Commissary, Midwest Region, U.S. Army Troop Support Agency, Fort Sill, has delegated appointing authority, excepting those units already covered by exclusive recognition as excluded below,

and excluded:

All nonprofessional, nonsupervisory, GS and WG employees assigned to the Directorate of Facilities Engineering under Exclusive to the Teamsters Local [ v29 p4 ] 886, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; also excluded are employees assigned to the U.S. Army Field Artillery Board and employees of any other organization that are or may be assigned to Fort Sill for which the Commanding General, U.S. Army Field Artillery Center and Fort Sill; or the Commander, U.S. Army Medical Department Activity, Fort Sill; or the Commander, U.S. Army Dental Activity, Fort Sill, or the Director, U.S. Army Communications Command Agency, Fort Sill; or the Commissary Officer, Fort Sill Commissary, Midwest Region, U.S. Army Troop Support Agency, Fort Sill, does not have delegated appointing authority; management officials, professional employees, employees engaged in Federal personnel work in other than a purely clerical capacity, and supervisors as defined in Executive order 1141, as amended, and all personnel whose duty station in other than Fort Sill, Oklahoma.

On December 19, 1984, the Regional Director for the Sixth Region issued a decision and direction of election in Case No. 6-RO-40005. NFFE filed an application for review of the Regional Director's decision and direction of election, which was denied by the Authority on April 15, 1985. Pursuant to the decision and direction of election, the parties to the election, U.S. Department of Defense, Department of the Army, Headquarters, U.S. Army Field Artillery Center, Fort Sill, NFFE Local 273, and Teamsters Local 886, reached an agreement for consent or directed election which was approved by the Regional Director for the Sixth Region on May 30, 1985.

On June 20, 1985, an election was conducted In the unit described above at the Fort Sill, Oklahoma facility. The results of the election were inconclusive, however, as neither NFFE Local 273 nor Teamsters Local 886 received a majority of valid votes cast In the election. NFFE Local 273 received 493 votes; Teamsters Local 886 received 240 votes.

On September 26, 1985, the Regional Director for the Sixth Region approved a second agreement for consent or directed election, which provided for a runoff election [ v29 p5 ] between the Teamsters Local 886 and NFFE Local 273 in Case NO. 6-RO-40005. The runoff election was conducted on October 17, 1985, at Fort Sill. IBT Local 886 received a majority of valid votes cast in the election.

Following the election on October 22, 1985, NFFE filed objections 9 to the election, which were consolidated with the unfair labor practice charge in this case.

B. Background Concerning the Arrangements made for the October 10, 1985 "White House" Meeting

Prior to the first election on June 20, 1985, Jackie Presser, General President of IBT, on May 17, 1985, wrote a letter to Edward J. Rollins, Assistant to the President for Political and Governmental Affairs, requesting a meeting to discuss contracting out at Fort Sill. Presser's letter is as follows:

Teamsters Local Union No. 886 presently represents the employees of the Department of Engineering and Housing, Motor Pool, and other auxiliary workers at Fort Sill, Oklahoma. Teamsters are currently involved in an election campaign for 2,400 additional Ft. Sill workers, many of whom are affected by the issue raised in this letter.

Our members, led by officers of Local 886, are fighting an attempt to contract out several functions at Ft. Sill. Management at Ft. Sill has dreamed up a proposed contract that will cost the federal government untold dollars, destabilize the local economy and decrease the level of employee efficiency. If the proposed contract becomes a reality, it will surely wipe out the pension plans and jobs of workers who have given years of dedicated services.

The process of devising this phony contract violated most every regulation [ v29 p6 ] that is supposed to be followed. Management did not consult nor give Local 886 the opportunity to challenge the data offered in support of management's claim that contracting out would be cheaper. As you know, in a recent federal decision, an arbitrator ordered a contract cancelled and the employees reinstated with back pay because of violations just like those occurring at Ft. Sill.

We believe our members deserve better. The Government will not be any better off if this work is contract out. We urgently request a meeting to discuss with you the union side of this issue. I look forward to hearing from you and any assistance you might render.

By letter dated May 28, 1985, Rollins responded, as follows:

Dear Jackie:

I am in receipt of your letter regarding Teamsters Local 886 and Ft. Sill.

Jackie, as you know, contracting out is a complicated process that must be judged on a case by case basis. The Secretary of Defense has made a series of recommendations to the House Armed Services Committee on contracting out government work, and we expect new legislation In the near future.

I would be glad to meet with you and/or the representatives of Teamsters Local 886 to go over the particulars of the Ft. Sill situation. We understand that your insistence that your members be treated fairly, and I want to assure you that we have every intention of protecting the workers in the federal government. I hope that we can resolve the situation at Ft. Sill in a way that everyone will find acceptable and fair. [ v29 p7 ]

Best personal regards.

Sincerely,

Edward J. Rollins
Assistant to the President
for Political and
Governmental Affairs

During the election campaign, preceding the June 20 election, Teamsters Local 886 distributed a handbill displaying both Presser's letter to Rollins and Rollins' response. The handbill also contained the following:

Teamsters have gone to the top for you and we're not done yet. On June 20th, the biggest question is representation. And that's why the biggest union in the free world is the only answer. On June 20th, vote for the Public Employee Division of Local 886 Teamsters. Local 886 Headquarters, 2202 Fort Sill Blvd., Lawton, OK 73501.

Rollins sent the following letter to NFFE President James M. Peirce:

                   THE WHITE HOUSE
                  WASHINGTON, D.C.

                    July 1, 1985

Mr. James M. Peirce
President
National Federation of Federal Employees
2020 K Street, N.W., Suite 220
Washington, D.C. 20006

Dear Mr. Peirce:

I am in receipt of your letter regarding the union representation election at Fort Sill involving the National Federation of Federal Employees Local 273. I want to state clearly that the White House takes no sides in the election at Fort Sill or in any other union elections. Furthermore, [ v29 p8 ] it should be clear to all that the President gives fair consideration to the legitimate concerns of all citizens and their organizations. In this respect NFFE's access to the White House is equal to that of any other organization.

I trust this will eliminate any confusion that may exist at Fort Sill.

Sincerely,

Edward J. Rollins

During the runoff election campaign NFFE circulated a handbill which reproduced this letter. There is no evidence NFFE attempted to set up any such meeting.

When Barry Feinstein, Director of the Public Employee Trade Division for IBT was notified of the Rollins' May 28, 1985 response, he requested a meeting be set up as soon as possible. The meeting was arranged for October 10, 1985. The details of the meeting were worked out by IBT, who later called Feinstein and informed him of the date the meeting would take place and how many people would be able to attend. IBT also asked Feinstein to provide the names and identification of those people who would be in attendance. Feinstein called Charlie Thompson, President of IBT Local 886, and asked him to select the people who would be "appropriate" to attend the October 10, 1985 meeting. Feinstein later provided the IBT with the names and identification of those who would be present.

Three or four months prior to the October 10, 1985 meeting, IBT organizers approached two employees included in the NFFE bargaining unit, Marge Duncan and Carl Stein, and informed them of a possible meeting in Washington.

Two days prior to the October 10, 1985 meeting, Duncan and Stein, and a third member of the NFFE bargaining unit, Kenneth Fox, were approached by Paul Plumlee, Teamsters' Business Agent, and were invited to attend the meeting. Fox secured leave to attend the trip through his supervisor, Williams, and his foreman, Quoyah. He informed them he was going to attend a meeting in Washington with the Teamsters.

A week prior to the October 10, 1985 meeting, Michael Owen, Principal Deputy Assistant Secretary for Installations [ v29 p9 ] and Logistical was informed of the "White House" meeting with the Teamsters. He was given a memorandum dated October 7, 1985, which indicated there would be a meeting on October 10 from 3:00 - 3:30 p.m. with the Director of Governmental Affairs, the Teamsters, members of (Teamsters) Public Employee Trade Division, and an Oklahoma Bargaining Unit, The memorandum listed the purpose of the meeting as "To discuss contracting out problems at OK Army Base."

Valcris Ewell, Deputy Assistant Director of the Army for Programs and Logistics, was also sent a copy of the October 7, 1985 memorandum, setting up the "White House" meeting with the Teamsters. Upon seeing the memorandum, Ewell called Colonel James Schroeder, a staff member on the Department of the Army staff in the Comptroller of the Army's office, to find out "what the meeting was about, who, et cetera." As a result of this request, Colonel Schroeder prepared a one-page briefing paper for the meeting. The memo which is addressed to Ewell and signed by James M. Schroeder, Colonel, GS, Chief, OERP Division, is as follows:

                      DEPARTMENT OF THE ARMY
              OFFICE OF THE COMPTROLLER OF THE ARMY
                      WASHINGTON, DC 20310

               DIRECTORATE FOR RESOURCE MANAGEMENT

DACA-PME

MEMORANDUM FOR MR. EWELL

SUBJECT: Meeting at OEOB on Fort Sill Commercial Activities

1. Following is information available on the situation at Fort Sill for your meeting tomorrow.

- The Teamsters Union represents the 600 DEH employees, the only Teamster local in the Army. The National Federation of Federal Employees (NFFE) represents the other 2500 employees on Fort Sill.

- The Teamsters are trying to take over representation of the 2500 other employees. The election will be on 17 Oct.

- The NFFE has been advertising that the Teamsters don't care what happens In the CA [ v29 p10 ] studies (listed attached). The Teamsters will represent the winner, contract or in-house decision. The NFFE represents only government workers.

- Jackie Presser will reportedly be present to claim that the union is working to get a good review. But, they have problems with the CA program.

2. Your meeting is a show the flag meeting to impress Fort Sill's workers that the Teamsters can do more for them than the NFFE.

JAMES M. SCHROEDER
Colonel, GS
Chief, OERP Division

The attachment to the memo reads as follows:

         FORT SILL COMMERCIAL ACTIVITIES STUDIES

                            ANNOUNCED          SCHEDULED
FUNCTION                   CIV     MIL     COMPLETION DATE

INDUSTRIAL OPERATIONS      583      73         860131

FIRING TABLE MFG PLANT       7                 860831

AUDIOVISUAL SERVICES        34      13         870228

FACILITY ENGINEER          513       6         860531

INSTALLATION SERVICES               28         860930

NOTE: The management study has been completed for all but the last entry.

While Ewell did not remember seeing the Schroeder memo, Schroeder did provide the "substance" of his memo to Ewell orally. 10 [ v29 p11 ]

On October 10, 1985, Andrew Card, Special Assistant to the U.S. President for Intergovernmental Affairs, attended a regular political and intergovernmental affairs meeting in Mitch Daniel's office. Mitch Daniels was the Assistant to the U.S. President for Political and Intergovernmental Affairs. 11

After the meeting, Card was approached by C.C. Cole McInturff, Special Assistant to the U.S. President for Political and Intergovernmental Affairs, and was asked to attend a meeting which neither she nor Daniels could attend. McInturff told Card that the Department of the Army was aware of the meeting and the issues that would be raised. She also told Card the Teamsters and officials from the Department of the Army would be present and the subject of the meeting would be contracting out. Card, agreed to attend.

C. The October 10, 1985 meeting

On October 10, 1985, five employees from Fort Sill's two bargaining units left Lawton, Oklahoma for the "White House" meeting in Washington, D.C. Three employees who were in the NFFE bargaining unit went to the meeting; they were: Kenneth Fox, Wire Communications Cable Splicer, USAISC; Marge Duncan, Supply Clerk; and Carl Stein, Equipment Repairer, Directorate of Logistics (DOL), which was formerly known as the Director of Industrial Operations (DIO). Two employees in the Teamsters bargaining unit who also attended were Aubrey Parks, Welder, DEH, and Charlie Thompson, President of Teamsters Local 886. Both Fox and Parks brought with them papers which they had written concerning contracting out.

The five employees from Fort Sill arrived in Washington, D.C. at about 1:00 p.m. on October 10, 1985, and immediately proceeded to the IBT Headquarters. At the Teamsters' Headquarters, the employees were met by Feinstein, Joe McDermott, Feinstein's assistant, and John Ring, a Teamsters representative from the Public Affairs office. The five employees and three Teamsters representatives met for a 20-45 minute briefing. During the briefing, the employees generally discussed the "White House" meeting.

Following this briefing, employees Fox, Duncan, Stein, Thompson and Parks, and Teamsters representatives Feinstein, [ v29 p12 ] McDermott, and Ring went to the Old Executive Building. Upon arriving at the Old Executive Building, the employees were checked in through Security. The Security Office checked for their names on a roster and checked on the employees' identity through a computer. After Security checked the employees' names and identity, the employees and Teamster representatives were taken to an unused office in the Old Executive Building. There they were met by Card and Owen, who introduced themselves to the employees and Teamsters representatives. 12

About 10-15 minutes after the meeting started, Ewell arrived. 13

Upon Ewell's arrival, Ewell introduced himself to the group and Fox introduced himself as "Kenneth Fox, I work at USAISC, Fort Sill, Oklahoma"; Duncan introduced herself as "Marge Duncan, Supply Clerk, Fort Sill, Oklahoma"; and Stein introduced himself as "Carl Stein, Equipment Repairer, Fort Sill, Oklahoma."

The general subject of the meeting was contracting out and its implications. Fox spoke about the fringe benefits factor and his belief that fringe benefits do not exist when Federal wages are 18 and 36 percent below the private sector. Ewell disagreed with this statement and Feinstein supported Fox's assertion. Fox also complained about contracting out in his own particular directorate, USAISC. 14 Fox complained that the contract date for his organization had been repeatedly changed. [ v29 p13 ]

There was discussion concerning contracting out and CA studies in DOL. 15 Stein spoke about contracting out and the lack of communications with respect to all the procedures of the Office of Management and Budget Circular A-76. Stein discussed how contracting out affected employee morale. Stein and Ewell discussed contracting out in DIO. Ewell stated that people seemed to be misinformed, he was going to find out why, and if it took him coming to Fort Sill to talk to the people, he would do it. Duncan, also discussed contracting out. Parks brought a paper to the meeting, which he presented to Ewell. Parks' discussion centered around the amount of money spent on cost surveys, contracting out, mobilization, and the fact Fort Sill was a model institution.

With regard to communication issues, Ewell was asked if employees at Fort Sill had the right to make input to the commercial activities process. Ewell indicated they did and promised that "if they could not get anybody else to communicate with them, I would personally come to Fort Sill and communicate with them and let them know what their rights and responsibilities were under the process."

Parks mentioned "the type of contracting, the A-76, some of the things that he felt were unfair and wanting knowledge about that subject." Fox spoke about cost plus contracting and things in the OMB Circular A-76 that he felt were ridiculous.

Ewell did most of the speaking at the meeting. He went into cost plus contracts and addressed the various concerns of the employees. Ewell stated that he would check on people's concerns out there at Fort Sill, and he would get with the Commanding General, if necessary, or he would come out to Fort Sill to find out what was going on. Also Stein indicated people were under the impression they were going "out the gate." Ewell replied "nobody would go out the gate." There was also discussion that contracting out affected employee morale. [ v29 p14 ]

After the meeting, while the employees were taking pictures, Feinstein made a comment that NFFE, who represented Fort Sill employees for years, had not done in that several years period of time what the Teamsters had done in a short period of time in attempting to meet with officials of the government. Feinstein pointed out that the workers at Fort Sill certainly would understand the difference between a union that is actively engaged in supporting their goals and aspirations and a union that had represented them for years and hadn't done anything affecting the most serious problem that existed for them.

D. Activities Subsequent to the Meeting

Upon their return to Fort Sill, the NFFE bargaining unit employees who had attended the October 10, 1985 meeting, Fox, Duncan, and Stein, actively began campaigning for the Teamsters. On October 11, 1985, Duncan attended a pizza-dinner-at-lunch party where she met with a group of employees. The lunch was held in the employee break room in building 2243. Management had prior notice of the lunch. About 35-50 employees were in attendance. These employees were in the NFFE bargaining unit. Aside from Duncan, several IBT organizers were present. During this meeting, Duncan told the NFFE bargaining unit employees that she had been to a meeting in Washington and met with some high ranking government officials, namely, an Assistant to the President and the Secretary of the Army. Duncan told the employees that the individuals in Washington had said they bad never heard of NFFE and didn't know who NFFE was. Further, Duncan said that the individuals had stated that they were not even aware that NFFE did any lobbying in Washington. Duncan also informed the employees that the Washington meeting concerned contracting out, wage surveys, and DIO.

After Fox's return to Fort Sill from the October 10, 1985 "White House" meeting, Fox met with a number of his co-workers employed in USAISC. Fox told them that he had gone with the Teamsters to a meeting at the White House where they had met with the Assistant Secretary and a Special Assistant to the President. He told the employees he had voiced his concerns about contracting out and said that the Army's representative, Mr. Ewell, had stated that he would come to Fort Sill if necessary to assure that Fort Sill was following OMB Circular A-76 procedures.

Two days after the October 10, 1985 meeting, Stein accompanied by Duncan, addressed a group of Fort Sill [ v29 p15 ] employees at "open general meeting" sponsored by the Teamsters. Ten to twenty people from both the Teamsters Local and Fort Sill attended. Both Duncan and Stein spoke in front of the employees and told them of the "White House" meeting. They informed the employees they had met with Ewell and Owen. They explained who Ewell was and his position with the Army told them informed and they said that the people at Fort Sill weren't informed, and that Ewell said he would come down personally to inform the people if it was necessary. After informing the employees about the meeting, Stein made a special point of thanking Teamsters representatives Plumlee and Thompson for allowing him the privilege to attend.

Following the meeting, the following memorandum was prepared by the Teamsters and distributed at Fort Sill prior to the October 17, 1985 election.

When we talk for you, the White House listens.

The White House listened. The Public Employee Division of Local 886 Teamsters wanted a meeting at the White House with Department of the Army officials to frankly talk about contracting out.

We got the meeting. And who did we meet with at the White House for nearly two hours? We met with Andrew H. Card, Jr., Special Assistant to the President; Michael W. Owen, Principle Deputy Assistant Secretary of the Army; and Valcris O. Ewell, Deputy Assistant Secretary of the Army, the man who decides who and what gets contracted out, And what did Ewell say to us? Ewell said: "There is no reason why any worker should be shown the gates of Fort Sill." And that's not all Ewell said to Local 886 Secretary - Treasurer, Charlie Thompson; Wire Communications Cable Splicer, Ken Fox; Electronic Integrated Systems Mechanic, Carl Stein; Supply Clerk, Marge Duncan and Welder, Aubrey Parks.

Ewell said that he would discuss the cost factors of contracting out with [ v29 p16 ] you. And we agreed. Ewell said that Fort Sill had failed to follow procedures ordered by the Department of the Army. Ewell said they were supposed to talk with you. They didn't....and NFFE couldn't get them to. But Ewell, after talking to the Teamsters, said he will listen to you and that we don't have to write. We just have to call. This is the first time Fort Sill workers have been listened to.

On October 17th, keep them listening to you in Washington and at Fort Sill. Vote Teamsters. The Public Employee Division of Local 886 Teamsters.

                 PUBLIC EMPLOYEE TEAMSTERS.
         CLOUT WERE IT COUNTS-TO PROTECT YOUR JOB
                 AND YOUR FAMILY'S FUTURE.

LOCAL 886 HEADQUARTERS*2202 FORT SILL BLVD.*LAWTON, OK

Owen and Ewell became aware of this flyer prior to the election and took no action.

A series of documents from the Army's files establish that prior to the October 10, 1985 meeting the Army was aware of the impending representation election and of the contracting out that was taking place at Fort Sill.

Facts Relating to the Objections 16

Objection 1

On September 27, 1985, at 3:15 p.m., Commissary Officer Boggs allowed Teamster representative Marge Duncan to enter the Commissary work areas to campaign among the employees on work time, thus affording the Teamsters unfair advantage.

There was no credible evidence supporting this objection. [ v29 p17 ]

Objection 2

On October 9, 1985, at approximately 9:30 a.m., Mrs. Hood, 17 Acting Supervisor of Administrative Management Office, permitted Teamster representatives to talk to three employees on work time in their respective work areas.

Fort Sill, NFFE and IBT Local 886 agreed that electioneering, solicitation, and campaigning would take place during break times.

Heine was working at her desk at 9:30 a.m. on October 9, 1985 and no supervisors were in the work area. There were no set break periods, rather employees in this work area take their breaks at the discretion of the individual employee. There were no supervisors in the area. At 9:30 a.m. on October 9, 1985 two IBT supporters, one being Carl Stein, inquired from Marshall if there were particular break times. Marshall advised Stein that there were not set break times and that employees took their breaks when they wished. They asked Marshall if it was okay to leave IBT literature at the empty desks and Marshall consented. The IBT supporters proceeded to distribute the literature at the empty desks. Stein offered Heine a piece IBT literature. Heine stated that she was for the other union and Stein stated he would just leave it and walked away. This encounter took about 1/2 minute. The IBT supporters talked to two or three employees and remained in this area 5 to 10 minutes. Then they left.

Objection 3

On October 9, 1985, at approximately 11:15 a.m., Teamster representatives (one identified as Ms. Gibble and an unidentified food service employee), were allowed to talk to employees of the surgical Clinic at the Reynolds Army Community Hospital reception desk for approximately 30 minutes. [ v29 p18 ]

On October 9, 1985 employee Wanda Selig observed three IBT supporters, including two employees, 18 talking to the receptionist of the Surgical Clinic at Reynolds Army Hospital at about 11:30 a.m. The IBT supporters were at the receptionist's desk because the receptionist Archie Davis had asked them telephonically, to come to his station at lunch hour so he could speak to them. The three IBT supporters asked and received permission from the Sergeant of the clinic to speak to Davis. Davis invited the three IBT supporters to a disco dance he was going to give at a hotel in the town. 19 Davis wanted as many people as possible to come and told the three to invite others, including Wanda Selig. A Fort Sill representative asked the people at the receptionist's desk what they were talking about. When told it was about the disco party, the official left. The three IBT supporters went to Selig's work place and, after receiving permission from Selig's supervisor, asked Selig to go to the brown bag area to talk. When they arrived at that brown bag area, the three IBT supporters told Selig what they had talked to Davis about and invited her to go to the disco dance also.

Objection 4

On October 17, 1985, the polling area within Building 4705 (polling site 7) was moved during the election. The ad-hoc polling area was inappropriate to the conduct of the election. Non-voters circulated throughout the area during the voting. In addition, Teamster supporters wearing campaign paraphenalia were allowed to campaign in the polling area and were allowed to escort voters to the observer desk.

A voting site was set up in the open area of Building 4705 (the Library building). After about one and one-half hours. 20 the polling place was moved, at the request of Fort Sill, into the library area in Building 4705 to permit construction work to be performed in the open area. [ v29 p19 ]

The polling place was not up in the library, near the library entrance, relatively near where it had originally been set up. The record establishes that the new polling place was set up so that there was a table for the election observers; the voting booth was near the tablet but the secrecy of the voting booth was maintained and secure; and the ballot box was in the plain view of the observers and the secrecy of the ballot process was intact. There were some number of employees using the library during the balloting period, but there was no showing this interfered with the voting process or compromised the secrecy of the ballot. The record does not establish that any employee was discouraged from voting or that circumstances were such as to discourage voting.

One person wearing Teamster Insignia escorted a deaf, and apparently mute, employee to the observers' table. The Teamster supporter then promptly left.

Three or four employees wearing Teamsters' insignias, 21 were in the area of the observers table making noise. NFFE observer Selig complained to the FLRA agent concerning the presence of the three or four employees wearing the Teamsters insignia in the voting area. The FLRA agent approached those employees and were advised they were there to install a telephone in a nearby office. They then left when asked by the FLRA Agent. They had been in the polling area a total of about 10 minutes.

There were representatives of both unions outside the building, in a picnic area more than 200 feet from the voting area. Some such employees wearing IBT insignia took some pictures.

Objection 5

On or about October 10, 1985, two representatives of the employer, Michael Owen, Principal Deputy Assistant Secretary of the Army and Valcris Ewell, Deputy Assistant Secretary of the Army, met with Charlie Thompson, Secretary - Treasurer of the Teamsters Local 886, (the petitioner), and four Fort Sill employees (three of whom are members of a [ v29 p20 ] bargaining unit which is represented by NFFE Local 273) and discussed matters affecting working conditions at Fort Sill.

The above-referenced meeting was the subject of a Teamster campaign flyer entitled "When we talk for you, the White House listens," which was distributed less than twenty-four hours prior to the opening of the polls on October 17, 1985.

The facts relating to this objection are met forth in the initial findings of fact dealing with the alleged unfair labor practice.

Objection 6

On October 9 and 16, 1985, Teamster representatives Mr. Peterson and Charley Moore distributed literature, caps and tee-shirts in Building 2243 Supply Branch, Defense Industrial Organization during duty hours.

On October 17, 1985, Teamster Representatives Mr. Peterson and Marge Duncan were in Building 2243, Supply Branch, Defense Industrial Organization distributing literature and talking to employees during duty time.

On October 9 and 16, 1985 Teamster supporters remained in Building 2243 after the morning break time talking to employees. 22 The record does not establish what was said. The Teamster supporters remained in the work area about 10 minutes after morning break time ended on each day. 23

On October 17, 1985 two Teamster supporters were in Building 2243 a little after 9:00 a.m. urging employees to [ v29 p21 ] go vote and distributing Teamster literature, T-shirts, hats, etc. Again employee Hoover went to report this to her supervisor and, when Hoover returned, the two IBT supporters were leaving.

Objection 7

Teamster representatives were given access to work areas through-out Reynolds Army Community Hospital after offices were locked. On or about September 23, 1985, Teamster representatives were allowed to "desk drop" literature after working hours. On September 24, 1985, at the beginning of the work day, Teamster literature was discovered on employees' desks.

On September 24, 1985, when the first employee arrived in the morning and opened Room 7A of the Reynolds Hospital, she found two pieces of literature on each of the desks of the five employees who work in ROOM 7A. The record does not establish who distributed the literature or how it got on the employee desks.

Discussion and Conclusions of Law

The General Counsel for the FLRA alleges that Army violated section 7116(a)(1) 24 of the statute by breaching the requirement of neutrality during the pendency of a question concerning representation at its Fort Sill facility by conducting a meeting on October 10, 1985 in the Old Executive Building with representatives of the Teamsters Local 886, IBT, and employees in the Fort Sill bargaining unit which was represented by NFFE Local 273, during which [ v29 p22 ] matters concerning conditions of employment were discussed and alternatively that Army violated section 7116(a)(1) of the Statute by engaging in the above described conduct when Army either know or should have known that there was a pending question concerning representation and/or that the employees at the meeting were employees in the Fort Sill bargaining unit represented by NFFE Local 273. 25

Section 7102 of the Statute provides:

"Each employee shall have the right to form, join or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. . . ."

The FLRA held in Department of the Air Force, Air Force Plant Representative Office, Detachment 27, Fort Worth, Texas, 5 FLRA 492 (1981), herein called the AFPRO Case, "that management's breach of neutrality during an election campaign . . . interfere with the . . . rights of employees under the Statute and therefore violates section 7116(a)(1) of the Statute. . . ." AFPRO case, supra at 500. The AFPRO Case, supra, dealt of a representation petition. A newsletter was published by the activity about two days before the scheduled election. The newsletter was signed by the Activity's chief management official and was posted on bulletin boards and distributed to employees. The FLRA concluded that the contents of the newsletter could be interpreted by unit employees as implying that they did not need and would not benefit from union representation and would be unable to rid themselves of the union for years to [ v29 p23 ] come if they voted in favor of the union in the forthcoming election. After rejecting the argument that this was merely an exercise of free speech protected by section 7116(e) of the Statute the FLRA stated that employees should be free to choose or reject union representation while management maintains a posture of neutrality and that the breach of neutrality during an election campaign interfered with employees' protected rights under Section 7102 of the Statute to "form, join or assist any labor organization or to refrain from any such activity" and therefore violated section 7116(a)(1) of the Statute. In reaching this conclusion the FLRA relied upon and cited cases that arose under Executive Order 11491, as amended. 26

The FLRA has held that in evaluating conduct to determine whether it interferes with, restrains or coerces employees in the exercise of their protected organizational rights an objective standard should be used. That is a determination must be made whether the conduct would reasonably tend to interfere with, restrain or coerce employees. See, Federal Mediation and Conciliation Service, 9 FLRA 199 (1982). Thus it was held that neither the subjective perceptions of the employee nor the intent of the employer was the standard for judging conduct, but rather the test is whether, under the circumstances of the case, the employer's conduct or statements may reasonably tend to interfere with the exercise of employees' protected rights.

I conclude that the October 10, 1985 meeting in the Old Executive office Building was conduct by the Army which, objectively would reasonably be interpreted by employees as an expression, by the Army, that it favored the Teamsters in the pending representation election. Thus Army violated the principle of neutrality and thereby violated Section 7116(a)(1) of the Statute. This interpretation of the impression to be drawn from the meeting was clearly expressed in the Schroeder memo.

The October 10, 1985 meeting was held some seven days before a run-off election was to be held. The Teamsters [ v29 p24 ] were challenging the status of the incumbent union, NFFE Local 273, the collective bargaining representative for the subject unit of employees. During the pendency of the question concerning representation (QCR) the incumbent union, NFFE Local 273, was still the collective bargaining representative of the employees and remains so until the QCR is resolved. See Department of Justice, Immigration and Naturalization Service, 9 FLRA 253 (1982). Thus, although during the pendency of a QCR an agency must remain impartial, if matters arise that necessitate bargaining and negotiations, the agency must meet and bargain with the incumbent union. 27 Under no circumstances when such a QCR is in existence would it be appropriate for the agency to bargain and negotiate, or appear to bargain and negotiate, with the challenging union. Such conduct, it is concluded, would reasonably send a message to the employees that the agency is favoring the challenging union. To the extent, during a QCR, the agency is required to and does bargain over conditions of employment with the incumbent union, the agency is merely fulfilling its statutory obligation. However, when it meets and negotiates, or appears to do so, concerning conditions of employment with the challenging union the agency appears to be expressing a preference with respect to whom it wished to prevail In the QCR. Such conduct or expression of preference is the very violation of the principal of neutrality which the FLRA recognized as constituting a violation of section 7116(a)(1) of the Statute.

In the subject case the meeting of October 10, 1985 constituted a clear expression by the Army to unit employees that the Teamsters would be a more effective representative than NFFE and that the Army preferred the Teamsters be chosen as the collective bargaining representative by the employees in the October 17 election. Thus top officials of [ v29 p25 ] the Army 28 met with Teamster officials and Fort Sill employees, three of whom were members of the NFFE bargaining unit. 29 During the meeting the participants primarily discussed sub-contracting at Fort Sill. with respect to the subcontracting they discussed whether and how Fort Sill was to comply with the OMB subcontracting regulations (OMB Circular A-76), the poor communications between Fort Sill management and employees, how employees should participate in the contracting out decision making process, the effect of subcontracting out on the morale of the employees and whether any employees would be layed off or RIFed 30 because of subcontracting out. These matters were raised and discussed, among others, by the employees who were in the NFFE collective bargaining unit and they were discussed with respect to how they affected and concerned the activity organizations within the NFFE collective bargaining unit. 31 Finally, Ewell, the Army's spokesman agreed, (1) that compliance with OMB circular A-76 and Army regulations would be enforced at Fort Sill, (2) that Fort Sill would better communicate with employees concerning contracting out, (3) that employee participation in the contracting out process would be assured and (4) that no one would go out the gate. Finally Ewell agreed that, if necessary, he would come to Fort Sill to make sure all of this was complied with. All of this would reasonably appear to employees as [ v29 p26 ] to constitute bargaining 32 by the Army with the Teamsters, on behalf of employees in the NFFE bargaining unite concerning contracting out at Fort Sill and the impact and implementation of such contracting out. This appearance of bargaining to employees Is especially true when the formality of the meeting, including the rank or level of the Army negotiators and the location of the meeting, is taken into consideration.

The argument that it could not have been negotiations because contracting out can not be negotiated. 33 since it is a management right, is rejected. Thus although contracting out may constitute a management right, Army representatives could, and did, engage in bargaining about it, even if at some later point Army could unilaterally have withdrawn from any agreement. In fact Army expressed no such reservations and limitations to the employees present and did appear to be bargaining. In fact to engage in such bargaining about a management right with the Teamsters appears clearly to express the Army's preference for the Teamsters. Further many aspects of contracting out and its impact and implementation have been held by the FLRA to be negotiable. 34

The most persuasive argument for the proposition that the October 10 meeting did not violate the neutrality [ v29 p27 ] requirement is that in the July 1, 1985 letter to NFFE the White House indicated it would meet with NFFE to hear its concerns. Thus it appears the invitations are equal and neutrality was maintained. Surely, it could be argued the Teamsters did not destroy this neutrality, by utilizing this management offer, which was made to both sides. As appealing as this argument is, at first blush, it must be rejected. The instant situation, as described above, was one in which there was an incumbent union. In such a situation management was not permitted or privileged to bargain with the contesting union until the incumbent lost its position, until the OCR was determined. This situation is different, and it is an important distinction, that the subject case does not involve two "out" unions competing to represent unrepresented employees. Rather this is a situation where the employees were represented by NFFE, and IBT was trying to oust NFFE. Until such time as the QCR was determined, NFFE continued to represent the employees in the disputed unit. Accordingly Army could not choose to meet and bargain with both unions. Rather, to the extent there was to be any bargaining, it necessarily had to be with the incumbent, NFFE. Thus by meeting and appearing to bargain with the Teamsters over the conditions of employment in the NFFE collective bargaining unit, Army breached the requirement of neutrality, and this was not cured by the outstanding offer to meet with NFFE. Further even if it were two "out" unions, a meeting with employees by the Agency under the auspices of one of the unions, would constitute a clear statement of preference by the Agency, 35 even if there was an invitation to the other union to sponsor such a meeting.

In the subject case Army held only a meeting sponsored by the Teamsters to discuss working conditions in the NFFE unit, which was the subject of a QCR. Army held a meeting sponsored by only one of the rival labor organizations and thus, in the eyes of the employees this was a clear expression that Army preferred that the Teamsters prevail in the OCR. [ v29 p28 ]

There are some contentions that the Army did not know about the election, the parties involved or that contracting out was an issue at Fort Sill. First in deciding whether conduct violates section 7116(a)(1) of the Statute by meeting the objective test, knowledge is irrelevant. Once management engages in conduct which reasonably would interfere with employee rights, the violation occurs. Management need not have intended it, nor know it would have that affect. We are here trying to protect the employees from interference in the exercise of their rights. There is no logical reason that management need intend such interference or even know all the facts. However, to the extent that knowledge is necessary I conclude and find that Army knew about the election, the parties involved and that contracting out was an issue. From the very beginning, when the meeting was set up, it was known and communicated that it was about Fort Sill and a contracting out problem. Schroder's memo made it quite clear that the Army knew about the election, who was involved and the nature of the QCR. Although all of this information might not have been communicated to Ewell, it must be imputed to him and his colleagues. To hold otherwise would make it virtually impossible to establish precisely which management officials actually had which information.

Army contends that Ewell was merely explaining the contracting out procedures to employees, in accordance with Presidential and Governmental policy. This contention is without merit. The situation was not merely a meeting of employees in which the Army explained the contracting out procedures; rather, it was a meeting sponsored by the Teamsters during which the Army engaged in a give and take with employees in the NFFE unit concerning the contracting out at Fort Sill and the procedures to be followed to meet, to some extent, the employees' concerns and complaints. It was, in the circumstances of a QCR, an expression by the Army that the Teamsters would be more effective representative for the employees than NFFE, in effect an expression of preference for the Teamsters. A result clearly foreseen in the Schroeder memo to Ewell.

Further because the meeting involved employees in the NFFE bargaining unit it was foreseeable that the substance of the meeting would be, and was, communicated to the employees in the NFFE bargaining unit. [ v29 p29 ]

In light of all of the foregoing, therefore, it is concluded that by holding the October 10, 1985 meeting, Army violated the requirement of neutrality and thereby violated section 7116(a)(1) of the Statute.

Objections.

In considering the objections I recognize the FLRA seeks to maintain as closely as possible, conditions which will assure employees' basic right to complete freedom of choice in selecting a bargaining representative United States Department of Justice, United States Immigration and Naturalization Service, 9 FLRA 253 (1982).

Objection No. 5 deals with the unfair labor practice described above and for the reasons set forth therein I conclude the meeting would have interfered with the running of a fair election and it is recommend that this objection should be sustained. AFPRO Case, supra.

Objection 1 was not supported by any evidence and it is recommended it should be dismissed.

Objections 2, 3, 4, 6, 7 involved various incidents and occurrences which are too minor, insignificant and isolated to conclude they interfered with the conduct of the election or effected its result. It is recommended they be dismissed.

With respect to Objection 5 it is recommended it be sustained. It is concluded that the meeting was improper conduct which could reasonably be expected to have improperly affected the results of the election. Pursuant to Section 2422.20(9)(1) of the FLRA's Rules and Regulations, an Administrative Law Judge may not recommend the remedial action to be taken regarding the objections to an election.

With respect to the unfair labor practice case, having concluded Army violated Section 7116(a)(1) of the Statute, I recommend the FLRA issue the following:

ORDER

Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Federal Service Labor - Management Relations Statute, the Authority hereby orders that United States Department of Defense, Department of the Army, Washington, D.C. shall: [ v29 p30 ]

1. Cease and desist from:

(a) Conducting or participating In meetings sponsored by the International Brotherhood of Teamsters with employees in a unit represented by NFFE, or any other labor organization, during which terms and conditions of employment and matters of concern to employees are discussed, while a question concerning representation involving the unit is pending before the Federal Labor Relations Authority.

(b) In any like or related manner expressing a preference as to which labor organization should prevail in a representation election.

(c) In any like or related manner Interfering with, restraining, or coercing its employees in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action:

(a) Post at the facilities of the United States Department of Defense, Department of the Army in Fort Sill, Oklahoma, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by a responsible official and shall be posted and maintained for 60 consecutive days, thereafter, in conspicuous places, Including bulletins boards and other places where notices to employees are customarily posted. The United States Department of Defense, Department of the Army, shall designate an official at Fort Sill who shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VI, Federal [ v29 p31 ]

Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

SAMUEL A. CHAITOVITZ
Administrative Law Judge

Dated: February 27, 1987
       Washington, D.C.

[ v29 p32 ]

                           APPENDIX
                   NOTICE TO ALL EMPLOYEES
                          PURSUANT TO
                 A DECISION AND ORDER OF THE
              FEDERAL LABOR RELATIONS AUTHORITY
         AND IN ORDER TO EFFECTUATE THE POLICIES OF
                CHAPTER 71 OF TITLE 5 OF THE
                      UNITED STATES CODE
     FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
            WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT conduct or participate in meetings sponsored by the International Brotherhood of Teamsters with employees in a unit represented by NFFE, or any other labor organization, and during which terms and conditions of employment and matters of concern to such employees are discussed, while a question concerning representation for the unit is pending before the Federal Labor Relations Authority.

WE WILL NOT in any like or related manner express a preference as to which labor organization should prevail in a representation election.

WE WILL NOT In any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.

                             ______________________________
                               (Agency or Activity)

Dated:____________________By:______________________________
                                       (Signature)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. [PAGE]

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region VI, whose address is: 525 Griffin Street, Suite 926, Federal Office Building, Dallas, Texas 75202, and whose telephone number is: (214) 767-4996, or FTS 8-729-4996. [ v29 p2 ]

FOOTNOTES

Footnote 1 Page 5 of the Judge's decision contains an inadvertent error regarding the number of votes for the Teamsters.

Footnote 2 Daniels had by this time succeeded Rollins on the White House staff.

Footnote 3 Although the references to the meeting indicate "White House" meeting, it actually occurred in the Old Executive Office Building, which is part of the White House complex. For consistency, the meeting will continue to be referred to as the "White House" meeting or the October 10th meeting.

Footnote 4 Faydean Crouse testified that she was the Teamsters' observer at the poll until 9:00 a.m. on election day. However, her name and signature do not appear on the Certificate of Conduct of Election.

Footnote 5 We note the Teamsters' correction of the Judge's inadvertent use of the term "subcontracting" instead of "contracting out" on pages 25 and 26 of his Decision.

Footnote 6 National Federation of Federal Employees will hereinafter be referred to as NFFE.

Footnote 7 General Drivers, Chauffeurs and Helpers Local Union No. 886, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, will hereinafter be referred to as IBT Local 886 or Teamsters Local 886 and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America will be referred to as IBT Or Teamsters International.

Footnote 8 The unit at Fort Sill represented by NFFE (the subject of the petition in Case No. 6-RO-40005) will hereinafter be referred to as the NFFE bargaining unit. The other unit at Fort Sill which is represented by the Teamsters will be referred to as the Teamsters bargaining unit.

Footnote 9 The objections and the specific facts that relate thereto will be set forth later in this decision.

Footnote 10 I find Ewell's testimony with respect to the memo unpersuasive. This memo, addressed to Ewell was in the Army's files and Ewell, although he testified that Schroeder informed him of the "substance" of the memo, denied he was told of each specific item when so asked.

Footnote 11 Rollins had already resigned.

Footnote 12 Seven of the eleven participants of the "White House" meeting testified at the hearing. There were only minor differences regarding the substance of the discussions during the meeting.

Footnote 13 Although the meeting had started, serious and substantive discussions didn't really start till Ewell arrived.

Footnote 14 USAISC is a part of the NFFE bargaining unit and was one of the directorates at Fort Sill which was a part of the contested bargaining unit in the October 17, 1985 representation election.

Footnote 15 DOL was the Directorate of Logistical now known as Directorate of Industrial Operation (DIO). DIO is a part of the NFFE bargaining unit and was one of the directorates at Fort Sill which was a part of the contested bargaining unit in the October 17, 1985 representation election. CA refers to the contracting out studies.

Footnote 16 The Objections set forth are those set forth in the letter from the Regional Director which advised the parties of the hearing on objections. They are substantially the same as the actual objections filed by NFFE Local 273.

Footnote 17 The witness in support of this objection, Sandra Ann Heine, testified that this name is in error, it was Mildred Marshall, not Mrs. Hood, and Marshall is not a supervisor.

Footnote 18 The two employees work in hospital.

Footnote 19 Davis engages in this activity to supplement his income.

Footnote 20 After some voters had voted.

Footnote 21 T shirts, hats, etc.

Footnote 22 The Teamster supporters were permitted into the work and break areas during break time to campaign.

Footnote 23 On both occasions employee Hoover went to report the presence of the Teamster supporters to her supervisor and the Teamster supporters had gone by the time Hoover returned.

Footnote 24 Section 7116(a)(1) of the statute provides: (a) For the purpose of this chapter it shall be an unfair labor practice for an agency -- (1) to interfere with, restrain or coerce any employee in the exercise by the employee of any right under this chapter . . . ."

Footnote 25 The Teamsters contend that because the General Counsel dismissed allegations in the charge that Army violated sections 7116(a)(3) and (6) of the Statute, the General Counsel is estopped from contending the conduct that was alleged to support such violations also supports the allegation that section 7116(a)(1) of the Statute was violated. I conclude that although the General Counsel's decision not to issue a complaint is unreviewable, Cf. Department of Defense v. FLRA, 659 F.2d 1140, 1141 (D.C. Cir. 1987), that I must and can consider and rely upon any facts submitted at the hearing that support the violations of statute alleged in the Complaint.

Footnote 26 The FLRA cited Charleston Naval Shipyard, A/SLMR No. 1, 1 A/SLMR 27 (1970) at n.17; Antilles Consolidated Schools, Roosevelt Roads, Ceiba, Puerto Rico, A/SLMR No. 349, 4 A/SLMR 114 (1974); and Veterans Administration, Veterans Administration Data Processing Center, Austin, Texas, A/SLMR 523, 5 A/SLMR 377 (1975) review denied by the Federal Labor Relations Council, 5 FLRC 75 (1977).

Footnote 27 To hold otherwise runs the risk of leaving employees unrepresented for extended periods of time when, despite the existence of a QCR, there is an existing certified collective bargaining representative. Such a result would defeat the purpose of the Statute of permitting employees, through a representative, to bargain concerning their working conditions.

Footnote 28 Although the level of recognition is at Fort Sill, Fort Sill is merely a component of the Army and Army has full direction and control over Fort Sill. They are not separate or independent entities, but rather Fort Sill is a component part of the Army. Thus the Army can and must be held responsible for its actions with respect to the employees of Fort Sill and the subject QCR. See U.S. Army Engineer Center and Fort Belvoir and U.S. Department of the Army, 13 FLRA 707 (1984).

Footnote 29 These employees identified themselves, near the beginning of the meeting, as being in organizations which were part of the NFFE collective bargaining unit.

Footnote 30 During the negotiations the parties referred to possible RIFs or lay-offs as an employee "going out the gate."

Footnote 31 These matters were also raised by the employees in the Teamster unit.

Footnote 32 I need not decide if such meeting actually constituted collective bargaining because it is the appearance to employees that is the determining factor. However, if it were deemed relevant I conclude this meeting did constitute bargaining concerning contracting out, its impact and implementation.

Footnote 33 See AFGE Local 225 and Department of the Army, U.S. Army Armament Research and Development Command, 17 FLRA 417 (1985).

Footnote 34 See NFFE Local 1263 and Defense Language Institute, Presidio of Monterey California, 14 FLRA 761 (1984); AFGE National Council of EEO Locals and EEOC, 10 FLRA 3 (l983), enforced sub nom EEOC V. FLRA, 744 F.2d 642 (D.C. Cir. 1984); cert dismissed 106 S. Ct. 1678 (1986); AFGE Local 1904 and U.S. Army Communications and Electronics Material Readiness Command, 16 FLRA 358 (1984).

Footnote 35 I need not decide if, in such circumstances, management actually held a meeting under the auspices of each union, there would have been a violation of the principal of neutrality. In such circumstances, we might be compelled to analyze the conduct of the agency at each meeting.

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