31:0996(79)RO - Pacific Missile Test Center, Point Mugu, CA and NAGE Local R12-33 and NFFE Local 1374 -- 1988 FLRAdec RP
[ v31 p996 ]
The decision of the Authority follows:
31 FLRA NO. 79 PACIFIC MISSILE TEST CENTER POINT MUGU, CALIFORNIA Activity and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-33 Petitioner and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1374, INDEPENDENT Incumbent Labor Organization Case No. 8-RO-70005 ORDER DENYING APPLICATION FOR REVIEW I. Statement of the Case This case is before the Authority on an application for review filed by the National Federation of Federal Employees, Local 1374, Independent (NFFE), under section 2422.17(a) of the Authority's Rules and Regulations, seeking review 1/ of the Regional Director's Decision and Order on Objections. 2/ The National Association of Government Employees, Local R12-33 (NAGE) filed on opposition to NFFE's application for review. II. Background At the Activity, NAGE was seeking to replace NFFE as the exclusive representative. On August 27, 1987, an election by secret ballot was conducted among employees of the Activity. Of the 632 valid votes cast, NAGE received 360 and NFFE received 254. Thereafter, NFFE filed timely objections to the conduct of the election. The record indicates that on August 26, 1987, the day before the election, NFFE was engaged in campaign activity involving NFFE banners and helium filled balloons which were labelled with "NFFE" on them. The record further indicates that a few of the balloons were released and were spotted flying over the Activity's flight path by the flightline supervisor. The flightline supervisor telephoned Judy Eveleth, the Activity's Labor Relations Officer, and reported that this situation constituted a safety hazard to flight operations because the balloons could be ingested into the aircrafts' engines causing considerable damage, including engine failure. As a result of this telephone call, Eveleth went to the campaign site to investigate. She met with Charles Gaines III, NFFE's Campaign Director, who was at the site. Eveleth advised Gaines of the potential hazard the balloons were creating and asked that they be immediately removed. Gaines became argumentative and a dispute arose between him and Eveleth. Gaines requested specific citings of Base policy, DOD policy and any other authority directing the removal of the balloons. At that point, in compliance with Gaine's request, Eveleth called Base Security. Gaines continued to refuse to remove the balloons and demanded to know what regulation NFFE was violating. Upon the arrival of Base Security, at Eveleth's request, Gaines' visitor badge and his temporary vehicle pass were removed. Gaines' visitor badge was returned to him at 5:30 p.m. on August 27, 1987, in order that he be present during the tally of the ballots. The record indicates that both labor organizations had been made aware of the stricter security procedures being observed at the Activity because of the escalated tension in the Persian Gulf. In addition during the time in question, the President's airplane and helicopters were physically located at the Activity. The alleged unlawful conduct of the Activity discussed above is covered by the following three objections filed by NFFE. Objection No. 1 On or about August 26, 1987, the Activity through action of its designated labor-relations representatives, caused the cessation of the distribution of the Intervenor's promotional material. Such material was being distributed to bargaining unit employees in a non-work area. This interference with the Intervenor's distribution was disparate in that the Petitioner was not denied the right to distribute materials in the very same location and the same types of materials have been distributed at the Activity by others. Objection No. 2 On or about August 26, 1987 the Activity, through actions of its designated labor-relations representatives, prohibited the Intervenor's campaign director from entering the Point Mugu facility for the purposes of campaigning. This action materially interfered with the Intervenor's ability to campaign during the crucial last days of the election and interfered with the Intervenor's "get out the vote" program. Objection No. 9 On or about August 26, 1987, the employer ordered its security Department to destroy the Intervenor's campaign material when this material was attached to employee's personal automobiles in non-work areas. III. Regional Director's Decision The Regional Director found no merit in any of the nine objections filed by NFFE and advised the parties that a Certification of Representatives would be issued to NAGE subject to final action by the Authority. With respect to Objection Nos. 1, 2, and 9, those that remain at issue, the Regional Director found that: (1) the investigation failed to establish that the Activity acted in an arbitrary or discriminatory manner by requesting NFFE to remove the helium balloons; (2) the Activity did not restrict NFFE from using all campaign material but rather only the use of the balloons which presented a safety hazard to aircraft; (3) the investigation failed to establish that others used balloons as a campaign item; (4) Mr. Gaines functioned as campaign director for NFFE with full and equal access to the Activity throughout the election period until August 26, 1987, the date of the subject incident and one day prior to the election; and (5) there was no evidence to indicate that the restrictions placed on Mr. Gaines affected the results of the election especially in light of the fact that restrictions were placed only on the day prior to the election and the fact that other NFFE representatives campaigned without restrictions throughout the election period. IV. Application for Review A. NFFE's Application for Review NFFE contends that a substantial question of law or policy is raised because of the absence of and departure from Authority precedent. NFFE also claims that the Regional Director's decision on a substantial factual issue is clearly erroneous and such error has prejudiced its rights. NFFE contends that the Regional Director found that the Agency did prohibit distribution of NFFE campaign material and as such, the Agency's actions violated NFFE's rights. NFFE further contends that the Regional Director erred in allowing the Activity to rebut NFFE's charges and/or offer mitigating circumstances while not affording NFFE the opportunity to rebut the Activity's arguments. In conclusion, NFFE argues that the Regional Director should have held a hearing in this case to provide all parties with an opportunity to cross-examine witnesses and offer rebuttal to purported extenuating or mitigating circumstances. NFFE argues that the Regional Director erred in finding that having Gaines removed from the Activity's station did not or could not have affected the results of the election as Authority precedent states otherwise. Based on a statement of a qualified aircraft engine mechanic NFFE argues that the balloons were not a hazard to flight operations. Therefore, NFFE contends that there was no reason to curtail the balloon distribution and the expulsion of Mr. Gaines was both arbitrary and capricious. Accordingly, NFFE maintains that the Regional Director is in error and must be reversed. B. NAGE's Opposition to NFFE's Application NAGE contends that NFFE has failed to demonstrate a ground for review under section 2422.17 (c) of the Authority's Rules and Regulations. NAGE argues that the Activity's action of prohibiting the use of helium balloons by NFFE was motivated solely by safety and security concerns. Further, NAGE contends that the issue is not the seriousness of the hazard as alleged by NFFE, but whether the Activity was reasonable in fearing that a hazard might exist and in taking limited action to prevent it. NAGE argues that the Regional Director correctly found that the exclusion of Gaines from the base on August 26 and 27, 1987 did not affect the results of the election. NAGE contends that NFFE presents no evidences to indicate that Gaines, if physically present, would have reached potential voters whom its other organizers were not able to reach. NAGE also argues that NFFE is incorrect in its argument that the Regional Director erred in accepting the affirmative defense offered by the Agency as section 2422.21(b) of the Authority's Rules and Regulations provide that "(the) objecting party shall have the burden of proof at all stages of the proceeding regarding all matters raised in its objections." Finally, NAGE contends that the Regional Director was not in error for issuing a decision without conducting a hearing or soliciting additional evidence as he afforded all parties a full opportunity to submit evidence in support of their contentions. V. Analysis and Conclusion Upon careful consideration of the application for review, we conclude that compelling reasons do not exist within the meaning of section 2422.17 (c) of our Rules and Regulations, for granting review of the Regional Director's decision. Rather, the application expresses nothing more than disagreement with the Regional Director's findings and conclusions, which are based on record evidence and have not been shown to be clearly erroneous or to have prejudicially affected the rights of any party. The Regional Director's use of an investigation does not constitute a basis for granting the application for review under section 2422.17(c) of our Rules and Regulations. The parties were afforded a full opportunity to present their views concerning the factual background of this case during the investigation. Although NFFE may have expected or now prefers a hearing to present its views or to rebut statements made by the Activity, that expectation or preference does not establish a compelling reason for granting its application for review. See Department of the Navy, Naval Resale Activity, Navy Exchange, Hawaii, 27 FLRA 816 (1987). NFFE merely has expressed disagreement with the Regional Director's findings and has not shown that any finding or conclusion on any substantial factual issue was clearly erroneous. The record developed from the Regional Director's investigation contains information that clearly supports the Regional Director's factual determinations. Finally, we find that the application for review does not provide any other basis for granting review under section 2422.17(c) of the Rules and Regulations. Accordingly, pursuant to section 2422.17(f)(3) of the Authority's Rules and Regulations, the application for review is denied. Issued, Washington, D.C., March 25, 1988. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1/ As NFFE's application for review only seeks review of the Regional Director's findings with respect to Objection Nos. 1, 2, and 9, the other findings are not at issue and will not be considered. Footnote 2/ NFFE requested a stay of the instant proceedings pending resolution of its unfair labor practice charge covering the same conduct involved in the present case which is currently on appeal to the General Counsel. Since the time limit for Authority actions on applications for review of determinations of Regional Directors in cases such as this is prescribed in section 7105(f) of the Federal Service Labor-Management Relations Statute, we cannot stay the instant proceeding. Accordingly, we deny NFFE's request.