33:0245(28)R0 - - Army and Air Force Exchange Service, Fort Drum Exchange (Fort Drum, NY) and AFGE and NAGE, SEIU - - 1988 FLRAdec RP - - v33 p245



[ v33 p245 ]
33:0245(28)RO
The decision of the Authority follows:


33 FLRA No. 28

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

ARMY AND AIR FORCE EXCHANGE SERVICE

FORT DRUM EXCHANGE (FORT DRUM, NEW YORK)

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

(Petitioner)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

SEIU, AFL-CIO

(Intervenor)

1-RO-70001

DECISION

October 24, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This case is before the Authority on applications filed by the Activity and the Intervenor under section 2422.17(a) of the Authority's Rules and Regulations. After a representation election in which the Petitioner received a majority of the valid votes, the Activity and the Intervenor filed objections to the election results with the Regional Director. The Activity and the Intervenor contended that conduct by the Petitioner prior to the election warranted setting the election aside. In his Decision and Order on

Objections, the Regional Director concluded that the Petitioner's conduct did not warrant setting the election aside. The Activity and the Intervenor seek review of the Regional Director's determination.

For the reasons set forth below, we conclude that the applications should be denied.

II. Regional Director's Decision

The Petitioner, American Federation of Government Employees, AFL-CIO (AFGE), received a majority of the valid votes counted in an election conducted on May 26 and 27, 1988, among the nonprofessional employees of the Activity, the Army and Air Force Exchange Service, Fort Drum Exchange, Fort Drum, New York.(*) Following the election, both the Activity and the Intervenor, National Association of Government Employees, SEIU, AFL-CIO (NAGE), filed objections to the conduct of AFGE which allegedly improperly affected the election results. Specifically, they alleged that a flyer attached to a letter distributed by AFGE before the election misrepresented major benefits contained in the Master Agreement between the Army and Air Force Exchange Service (AAFES) and AFGE, and that these misrepresentations were a substantive departure from the truth and had a significant impact on the election. It was further alleged that the distribution of the flyer occurred at a time which prevented an effective reply.

The Regional Director found that the flyer "contained misrepresentations of fact as to the AFGE/AAFES Master Agreement which could not be reasonably interpreted by employees as merely campaign propaganda and which could be expected to affect the outcome of the election." Regional Director's Decision at 4. However, the Regional Director also found that the flyer was distributed not later than the morning of May 23, 1988, 3 days before the election, that the Activity and the Intervenor "both had sufficient time to rebut the misrepresentations and that, in any event, AAFES did publish and distribute an effective reply prior to the election." Id. at 4. Therefore, noting both Authority precedent and a decision of the Assistant Secretary of Labor for Labor-Management Relations under Executive Order 11491, as amended, the Regional Director concluded that AFGE's distribution of the flyer did not constitute conduct which would warrant setting aside the election.

III. The Applications for Review

A. The Activity

AAFES filed an application on behalf of the Activity contending that the Regional Director's decision raises a substantial question of law and policy becau