34:0038(10)RO - - Army Engineer Activity, Capital Area, Fort Myer, Virginia and International Association of Fire Fighters, Local F-253 and Federal Firefighters Association, Local 2 - - 1989 FLRAdec RP - - v34 p38
[ v34 p38 ]
The decision of the Authority follows:
34 FLRA No. 10
FEDERAL LABOR RELATIONS AUTHORITY
U.S. ARMY ENGINEER ACTIVITY, CAPITAL AREA
FORT MYER, VIRGINIA
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS
LOCAL F-253, AFL-CIO
FEDERAL FIREFIGHTERS ASSOCIATION
LOCAL 2, AFL-CIO
ORDER DENYING APPLICATION FOR REVIEW
December 26, 1989
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an application for review filed by the Federal Firefighters Association, Local 2, AFL-CIO (the Intervenor or FFA) under section 2422.17(a) of the Authority's Rules and Regulations. After a representation election in which a majority of the valid votes counted was cast for the International Association of Fire Fighters, Local F-253, AFL-CIO (the Petitioner or IAFF), FFA filed objections to the election results with the Regional Director. In his Decision and Order on Objections to Election, the Regional Director concluded that the objections raised by FFA did not warrant setting aside the election.
FFA seeks review of the Regional Director's determination. IAFF filed an opposition to FFA's application for review.
FFA contends that the election should be set aside because: (1) temporary employees were improperly allowed to vote in the election; and (2) prior to the election, representatives of IAFF violated section 7131 of the Statute by soliciting employees for membership during work hours.
For the reasons which follow, we deny the application for review.
II. Background and the Regional Director's Decision
On May 25, 1989, prior to an election between FFA and IAFF, an election conference was held in which the U.S. Army Engineer Activity, Capital Area, Fort Myer, Virginia (the Activity), IAFF, and FFA executed an Agreement for Consent or Directed Election. At that conference, the Activity, IAFF, and FFA "specifically agreed to include temporary employees in the voting unit" and initialed an eligibility list which included temporary employees. Regional Director's Decision at 2-3. On June 20, 1989, representatives of the Activity and IAFF attended a pre-election conference where they reviewed the eligibility list. No FFA representative attended the June 20, 1989 conference. The eligibility list initialed by all of the parties was used as the official voting list.
On June 22, 1989, an election was held in the following unit:
All nonsupervisory, nonprofessional General Schedule Firefighters, including Fire Inspectors and Fire Captains of the U.S. Army Engineer Activity, Capital Area, excluding all professionals, confidential employees, employees engaged in personnel work in other than a purely clerical capacity and supervisors as defined in 5 U.S.C. [Chapter] 71.
Id. at 1. Of the valid votes counted, IAFF received 30 and FFA received 19.
Following the election, FFA filed objections to conduct by the Activity and IAFF which FFA alleged improperly affected the election results. FFA argued that the election should be set aside because: (1) temporary employees should not have been given the opportunity to vote in the election; and (2) "the Activity permitted improper solicitation by IAFF during work time in working areas[.]" Id. at 4. The Regional Director found that no objectionable conduct occurred which warranted setting aside the election results.
With respect to the first objection, the Regional Director stated that, under established precedent, temporary employees are eligible to be included in bargaining units if they have a reasonable expectation of continued employment. The Regional Director determined that "FFA's mere assertion that temporary employees at the Arlington Hall Station will not be retained is insufficient to rebut the expectation of their continued employment." Id. at 3. The Regional Director noted that at the May 25, 1989 election conference, the parties, including FFA, specifically agreed to include temporary employees in the voting unit. Although no FFA representative attended the June 20, 1989 pre-election conference, the Regional Director noted that "FFA did not allege that any of the temporary employees . . . should not have been included on the eligibility list although it had an opportunity to do so." Id. The Regional Director also found that, of the two temporary employees who voted, one voted at a poll where FFA did not have an election observer, while the other voted at another poll but was not challenged by the FFA observer at that poll.
The Regional Director concluded that FFA's objection was "an untimely challenge to the eligibility of the temporary employees" and that even if all the temporary employees had voted, the outcome of the election would not have been affected. Id. at 4. Accordingly, the Regional Director found no evidence to establish that temporary employees were improperly given an opportunity to vote in the election. The Regional Director overruled FFA's first objection.
With respect to the second objection, the Regional Director noted that: (1) one employee submitted a statement that he had been solicited during work time by another employee to join IAFF; and (2) the Activity, before it received a complaint, learned that another employee may have violated its rule against solicitation. In both cases, the Regional Director found that once the Activity learned that improper solicitation may have occurred, it "acted quickly to stop such activity[.]" Id. at 5. The Regional Director stated that there was "no evidence that the Activity approved or condoned any solicitation during work time in work areas" and concluded that the fact that improper solicitation by two employees may have occurred in "isolated incidents" did not establish objectionable conduct. Id.
Having found that no objectionable conduct occurred which warranted setting aside the election results, the Regional Director advised the parties that he would issue a Certification of Representative on behalf of IAFF.
III. The Application for Review
FFA argues that the Regional Director's decision should be overturned because it: (1) raises a question of law or policy since it either is not supported by, or departs from, Authority precedent; and (2) presents extraordinary circumstances.
With respect to the first objection, FFA contends that there is no Authority precedent to support the Regional Director's statement that temporary employees are eligible to be included in bargaining units if they have a reasonable expectation of continued employment. FFA further contends that: (1) it was a "known fact" that the temporary employees were not going to be retained; and (2) after the Regional Director issued his decision, the temporary employees in this case were released from employment. Application for Review at 2.
With respect to the second objection, FFA contends that on two occasions, IAFF members were soliciting for membership, while on duty, in violation of section 7131 of the Statute. FFA asserts that these two incidents of solicitation during work time constitute "highly objectionable conduct." Id.
FFA requests the Authority to reverse the Regional Director's decision and order a new election.
IAFF argues that FFA's objections are "frivolous" and should be dismissed. Opposition at 1. With respect to the first objection, IAFF contends that FFA stipulated that temporary employees could be included in the list of eligible voters and that, due to their small number, exclusion of the temporary employees would not have affected the outcome of the election. As to the second objection, IAFF argues that the alleged solicitation took place well before the election and was quickly corrected by the Activity.
For the following reasons, we conclude that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review.
We reject FFA's assertion that the Regional Director's decision as to the temporary employees raises a question of law or policy. The Authority has held that temporary employees who have a reasonable expectancy of future employment may be included in a bargaining unit. See U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Northeast Region, 24 FLRA 922, 926 (1986). Therefore, the Regional Director's statement of law is consistent with Authority precedent.
Further, FFA's assertion that the temporary employees were released after the issuance of the Regional Director's decision provides no basis for granting the application for review. At the time of the investigation in this case, the Regional Director found that FFA had not supported its assertion that the temporary employees were not going to be retained. FFA has not shown that, based on the evidence presented during the investigation, the Regional Director's factual finding was clearly erroneous. Therefore, we reject FFA's challenge to the Regional Director's factual finding.
We conclude that the Regional Director properly allowed temporary employees to vote in the election. As discussed above, temporary employees who have a reasonable expectancy of future employment may be included in a bargaining unit. We also note that, as found by the Regional Director, FFA had previously agreed to include temporary employees on the list of eligible voters and did not challenge the ballots of the temporary employees who voted. Accordingly, we conclude that FFA's first objection provides no basis for granting review of its application.
We also reject FFA's assertion that the two incidents of alleged solicitation by employees representing IAFF while those employees were on duty warrant setting aside the election. FFA appears to argue that the alleged incidents of solicitation in and of themselves warrant setting aside the election results.
The standard for determining whether conduct is of an objectionable nature so as to require that an election be set aside is its potential for interfering with the free choice of the voters. See Marine Corps Logistics Base, Barstow, California, 9 FLRA 1046, 1047 (1982). In the circumstances present in this case, it cannot be concluded that the two alleged incidents of solicitation had the potential for interfering with the free choice of the voters. Therefore, the Regional Director's conclusion that these incidents provided no basis for setting aside the election is consistent with Authority precedent and does not constitute extraordinary circumstances which warrant granting FFA's application for review.
To the extent that FFA's application for review contends that the election should be set aside because the Activity improperly allowed solicitation by employees on behalf of IAFF during work time in working areas, we reject this contention as well.
During an election campaign, management has the duty to remain neutral. Department of the Army Headquarters, Washington, D.C. and U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, 29 FLRA 1110, 1125 (1987). Management actions during an election which deviate from this required neutrality and which have the potential to interfere with the free choice of the voters require the election to be set aside. See Department of the Air Force, Air Force Plant Representative Office, Detachment 27, Fort Worth, Texas, 5 FLRA 492, 498 (1981).
The Regional Director found that once the Activity learned about the two incidents of alleged improper solicitation for IAFF by employees, the Activity "acted quickly" to inform the employees involved to "cease soliciting while in duty status." Regional Director's Decision at 4, 5. The Regional Director further found that there was "no evidence that the Activity