34:0208(44)RO - ARMY, SAVANNA ARMY DEPOT ACTIVITY SAVANNA, ILLINOIS and NFFE and NAGE -- 1990 FLRAdec RO



[ v34 p208 ]
34:0208(44)RO
The decision of the Authority follows:


 34 FLRA NO. 44



                 U.S. DEPARTMENT OF THE ARMY
                 SAVANNA ARMY DEPOT ACTIVITY
                      SAVANNA, ILLINOIS
                          (Activity)

                             and

           NATIONAL FEDERATION OF FEDERAL EMPLOYEES
                         (Petitioner)

                             and

         NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
                (Labor Organization/Incumbent)

                          5-RO-80010

ORDER DENYING APPLICATION FOR REVIEW AND REQUEST FOR STAY

    		      January 11, 1990

     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 National Association of Government Employees,
AFL - CIO (the Incumbent), 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 not
cast for either the Incumbent or the National Federation of
Federal Employees (the Petitioner), the Incumbent filed
objections to the election results with the Regional Director.

     The Incumbent 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 Incumbent seeks review of the Regional
Director's determination.

     Inasmuch as the Authority had two vacancies when this
application for review was received, Acting Chairman McKee issued
an Interim Order on February 28, 1989, directing that
consideration of the application be deferred until further
notice. The Interim Order preserved the parties' rights under the
Statute to Authority consideration of the Regional Director's
decision.

     By letters dated June 9 and July 7, 1989, the Incumbent
requested that Acting Chairman McKee stay a run-off election.
According to the Incumbent, the Regional Director set the run-off
election for August 1, 1989, and informed the Incumbent that the
ballots would be impounded until the Authority ruled on the
application for review.

     The Authority now considers the Incumbent's application for
review and request for a stay of the run-off election. For the
reasons set forth below, we conclude that the application for
review and the request for a stay of the election should be
denied.

II. Regional Director's Decision

     An election was held on August 16,  1988, in the following
unit: "All non-supervisory WG and GS employees of the Savanna
Army Depot Activity, U.S. Army Defense Ammunition Center and
School, U.S. Army Communications Element - Savanna, and
Occupational Health Nursing Office, including those employees
employed in fire prevention and protection, and in the Security
Office (sic)." Regional Director's Decision at 1. Of the valid
votes counted, the National Federation of Federal Employees
(NFFE) received 38, the National Association of Government
Employees (NAGE) received 36, and 9 votes were cast against
exclusive recognition.

     Following the election, NAGE filed objections to conduct by
NFFE which NAGE alleged improperly affected the election results.
Specifically, NAGE asserted that statements in a flyer which NFFE
distributed just prior to the date of the election "'disturbed
the laboratory conditions of the election.'" Id. at 2. In
addition, NAGE asserted that distribution of the flyer occurred
at a time which prevented "'a timely and effective'" response.
Id. 

     The Regional Director found that some bargaining unit
employees received the NFFE flyers by mail on the Friday or
Saturday prior to the Tuesday election. Other unit employees
received the flyers through a distribution at the Activity the
day before the election, which was held on Tuesday, August 16, 
1988. The Regional Director found that the flyer did not contain
"clear or substantial misrepresentations" of fact. Id. at 3.
Additionally, the Regional Director determined that the
statements did not "threaten or intimidate and did not otherwise
interfere" with a reasonable employee's free choice in the
election. Id. The Regional Director concluded that the flyer was
campaign propaganda "easily recognizable as such by the
reasonable employee" and "of the type which employees themselves
may intelligently evaluate." Id. As the Regional Director found
that NAGE's objections concerning the content of the flyer were
without merit, be found it unnecessary to address NAGE's
additional assertion that NAGE had insufficient time to respond
to the flyer.

     The Regional Director concluded that no  objectionable
conduct occurred which improperly affected the results of the
election. Because the election results were inconclusive, the
Regional Director ordered that a run-off, secret ballot election
be held among the unit of employees who constituted the eligible
group of employees in the original election.

III. The Application for Review

     NAGE argues that the Regional Director's Decision
establishes new precedent by disregarding the time needed for an
effective response to campaign literature. According to NAGE,
disregarding response time will "allow unions to print or say
anything up to and until the employee enters the voting area."
Application for Review at 2.

     According to NAGE, unit employees received the NFFE flyer by
mail at their homes the Saturday prior to the election and the
following Monday through distribution at the Activity. NAGE
asserts that NFFE stated in the flyer that "they (NAGE) are busy
attacking one of your fellow employees by calling her a thief, a
crook, etc.'" Id. NAGE explains that bargaining unit employees
knew that NFFE was referring to an employee who was respected and
popular. NAGE argues that "(i)f no  response was made to these
malicious charges, then one would have to believe they are true,
especially in an election campaign." Id. NAGE asserts that the
time to prepare an effective response "must not be removed from
the election procedure." Id. at 3. 

IV. Analysis and Conclusion

     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. Specifically, we find that no  substantial question
of law or policy is raised by reason of a departure from
Authority precedent.

     Contrary to NAGE'S argument, the Regional Director did not
ignore the issue of whether NAGE had sufficient time to respond
to campaign statements in NFFE's flyer. The Regional Director
found it "unnecessary to address (NAGE's) ... assertion that it
had insufficient time to respond to the flyer(,)" because he
found, as a threshold matter, that the statements in the flyer
did not constitute "clear or substantial misrepresentations of
fact." Regional Director's Decision at 3.

     In reaching his decision that the NFFE flyer contained no 
substantial misrepresentation of fact, the Regional Director
relied on Department of the Navy, Naval Air Rework Facility,
Norfolk, Virginia, 12 FLRA  15 (1983) (Department of the Navy).
In that case, the Authority held that statements which could
reasonably be interpreted by employees as nothing more than
"campaign puffery" will not serve as a basis for setting aside an
election. Id. at 16.  The Regional Director found that the
statements in the NFFE flyer were "campaign propaganda, easily
recognizable as such by the reasonable employee." Regional
Director's Decision at 3. Accordingly, the Regional Director
concluded that the flyer did not constitute material which
warranted setting aside the election.

     We find that the Regional Director properly applied
Authority precedent in determining that the content of the NFFE
flyer did not warrant setting aside the election. In fact, NAGE
does not contend otherwise. NAGE objects only to the Regional
Director's failure to address whether NAGE had sufficient time to
respond to the flyer.

     As the Regional Director properly determined that the
objections to the content of the flyer were without merit, it was
not necessary for the Regional Dir