36:0407(49)RO - - Army, Fifth Army, 122nd Arcom, North Little Rock, AR and NAGE Local R5-158 and NFFE Local 386 - - 1990 FLRAdec RO - - v36 p407



[ v36 p407 ]
36:0407(49)RO
The decision of the Authority follows:


36 FLRA No. 49

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE ARMY

FIFTH ARMY, 122ND ARCOM

NORTH LITTLE ROCK, ARKANSAS

(Activity)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R5-158

(Petitioner)

AND

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 386, INDEPENDENT

(Intervenor)

6-RO-90004

ORDER DENYING APPLICATION FOR REVIEW

July 24, 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 Petitioner (NAGE) under section 2422.17(a) of the Authority's Rules and Regulations. A representation election was conducted by mail ballot. Of the 113 valid votes counted, 28 were cast for NAGE, 46 were cast for the Intervenor (NFFE), and 39 were cast against exclusive recognition. There were 13 challenged ballots.

Thereafter, NAGE filed with the Regional Director two objections to conduct affecting the results of the election. NAGE contended that conduct by NFFE and by the Activity during the course of the election warranted setting aside the election. In his Decision and Order on Objections and Determinative Challenged Ballots, the Regional Director concluded that the objections had no merit and did not warrant setting aside the election.

NAGE seeks review of the Regional Director's decision. NFFE filed an opposition to the application for review. For the reasons discussed below, we find that NAGE has not established any basis for review of the Regional Director's Decision and Order. Accordingly, we deny the application for review.

II. Background and Regional Director's Decision

An election by mail ballot was conducted under the Regional Director's supervision. Ballots were mailed to employees on December 13, 1989. The parties agreed that ballots must be received by 4:30 p.m., January 2, 1990, in order to be valid. Thirteen ballots were received at 10:10 a.m., January 3, 1990, prior to the count that took place that day. These 13 ballots were challenged by NFFE as untimely and were not counted. Of the 113 valid votes counted, NFFE received 46, NAGE received 28, and 39 were cast against exclusive recognition.

Following the election, NAGE filed timely objections to conduct by NFFE and by the Activity which allegedly improperly affected the results of the election. The objections were as follows:

Objection No. 1. On 4 January 1990 [NAGE] became aware that [NFFE] mailed campaign literature to eligible voters['] home addresses. The literature contained false and damaging statements to which [NAGE] had no opportunity to respond[.]

Objection No. 2. [NAGE] objects to the election based on [NFFE] being provided home addresses of eligible voters when [NAGE was] not provided home addresses and to literature being distributed by [NFFE] during the vote to which [NAGE] had no opportunity or means to respond.

Regional Director's Decision at 2, 4.

In support of its objections, NAGE submitted two letters, addressed to unit employees, which constitute the "literature" referred to in the objections. One letter was written on the letterhead of NFFE, Local 1708. The other letter was from NFFE's National President. NAGE also submitted evidence to show that these letters were sent to employees at their homes and were received by the employees during the week after Christmas.

A. Objection No. 1

The Regional Director found that the letter from NFFE, Local 1708 constituted "general campaign rhetoric as to why an employee should join a union and [the individual's] personal opinion as to the local concerns involving a wage survey." Regional Director's Decision at 3. He found that the letter from NFFE's National President constituted "a commonplace campaign advertising letter designed to inform voters as to NFFE's organization and structure of NFFE and present its claims as to how it has assisted similarly situated employees in the past." Id. The Regional Director concluded that "the NFFE letters did not amount to improper conduct affecting the result of the election." Id.

The Regional Director noted that statements made during the course of an election campaign "must be a substantial departure from the truth which reasonably would be expected to have a significant effect" on an election to be valid grounds for objection. Id., citing U.S. Army Health Care Systems Support Activity and the U.S. Army Patient Administration and Biostatistical Activity, 16 FLRA 1178 (1984). He also noted that statements "in the form of campaign propaganda are susceptible to evaluation by the electorate and unobjectionable when the [other parties have] ample time to respond." Id., citing Department of the Army, Headquarters, Fort Sam Houston and U.S. Army Commissary, Fort Sam Houston, Texas, 12 FLRA 766 (1983). The Regional Director also stated that 3 days has been found to be sufficient time to make an effective reply. Id., citing Army and Air Force Exchange Service, Fort Drum Exchange (Fort Drum, New York), 33 FLRA 245 (1988) (Fort Drum).

The Regional Director found that the letter on NFFE, Local 1708 letterhead was "clearly recognizable to voters as campaign propaganda and as such is susceptible to higher level evaluation by the electorate." Id. The Regional Director further found that the letters to employees were placed in the mail on December 23, 1989, and were received after Christmas, which would have allowed NAGE sufficient time to respond by the time ballots were due in the Authority's Regional Office. Id. The Regional Director also stated that NAGE could have obtained employees' names and addresses from the local phone book and mailed campaign literature to the employees and that, moreover, NAGE had ample time to respond with a campaign flyer distributed directly to employees at their worksite or in public areas adjacent to the worksite. Id. at 3-4.

Based on the foregoing, the Regional Director found that Objection No. 1 had no merit.

B. Objection No. 2

NAGE alleged that NFFE had been provided home addresses of eligible voters, while NAGE was not provided such addresses. NAGE also objected to literature being distributed by NFFE during the voting period to which NAGE had no opportunity or means to respond.

The Regional Director stated that NAGE did not present evidence to establish that NFFE had received home addresses from the Activity and did not show whether NAGE had made its own request for home addresses. Regional Director's Decision at 4. The Activity contended before the Regional Director that, although NFFE may have obtained names and home addresses from the Finance and Accounting Office of Fort Sill, it did not receive a request for employees' names and home addresses from either NFFE or NAGE and did not provide employees' names or home addresses to either party. Id. NFFE stated that it neither requested nor received employees' names and home addresses from the Activity. NFFE submitted evidence to show that it had obtained the home addresses of the employees to whom it mailed letters during the course of an organizational campaign in 1987. Id.

The Regional Director found that NAGE had failed to present evidence to support its allegation that NFFE had requested or received employees' names and home addresses from the Activity or another component of the Department of Defense. Id. at 5. The Regional Director also found that the only evidence on this issue, presented by NFFE, clearly established that NFFE had obtained home addresses from the employees themselves. Id. The Regional Director concluded that NAGE had failed to establish that NFFE received assistance from the Activity which affected the result of the election. Accordingly, the Regional Director found that Objection No. 2 had no merit. Id.

C. Challenged Ballots

NFFE challenged the ballots of 13 employees because those ballots were received after the deadline agreed upon by the parties for the receipt of ballots. One of those ballots was also challenged because the employee's name did not appear on the list of eligible voters.

The Regional Director found that the name of the one employee whose ballot had been challenged on two grounds had been inadvertently left off the list of eligible voters.

The Regional Director found that although the 13 challenged ballots had been received after the deadline agreed upon by the parties, the ballots had been received before the tally of ballots and that there was "a reasonable probability that the ballots should have been timely received by the Regional Office." Id. at 6. The Regional Director concluded that, in these circumstances, the challenges could not be sustained. He stated that the challenged ballots will be opened and counted if no application for review is filed or if one is filed and review is not granted. Id. at 7.

III. Positions of the Parties

A. NAGE's Application for Review

NAGE contends that the Regional Director's decision "on a factual issue is clearly erroneous and prejudic[i]ally affects the Petitioner" and that "the Regional Director has departed from an Authority precedent." Application for Review at l.

NAGE states that the mail balloting took place between December 13, 1989, and January 3, 1990, with the tally of ballots being held on January 3. Id. NAGE states that on January 4, 1990, NAGE became aware that during the balloting NFFE had mailed to eligible voters' home addresses campaign literature that contained "false and damaging statements to which [NAGE] had no opportunity to respond." Id.

NAGE notes that in Fort Drum the Authority held that 3 days was sufficient time to make an effective reply to campaign propaganda. NAGE argues that in this case, however, it had no opportunity to reply to the literature because NAGE was not aware of the literature that had been mailed until after the tally of ballots. Id. at 2. NAGE further argues that even if it had been aware of the literature, which was received by employees on or about December 28, 1989, NAGE could not have responded by mail. NAGE states that it did not have the employees' home addresses, and argues that, in any event, because ballots had to be received before January 3, 1990, anything NAGE mailed to employees would not have been received by them before they mailed their ballots. Id.

NAGE requests the Authority to grant review and direct that a new election be held, arguing that "[t]he NFFE mailing adversely affected the election process." Id. at 2.

B. NFFE's Opposition

NFFE contends that the application for review should be denied because "it fails to establish any prejudice on the part of the Regional Director or departure from Authority precedent. Rather, NAGE merely expresses disagreement with the Regional Director's decision." Opposition at 1.

In support of the Regional Director's decision, NFFE argues that NAGE had ample time to respond to NFFE's literature. NFFE notes that there is no requirement that NAGE have time to respond by mail, and argues that NAGE had ample time to respond and could have responded by telephone or personal contacts. NFFE argues that NAGE has not shown that the Regional Director was in error as to any substantial factual issue. Id. at 1-2. Finally, NFFE argues that NAGE cites nothing to support its allegation that the Regional Director departed from Authority precedent. Id. at 2.

IV. Analysis and Conclusions

We conclude, for the reasons stated below, that no compelling reasons exist within the meaning of section 2422.17 of the Authority's Rules and Regulations for granting the application for review.

NAGE's application for review reiterates the allegation made before the Regional Director that NFFE's "literature co