37:1086(91)RO - - Army, Watervliet Arsenal, Watervliet, NY and NFFE Local 2109 and NAGE Local R2-98 - - 1990 FLRAdec RP - - v37 p1086



[ v37 p1086 ]
37:1086(91)RO
The decision of the Authority follows:


37 FLRA No. 91

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE ARMY

WATERVLIET ARSENAL

WATERVLIET, NEW YORK

(Activity)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2109

(Petitioner)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R2-98

(Intervenor)

1-RO-90003

ORDER DENYING APPLICATION FOR REVIEW

October 19, 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 Intervenor (NAGE) under section 2422.17(a) of the Authority's Rules and Regulations. Neither the Petitioner (NFFE) nor the Activity filed an opposition to the application for review.

A representation election was conducted among certain employees of the Activity. Of the 786 valid votes counted, 459 were cast for NFFE, 302 were cast for NAGE, and 22 were cast against exclusive representation. There were 3 challenged ballots.

Thereafter, NAGE filed six objections with the Regional Director (RD), alleging that conduct by NFFE and the Activity during the course of the election warranted setting aside the election. In his Decision and Order on Objections, the RD concluded that the objections had no merit and did not warrant setting aside the election.

NAGE seeks review of the RD's decision concerning objections 2, 4, 5 and 6. Therefore, the RD's decision with respect to objections 1 and 3 will not be considered. For the reasons set forth below, we deny NAGE's application for review.

II. Regional Director's Decision

A. Objection No. 2 (*)

The RD found that this objection related to an alleged incident between NAGE Executive Secretary Harry Breen and NFFE National Representative James Davis. The RD noted that, according to Breen, Breen was walking across an Activity parking lot on November 16, 1989, when Davis hit Breen with his car once and tried to hit Breen a second time. According to Breen, Davis told Breen that "[y]ou can tell your national people that I'm going to run over them with the car." RD's Decision at 6.

The RD found that, according to Davis, on November 16, NFFE was campaigning at the Activity's gate. Davis contended that when he drove up to the gate, he saw Breen harassing a NFFE supporter. Davis further contended that after exchanging words with Breen, Breen struck Davis. The RD noted that "[n]o evidence was presented that any employees witnessed this incident." Id. at 7.

The RD concluded that "[a]ssuming the November 16 incident took place as described by Breen," that incident did not affect the results of the election. Id. at 8. The RD found no merit in NAGE's allegation that the incident interfered with its ability to campaign effectively because its organizers were afraid and as a result, did not campaign in the parking lots; the RD stated that he was "convinced that any decision by NAGE not to campaign in parking areas was because it believed it could campaign in other areas more effectively[.]" Id. Accordingly, the RD found no merit in Objection No. 2.

B. Objection No. 4

NAGE based this objection on three campaign flyers distributed by NFFE supporters entitled: (1) "NFFE-The Facts;" (2) "Good News and Bad News About Attorneys;" and (3) "NFFE Fights for Federal Employees."

The RD found that the first flyer questioned NAGE's arbitration policy and stated that the only recent arbitration case "anyone can remember" was filed only after the grievant filed a complaint against NAGE with the FLRA. Id. at 9. He found that the second flyer listed eight NAGE attorneys and their salaries, and stated that the attorneys did not work full-time for NAGE. The RD found that the third flyer described efforts made by NFFE on behalf of Federal employees faced with loss of jobs and compared NFFE's efforts with NAGE's alleged failure to fight for employees represented by NAGE at Fort Leonard Wood.

The RD rejected NAGE's assertions that the three flyers contained material misrepresentations which affected the results of the election. The RD found, instead, that even if the flyers contained exaggerations or inaccuracies, the flyers concerned "issues addressed extensively by NFFE and NAGE during the election campaign and . . . constitute[d] mere 'campaign puffery' which the employees were able to evaluate as such." Id. at 10-11, quoting Office of the Secretary, Headquarters, Department of Health and Human Services, 14 FLRA 807, 808 (1984).

The RD noted that NAGE and NFFE disagreed on the date the flyers were first distributed. The RD found, however, that "[a]ssuming . . . that NAGE's evidence that these flyers were not distributed until December 5, 1989, is true," NAGE had sufficient time to respond to the flyers prior to the December 7 election. Id. at 11. Accordingly, the RD found no merit in Objection No. 4.

C. Objection No. 5

NAGE based this objection on three campaign flyers first distributed by NFFE on December 6, 1989, the day before the election entitled: (1) "NFFE Gives You Honest Answers to Honest Questions"; (2) "What Kind of a Union Would Make a Dangerous Health Hazard a Campaign Tactic?"; and (3) "You Lost With NAGE."

The RD found that the first flyer, which attempted to summarize what would happen if NFFE won the election, stated, among other things, that (1) "until the new [contract] is finished, management must continue to follow" existing contract provisions, and (2) "[a]fter negotiations are finished, NFFE members will have a chance to approve the contract." Id. at 11. The second flyer asserted that an asbestos testing program sponsored by NAGE provided for testing on duty time only for NAGE members. According to the RD, the third flyer listed benefits that "NAGE allegedly gave away to management[.]" Id. at 12.

The RD rejected NAGE's contentions that the three flyers contained material misrepresentations. The RD noted that one statement in the first flyer reflected current Authority law and the other statement reflected an accurate description of NFFE policy. The RD found that contested statements in the second flyer also were accurate. Although the RD found that some statements in the third flyer could be regarded as inaccurate, the RD concluded that those statements referred to provisions in a contract negotiated by NAGE and the Arsenal and were not based on facts peculiarly within the knowledge of NFFE. As such, the statements could "reasonably be recognized by employees as normal campaign propaganda regarding the effectiveness of NAGE's representation." Id.

The RD noted that, "assuming" that the flyers were distributed the day before the election, NAGE did not have an opportunity to respond to the flyers. Id. at 11. However, as the RD found that the flyers did not contain material misrepresentations, he concluded that the objection provided no basis for setting aside the election.

D. Objection No. 6

NAGE based this objection on the same NFFE leaflet, "You Lost With NAGE," which was discussed in connection with Objection No. 5. The RD found that the only fact unique to this objection was that the flyer was again distributed on December 7, 1989, the day of the election.

The RD concluded that nothing in this flyer constituted a material misrepresentation. Accordingly, the RD found no merit in Objection No. 6.

III. The Application for Review

NAGE contends that compelling reasons, within the meaning of section 2422.17(c)(1) and (4) of the Authority's Rules and Regulations, exist for granting its application for review. NAGE claims that the RD's decision departs from Authority precedent and that the RD's findings on several substantial factual issues are clearly erroneous and that the errors affect its rights.

With respect to Objection No. 2, NAGE contends that the RD's findings that the assault and comments by Davis did not interfere with NAGE's ability to conduct its election campaign are clearly erroneous. NAGE claims that the RD failed to consider that 50-65 employees could be reached each day by campaigning in the parking lots and that NAGE officials did not campaign in the parking lots because they feared bodily harm from Davis.

With respect to Objection Nos. 4, 5, and 6, NAGE contends that the RD erred in finding that NFFE's flyers did not contain material misrepresentations of fact. NAGE claims that NFFE's statements in the flyers "not only were outright lies, but also misrepresented NAGE's ability to perform such basic employee services as representation in arbitration hearings and contracting out proceedings and in contract negotiations." Application at 5. Further, NAGE claims that, because the flyers contained material misrepresentations, the RD should have concluded that NAGE did not have ample time to reply to the flyers. NAGE claims that the "election result should be set aside and a new election ordered." Id. at 7.

IV. Analysis and Conclusions

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

A. Objection No. 2

NAGE has not demonstrated that the RD's factual findings concerning Objection No. 2 are clearly erroneous. Accordingly, NAGE's arguments do not establish compelling reasons, within the meaning of section 2422.17(c) of the Authority's Regulations, to grant review of the RD's decision.

B. Objection Nos. 4, 5, and 6

Campaign statements which can be reasonably interpreted by employees as mere "campaign puffery" do not provide a basis for setting aside an election. For example, U.S. Department of the Army, Savanna Army Depot Activity, Savanna, Illinois, 34 FLRA 218, 221 (1990) (Savanna).

The RD found that the subject matter of the flyers contested in Objection No. 4 concerned "issues addressed extensively by NFFE and NAGE during the election campaign and, in [his] view, constitute mere 'campaign puffery' which the employees were able to evaluate as such." RD's Decision at 10-11 (citation omitted). The RD found that contested statements in the flyers addressed in Objection Nos. 5 and 6 did not constitute material misrepresentations because (1) certain statements were accurate, and (2) other statements "could reasonably be recognized by employees as normal campaign propaganda[.]" Id. at 12.

We find that the RD properly applied Authority precedent in determining that the content of the contested NFFE flyers did not warrant setting aside the election. NAGE has not demonstrated otherwise. As the contested flyers did not contain material misrepresentations of fact, it was, and is, unnecessary to determine whether NAGE had sufficient time to respond to the statements. S