39:1445(125)RO - - Army Corps of Engineers, HQ, South Pacific Division, San Francisco, CA and IFPTE and NFFE Local 777 - - 1991 FLRAdec RO - - v39 p1445



[ v39 p1445 ]
39:1445(125)RO
The decision of the Authority follows:


39 FLRA No. 125

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. ARMY CORPS OF ENGINEERS

HEADQUARTERS, SOUTH PACIFIC DIVISION

SAN FRANCISCO, CALIFORNIA

(Activity)

and

INTERNATIONAL FEDERATION OF PROFESSIONAL

AND TECHNICAL ENGINEERS, AFL-CIO

(Petitioner)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 777, INDEPENDENT

(Intervenor)

9-RO-00005

ORDER DENYING APPLICATION FOR REVIEW

March 26, 1991

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 (NFFE) under section 2422.17(a) of the Authority's Rules and Regulations. The Regional Director conducted elections among the professional and the nonprofessional employees of the Activity. The professional employees voted to remain separate from the nonprofessional employees, and the ballots of each group were counted separately. None of the choices on the ballots received a majority of the valid votes counted. Separate run-off elections among each group were conducted.

This application for review concerns only objections filed to the run-off election among the nonprofessional employees. Of the 43 valid votes counted, 21 were cast for NFFE and 22 were cast against exclusive recognition. There were no challenged ballots. Following the run-off election, NFFE filed two objections with the Regional Director: one to the procedural conduct of the election; and one to conduct by the Activity which allegedly improperly affected the results of the run-off election. In her Decision and Order on Objections, the Acting Regional Director (ARD) concluded that the objections had no merit and did not warrant setting aside the election.

NFFE seeks review of the ARD's decision. The Activity did not file an opposition to NFFE's application for review. For the reasons discussed below, we find that NFFE has not established any basis for review of the ARD's Decision and Order. Accordingly, we deny the application for review.

II. Acting Regional Director's Decision

A. Objection No. 1

NFFE's first objection, to the procedural conduct of the election, was as follows:

Two employees were improperly removed from the nonprofessional unit just before the election; they are Raymond Heindrich and Jane Piper, auditors.

ARD's Decision (ARD) at 2.

The ARD noted that NFFE contended that because auditors Heindrich and Piper received nonprofessional ballots in the first election, they should have received ballots in the run-off election, without regard to whether they are professional employees. Id.

The ARD found that at the time of the run-off election Piper was no longer an employee of the Activity and was no longer in the bargaining unit. The ARD found that Piper, therefore, was not eligible to vote in the run-off election and correctly did not receive a ballot. Id. at 2-3.

The ARD found that the evidence established that Heindrich was a professional employee within the meaning of section 7135(b) of the Statute. The ARD explained that Heindrich had erroneously been given a nonprofessional ballot in the first election. In the run-off election, Heindrich was correctly identified as a professional employee and was provided a ballot in the professional run-off election, but was not allowed a ballot in the nonprofessional run-off election. Id. at 3. The ARD stated that "[i]t would have been illogical to repeat the error made in the initial election of providing Heindrich with a nonprofessional ballot simply to make the run-off election consistent with the initial election." Id.

The ARD concluded that the exclusion of Piper and Heindrich from the list of eligible employees in the nonprofessional run-off election was correct and that no improper procedural conduct occurred. She found Objection No. 1 to be without merit. Id. at 4.

B. Objection No. 2

NFFE's second objection, to conduct by the Activity which allegedly improperly affected the results of the run-off election, was as follows:

At least one supervisor (maybe more) attempted to keep employees from voting by telling them improperly that they were ineligible to cast ballots. One specific incident was that James Z. Bedford, Director of the South Pacific Division Laboratory, telling employees April Hansen, Carol Melvin and Lloyd Wong they were not allowed to vote, even though they are eligible bargaining unit members.

ARD at 4.

The ARD noted that NFFE contended that the comments allegedly made by Bedford "made a lasting impression upon eligible voters that they were not eligible to vote in the run-off election." Id.

The ARD found that Bedford had held a meeting with about 20 employees prior to the first election, during which he indicated that "employees who were involved in security, personnel or finance or who had management titles were not eligible to vote." Id. The ARD found, however, that "[t]here is no evidence that [Bedford] specifically informed Hansen, Melvin or Wong that they were not eligible to vote in the election or threatened employees in any way." Id.

The ARD also found that the conduct of Bedford could not in any event be grounds for objection. The ARD found:

The critical period preceding a run-off election during which objectionable conduct of one party may be used as grounds for setting aside the run-off election begins running from the date of the first election. Conduct occurring prior to the first election and not raised as objections to that election may not be considered as grounds for setting aside the run-off election. Report [on a Ruling] of the Assistant Secretary of Labor for Labor-Management Relations No. 50, February 29, 1972 [2 A/SLMR 640]; Singer Company, Wood Products Division, Trumann, Arkansas, 161 NLRB No. 87 (19[6]6).

Id.

The ARD found that because the alleged objectionable conduct of Bedford occurred prior to the first election, was outside the critical period of the run-off election, and was not raised as objectionable conduct to the first election, it could not be grounds for setting aside the run-off election. She found Objection No. 2 to be without merit. Id. at 4-5.

III. NFFE's Application for Review

NFFE requests "that the Authority set aside the [Acting] Regional Director's Decision and Order because of the extraordinary circumstances of the election and the [Acting] Regional Director's error in applying precedent." Application for Review at 3.

A. Objection No. 1

NFFE states that it does not disagree with the ARD's determination as to the status or "current disposition" of employees Piper and Heindrich. NFFE alleges, however, that "it is not logical that the [ARD] could have found that [Piper and Heindrich] were properly included in the first election while improperly excluded from the second." Id. at 1.

B. Objection No. 2

NFFE alleges that the remarks made to employees by Bedford were "so inappropriate [that they] can only chill the election by making many of Mr. Bedford's employees feel they would be insubordinate if they were to vote." Id. NFFE alleges further that there "can be no doubt" that employees were "cowed by Mr. Bedford's remarks" and that "management has improperly influenced the election." Id. at 3.

NFFE challenges the ARD's ruling that conduct occurring prior to the first election and not raised as objections to that election may not be considered as grounds for setting aside the run-off election. Id. at l. NFFE contends that the ARD's reliance on a 19-year old decision of the Assistant Secretary and a 25-year old decision by the National Labor Relations Board (NLRB) is inappropriate. Id. at 2.

NFFE contends that in any event, the Assistant Secretary's rule, adopted by the ARD, would nonetheless allow reliance on Bedford's remarks if unusual circumstances were shown. NFFE argues that two unusual circumstances exist in this case: (1) that because there were two unions involved in the first election, infractions by management might not have been properly reported; and (2) the run-off election was held only 35 days after the first election. NFFE suggests, without more, that these two "unusual circumstances" prevented it from learning about the Bedford remarks "in time for the run-off." 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.

A. Objection No. 1

The ARD found that, at the time of the run-off election, Piper was no longer employed by the Activity and was no longer in the bargaining unit. The ARD found that, although Heindrich had been provided a nonprofessional ballot in the first election, it was determined prior to the run-off election that he is a professional employee. NFFE does not dispute the finding that Piper was no longer in the bargaining unit or that Heindrich is a professional employee. NFFE alleges that, despite those findings, Piper and Heindrich should have been provided ballots in the nonprofessional run-off election.

We disagree. In order to be allowed to vote in any election, an employee must be an eligible voter at the time the election is held. Piper was no longer eligible at the time of the run-off election. As to Heindrich, the application for review provides no basis for finding that the ARD erred in stating that once the error as to his status was discovered it had to be corrected. It would have been improper to allow employees not in the nonprofessional unit to vote to determine representation for that unit. We find that NFFE has not shown that the ARD erred in her rulings as to Piper and Heindrich and has not shown that the procedural conduct of the run-off election was in any way improper.

B. Objection No. 2

NFFE alleges that the ARD erred by adopting a rule for which she cited as support a decision of the Assistant Secretary and one of the NLRB. We disagree. As the ARD noted with regard to Objection No. 1, a decision of the Assistant Secretary remains in full force and effect unless it has been revised or superseded by decisions issued pursuant to the Statute. ARD at 3 n.2. While decisions of the NLRB are not controlling in the Federal sector, the Authority may take into account the experience gained in the private sector. See U.S. Department of Labor, Office of the Solicitor, Arlington Field Office, 37 FLRA 1371, 1380-81 (1990).

The ARD adopted the rule that the critical period to look to in a run-off election to determin