41:0562(56)AC - - Union of Federal Employees and NFFE Local 405 and Army Corps of Engineers, St. Louis District, St. Louis, MO and Army AVSCOM and TROSCOM, St. Louis, MO and Army Information Systems Command, St. Louis, MO - - 1991 FLRAdec RP - - v41 p562
[ v41 p562 ]
The decision of the Authority follows:
41 FLRA No. 56
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
These cases are before the Authority on an application for review filed by the Petitioner, the Union of Federal Employees (UFE), under section 2422.17(a) of the Authority's Rules and Regulations seeking review of the Regional Director's Decision and Order on petitions for amendment of certification. The Regional Director found that procedures followed by the National Federation of Federal Employees, Local 405 (NFFE Local 405 or Local 405) to effect its disaffiliation from the National Federation of Federal Employees (NFFE) did not fully comply with the required procedures established in Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 858 (1974) review denied, 3 FLRC 259 (1975) (Montrose). Therefore, the Regional Director dismissed the petitions. The U.S. Army Corps of Engineers, St. Louis District (Army Corps of Engineers) filed an Application for Cross-appeal and the incumbent Union, NFFE Local 405, filed both a cross-petition and an opposition to UFE's application for review.
For the reasons set forth below, we grant UFE's application for review regarding what standard should be used when determining whether a vote on a proposed change of affiliation meets the Montrose requirement that such a vote be taken by "secret ballot." We deny UFE's application as to the other grounds raised. Further, we deny the Activity's application for cross-appeal, and we deny the cross-petition filed by NFFE Local 405. On review we affirm the Regional Director's dismissal of the petitions.
Petitions for Amendment of Recognition/Certification (AC petitions) were filed in these cases by UFE regarding three bargaining units of the Activity that are currently represented by NFFE Local 405. Through the petitions, UFE seeks to amend the certifications to reflect the disaffiliation of Local 405 from NFFE by changing the designation of the exclusive representative from NFFE Local 405 to the Union of Federal Employees.
A. The Bargaining Units
The petitions cover the following three units of employees:
The petition in Case No. 7-AC-00002 covers a unit that includes all lock and dam employees employed by the St. Louis District, Corps of Army Engineers, with the customary statutory exclusions.
The petition in Case No. 7-AC-00003 covers a unit that is comprised of all professional and non-professional General Schedule and Wage Grade employees of Headquarters, U.S. Army Aviation Systems Command (AVSCOM) and Headquarters, U.S. Army Troop Support Command (TROSCOM), with duty stations in the greater St.Louis area, including all employees of the U.S. Army Field Support Activity and the U.S. Army Administrative and Installations Support Activity.
The petition in Case No. 7-AC-00004 covers a unit that includes all General Schedule and Wage Grade employees of the U.S. Army Information Systems Command (ISC) - St. Louis located in the St. Louis Metropolitan Area.
The lock and dam employees operate five facilities located approximately 20 to 90 minutes by car from the Corps' Headquarters in downtown St. Louis, Missouri. Most live in the communities where they work. Some work a Monday-Friday 8:00 a.m. to 4:30 p.m. shift, and others work on a three-shift rotational schedule because of the continuous operation of the locks and dams. At the time of the election, the lock and dam bargaining unit was comprised of approximately 73 employees, 13 of whom were members of NFFE Local 405.
Most of the AVSCOM and TROSCOM employees work at a Federal Center building in St. Louis. Most live in the St. Louis metropolitan area, and an estimated 50 percent commute to work in car pools. They work varied schedules. At the time of the hearing, there were an estimated 4,062 employees in the AVSCOM/TROSCOM bargaining unit, of whom approximately 900 were members of NFFE Local 405.
Most of the ISC employees also work at the Federal Center building, although some are located at another downtown St. Louis building. They work varied schedules. At the time of the hearing, the ISC bargaining unit consisted of an estimated 312 employees, of whom approximately 22 were members of NFFE Local 405.
B. NFFE Local 405
1. Relationship with NFFE
Since about 1965, Local 405 has been an affiliate of the NFFE national organization. By virtue of this affiliation, Local 405's members are eligible for various benefits and services provided by NFFE, including insurance plans and consumer benefit programs. Members are responsible for any fees or premiums.
NFFE reviews appeals regarding such matters as disciplinary actions taken against members by an affiliate, internal union election protests, and complaints about the operations of an affiliate. The NFFE constitution provides procedures for placing an affiliate in trusteeship to assure that all affiliates are carrying out the legitimate objectives of NFFE. The constitution also specifies, among other things, that when a local affiliate is disbanded, all of the affiliate's funds, books, papers and other property become the property of NFFE.
Other NFFE services available to an affiliate include assistance in organizing units, developing membership, negotiating agreements, processing individual complaints, filing or defending against court actions, lobbying Congress, and providing or sponsoring training for affiliates' officers. NFFE determines the extent of these services, and the affiliates are responsible for the costs arising from the services. In addition to the foregoing, the NFFE field representatives and legal staff also assist with bargaining, adverse action matters, and the pursuit of grievances to arbitration.
Dues are assessed on a per capita basis. Prior to January 1, 1990, the per capita fee was $8.00 per member per month. In September 1989, the NFFE National Executive Council (made up of NFFE's officers) raised the fee to $10.00, effective January 1, 1990. In addition, the NFFE constitution specifies that the minimum dues that a local affiliate can collect are $1.00 per member per month over the per capita fee. The amount of dues assessed by Local 405 at all times material has been $6.75 per member per pay period, part of which is used to defray arbitration expenses incurred by the Local.
2. Organization and Operations
One slate of elected Local 405 officers serves the various units represented by the Local, with stewards assigned to each unit. The elected officers of the Local also comprise the Executive Board, Local 405's governing body. With a few exceptions, all expenditures over $500 must be approved by the membership. Seven standing committees of Local 405 have general responsibility for the functioning of the Local concerning particular operational areas. Regular membership meetings are held on a monthly basis during the noon hour in a conference room at the Federal Center building. These meetings historically have been held for members of all Local 405 units together. There have never been separate meetings for each bargaining unit.
Day-to-day operating decisions are made and carried out by the officers of Local 405. Since 1986, when Local 405 officers became dissatisfied with the staff assistance provided by NFFE, Local 405 has used local counsel, particularly in the areas of grievance processing, arbitration referral, and negotiation strategy. Local 405 officials also have lobbied local Congressmen on certain issues that they believed should be of a higher priority than the national issues that were the subject of NFFE lobbying. An example of one such local issue was a potential reduction in force.
Local 405 also has sponsored various types of benefit programs including health care programs, an annuity plan, a personal legal services plan, and travel and automobile discounts.
3. Background of Disaffiliation Movement
Officers of Local 405 began to consider disaffiliation from NFFE in mid-February, 1990, based on their displeasure over the increase in NFFE's local affiliate per capita fee assessment. Shortly after the increase became effective, Local 405's Executive Board decided to defer payment of that increase.
On March 14, 1990, the Local 405 Executive Board met and passed two motions concerning a "Union of Federal Employees." One approved a donation by Local 405 of $10,000 "to assist a sister organization, the Union of Federal Employees in promotion of the common welfare of Federal Employees." Regional Director's Decision at 12. The second was that Local 405 "donate one of its NCR computers to the UFE in the promotion of the common welfare of Federal employees." Id. The earliest indication of a UFE membership meeting is contained in the UFE's constitution, which reflects approval of that constitution in a general membership meeting on March 19. Another membership meeting was held on March 27. The minutes of that UFE membership meeting were signed by then Local 405 President, Milton McKelvie, as "President, NFFE Local 405" and interim dues were set at $1.00 per month. Id.
C. Notice of the April 2, 1990 Special Meeting
On March 15, 1990, the officers of Local 405 mailed a notice of a special meeting to its membership, scheduled for April 2, 1990, at 4:15 p.m. in the Federal Center building's cafeteria. The notice was signed by McKelvie. It stated that the meeting was "for the sole purpose of addressing and voting on issues concerning Local 405's affiliation with the National Federation of Federal Employees." Id. at 9-10. The notice said that members would be voting by secret ballot concerning whether the membership desired "to dissolve Local 405's affiliation with the National Federation of Federal Employees (NFFE) so as Local 405 may operate as an independent labor organization." Id. at 10. The notice also set forth "inherent choices" that the Local's officers saw arising from a vote to disaffiliate from the NFFE or a vote against doing so.
The "inherent choices" of disaffiliation listed in the notice of the special meeting are as follows:
1) retain all obligations of the local and responsibilities to its membership;
2) assume all responsibilities required by 5 USC 71 and the US Department of Labor;
3) assume Associate Fees assessed our members by NFFE due to their being covered by the NFFE Health Insurance, this responsibility will be limited to members currently enrolled in this FEHB Plan with reimbursement being made upon proof of payment; and
4) retain possession and control of all monies and properties on hand or forthcoming, including all dues paid by its members or collected through payroll deduction.
The "inherent choices" of voting to retain affiliation with NFFE were listed as:
1) effect an automatic increase of $2.00 per month to the local dues I am presently assessed (This is the amount of the last per capita increase imposed by NFFE); and
2) prepare for a motion for an additional dues increase to be voted on by the Membership.
The total dues required to cover both local and national requirements is anticipated to be between $9.00 and $10.00 per pay period.
In the same envelope with the notice of the special meeting, Local 405 also enclosed a notice stating that "[n]ominations for delegates to attend the NFFE National convention . . . will be made at the next general membership meeting which will be held in the Union office . . . at 12 noon on April 4, 1990." Id., attachment No. 2. McKelvie signed that notice on behalf of the Local 405 elections committee chairperson. Id. at 10. The notices were sent in pre-stamped envelopes, which contained no return addresses.
Aside from a stipulation that six specific Local 405 members did not receive the "special meeting" notice and testimony from a Local steward who attended the meeting but testified that she did not receive the notice, there is no evidence that any other Local 405 members did not receive the notice. Further, there is no evidence that any member raised any objection about the date, time or place of the special meeting.
D. The April 2 Special Meeting
The meeting was held as scheduled in the Federal Center building cafeteria, which is approximately 80' by 100' and contains approximately 60 tables. The attendance sheet indicates that 29 members of Local 405 attended. Only one employee in the ISC unit, and no member from the lock and dam unit, attended.
At the meeting, Local 405 President McKelvie described the issue to be voted on as "whether or not we want to stay affiliated with the National Federation of Federal Employees." Id. at 13. He reviewed the choices to be voted on as "a YES vote for Local 405 to dissolve affiliation with NFFE and, thereby, as an independent organization, retaining and assuming all inherent choices of this action" set out in the notice of the meeting, and "a no vote, one not to dissolve affiliation with the NFFE, and thereby effectuating all inherent choices of this action" contained in the notice. Id.
A full discussion ensued. There is no indication that mention of UFE arose or that Local 405 members were ever specifically advised during the meeting of any relationship between a vote for disaffiliation and UFE. McKelvie then explained the ballot to be used, and summed up his explanation by saying, "'(y)es is independent, no you stay with NFFE.'" Id. at 14.
Two League of Women Voters (LWV) representatives conducted the voting. A Local 405 official told members that when they obtained their ballots, they were to "just step to an area in private and vote." Id. Employees were also told that a nearby unoccupied private room was available if they wanted more privacy when marking their ballots. No voter used this room.
Ballots were distributed by the LWV representatives after checking the eligibility list. Voters dispersed around the cafeteria to vote, and generally not more than four to five voters were marking their ballots at any one time. Some witnesses testified that the small number of voters, combined with the size of the room and the large number of tables, provided sufficient privacy to vote even though there were no voting booths or partitions. One witness acknowledged that voters on their way to a table to mark their ballots would pass by voters who were already marking their ballots. Another witness observed voters with ballots engaging in unspecified conversations with each other as well as with members who already had voted. However, according to the Regional Director, there was no evidence to establish that anyone had actually seen how any other voters marked their ballot. After voting, ballots were put in a ballot box on a table where LWV representatives were stationed.
The ballot stated in part:
Vote for one and only one option by placing an "X" in the appropriate box. The option you select also has certain inherent choices attached to it and a vote for that option is a vote for all inherent choices.
A vote for (A) is a YES vote to dissolve affiliation.
A vote for (B) is a NO vote, not to dissolve affiliation.
The ballot listed "inherent choices" for each option in virtually the same language as had been used on the notices of the special meeting.
At the conclusion of the voting, the ballots were counted by the LWV representatives. The count showed 29 votes to disaffiliate, and none against.
E. The Two Meetings on April 4, 1990
On April 4, 1990, two separate regular membership meetings were held. First, a NFFE Local 405 meeting was convened by McKelvie. There was no mention of nominations for the NFFE convention, about which members had been previously notified. Instead, the following motions were carried unanimously by those members present:
(1) "'. . .(A)ll remaining properties [of Local 405], except for items such as the local seal and official charter and copies of appropriate records, be donated to the Union of Federal Employees . . .;'" (2) . . . (A)ll unobligated monies [of Local 405] be donated to the UFE in accordance with the Local Constitution . . .;" (3) "'. . . (t)he membership of NFFE Local 405, while retaining union membership at the local level as an independent organization, resign from any group or individual memberships that may have been held, or assumed through Union membership at the local level . . .'" and (4) "NFFE Local 405 be dissolved and become the Union of Federal Employees, and to effect a smooth transition and avoid confusion, UFE continue to operate, in name only, as NFFE Local 405; that the NFFE National office be notified of the results of the special membership meeting of April 2, 1990, and of the resignation of the Local 405 membership. . . ."
Id. at 17.
The NFFE Local 405 meeting was then adjourned, and a meeting of UFE was convened. It appears that the same people attended. McKelvie also chaired this meeting. Two motions were passed: (1) "'. . . the treasurer's report for the March 1990 meeting of the Local 405 be considered as the first treasurer's report for UFE. . . .'" and (2) "'. . . all properties and monies donated by Local 405 be accepted by the UFE and used for the intended purpose[.]'" Id. at 18.
F. Current Status of the Local
When NFFE was notified of these events, it placed Local 405 in emergency trusteeship and designated a NFFE national representative as the Local's trustee.
The officer and steward roster of UFE is essentially unchanged from the Local 405 roster. The UFE constitution is not materially different from the Local 405 constitution except as to items relating to affiliation with NFFE. It provides for the same officer structure, dues withholding rate, and arbitration fund set forth in the Local 405 constitution. The UFE also has retained all of the member benefits that Local 405 had provided (as opposed to those provided by NFFE). No dues withholding agreements have been reached by UFE with the Activities for employees in the certified units.
III. Regional Director's Decision and Order
The Regional Director noted that the parties agreed that an AC petition is an appropriate vehicle for amending the designation of an exclusive representative in an existing bargaining unit as a result of a change in affiliation of that representative, and that the standards for determining the validity of an affiliation vote were first set out in Montrose.(1) NFFE argued to the Regional Director, however, that Montrose should not continue to apply.
The Regional Director first concluded that the proposed change in affiliation would result in representational continuity.(2) In this regard, she noted that: (1) the officers and internal organizational structure would be unchanged; (2) Local 405 officers, and not NFFE representatives, had signed the collective bargaining agreements for all units at issue; (3) the use of NFFE representatives for the handling of certain local matters is a natural consequence of the affiliation relationship, and does not adversely affect the proposed change in affiliation here, where the day-to-day operational decisions were made by the Local's officers; and (4) there is no material difference between the constitutions of Local 405 and of the UFE that would substantially change or alter the representational entitlements of unit employees.
The Regional Director rejected the contention that the application of Montrose to cases involving a change in affiliation is contrary to the Statute. She then reviewed the Montrose factors, applied them to the facts of this case, and ultimately concluded that they had not been met in certain particulars. On that basis, the Regional Director dismissed the petitions.
A. The Montrose Criteria
In her decision, the Regional Director set out the following four procedural criteria, first stated in Montrose, 4 A/SLMR at 860, that must, at a minimum, be met to assure that an amendment of certification conforms to the desires of a union's membership:
(1) [A] proposed change in affiliation should be the subject of a special meeting of the members of the incumbent labor organization, called for this purpose only, with adequate advance notice provided to the entire membership; (2) the meeting should take place at a time and place convenient to all members; (3) adequate time for discussion of the proposed change should be provided, with all members given an opportunity to raise questions within the bounds of normal parliamentary procedures; and (4) a vote should be taken by the members of the incumbent labor organization on the question by secret ballot, with the ballot clearly stating the change proposed and the choices inherent therein.
Regional Director's Decision at 21-22.
B. Montrose Factors Applied to this Case
The Regional Director found that various procedures required by the Montrose decision had been met. She made the following determinations as to certain aspects of the first criterion of Montrose: the notice of the meeting had been mailed in a manner consistent with Montrose; the evidence does not establish that any significant number of members failed to receive the mailing; and the meeting had been called and conducted only for the purpose of discussing and voting on the change in affiliation. She also found that Local 405 had complied with the second criterion of Montrose, concluding that the April 2, 1990, special meeting occurred at a time and place sufficiently convenient to all Local 405 members. Further, the Regional Director also found compliance with the third criterion, concluding that there had been adequate time for discussion and an opportunity for all members to raise questions. With regard to the fourth criterion, the Regional Director concluded that the vote was not invalidated by the fact that no members from the lock and dam unit and only 1 member from the ISC unit participated in view of the lack of evidence that any members who wished to had been prevented from exercising their rights to participate.
However, the Regional Director found that certain procedures followed by NFFE Local 405 to effect its disaffiliation from NFFE did not fully comply with the requirements of Montrose, as set forth below.
1. The Notice of the Special Meeting and the Ballot Did Not Adequately Inform Employees of the Proposed Change
First, the Regional Director determined that the content of both the March 15, 1990, notice of the April 2, 1990, meeting and the ballot, "failed clearly or adequately to inform employees regarding the nature of th[e] proposed change in affiliation." Regional Director's Decision at 28-29.
That conclusion was based on several factors. Although the record established that UFE was in existence at least as early as March 14, 1990, and it was further clear to the Regional Director that it was the "ultimate intention of the officers of Local 405 to transform Local 405 into the UFE," neither the notice of the special meeting nor the ballot included any reference to the UFE and there is no evidence that the subject of UFE ever arose at the special meeting. Id. at 29. Rather, the Regional Director noted that the issue to be put to a vote was "described both on the notice of the meeting and on the ballot only as being whether to dissolve the Local's affiliation with the NFFE so the Local could operate as an independent labor organization." Id. The Regional Director further pointed out that although it was clear that the vote would have the effect of ending the affiliation with NFFE, it was not until the regular membership meeting of April 4 that any vote was taken that specifically connected the disaffiliation of Local 405 to UFE. Therefore, the Regional Director concluded that neither the notice nor the ballot adequately or clearly informed Local 405 members of the nature of the issue to be voted on during the April 2, 1990, special meeting.
The Regional Director stated that, under Montrose, the question put to the membership's vote "must inform members of both the specific 'before' and 'after' identities of the exclusive representative[.]". Id. at 30. While she noted UFE's argument that the April 4, 1990, regular membership meeting was nothing more than a name change of the exclusive representative, given the vote at the April 2 special meeting, the Regional Director rejected such an argument based on the confirmed existence of UFE as an organization prior to the April 2 vote. In that regard, the Regional Director concluded that "the action taken by Local 405 at the April 4, 1990 regular membership meeting to become the UFE - that is, to assume a pre-existing organization's identity - was one of the 'inherent choices' in the election and, as such, should have been explicitly put before the membership as part of the question to be voted on at the April 2, 1990 special meeting." Id.
2. The Notice and Ballot Improperly Described the Choices Inherent in the Election
Second, the Regional Director found the adequacy and clarity of the notice and the ballot deficient in respect to their description of the "inherent choices" associated with Local 405's proposed change in affiliation.
Montrose requires that both the notice of a special meeting and the ballot accurately specify the full scope of the proposed change in affiliation. Further, the ballot must clearly state the "choices inherent" in the proposed change in affiliation. Based on the facts of this case, however, the Regional Director found that although Local 405 advised its members of the results of voting for disaffiliation on both the notice and the ballot, it also "went a step further and considered the 'choices inherent' to be those factors which the Local's officers personally viewed as the most obvious results of a for ("yes") or against ("no") vote on the proposed change in affiliation." Id. at 31. The Regional Director considered the inclusion of these factors on the notice, and particularly on the ballot, "to be an improper attempt by the Local's officers to politicize the Montrose process." Id.
The basis for the Regional Director's finding was that "while the four alleged 'inherent choices' listed on both the ballot and the notice as associated with a 'yes' vote are all characterized positively, the two alleged 'inherent choices' cited on these same documents as associated with a 'no' vote are characterized negatively as two dues increases." Id. In the Regional Director's view, "the inclusion of these politicized 'inherent choices' in the notice and ballot compromised the ability of the Local 405 members to fully comprehend the ramifications of the change in affiliation . . . and to make a reasoned choice on how to vote . . . or even to decide whether to attend the special meeting." Id. at 31-32.
3. Combined Mailing of Two Notices Created Potential Confusion
The Regional Director found that Local 405 members' "ability to fully comprehend these matters was further compromised" by the mailing of the notice of the April 2 special meeting in the same envelope with a notice of a Local 405 membership meeting, scheduled to be held two days later to nominate delegates for an upcoming NFFE convention. Id. at 32. According to the Regional Director, this was likely to create a false impression that Local 405 would somehow still be affiliated with NFFE, regardless of the outcome of the vote at the earlier meeting. The Regional Director found that "[t]he creation of such a false impression, especially when taken together with other shortcomings of the special meeting notice's contents . . . would have the effect of confusing the significance and intent of the special meeting so as to discourage members from attending." Accordingly, the Regional Director concluded that "the inclusion in one mailing of the notices of these separate membership meetings further detracted from the adequacy of the notice given to Local 405 members of the April 2, 1990 special meeting, and, as such, was inconsistent with the Montrose standards." Id.
4. The Montrose "Secret Ballot" Requirement Was Not Met
Finally, the Regional Director found that even if the Montrose standards had otherwise been met, the vote was not by "secret ballot" and thereby failed to comply fully with the Montrose standards. She noted that the Authority has not addressed the issue of what standard should be applied in determining whether a given membership vote on an exclusive representative's change in affiliation meets the "secret ballot" requirement of the Montrose process. She noted further that UFE had argued that private sector case law should be applied to the Federal sector in that regard, while NFFE would apply the secret ballot requirements applicable to private and Federal sector internal union officer elections, under the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. 401 (1976).
In the private sector, when considering whether there has been due process, the National Labor Relations Board (NLRB) determines whether the election "procedures were so substantially irregular as to negate the validity of the election." Regional Director's Decision at 34, quoting East Dayton Tool and Die Company, 190 NLRB 577 (1971). Based on NLRB case law, the Regional Director concluded that "the NLRB does not have an absolute secret ballot requirement, . . . but rather will examine the circumstances of a change in affiliation election in determining whether the procedures . . . were consistent with its 'due process' requirement." Regional Director's Decision at 34.
On the other hand, the LMRDA requires that union officers be elected by secret ballot, and section 402(k) of the LMRDA defines secret ballot as "the expression by ballot, voting machine or otherwise . . . in such a manner that the person [voting] cannot be identified with the choice expressed." In addition, the regulations of the Department of Labor, which is responsible for administering the LMRDA, also call for a secret ballot, quoting the above-cited language and further stating that "[s]ecrecy may be assured by the use of voting machines, or, if paper ballots are used, by providing voting booths, partitions, or other physical arrangements permitting privacy for the voter while he is marking his ballot." Regional Director's Decision at 35 (quoting 29 C.F.R. 452.97(a)).
The Regional Director cited two decisions of courts of appeals rejecting arguments that the LMRDA left open the option of whether ballots must be cast under conditions assuring secrecy to the individual voter. As quoted by the Regional Director, the court in one case held that "[t]he Act requires a mandatory secret ballot, not one permitting a voter to mark his ballot in secret with the danger of identification[.]" Id. at 35-36 (quoting Brennan v. Steelworkers, Local 3489, 520 F.2d 516 (7th Cir. 1975)). The Regional Director noted that the other court went further, holding that even if there is no evidence to indicate that anyone observed how voters marked their ballots in an election subject to the LMRDA, if it can be established that it was possible to observe how some voters marked their ballots, that would be sufficient to show a violation of that statute. Id. at 36 (citing Marshall v. Steelworkers, Local 12447, 591 F.2d. 199 (3d Cir. 1978)).
The Regional Director determined that the LMRDA definition of secret ballot is the appropriate standard to use in the Federal sector to determine whether a vote among members of an exclusive representative regarding a proposed change in affiliation was in fact secret as required by Montrose. In this regard, the Regional Director noted that at the time Montrose was decided, the Assistant Secretary of Labor for Labor-Management Relations was "aware of both the LMRDA secret ballot requirement for internal union officer elections and the due process standard used by the NLRB when determining change in affiliation issues. The Assistant Secretary chose to establish a Federal Sector change in affiliation process in Montrose which includes an explicit and absolute requirement that a 'secret ballot' vote be conducted among the membership regarding an exclusive representative's proposed change in affiliation." Regional Director's Decision at 36. The Regional Director noted that at least two courts of appeals have refused to enforce NLRB orders because, in the courts' view, the election procedures were not in compliance with LMRDA secret ballot requirements. Given the difference between Montrose and the NLRB's due process standard, the Regional Director rejected the application of the NLRB's due process standard to the Federal sector. Instead she concluded "that the definition of a secret ballot in the LMRDA is consistent with the procedures used in other balloting which was within the jurisdiction of the Assistant Secretary when Montrose was decided and which is currently within the jurisdiction of the Authority." Id. at 37.
Applying the LMRDA definition of secret ballot to the vote conducted herein, the Regional Director found that the vote did not constitute a secret ballot as required by Montrose. She concluded that although the notice of the special meeting indicated that a vote by secret ballot would be taken, the evidence failed to establish that members were instructed at the meeting itself that their votes were to be cast by secret ballot. Although the Regional Director acknowledged that, upon receiving their ballots, the voters were told to vote in private and were advised that a private room was available for that purpose, she concluded that:
[t]he record further revealed that given the manner in which the . . . election was conducted, it was possible to observe how some voters marked their ballots, even though there was no evidence to establish that anyone had actually seen how any voter marked their ballot. Thus, notwithstanding the large size of the room used for the balloting, the number of tables in the room, and the small membership turnout for the special meeting, record testimony nevertheless indicated that voters on their way to a table to mark their ballots would pass by voters who were already seated and marking their ballots, and that other voters could be seen marking their ballots by at least one of the voters. This same voter further indicated that while she was marking her ballot, she observed that members with ballots were engaged in conversations with other members having ballots as well as with members who had already voted.
Id. at 37-38. Based on the foregoing, the Regional Director concluded that the vote was not a secret ballot within the meaning of Montrose, and that, together with the other shortcomings noted above, the record indicated that the exclusive representative had failed to fully comply with all the steps of the Montrose process. Therefore, she found that no effective change in affiliation from Local 405 to UFE had occurred, and she dismissed the petitions.
IV. Positions of the Parties
A. Application for Review of UFE
In its application for review, UFE contends that, under section 2422.17(c)(1) and (4) of the Authority's Rules and Regulations, substantial questions of law or policy are raised as to which there is an absence of Authority precedent and that certain of the Regional Director's rulings are clearly erroneous and prejudicially affect its rights.
UFE asserts that it made a good faith effort to comply with Montrose, and that the Regional Director's decision shows that UFE was in "substantial compliance" with the Montrose requirements. UFE argues that the finding that failure to comply with Montrose in certain particulars justified dismissal of the petition is an "attempt to compel perfection in a process which has, in the past, been loosely run." Application for review at 5-6. The test should be "whether, viewing the situation in a reasonable light, there was sufficient compliance with Montrose." Id. at 6. Specifically, UFE takes issue with four rulings.
First, UFE argues that the Regional Director improperly found that the notice of the special meeting, and the ballot, did not adequately or clearly inform members of the nature of the issue to be voted on. In its application for review, UFE argues that the notice and ballot were not misleading because the essentials of the change were spelled out. Thus, according to UFE, the issue was disaffiliation from NFFE. The Local was to operate as an independent local, and "[t]he designation of the name was not necessary to carry this out." Id. at 8.
Second, UFE asserts that the Regional Director's finding that the ballot and notice were deficient because of the way they described the "inherent choices" associated with the proposed change of affiliation also was incorrect. In this regard, UFE argues that the "test of reasonableness" should be applied, and asserts that there was "substantial compliance" with the Montrose standards. Id. Further, it argues that there is no showing of any intent to mislead members.
Next, UFE disputes the Regional Director's finding that the combined mailing of the two notices of meetings created confusion, arguing that the Regional Director's conclusion was speculative because there is no evidence that any member was in fact confused. In addition, UFE explained why the two were mailed together, and added that "[i]t may not have been the best [way to do it], but once again, the test of reasonableness must be used." Id. at 11.
Finally, UFE objects to the Regional Director's finding that the method of balloting did not meet the requirement that the ballot be secret. In this respect, UFE points out that the Regional Director correctly stated that there is no Authority precedent to determine the standard for deciding whether the Montrose secret ballot requirement has been met. However, it argues that the standard selected by the Regional Director is contrary to the definition of "secret ballot" contained in section 2421.15 of the Authority's rules and regulations. UFE notes that the voting was supervised by the League of Women Voters, that when members were given ballots they were free to proceed to any part of the large room to vote, and that the same witness who "tried to testify about conditions that she felt prevented the ballot from being secret . . . admitted . . . that she had no concerns about whether she had been able to vote in secret." Id. at 13. In summary, UFE states that Local 405 "did its best to insure the privacy of the voter[,]" id. at 15, and argues that the secret ballot requirement of Montrose was met.
B. Application for Cross-Appeal by Army Corps of Engineers
The Army Corps of Engineers concurs with the dismissal of the petition and the reasoning regarding the issues of inherent choices and secret ballot. However, the Activity filed a "cross-appeal" "to reserve [certain] arguments raised in its post-hearing brief[.]" Application for Cross-appeal at 1. It "seeks only to preserve its arguments should the [UFE's] appeal go forward." Id. at 2. Specifically, it reiterates its argument made in its post-hearing brief that the method of notifying the lock and dam employees and the setting of the special meeting of April 2, 1990, disadvantaged employees.
C. Cross-Petition of NFFE Local 405
NFFE filed a "cross petition," "to preserve the issue[s]" of whether the Statute prohibits a change of affiliation through an AC petition, and whether the Regional Director was correct in determining that UFE is "capable of satisfying the Montrose requirement for representational continuity." Cross-petition at 3.
In its cross-petition, NFFE argues that the Statute does not provide for a change in affiliation through an AC petition. It asserts that section 7111(a) of the Statute requires a unit-wide election, rather than an election among only members of the incumbent labor organization, when a union becomes a new organizational entity, regardless of similarities in constitution, bylaws or officers. Accordingly, it contends that section 7111 prohibits the use of the petitions to amend the certifications in the instant situation. It argues that in the private sector a vote by the membership rather than the entire unit in similar situations is permissible because of the different requirements of the National Labor Relations Act.
NFFE further submits that if the Authority does not agree that the Statute prohibits a change in recognition without a unit-wide election, the Regional Director was correct in finding that the election violated the Montrose standards in that (1) there was inadequate notice; (2) the ballot was inadequate, and (3) the election was not conducted by a secret ballot.
Finally, NFFE argues, contrary to the Regional Director, that there was such a lack of continuity between the UFE and NFFE that a "dramatic change in the organization would have occurred." Id. at 8.
D. NFFE Opposition to UFE Application for Review
In its opposition to the application for review, NFFE argues that the Regional Director was correct in each of the specific rulings that UFE asserted had been in error. Accordingly, NFFE requests that the Authority affirm the Regional Director's decision.
V. Analysis and Conclusions
As an initial matter, we will deny NFFE Local 405's cross-petition insofar as it requests the Authority to re-examine the Authority's position that a change in affiliation can be achieved in these circumstances through an AC petition. In view of the Regional Director's determination that the requisite continuity of representation was preserved, which we adopt below, we find that the Regional Director properly applied established Authority precedent to the facts of this case.
We agree with the Regional Director's finding, for the reasons she stated, that sufficient continuity of representation was preserved by the Local after its attempt to disaffiliate from NFFE to meet the requirements of Montrose and to conform to the standards established in the private sector. In particular, based on the Regional Director's findings concerning the Local's retention of its officers, internal organizational structure, authority to execute and administer collective bargaining agreements, and its Constitution, we conclude that there has been no material change in the autonomy and control of day-to-day operations exercised by the Local. Accordingly, we will deny NFFE Local 405's cross-petition on that point.
We also agree with the Regional Director's findings and conclusions regarding each of the Montrose factors she determined to have been met in this case. In particular, we agree with the Regional Director's findings that the method of mailing of the notices and the time and place of the April 2 meeting complied with the Montrose criteria. Accordingly, we will deny the Activity's application for cross-appeal.
In its application for review, UFE asserts that the rulings on which the Regional Director based her dismissal of the petitions were clearly erroneous on substantial factual issues that affect the petitioner's rights. It also asserts that as to those rulings substantial questions of law or policy are raised because there is an absence of Authority precedent or there is a departure from Authority precedent and regulations. If established, these would be grounds for granting an application for review under section 2422.17(c)(1) and (4) of the Authority's Rules and Regulations.
As explained below, we conclude that no compelling reasons exist warranting review of the Regional Director's findings that the petitions be dismissed because of the inadequacy of the notice and the contents of the ballot. However, we find that compelling reasons do exist within the meaning of section 2422.17(c)(1) of the Rules and Regulations to grant review of the Regional Director's finding that the petitioner did not meet the requirement of Montrose that the election be held by secret ballot. We grant review of that aspect of the Regional Director's decision on the ground that a substantial question of law or policy is raised because of the absence of Authority precedent on the issue of the meaning of the "secret ballot" requirement in Montrose. On review, contrary to the Regional Director, we conclude that the secret ballot requirement was met. However, we affirm the dismissal of the petitions on the basis of the Regional Director's rulings as to the adequacy of the notice and the ballot.
A. The Regional Director Appropriately Applied the Montrose Standards Regarding Adequacy of the Notice and the Ballot
First, we conclude that the Regional Director properly found that the content of the notice of the special meeting, as well as the ballot itself, failed clearly and adequately to inform employees regarding the nature of the proposed change in affiliation. In this regard, we agree that the Regional Director correctly relied on the fact that there was no reference to UFE in either document, despite its existence at least as early as March 14, 1990, when Local 405's Executive Board voted to donate $10,000 of the Local's funds and one of its computers to UFE. We also agree with the Regional Director's conclusion that Local 405 members' "ability to fully comprehend" the nature of the proposed change was "further compromised" by mailing the notice of the April 2 special meeting in the same envelope with a notice of another Local 405 membership meeting to be held two days later to nominate delegates for an upcoming NFFE convention. Regional Director's Decision at 32.
The Petitioner asserts that these findings are clearly erroneous and prejudicially affect its rights, and that there is a substantial question of law or policy raised as there is an absence of Authority precedent. To the contrary, we find that the Regional Director correctly applied established precedent to undisputed facts. Thus, neither the notice of the meeting nor the ballot fully and adequately informed the membership of the issue to be decided, as required by Montrose. From the wording of the notice and the ballot, a member of Local 405 who was unaware of the actions taken at the March 14 membership meeting had no reason to believe that a vote to disaffiliate from NFFE would lead to the formation of the Petitioner. Accordingly, the application for review is denied as to these issues.
We also agree with the Regional Director's findings that the ballot was deficient insofar as it sought to describe the "inherent choices" relating to the election options before the members. The Petitioner again asserts that this finding was clearly erroneous and that there is an absence of Authority precedent. It argues that the "inherent choices" listed on the ballot were neither misleading nor politicized, as found by the Regional Director. Although the Petitioner asserts that the language on the ballot was an attempt to inform the membership about the choices and options, we agree, for the reasons stated by the Regional Director and set out in section III(B)(2), above, that the wording was insufficient to fulfill the Montrose requirements that the change proposed and the choices inherent in that change be clearly stated on the ballot.
We find further that, intentionally or not, the language reasonably could be expected to mislead, and, in the words of the Regional Director, "compromised the ability of the Local 405 members to fully comprehend the ramifications of the change in affiliation proposed by the Local 405 officers and to make a reasoned choice on how to vote . . . ." Regional Director's Decision at 31-32. This finding is particularly valid in view of the absence of evidence that the full range of factors inherent in the proposed disaffiliation from NFFE were discussed at the special meeting preceding the vote. Accordingly, we conclude that the Regional Director's decision in this regard was not clearly erroneous. Rather, we find that it had an undisputed factual basis, and, further, that she correctly applied established Authority precedent to the pertinent facts. Therefore, we deny the application for review as to this issue.
B. The Regional Director's Finding that the Vote Did Not Satisfy the Montrose Requirement for a Secret Ballot Requires Review
As noted by the Regional Director, the Authority has not specifically addressed the issue of what standard is to be applied when determining whether a vote on a proposed change of affiliation meets the Montrose requirement that such a vote be taken by "secret ballot." Accordingly, the Regional Director examined the private sector standard in such cases, as well as the U.S. Department of Labor standard used in internal union officer elections under the LMRDA. She concluded that the LMRDA standard is appropriate, and that, under that standard, the vote taken in this case did not qualify as a vote by secret ballot as required by Montrose.
Because we find that a substantial question of law or policy is raised by the absence of case precedent on this issue, we grant the application for review of this part of the Regional Director's decision. We conclude that the standard used in LMRDA elections is more restrictive than necessary in the circumstances of an affiliation vote. We find that under the standard discussed below, the vote herein was conducted in a manner sufficient to comply with the Montrose requirement that it be conducted by secret ballot.
Initially, we agree with the Regional Director that, in view of the precedent developed since Montrose, we should not adopt the private sector standard that examines only whether "procedures used were so substantially irregular as to negate the validity of the election." East Dayton Tool & Die Company, 190 NLRB 577, 579 (1971). See also Aurelia Osborn Fox Memorial Hospital, 247 NLRB 356 (1980) (Fox Memorial Hospital). This broadly stated standard has permitted the NLRB, on occasion, to validate affiliation elections conducted with no semblance of secrecy. See, for example, Fox Memorial Hospital (elected delegates to union's annual convention properly made affiliation decision by standing, non-secretive vote). In contrast to the development of the law in the private sector, the Authority and the Assistant Secretary of Labor and Federal Labor Relations Council before it have consistently required that such a choice be conducted by "secret ballot." Montrose, 4 A/SMLR at 860; BIA II, 34 FLRA at 444. We see no reason to change this requirement. However, we must now define the term "secret ballot" in the context of a vote governed by Montrose. We do so in a way that will preserve the integrity of internal union election processes without creating unreasonable procedural barriers to the self-expression of a union membership that is seeking to make an affiliation decision.
We conclude that the LMRDA standard, adopted by the Regional Director in this case, places too great a restriction on union members who are attempting to voice their desires with regard to an internal union affiliation issue. We recognize, in this regard, that section 2421.15 of the Authority's Rules and Regulations defines "secret ballot" in almost identical language as the LMRDA and its regulations.(3) See 29 U.S.C. § 402(k); 29 C.F.R. § 452.97(a). Further, we recognize, as noted by the Regional Director, that two United States courts of appeals have interpreted the LMRDA as requiring an assurance of absolute secrecy to the voter who is choosing internal union officers. Nonetheless, we do not believe that level of assurance to be required in evaluating whether a decision for or against affiliation or disaffiliation has properly been made.
In large part, our decision is based on the fact that the Authority has no statutory mandate to conduct or assure the validity of elections concerning a union's internal structure or affiliations. In contrast, the Department of Labor is specifically mandated by the LMRDA to enforce the requirements of the election requirements of that Act. Similarly, the Authority is mandated by the Statute to supervise or conduct representational elections by secret ballot before it can certify that a labor organization should be accorded exclusive recognition. 5 U.S.C. § 7111(b). With regard to a petition to amend an existing certification, however, the Authority is required only to investigate the petition and, in certain circumstances, to hold a hearing to determine whether a question of representation exists. 5 U.S.C. § 7111(b)(2). A secret ballot is required in such circumstances only if the Authority finds the existence of a question of representation. Id. There is no statutory requirement that the evidence presented at the representational hearing regarding the desires of union members on an affiliation issue reflect the same degree of secrecy as was required in the original Authority-conducted election. In this regard, we note that the Supreme Court has stated that an affiliation that does not raise a question of representation does not implicate the election procedures of the NLRB. Financial Institution Employees, 475 U.S. at 203.(4) Further, in that case the Court stated that "Congress has expressly declined to prescribe procedures for union decisionmaking in matters such as affiliation." Id. at 204 n.11.
In this and future cases involving affiliation issues, we will consider the appropriate level of secrecy to have been preserved under Montrose where the evidence establishes that: the members have voted by individual ballots; reasonable precautions have been taken to ensure the secrecy of those ballots; and no voter has objected and demonstrated that his or her privacy or free choice was compromised by the conduct of the election.
In our view, all the circumstances of the balloting must be taken into account to determine whether the arrangements reasonably satisfy the requirement that voters be able to cast their ballots without revealing their choices. We reject as unnecessary the suggestion that all voters must cast their ballots in a booth or private room to fulfill this requirement. As noted above, the test is whether voters had the opportunity to mark their ballots in a manner that preserves the secrecy of their choice. If the procedures reasonably gave that opportunity, we will be satisfied that the secret ballot requirement of Montrose has been met, absent evidence to the contrary.
In this case, the record reveals that written, individual ballots were cast by 29 people in a large cafeteria. Representatives of the League of Women Voters, a disinterested third party, conducted the election. Before receiving their ballots, all voters were told that when they got their ballots they were to "'. . . just step to an area in private and vote.'" Regional Director's Decision at 14. They were further informed that the Union had not been able to obtain voting booths because of a local election scheduled the next day, but that a nearby unoccupied private room was also available for their use. The record discloses that not more than 4 or 5 voters were marking their ballots at the same time. Voters dispersed in the cafeteria to vote as they received their ballots. The Regional Director found that voters who testified as UFE witnesses at the hearing "indicated that the small number of voters, taken together with the size of the cafeteria and the large number [of] tables in the room, provided them with sufficient privacy to mark their ballots, even though no voting booths or partitions of any sort were available for the balloting." Id. at 15. Accordingly, we conclude that reasonable precautions were taken to ensure the secrecy of the ballots.
Finally, we note that there was no evidence of any coercion placed on any voter to vote in a particular way, and no voter has objected that his or her privacy or free choice was compromised in any way by the conduct of the election. Thus, although one witness testified that voters on their way to mark their ballots passed by voters who were already seated and marking ballots, there was no evidence that anyone in fact observed how any other member actually voted. A witness called by NFFE indicated that there were people around her when she marked her ballot and that she had observed voters with ballots engaging in unspecified conversations. Nevertheless, when asked on cross examination if she was "concerned about other people seeing how you were voting[,]" she answered, "No, I wasn't." Transcript of reconvened hearing, September 26, 1990, p. 229.
In view of the foregoing, we conclude that the conditions surrounding the election sufficiently safeguarded the voters' right to mark their ballots in secret and to preserve the secrecy of their choice. Accordingly, contrary to the Regional Director, we conclude that the Montrose requirement of a secret ballot has been met in this case.
E. Summary of Conclusions
The application for review is granted as to the question of whether the Petitioner complied with the requirement that the election be by "secret ballot." Contrary to the Regional Director, we find that it did so. We find no compelling reasons to grant the application for review of the Regional Director's decision dismissing the petitions on other grounds, and the application for review is denied as to those grounds. We also deny applications by the Activity and NFFE. Therefore, we will affirm the Regional Director's decision dismissing the UFE's petitions.
The petitions for amendment of certification are dismissed.
(If blank, the decision does not have footnotes.)
1. As noted by the Regional Director, the continued applicability of Montrose under the Statute was affirmed in Florida National Guard, St. Augustine, Florida, 25 FLRA 728 (1987) (Florida National Guard), application for review denied, 34 FLRA 223 (1990). See also U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area, Gallup, New Mexico, 33 FLRA 482 (1990), 34 FLRA 428 (1990) and 35 FLRA 99 (1990) (BIA I, II and III). In Florida National Guard the Authority also applied the Montrose standards to cases involving mergers, as well as affiliations, of labor organizations. In this case, we intend our discussion of the various Montrose factors in the circumstances of a disaffiliation vote to apply equally to votes taken to affiliate with, or merge into, other labor organizations.
2. The U.S. Supreme Court in NLRB v. Financial Institution Employees of America, Local 1182, 475 U.S. 192 (1986) (Financial Institution Employees) recognized two conditions that must be met in changing the affiliation of an exclusive bargaining representative in the private sector: (1) due process, in that union members must have an adequate opportunity to vote on the change; and (2) evidence of substantial continuity between the union existing before and after the change in affiliation. In BIA II, the Authority found that the Supreme Court's decision in Financial Institution Employees applies in the Federal sector, and that Montrose is consistent with Financial Institution Employees.
3. Section 2421.15 of the Authority's Rules and Regulations provides:
"Secret ballot" means the expression by ballot, voting machine or otherwise, but in no event by proxy, of a choice with respect to any election or vote taken upon any matter, which is cast in such a manner that the person expressing such choice cannot be identified with the choice expressed, except in that instance in which any determinative challenged ballot is opened.
4. In Financial Institution Employees, the Court stated that a question concerning representation is raised if administrative or organizational changes "are sufficiently dramatic to alter the union's identity[.]" 475 U.S. at 206. As discussed above, the Regional Director found, and we agree, that the Union's identity has not been altered by the change in affiliation.