46:0219(20)RP - - Fort Campbell Dependents Schools, Fort Campbell, KY and Fort Campbell Education Association - - 1992 FLRAdec RP - - v46 p219



[ v46 p219 ]
46:0219(20)RO
The decision of the Authority follows:


46 FLRA No. 20

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FORT CAMPBELL DEPENDENTS SCHOOLS

FORT CAMPBELL, KENTUCKY

(Activity)

and

FORT CAMPBELL EDUCATION ASSOCIATION

OEA/NEA

(Labor Organization/Petitioner)

4-RO-10015

_____

ORDER DENYING APPLICATION FOR REVIEW

October 23, 1992

_____

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 Activity under section 2422.17(a) of the Authority's Rules and Regulations. The Petitioner filed an opposition to the application.

After a representation election in which a majority of the valid votes counted was cast against exclusive recognition, the Petitioner timely filed objections to the election with the Regional Director (RD). In her decision and order, the RD sustained certain of the objections and set aside the election.

For the following reasons, we conclude that the Activity has not demonstrated that review of the RD's decision is warranted. Accordingly, we will deny the application for review.

II. Background and Regional Director's Decision

The RD conducted a secret ballot election at the seven schools which comprise the Activity. A majority of valid votes were cast against exclusive recognition.(1) Following the election, the Petitioner filed six objections to conduct by the Activity which, it alleged, improperly affected election results. As relevant here,(2) Objections 2, 3, 4, and 5 state:

2. While third parties were free to post any number of items on the bulletin boards in the schools, the [Petitioner] was denied use of the bulletin boards . . . .

3. Management officials . . . actively spoke and acted against the [Petitioner].

4. The [Petitioner] member teachers of the schools were prohibited from campaign activities during the school day, except for the ninety minute period which fell largely outside of the teacher workday . . . .

5. . . . Management unilaterally decreed that all electioneering and campaign activities would end by 2400 hours on 3 December 1991, thereby violating the neutrality of Management and the First Amendment of the Constitution concerning freedom of association and free speech.

RD's Decision at 2-3. The RD held a hearing on Objections 2, 3, and 4 and investigated Objections 1, 5, and 6.

Initially, the RD rejected the Activity's argument that many of its alleged unlawful actions were taken to enforce a valid pre-election ground rules agreement with the Petitioner. The RD noted that, although the Activity prepared a written ground rules agreement which "purport[ed] to memorialize" certain telephone conversations, the Petitioner's Executive Director refused to sign the agreement "[b]ecause he did not agree with the ground rules[,]" and the Executive Director instructed the Petitioner's President not to sign the agreement for the same reason. Id. at 3-4. The RD concluded as follows:

In order for Petitioner to be bound by these ground rules, its representative(s) would have had to signify agreement by signing the document. 162nd Tactical Fighter Group, Arizona Air National Guard, Tucson, Arizona, 18 FLRA 583, 606 (1985) [Arizona Guard]. . . . Here, the record is clear that the Petitioner had not entered into any pre-election agreement waiving any of its rights. Accordingly, I find that the Activity was not privileged to enforce any provisions of the ground rules that waived the rights of the Petitioner or its representatives.

Id. at 4.

Regarding Objection 2, the RD found that Petitioner requested and was denied the use of school bulletin boards although there was an "established practice" of using the bulletin boards for "non-school-related materials." Id. at 6. Based on the established practice, the RD found that the Activity's denial of the Petitioner's request was "discriminatory and interfered with employees' rights" under section 7102 of the Statute, and she sustained Objection 2. Id.

The RD also sustained Objection 3, which concerned a letter, from a former teacher to a particular school principal, which had been posted on a school bulletin board. The RD noted that the former teacher stated in the letter:

that she must pay a fee to the union whether or not she belongs to the union; she refers to unwelcome changes in policies and procedures allegedly caused by the union; and other things that she perceived to be wrong with unions.

Id. at 9. The RD stated that the record was "unclear . . . whether [the principal] actually placed this letter on the bulletin board." Id. at 8. However, the RD found it "clear" that "no one other than [the principal] or his secretary possessed the letter[,]" and that "one of them caused the letter to be posted . . . ." Id. at 8-9. The RD noted that an activity must remain neutral during a representation election. According to the RD, as the letter was addressed to a principal and was posted on a school bulletin board, "a reasonable employee could conclude [the principal] agreed with the views contained in the letter." Id. Accordingly, the RD sustained Objection 3.

The RD also sustained Objection 4, finding that the Activity restricted the Petitioner's right to distribute campaign literature in non-work areas during non-work times and, thereby, interfered with employees' section 7102 rights and the election. Specifically, the RD found that the Activity's Superintendent told a unit employee to remove campaign materials from a teachers' lounge, a non-work area. The RD concluded "[t]his control of [Petitioner's] distribution of campaign material is sufficient to overturn the results of this election." Id. at 11.

Finally, the RD sustained Objection 5, finding that the Activity improperly prohibited campaigning during the 24 hours prior to the balloting. The RD found that the Petitioner did not agree with a suggestion of an FLRA Agent that all campaigning cease 24 hours before the election and that, as the parties had not agreed to ground rules requiring such cessation, the Activity was "not privileged to enforce any rule prohibiting campaigning." Id. at 12.

Having found that objectionable conduct occurred, the RD set aside the election and stated her intention to conduct a second election.

III. Application for Review

The Activity argues that its application for review should be granted on the grounds set forth in 5 C.F.R. § 2422.17(c).(3)

In particular, and as discussed in more detail below, the Activity asserts that the RD's decision that there was no ground rules agreement raises a substantial question of law and policy because of the absence of, or a departure from, Authority precedent and presents extraordinary circumstances which warrant reconsideration of an Authority policy. In addition, the Activity asserts that: (1) the RD's conclusions on Objections 3, 4, and 5 raise substantial questions of law and policy because of the absence of, or a departure from, Authority precedent; (2) the RD's conclusions in connection with Objections 2, 3, and 4 are based on findings of fact that are clearly erroneous and which prejudicially affect its rights; and (3) Objection 5 should be dismissed because the conduct of the hearing with regard to this issue resulted in prejudicial error.

IV. Opposition

The Petitioner argues that, as "there was no mutual assent" to the ground rules, the RD correctly found that there was no agreement. Opposition at 5. The Petitioner also asserts that, under 5 C.F.R. § 2422.17(b),(4) the Authority should dismiss the Activity's argument that the RD's decision on this issue warrants reconsideration of an Authority policy because the argument was not presented to the RD.

The Petitioner contends that the Activity's remaining arguments do not demonstrate that review of the RD's decision is warranted. In addition, the Petitioner argues that the Activity's objection to the conduct of the hearing should be dismissed because the Activity did not object to the conduct of the hearing under 5 C.F.R. § 2422.13.(5)

V. Preliminary Matters

We reject the Petitioner's assertion that we should dismiss the Activity's argument that extraordinary circumstances warrant reconsideration of Authority policy on agreements concerning pre-election ground rules. The Activity's argument is made in response to the RD's decision and, as such, could not have been presented prior to the application for review.

We also reject Petitioner's argument that because the Activity "did not file any [o]bjections to the conduct of the hearing as detailed in 5 CFR 2422.13[,]" its argument concerning the conduct of the hearing should be dismissed. Opposition at 10. Section 2422.13 concerns only objections to the introduction of evidence at a hearing. It does not require a party to object to the conduct of a hearing prior to exercising its right, under section 2422.17(c)(3), to file an application for review asserting that the conduct of a hearing resulted in prejudicial error.

VI. Analysis and Conclusions

        A. Ground Rules

The Activity claims that agreements between the parties, including the alleged agreement concerning pre-election ground rules, "can be accomplished orally and proven through actions and statements of the parties[,]" and asserts that the RD should have found that actions of the Petitioner's representatives "evidence the agreement and/or acquiescence to the ground rules . . . ." Application at 5. The Activity also argues that nothing in Arizona Guard requires such agreements to be signed.

We find nothing in Arizona Guard, or other precedent, which provides that ground rules agreements are unenforceable unless they are signed. However, we conclude that the RD's decision on this issue was not based solely on the fact that the agreement was not signed by Petitioner's representatives. Instead, the RD found that the representatives refused to sign the agreement because the ground rules encompassed therein had not been agreed upon. In this regard, the RD found that the record was "clear that the Petitioner had not entered into any pre-election agreement . . . ." RD's Decision at 4. The RD also found that Petitioner's representatives acquiesced in certain rules only because of fear that they "would be removed from the premises if they didn't follow the Activity's ground rules." Id.

Contrary to the Activity's argument, we find that the record supports the RD's decision that the Petitioner did not agree to the disputed ground rules. Accordingly, we conclude that the Activity's application does not demonstrate that review of the RD's decision on this objection or reconsideration of an Authority policy concerning this matter is warranted.

        B. Objection 2

The Activity argues that the RD's decision concerning the Activity's denial of the Petitioner's request to use bulletin boards is clearly erroneous on substantial factual issues. The Activity asserts that, as there was conflicting testimony as to whether the Petitioner requested the use of bulletin boards at all the schools, the RD should have made a credibility determination.

The RD found that it was unnecessary to resolve the credibility issue because there was "uncontroverted testimony" that "Petitioner made a request for use of bulletin boards[]" at one of the Activity's schools and that "[t]his request was denied." Id. at 6. As such, we reject the Activity's argument that the RD's decision on this point is clearly erroneous and conclude that the Activity has not demonstrated that review of the RD's decision on this objection is warranted.

        C. Objection 3

The Activity argues that the RD "presumed . . . without any evidence[]" that management was responsible for posting the letter from a former teacher, and that the RD applied "an unprecedented theory of the 'reasonable employee conclusion'" in finding that the posting of the letter interfered with the election. Application at 9, 10 (emphasis in original).

The RD found that: (1) the letter was addressed to a principal and was in the possession of the principal or his secretary; and (2) one of those two individuals was responsible for posting the letter on the bulletin board. Based on these findings, the RD concluded that employees reasonably could conclude that management had posted the letter and agreed with the views expressed in it and that the posting of the letter tended to interfere with employees' freedom of choice.

Management is required to remain neutral during an election campaign. U.S. Army Engineer Activity, Capital Area, Fort Myer, Virginia, 34 FLRA 38, 43 (1989). Management actions which violate the required neutrality require an election to be set aside. Id.

In this case, the RD did not determine that management, in fact, took actions which violated the requirement that it remain neutral. Indeed, the RD expressly concluded that, although the disputed letter was in the possession of the principal or his secretary, actual responsibility for posting the letter could not be established. The RD did not find that the principal's secretary is a management official or that, if she posted the letter, she acted as a representative of management in doing so. Moreover, we find the record insufficient for determining these facts. Without a finding that management posted, or was responsible for posting, the letter, we find unsupported the RD's conclusion that the Activity violated its duty to remain neutral.

Although, in other circumstances, it would be appropriate to remand this matter to the RD for additional factfinding, we conclude here that, based on our disposition of other objections, the election must be set aside. Accordingly, we do not resolve the Activity's application for review of the RD's conclusion regarding Objection 3.

        D. Objection 4

The Activity asserts that the RD erred in finding that a management official told a unit employee to remove certain campaign literature from a school. According to the Activity, the unit employee was asked to remove the literature because he was Petitioner's president and "point of contact in the absence of [Petitioner's] officials, not because he was a voting unit member." Application at 11.

The RD found that by preventing a unit employee from distributing literature in a non-work area during non-work times, the Activity controlled Petitioner's distribution of campaign material. We conclude that the status of the affected unit employee as an officer of the Petitioner is irrelevant and that the Activity's application fails to establish that the RD's finding on this issue is clearly erroneous or raises a substantial question of law or policy because of the absence of, or a departure from, Authority precedent.

        E. Objection 5

The Activity argues that the RD's decision on Objection 5 is based on "erroneous information improperly received at the hearing . . . ." Application at 12.(6) Specifically, the Activity argues that an FLRA Agent "unequivocally advised the parties that `all campaigning should cease twenty-four hours before the election.'" Id. According to the Activity, because the Authority "imposed the rule," it is "unconscionable" for the RD to hold the Activity responsible for an action "prohibiting campaigning." Id. The Activity also claims that the hearing officer improperly interfered with its right to introduce evidence concerning this issue.

The RD found that, although "a suggestion was made" by the FLRA Agent that the parties cease campaigning 24 hours before the election, the parties were not required by the Agent to do so. RD's Decision at 11. Nothing in the record supports the Activity's argument that the RD enforced the Agent's suggestion or that the RD's decision in this regard is clearly erroneous. In fact, an Activity witness described the Agent's statement as a "recommendation." Transcript at 286.

We also find that the record does not support the Activity's argument that, although the hearing officer allowed Petitioner's witnesses to testify concerning Objection 5, he improperly precluded Activity witnesses from presenting evidence on this issue. An examination of the hearing transcript discloses that because Objection 5 was not "listed" in the hearing notice, the hearing officer sustained the Activity's objection to testimony concerning it. Transcript at 13. Further, when either party objected to testimony concerning Objection 5, the officer sustained the objection and, if requested to do so, agreed to strike such testimony. Accordingly, we conclude that the Activity has not shown that the conduct of the hearing resulted in prejudicial error.

In summary, the Activity has not established that "compelling reasons" exist within the meaning of section 2422.17 of the Authority's Rules and Regulations for granting its application for review. Accordingly, we will deny the application.

VII. Order

The application for review is denied. The election is set aside and the RD is directed to conduct another election in accordance with the Authority's Rules and Regulations.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Petitioner received 142 of the 290 valid votes counted, and 147 votes were cast against exclusive recognition.

2. The RD dismissed Objections 1 and 6. As neither party filed an application for review concerning these objections, we will not consider them further.

3. Section 2422.17(c) provides that the Authority may grant an application for review on one or more of the following grounds:

(1) That a substantial question of law or policy is raised because of (i) the absence of, or (ii) a departure from, Authority precedent;

(2) That there are extraordinary circumstances warranting reconsideration of an Authority policy;

(3) That the conduct of the hearing held or any ruling made in connection with the proceeding has resulted in prejudicial error; or

(4) That the Regional Director's decision on a substantial factual issue is clearly erroneous and such error prejudicially affects the rights of a party.

4. 5 C.F.R. § 2422.17(b) provides, in relevant part, that:

An application may not raise any issue or allege any facts not timely presented to the Regional Director.

5. 5 C.F.R. § 2422.13 provides, in pertinent part, that:

Any objection to the introduction of evidence may be stated orally or in writing and shall be accompanied by a short statement of the grounds of such objections, and be in