46:1011(90)RP - - Navy, Naval Station, Ingleside, TX and NFFE Local 797 and AFGE Local 4057 - - 1992 FLRAdec RP - - v46 p1011
[ v46 p1011 ]
The decision of the Authority follows:
46 FLRA No. 90
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
ORDER DENYING APPLICATION FOR REVIEW
December 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 National Federation of Federal Employees, Local 797 (NFFE), the Petitioner, under section 2422.17(a) of the Authority's Rules and Regulations. No opposition was filed to the application.
After a representation election in which no choice received a majority of the valid votes counted, the Petitioner timely filed objections with the Regional Director (RD) to the procedural conduct of the election and to conduct that may have improperly affected the results of the election. In his decision and order, the RD dismissed the objections.
For the following reasons, we will deny the application for review.
II. Background and Regional Director' Decision
Pursuant to an Agreement for Consent Election approved by the RD on January 28, 1992, the RD conducted a secret ballot election at the Activity on February 12, 1992.(1) No choice received a majority of the valid votes counted.(2) Following the election, NFFE filed six objections to the election. The RD conducted an investigation of those objections and issued a decision finding that none of the objections had merit. Set forth below are the objections, the RD's findings based upon his investigation and his conclusions as to the merits of those objections.
A. Objection No. I
On Monday, February 10, 1992, while NFFE had reserved the conference room, AFGE representatives were allowed to distribute their literature in the corridor where the conference room is located. NFFE was restricted to the conference room for election campaigning, while management permitted AFGE to totally disregard the restrictions. An hour of valuable and limited time was wasted searching for a management representative to have the AFGE representatives removed from the restricted area, thus affording AFGE an advantage over NFFE.
RD's decision at 2-3.
The RD concluded that the February 10, 1992, incident was isolated and did not interfere with or improperly affect the results of the election. The RD noted that in January 1992 NFFE entered into an oral agreement with the Activity's representative that campaigning within the facilities' three main buildings would be limited to the conference rooms on a reserved basis, that no campaigning would be allowed in the buildings' corridors and that campaigning was permitted in the parking lots and at other exterior areas of the buildings. According to the RD, NFFE was unable to cite any other specific example of AFGE campaigning in the corridors other than the cited occurrence. Moreover, the RD found that, as conceded by NFFE, the Activity had taken almost immediate action, when notified by NFFE of AFGE's improper campaigning, to ensure that both unions received equal application of the agreed-upon procedures with regard to their access to employees. The RD noted, citing Marine Corps Logistics Base, Barstow, California, 9 FLRA 1046 (1982), that the standard for determining whether conduct is of an objectionable nature so as to require that an election be set aside is its potential for interfering with the free choice of the voters. The RD determined that there was no basis to conclude that the alleged conduct reasonably would have interfered with that choice. Accordingly, the RD dismissed Objection No. I.
B. Objection No. II
Pursuant to the conversation between NFFE representatives and management officials it was NFFE's understanding that conference rooms were reserved on a one time basis for the purposes of campaigning, and were the exclusive location for such purposes. However, that limitation was imposed only on NFFE, as management officials allowed AFGE an opportunity to campaign in work areas and areas outside the conference room. In contrast, NFFE was restricted to the designated conference room during that time and was made to close the door preventing employees from being aware of any campaigning by NFFE.
RD's decision at 3-4.
NFFE contended that the parties understood that each union would be permitted the use of each conference room once. The RD found that the evidence did not support a conclusion that the Activity imposed such a limitation on the use of the conference rooms for campaigning. The RD found that NFFE submitted no evidence that the Activity representative had specifically stated that NFFE was limited to a single use of each of the conference rooms, and that the NFFE representatives could recall only that they were under the "impression" that this limitation existed. Id. at 4. The RD concluded that the conference rooms were available on an equal basis to both unions and that the same limitations applied to both unions.
With regard to NFFE's assertion that AFGE was allowed to campaign in work areas and areas outside the conference rooms, the RD found that NFFE had failed to submit any evidence to support this allegation other than the isolated incident concerning campaigning outside of the conference room that was the subject of Objection No. I.
Similarly, with regard to the allegation that the closing of conference room doors by management prevented employees from being aware of campaigning by NFFE, the RD concluded that the evidence failed to support NFFE's assertions. The RD found that the evidence submitted by NFFE indicated that this conduct occurred on February 6, 1992, from 11:00 a.m. until 1:00 p.m., while NFFE was using the conference room in the Activity's security building for campaigning purposes. NFFE claimed that the Activity's security chief closed the conference room doors six to ten times as he walked by during this period. The RD found, however, that the evidence indicated that although the NFFE representatives reopened the doors, none of them asked the security chief not to close the doors or expressed concern at the time about his closing the doors. The RD also found that NFFE was unable to produce any employee who was either not aware that NFFE was campaigning in that conference room on that day, or was prevented from visiting the conference room because of the closed doors or the presence of the security chief. Accordingly, the RD concluded that the evidence did not establish that the Activity's conduct interfered with or otherwise restrained employees from attending NFFE's meeting.
Concluding that there was no evidence that the Activity had violated the requirement that it remain neutral or that it had engaged in any other conduct that improperly affected the results of the election, the RD dismissed Objection No. II.
C. Objection No. III
In addition, NFFE was denied access to employees during non-working hours in various buildings. Management required that campaigning only be done outside, before work, during lunch and after work hours outside buildings. When NFFE representatives were seen during lunch breaks, inside the building, talking to employees, management informed the NFFE representatives that campaigning was allowed only outside the building, with the exception of the designated conference rooms, which were closed off to employees and guarded by management officials and Agency law enforcement officials. This had a chilling effect on many employees interested in learning about NFFE.
Id. at 6.
According to the RD, the only incident cited in connection with this objection occurred on February 6, 1992, when a NFFE representative was observed talking with an employee in a corridor adjacent to the conference room in the security building. The NFFE representative was told by the security chief that campaigning in the corridors was not permitted under the pre-election rules. The RD found that there was no evidence that management's conduct was inconsistent with the agreed-upon campaign procedures or that the rule was disparately applied to NFFE. Accordingly, the RD concluded that the security chief's comment to the NFFE representative did not in any way constitute improper interference with NFFE's rights.
The RD further found that the evidence did not support NFFE's allegation that campaigning was restricted to designated conference rooms that were closed off to employees and guarded by management officials and law enforcement officers. The RD found that NFFE submitted no evidence that indicated that conference rooms were closed off or guarded by management officials and/or law enforcement officers. The RD noted that although the security chief allegedly closed the doors to the security building conference room on February 6, 1992, as discussed in Objection No. II, there was no evidence that that conference room was guarded, that the security chief prevented employees from entering the conference room, or that any employee in the security building failed to visit the conference room because the doors may have been closed at a particular time.
Consequently, the RD concluded that the evidence was insufficient to support a finding that the Activity's conduct improperly affected the results of the election. Accordingly, the RD dismissed Objection No. III.
D. Objection No. IV
Even though the original petition included all employees (professional and non-professional) on the day of the election, the list of eligible voters was changed and the professional employees were considered ineligible to vote.
Id. at 7.
The RD noted that the initial petition filed in this case sought an election among all civilian employees of the Activity, and that NFFE subsequently amended its petition to specifically exclude professional employees from the unit sought. The RD found that the eligibility list used at the election, which listed professional employees as ineligible, was consistent with the petitioned-for unit and the Consent Election Agreement approved by the RD. Accordingly, the RD dismissed Objection No. IV.
E. Objection No. V
Moreover, management officials informed employees that they could not have time on the clock to cast their votes nor were employees advised of their right to vote challenged ballots. Their actions are clearly inconsistent with the consent agreement, the Statute, and the rules and regulations of the [Authority]. These matters were immediately brought to the attention of the [Authority] agent, and it was suggested that employees be notified immediately of this erroneous information. However, the agent's response was that management would be holding a meeting to discuss this issue.
The RD found that NFFE's evidence supporting this objection was "limited." Id. at 8. In this regard, the RD noted that NFFE was unable to identify any employee who was told that he or she had to vote on non-duty time. The RD found that the evidence failed to establish the name of the supervisor allegedly involved or whether the section or office involved had employees who were eligible voters. The RD stated that although the Activity admitted that NFFE had informed one of the Activity's officials that an unidentified supervisor had allegedly told employees that they could vote only on their own time, management had taken "corrective action[,]" apparently in a meeting with the employees. Id. Additionally, the RD found there was no evidence that any employee failed to vote or was otherwise chilled in the exercise of the right to vote because of the alleged statement made by the unidentified supervisor. Consequently, the RD concluded that the evidence was insufficient to support this part of Objection No. V.
With regard to NFFE's assertion that employees were not advised of their rights to vote challenged ballots, the RD found that all parties to the election were informed of the challenged ballot procedure during the pre-election meeting held the day before the election. The RD noted that on the day of the election three professional employees appeared to vote and were challenged by the Activity observer because they were not on the eligibility list. According to the RD, these employees voted challenged ballots, but, prior to the tally of ballots, the challenges were resolved when the parties agreed that professional employees were not eligible voters. Therefore, the RD found that the parties were aware of the challenged ballot procedure and used that procedure during the election. The RD also found that there was no evidence that any prospective voter was denied the right to vote a challenged ballot.
Accordingly, the RD dismissed Objection No. V.
F. Objection No. VI
During the election, the [Authority] agent allowed the representative from the AFGE to stand approximately 25 feet from the voting poll. AFGE's representative was in clear sight of all employees as they cast their ballots. NFFE's representative requested that the agent not allow this activity. However, the agent did not honor this request.
Id. at 9.
According to the RD, this objection concerned electioneering by AFGE representatives on February 12, 1992, the day of the election. The RD found that the parking lot where the alleged activity took place was located to one side of the building housing the polling site. The RD noted that during the morning voting session NFFE representatives were in the parking lot approximately 25-50 feet from the entrance to the building; a NFFE representative had locked his keys in his car; and the NFFE representatives remained in the parking lot area until they were able to retrieve the keys. The RD further found that during the afternoon session AFGE representatives were located at the far end of the parking lot. The RD noted that although NFFE's observer alleged that he could see AFGE representatives in the parking lot from the observer table, the Activity and AFGE observers sitting with the NFFE observer stated they could not see the AFGE representatives. Moreover, the RD found that the polling site was in a private room, with windows covered so that no voters in the polling area could see representatives of either union, and no union representative outside the building could observe voters in the polling area. Accordingly, the RD concluded that there was no basis to find that any voter's free choice was interfered with by either union's presence in the parking lot and, therefore, that Objection No. VI was without merit.
Finally, the RD noted that, in its evidence in support of the objections, NFFE asserted that AFGE distributed literature 24 hours prior to the election, which did not afford NFFE the opportunity to respond. The RD found that because this issue was not specifically raised in NFFE's objections to the election, it could not be considered.
Having found that none of the objections had merit, the RD advised the parties that because no choice had received a majority of the ballots cast, a run-off election between AFGE and the choice of no union would be held at a date to be determined.
III. NFFE's Application for Review
A. Objections Raised for First Time in Application
In its application, NFFE initially raises two additional objections to the conduct of the regional office that allegedly improperly affected the results of the election. NFFE claims that the RD violated the Authority's regulations by notifying AFGE of NFFE's petition before AFGE had demonstrated a showing of interest and by delaying the election process until AFGE had time to obtain the requisite showing of interest and to formally file the required intervention documents. Thus, NFFE asserts that the RD violated Authority regulations when he permitted AFGE to intervene even though the regional office had not received a formal request for intervention, including a showing of interest. Specifically, NFFE objects to the RD sending out a letter to AFGE, dated October 22, 1992, which: (1) provided AFGE copies of NFFE's petitions; (2) noted that the RD had been informed of AFGE's possible interest in representing the employees in question; and (3) set forth the regulatory requirements for requesting formal intervention.
Second, NFFE alleges that the RD and the Authority agent arbitrarily delayed the election, thereby denying NFFE a fair and just election process. Specifically, NFFE claims that by requiring that NFFE amend its petition, the regional office gave AFGE time to gather the requisite number of signatures to gain intervenor status in the election.
NFFE asserts that the RD's actions raise substantial questions of law and policy and are a departure from Authority precedent. NFFE claims that but for the regional office's interference, NFFE would have been elected the exclusive representative of civilian employees at the Activity.
B. Objection No. I
NFFE contends that the RD based his dismissal on the "ill assumption" that the incident in question was isolated and that such conduct did not interfere with or improperly affect the results of the election. Application at 4. NFFE notes that the RD stated that the Activity took almost immediate action to ensure equal application of the agreed-upon procedures to both unions. However, NFFE contends that: (1) the agreed-upon procedures were violated by AFGE; (2) such violation was objectional conduct; and (3) such conduct did have the potential for interfering with the free choice of the voters.
C. Objection No. II
NFFE admits that not all of the allegations raised in Objection No. II were substantiated with evidence. However, NFFE argues there is justifiable reason to conclude that certain agreed-upon pre-election campaign procedures were violated. Contrary to the RD's finding, NFFE contends that the parties understood that the use of each conference room was restricted to a single use by each union. NFFE further contends that the Activity, through its security chief, willfully kept closing the conference room door, although it knew that NFFE was using the room for campaigning. NFFE argues that while the RD "asserts" that NFFE representatives never approached the security chief to object to his conduct, the security chief's actions nevertheless restricted employees' access to the NFFE representatives. Id. at 5. NFFE claims that AFGE was never interfered with in the same manner by the security chief, and that, therefore, NFFE was unreasonably restricted and AFGE was given considerable advantage over NFFE in its access to employees.
D. Objection No. III
NFFE again contends that its representatives were unduly denied equal access to unit employees by the security chief. NFFE disagrees with the RD that there was no evidence that management's conduct was inconsistent with the agreed-upon procedures. NFFE asserts that the RD "simply evade[d] the issues and objections raised," and failed to show that he investigated the objections. Id. at 6. In this regard, NFFE argues that while the security chief told NFFE representatives that they could not campaign in the corridors, he made no effort to enforce the agreed-upon procedures when NFFE objected to the presence of AFGE representatives outside the conference room being used by NFFE. NFFE also disagrees with the RD's finding that there was no evidence that the conference room was guarded. In the absence of testimony to the contrary, NFFE argues that "NFFE allegations are true and correct." Id. at 7.
E. Objection No. IV
NFFE contends that the Authority agent insisted that NFFE exclude all professional employees and file an amended petition. NFFE argues that the only reason it submitted the amended petition was to retain the opportunity for an election and to avoid any delay. NFFE again argues that: (1) the regional office improperly delayed the election while AFGE prepared to file a request for intervention, thereby depriving NFFE of a fair opportunity to win the election; and (2) the RD improperly allowed AFGE to intervene, in violation of Authority regulations.
F. Objection No. V
In arguing that this objection was sustainable, NFFE contends that had it not objected during the election to management's conduct in informing employees that they could not vote on duty time, management would not have taken the corrective action of meeting with employees. Moreover, NFFE questions whether such a meeting was held. NFFE argues that the fact that representatives of the Activity and Authority thought it necessary to hold such a meeting demonstrates that the evidence supporting this objection was not limited, as found by the RD. NFFE also claims that the RD failed to investigate whether 16 eligible voters failed to vote because they had been advised that they could not vote on duty time.
With regard to the aspect of its objection that employees were not informed of their right to cast challenged ballots, NFFE contends that although, as found by the RD, the observers were informed of this right, employees were not so informed. NFFE asserts that employees should have been so informed.
G. Objection No. VI
NFFE contends that, in contrast to the conduct of AFGE, its representatives were not electioneering in the parking lot during the election. NFFE also contends that the RD should have considered its allegation that AFGE distributed literature 24 hours prior to the election. NFFE questions how the RD could state that this objection was not specifically raised when in fact he understood the allegation.
IV. Analysis and Conclusions
A. Objections Raised for First Time in Application
NFFE raises the following two issues in its application for review: (1) that the regional office improperly allowed the AFGE to intervene without receipt of a formal request for intervention; and (2) that the regional office used delaying tactics, including requiring the NFFE to amend its petition, so as to improperly interfere in the fair and just conduct of the election process. NFFE claims that "these issues were raised in the investigation" conducted by the Authority, application at 2; however, it does not dispute that its objections to the election did not include either of these contentions.
Section 2422.17(b) of the Authority's Rules and Regulations states, in relevant part, that, "[a]n application may not raise any issue or allege any facts not timely presented to the Regional Director." Because these two issues were not timely presented to the RD, as required, they are not properly before us. Consequently, they do not provide a basis for granting NFFE's application for review.(3) In this regard, we agree with the policy of the National Labor Relations Board (the Board) that "if . . . evidence of misconduct unrelated to the timely filed objections comes to the Regional Director's attention during the investigation at the initiative of the objecting party after the time for filing objections has expired, the new evidence should not be considered as a basis for setting aside the election unless the objecting party has provided clear and convincing proof that the evidence was 'not only newly discovered, but also previously unavailable.'" John W. Galbreath & Company, 288 NLRB 876, 878 (1988), quoting Burns Security Services, 256 NLRB 959, 960 (1981). See also NLRB v. Rhone-Poulenc, Inc., 789 F.2d 188, 191-92 (3rd Cir. 1986). As the Board concluded in Burns Security Services, such a limitation is essential to discourage the piecemeal submission of evidence and to prevent investigations into election misconduct from being unduly prolonged. As NFFE has not contended that the issues raised for the first time in its application for review are based on previously unavailable evidence, those issues are not timely before us.
B. Objections Dismissed by the RD
Upon consideration of the NFFE's application for review, we conclude that compelling reasons do not exist under section 2422.17(c) of the Authority's Rules and Regulations for granting review of the RD's decision.(4)
NFFE did not state the grounds on which it seeks review of the RD's decision dismissing its objections, except with regard to Objection No. IV, where it is seeking review under section 2422.17(c)(1). It appears, however, that NFFE is seeking review under section 2422.17(c)(4) as to the remaining objections.
The RD concluded, for the most part, that the evidence presented did not establish that the conduct alleged in NFFE's objections reasonably interfered with employee free choice or improperly affected the results of the election. With respect to the incident raised in Objection No. I, involving AFGE's distribution of literature outside a conference room on February 10, 1992, the RD specifically found that the incident was isolated, was corrected almost immediately by management once it learned of the conduct, and would not reasonably have interfered with the free choice of the voters.(5) As to the incident raised in Objection No. II, regarding the conduct of the security chief on February 6, 1992, the RD found that although the NFFE representatives reopened the doors, none of them asked the security chief not to close the doors or expressed concern at the time about his closing the doors. The RD also found that NFFE was unable to produce any evidence that any employee was either not aware that NFFE was campaigning in the conference room that day, or was prevented from visiting the conference room because of the closed doors or the presence of the security chief.(6) Similarly, under Objection No. III, the RD found there was no evidence that the conference room was guarded or that employees were prevented from entering the conference room by the security chief. The RD further found no support for allegations that management gave AFGE preferential treatment as to the use of the conference rooms or allowed AFGE to campaign in areas where NFFE was not allowed to campaign.(7)
As to the allegation in Objection No. V that an unidentified supervisor improperly told employees that they could not vote on duty time, the RD found that the evidence supporting this objection was limited and that NFFE could not provide specific evidence of the events alleged or information about specific people allegedly involved.(8) The RD further found that, even if such allegation were true, management took proper corrective action, apparently by meeting with employees to clarify the procedures. The RD concluded that there was no evidence that any employees failed to vote or were otherwise chilled in the exercise of their right to vote. The RD also found that the proper parties were informed of the challenged ballot procedure used in elections and that such procedures were used by the parties during the election.(9) With regard to Objection No. VI, the RD found that there was no basis to conclude that any voter's free choice was interfered with by either union's presence in the parking lot during balloting.(10) With regard to the allegation raised in support of NFFE's objections, but not raised in the objections, the RD concluded that such allegation was not properly before him.(11)
In its application for review, NFFE disagrees with the above-noted findings and conclusions of the RD. Section 2422.21(b) of the Authority's Rules and Regulations states, in relevant part, that, "[t]he objecting party shall bear the burden of proof at all stages of the proceeding regarding all matters raised in its objections."(12) On review, we find that NFFE has not demonstrated that the RD erred in his determinations. NFFE's application expresses nothing more than mere disagreement with the RD's findings of fact, evaluation of the evidence, and his conclusions based on that evaluation and, as such, provides no basis for granting review of the RD's decision. See U.S. Department of Labor, Office of Administrative Law Judges, Pittsburgh, Pennsylvania, 40 FLRA 1021, 1024 (1991).
Further, with regard to NFFE's contentions, raised under Objection No. IV, as to allegedly improper conduct by the regional office, we find, as discussed in part A of this section, that those issues are not properly before us.
Accordingly, we will deny the application.
The application for review of the Regional Director's decision and order is denied.
(If blank, the decision does not have footnotes.)
1. The election was held in the following unit:
Included: All civilian employees of U.S. Naval Station, Ingleside, Texas.
Excluded: All professional employees, management officials, supervisors, fire-fighters, and employees described in 5 USC 7112(b)(2)(3)(4)(6) and (7) [sic].
RD's decision at 2.
2. NFFE received 8 of the 36 valid votes counted; the American Federation of Government Employees, Local 4057, AFL-CIO (AFGE), the Intervenor, received 13 of the valid votes counted; and 15 votes were cast against exclusive recognition. There were approximately 52 eligible voters.
3. Nevertheless, it should be noted that the regional office followed standard operating procedure when it sent the October 22, 1992, letter to AFGE informing it that a petition was filed by NFFE. The Authority's General Counsel's Representation Case Handling Manual sets forth extensive administrative procedures for ensuring that any union considered to have an interest in a petition for exclusive representation is notified of the filing of such a petition and provided an opportunity to become a party to the proceedings. In this regard, we note that AFGE initially contacted the regional office expressing interest in representing employees at the Activity.
4. 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.
5. See U.S. Army Engineer Activity, Capital Area, Fort Myer, Virginia, 34 FLRA 38, 43 (1989), where the Authority upheld an RD's decision holding that "isolated" incidents of solicitation that were quickly stopped by the activity once it learned of them did not establish objectionable conduct.
6. The only evidence presented to the RD by NFFE to corroborate this allegation was a signed statement by its national representative alleging only that the security chief's presence "cast a chilling effect over employees of security directorate who otherwise could have met with NFFE [r]epresentatives during this time." February 24, 1992, statement by Henry U. Mesa.
7. Again, NFFE relies on the statement of its national representative who claims that AFGE's use of the conference rooms gave it an "undue advantage" over NFFE. February 24, 1992, statement by Henry U. Mesa. With regard to NFFE's contention that in the absence of testimony to the contrary, its allegations must be taken as true and correct, we note that the burden is clearly upon the objecting party to provide the evidence necessary to support its allegations of improper conduct and to demonstrate that that conduct may have improperly affected the results of the election. See Section 2422.21(b) of the Authority's Rules and Regulations.
8. NFFE did not provide the name of the non-bargaining unit employee who allegedly told a NFFE representative that the unidentified supervisor made such comments. Compare Federal Deposit Insurance Corporation, 40 FLRA 775, 783 (1991), enf'd sub nom. FLRA v. Federal Deposit Insurance Corporation, 91-1207 (D.C. Cir. Sept. 1, 1992) (agency did not present specific evidence to support its claim of objectionable conduct so as to warrant a hearing).
9. The challenged ballot procedure affords an individual whose eligibility is in issue the opportunity to vote while preserving the ballot until a determination may be made, if necessary, by the RD or the Authority. Any party through its authorized observer may challenge the eligibility of a voter for good cause. Accordingly, contrary to NFFE's contention, because only an observer has the right to challenge the eligibility of a voter, it is the observers, and not the voters, who should be informed about the procedures for challenging ballots. Moreover, there is no evidence that any employees were told that they could not cast a ballot that might be subject to challenge.
10. We note that in its application NFFE objects only to the implication that it was engaged in electioneering in the parking lot. It did not address the RD's findings that no voters in the polling area could see AFGE representatives in the parking lot and that no union representative outside the building could observe voters in the polling area.
11. In this regard,