46:1421(136)RP - - HHS, Public Health Service, Indian Health Service, Gallup Indian Medical Center, Gallup, NM and Laborers' Int'l Union of North America, Navajo Area Health Care Employees, Local 1376 - - 1993 FLRAdec RP - - v46 p1421



[ v46 p1421 ]
46:1421(136)RO
The decision of the Authority follows:


46 FLRA No. 136

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

PUBLIC HEALTH SERVICE

INDIAN HEALTH SERVICE

GALLUP INDIAN MEDICAL CENTER

GALLUP, NEW MEXICO

(Activity)

and

LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO

NAVAJO AREA HEALTH CARE EMPLOYEES

LOCAL 1376

(Petitioner)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1749

(Incumbent/Intervenor)

76-RO-00011

DECISION AND ORDER ON REVIEW

February 16, 1993

______

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority for review of the Regional Director's (RD) decision and order dismissing the petition for exclusive recognition filed by the Petitioner (LIUNA). LIUNA sought to represent a unit of professional and nonprofessional employees of the Activity. The RD dismissed the petition because she found that the signatures constituting the showing of interest submitted by LIUNA in support of the petition were improperly obtained and, therefore, were invalid.

LIUNA filed an application for review of the RD's decision. Subsequently, we granted review pursuant to section 2422.17(c) of the Authority's Rules and Regulations. We stated that a substantial question of law or policy was raised by the decision with respect to whether the RD departed from Authority precedent in concluding in the circumstances of this case that LIUNA's showing of interest is invalid and that the petition must, therefore, be dismissed.

Pursuant to our order granting review, LIUNA and the Intervenor (NFFE) filed supplemental briefs. The Activity did not file any submission in this case. For the reasons set forth below, we affirm the RD's finding that LIUNA's showing of interest was invalid and her conclusion that LIUNA's petition must be dismissed.

II. Background and Regional Director's Decision

NFFE is the exclusive representative of a bargaining unit of the Activity's professional and nonprofessional employees. A bargaining agreement between NFFE and the Activity has been in effect since September 23, 1983.

On July 12, 1990, LIUNA filed the RO petition in this case, seeking an election in the bargaining unit represented by NFFE. As its showing of interest in support of the petition, LIUNA submitted signature cards that were dated from May 22, 1990, to July 2, 1990. The RD thereupon administratively determined that the petition was timely filed and was supported by a sufficient showing of interest.

On July 20, 1990, NFFE filed an unfair labor practice charge in Case No. 76-CA-00977, alleging that the Activity had violated the Federal Service Labor-Management Relations Statute (the Statute) by unlawfully assisting LIUNA when it permitted LIUNA access to Activity facilities for organizing efforts at a time when LIUNA did not have equivalent status within the meaning of section 7116(a)(3) of the Statute.

On July 31, 1990, the RD granted NFFE intervenor status in the instant case based on its incumbent status. The notice to employees of the RO petition was posted from August 2, 1990, to August 13, 1990. On August 10, 1990, during the posting period, the RD advised the parties that because of the nature of the unfair labor practice charge in Case No. 76-CA-00977, the petition in this case would be blocked and held in abeyance pending the disposition of that charge.

On February 27, 1991, the RD issued a complaint in Case No. 76-CA-00977. An Administrative Law Judge held a hearing on the complaint and, on July 12, 1991, issued a decision finding that the Activity had violated section 7116(a)(1) and (3) of the Statute. The Judge found that the Activity had unlawfully assisted LIUNA when it permitted nonemployee representatives of LIUNA access to the Activity's premises for the purpose of conducting an organizing campaign among the Activity's employees at a time when LIUNA did not have equivalent status. The Judge recommended that the Activity be ordered to cease and desist from its unlawful conduct and post a notice to employees.

No party excepted to the Judge's finding of a violation of the Statute. However, on August 12, 1991, NFFE filed exceptions to the Judge's recommended order alleging that the order was insufficient to remedy the violation. NFFE contended that adoption of the Judge's decision and order would remove the block on the RO petition in this case and would require the RD to conduct an election. NFFE asserted that no election should be held based on LIUNA's petition and that the petition should be dismissed because the signatures solicited by LIUNA on the Activity's premises to support its petition were tainted by the conduct found unlawful by the Judge.

On August 19, 1991, NFFE filed with the RD a motion to dismiss LIUNA's representation petition in the instant case on the basis that LIUNA's showing of interest was tainted as the result of improper Activity assistance. On August 23, 1991, the RD dismissed NFFE's motion. The RD construed the motion as a challenge to the validity of the showing of interest and determined that inasmuch as no challenge to the showing of interest had been filed during the posting of the notice of petition, NFFE's motion was untimely.(1)

On March 3, 1992, we adopted the Judge's findings, conclusions, and recommended order in Case No. 76-CA-00977. Gallup Indian Medical Center, Gallup, New Mexico, 44 FLRA 217 (1992) (Gallup). We stated that "[o]ur decision in this case will allow the resumed processing of the representation petition filed in Case No. 76-RO-00011. However, our decision does not require the Regional Director to conduct an election." Gallup, 44 FLRA at 219. We noted that we could not make a determination as to the RO petition, "inasmuch as Case No. 76-RO-00011 has not been made part of the [unfair labor practice] proceeding before us." Id. We further stated that the RD should resume processing of the RO petition and determine what course of action is appropriate. Additionally, we stated that the RD's action

should be consistent with our determination that the Respondent in this case committed the unfair labor practices alleged in the complaint and with the well established principle that "a cornerstone of the Statute is that employees should be free to choose or reject union representation without coercion and while agency management maintains a posture of neutrality."

Id., quoting United States Department of Justice, United States Immigration and Naturalization Service, 9 FLRA 253, 263 (1982) (INS), rev'd on other grounds sub nom., United States Department of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984).

By letter of March 19, 1992, NFFE requested the RD to dismiss LIUNA's petition, arguing that the Authority's decision in Gallup demonstrated that the Activity's unlawful assistance of LIUNA tainted the showing of interest submitted by LIUNA to support its petition. On April 28, 1992, the RD wrote to the Activity and LIUNA, stating that she was treating NFFE's letter as a motion to dismiss LIUNA's petition and offering the parties an opportunity to respond to NFFE's motion. On May 11, 1992, the Activity responded to the RD's letter and stated that, in its view, any signatures obtained as a result of the Activity's unlawful assistance should be considered tainted and should not be allowed to support LIUNA's petition. LIUNA responded to the RD's letter on May 11, 1992, opposing NFFE's motion, and also filed a supplemental submission on May 22, 1992. LIUNA argued that: (1) the RD should dismiss the motion as untimely, as she did with NFFE's earlier motion, because no challenge to the showing of interest was filed by NFFE within the time required by section 2422.2(f)(2) of the Authority's Regulations; and (2) because there was no timely challenge to the showing of interest and, therefore, no investigation by the RD pursuant to a timely challenge, unlawful conduct that occurred prior to the filing of a petition cannot be the basis for finding that the showing of interest was tainted.

On June 9, 1992, the RD issued a decision finding that the petition must be dismissed.(2) In so finding, the RD concluded that "the ability of the employees who are the subject of this petition to freely choose or reject union representation, while agency management maintains the posture of neutrality, has been inalterably breached by the conduct found violative of the Statute in [Gallup]." RD's Decision at 8. In determining that the Activity's unlawful activity could be used as a basis for that finding, the RD relied on a decision of the Assistant Secretary of Labor for Labor-Management Relations (Assistant Secretary) under Executive Order 11491, Department of the Navy, Navy Commissary Store Complex, Oakland, 6 A/SLMR 231 (1976) (Navy Commissary).

According to the RD, in Navy Commissary the agency allowed a rival union access to its facilities in order to conduct an organizing campaign among its employees at a time when the rival union did not have equivalent status. The rival union filed an RO petition, and the incumbent union filed an unfair labor practice charge alleging that the agency unlawfully assisted the rival union. Over the objections of the incumbent union, an election was held, and the incumbent union filed objections to the election. The Assistant Secretary consolidated the unfair labor practice and objections cases for hearing before an Administrative Law Judge and adopted the Judge's findings that the agency had unlawfully assisted the rival union and that the rival union's showing of interest was, therefore, invalid. The Assistant Secretary set aside the election in Navy Commissary and dismissed the RO petition. The RD noted the Assistant Secretary's finding in Navy Commissary that because the petition was tainted by unlawful assistance the case warranted an exception to the general rule enunciated in Report on a Ruling of the Assistant Secretary No. 58, 5 A/SLMR 789 (1975) (Report No. 58) that conduct occurring prior to the filing of a representation petition cannot be the basis for objections to an election.

The RD stated that, although the instant case did not involve objections to an election, it did involve a finding by the Authority that the Activity improperly assisted LIUNA in its organizing efforts and, therefore, as in Navy Commissary, the petition must be dismissed. The RD found that

[t]hus, the Activity has been found to have improperly assisted [LIUNA] by allowing that union access to its facilities for the purposes of organizing and soliciting employee signatures from on or about May 21, 1990 until early July, 1990, when the petition in this case was filed. Accordingly, I find that the signatures constituting the showing of interest by [LIUNA] in support of the instant petition were improperly obtained and are, therefore, invalid.

RD's Decision at 8.

The RD rejected LIUNA's argument that the Authority, by its decision in INS, determined to follow the policy set forth in Report No. 58 without exception. The RD found that in INS the Authority adopted the Judge's finding as to certain objections and followed the policy of Report No. 58. The RD noted, however, that in INS the Judge had distinguished the case from Navy Commissary because in INS the incumbent union, despite its knowledge of unlawful assistance prior to the filing of the petition, did not file either a challenge to the validity of the showing of interest or an unfair labor practice charge and signed the consent election agreement without qualification.

The RD also rejected LIUNA's argument that its showing of interest could not be found invalid because NFFE did not file a challenge to the showing of interest during the posting period. Relying on Navy Commissary, the RD found that NFFE'S failure to file a timely challenge to the validity of the showing of interest did not preclude a finding that the showing of interest was invalid based on the Authority's finding in Gallup that the Activity unlawfully assisted LIUNA in its organizing activities, including soliciting employees' signatures.

The RD stated that in her view, consistent with the decision in Navy Commissary, "the ability of the employees who are the subject of this petition to freely choose or reject union representation, while agency management maintains the posture of neutrality, has been inalterably breached by the conduct found violative of the Statute" in Gallup, and, if any election were held, "any timely objection relating to [such conduct] would have to be sustained[.]" Id. at 7-8.

Accordingly, the RD dismissed LIUNA's petition. The RD also stated that if a new petition is filed, it must be accompanied by a newly acquired, untainted showing of interest, and that, pursuant to section 2422.3(e) of the Authority's Regulations, no new petition for exclusive recognition shall be entertained for a period of 90 days from the date her Decision and Order becomes final.(3)

III. Positions of the Parties (4)

A. LIUNA

LIUNA asserts that the RD erred in dismissing LIUNA's petition because: (1) absent the filing by NFFE of a challenge to LIUNA's showing of interest as required by section 2422.2(f) of the Authority's Regulations, the RD had no valid grounds to dismiss; (2) the RD's decision was based on speculation about possible future events; and (3) the decision is contrary to Authority precedent and is based on a misapplication of precedent of the Assistant Secretary. LIUNA also argues that, in any event, the passage of time has dissipated any effects the Activity's unlawful actions have had and it would be unfair to deny the employees an opportunity for an election. LIUNA requests that the RD's decision be reversed and that an election be ordered.

LIUNA contends that because NFFE did not challenge LIUNA's showing of interest within 10 days of the posting of notice of petition, as required by section 2422.2(f) of the Authority's Regulations, LIUNA's petition must be found valid. LIUNA argues that the RD erred by treating NFFE's unfair labor practice charge in Case No. 76-CA-00977 as, in essence, a challenge to the showing of interest. LIUNA asserts that the earliest action by NFFE that could be treated as a challenge to the showing of interest occurred in August 1991, after the hearing was held in Case No. 76-CA-00977, when NFFE's motion to dismiss LIUNA's petition was treated by the RD as a challenge and dismissed as untimely. LIUNA argues further that, even if a proper challenge had been timely made, such a challenge would have to have been supported by evidence that the showing of interest was tainted. According to LIUNA, there was no such challenge or evidence submitted by NFFE, and there was no independent investigation by the RD, in either the unfair labor practice case or the instant case, of how the showing of interest was obtained. Therefore, LIUNA argues, the RD had no valid basis for her finding that the showing of interest was tainted.

According to LIUNA, the RD's decision should be overturned because she based her dismissal of the petition and refusal to hold an election on speculation. LIUNA refers to the RD's statement that if an election were held and LIUNA prevailed, NFFE would object on the basis of the Activity conduct found unlawful in Gallup and, relying on the decision of the Assistant Secretary in Navy Commissary, the RD would sustain the objection. LIUNA argues that a decision based on speculation cannot be allowed to stand.

LIUNA argues that the RD improperly interpreted Navy Commissary as creating an exception to the policy set by Report No. 58. According to LIUNA, the Assistant Secretary in Navy Commissary found that, in effect, a timely challenge to the validity of the showing of interest had been lodged and thus the Assistant Secretary followed, rather than found an exception to, the policy in Report No. 58. LIUNA also argues that, even if Navy Commissary established an exception to Report No. 58, the exception should not apply in this case because the circumstances in this differ from those in Navy Commissary, particularly because in Navy Commissary a proper challenge to the petition had been filed.

LIUNA notes that in Gallup the Authority ordered only a 60-day period of posting to remedy the Activity's unlawful action and argues that the passage of time has dissipated the effects of the Activity's conduct on the employees so that a free and untrammeled election may be held. Finally, LIUNA notes that adoption of the RD's decision would result in granting NFFE and the Activity, under section 2422.3 of our Regulations, a 90-day period in which to sign a new agreement. LIUNA states that if a new 3-year agreement is signed, the employees will have been denied the opportunity for an election for a total of more than 5 years from the date LIUNA filed the petition in this case. LIUNA asserts that such a delay is inconsistent with the objectives of the Statute.

B. NFFE

NFFE contends that the RD's decision is consistent with Authority precedent and should be upheld. NFFE disputes LIUNA's contentions that the RD was obliged to order an election and erred by dismissing the petition in the absence of a challenge to the petition. According to NFFE, no election can be held in any case until the RD first determines that the petition was accompanied by a valid showing of interest. NFFE argues that the RD is bound to dismiss a petition, even without a challenge to its validity, where the RD has determined that the showing of interest was tainted by unlawful activity. Finally, NFFE argues that the policy set by the Assistant Secretary in Report No. 58 concerning pre-election conduct as grounds to set aside an election is not applicable to questions regarding whether a petition is valid in the first place.

IV. Analysis and Conclusions

We affirm the RD's finding that the showing of interest submitted by LIUNA in support of its petition is invalid. We will dismiss LIUNA's petition.

As noted above, LIUNA filed the petition in this case on July 12, 1990. On July 20, 1990, prior to the posting of notice of petition, NFFE filed the unfair labor practice charge in Case No. 76-CA-00977. Posting took place from August 2, 1990, to August 13, 1990. On August 10, 1990, prior to the end of the posting period during which a challenge to the showing of interest could have been filed, the RD determined, and so advised the parties, that because of the nature of the unfair labor practice allegations, processing of the RO petition would be held in abeyance pending disposition of the unfair labor practice charge.

We reject LIUNA's argument that because NFFE did not file a challenge to LIUNA's showing of interest during the posting period the RD was without authority to dismiss the petition. We also reject LIUNA's argument that the RD erred by treating the charge in Case No. 76-CA-00977 as, in essence, a challenge to the showing of interest in this case. An allegation that unlawful activity has taken place, including activity that may affect the validity of a showing of interest, can always be raised by the filing of a timely unfair labor practice charge. Where no such charge is filed, a party wishing to challenge a showing of interest must file a challenge within the time limits set forth in section 2422.2(f)(2) of our Regulations. However, where such a charge is filed prior to an election involving the same parties, the Regional Director must determine in what manner the charge affects the processing of the petition.

In this case, NFFE filed the unfair labor practice charge in Case No. 76-CA-00977 prior to the posting of notice of the petition. The charge alleged that the Activity had unlawfully assisted LIUNA in its organizing efforts. By determining that the nature of the unfair labor practice charge blocked the processing of LIUNA's petition, the RD, in essence, found that in these circumstances the filing of the charge constituted a sufficient challenge to LIUNA's petition under section 2422.2(f)(2) of our Regulations. We agree.

The RD held the processing of the petition in abeyance in order to make a determination as to how to proceed after the unfair labor practice charge was resolved.(5) We decided that matter in Gallup. Consistent with our decision, the RD resumed the processing of this case and made a determination as to the disposition of the petition. We find that the RD proceeded properly.

We do not agree with LIUNA that the RD's decision was based on speculation. The RD's conclusion that the petition must be dismissed was based on Authority precedent, as discussed below. In view of her conclusion, the RD's comments as to what finding would have been made had the petition been processed to an election are not apposite to this case. Accordingly, we do not pass upon the RD's comments in this regard.

Contrary to LIUNA's contentions, we find that the RD did not depart from Authority precedent. We agree with the RD that the Assistant Secretary's rationale in Navy Commissary is analogous to the circumstances of this case when viewed in light of our findings in Gallup.(6) Moreover, the RD specifically relied on the Authority's finding in Gallup that the Activity unlawfully assisted LIUNA "by allowing [LIUNA] access to its facilities for the purposes of organizing and soliciting employee signatures from on or about May 21, 1990, until early July, 1990, when the petition in this case was filed." RD's Decision at 8. Based on that finding, the RD found that "the signatures constituting the showing of interest by [LIUNA] in support of the instant petition were improperly obtained and are, therefore, invalid." Id. We agree.

We find no merit in LIUNA's argument that the showing of interest cannot be found tainted because "there is no evidence in the record to indicate where or how the cards were solicited." Application at 15-16. As noted above, the record shows that all the cards were dated from May 22, 1990, to July 2, 1990, during the time when LIUNA was unlawfully assisted by the Activity. Consistent with our determination in Gallup, we find that the Activity's unlawful assistance interfered with the employees' right under section 7102 of the Statute to support or not support LIUNA. Therefore, any cards signed during the period of management's unlawful assistance were tainted.

We do not agree with LIUNA that the RD's decision creates a rule that a pre-petition unfair labor practice by an agency necessarily taints a showing of interest. On the contrary, the RD found that the nature of the unfair labor practice, as found by the Authority in Gallup, in the specific circumstances of this case, tainted the showing of interest so as to render it invalid and require dismissal of LIUNA's petition. We agree. Accordingly, no valid petition on which to base an election was ever filed. Therefore, we find that LIUNA's argument that the passage of time would allow a fre