47:0945(90)RO - - Agriculture, Forest Service, Apache-Sitgreaves National Forest, Springerville, AZ and NFFE - - 1993 FLRAdec RO - - v47 p945
[ v47 p945 ]
The decision of the Authority follows:
47 FLRA No. 90
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF AGRICULTURE
APACHE-SITGREAVES NATIONAL FOREST
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
June 18, 1993
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. After a representation election in which a majority of the valid votes counted was cast against exclusive recognition, the Petitioner (NFFE) filed objections with the Regional Director (RD) to conduct alleged to have improperly affected the results of the election. In his Decision and Order on Objections, the RD sustained certain of the objections, set aside the election, and ordered that a new election be conducted.
The Activity seeks review of the RD's decision. NFFE filed an opposition to the application for review.(1) For the reasons discussed below, we deny the application for review insofar as it concerns the RD's finding that the objections were timely filed. However, we grant the application for review insofar as it concerns the RD's decision on Objections 2 and 3, and we remand the case to the Regional Director to take further appropriate action.
II. Background and Regional Director's Decision
An election by mail ballot was conducted under the RD's supervision, in accordance with the provisions of an Agreement for Consent or Directed Election approved by the RD on July 7, 1992. The count of the ballots took place on August 10, 1992. NFFE received 75 of the 165 valid votes counted, and 90 votes were cast against exclusive recognition. On August 17, 1992, four "[t]imely objections to the procedural conduct of the election and conduct improperly affecting the results of the election were filed" by NFFE. RD's Decision at 1. As relevant here,(2) Objections 2 and 3 state:
2. The forest supervisor sponsored from four to five captive audience meetings with employees during the week of July 20, 1992. In an attempt to avoid the appearance of such improper conduct, management sponsored the attendance at these meetings of union officials without informing [NFFE] and who were not under the assignment of [NFFE].
3. At these captive audience meetings, the forest supervisor repeatedly told employees that they did not need a union.
RD's Decision, Attachment 1.
The RD treated Objections 2 and 3 together. The record developed by the RD's investigation shows that on July 20-22, after the mailing of ballots and before the ballots were to be returned to the Regional Office, the Activity held meetings at five district offices where bargaining unit employees were located. The RD found that the Activity contacted the Secretary-Treasurer and a Steward of NFFE's Forest Service Council, requested that they be present at the meetings "to answer questions for bargaining unit employees[,]" and "agreed to pay all of [their] expenses . . . ." RD's Decision at 4. The RD stated that NFFE's "national representative, who was in charge of [NFFE's] campaign, was never contacted concerning the participation" of these NFFE representatives. Id. The Activity's Forest Supervisor, John Bedell, was in attendance at three of the meetings. At each of those meetings, Bedell first conducted Activity business and then introduced the Secretary-Treasurer and the Steward of NFFE's Forest Service Council. The representatives "discuss[ed] the history of the Union" and then "the meeting was opened for questions for the audience." Id.
The RD found that, "[w]hile management maintains these meetings were voluntary, management presented no evidence that employees were told the meetings were voluntary . . . ." Id. The RD also found that although Bedell stated that "his sole role was to present the Union representatives and let them answer questions for the workforce[,] he did answer questions about employee eligibility to vote" and "it is quite clear [that Bedell] interjected his responses to many of the questions posed." Id. The RD cited as an example the Union's allegation that Bedell answered questions with regard to "what the Union would do for the technicians, what the employees would gain by having a [u]nion." Id. The RD also cited the Union's allegations that Bedell: (1) stated "that his door was always open"; and (2) "told the employees they did not need a [u]nion since there was already a grievance procedure in place and matters could be worked out." Id. The RD stated that "[w]hile Bedell acknowledges he told the employees his door was always open, he does not recall making the latter statement." Id.
Before the RD, NFFE contended that "it was objectionable conduct for the Activity to arrange and pay" the expenses of the NFFE representatives "without express agreement of [NFFE's] national representative" in charge of NFFE's campaign. Id. at 5. NFFE further contended that the "meetings were conducted in such a way as to convey to employees the Activity's desire that they vote against the Union." Id. The Activity contended before the RD that "its conduct did not interfere with the employees' ability to make a free choice at the election, since its stated purpose for the series of July meetings was to foster an atmosphere of openness, in which the employees could freely discuss the petition, election, and the Union." Id.
The RD found that "[i]t is well settled that an agency must remain neutral in an election campaign." Id. The RD noted that "[s]ection 7116(e) [of the Statute] permits only those statements publicizing the election, encouraging employees to vote, correcting misstatements[,] and informing employees of the [G]overnment's policy as to labor-management relations and representation." Id. Quoting Department of the Army Headquarters, Washington, D.C. and U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, 29 FLRA 1110, 1134 (1987), the RD also found that:
It is the goal of the Authority to maintain conditions which will best ensure that the employees' choice in selecting an exclusive representative will be free from outside influence. The same premise exists for conditions for elections of exclusive representative conducted by the National Labor Relations Board. While totally perfect conditions may not always exist, efforts must be made to retain as close to optimum conditions as possible.
The RD stated that, after having "carefully considered all of the evidence concerning the manner in which these meetings were arranged and what transpired during these meetings," he found that "taken as a whole, the meetings sufficiently interfered with employees' freedom of choice in the election so as to require that the election be set aside." Id. The RD "noted that the Activity paid all of the expenses for the two [U]nion representatives to attend the meetings" and that "it is apparent that these representatives were not aware that management and supervisors would be in attendance at the meetings and participate to the exten[t] they did so." Id. The RD stated that while he found it "unnecessary to determine whether [Bedell] specifically told employees at these meetings that the Union was not needed, it is clear that he was an active participant, not an observer, at the meetings and acknowledged telling employees of his open door policy." Id. at 5-6.
The RD concluded that "[b]y initiating these meetings, interjecting itself in determining who of the Union would attend, paying for the Union representatives' expenses, requiring employees to attend[,] and playing an active role in the meetings, management violated its duty to remain neutral during the pendency of a question concerning representation. This conduct interfered with the bargaining unit employees' exercise of their rights to freely choose their exclusive representative." Id. at 6. The RD "found that Objections No. 2 and 3 have merit." Id. The RD set aside the election and ordered that a new election be conducted.
III. Positions of the Parties
In its application for review, the Activity asserts that the RD erred by: (1) finding that NFFE's objections to the election were timely filed; (2) ruling on the alleged untimely objections; (3) finding that Objection 3 had merit; (4) finding that Objection 2 had merit; and (5) denying the Activity procedural due process.
The Activity notes that section 2422.21(b) of our Regulations provides that objections to an election must be filed "[w]ithin five (5) days after the tally of ballots has been furnished[.]" Application at 2. In this case, the tally of ballots was furnished to NFFE on August 10, 1992. The Activity argues that NFFE's objections, which were filed on August 17, 1992, were untimely. The Activity contends that the RD, therefore, "abused his discretion by accepting objections filed three (3) days past the statutory deadline" (id.) and "did not have jurisdiction to rule on [NFFE's] objections" (id. at 3; emphasis omitted).
As noted above, Objection 3 alleged that, at the meetings held by the Activity during the week of July 20, 1992, Forest Supervisor Bedell repeatedly told employees that they did not need a union. The Activity argues that the RD committed prejudicial error in finding it unnecessary to determine whether Bedell made the remarks attributed to him, but nevertheless ruling that Objection 3 had merit.
As to Objection 2, the Activity acknowledges that it sponsored the meetings during the week of July 20, 1992. The Activity explains that these were "family meetings" that "have been a long tradition with the [Activity] . . . ." Id. at 5. The Activity disputes the RD's finding that sponsoring the meetings was improper. As explained by the Activity, the two Union officials who attended the meetings were invited, they accepted, and their participation was approved by the Regional President and Vice-President of NFFE's Forest Service Council. The Activity also disputes the RD's finding that the two Union representatives were not aware that management would attend the meetings and participate in the meetings. The Activity argues, to the contrary, that the matter of participation had been the subject of discussion with the Union representatives prior to the meetings.
The Activity states that the RD's finding that attendance at the meetings in question was required "is inconsistent with and is directly contrary to the evidence at bar." Id. at 6. The Activity states that the RD's "conclusion that management violated its duty to remain neutral is not supported by the evidence on the record as a whole." Id. In this regard, the Activity argues that management's role at the meetings was neutral in nature and that Bedell's responses were "straightforward and factual" and only "at the invitation of the [U]nion representative . . . ." Id.
Finally, the Activity states that the RD denied its request "to review and refute any evidence contained in" affidavits which were taken by the RD from the two NFFE representatives who attended the meetings convened by the Activity and "which would be relied upon in making [the RD's] decision." Id. at 7. The Activity argues that by denying its request, the RD violated the Activity's rights to due process. The Activity notes, moreover, that its "request for a hearing was also denied." Id.
In sum, the Activity argues that the RD: (1) abused his discretion in accepting and ruling on the objections; (2) made factual findings that were clearly in error and prejudicial to the Activity; and (3) denied the Activity procedural due process. The Activity asks that the RD's decision be reversed and the election of August 10, 1992, be upheld or, in the alternative, that the matter be remanded to the RD for a hearing.
NFFE contends in general that the Activity's application for review "is nothing more than mere disagreement with the decision of the Regional Director." Opposition at 1. Specifically, as to the Activity's assertion that the objections were untimely, NFFE states that at the ballot count the FLRA agent conducting the election stated that "because the fifth day following the ballot count fell on Saturday the time limit would be extended to the following business day, Monday, August 17, 1992." Id. (emphasis in original). NFFE notes that section 2429.21(a) of the Authority's Regulations supports the statement of the FLRA agent.
As to the argument that management's initiating and participating in the meetings in question was not improper, NFFE argues that, by initiating and participating in the meetings, the Activity failed to maintain neutrality during an election as required by the Statute.
IV. Analysis and Conclusions
We conclude, for the reasons that follow, that compelling reasons do not exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review insofar as it concerns the RD's finding that the objections were timely filed. We further conclude, however, that compelling reasons do exist for granting the application for review insofar as it concerns the RD's decision on Objections 2 and 3. Specifically, we find that the RD erred when he resolved disputed questions of fact raised by NFFE's objections, without first holding a hearing, and based his decision on those findings of fact. Therefore, the RD's decision is without proper factual foundation and "such error [has] prejudicially affect[ed] the rights of" the Activity. 5 C.F.R. § 2422.17(c)(4). We remand the case to the RD for further appropriate action concerning Objections 2 and 3.
A. The Objections Were Timely Filed
The first two issues raised by the Activity concern the timeliness of NFFE's objections to the election. As provided by section 2422.21(b) of our Regulations, objections to an election, to be timely, must be filed "[w]ithin five (5) days after the tally of ballots has been furnished[.]" Section 2429.21(a) of our Regulations provides in relevant part that:
In computing any period of time prescribed by or allowed by this subchapter, . . . the day of the act, event, or default from or after which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included unless it is a Saturday, Sunday, or a Federal legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or a Federal legal holiday.
The tally of ballots in this case was furnished to the parties on Monday, August 10, 1992. As provided by our Regulations, August 10 is not counted. The last of the 5 days computed, August 15, 1992, is not included because it is a Saturday, and the period thus ran until the end of the following Monday, August 17, 1992. NFFE's objections were filed with the RD on August 17, 1992, and were, therefore, timely. Accordingly, we find no merit in the first two arguments raised by the Activity. The RD was correct in finding that the objections were timely filed and, therefore, in considering the merits of the objections.
B. The RD Erred in Resolving Questions of Fact Without a Hearing
When objections to an election are filed, the RD conducts an investigation. If the RD determines that no relevant question of fact exists, he may issue a decision and order on objections. See section 2422.21(c) and (d) of our Regulations. However, "[w]here it appears to the Regional Director that the objections . . . raise any relevant question of fact . . . , the Regional Director shall cause to be issued a notice of hearing." See section 2422.21(g) of our Regulations. This is not to say that a hearing must be held in all cases where questions of fact are raised. The RD may determine, on the basis of the investigation or by stipulation of the parties, that there are sufficient facts not in dispute to form the basis for a decision or that, even where some facts are in dispute, the record contains sufficient evidence on which to base a decision.
As noted above, the RD found that "it is apparent that these [Union] representatives were not aware that management and supervisors would be in attendance at the meetings and participate to the exten[t] they did so." RD's Decision at 5. As also noted above, the RD concluded that "[b]y initiating these meetings, interjecting itself in determining who of the Union would attend, paying for the Union representatives' expenses, requiring employees to attend[,] and playing an active role in the meetings, management violated its duty to remain neutral during the pendency of a question concerning representation." Id. at 6.
We have reviewed the record in this case.(3) We find that the objections in this case raised the following disputed questions of fact which must be resolved in order to determine the merits of the objections: (1) whether attendance at the meetings was required by management; (2) the extent and nature of the Activity's role in determining which Union representatives would attend the meetings; (3) whether the Union representatives were aware that management would be in attendance at the meetings and the extent to which management would participate; (4) the circumstances under which management agreed to pay the Union representatives' expenses; and (5) the extent and nature of Bedell's participation in the meetings.
Without holding a hearing, the RD resolved disputed questions of fact and based his decision on those findings of fact. However, in the absence of a hearing on those questions of fact, the RD's decision in the circumstances of this case is without a proper factual foundation and has prejudicially affected the rights of the Activity within the meaning of section 2422.17(c)(4) of our Regulations. We will remand this matter to the RD to take appropriate action.(4)
Our order does not preclude further investigation by the RD, or a stipulation of facts by the parties, in order to establish facts on the basis of which the RD could render a new decision and order. The investigation, or hearing, if one is held, shall address the unresolved questions of fact raised by Objection 3, as well as by Objection 2. The ultimate issue for resolution by the RD is whether, under all the facts and circumstances as determined by the RD, the Activity's conduct violated the Activity's obligation under the Statute to maintain its neutrality or was of such an objectionable nature as to require that the election be set aside because of the potential for interfering with the free choice of the voters.
The application for review is denied insofar as it concerns the RD's finding that the objections were timely filed. The application for review is granted insofar as it concerns the RD's decision on Objections 2 and 3. We remand the case to the Regional Director for action consistent with this decision.
(If blank, the decision does not have footnotes.)
1. In response to an Authority order, NFFE filed a submission that fulfilled the procedural requirements of the Authority's Regulations.
2. The RD found that Objections 1 and 4 were without merit. As neither party filed an application for review of the RD's findings concerning these objections, we will not consider them.
3. In reviewing the record, we have not considered the affidavits attached to the application for review, as the Authority will not consider evidence which was not presented to the Regional Director. See sections 2422.21(f) and 2429.5 of our Regulations.
4. In view of this decision, we find it unnecessary to address the remaining issues raised b