48:0471(44)RO - - DOD, Stateside Dependents Schools, Fort Benning Schools, Fort Benning, GA and Benning Education Association OEA / NEA - - 1993 FLRAdec RO - - v48 p471

[ v48 p471 ]
The decision of the Authority follows:

48 FLRA No. 44















September 3, 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. The Petitioner filed an opposition to the application for review.

After a representation election in which a majority of the valid votes were cast for the Petitioner (Union), the Activity filed objections to certain matters relating to the conduct of the election with the Regional Director (RD). In her decision and order on objections to election, the RD denied the objections and certified the results of the election. For the reasons which follow, we will deny the Activity's application for review.

II. Background and Regional Director's Decision

The RD conducted an election by mail ballot pursuant to an Agreement for Consent Election. The election resulted in 136 votes being cast for the Union and 95 votes against exclusive recognition.

Following the election, the Activity filed objections with the RD to conduct which, it alleged, improperly affected the results of the election. As relevant here,(1) the RD summarized the objections as follows:

(1) The Petitioner made a promise of a non-negotiable item (negotiation over the option to have unit employees' children attend the Activity's schools); [and] (2) the Petitioner made a promise of a benefit not yet determined (no pay freeze for employees having a Collective Bargaining Agreement(CBA))[.]

RD's Decision at 2.

Following an investigation, the RD dismissed the Activity's objections.

With respect to the first objection, the RD found that, in early February 1993, the Union distributed a flier which stated that the Union "can negotiate for the option to have [employees'] children attend Fort Benning Schools!" Id. at 4. The RD also found that, on or about February 12, 1993, the Activity issued an employee newsletter advising employees that only children of staff members living on the Fort Benning post could attend Activity schools. The RD concluded that the issue of whether a proposal providing all employees with an option to have their children attend Activity schools was "a matter for the Authority to decide under the negotiability procedures of the Statute." Id. at 5. The RD also concluded, however, that campaign statements "must be a substantial departure from the truth which reasonably would be expected to have a significant effect on an election to be valid grounds for objection." Id. at 5-6 (citation omitted). According to the RD, the disputed assertion was not a substantial departure from the truth and, "even assuming" it was, the Activity had sufficient time to make an effective reply and did so reply to the statement. Id. As such, the RD found that the first objection was without merit.

With respect to the Activity's second objection, the RD found that, during the time period preceding the election, representatives of the Petitioner placed at least three hand-written notices on Activity bulletin boards which stated:

President Clinton has proposed a wage freeze for Federal employees. If you have a collective bargaining agreement, your wages cannot be frozen! Vote Yes!

Id. at 7 (emphasis in original). The RD also found that shortly after the notices were discovered, the Activity issued a memorandum to employees stating the "issue of a pay freeze was unsettled, and that no one could speak with certainty on the issue." Id. According to the RD, the disputed notices constituted "mere campaign rhetoric" that were susceptible to evaluation by affected employees. Id. The RD concluded that the Activity had sufficient time to make an effective reply and did so reply. Accordingly, the RD found that the second objection was without merit.

As the RD concluded that no objectionable conduct occurred with regard to the election, the RD stated her intention to issue a certification of representative to the Petitioner.

III. Application for Review

The Activity argues that the Authority should grant review of the RD's decision under section 2422.17 of the Authority's Rules and Regulations. The Activity asserts that the statements at issue "misrepresented employee rights and benefits to be gained as a result of recognition, were of substantial benefit to voters, if true, and did not constitute mere campaign 'puffery.'" Application at 4.

With regard to the first objection, the Activity asserts that affected employees were provided with conflicting information as to whether their children could attend Activity schools. According to the Activity, the conflicting information "prejudiced the right of [the Activity] to correct misinformation and to have the election decided on the accurate facts." Id. at 2.

With respect to the second objection, the Activity contends that the statement regarding a wage freeze "is false on its face." Id. The Activity also challenges the RD's conclusion that it was able to effectively rebut the statement and asserts that "[m]ere rebuttal . . . is insufficient to overcome the impact of a false statement on the workforce . . . ." Id. at 3.

IV. Opposition

The Union argues that the application for review should be dismissed. Specifically, the Union asserts that the Activity's first objection constitutes mere disagreement with the RD's findings and conclusions and provides no basis for review. The Union asserts that the Activity's second objection is unsupported.

V. Analysis and Conclusions

We construe the Activity's objections as asserting, under section 2422.17(c)(1) and (4), that the RD's decision is both inconsistent with Authority precedent and clearly erroneous on substantial factual issues which prejudicially affects the rights of the Activity. We conclude, for the following reasons, that no compelling basis exists within the meaning of section 2422.17(c) of the Authority's Regulations for granting the application for review.

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. See U.S. Army Engineer Activity, Capital Area, Fort Myer, Virginia, 34 FLRA 38, 42 (1989). However, campaign statements which can be reasonably interpreted as "mere 'campaign puffery' which the employees [are] able to evaluate as such" do not provide a basis for setting aside an election. U.S. Department of the Army, Watervliet Arsenal, Watervliet, New York, 37 FLRA 1086, 1088 (1990) (Watervliet). Moreover, the Authority has denied review of decisions dismissing objections of this nature where the opposing party had ample time to respond to disputed statements. See Army and Air Force Exchange Service, Fort Drum Exchange (Fort Drum, New York), 33 FLRA 245, 248 (1988).

The Activity's assertions that voters were provided with conflicting information concerning the school attendance issue supports the RD's conclusion that each party's statements were effectively challenged, and that the voters were made aware of opposing views on the issue. In these circumstances, we conclude that the Activity has failed to demonstrate that the RD's findings on this issue are clearly erroneous or that the RD's decision to dismiss the objection constitutes a departure from Authority precedent. Moreover, noting that the Activity has not challenged the RD's findings concerning the dates the various materials were disseminated, we conclude that the Activity had sufficient time to respond on this issue.

Moreover, the Activity has not demonstrated that the RD's conclusion regarding the disputed statement concerning a wage freeze constitutes a departure from Authority precedent. The RD found that the statement constituted campaign rhetoric that was susceptible to evaluation by affe