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

48 FLRA No. 44

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