48:0959(105)RO - - Army, Corpus Christi Army Depot, Corpus Christi, TX and NFFE, Local 797 and AFGE, Local 2142 - - 1993 FLRAdec RP - - v48 p959
[ v48 p959 ]
The decision of the Authority follows:
48 FLRA No. 105
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
CORPUS CHRISTI ARMY DEPOT
CORPUS CHRISTI, TEXAS
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
ORDER DENYING APPLICATION FOR REVIEW
November 29, 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 Petitioner (NFFE) under section 2422.17(a) of the Authority's Rules and Regulations.
After an election in which no choice received a majority of the valid votes counted, a run-off election was held between NFFE and the incumbent exclusive representative, American Federation of Government Employees, Local 2142 (AFGE). A majority of the valid votes counted were cast for AFGE. NFFE filed objections with the Regional Director (RD). The RD overruled the objections.
For the following reasons, we will deny the application for review.
II. Background and Regional Director's Decision
Under an Agreement for Consent Election approved by the RD, a secret ballot run-off election was conducted at the Activity.(1) AFGE received a majority of the valid votes counted.(2) Following the election, NFFE filed objections to the election. The RD investigated the objections and, concluding that they had no merit, overruled them. Set forth below are the RD's findings and conclusions concerning the objections addressed by NFFE's application for review.(3)
A. Objection II
AFGE presented misleading information by informing employees that if they were to vote for NFFE they would lose their life insurance.
RD's Decision at 4.
The RD found that the only campaign literature concerning insurance was a flyer that "appears to have contained merely campaign puffery" and was issued within a time frame allowing NFFE ample opportunity to respond. Id. at 5. Furthermore, the RD determined that the claim that, should AFGE lose the election, employees would lose their AFGE life insurance was not sufficiently misleading to influence the election's outcome. Accordingly, he overruled the objection.
B. Objection III
NFFE was not granted equal access to facilities, such as the Hangars and in particular Hangar 47.
NFFE presented evidence that it was granted use of a break room in Hangar 47, a restricted area, on 1 day for 1 hour. NFFE contended that such limited access was improper because AFGE stewards working in Hangar 47 had daily access to that restricted area. The RD found no evidence demonstrating that NFFE's access to Hangar 47 for campaigning was more restricted than was AFGE's. Furthermore, the RD found no evidence that employees working in the restricted area campaigned for AFGE or that management allowed them to campaign during working hours. The RD concluded that NFFE was not improperly denied access to services and facilities. Consequently, the RD overruled this objection.
C. Objection IV
AFGE stewards threw out NFFE literature.
Id. at 6.
The RD found that the number of instances when AFGE stewards were observed destroying NFFE's literature were limited and had minimal impact on employees' access to that literature. The RD determined that there was no basis on which to conclude that "these isolated incidents" interfered with employees' free choice in selecting an exclusive representative. Id. at 7. The RD, therefore, overruled the objection.
D. Objection VI
NFFE was not provided equal access to bulletin boards by the Activity.
Id. at 8.
The RD found that the Activity properly denied NFFE access to employee bulletin boards, because those boards were reserved exclusively for employee, not organizational, use. The RD also found that NFFE was permitted to post campaign literature throughout the Activity in hallways, corridors, and break areas. Finally, the RD noted that, although there were "one or two isolated occasions" when supervisors removed NFFE's unauthorized postings from bulletin boards, such conduct did not impair employees' free choice or affect the election results. Id. at 9. Accordingly, he overruled the objection.
E. Objection IX
[The Activity's] Labor Relations Specialist . . . commented that she only sides with winners (meaning AFGE) and does not deal with losers (NFFE) and therefore favored AFGE.
Id. at 10.
Two NFFE witnesses claimed that they twice heard an Activity labor relations specialist express support for AFGE. The specialist's comments were allegedly made during the first pre-election conference and during the ballot count after the second election. The RD noted that there was no evidence that the specialist's remarks were publicized. The RD also found that the statement allegedly made during the initial pre-election conference, even if made, was so remote in time from the campaign period "as to have negligible impact on voters . . . ." Id. at 11. As to the second alleged remark, the RD determined that the timing of the remark could not have influenced the election because it allegedly was made during the ballot count. Accordingly, the RD overruled the objection.
F. Objection X
AFGE stewards and national representatives were campaigning on election day in various locations.
Id. at 11.
The RD found no evidence to support NFFE's allegation that "AFGE directly blocked a polling site or was campaigning in such a manner as to be visible within the polling area." Id. at 12. The RD determined that the "limited and isolated" instances of AFGE campaigning in violation of the pre-election agreement were insufficient to overturn the results of the election, and he overruled the objection. Id.
G. Objection XII
AFGE paid employees twenty to twenty-five dollars to join the Union during the election period.
Id. at 14.
The RD found that this objection referred to rebates on dues paid by AFGE to its new members. He determined that the payments were not contingent on an election victory and that the rebate offer was not limited to the campaign. The RD found that NFFE's evidence was "inconsistent" as to whether employees were informed that the payments were rebates. Id. at 16. However, in the RD's view, even if employees were not so informed, as the payments continued "for a considerable period of time," they could not have interfered with voters' free choice because of their "historical use." Id.
The RD distinguished the facts and circumstances in this case from those in National Labor Relations Board v. Savair Manufacturing Company, 414 U.S. 270 (1973) (Savair). The RD noted that, in Savair, "the Supreme Court held that a waiver of initiation fees to encourage employees to sign . . . authorization card[s] interferes with an election if the waiver is contingent upon pre-election support, the signing of authorization cards or a commitment to vote for the [u]nion." Id. at 15. In contrast to Savair, the RD found that AFGE's offer of rebates was not conditioned on its winning the election. The RD also noted that the National Labor Relations Board and Federal courts have interpreted Savair to apply to waivers of initiation fees closely tied to campaign periods or elections. He found that, unlike the waiver of initiation fees in Savair, AFGE's rebate offer was an ongoing practice, not tied to the campaign or the election results. The RD concluded that the rebate offer did not interfere with voters' free choice in the election and the RD overruled the objection.
III. Application for Review
NFFE contends that the RD's rejection of Objection II failed to properly consider the "ramifications" that misinformation about loss of AFGE life insurance would have if it were conveyed to employees shortly before the election. Application at 3. As to Objection III, NFFE maintains that it was "continuously" denied access to Hangar 47. Id. With regard to Objection IV, NFFE "totally disagrees" with the RD's conclusion that destruction of its literature by AFGE stewards had minimal impact on the election. Id. In NFFE's view, the RD could not reasonably measure the damage done to its campaign by the destruction of "hundreds of pieces" of campaign literature. Id.
NFFE argues, concerning Objection VI, that, if the RD had conducted "a thorough investigation[,]" then he would have found that NFFE was denied access to numerous bulletin boards on which employees post personal notices. Id. at 4. As to Objection IX, NFFE contends that the RD failed to consider the damage the labor relations specialist's statement would cause when disseminated in a "behind the scenes campaign." Id.(4) With regard to Objection X, NFFE asserts that, although it advised an FLRA representative that a particular AFGE steward was electioneering at a polling site, the FLRA employee took no action. Concerning Objection XII, NFFE disagrees with the RD's interpretation of Savair and contends that AFGE's offer of money to join the union interfered with employees' free choice.
IV. Analysis and Conclusions
We construe NFFE's arguments as contentions that we should grant review of the RD's decision under 5 C.F.R. § 2422.17(c)(1) and (c)(4) because it: (1) raises a substantial question of law or policy, in that it is either unsupported by, or departs from, Authority precedent; and (2) is clearly erroneous on substantial factual issues, and such errors prejudicially affect NFFE's rights. We conclude, for the following reasons, that no compelling reasons exist, within the meaning of section 2422.17(c) of the Authority's Rules and Regulations, for granting the application for review.
NFFE has not established that the RD's factual findings as to Objections II, III, IV, VI, IX, and X are clearly erroneous under section 2422.17(c)(4) of the Authority's Rules and Regulations. Under section 2422.21(b) of our Regulations, a party filing objections to an election has the burden of supporting its allegations of improper conduct and demonstrating that the conduct may have improperly influenced the election's results. See, for example, Fort Campbell Dependents Schools, Fort Campbell, Kentucky, 47 FLRA 1386, 1390 (1993).
NFFE's arguments do not address any factual errors on the part of the RD. Instead NFFE contends only that the RD erred in concluding that the evidence was insufficient to support NFFE's objections. We conclude that NFFE's assertions constitute mere disagreement with the RD's findings of fact, evaluation of the evidence, and conclusions based on those evaluations and provide no basis for granting review of the RD's decision. See, for example, U.S. Department of the Navy, Naval Station Ingleside, Texas, 46 FLRA 1011, 1025 (1992).
Finally, as to Objection XII, NFFE has failed to establish that the RD's conclusion that AFGE's rebate offer did not improperly influence the election results constitutes a departure from Authority precedent. In particular, we find that the RD's conclusion is consistent with our holding in Federal Deposit Insurance Corporation, Washington, D.C., 38 FLRA 952, 953 (1990). Accordingly, this contention provides no basis, within the meaning of section 2422.17(c), for granting the application for review.
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 non-supervisory Wage Grade employees employed in the Corpus Christi Army Depot, Corpus Christi, Texas.
Excluded: All Employees covered by exclusive recognition with NFFE Local 797 and other organizations with[in] the depot; all professional employees, management officials, employees engaged in Federal [p]ersonnel work in other than a purely clerical capacity, confidential employees, supervisors as defined in Public Law 95-454, temporary Wage Grade employees whose appointments do not exceed seven hundred (700) hours, and all non-professional GS employees employed by the Corpus Christi Army Depot and U.S. Army Aviation Systems Command (AVSCOM), Depot Engineering and RCM Support Office at Corpus Christi, TX.
RD's Decision at 2.
2. The election results were as follows:
Approximate number of eligible voters 1960
Void ballots 13
Votes cast for NFFE 564
Votes cast for AFGE 630
Valid votes counted 1194
Challenged ballots 0
Valid votes plus challenged ballots 1194
Id. at 2.
3. NFFE does not seek review of the RD's findings on Objections I, VII, and XI. Further, although NFFE indicated in its application that it would discuss Object