49:1391(125)RO - - SSA and AFGE and NFFE - - 1994 FLRAdec RP - - v49 p1391
[ v49 p1391 ]
The decision of the Authority follows:
49 FLRA No. 125
FEDERAL LABOR RELATIONS AUTHORITY
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
(Labor Organization/Incumbent Intervenor)
DECISION AND ORDER ON APPLICATION FOR REVIEW
June 21, 1994
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 National Federation of Federal Employees (NFFE or Incumbent) under section 2422.17(a) of the Authority's Rules and Regulations. The Activity filed a opposition to NFFE's application for review.
After an election between the American Federation of Government Employees, AFL-CIO (AFGE) and NFFE, where 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 conclude that NFFE has not demonstrated that review of the RD's decision is warranted. Accordingly, we will deny the application for review.
II. Background and Regional Director's Decision
Under an Agreement for Consent Election approved by the RD, an election by mail ballot was conducted during the period of October 13 through November 15, 1993.(1) AFGE received a majority of the valid votes counted.(2) Following the election, NFFE filed 13 objections to conduct by the Activity alleged to have improperly affected the results of the election. The RD investigated the objections. Set forth below are the RD's findings and conclusions concerning the six objections which are addressed by NFFE's application for review.(3)
A. Objection No. 1
On September 24, 1993, Social Security Administration (SSA) inappropriately engaged in collective bargaining with AFGE over access to the NFFE bargaining unit.
RD's Decision at 2.
The RD noted that NFFE submitted no evidence to support its claim that the Activity bargained with AFGE over access to Activity premises during the election campaign. According to the RD, the investigation revealed that there was no pre-election agreement concerning access to Activity premises during the election campaign. Rather, the RD found that on October 12, 1993, the Activity informed both parties that, prior to the upcoming election, each would be allowed to distribute literature at Activity offices within prescribed time periods. The RD also found that on October 15, 1993, the Activity provided the parties with a document entitled "'Election Groundrules'" which provided that each union would be given access to the breakroom in each facility for one day, between October 18, 1993 and October 29, 1993. Id. at 3. The RD concluded that the ground rules issued on October 12 and 15, 1993, which governed access to Activity facilities during the campaign, were not negotiated with either AFGE or NFFE. Accordingly, in the absence of evidence supporting NFFE's claim, the RD overruled the objection.
B. Objection No. 2
On October 8th, 12th, and 15th, 1993, SSA unilaterally changed conditions of employment regarding access to the NFFE bargaining unit by NFFE representatives.
Id. at 3.
According to the RD, the evidence established that on October 12 and 15, 1993, the Activity unilaterally implemented election ground rules restricting NFFE's and AFGE's access to Activity facilities to the week of October 18-29, 1993. However, relying on U.S. Department of Defense, National Guard Bureau, North Carolina Air National Guard, Charlotte, North Carolina, 48 FLRA 1140 (1993), the RD found that the Activity was not obligated to bargain over procedures to govern campaign activities due to the pendency of a question concerning representation (QCR). Accordingly, the RD overruled the objection.
C. Objections Nos. 3, 4, and 5 (4)
3. NFFE representatives were denied access to nine (9) Atlanta offices during the week of October 12, 1993. AFGE was allowed access the week of October 18, 1993.
4. NFFE was denied access to three (3) Memphis [o]ffices the week of October 12, 1993.
5. NFFE was denied access to Ft. Mitchell Kentucky on October 14, 1993. However, AFGE was granted access on October 21, 1993.
RD's Decision at 4.
The RD found that, contrary to NFFE's contentions, the Activity did not improperly deny NFFE access to certain offices during the week of October 10-16, 1993. Rather, the RD found that after the issuance of the October 12 and 15, 1993, ground rules, neither NFFE nor AFGE was allowed access to campaign at the 16 SSA offices in question during that week. The RD found that, although AFGE campaigned at those offices during the following week and NFFE did not, the evidence clearly established that NFFE was "given the same ground rules as AFGE, [but] chose not to avail itself of the opportunity to campaign inside the 16 SSA offices in question from October 18-29, 1993." Id. at 6.
Moreover, the RD found that, even if the Activity's restriction of NFFE's access to certain offices during the week of October 10-16, 1993, occurred as NFFE alleged, it was not of sufficient significance to set aside the election. In this connection, the RD found that there was no evidence that AFGE was allowed access to the offices in question to campaign during the week of October 10-16, 1993, and that, throughout the campaign, NFFE had access to employees at those offices. Accordingly, the RD overruled the objections.
D. Objection No. 6
During the week of October 18, 1993, in Muncie, Indiana, Madison, Indiana, Galveston, Texas and Angelton, Texas agency management ordered the removal of NFFE election material from Union-negotiated bulletin boards.
Id. at 6.
The RD found that the Activity did remove NFFE campaign literature from NFFE bulletin boards at the offices specified in the objection, but that "all of the campaign material was reposted on NFFE bulletin boards within a few days or, in some cases, within a few hours." Id. at 7. Relying on U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas, 48 FLRA 959, 962 (1993) (Corpus Christi Army Depot), the RD found that "the temporary removal of NFFE campaign literature did not interfere with or improperly affect the results of [the] election." RD's Decision at 7. The RD concluded that because the Activity took timely action to repost the election material, the restriction of NFFE's access to bulletin boards was isolated, and AFGE was not given any advantage over NFFE regarding access to bulletin boards. Accordingly, the RD overruled the objection.
III. Positions of the Parties
With respect to Objections 1 and 2, NFFE does not dispute the RD's conclusion that the Activity had no duty to bargain with the Union over procedures to govern campaign activities during the pendency of a QCR. However, NFFE claims that the Activity's unilateral change in ground rules regarding access to Activity facilities had an adverse impact on its campaign strategy. In particular, NFFE alleges that the ground rules were changed to accommodate AFGE's request for access to SSA employees. In support, NFFE claims that the ground rules implemented by the Activity on October 15, 1993, were exactly the same as the ground rules proposed by AFGE.
As to Objections 3, 4, and 5, NFFE contends that the Agency's restriction on office access to the period of October 18-29, 1993 was "arbitrary and capricious[.]" Application at 2. In this connection, NFFE claims that, although it was denied access to Activity facilities, AFGE was not. Moreover, with respect to Objection 6, NFFE argues that the Activity's removal of certain campaign information from NFFE bulletin boards between October 18-20, 1993, "came at a crucial time of the election campaigns[.]" Id. at 3. NFFE contends that this conduct had an "adverse affect on the election results." Id.
Finally, NFFE asserts that the totality of the original objections, "[s]pecifically . . . the [RD's] findings on objections 1 through 6[,]" had a significant impact on the results of the election. Id. In this regard, NFFE asserts that "[w]hile each objection in and of itself may be excused," the Activity's actions occurred simultaneously, and at such a critical time in the mail ballot process that their "damage to NFFE was irreparable." Id. at 3, 4.
The Activity contends that NFFE has not established a compelling reason within the meaning of section 2422.17(c) of the Authority's Rules and Regulations, for granting the application for review.
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 these contentions do not provide a basis for granting the application for review.<