50:0164(31)RO - - National Parks Service, Santa Monica Mountains Recreation Area, Agoura Hills, CA and Laborers' International Union of North America - - 1995 FLRAdec RP - - v50 p164



[ v50 p164 ]
50:0164(31)RO
The decision of the Authority follows:


50 FLRA No. 31

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. NATIONAL PARK SERVICE

SANTA MONICA MOUNTAINS RECREATION AREA

AGOURA HILLS, CALIFORNIA

(Activity)

and

LABORERS' INTERNATIONAL UNION OF

NORTH AMERICA, AFL-CIO

(Labor Organization/Petitioner)

SF-RO-30074

_____

DECISION AND ORDER ON REVIEW

February 24, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

In U.S. National Park Service, Santa Monica Mountains Recreation Area, Agoura Hills, California, 49 FLRA 1596 (1994) (NPS, Agoura Hills), the Authority granted the Union's application for review of the Regional Director's (RD's) Decision and Order on Objection and Determinative Challenged Ballots(1) as to the following issues:

(1) Whether two employees who were absent from the worksite on the day of the election because they were away on training were improperly deprived of the opportunity to vote and, if so, whether the election should be set aside; [and] (2) Whether, noting the definition of "firefighter" under section 7103(a)(17) of the Statute, the individual whose ballot challenge was sustained by the [RD] is a supervisor of a unit which includes firefighters within the meaning of section 7103(a)(10) of the Statute. NPS, Agoura Hills, 49 FLRA at 1597. Subsequently, the Union filed a supplemental brief and the Activity filed a brief in opposition to the Union's application for review.

For the reasons set forth below, we remand the case to the Regional Director to: (1) reconsider and explain, based on record evidence, his conclusion on the issue whether the Activity acted in bad faith when it deprived two employees of the opportunity to vote; and (2) determine whether employee Charles Whitman devotes a preponderance of his employment time to exercising supervisory authority within the meaning of section 7103(a)(10) of the Statute.

II. Background and Acting Regional Director's Decision

By direction of the RD, an election was conducted among the nonprofessional employees of the Activity. Employees assigned to two locations received mail ballots. All other eligible employees were given the opportunity to vote by manual ballot on September 23, 1993.(2) Of the 35 valid votes counted, 17 were cast for the Union and 15 were cast against exclusive recognition. The ballots cast by three employees were challenged by the RD's agent on the basis that they were supervisors and, therefore, were not eligible to vote in the election. The challenged ballots were sufficient in number to affect the results of the election.

The Activity filed a timely objection to the procedural conduct of the election. In support of its objection, the Activity submitted the names of several employees who allegedly should have been, but were not, afforded an opportunity to vote.

A. Objection to the Election

As relevant here, the RD found that two employees who were on training assignments away from their regular work stations on September 23, the date of the manual balloting, were improperly deprived of the opportunity to vote.(3)

The RD found that two questions--whether accommodation must be made for all eligible voters and when an election must be rerun because eligible voters have been deprived of the opportunity to vote--had not been ruled on under the Federal Service Labor-Management Relations Statute (the Statute) or under Executive Order 11491. In deciding these questions, the RD considered the standard for conducting elections established by the National Labor Relations Board (NLRB) under the National Labor Relations Act.

Adopting and relying on the standard set forth in Republic Electronics, Inc., 266 NLRB 852 (1983) (Republic Electronics) and Versail Manufacturing, Inc., 212 NLRB 592 (1974) (Versail Mfg.), the RD stated that an election will be set aside on the basis of an objection to the conduct of the election where: (1) a party to the election (the agency or activity, the union, or an Authority agent) causes an employee to miss the opportunity to vote; (2) the vote could be determinative of the outcome of the election; and (3) the employee was deprived of the opportunity to vote through no fault of his or her own. The RD also stated, however, that where the objection is filed by the party responsible for the deprivation, the objection will be found not to have merit if there is evidence that the objecting party acted in bad faith in depriving an employee of the opportunity to vote.

Applying this standard, the RD found that: (1) the Activity sent the two employees on training assignments away from their regular work stations on the day of the election and thus caused them to miss the opportunity to vote; (2) the votes of the two employees could be determinative of the outcome of the election; and (3) the two employees were deprived of the opportunity to vote through no fault of their own. The RD also found that there was no evidence that the Activity, the objecting party, acted in bad faith in depriving the employees of the opportunity to vote. The RD sustained the Activity's objection and found that the election must be rerun if, after outstanding challenged ballot issues were resolved, the votes of the two employees could be determinative of the results of the election.

B. Challenged Ballot

As relevant here,(4) the RD found that Charles Whitman is a park ranger who, during the fire season (May-November), is in charge of a crew of three seasonal workers, also classified as park rangers. During this period, Whitman trains his crew, assigns work to, and often works side by side with, the crew, and evaluates them individually on a monthly basis. Whitman's year-end appraisals of his crew members are reviewed by the Fire Manager, who uses the appraisals to decide whether the employees are recommended for rehire.

The RD found that Whitman "act[s] independently in evaluating employees' performance and preparing [their] year-end review" and that his evaluations are relied on by upper-level management "in the hiring process, a supervisory indicia described in section 7103(a)(10) of the Statute."(5) RD's Decision at 6. The RD concluded that Whitman is a supervisor in charge of the crew of seasonal employees during the fire season. The RD rejected the Union's argument that Whitman is a firefighter and, as such, is a supervisor under section 7103(a)(10) only if he spends a preponderance of his employment time exercising supervisory authority. The RD concluded that Whitman is "more akin to those [F]ederal employees who are not firefighters and to those [F]ederal employees who have subordinates on a seasonal basis" and, therefore, it is not appropriate to apply the specialized definition of section 7103(a)(10) to Whitman. Id. at 10. The RD did not discuss whether Whitman or any member of the crew of seasonal employees is a "firefighter" within the meaning of section 7103(a)(17) of the Statute.

Finally, relying on United States Department of Agriculture, Forest Service, Intermountain Region, Challis National Forest, 23 FLRA 349 (1986) (Challis National Forest), the RD concluded that although Whitman exercises supervisory authority only during the fire season, Whitman was ineligible to vote in this case because the election took place during that season.

III. Positions of the Parties

A. Union

1. Opportunity of Eligible Employees to Vote

According to the Union, the Activity's bad faith in depriving two employees of the opportunity to vote is established because the Activity knew, before the RD ordered the election, that the two employees would be absent and failed to inform the RD about the two employees. The Union also argues that resolution of the issue of the Activity's bad faith warranted a hearing.

2. Meaning of the Term "Firefighter"

The Union contends that Whitman is a firefighter within the meaning of the Statute and that, therefore, it is necessary to determine whether he devotes a preponderance of his employment time to exercising supervisory authority under section 7103(a)(10) of the Statute. The Union also contends that the RD erred in finding that Whitman exercises supervisory authority under section 7103(a)(10) because the RD "made no conclusive finding that Whitman's evaluation is determinative in the rehire of seasonal firefighters." Brief at 2. Finally, the Union argues that resolution of this issue warranted a hearing.

B. Activity

1. Opportunity of Eligible Employees to Vote

The Activity asserts that it did not act in bad faith when it sent the two employees on training assignments and notes that the RD did not request information prior to the election as to the availability of any employees to vote.

2. Meaning of the Term "Firefighter"

The Activity argues that Whitman is classified as a park ranger and that the RD was correct in finding that he is not a firefighter for purposes of determining whether he is a supervisor under the Statute. The Activity asserts that the RD properly concluded that Whitman is a supervisor during the seasonal periods in which he is in charge of a fire crew.

IV. Analysis and Conclusions

A. Opportunity of Eligible Employees to Vote

The accommodation of eligible voters and the rerunning of elections when eligible voters have been deprived of the opportunity to vote are issues that have not previously been addressed under the Statute or Executive Order 11491. On consideration, in agreement with the RD, we adopt the standard of the NLRB and we will apply the standard to this and future representation election cases.(6)

Under this standard, an objection alleging that eligible employee(s) have been deprived of the opportunity to vote will be sustained and an election set aside if: (1) a party to the election caused the employee(s) to miss the opportunity to vote; (2) the vote(s) of the employee(s) would be determinative; and (3) the employee(s) were deprived of the opportunity to vote through no fault of their own.(7) However, if the objection is filed by the party responsible for the deprivation, the objection will be dismissed if the objecting party acted in bad faith in depriving the employee(s) of the opportunity to vote.

The RD found that: (1) a party to the election caused the two employees on training assignments to miss the opportunity to vote; (2) their votes could be determinative of the outcome of the election; and (3) the employees were deprived of the opportunity to vote through no fault of their own. These findings are undisputed. However, the RD provided no reasons for his disputed finding that the Activity did not act in bad faith when it deprived the two employees of the opportunity to vote. For example, the RD did not discuss what weight he gave to the undisputed finding that the training assignments that deprived the two employees of the opportunity to vote had been approved by the Activity before the RD ordered the election, and the Activity did not notify either the Union or the RD "so that arrangements to accommodate this absence could be made." RD's Decision at 5.

Accordingly, we remand this case to the RD to reconsider and explain, based on record evidence, his conclusion on the issue whether the Activity acted in bad faith when it deprived two employees of the opportunity to vote. In carrying out this direction, the determination whether further investigation or a hearing is warranted will be made by the RD. See U.S. Department of Agriculture, Forest Service, Apache-Sitgreaves National Forest, Springerville, Arizona, 47 FLRA 945, 951-52 (1993). If the RD determines that the Activity did not act in bad faith, the Authority's standard set forth above for setting aside the election will have been met, but the election will only be set aside if the votes could be determinative. If the RD determines that the Activity did act in bad faith, then the objection should be overruled, in which case the election results will be determined by opening and counting the ballots of Peleszak and Stout and, if the RD determines that he is not a supervisory firefighter, also the ballot of Whitman.

B. Meaning of the Term "Firefighter"

We agree with the RD's finding that Whitman exercises supervisory authority within the meaning of section 7103(a)(10) of the Statute over seasonal employees during the fire season.(8) The Union has not shown that any of the facts relied on by the RD in making this finding were erroneous; the Union merely disagrees with the RD's findings of fact, evaluation of the evidence, and conclusion based on that evaluation. Social Security Administration, 49 FLRA 1391, 1396 (1994).

However, we find that the RD erred in failing to find that Whitman and the crew members are firefighters, as defined in section 7103(a)(17), and, as a result, in failing to apply the preponderance test set forth in the portion of section 7103(a)(10) to determine Whitman's supervisory status. Section 7103(a)(17) of the Statute defines the term "firefighter" as "any employee engaged in the performance of work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment[.]" We conclude that this same meaning applies to the term "firefighters," as used in the definition of the term "supervisor" under section 7103(a)(10) of the Statute.

The RD found, and it is undisputed, that during the fire season, Whitman assigns work to and trains his crew in the safe use of fire equipment, and works side by side with his crew in performing duties that relate to fire suppression. Accordingly, we find that Whitman and the crew members are firefighters within the meaning of section 7103(a)(17) of the Statute, and the issue of Whitman's supervisory status must be determined based on the definition of supervisor in that portion of section 7103(a)(10) of the Statute which concerns a bargaining unit including firefighters.

As the RD did not reach this issue, we remand the case to the RD to determine whether Whitman devotes a preponderance of his employment time to exercising supervisory authority. In making that determination, we direct the RD to take into account only Whitman's duties during the fire season while Whitman is in charge of seasonal employees. See Challis National Forest. Whether Whitman's ballot will be opened and counted will be decided by the RD's determination, subject to any application for review.

V. Order

We remand the case to the Regional Director to: (1) reconsider and explain, based on record evidence, his conclusion on the issue whether the Activity acted in bad faith when it deprived two employees of the opportunity to vote; and (2) determine whether employee Charles Whitman devotes a preponderance of his employment time to exercising supervisory authority within the meaning of section 7103(a)(10) of the Statute. The Regional Director shall thereafter issue a new decision and order.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The decision was signed by an Acting Regional Director.

2. Unless otherwise specified, all dates refer to 1993.

3. On July 16, the Activity had approved training for one employee to be conducted in San Francisco from September 21 through 24, and on August 19, the Activity had approved training for the other employee to be conducted in Hawaii from September 12 through 24.

4. Although the ballots of three employees were challenged, the RD's finding that ballots of two of the employees (Christine Peleszak and Ted Stout) should be opened and counted was not disputed.

5. Section 7103(a)(10) of the Statute provides:

'supervisor' means an individual employed by an agency having authority in the interest of the agency to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment, except that, with respect to any unit which includes firefighters or nurses, the term 'supervisor' includes only those individuals who devote a preponderance of their employment time to exercising such authority[.] (Emphasis added.)

6. See Republic Electronics; and Versail Mfg. See also Berryfast, Inc., 265 NLRB 82 (1982); and Yerges Van Liners, Inc., 162 NLRB 1259, 1260 (1967).

7. Although not an issue in this case, we would not, for example, set aside an election where an employee was unable to vote because of sickness or any other unplanned occurrence which, while beyond the control of the employee, was not caused by one of the parties or the FLRA. See Versail Mfg., 212 NLRB at 593.

8. The RD was correct in finding that seasonal supervisors are excluded from