Army and Air Force Exchange Service, Dallas, Texas and National Association of Government Employees and National Federation of Federal Employees

[ v55 p1239 ]

55 FLRA No. 199

ARMY AND AIR FORCE EXCHANGE SERVICE
DALLAS, TEXAS
(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
(Labor Organization/Respondent)

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
(Labor Organization/Petitioner)

DA-RP-80024

_____

DECISION AND ORDER ON REVIEW

January 18, 2000

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I.     Statement of the Case

      This case is before the Authority on an application for review filed by National Federation of Federal Employees (NFFE), under section 2422.31 of the Authority's Regulations, seeking review of the Regional Director's (RD) Decision and Order on Objections to Election. The National Association of Government Employees (NAGE) filed an opposition to the application. The RD dismissed NFFE's objections to the conduct of the election.

      For the reasons set forth below, we deny the application.

II.     Background and RD's Decision

      NAGE filed a petition seeking an election in a unit represented by NFFE. The parties were unable to agree to the date, time, and method of election, and the RD issued a Direction of Election, providing that a mail ballot election would be conducted on February 23, 1999. See Direction of Election at 2 (Application, Attachment 6, NFFE's original Exceptions to Election at Attachment 7). Approximately 862 employees were eligible to vote, and 98 votes were cast. A majority of the valid votes counted were cast for NAGE. NFFE filed objections to the conduct of the election, asserting that the election should be set aside on three grounds. The RD overruled all of NFFE's objections.

      First, the RD rejected NFFE's claim that he had erred in ordering a mail ballot election over the objections of the parties. In dismissing NFFE's objection, the RD relied on section 2422.16(b) of the Authority's Regulations, which provides that Regional Directors will resolve disagreements over election procedures. The RD found that although the Office of General Counsel, Representation Case Handling Manual (Representation Manual) provides that manual ballot elections are encouraged, there is no requirement that parties must agree to a mail ballot in order for the RD to authorize such an election. [n1]  The RD explained that the Representation Manual sets out guidelines for the RD to consider in deciding whether to conduct a mail or manual ballot election, and that two of those considerations -- the location and size of the unit and the availability of regional resources -- warranted a mail ballot election in this case.

      Second, the RD rejected NFFE's claim that the Regional Office failed to comply with 5 C.F.R. § 2422.23(b) because it did not send the Notices of Election (notices) in a timely manner, and because the Agency did not receive sufficient notices at the Fort Sill [ v55 p1240 ] location until after the ballots had been mailed to employees. [n2]  Based on an investigation, the RD found that the notices were initially posted on February 23, 1999 -- the same day that the mail ballots were mailed to employees -- and that the additional notices requested and received by the Agency at the Fort Sill location were posted by February 25, 1999. Finding no evidence was presented demonstrating that any employee was denied the opportunity to vote because of a delay, the RD dismissed the objection.

      Finally, the RD rejected NFFE's claim that the Agency violated section 7116(a)(1) and (3) of the Federal Service Labor-Management Relations Statute (Statute) by distributing NAGE flyers in an employee break room. [n3]  Based on an investigation, the RD found that the evidence did not demonstrate that the Agency distributed NAGE flyers. The RD found that "the evidence show[ed] that the Agency had no knowledge of NAGE's action in placing literature in the break room[,]" and dismissed NFFE's final objection. RD's Decision at 5.

III.     Positions of the Parties

A.     NFFE's Application for Review

      NFFE claims that the Authority should grant review under 5 C.F.R. § 2422.31(c)(1), (c)(3)(i), (ii) and (iii), overturn the RD's decision, and order another election. NFFE objects to the RD's decision on the following grounds.

      First, NFFE asserts that the RD committed a prejudicial procedural error in ordering a mail ballot election. NFFE argues that, pursuant to section 28.19 of the Representation Manual, mail ballot elections must be agreed to by the parties, and that in this case, "[t]he parties all objected to the mail ballot." Application for Review at 1-2. NFFE further argues that although it requested additional time to inform employees about the election, the RD ordered the mail ballots to be sent out on February 23. In this connection, NFFE also claims that the number of actual voters is not a representative number of the eligible voters, and that had there been an on-site election, a greater number of employees would have voted.

      Second, NFFE claims that the RD erroneously found that the notices were timely mailed and posted as required by the Authority's Regulations and the Representation Manual. Citing the letter that was mailed with the notices, NFFE asserts that the notices were mailed on February 22 and that the ballots were mailed on February 23. As such, NFFE argues the notices could not have been posted prior to the ballots being mailed as required by section 2422.23(b) of the Authority's Regulations and section 33.5.2 of the Representation Manual.

      Finally, NFFE claims that the RD erred in finding that the Agency did not violate section 7116(a)(1) and (3) of the Statute by distributing NAGE flyers in the employee break room at the Fort Sill location. NFFE asserts that an Agency supervisor informed NFFE members that a Human Resources representative left NAGE election literature in the break room.

B.     NAGE's Opposition

      First, NAGE asserts that neither the Statute nor the Authority's Regulations require a manual ballot election. NAGE claims that section 28.19 of the Representation Manual, relied on by NFFE, does not require a manual ballot election in the situation presented, and that, in any event, the Representation Manual is not binding. NAGE also asserts that NFFE specifically requested that a mail ballot election be conducted, and as such, should not be permitted to object at this time.

      Second, NAGE asserts that NFFE's claim that election notices were not posted prior to the election is false. According to NAGE, proper notices were posted at all locations, and the additional notices sent to the Fort Sill location were posted no later than February 25, 1999.

      Finally, NAGE asserts that NFFE's allegation that the Agency failed to remain neutral during the election process is a challenge to the RD's factual findings. Opposition at 3. NAGE claims that the RD properly concluded that the evidence did not support NFFE's allegation. [ v55 p1241 ]

IV.     Analysis and Conclusions

A.     The RD Did Not Commit a Prejudicial Procedural Error in Ordering a Mail Ballot Election

      Section 2422.16(b) of the Authority's Regulations provides that, "[i]f the parties are unable to agree on . . . [the] method of election . . . the Regional Director will decide" the procedure to be used. As plainly worded, section 2422.16(b) affords an RD the discretion to establish the method of election where parties are not able to agree to those procedures on their own.

      Here, the parties were unable to agree to the method of election. The record indicates that NFFE sought a mail ballot, while NAGE and the Agency sought a manual election. Contrary to NFFE's assertions, the parties did not all object to a mail ballot. Consistent with section 2422.16(b), the RD in this case had the discretion to direct a mail ballot election where the parties were unable to agree to the method of election.

      NFFE maintains, however, that section 28.19 of the Manual required that a manual election be conducted because the parties could not agree to a mail ballot election. NFFE's argument ignores the discretion afforded an RD in 5 C.F.R. § 2422.16(b), and fails to recognize that the Representation Manual does not create enforceable procedural rights beyond the rights set out in the regulations. In this regard, the Manual explicitly states in the foreward that "[t]he guidelines included in this Manual are not rulings, directives, or procedural rules that are binding on the General Counsel or the Authority." Manual at i.

      Thus, regardless of whether or not the Representation Manual provides for a manual ballot election in this case, the Manual would not eliminate the discretion afforded the RD by the regulations. In addition, NFFE's claims regarding the low percentage of voters and the RD's denial of its request for additional time do not establish that the RD committed a prejudicial procedural error in ordering a mail ballot election. As it was within the RD's discretion under 5 C.F.R. § 2422.16(b) to determine that a mail ballot election was appropriate in this case, there is no basis for concluding that the RD erred in doing so.

      Accordingly, we conclude that the RD did not commit a prejudicial procedural error in ordering a mail ballot election.

B.     The RD Did Not Commit a Clear and Prejudicial Error Concerning a Substantial Factual Matter in Determining the Notices of Election Were Posted on the Date the Mail Ballots Were Mailed to Eligible Voters

      Section 2422.23(b) of the Authority's Regulations provides that "[p]rior to the election a notice of election . . . will be posted by the activity . . . ." Based on his investigation, the RD found that the initial posting of the notices in this case was done on February 23, which was the same day that the mail ballots were mailed. The RD also found that the additional notices requested for the Fort Sill location were posted on February 25, and that all the notices remained posted during the full election period.

      NFFE contends that the election notices were not timely mailed and posted. While NFFE asserts that it is impossible for the notices to have been mailed on February 22 and posted on February 23, NFFE offers no evidence to support its assertion, and provides no evidence demonstrating that the RD's factual findings in this regard are erroneous. There is, therefore, no basis for concluding that the election notices were not timely posted as required under 5 C.F.R. § 2422.23(b). See U.S. Department of the Navy, Naval Station, Ingleside, Texas and National Federation of Federal Employees, Local 797 and American Federation of Government Employees, Local 4057, AFL-CIO, 46 FLRA 1011, 1024-25 (1992) (Department of the Navy). Accordingly, we conclude that the RD did not commit a clear and prejudicial error concerning a substantial factual matter.

C.     The RD Did Not Commit a Clear and Prejudicial Error Concerning a Substantial Factual Matter in Determining That Agency Representatives Did Not Distribute NAGE Flyers

      The Statute provides that it is unlawful for an agency "to sponsor, control, or otherwise assist any labor organization, other than to furnish, upon request, customary and routine services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status[.]" 5 U.S.C. § 7116(a)(3).

      NFFE asserts that Agency representatives violated section 7116(a)(1) and (3) of the Statute by distributing NAGE flyers in an employee break room at the Fort Sill location. In support of its contention, NFFE offers two witness statements attached to NFFE's original exceptions to the election filed with the RD. See Application, Attachment 6, NFFE's original Exceptions to Election [ v55 p1242 ] at Attachment 8 and 9. Based on the RD's investigation of this allegation, including those statements, he found that, contrary to NFFE's assertions, the evidence did not demonstrate that the Agency distributed NAGE flyers. The RD further found that "the evidence shows that the Agency had no knowledge of NAGE's action in placing literature in the break room." Decision at 5.

      The two witness statements, standing alone, are insufficient to demonstrate that the RD's assessment of this evidence, in the context of his investigation, was incorrect. As the RD found that the Agency did not improperly distribute NAGE literature, and the evidence offered by NFFE is insufficient to support its claim to the contrary, there is no basis for concluding that the RD's determination is erroneous. See Department of the Navy, 46 FLRA at 1025. Accordingly, we conclude that the RD did not commit a clear and prejudicial error concerning a substantial factual matter.

Order

      The application is denied.



Footnote # 1 for 55 FLRA No. 199

   The RD cited Section 28.19 of the Representation Manual, entitled "Considerations in deciding the type of election," which provides the following:

The Authority's 1981 policy requires that manual [ballot] elections be held in multi-union elections unless the parties agree to a mail ballot election approved by the Regional Director. Manual ballot elections are encouraged in all elections, regardless of the number of labor organizations on the ballot (see [Representation Manual] 28.8). Regional Directors should consider the following in deciding whether to conduct a mail or manual ballot election:
a.     location and size of the voting unit; a mail ballot election is used if most of the employees in the unit are widely dispersed or whose work stations are in isolated or remote locations;
b.     significance of the election to the community;
c.     availability of regional resources; and
d.     other factors, such as temporary addresses, summer vacations, etc.

      Section 28.8 of the Manual, which is specifically referenced in section 28.19, further explains the Authority's 1981 policy as the following:

The Authority ordered that all multi-union elections should, to the extent possible, . . . provide for the casting of manual ballots unless the parties agree to a mail ballot procedure and the Regional Director approves such agreement. [Emphasis added].

      We note that, as NFFE does not rely on the 1981 policy as independent authority for its position, we do not address it further.


Footnote # 2 for 55 FLRA No. 199

   Section 2422.23(b) of the Authority's Regulations provides the following:

Prior to the election a notice of election, prepared by the Regional Director, will be posted by the activity in places where notices to employees are customarily posted and/or distributed in a manner by which notices are normally distributed. The notice of election will contain the detai