Department of the Interior, Bureau of Indian Affairs (Agency) and National Federation of Federal Employees, Council of Consolidated Locals, Bureau of Indian Affairs (Incumbent Labor Organization/Intervenor) and Indian Educators Federation, AFT, AFL-CIO (Labor Organization/Petitioner)

[ v56 p169 ]

56 FLRA No. 20

DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
(Agency)

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, COUNCIL OF CONSOLIDATED
LOCALS, BUREAU OF INDIAN AFFAIRS
(Incumbent Labor Organization/Intervenor)

and

INDIAN EDUCATORS FEDERATION
AFT, AFL-CIO
(Labor Organization/Petitioner)

WA-RP-80095

_____

ORDER DENYING APPLICATION FOR REVIEW

March 20, 2000

_____

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

I.     Statement of the Case

      This case is before the Authority on an application for review filed by the incumbent National Federation of Federal Employees, Council of Consolidated Locals, Bureau of Indian Affairs (NFFE) under section 2422.31(c) of the Authority's Regulations. [n1]  NFFE's application challenges the Regional Director's (RD) Decision and Order overruling its objections to an election. Neither Petitioner Indian Educators Federation (IEF) nor the Bureau of Indian Affairs (BIA or Agency) filed an opposition.

      For the following reasons, we deny the application for review.

II.     Background and the RD's Decision and Order

A.     Background

      NFFE is the incumbent representative of a nationwide consolidated bargaining unit of professional and nonprofessional employees of the BIA. The unit is composed of approximately 7,000 employees who are located at approximately 120 facilities spread out over several states. IEF filed a petition for a representation election in the unit and, pursuant to a consent agreement, a mail ballot election was conducted. As a result of that election, IEF received 1,008 votes and NFFE received 629 votes out of 1,736 votes cast. There were 99 votes for no union. NFFE filed 20 numbered objections to the election with the RD. [n2]  In his Decision and Order, the RD overruled all of NFFE's objections.

B.     RD's Decision and Order

      The RD described the bulk of NFFE's objections (Objections 1-16, 19-20) as falling into two categories, namely, that the Agency violated: (1) its obligation to remain neutral during an election campaign between two unions seeking to represent its employees, see Department of the Army Headquarters, Washington, D.C. and U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, 29 FLRA 1110 (1987); or (2) limitations on its ability, under section 7116(a)(3), to provide customary and routine services and facilities to a union if the services and facilities are also furnished on an impartial basis to other organizations having equivalent status, see United States Department of Defense, Department of the Army, United States Army Air Defense Center and Fort Bliss, Fort Bliss, Texas, 29 FLRA 362 (1987) (Fort Bliss). See RD's Decision at 12-13.

      According to the RD, NFFE's objections concerning the Agency's interference in the election involved specific claims that the Agency: (1) permitted IEF representatives to conduct campaign activities in work areas during work and non-work hours and by encouraging unit employees to attend, or facilitating their attendance at, IEF meetings; (2) allowed IEF to use Agency bulletin boards to post, and by itself distributing, IEF campaign materials; (3) made statements which demonstrated a preference for IEF; (4) allowed IEF to use its internal mail system to deliver campaign flyers; (5) allowed IEF to use the Agency's phone system for campaign purposes; and (6) disseminated false information [ v56 p170 ] with respect to IEF's equivalent status. In support of these objections, NFFE presented statements by employees who claimed to have observed the activities to which it objected, or who had had those activities reported to them, and various documents.

      The RD found that the evidence presented by NFFE did not support its claims as to improper conduct by the Agency that would have affected the results of the election. In particular, as to the objections regarding campaign activities during work time, the RD concluded that Agency management had not violated its obligation of neutrality or favored IEF over NFFE. With respect to the objections concerning bulletin boards, the RD found that both unions were provided equal access to Agency facilities for posting campaign materials and that improperly posted materials were removed by the Agency. Concerning the objections as to management statements, the RD found no evidence of any statements that "could reasonably be interpreted as a management endorsement of IEF or a threat against NFFE supporters." RD's Decision at 19.

      As to the specific objections concerning the internal mail system, the RD found that the Agency did not treat IEF and NFFE differently with respect to the use of that system and there was no evidence that the Agency had knowledge of or condoned the use of the mail boxes for the distribution of IEF materials. With respect to the objections concerning the phone system, the RD found that there was no evidence that the Agency permitted "IEF non-employee representatives or employee supporters of IEF to solicit employees by phone during work time." Id. at 23. Finally, with respect to the objection claiming that the Agency misstated its obligations as to unions with equivalent status, the RD found that, in the absence of any evidence that the message was intended to, or did in fact, breach the Agency's required neutrality, the issuance of the message itself "is insufficient to constitute objectionable conduct." Id. at 28. Consequently, the RD overruled these objections.

      One of the two remaining objections (Objection 17), concerned an allegation by NFFE that Agency management allowed inaccurate information about IEF's ability to negotiate wages for wage grade employees to be distributed to those employees. The RD noted that, in assessing the propriety of campaign materials and statements, the Authority examines, among other things, whether there was insufficient time for the complaining party to respond to the disputed material or statements. The RD found that NFFE had "published and distributed an effective reply in its newsletter prior to the election," and, consequently, overruled the objection. Id. at 25.

      The other remaining objection (Objection 18) concerned NFFE's claim that management failed to provide correct addresses for bargaining unit employees such that a "significant number" of employees did not receive a mail ballot. Application for Review at 20. According to the RD, NFFE presented no evidence that any employees had failed to receive a ballot or were unable to vote. In the absence of any evidence that employees had failed to receive a ballot package, or that the procedures used in the election were deficient, the RD overruled this objection.

      After reviewing all of NFFE's objections, the RD concluded that NFFE had not established any objectionable conduct that warranted the setting aside of the election in this case.

III.     Applicant's Position

      In its application for review, NFFE states that it "takes strong exception" to the "convoluted methods" used by the Regional Director in the investigation of its objections to the election, citing particularly the RD's investigation into Objections 1-17, and 19. Application for Review at 4. Specifically, NFFE claims that the RD did not thoroughly investigate its objections. According to NFFE, it provided the RD with the names of more witnesses than those who were interviewed by the RD. NFFE also contends that the RD misinterpreted the statements of those witnesses that were interviewed or took their statements out of context or ignored them altogether. Further, NFFE claims that the RD used statements which were not signed by the witnesses who made them, ignored corrections that were made in statements, and failed to return corrected statements for signature by the witnesses. NFFE claims that the RD's conduct of the investigation amounted to "gross negligence." Id. at 23.

      NFFE also contends that the RD erred in resolving its objection to the conduct of the mail ballot election, referring in particular to the RD's consideration of Objection 18. Specifically, NFFE argues that the RD should not have mailed ballots to an Agency facility and depended on Agency officials to distribute those ballots. According to NFFE, the manner in which the RD handled mail ballots compromised the integrity of the election.

      Finally, NFFE contends that, in disposing of its objections, the RD misapplied Fort Bliss, noting specifically the RD's consideration of Objections 3, 7, 10, 12, 13, and 20. According to NFFE, the RD improperly found that it was permissible for the Agency to allow IEF equal access to bulletin boards and the Agency's [ v56 p171 ] internal mail system. NFFE asserts that, under Fort Bliss, the Agency should not have granted IEF access to those systems because NFFE was entitled to such access under its contract with the Agency. Citing Article 6, Sections 3 and 5 of the parties' agreement, NFFE contends that if the RD had "read the Negotiated Agreement which was provided and had interviewed all NFFE witnesses, a different conclusion might have been achieved." Application for Review at 17. NFFE also contends that the RD erred in his disposition of its objection as to improper information regarding IEF's equivalent status provided by the Agency to management officials.

IV.     Analysis and Conclusions

A.     Conduct of the Investigation

      We construe NFFE's arguments concerning the RD's investigation into its objections to constitute a claim that the RD committed prejudicial procedural errors within the meaning of section 2422.31(c)(3)(ii). See United States Small Business Administration, District Office, Casper, Wyoming and Solidarity, U.S.A., 49 FLRA 1051, 1056-57 (1994) (Small Business Administration).

      Section 2422.30(a) of the Authority's Regulations states that the "Regional Director will make such investigation of the petition and any other matter as the Regional Director deems necessary." (Emphasis supplied). Given the Regional Director's discretion, NFFE bears the heavy burden of proving that the exercise of that discretion in the conduct of the investigation in this case resulted in prejudicial errors. [n3]  See, e.g., Department of Defense, Department of the Navy, Naval Air Rework Facility (NAS), Norfolk, Virginia and National Association of Aeronautical Examiners and American Federation of Government Employees, Local 2225, AFL-CIO, 12 FLRA 164, 165 (1983) (party challenging conduct of election has burden of demonstrating investigation improper and that impropriety warrants further investigation of original objections).

      NFFE has failed to sustain its burden with respect to its contentions concerning its witnesses. In particular, as to its claim that the RD failed to interview all the witnesses named, NFFE did not describe the evidence that would have been provided by those witnesses or to identify the Agency facilities about which they would have testified. As a result, it is not possible to assess whether they would have provided information as to other incidents or other facilities than those discussed by the RD or merely recapitulated the evidence relied on by the RD. [n4]  Also in this regard, as noted above, the RD has discretion to determine the scope of the investigation of objections. The RD, therefore, is under no obligation to interview all of the witnesses provided by a party to a representation proceeding involving objections to an election.

      With respect to its claim that the RD misinterpreted witness statements or took them out of context, NFFE did not show: (1) the manner in which the RD improperly made findings or drew conclusions based on those statements; or (2) that, correctly understood, those statements would have led the RD to different conclusions as to its objections. Finally, concerning its claim as to the use of unsigned witness statements, NFFE does not demonstrate what evidence the corrected and signed statements would have contained or to show how that evidence would have required different findings or conclusions. In short, NFFE has failed to provide any basis for concluding that the RD's allegedly deficient investigation prejudiced its ability to substantiate its case or that the evidence that would have been provided in the absence of that deficient investigation would have been sufficient to warrant setting aside the RD's findings and conclusions. See Small Business Administration, 49 FLRA at 1060 (applicant did not show that evidence allegedly omitted by RD was sufficient to affect the results of her findings).

      Consequently, as to the RD's conduct of the investigation, we find that NFFE has not established grounds for review of the RD's Decision and Order under section 2422.31(c)(3)(ii) of the Authority's Regulations. [ v56 p172 ]

B.     Mail Ballot Election

      We construe NFFE's arguments concerning the RD's conduct of the mail ballot election to constitute a claim that the RD committed prejudicial procedural errors within the meaning of section 2422.31(c)(3)(ii).

      The mail ballot election in this case was conducted pursuant to a Consent Election Agreement to which NFFE was a party. NFFE has not claimed that the mail ballot procedures followed by the RD were inconsistent with that agreement. Moreover, as to NFFE's claim that ballots at "isolated boarding schools[,]" Application for Review at 20, were distributed by Agency officials, compromising the election, the RD specifically found that "NFFE submitted no evidence that any employees failed to receive a mail ballot in the subject election or that any employees were unable to vote." Decision and Order at 25. Consequently, NFFE has not demonstrated that it was prejudiced by the manner in which the RD conducted the mail ballot election and we find that, in this regard, NFFE has not established grounds for review of the RD's Decision and Order under section 2422.31(c)(3)(ii) of the Authority's Regulations.

C.     Improper Application of Authority Precedent

      We construe NFFE's arguments concerning Fort Bliss to constitute a claim that the RD's Decision and Order is reviewable under section 2422.32(c)(3)(I) because he failed to apply existing law. Succinctly stated, Fort Bliss stands for the proposition that an agency is not required to provide a union with equivalent status the same services and facilities that it provides an incumbent union under a collective bargaining agreement.

      As to the use of bulletin boards, the RD found that "[a]lthough there is no provision in the current NFFE contract for use of a bulletin board, BIA provided NFFE with bulletin board space at its facilities." Decision and Order at 17. Consequently, because the Agency provided NFFE with access to bulletin boards as a customary service, it was not inconsistent with Fort Bliss for the Agency to allow IEF, which possessed equivalent status, access to those bulletin boards as well. With respect to the incidents involving use of the Agency's internal mail, e-mail, and facsimile systems, the record indicates that NFFE is entitled to such use under its collective bargaining agreement with the Agency. The RD found, however, that any use of those systems by IEF was without the knowledge or approval of the Agency and NFFE has provided no evidence to contradict that finding. [n5]  Finally, as to information provided by the Agency regarding IEF's equivalent status, even assuming that it was inaccurately phrased under Fort Bliss, NFFE provides no evidence that management officials applied the memorandum in a manner that disadvantaged it in comparison with IEF. Consequently, NFFE has not demonstrated that the RD's findings and conclusions are inconsistent with Fort Bliss. Thus, we find that NFFE has not established grounds for review of the RD's Decision and Order under section 2422.31(c)(3)(I) of the Authority's Regulations.

V.     Order

      The application for review is denied.


APPENDIX

NFFE's objections to the election, grouped according to the RD's Decision and Order, are as follows:

Objection Nos. 1, 2, 4, 5, 6, and 11
1.     IEF Representatives and Bargaining Unit Supporters were allowed to campaign in work areas during working hours.
2.     IEF Representatives were also allowed to campaign in work areas during non-working hours.
4.     Management officials allowed IEF Representatives to conduct election campaign meetings and presentations during working hours.
5.     Management officials allowed IEF sponsored lunch meetings and/or presentations to extend beyond the normal lunch period time frames.
6.     Management officials encouraged and/or instructed Bargaining Unit Members to attend IEF sponsored meetings and/or presentations.
11.     Bargaining Unit Employees were allowed to use their government[-]issued credit cards to attend IEF/AFT training seminars on official time by Management officials. [ v56 p173 ]
Objection Nos. 3, 7, and 10
3.     Management officials allowed IEF Representatives to post campaign literature on official/non-official bulletin boards and walls.
7.     Management officials distributed and posted IEF campaign literature and IEF meeting announcements.
10.     NFFE Union Steward was informed by a Management official that NFFE negotiated bulletin board would be shared with IEF.
Objection Nos. 8, 9, and 19
8.     Bargaining Unit Members were and/or [sic] instructed to vote for IEF by Management officials.
9.     NFFE Union Steward was informed by a Management official to be nice to IEF Representatives.
19.     Disparaging remarks made by Management officials about the National Federation of Federal Employees cast a chilling effect on the voting bargaining unit.
Objection Nos. 12 and 13
12.     Management officials allowed IEF Representatives' usage of the internal mail system to communicate with NFFE Bargaining Unit Members.
13.     Distribution of IEF flyers through the internal mail service was allowed by Management officials.
Objection Nos. 14, 15, and 16
14.     Management officials allowed IEF Representatives and Bargaining Unit Supporters to use the government phone system for campaign purposes.
15.     Management allowed IEF Representatives and Bargaining Unit Supporters to contact other Bargaining Unit Employees including NFFE Officers and Stewards by phone during working hours for campaign purposes.
16.     Management allowed phone call inquiries made by Bargaining Unit Employees to the Exclusive Representative to be directed to the IEF 800 number.
Objection No. 17
17.     Management officials allowed inaccurate information to be disseminated to Wage Grade Employees by IEF Representatives alleging IEF could negotiate wages if IEF won the election contrary to Public Law 92-392, August 19, 1972.
Objection No. 18
18.     Management's failure to provide the Authority with correct addresses of Bargaining Unit Employees resulted in a vast number of employees not receiving a ballot.
Objection No. 20
20.     Management disseminated wrong information to agencies concerning IEF's equivalent status.



Footnote # 1 for 56 FLRA No. 20

   Section 2422.31(c) provides, in pertinent part, that the Authority may grant an application for review when the application demonstrates that:

(1)     The decision raises an issue for which there is an absence of precedent;
(2)     Established law or policy warrants reconsideration; or,
(3)     There is a genuine issue over whether the Regional Director has:
(I)     Failed to apply established law;
(ii)     Committed a prejudicial procedural error;
(iii)     Committed a clear and prejudicial error concerning a substantial factual matter.

Footnote # 2 for 56 FLRA No. 20

   NFFE's objections are set forth in the Appendix to this decision according to the order in which the RD grouped them in his Decision and Order.


Footnote # 3 for 56 FLRA No. 20

   NFFE claims that the RD's conduct of the investigation was grossly negligent. That is not the appropriate standard. The Authority's Regulations require NFFE to demonstrate "prejudicial procedural errors."


Footnote # 4 for 56 FLRA No. 20

   Although NFFE argues that the "magnitude of the election" required the RD to interview all of its witnesses, Application for Review at 5, NFFE makes no attempt to demonstrate that such interviews would have established that the scope of the alleged conduct was significant enough to have affected the election. For example, the record indicates that the nationwide unit includes 120 Agency facilities. NFFE, however, never demonstrated the number of facilities involved in the incide