Pension Benefit Guaranty Corporation (Agency) and Independent Union of Pension Employees (Petitioner/Labor Organization) and National Association of Government Employees (Incumbent Labor Organization)
[ v61 p447 ]
61 FLRA No. 85
OF PENSION EMPLOYEES
OF GOVERNMENT EMPLOYEES
(Incumbent Labor Organization)
GRANTING APPLICATIONS FOR REVIEW
January 20, 2006
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This case is before the Authority on applications for review filed by the National Association of Government Employees (NAGE) and the Pension Benefit Guaranty Corporation (the Agency) under § 2422.31 of the Authority's Regulations. [n2] The Independent Union of Pension Employees (IUPE) filed oppositions to the applications. [n3]
IUPE filed a petition seeking an election among employees in a bargaining unit exclusively represented by NAGE. After NAGE won the election, IUPE filed objections to the election with the Regional Director (RD) alleging, as relevant here, that the Agency had failed to timely grant IUPE equivalent status to NAGE and had failed to furnish IUPE with customary and routine facilities and services. The RD granted IUPE's relevant objection and found that the Agency's actions had the potential to interfere with voters' free choice in the election. Accordingly, the RD set aside the election and directed a new election.
For the following reasons, we grant the applications for review and remand this matter to the RD for further proceedings.
II. Background and RD's Decision
On October 6, 2004, [n4] IUPE filed a petition seeking an election among bargaining unit employees exclusively represented by NAGE. [n5] On October 18, IUPE stated to the Agency that, by virtue of filing the petition, IUPE had gained equivalent status to NAGE and was "entitled to use of bulletin boards and meeting rooms among other things." RD Decision at 4. The Agency replied, stating that it was awaiting a letter from the Authority "asking us for staffing information to confirm that you indeed have the signatures necessary to demonstrate a showing of interest." Id. The Agency also requested that IUPE provide information from the Department of Labor (DOL) "confirming that [DOL] has determined that IUPE is a `labor organization.'" Id. The Agency stated that, "[o]nce we have received confirmation from both the [Authority] and [DOL], we will address your concern for equivalent status . . . ." Id. at 4-5.
In a letter signed and dated October 26, the RD notified the Agency and NAGE that the petition had been filed, requested certain information from the parties, and directed that an attached notice of the petition be posted in places where notices to employees normally are posted. The notice stated, in pertinent part, that "[t]his case is being investigated and NO DETERMINATION HAS BEEN MADE AT THIS TIME by [ v61 p448 ] the Federal Labor Relations Authority." Agency Application, Attachment 2 (Notice to Employees) (emphasis in original).
On November 9, the Agency responded to the RD's October 26 letter, answering questions from that letter and stating that the Agency had posted the notice on November 1. The Agency also requested that the RD "explicitly determine: (1) whether or not the [p]etition was accompanied by a showing of interest of 30% or more of the eligible bargaining unit [Agency] employees[;]" and "(2) whether or not the IUPE is in fact a labor organization within the meaning of 5 U.S.C. § 7103(a)(4), entitled to seek a representation election." Agency Application, Attachment 3 (November 9 letter) at 2.
Subsequently, NAGE contested the petition. Specifically, NAGE alleged that the agreement between the Agency and NAGE's predecessor, the National Treasury Employees Union (NTEU), which NAGE and the Agency had agreed to follow, barred the petition under 5 U.S.C. § 2422.12. [n6]
IUPE e-mailed the Agency on December 7, stating that the Agency should have recognized IUPE's equivalent status "at least as soon as the [RD] signed" the notice to all employees. RD Decision at 5. For support, IUPE cited United States DOD Dependents School, Panama Region, 44 FLRA 419 (1992) (Panama Teachers). IUPE requested that the Agency identify all available customary and routine services and facilities, and requested that the Agency "authorize IUPE to use bulletin boards and meeting rooms, and to send emails to all [bargaining unit employees]." RD Decision at 5.
On December 22, the RD ordered the parties to submit briefs on the contract bar issue raised by NAGE. In response, on January 7, NAGE withdrew its contract bar claim.
On January 12, IUPE again e-mailed the Agency, stating that IUPE had previously written the Agency about achieving equivalent status and "received no reply[.]" Record (January 12 e-mail). IUPE also stated that "[n]ow that we will be having elections, it is especially important that we have equal access to the bulletin board, use of the E-mail, the printer, meeting rooms, and so on at least to the same extent as NAGE." Id.
The Agency responded the same day, stating that it had been waiting for a determination by the RD concerning the contract bar issue before determining whether IUPE had achieved equivalent status to NAGE. The Agency stated that, as the contract bar claim had been withdrawn, the Agency would now accord IUPE equivalent status, and requested that IUPE make specific requests for use of facilities and services.
On January 24, IUPE requested training rooms for certain dates and requested permission to use the Agency's e-mail system and bulletin boards. The Agency responded that customary and routine services were limited to meeting space. According to the Agency, it could not provide IUPE with access to bulletin boards and Agency e-mail because NAGE had achieved the right to use bulletin boards and e-mail through collective bargaining.
On January 31, the parties entered into an election agreement, which was approved by the RD on February 3. As relevant here, the election agreement set the dates for employees to cast absentee ballots (February 10 and 15), and the date for a manual ballot election (February 16). NAGE won the election, [n7] and IUPE filed objections claiming, as relevant here, that the Agency improperly delayed its recognition of IUPE's equivalent status and failed and refused to provide IUPE [ v61 p449 ]
with the use of customary and routine services and facilities. [n8]
In resolving the objections, the RD found that IUPE achieved equivalent status with NAGE when he sent the parties the October 26 letter directing the posting of the notice of the petition. For support, the RD cited Panama Teachers, 44 FLRA 419. The RD found that, although IUPE's October 18 request to use bulletin boards and meeting space was "premature," it also was never "withdrawn, and [the Agency] should have considered the request when IUPE achieved equivalent status." RD Decision at 12. The RD also found that on December 7, IUPE again requested the use of bulletin boards and meeting space, but the Agency "did not authorize IUPE to use agency space to meet with [bargaining unit employees], or provide IUPE with any other facility or service, until late January 2005, many weeks after IUPE achieved equivalent status." Id.
The RD determined that, if the Agency had recognized IUPE's equivalent status either upon receipt of the October 26 letter or on December 7 -- when IUPE made its first request to use Agency facilities and services after achieving equivalent status -- then "IUPE would have been able to communicate with [bargaining unit employees] more frequently, more easily, and in more ways before the point at which [the Agency] finally accorded IUPE its right to customary and routine facilities and services." Id. at 12-13. The RD found that the delay in providing IUPE with facilities and services "resulted in potential voters being denied for a lengthy period, and at a critical time during the campaign, information and argument on which they could have relied to form their voting decisions." Id. at 13. Based on the foregoing, the RD concluded that the Agency's action "had the potential for interfering with voters' free choice." Id.
The RD rejected the Agency's claim that it had delayed granting IUPE equivalent status because it was awaiting an express statement from the RD that IUPE had submitted a sufficient showing of interest. The RD stated that he had mailed the October 26 letter to the parties after finding that IUPE had made a prima facie showing of interest. The RD acknowledged that his October 26 letter did not expressly state that he had found a prima facie showing of interest, as provided in the relevant form letter set forth in the Authority's General Counsel's Representation Case Handling Manual (Representation Manual). The RD found, however, that the October 26 letter satisfied regulatory and case law requirements for establishing that IUPE had equivalent status and also "effectively provided the notification recommended by the Representation Manual." RD Decision at 14 (emphasis removed). Further, the RD determined that the Agency's acknowledgment in January that IUPE had attained equivalent status "was not based on any express statement from [the Authority's regional] office about IUPE's status because the [regional office] never sent a communication or clarification after the [October 26] letter dealing with IUPE's showing of interest." Id. at 13. With regard to the Agency's claim that it had delayed granting IUPE equivalent status because it was waiting for the Authority to resolve the contract bar issue, the RD determined that "[w]hether or not a contract bar existed had no bearing on whether IUPE achieved equivalent status under Authority Regulations and decisional law." Id. at 14.
Based on the foregoing, the RD set aside the election and directed a new election.
III. Positions of the Parties
A. NAGE Application for Review [n9]
NAGE contends that the RD failed to apply established law by "[m]iscontruing" Panama Teachers, 44 FLRA 419. NAGE Application at 12 (emphasis deleted). According to NAGE, Panama Teachers required the RD to notify the Agency that IUPE had submitted a prima facie showing of interest and had achieved equivalent status. NAGE asserts that, because the RD did not do so, IUPE did not have equivalent status at the time of the October 26 letter. In addition, NAGE quotes a form letter from the Representation Manual that instructs Authority agents to include such a notification. [n10]
NAGE also contends that, in three respects, the RD committed clear and prejudicial errors concerning substantial factual matters. First, NAGE asserts that [ v61 p450 ] IUPE was not prejudiced by the delay in Agency-sanctioned access to facilities and services because IUPE nonetheless used the Agency's bulletin boards and e-mail systems and campaigned throughout the Agency's facilities, while NAGE did not use bulletin boards, e-mail, or employee meetings for campaign purposes during the campaign period. Second, NAGE contends that the Agency properly waited until the contract bar issue was resolved to accord IUPE equivalent status because, if the contract bar claim had been found valid, then IUPE's petition would have been dismissed. Third, NAGE asserts that it obtained the use of the Agency's bulletin board space and e-mail system through collective bargaining and, thus, IUPE was not entitled to use bulletin boards and e-mail, citing United States DOD, Department of the Army, United States Army Air Defense Center & Fort Bliss, Fort Bliss, Texas, 29 FLRA 362 (1987) (Fort Bliss), reconsideration denied, 31 FLRA 904 (1988).
B. Agency Application for Review
The Agency asserts that the RD failed to apply established law, and made clear and prejudicial errors concerning substantial factual matters, in three ways.
First, the Agency claims that the RD erred in his determination regarding when the Agency was required to accord IUPE equivalent status. The Agency contends that the RD's statement that he sent the October 26 letter after determining that IUPE had made a prima facie showing of interest "is neither accurate nor possible." Agency Application at 9. According to the Agency, the Agency did not transmit its list of unit employees to the RD until after the October 26 letter was sent. Additionally, the Agency asserts that if the RD had conducted an investigation prior to sending the October 26 letter, then he would have found that IUPE had failed to comply with law and regulation by failing to submit a roster of its officers and representative, and a copy of its constitution and bylaws, to either the Agency or DOL. See 5 U.S.C. § 7111(e) & 5 C.F.R. § 2422.3(b). [n11] Further, the Agency claims that the notice of the petition attached to the October 26 letter clearly stated that the RD had not made a determination regarding the validity of the petition, and the RD never notified the Agency of his determination, despite the Agency's requests for clarification in this regard. The Agency asserts that, as a result, it was not aware that IUPE had achieved equivalent status until after NAGE withdrew its contract bar objection and the Agency made a further inquiry to the Authority's regional office in January. Moreover, the Agency asserts that it could have violated § 7116(a)(3) if it had provided equivalent status to IUPE prior to receiving notice from the RD that IUPE's showing of interest was sufficient and that IUPE had achieved equivalent status. [n12]
Second, the Agency claims that the RD erred in finding that the Agency was required to provide IUPE access to facilities and services that NAGE had obtained through collective bargaining. According to the Agency, NAGE and the Agency "essentially `negotiated' and agreed to honor the terms of the expired NTEU/[Agency] collective bargaining agreement, a negotiated agreement which provides NAGE with access to certain [Agency] facilities and services not otherwise available[.]" Agency Application at 12. The Agency claims that the RD did not distinguish between services and facilities to which both IUPE and NAGE are entitled, and services and facilities to which only NAGE is entitled by virtue of the agreement. Citing Fort Bliss, 29 FLRA 362, the Agency asserts that it did not deny IUPE access to any facilities or services to which IUPE was entitled.
Third, the Agency claims that the RD erred in finding that a new election was required. In this connection, the Agency contends that, when IUPE agreed on January 31 to set the election date for February 16, IUPE "knew what access it had been given and for how long, and what access it would have until the election." Agency Application at 13. According to the Agency, IUPE has not contended that after January 14 the Agency denied it access to facilities or services to which it was legitimately entitled, and in any event, IUPE had been distributing campaign materials for months prior to the Agency's recognition of equivalent status. [ v61 p451 ]
C. IUPE Oppositions [n13]
IUPE argues that the RD properly applied Panama Teachers, 44 FLRA 419, which IUPE contends is dispositive in the instant case. In this regard, IUPE asserts that Panama Teachers does not hold that an RD must state that there has been a prima facie showing of interest. Instead, IUPE claims, Panama Teachers holds that a petitioning union acquires equivalent status when the RD determines, and notifies the appropriate parties, that a notice of the petition must be posted.
IUPE contends that the RD did not commit clear and prejudicial errors concerning substantial factual matters. According to IUPE, the RD considered the alleged campaign activity by IUPE, but found that it was irrelevant to the issues before him. In addition, IUPE contends that NAGE's assertion of a contract bar did not excuse the Agency's delay in according IUPE equivalent status. Further, IUPE claims that, even assuming it was not entitled to use bulletin boards and the Agency's e-mail system because NAGE had a contractual entitlement to use them, IUPE was improperly denied the use of meeting space and other facilities and services to which it was entitled.
IV. Analysis and Conclusions
A. The application is granted in part because clarification of Authority precedent is necessary.
The Authority has held that, when a petitioning union achieves "equivalent status" with an incumbent union, the petitioning union becomes "entitled to be furnished customary and routine facilities and services." Panama Teachers, 44 FLRA at 422. Accord 5 U.S.C. § 7116(a)(3) (it is not an unfair labor practice for agency to "furnish, upon request, customary and routine services and facilities" to a union "if the services and facilities are also furnished on an impartial basis to other [unions] having equivalent status"). In Panama Teachers, the Authority held that, under applicable statutory and regulatory requirements:
[A] petitioning union acquires equivalent status . . . when an appropriate [RD] determines, and notifies the parties, that the petition includes a prima facie showing of interest and merits further processing. Therefore, consistent with the Authority's Rules and Regulations, . . . a petitioning union acquires equivalent status with an incumbent at such time as the [RD] determines, and notifies the appropriate parties, that a notice of the petition will be posted.
Id. at 425. Thus, Panama Teachers held that a petitioning union obtains equivalent status only if the RD both determines, and notifies the appropriate parties, that the petition includes a prima facie showing of interest, that it merits further processing, and that a notice of petition will be posted. Id.
Subsequent to Panama Teachers, the Authority has stated this test inconsistently with respect to an RD's obligation to notify parties of his or her determinations. In one decision, the Authority restated the test as including the requirement that the RD notify the parties that the petition includes a prima facie showing of interest and merits further processing. See United States Dep't of the Air Force, Barksdale Air Force Base, Bossier City, La., 45 FLRA 659, 662 n.2 (1992) (union obtains equivalent status when it files a petition and the RD "determines, and notifies the parties, that the petition includes a prima facie showing of interest and merits further processing"). In two other decisions, the Authority restated the test without including the requirement that the RD notify the parties that the petition includes a prima facie showing of interest and merits further processing. See SSA, 55 FLRA 964, 965 n.4 (1999) (union obtains equivalent status "when a petition for election is properly filed with the Authority and the appropriate Authority [RD] determines that there has been a prima facie showing of interest"); SSA, 52 FLRA 1159, 1162 n.3 (1997) (same) (Member Wasserman concurring on other grounds).
Both NAGE and the Agency contend in their applications for review that the RD failed to apply established law by failing to notify the parties that IUPE had submitted a prima facie showing of interest and had achieved equivalent status. Consistent with this claim and the foregoing discussion, we take this opportunity to clarify that if an RD determines under the Statute and the Authority's Regulations that a petitioning union has submitted a prima facie showing of interest and, therefore, has achieved equivalent status with the incumbent union, the RD must timely notify all of the appropriate parties of these determinations and that a notice of petition will be posted. As stated in Panama Teachers, we [ v61 p452 ] find that this approach "protects the rights of all parties" and "enables agencies and activities easily to determine whether a labor organization is entitled, on request, to be furnished facilities and services under [§] 7116(a)(3) of the Statute." 44 FLRA at 425.
In this case, the RD acknowledged that he failed to notify the parties explicitly that IUPE had submitted a prima facie showing of interest and had achieved equivalent status. Thus, we grant the application for review in part on this basis.
In reaching this conclusion, we recognize that when a representative of the Authority's regional office commits a prejudicial error that warrants setting aside an election, the Authority will direct that an election be set aside and a new election conducted. See, e.g., United States Dep't of HHS, SSA, Dist. Office, Greenville, N.C., 36 FLRA 824 (1990) (Authority found prejudicial error warranting new election where Authority agent opened newly-discovered ballot, outside the presence of parties' representatives, after the initial tally of ballots had been issued). If an RD fails to provide the required notification discussed above, and this failure results in a delay in according a union equivalent status, then it will be necessary for the Authority to determine whether the union was prejudiced in a manner that warrants setting aside the election. Specifically, the Authority will need to determine whether, in the circumstances of the case, the delay in according equivalent status had the "potential [to] interfere with the free choice of the voters." United States DOD, Stateside Dependents Schs., Fort Benning Schs. Fort Benning, Ga., 48 FLRA 471, 474 (1993) (Fort Benning) (citation omitted).
Consistent with the foregoing, it is necessary to determine whether, in the circumstances of this case, the RD erred in finding that the delay in according IUPE equivalent status had the potential to interfere with the free choice of the voters. We discuss that issue below.
B. A remand is necessary to determine whether a new election is warranted.
"The standard for determining whether conduct is of an objectionable nature so as to require that an election be set aside is its potential for interfering with the free choice of the voters." Fort Benning, 48 FLRA at 474. Application of this standard involves an assessment of whether, by its conduct, the employer has violated its obligation to maintain its neutrality. See, e.g., United States Dep't of Agric., Forest Serv., Apache-Sitgreaves Nat'l Forest, Springerville, Ariz., 47 FLRA 945, 953 (1993) (Forest Serv.) (noting RD's obligation to resolve whether activity's conduct violated its obligation "to maintain its neutrality"); United States Army Eng'r Activity, Capital Area, Fort Myer, Va., 34 FLRA 38, 43 (1989) ("[m]anagement actions during an election which deviate from . . . required neutrality and which have the potential to interfere with the free choice of voters require the election to be set aside"). In addition, the Authority has considered, as a relevant factor, whether there is evidence that employees were prevented from gaining access to a campaigning union. See, e.g., United States Dep't of the Navy, Naval Station, Ingleside, Tex., 46 FLRA 1011, 1023 (1992) (affirming RD's rejection of objection while noting RD's finding that "NFFE was unable to produce any evidence that any employee was either not aware that NFFE was campaigning in the conference room . . ., or was prevented from visiting the conference room"). Where an RD's decision on disputed, material issues of fact has been found to be without "proper factual foundation[,]" the Authority has remanded the RD's decision for further proceedings. Forest Serv., 47 FLRA at 952.
Here, the RD did not make findings concerning which facilities and services IUPE was entitled to receive. In this connection, the RD did not determine which facilities and services only NAGE was entitled to use as a result of its collective bargaining agreement with the Agency, and which facilities and services were required to be provided to both NAGE and IUPE.
Further, the RD did not specifically address how the denial of individual facilities and services had an impact on voters' free choice. In this regard, the RD acknowledged that, during the campaign period, IUPE posted some campaign material on bulletin boards, distributed some flyers, and sent e-mails to some bargaining unit employees. See RD Decision at 7. The RD made no findings, and provided no explanation, as to why IUPE's ability to engage in those activities was insufficient to reach voters and counteract any official denials of facilities and services.
In these circumstances, we find that the record does not provide a sufficient basis for determining whether the denial of facilities and services to IUPE had the potential for interfering with the free choice of voters. Accordingly, we set aside the direction of a new election and remand this matter to the RD for further development of the record, and further findings, in this regard. See, e.g., Forest Serv., 47 FLRA at 952-53. [ v61 p453 ]
The applications for review are granted, and the RD's direction of a new election is set aside. This matter is remanded to the RD for further proceedings consistent with this decision.
Separate opinion of Chairman Cabaniss:
I agree with the decision to grant the application for review so as to clarify our precedent regarding when a petitioning union achieves equivalent status. I also agree with the determination that a petitioning union achieves equivalent status when the applicable regional director (RD) advises the agency involved to post the notice to employees and affirmatively advises that agency that the petitioning union has achieved equivalent status.
Having said that, however, does not warrant the outcome arrived at here by the majority. This case has always been about alleged wrongful actions/inactions by the Agency here: the objections to the election that were filed by the Independent Union of Pension Employees (IUPE) in this case never challenged any actions/inactions by the RD, the objections challenged actions/inactions by the Agency. It is clear from the majority opinion that the RD erred in late October/early November 2004 by failing to affirmatively notify the Agency that the IUPE had achieved equivalent status, but the IUPE never complained about any actions/inactions by the RD, the IUPE complained about the actions/inactions of the Agency. Short of this being a jurisdictional issue, I would not have the Authority modify the tenor of this case sua sponte to comport with an ad hoc determination to "fix" an issue that the parties did not put before us.
For better or worse, the IUPE complained about the Agency rather than the RD, even though the IUPE could have challenged the RD's actions. See, e.g., United States Dep't of Health and Human Svcs., SSA District Ofc., Greenville, N.C., 36 FLRA 824 (1990) (Authority upheld challenge to RD's procedural conduct of election). The majority opinion finds that equivalent status is not achieved until a Regional Director affirmatively advises an agency that a petitioning union has achieved equivalent status: from that I conclude that equivalent status was not accomplished at the times relevant here by the IUPE because the Regional Director never advised the Agency that the IUPE had achieved equivalent status. Based upon that finding, I would reverse the RD's set aside of the election and uphold the results of that election.
Footnote # 1 for 61 FLRA No. 85 - Authority's Decision
Footnote # 2 for 61 FLRA No. 85 - Authority's Decision
(c) Review. The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds: . . .
(3) There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law; . . .
(iii) Committed a clear and prejudicial error concerning a substantial factual matter.
Footnote # 3 for 61 FLRA No. 85 - Authority's Decision
In its opposition, IUPE incorrectly claims that the Agency's application was untimely filed. As the RD's decision was dated September 27, 2005, applications for review were due November 28, 2005 - the day on which the Agency hand-delivered its application.
Footnote # 4 for 61 FLRA No. 85 - Authority's Decision
Footnote # 5 for 61 FLRA No. 85 - Authority's Decision
Although the RD stated that the petition was filed October 16, the filing date set forth on the petition states -- and it is undisputed -- that the petition was filed on October 6. See Record (Petition dated October 6, 2004).
Footnote # 6 for 61 FLRA No. 85 - Authority's Decision
(d) Contract bar where the contract is for three (3) years or less. Where a collective bargaining agreement is in effect covering the claimed unit and has a term of three (3) years or less from the date it became effective, a petition seeking an election will be considered timely if filed not more than one hundred and five (105) and not less than sixty (60) days prior to the expiration of the agreement.
(e) Contract bar where the contract is for more than three (3) years. Where a collective bargaining agreement is in effect covering the claimed unit and has a term of more than three (3) years from the date it became effective, a petition seeking an election will be considered timely if filed not more than one hundred and five (105) and not less than sixty (60) days prior to the expiration of the initial three (3) year period, and any time after the expiration of the initial three (3) year period. . . .
(h) Contract requirements. Collective bargaining agreements, including agreements that go into effect under 5 U.S.C. 7114(c) and those that automatically renew without further action by the parties, do not constitute a bar to a petition seeking an election under this section unless a clear and unambiguous effective date, renewal date where applicable, duration, and termination date are ascertainable from the agreement and relevant accompanying documentation.
Footnote # 7 for 61 FLRA No. 85 - Authority's Decision
The results of the election were as follows: NAGE received 169 votes; IUPE received 114 votes; there were nine votes against exclusive recognition; and there were eight challenged ballots. Additionally, the professional employees voted, eighty-three to sixty-four (with three challenged ballots), to be included in a single unit with the non-professional employees.
Footnote # 8 for 61 FLRA No. 85 - Authority's Decision
Footnote # 9 for 61 FLRA No. 85 - Authority's Decision
Footnote # 10 for 61 FLRA No. 85 - Authority's Decision
The form letter instructs Authority agents as follows: "If the petition seeks an election for a unit that is already represented, add: I [the Authority agent] have determined that the petitioner has submitted a prima facie showing of interest and has achieved `equivalent status' with the incumbent. U.S. Departm