[ v12 p164 ]
The decision of the Authority follows:
12 FLRA No. 39 DEPARTMENT OF DEFENSE DEPARTMENT OF THE NAVY NAVAL AIR REWORK FACILITY (NAS) NORFOLK, VIRGINIA Activity and NATIONAL ASSOCIATION OF AERONAUTICAL EXAMINERS Petitioner and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2225, AFL-CIO Intervenor Case No. 4-RO-20013 DECISION ON REQUEST FOR REVIEW The request for review filed by the Intervenor, American Federation of Government Employees, Local 2225, AFL-CIO (AFGE), seeks reversal of the Regional Director's Report and Findings on Objections to the election held in the above named case, based partly on objections to pre-election conduct and partly on the Regional Director's method of investigating those objections. /1/ With regard to the objections based on pre-election conduct, AFGE claims that the election notices were not properly posted; that the polling place was hidden from view; and that only two of the approximately 35 employees questioned by AFGE indicated that they had seen the Notice of Election. In agreement with the Regional Director, and based on her reasoning, the Authority finds no merit to these contentions. In so concluding, the Authority notes, as found by the Regional Director, that 39 out of 54 eligible employees voted in the election; that only one of the 15 non-voting employees claimed to have had no knowledge of the election; and that AFGE had agreed to the election site prior to the election and only one employee claimed to have had difficulty in finding it and did not vote. Further, inasmuch as the Regional Director determined that 14 of the 15 non-voting employees were aware of the election but failed to vote for reasons not relevant herein, it appears clear that none of AFGE's objections involves conduct that could have affected the outcome of the election. With regard to the Regional Director's method of investigating AFGE's objections, it is contended in the request for review that the Regional Director's staff (1) did not interview AFGE's Acting President while investigating the objections, thereby denying him the opportunity to present further visual evidence; (2) arbitrarily and capriciously accepted testimony from the Activity and Petitioner, National Association of Aeronautical Examiners (NAAE), without offering AFGE the opportunity to respond; and (3) erred by assigning to this matter an individual who was directly involved in several of the allegations of improper pre-election conduct. Section 2422.20(b) of the Authority's Rules and Regulations, in pertinent part, provides that "(the) objecting party shall bear the burden of proof at all stages of the proceeding regarding all matters raised in its objections." Therefore, AFGE has the burden of proving the foregoing allegations to the Authority through supporting evidence submitted with its request for review and establishing that they were sufficient to warrant setting aside the Regional Director's Report and Findings on Objections and to require further processing of the original objections. AFGE has not met this burden; indeed, it has not even attempted to show how the alleged conduct involved in the objections to the Regional Director's investigation could have affected the results thereof. Accordingly, the request for review, seeking reversal of the Regional Director's Report and Findings on Objections, is denied, and this case is hereby remanded to the Regional Director for further appropriate action. Issued, Washington, D.C., June 7, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ As section 2422.20(b) of the Authority's Rules and Regulations requires that objections to an election be filed within five days after the tally of ballots has been furnished to the parties, the Authority finds that AFGE's objections concerning an alleged delay of several minutes in opening the election polls and the unspecified unlawful assistance to the Petitioner-- raised for the first time by AFGE in its request for review-- are untimely filed. Thus, they have not been considered. See also section 2429.5 of the Authority's Rules and Regulations, which provides in pertinent part that "(t)he Authority will not consider . . . any issue which was not presented in the proceedings before the Regional Director . . . ."