31:0996(79)RO - Pacific Missile Test Center, Point Mugu, CA and NAGE Local R12-33 and NFFE Local 1374 -- 1988 FLRAdec RP

[ v31 p996 ]
The decision of the Authority follows:

 31 FLRA NO. 79







                    Incumbent Labor Organization

                                          Case No. 8-RO-70005


     I. Statement of the Case

     This case is before the Authority on an application for
review filed by the National Federation of Federal Employees,
Local 1374, Independent (NFFE), under section 2422.17(a) of the
Authority's Rules and Regulations, seeking review  1/  of the
Regional Director's Decision and Order on Objections.  2/  
The National Association of Government Employees, Local
R12-33 (NAGE) filed on opposition to NFFE's application for

     II. Background

     At the Activity, NAGE was seeking to replace NFFE as the
exclusive representative. On August 27, 1987, an election by
secret ballot was conducted among employees of the Activity. Of
the 632 valid votes cast, NAGE received 360 and NFFE received
254. Thereafter, NFFE filed timely objections to the conduct of
the election.

     The record indicates that on August 26, 1987, the day before
the election, NFFE was engaged in campaign activity involving
NFFE banners and helium filled balloons which were labelled with
"NFFE" on them. The record further indicates that a few of the
balloons were released and were spotted flying over the
Activity's flight path by the flightline supervisor. The
flightline supervisor telephoned Judy Eveleth, the Activity's
Labor Relations Officer, and reported that this situation
constituted a safety hazard to flight operations because the
balloons could be ingested into the aircrafts' engines causing
considerable damage, including engine failure.

     As a result of this telephone call, Eveleth went to the
campaign site to investigate. She met with Charles Gaines III,
NFFE's Campaign Director, who was at the site. Eveleth advised
Gaines of the potential hazard the balloons were creating and
asked that they be immediately removed. Gaines became
argumentative and a dispute arose between him and Eveleth. Gaines
requested specific citings of Base policy, DOD policy and any
other authority directing the removal of the balloons. At that
point, in compliance with Gaine's request, Eveleth called Base
Security. Gaines continued to refuse to remove the balloons and
demanded to know what regulation NFFE was violating. Upon the
arrival of Base Security, at Eveleth's request, Gaines' visitor
badge and his temporary vehicle pass were removed. Gaines'
visitor badge was returned to him at 5:30 p.m. on August 27,
1987, in order that he be present during the tally of the

     The record indicates that both labor organizations had been
made aware of the stricter security procedures being observed at
the Activity because of the escalated tension in the Persian
Gulf. In addition during the time in question, the President's
airplane and helicopters were physically located at the Activity.

     The alleged unlawful conduct of the Activity discussed above
is covered by the following three objections filed by NFFE.

     Objection No.  1

     On or about August 26, 1987, the Activity through action of
     its designated labor-relations representatives, caused the
     cessation of the distribution of the Intervenor's promotional
     material. Such material was being distributed to bargaining unit
     employees in a non-work area. This interference with the
     Intervenor's distribution was disparate in that the Petitioner
     was not denied the right to distribute materials in the very same
     location and the same types of materials have been distributed at
     the Activity by others.

     Objection No.  2 

     On or about August 26, 1987 the Activity, through actions of
     its designated labor-relations representatives, prohibited the
     Intervenor's campaign director from entering the Point Mugu
     facility for the purposes of campaigning. This action materially
     interfered with the Intervenor's ability to campaign during the
     crucial last days of the election and interfered with the
     Intervenor's "get out the vote" program.

     Objection No.  9

     On or about August 26, 1987, the employer ordered its
     security Department to destroy the Intervenor's campaign material
     when this material was attached to employee's personal
     automobiles in non-work areas.

     III. Regional Director's Decision

     The Regional Director found no  merit in any of the nine
objections filed by NFFE and advised the parties that a
Certification of Representatives would be issued to NAGE subject
to final action by the Authority.

     With respect to Objection Nos. 1, 2,  and 9, those that
remain at issue, the Regional Director found that: (1) the
investigation failed to establish that the Activity acted in an
arbitrary or discriminatory manner by requesting NFFE to 
remove the helium balloons; (2)  the Activity did not restrict
NFFE from using all campaign material but rather only the use of
the balloons which presented a safety hazard to aircraft; (3) the
investigation failed to establish that others used balloons as a
campaign item; (4) Mr. Gaines functioned as campaign director for
NFFE with full and equal access to the Activity throughout the
election period until August 26, 1987, the date of the subject
incident and one day prior to the election; and (5) there was no 
evidence to indicate that the restrictions placed on Mr. Gaines
affected the results of the election especially in light of the
fact that restrictions were placed only on the day prior to the
election and the fact that other NFFE representatives campaigned
without restrictions throughout the election period.

     IV. Application for Review

     A. NFFE's Application for Review

     NFFE contends that a substantial question of law or policy
is raised because of the absence of and departure from Authority
precedent. NFFE also claims that the Regional Director's decision
on a substantial factual issue is clearly erroneous and such
error has prejudiced its rights.

     NFFE contends that the Regional Director found that the
Agency did prohibit distribution of NFFE campaign material and as
such, the Agency's actions violated NFFE's rights. NFFE further
contends that the Regional Director erred in allowing the
Activity to rebut NFFE's charges and/or offer mitigating
circumstances while not affording NFFE the opportunity to rebut
the Activity's arguments. In conclusion, NFFE argues that the
Regional Director should have held a hearing in this case to
provide all parties with an opportunity to cross-examine
witnesses and offer rebuttal to purported extenuating or
mitigating circumstances.

     NFFE argues that the Regional Director erred in finding that
having Gaines removed from the Activity's station did not or
could not have affected the results of the election as Authority
precedent states otherwise. Based on a stat