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33:0245(28)R0 - - Army and Air Force Exchange Service, Fort Drum Exchange (Fort Drum, NY) and AFGE and NAGE, SEIU - - 1988 FLRAdec RP - - v33 p245

[ v33 p245 ]
The decision of the Authority follows:

33 FLRA No. 28
















October 24, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This case is before the Authority on applications filed by the Activity and the Intervenor under section 2422.17(a) of the Authority's Rules and Regulations. After a representation election in which the Petitioner received a majority of the valid votes, the Activity and the Intervenor filed objections to the election results with the Regional Director. The Activity and the Intervenor contended that conduct by the Petitioner prior to the election warranted setting the election aside. In his Decision and Order on

Objections, the Regional Director concluded that the Petitioner's conduct did not warrant setting the election aside. The Activity and the Intervenor seek review of the Regional Director's determination.

For the reasons set forth below, we conclude that the applications should be denied.

II. Regional Director's Decision

The Petitioner, American Federation of Government Employees, AFL-CIO (AFGE), received a majority of the valid votes counted in an election conducted on May 26 and 27, 1988, among the nonprofessional employees of the Activity, the Army and Air Force Exchange Service, Fort Drum Exchange, Fort Drum, New York.(*) Following the election, both the Activity and the Intervenor, National Association of Government Employees, SEIU, AFL-CIO (NAGE), filed objections to the conduct of AFGE which allegedly improperly affected the election results. Specifically, they alleged that a flyer attached to a letter distributed by AFGE before the election misrepresented major benefits contained in the Master Agreement between the Army and Air Force Exchange Service (AAFES) and AFGE, and that these misrepresentations were a substantive departure from the truth and had a significant impact on the election. It was further alleged that the distribution of the flyer occurred at a time which prevented an effective reply.

The Regional Director found that the flyer "contained misrepresentations of fact as to the AFGE/AAFES Master Agreement which could not be reasonably interpreted by employees as merely campaign propaganda and which could be expected to affect the outcome of the election." Regional Director's Decision at 4. However, the Regional Director also found that the flyer was distributed not later than the morning of May 23, 1988, 3 days before the election, that the Activity and the Intervenor "both had sufficient time to rebut the misrepresentations and that, in any event, AAFES did publish and distribute an effective reply prior to the election." Id. at 4. Therefore, noting both Authority precedent and a decision of the Assistant Secretary of Labor for Labor-Management Relations under Executive Order 11491, as amended, the Regional Director concluded that AFGE's distribution of the flyer did not constitute conduct which would warrant setting aside the election.

III. The Applications for Review

A. The Activity

AAFES filed an application on behalf of the Activity contending that the Regional Director's decision raises a substantial question of law and policy because of a departure from Authority precedent. While conceding that the Regional Director relied on precedent, the AAFES argues that this factual situation requires a different application. Specifically, AAFES contends that the nature of the misrepresentations is sufficiently egregious to constitute conduct which would warrant setting aside the election and that based on the egregious nature of the conduct, sufficient time was not provided to make an effective reply.


NAGE contends that the Regional Director's finding that the flyer misrepresented the truth, standing alone, should have been sufficient to order rescheduling of the election. NAGE argues that because a large percentage of employees were not at work when management responded, the Activity's reply was not effective. NAGE concedes that it became aware of the flyer on May 23, 1988, but argues that 3 days was not sufficient time for it to respond to the misrepresentations contained in the flyer.

IV. AFGE's Opposition

AFGE contends that the Regional Director's application of Authority precedent was correct. Therefore, AFGE argues that the applications for review should be denied because no compelling reasons exist for reviewing the Regional Director's Decision.

V. Discussion

We conclude that no compelling reasons exist within the meaning of section 2422.17(c) for granting the applications for review. Specifically, we find that no substantial question of law or policy is raised by reason of a departure from Authority precedent.

Both the Activity and NAGE contend that the Regional Director departed from precedent because he failed to give consideration to what the Activity alleges to be the "egregious" nature of AFGE's misrepresentations of fact and because he failed to conclude that 3 days was insufficient time to make an effective reply to the misrepresentations.

However, in Department of the Navy, Naval Air Rework Facility, Norfolk, Virginia, 12 FLRA 15 (1983), on which the Regional Director relied in reaching his conclusion in this case, the Authority agreed with a Regional Director's finding that an objection based on a misstatement of fact did not constitute a basis for setting aside the election where the union had sufficient time to rebut the misstatement of fact and in fact did reply. The Regional Director also relied on a case arising under Executive Order 11491, as amended, Naval Air Rework Facility, Naval Air Station, Jacksonville, Florida, 6 A/SLMR 93 (1976), in which the Assistant Secretary dismissed objections to an election where the record reflected that the objecting party had ample time to make an effective reply to the misrepresentations of fact.

The Regional Director applied this precedent to the facts of the case before him. The parties' contentions amount to no more than disagreement with his finding that there was sufficient time to reply to the misrepresentations of fact. Therefore, the parties' contentions provide no basis for granting review of the applications.

VI. Order

The applications for review of the Regional Director's Decision and Order on Objections are denied.

(If blank, the decision does not have footnotes.)

*/ AFGE received 54 of the 84 valid votes counted. The Intervenor received 7 votes and 23 votes were cast against exclusive representation.