[ v34 p208 ]
The decision of the Authority follows:
34 FLRA NO. 44 U.S. DEPARTMENT OF THE ARMY SAVANNA ARMY DEPOT ACTIVITY SAVANNA, ILLINOIS (Activity) and NATIONAL FEDERATION OF FEDERAL EMPLOYEES (Petitioner) and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (Labor Organization/Incumbent) 5-RO-80010 ORDER DENYING APPLICATION FOR REVIEW AND REQUEST FOR STAY January 11, 1990 Before Chairman McKee and Members Talkin and Armendariz. I. Statement of the Case This case is before the Authority on an application for review filed by the National Association of Government Employees, AFL - CIO (the Incumbent), under section 2422.17(a) of the Authority's Rules and Regulations. After a representation election in which a majority of the valid votes counted was not cast for either the Incumbent or the National Federation of Federal Employees (the Petitioner), the Incumbent filed objections to the election results with the Regional Director. The Incumbent 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 Incumbent seeks review of the Regional Director's determination. Inasmuch as the Authority had two vacancies when this application for review was received, Acting Chairman McKee issued an Interim Order on February 28, 1989, directing that consideration of the application be deferred until further notice. The Interim Order preserved the parties' rights under the Statute to Authority consideration of the Regional Director's decision. By letters dated June 9 and July 7, 1989, the Incumbent requested that Acting Chairman McKee stay a run-off election. According to the Incumbent, the Regional Director set the run-off election for August 1, 1989, and informed the Incumbent that the ballots would be impounded until the Authority ruled on the application for review. The Authority now considers the Incumbent's application for review and request for a stay of the run-off election. For the reasons set forth below, we conclude that the application for review and the request for a stay of the election should be denied. II. Regional Director's Decision An election was held on August 16, 1988, in the following unit: "All non-supervisory WG and GS employees of the Savanna Army Depot Activity, U.S. Army Defense Ammunition Center and School, U.S. Army Communications Element - Savanna, and Occupational Health Nursing Office, including those employees employed in fire prevention and protection, and in the Security Office (sic)." Regional Director's Decision at 1. Of the valid votes counted, the National Federation of Federal Employees (NFFE) received 38, the National Association of Government Employees (NAGE) received 36, and 9 votes were cast against exclusive recognition. Following the election, NAGE filed objections to conduct by NFFE which NAGE alleged improperly affected the election results. Specifically, NAGE asserted that statements in a flyer which NFFE distributed just prior to the date of the election "'disturbed the laboratory conditions of the election.'" Id. at 2. In addition, NAGE asserted that distribution of the flyer occurred at a time which prevented "'a timely and effective'" response. Id. The Regional Director found that some bargaining unit employees received the NFFE flyers by mail on the Friday or Saturday prior to the Tuesday election. Other unit employees received the flyers through a distribution at the Activity the day before the election, which was held on Tuesday, August 16, 1988. The Regional Director found that the flyer did not contain "clear or substantial misrepresentations" of fact. Id. at 3. Additionally, the Regional Director determined that the statements did not "threaten or intimidate and did not otherwise interfere" with a reasonable employee's free choice in the election. Id. The Regional Director concluded that the flyer was campaign propaganda "easily recognizable as such by the reasonable employee" and "of the type which employees themselves may intelligently evaluate." Id. As the Regional Director found that NAGE's objections concerning the content of the flyer were without merit, be found it unnecessary to address NAGE's additional assertion that NAGE had insufficient time to respond to the flyer. The Regional Director concluded that no objectionable conduct occurred which improperly affected the results of the election. Because the election results were inconclusive, the Regional Director ordered that a run-off, secret ballot election be held among the unit of employees who constituted the eligible group of employees in the original election. III. The Application for Review NAGE argues that the Regional Director's Decision establishes new precedent by disregarding the time needed for an effective response to campaign literature. According to NAGE, disregarding response time will "allow unions to print or say anything up to and until the employee enters the voting area." Application for Review at 2. According to NAGE, unit employees received the NFFE flyer by mail at their homes the Saturday prior to the election and the following Monday through distribution at the Activity. NAGE asserts that NFFE stated in the flyer that "they (NAGE) are busy attacking one of your fellow employees by calling her a thief, a crook, etc.'" Id. NAGE explains that bargaining unit employees knew that NFFE was referring to an employee who was respected and popular. NAGE argues that "(i)f no response was made to these malicious charges, then one would have to believe they are true, especially in an election campaign." Id. NAGE asserts that the time to prepare an effective response "must not be removed from the election procedure." Id. at 3. IV. Analysis and Conclusion For the following reasons, we conclude that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review. Specifically, we find that no substantial question of law or policy is raised by reason of a departure from Authority precedent. Contrary to NAGE'S argument, the Regional Director did not ignore the issue of whether NAGE had sufficient time to respond to campaign statements in NFFE's flyer. The Regional Director found it "unnecessary to address (NAGE's) ... assertion that it had insufficient time to respond to the flyer(,)" because he found, as a threshold matter, that the statements in the flyer did not constitute "clear or substantial misrepresentations of fact." Regional Director's Decision at 3. In reaching his decision that the NFFE flyer contained no substantial misrepresentation of fact, the Regional Director relied on Department of the Navy, Naval Air Rework Facility, Norfolk, Virginia, 12 FLRA 15 (1983) (Department of the Navy). In that case, the Authority held that statements which could reasonably be interpreted by employees as nothing more than "campaign puffery" will not serve as a basis for setting aside an election. Id. at 16. The Regional Director found that the statements in the NFFE flyer were "campaign propaganda, easily recognizable as such by the reasonable employee." Regional Director's Decision at 3. Accordingly, the Regional Director concluded that the flyer did not constitute material which warranted setting aside the election. We find that the Regional Director properly applied Authority precedent in determining that the content of the NFFE flyer did not warrant setting aside the election. In fact, NAGE does not contend otherwise. NAGE objects only to the Regional Director's failure to address whether NAGE had sufficient time to respond to the flyer. As the Regional Director properly determined that the objections to the content of the flyer were without merit, it was not necessary for the Regional Director to determine whether NAGE had sufficient time to respond to the flyer. NAGE's assertions to the contrary constitute mere disagreement with the Regional Director's findings and conclusions and do not establish compelling reasons, within the meaning of section 2422.17(c) of the Authority's Regulations, to grant review of the Regional Director's decision. Accordingly, we deny the application for review. For the same reasons, we deny NAGE's request for a stay of the election. V. Order The application for review and request for a stay are denied.