44:0217(19)CA - - Gallup Indian Medical Center, Gallup, NM and NFFE Local 1749 and Laborers' Intl. Union of North America, Navajo Area Health Care Employees, Local Union 1376 - - 1992 FLRAdec CA - - v44 p217

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[ v44 p217 ]
The decision of the Authority follows:

44 FLRA No. 19








LOCAL 1749

(Charging Party)








March 3, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Charging Party to the attached decision of the Administrative Law Judge. The General Counsel and the Intervenor filed oppositions to the Charging Party's exceptions.(*)

The complaint alleged that the Respondent violated section 7116(a)(1) and (3) of the Federal Service Labor-Management Relations Statute (the Statute) by unlawfully assisting the Intervenor in permitting organizing efforts by the Intervenor at a time when the Intervenor did not have equivalent status. The Judge found that the Respondent violated the Statute as alleged and ordered the Respondent to cease and desist from providing assistance to the Intervenor and interfering with employees' rights and to post an appropriate notice.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. On consideration of the entire record, and noting the absence of exceptions to the Judge's finding of a violation of the Statute, we adopt the Judge's findings, conclusions, and recommended Order.

The Charging Party excepts only to the content of the Judge's recommended Order as insufficient to remedy the violation. The Charging Party notes that following the filing of the unfair labor practice charge in this case, the Regional Director "blocked the [Intervenor's previously filed] petition for representation [in Case No. 76-RO-00011] and has held it in abeyance since that time pending the outcome of the instant charge." Charging Party's Exceptions at 3-4. According to the Charging Party, if the Authority were to adopt the Judge's recommended Order, "the block would be removed and the Authority would be required to conduct an election . . . ." Id. at 4. The Charging Party asserts that no election should be held based on the Intervenor's representation petition and the petition should be dismissed because the signatures solicited by the Intervenor on the Respondent's premises for the purpose of filing a representation petition were tainted.

It is evident from the record that following the filing of the unfair labor practice charge in this case, the Regional Director blocked the Intervenor's previously filed representation petition in Case No. 76-RO-00011 seeking an election in the unit represented by the Charging Party. The Regional Director's action in blocking the petition was consistent with the policy that, generally, "representation elections will not be conducted when unfair labor practice charges filed by a party to the representation case are based on conduct of a nature which would have a tendency to interfere with the free choice of the employees in an election were such an election to be conducted." Office of the General Counsel's Representation Case Handling Manual, Section 220.011. The disposition of an unfair labor practice charge "will serve to 'unblock' the representation proceeding." Id., Section 220.013.

Accordingly, the representation proceeding has been blocked pending the disposition of the unfair labor practice charge in this case. Our decision in this case will allow the resumed processing of the representation petition filed in Case No. 76-RO-00011. However, our decision does not require the Regional Director to conduct an election.

The determination as to what course of action in Case No. 76-RO-00011 is appropriate in light of our decision in this unfair labor practice case is for the Regional Director to make, inasmuch as Case No. 76-RO-00011 has not been made part of the proceeding before us. Compare Department of Justice, Immigration and Naturalization Service, 9 FLRA 253, 263 (1982) (INS), rev'd as to other matters sub nom. U.S. Department of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984) and Department of the Air Force, Air Force Plant Representative Office, Detachment 27, Fort Worth, Texas, 5 FLRA 492 (1981). Our decision allows the Regional Director to resume processing of the representation petition, consistent with our decision in this case, in accordance with section 2422 of the Authority's Rules and Regulations (5 C.F.R. § 2422) and the General Counsel's Representation Case Handling Manual.

Following our decision in this case, the Regional Director shall, pursuant to section 2422.4(f) of our Rules and Regulations, make such investigation as she deems necessary in Case No. 76-RO-00011 and take appropriate action. Section 2422.4(f) provides that the Regional Director may: (1)