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47:1386(130)RO - - Fort Campbell Dependents Schools, Fort Campbell, KY and Fort Campbell Education Association - - 1993 FLRAdec RO - - v47 p1386

[ v47 p1386 ]
The decision of the Authority follows:

47 FLRA No. 130














July 27, 1993


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 Activity under section 2422.17(a) of the Authority's Rules and Regulations. The Petitioner filed an opposition to the application for review.

After a representation election in which a majority of the valid votes counted were cast for the Petitioner (Union), the Activity filed objections to the conduct of the election with the Regional Director (RD). In her Decision and Order on Objections to Election, the RD denied the objections and certified the results of the election. For the reasons which follow, we will deny the application for review.

II. Background and Regional Director's Decision

This matter is before us for the second time. The RD set aside the previous representation election(1) and conducted a second election by mail ballot pursuant to an Agreement for Consent Election. The second election resulted in 130 votes being cast for the Union and 125 votes against exclusive recognition.

Following the second election, the Activity filed objections with the RD to various procedural matters and to conduct which was alleged to have improperly affected the results of the election. As relevant here,(2) the RD summarized the objection at issue as follows:

[The Activity] was contacted by the Petitioner and the Authority regarding an allegation that it had provided the names and addresses (address labels) of bargaining unit employees to the Teachers Against Unions. Thereafter, the Activity conducted an investigation of this allegation. In doing so, the Activity believes it violated the rights of anti-union teachers. This conduct created a fear of reprisal among teachers opposed to the Petitioner, and therefore, may have improperly affected the outcome of the election.

RD's Decision at 2 (footnote omitted).

The RD dismissed the Activity's objection.(3) According to the RD, "other than . . . conclusory and speculative allegations, the Activity . . . presented no evidence as to the appearance of partiality." Id. at 6. The RD noted that, in pursuing its inquiry into the circumstances of the distribution of the mailing address labels, the Activity interviewed a teacher, Mr. McCutcheon, during a teachers' meeting. According to the RD:

the Activity called Mr. McCutcheon out of a meeting, attended by other voters, to talk with the Superintendent. McCutcheon went back to the meeting. Teachers asked him questions, but the evidence submitted by the Activity does not reveal what actually occurred.

Id. at 6. The RD concluded that the Activity failed to meet its burden of proof under section 2422.21(b) of the Authority's Regulations.(4) Accordingly, the RD dismissed the objection.

III. Application for Review

The Activity argues that the Authority should grant review of the RD's decision under 5 C.F.R. § 2422.17(c)(1) and (c)(4) because the decision: (1) raises a substantial question of law or policy because it either is not supported by, or departs from, Authority precedent; and (2) is clearly erroneous on a substantial factual issue and such error prejudicially affects "the rights of the Activity and of teachers opposed to the Union." Application at 6 (footnote omitted).

The Activity argues that the RD improperly failed to hold an evidentiary hearing. The Activity also argues that the RD's characterization of the evidence presented by the Activity as conclusory and speculative was erroneous and prejudicial to its rights. The Activity contends that it presented sufficient evidence to warrant setting aside the second election and ordering a third election.

IV. Opposition

The Union argues that the application for review should be dismissed. The Union also asserts that no material and substantial factual issues were raised which would warrant a hearing.

V. Analysis and Conclusions

We conclude, for the following reasons, that no compelling basis exists within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review.

The Activity argues first that the RD erred by not holding an evidentiary hearing. We disagree. Under section 2422.21(g) of the Authority's Regulations, the determination of whether to hold an evidentiary hearing is within the RD's discretion. Federal Deposit Insurance Corporation, Washington, D.C., 38 FLRA 952, 963-64 (1990). Further, a hearing need not be held whenever questions of fact are raised, because the RD may determine that "there are sufficient facts not in dispute to form the basis for a decision or that, even where some facts are in dispute, the record contains sufficient evidence on which to base a decision." U.S. Department of Agriculture, Forest Service, Apache-Sitgreaves National Forest, Springerville, Arizona, 47 FLRA 945, 952 (1993). The standard to determine whether a hearing is warranted is: (1) whether an offer of proof raises a substantial and material issue of fact; and (2) whether that factual issue is necessary to the resolution of the case. See Federal Deposit Insurance Corporation, 40 FLRA 775, 782-83 (1991), enf'd sub nom. FLRA v. Federal Deposit Insurance Corporation, No. 91-1207 (D.C. Cir. Sept. 1, 1992). An offer of proof must consist of "specific evidence of specific events from or about specific people," and conclusory allegations are insufficient. Id. at 783. Moreover, such evidence "must on its face warrant setting aside the election." Id. at 782.

The relevant facts are not in dispute here. Neither party contests that the incident involving Mr. McCutcheon occurred. However, as noted above, the record before the RD did not reveal who was present at the meeting attended by Mr. McCutcheon or what was said by the attendees.(5) We find that the evidence presented by the Activity did not raise a substantial and material issue of fact so as to necessitate a hearing. Accordingly, we conclude that the RD did not improperly refuse to hold a hearing and we find no basis for review of the RD's decision under section 2422.17(c)(1) of our Regulations.

The Activity also requests review under section 2422.17(c)(4) of our Regulations on the basis that the RD's "decisions on substantial factual issues related to Objection 1 are clearly erroneous". Application at 6. However, the Activity has failed to establish any factual errors on the part of the RD. Indeed, the Activity does not assert specific factual errors, but, instead, argues only that the RD's conclusion that its evidence was insufficient to carry its burden of proof was erroneous. Clearly, pursuant to section 2422.21(b) of the Authority Rules and Regulations the burden is on the objecting party to "provide the evidence necessary to support its allegations of improper conduct and to demonstrate that that conduct may have improperly affected the results of the election." U.S. Department of the Navy, Naval Station, Ingleside, Texas, 46 FLRA 1011, 1023 n.7 (1992). Accordingly, the Activity has not demonstrated that review of the RD's decision is warranted under section 2422.17(c)(4) of our Rules and Regulations.

Finally, the Activity notes that Mr. McCutcheon submitted a letter of protest, which the RD construed as objections to the election and dismissed on the basis that Mr. McCutcheon was not a party to this case and, therefore, lacked standing to file objections.(6) The Activity requests that the letter "be considered as a part of the Regional Director's investigation and as evidence before the Authority." Id. at 6 n.4. We find no basis for accepting the letter as evidence. See 5 C.F.R. § 2422.17(b); Department of Veterans Affairs, John J. Pershing Medical Center, Poplar Bluff, Missouri, 45 FLRA 326 (1992). Moreover, even assuming that the letter constituted evidence, it is not argued, and we are unable to discern, how it is now relevant.

Based on the foregoing, we conclude that the Activity's arguments express only disagreement with the RD's evaluation of the evidence and her conclusions based on the evidence. We, therefore, find no basis for granting the application for review. See U.S. Department of Labor, Office of Administrative Law Judges, Pittsburgh, Pennsylvania, 40 FLRA 1021, 1024 (1991).

VI. Order

The application for review of the Regional Director's decision and order is denied.

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

1. The RD sustained the Union's objections to the prior election and directed that a new election be held. Subsequently, the Authority denied the Activity's application for review of the RD's decision. Fort Campbell Dependents Schools, Fort Campbell, Kentucky, 46 FLRA 219 (1992).

2. The Activity filed six objections with the RD. However, as the application for review concerns the RD's decision on only one of the objections, we need not address the others.

3. The RD decided the case on the record, without holding an evidentiary hearing.

4. Section 2422.21(b) of the Authority's Rules and Regulations provides, in pertinent part:

The objecting party shall bear the burden of proof at all stages of the proceeding regarding all matters raised in its objections.

5. In this regard, we find misplaced the Activity's argument that the persons present when Mr. McCutcheon was called out of the teachers' meeting, although unnamed in the record before the RD, are "easily identifiable for purposes of an evidentiary hearing. . . ." Application at 13. There is no assertion, or other basis on which to conclude, that the Activity was prevented from or otherwise unable to produce evidence necessary to support its objection during the RD's investigation or that requiring it to do so was improper.

6. No application for review was filed to the RD's dismissal.