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
FEDERAL LABOR RELATIONS AUTHORITY
FORT CAMPBELL DEPENDENTS SCHOOLS
FORT CAMPBELL, KENTUCKY
FORT CAMPBELL EDUCATION ASSOCIATION
ORDER DENYING APPLICATION FOR REVIEW
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.
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 Corpo