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48:0395(36)DR - - DOD, NG Bureau, NC Air NG, Charlotte, NC and John A. Teague, Jr. and ACT, Tarheel Chapter - - 1993 FLRAdec DR - - v48 p395

[ v48 p395 ]
The decision of the Authority follows:

48 FLRA No. 36















(Labor Organization)




August 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 Association of Civilian Technicians (Union) under section 2422.17(a) of the Authority's Rules and Regulations. The Activity filed an opposition to the application.

Following an election in which a majority of valid votes counted was cast against exclusive recognition, the Union timely filed objections to the election with the Regional Director (RD). In her Decision and Order on Objections, the RD dismissed the Union's objections and stated that the results of the election would be certified.

We conclude that compelling reasons exist for granting review of the RD's decision and order pursuant to the provisions of section 2422.17 of the Authority's Rules and Regulations. Accordingly, we grant the application for review.

II. Background and Regional Director's Decision

On August 16, 1990, the Union was certified as the exclusive representative of a bargaining unit consisting of all eligible nonprofessional Wage Grade and General Schedule employees of the Activity. The parties then entered into negotiations for a collective bargaining agreement. Thereafter, on January 10, 1992, the Union requested the assistance of the Federal Service Impasses Panel (Panel) to resolve six proposals on which the parties were at impasse.

On May 7, 1992, prior to Panel resolution of the impasse, the Petitioner filed a petition for decertification of the exclusive representative. As a result, on June 24, 1992, the Panel notified the parties that it was holding the matters before it in abeyance pending the final outcome of the representation proceeding. The Union and the Activity never entered into a collective bargaining agreement.(1)

On July 6, 1992, after the parties had agreed to an election date, the Union orally proposed to the Activity certain procedures to govern campaign activities prior to the election. Although the Activity informed the Union that it would get back to it in a few days, the Activity failed to do so. On July 17, having received no response to its oral proposals, the Union sent written proposals to the Activity. Subsequently, by letter dated July 23, the Activity informed both the Union and the Petitioner that, prior to the election, each would have equal access to the Activity's bulletin boards and that each would be permitted to campaign in the parking lots. More specifically, the Activity's letter stated that from July 24 until July 29, campaigning would be permitted in the parking lots for one hour both before and after work and during the lunch hour. The letter concluded with the statement that, "[t]o preclude disruption of work, [Union] representatives not employed by the Agency will not be permitted to visit the various work, lunch, and break areas for pre-election campaigning." RD's Decision at 6 (quoting Joint Exhibit 2). The Union did not attempt to contact the Activity's designated representatives following receipt of the Activity's letter.

On July 29, 1992, the RD conducted a secret ballot election in accordance with the provisions of an Agreement for Consent Election. The tally of ballots showed that of 133 valid votes counted, 60 were cast in favor of the Union and 73 votes were cast against exclusive recognition. Following the election, the Union filed 10 objections to conduct by the Activity which, it alleged, improperly affected the election results.(2) As relevant here,(3) the objections state:

5. The Activity refused to negotiate with the Union concerning adequate times and locations for [the Union] to campaign prior to the election;

6. The Activity unduly limited the time periods during which [the Union] would be permitted to campaign prior to the election;

7. The Activity granted [the Union] unreasonable access to bargaining unit employees to campaign prior to the election; and,

8. It was inappropriate to process the petition in this case due to the improper delay by the Federal Services Impasses Panel to resolve the contractual impasse which existed between the Activity and the Union.

Id. at 3. An investigation was conducted and a hearing was held on these objections.

The RD dismissed Objection 5, concerning the Activity's obligation to bargain over procedures to govern campaign activities prior to the election. The Union argued before the RD that "the Activity's failure to respond to its July 6 verbal proposal and its delay in responding to its July 17 letter [containing written proposals] is a refusal to bargain." Id. at 8. In rejecting the Union's argument, the RD first observed that "[t]he Activity's failure to respond to the July 6 verbal proposal does not appear justified and initially caused a delay in communications between the parties." Id. The RD further observed, however, that the Union "remained able to contact the Activity's representative concerning campaign guidelines but instead chose to wait 11 days to do so." Id. at 9. The RD therefore found that the Union was equally responsible for the lack of communication.

With regard to the Union's July 17 written proposals, the RD concluded that the Activity's July 23 response was "timely under the circumstances." Id. The RD additionally concluded as follows:

[D]espite the Union's characterization of the July 23 letter, I find that this letter restated the Activity's current policy concerning visitors and constituted counterproposals on the Activity's part. The Union, however, failed to respond directly to these counterproposals. Thus, under the totality of the circumstances, I do not find that the Activity's conduct amounts to a refusal to bargain. Rather, the Union failed to pursue negotiations on this issue.


The RD also dismissed Objection 6, in which the Union argued that the "Activity's limitations on the time when Union officials could campaign in the parking lot severely restricted the Union's access to the unit employees." Id. In arriving at this finding, the RD found that the "Activity restricted only the time periods the Union and the Petitioner could campaign in the parking lots[]" and that "[t]he record clearly shows that the local Union officials and the Petitioner campaigned during work time despite being told not to do so." Id. at 9-10. The RD noted that the Activity had placed no restrictions on campaigning away from the premises and that the Union had engaged in this form of campaigning. Finding that "the same rules concerning time limitation applied equally to the Union and the Petitioner[,]" the RD concluded that "the Activity did not unduly limit the time periods during which the Union was permitted to campaign." Id. at 10.

In dismissing Objection 7, the RD similarly rejected the Union's contention that the Activity's refusal to grant non-employee Union officials access to various work areas severely restricted its access to unit employees. The Union argued before the RD that "the Activity allows access to other non-employee visitors and this restriction is based solely upon Union activity and is thus unlawful." Id.

The RD found that "the Activity did not grant the Union unreasonable access to unit employees prior to the election." Id. at 11. In arriving at this finding, the RD initially determined that there was "no evidence of unlawful motivation[]" and that the "Activity applied its existing policy concerning visitors in a non-discriminatory manner." Id. at 10. More specifically, the RD observed that visitors to the Activity's premises are not permitted to wander about as they please and that the Activity does not grant unrestricted access to its various work areas, as the Union had sought. The RD further found it to be of "no consequence that during the 1990 campaign a lower level supervisor witnessed a non-employee Union official unescorted in a work area but took no action." Id. at 11. In this regard, the RD observed that "[a]n occasional lapse in policy does not constitute a full scale departure from that policy." Id. Finally, the RD observed that: local Union officials and the Petitioner actively campaigned during work time and at work areas despite the Activity's instructions not to do so; there were no restrictions on campaigning away from the premises; and non-employee Union officials held campaign meetings off the Activity's premises. The RD therefore rejected this objection.

The RD also dismissed Objection 8, in which the Union argued that "the decertification election was barred since the services of the Panel ha[d] been invoked over several proposals that the parties bargained to impasse." Id. at 12. The Union argued before the RD that the "parties would have executed a collective bargaining agreement upon the Panel's resolution of these proposals and that agreement would [have] preclude[d] the decertification election." Id.

In addressing this objection, the RD discussed section 2422.3(b) of the Authority's Rules and Regulations, which provides that where there is a certified exclusive representative of the employees, a petition for decertification will be considered untimely if filed within 12 months after the certification of the exclusive representative. The RD noted that such a petition is timely if there is no collective bargaining agreement in effect. The RD additionally observed that the petition for decertification was filed approximately 21 months after the Union was certified,and that despite the ongoing negotiation process, no collective bargaining agreement had been executed. Therefore, the RD found, in accordance with section 2422.3(b) of the Authority's Rules and Regulations, that the Union had not established that a contract bar exists. The RD accordingly concluded that the petition was timely.

Having found that no objectionable conduct occurred, the RD stated her intent to issue a Certification of Election Results.

III. Positions of the Parties

A. Application for Review

The Union argues that its application for review should be granted on the grounds set forth in 5 C.F.R. section 2422.17.(4) In particular, the Union asserts that the RD departed from Authority precedent and made clearly erroneous and prejudicial findings of fact in concluding that the following actions by the Activity did not improperly affect the election results: unilaterally determining the extent to which the Union would have access to its facilities and its employees without bargaining; denying non-employee Union representatives access to lunch or break areas; restricting non-employee Union representatives to tables in two parking lots; and denying the Union bulletin board space for campaign notices until less than one week before the election. In addition, the Union asserts that extraordinary circumstances warrant reconsideration of the Authority's policy of processing an election petition where the Panel has improperly delayed ruling on the contractual impasse that exists between the Activity and the Union.

B. Opposition

The Activity asserts that the Union has failed to describe any circumstances that warrant reconsideration of the RD's decision. More specifically, the Activity states that "the Union has not identified any factual finding of the Regional Director which is not supported by substantial evidence, [and] has cited no precedent from which the Regional Director departed[.]" Opposition at 2. The Activity additionally asserts that the Union has failed to describe any extraordinary circumstances within the meaning of 5 C.F.R. 2422.17(c)(2) which would warrant reconsideration of the Authority's position that it is inappropriate to process an election petition after the Panel has asserted jurisdiction over an impasse.

IV. Order

We conclude that the Union has established that compelling reasons exist for granting the application for review of the RD's decision and order pursuant to the provisions of section 2422.17 of the Authority's Rules and Regulations. In particular, we grant the application for review with regard to the following issue:

Whether, in the circumstances of this case, there was a bargaining obligation on the part of the Activity with regard to procedures to govern the election campaign.

Accordingly, we grant the application for review of the RD's decision and order. In accordance with section 2422.17(g) of our Rules and Regulations, the parties may, within 10 days after issuance of this order, submit briefs on the issues raised by the application for review. Briefs shall be directed to:

Alicia N. Columna
Director, Case Control Office
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424-0001

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

1. On June 30, 1992, while the impasse involving these parties was pending before the Panel, the Panel requested that the Authority issue a major policy ruling on the question of whether an agency is obligated to continue to cooperate with impasse proceedings if a question concerning representation (QCR) arises following the Panel's assertion of jurisdiction over an impasse. The Authority notified the parties to this case of the Panel's request following its receipt. The Authority additionally requested from agencies, labor unions and other interested persons written comments concerning whether the Authority should issue a general ruling on the question raised by the Panel and, if a ruling were issued, what it should be. 58 Fed. Reg. 45058 (1992). No comments were received from any agencies or labor unions. Thereafter, noting specifically that no labor union or agencies had filed comments in response to its request, the Authority concluded that the record was inadequate to permit resolution of this issue in a general ruling. It therefore denied the Panel's request. Order Denying Request for Major Policy Ruling, 46 FLRA 1335 (1993).

2. On August 12, 1992, the Activity filed a motion to dismiss the objections on the ground that they were not timely filed. In her Decision and Order on Objections, the RD denied the Activity's motion, finding that the objections were timely. As none of the parties has filed an application for review concerning this finding, we will not consider it further.

3. In addition, Objection 10 states:

The above conduct, individually and together, affected the outcome of the election.

The RD did not separately address Objection 10, and the Union has not done so in this proceeding. On January 15, 1993, the RD approved the Union's request to withdraw Objections 1, 2, 3, 4, and 9.

4. Section 2422.17(c) provides that the Authority may grant an application for review on one or more of the following grounds:

(1) That a substantial question of law or policy is raised because of (i) the absence of, or (ii) a departure from, Authority precedent;

(2) That there are extraordinary circumstances warranting reconsideration of an Authority policy;

(3) That the conduct of the hearing held or any ruling made in connection with the proceeding has resulted in prejudicial error; or

(4) That the Regional Director's decision on a substantial factual issue is clearly erroneous and such error prejudicially affects the rights of a party.