48:1140(125)RP - - DOD, NG Bureau, NC Air NG, Charlotte, NC and John A. Teague, Jr. and ACT, Tarheel Chapter - - 1993 FLRAdec RP - - v48 p1140
[ v48 p1140 ]
The decision of the Authority follows:
48 FLRA No. 125
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
NORTH CAROLINA AIR NATIONAL GUARD
CHARLOTTE, NORTH CAROLINA
JOHN A. TEAGUE, JR.
ASSOCIATION OF CIVILIAN TECHNICIANS
(48 FLRA 395 (1993))
DECISION AND ORDER ON REVIEW
December 22, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority for review of the Regional Director's (RD) Decision and Order on Objections in which the RD dismissed the Union's objections and stated that the results of the election would be certified.
The Union filed an application for review of the RD's decision. In U.S. Department of Defense, National Guard Bureau, North Carolina Air National Guard, Charlotte, North Carolina, 48 FLRA 395 (1993), we granted the Union's application for review because we concluded that a substantial question of law or policy was raised with respect 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.
The background of this case, the Union's objections, and a full discussion of the RD's decision are set forth in our decision in 48 FLRA 395.
Pursuant to our order granting review, the Union and the Activity filed supplemental briefs. For the reasons set forth below, which differ in part from those of the RD, we affirm the RD's decision to certify the results of the election.
II. Positions of the Parties
As set forth in our earlier decision, the Union asserted that the RD departed from Authority precedent and made clearly erroneous and prejudicial findings of fact in concluding that certain actions by the Activity involving the Union's access to its facilities and its employees did not improperly affect the election results. In addition, the Union contended that extraordinary circumstances warrant reconsideration of the Authority's policy of processing an election petition where the Federal Service Impasses Panel (the Panel) has improperly delayed ruling on a contractual impasse.
In its supplemental brief, the Union reiterates the arguments made in its application for review. According to the Union, the Activity was "clearly required to bargain with the Union over [the] restrictions" applied to its representatives because access is essential to its role in representing the Activity's employees. Union's Supplemental Brief at 22. The Union argues that proposals concerning access to Activity facilities for non-employee union representatives are within the duty to bargain and asserts that the Activity's unilateral imposition of restrictions on access requires that the results of the election be set aside and a second election be conducted. The Union contends that the pendency of the decertification petition did not alter the Activity's bargaining obligation. Citing United States Department of Justice, United States Immigration and Naturalization Service, 9 FLRA 253, 263 (1982) (INS), enforcement denied as to other matters sub nom. U.S. Department of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984), the Union argues that "[t]he pendency of a question concerning representation does not permit the employer to unilaterally alter conditions of employment; it remains obligated to maintain existing conditions." Union's Supplemental Brief at 13. The Union maintains that it was willing to bargain over guidelines for access, but that the Activity restricted access without bargaining. The Union argues that the RD erred in concluding that the Activity satisfied its obligation to bargain when it issued its July 23, 1993, memorandum.
With respect to the use of bulletin boards, the Union reiterates its argument that the Activity unilaterally changed its past practice of permitting the Union to post notices on bulletin boards throughout the facility. In addition, the Union argues that the Activity violated its bargaining obligations by imposing these restrictions after acknowledging that the use of bulletin boards was a proper subject of bargaining. The Union claims that this "blatant refusal to bargain . . . cast the Union in a negative light concerning its core function, bargaining with the [Activity] over mandatory terms and conditions of employment." Id. at 19.
In its opposition, the Activity maintained that the Union had not identified any factual finding of the RD that was not supported by substantial evidence, any precedent from which the RD had departed, or any extraordinary circumstances within the meaning of 5 C.F.R. § 2422.17(c)(2) warranting reconsideration of the Authority's position that it is inappropriate to process an election petition after the Panel has asserted jurisdiction over an impasse.
In its supplemental brief, the Activity asserts that it did not have an obligation to bargain with the Union over pre-election campaign rules. Rather, the Activity maintains that during the pendency of a question concerning representation, its "overriding duty [was] to remain neutral . . . ." Activity's Supplemental Brief at 8. The Activity notes that "[t]he Union has made no serious allegation that it and the Petitioner were treated differently by the [Activity] in terms of pre-election campaign rules[.]" Id. at 9. The Activity requests that the Authority affirm the RD's decision.
III. Analysis and Conclusions
We agree with the RD that Objections 6, 7, and 8 provide no basis for overturning the results of the election. With regard to Objections 5 and 10, we conclude, based on Authority precedent, that the Activity was not obligated to bargain with the Union over procedures to govern campaign activities due to the pendency of a question concerning representation (QCR). Accordingly, we will dismiss the objections and order that the results of the election be certified.
A. Objection 5
The Union argues that the Activity's refusal to bargain over campaign guidelines requires setting aside the election. More specifically, the Union asserts that the "[RD's] finding that the [Activity's] July 23, 1993 [m]emorandum constituted 'counterproposals' . . . is clearly erroneous." Application at 16; Union's Supplemental Brief at 16. In this regard, the Union asserts that "the [RD] completely misconstrued the facts concerning the [Activity's] actions, and departed from . . . well-established [Authority] precedent." Application at 17. Upon review, we agree that the RD departed from Authority precedent, but for reasons that differ significantly from those advanced by the Union in its application.
At the outset, we note that in finding that the Activity's conduct did not amount to a refusal to bargain, the RD appears to have concluded, without expressly stating, that the Activity had a duty to bargain over the Union's proposed campaign guidelines. Contrary to the RD, we conclude that the Activity had no obligation to bargain concerning this issue.
In INS, the Authority held that during the pendency of a QCR, management is obligated to maintain existing conditions of employment until the QCR is resolved. The Authority also held that this obligation "would not prevent [an agency] from making changes in otherwise negotiable personnel policies, practices and matters affecting working conditions under all circumstances, such as where such changes were required consistent with the necessary functioning of the agency." 9 FLRA at 255 n.2. See also Defense Distribution, Region West, Lathrop, California, 47 FLRA 1131 (1990).
Thereafter, the Authority concluded in Immigration and Naturalization Service, 16 FLRA 80 (1984), that, based on the policies set forth in INS, an agency is not obligated to bargain with an incumbent union during the pendency of a QCR because to do so "would necessarily have led to changes in conditions of employment . . . ." Id. at 87.
Applying the foregoing principles to the facts of this case, we find that the Activity was not obligated to bargain with the Union over procedures to govern campaign activities due to the pendency of a QCR. Rather, it was the Activity's obligation to remain neutral in all matters regarding the election in order to ensure the employees' freedom of choice. See INS, 9 FLRA at 263. Accordingly, we reject the Union's contention that the Activity's refusal to bargain over campaign guidelines requires setting aside the election. Consistent with this finding, we will dismiss Objections 5 and 10.(1)
B. Objection 6
The Union asserts that the Activity "unlawfully interfered with its employees' protected rights by severely restricting the Union's access to the employees, while at the same time permitting the Petitioner and his supporters to campaign freely on the base[.]" Application at 21. The Union argues that, by contrast, "[its] representatives . . . were restricted to two parking lots during specified times on only four days prior to the election" and that this discriminatory treatment violated the Activity's duty to maintain strict neutrality in the decertification election. Id. at 21-22. According to the Union, this conduct mandates setting aside the election results.
Contrary to the Union's argument, we find that the record clearly supports the RD's decision that the Activity did not unduly limit the Union's access to unit employees by restricting the time periods during which non-employee Union representatives could campaign in the parking lots. In this regard, we note the Union's argument that "[a]lthough [its representatives] were allowed to be on the parking lots before and after work and during lunch hours for four days, in reality those arrangements gave them no significant access to most of the Union employees." Application at 24. We further note that the Union did not exercise its right to campaign in the parking lots during the times the Activity offered. RD's Decision at 8. Indeed, the Union concedes that it actually was seeking "unlimited access" to the Activity's premises. Application at 25. As we discuss below, it is clear from the record that no non-employees enjoyed such access. In these circumstances, we reject the Union's argument that the RD's decision departs from Authority precedent in this regard or is clearly erroneous or prejudicial. Rather, we conclude that the Activity's restriction on the times in which non-employee Union representatives could campaign in its parking lots did not improperly interfere with the employees' freedom of choice in the election.
Accordingly, we will dismiss this objection.
C. Objection 7
The Union asserts that the Activity "unlawfully interfered with its employees' protected rights by severely restricting the Union's access to the employees, while at the same time permitting . . . other outside organizations access to the base for various purposes unrelated to the operation of the base." Application at 21. More specifically, the Union asserts that "[b]oth before and during the time that the Union was seeking access, the [Activity] allowed several other organizations and individuals to come onto the base for purposes unrelated to the operation of the base." Id. at 23. In the Union's view, such conduct on the part of the Activity clearly demonstrates that the Union was "singled out . . . for special restrictions concerning its access to the base." Id.
The Union additionally contends that it had much greater access to the Activity's premises during the 1990 organizing campaign. According to the Union, during the 1990 campaign, both its National Field Representative and its National President visited employees on several different occasions and on those occasions were unescorted. In addition, the Union states that in those instances when the Activity's supervisors were aware of their presence, the supervisors failed to raise any objections.
Finally, the Union observes that the RD "did not even address the [Activity's] unlawful restriction of the Union's use of bulletin board space during the election campaign." Id. at 27. In this regard, the Union states that there had been "a past practice [of] allowing the Union to post various notices on bulletin boards throughout the facility . . . ." Id.; Union's Supplemental Brief at 17. However, the Union asserts that when a local Union official attempted to post a meeting notice approximately a week before the election, the Activity ordered that the notice be removed.
We find, for the reasons stated by the RD, that the record fails to support the Union's argument that the Activity unlawfully restricted the access of non-employee Union representatives to its premises. In this regard, the record reflects that when visitors are given access to the Activity's premises without an escort, they are restricted to the particular area in which their work is located. For example, food vendors are restricted to the snack bar or vending machines, and other vendors, such as car waxers, are restricted to the parking lot. Thus, contrary to the Union's assertion, unescorted visitors are not given unrestricted access to the Activity's work areas. In addition, the record reflects that the Activity's guards routinely grant access to visitors with a valid military identification card or a Department of Defense (DOD) parking decal. The record further reflects that when the Union's non-employee representatives gained access to the Activity's premises during the 1990 organizing campaign, they did so by using their DOD credentials or by advising the guards that they were there to visit a specific employee. However, at no time did they reveal the purpose of their visit or their status with the Union. Moreover, the Activity did not authorize their access for the purpose of organizing its employees. Transcript at 35-38, 165-66.
Although the Union correctly states that the RD failed to address its contention that the Activity restricted its use of bulletin boards during the pre-election campaign, the Union has not established that by this restriction the Activity unlawfully interfered with the results of the election. A union does not have a statutory right of access to agency bulletin boards. Federal Election Commission, 20 FLRA 20, 21 (1985). Such right of access may arise, however, as a matter of past practice and, once established, cannot be unilaterally changed. See Department of Labor, Office of Workers' Compensation Programs, Branch of Special Claims, 11 FLRA 77, 83 (1983).
In the instant case, the record shows that after the 1990 election, the Union was permitted to post a list of Union officers and other notices, such as those announcing upcoming meetings, on the Activity's bulletin boards. However, there is no indication in the record as to when the Activity began to place restrictions on bulletin board use. The record establishes only that approximately a week before the election, when the local Union president posted a meeting notice on the Activity's bulletin boards, he was directed to take it down, but that, upon receipt of the Activity's July 23 letter, the Union again posted the notice without objection from the Activity. The Union also posted a sample ballot two days prior to the election.
Upon review of the record in this case, we find that the evidence is insufficient to establish that the Activity's conduct regarding this issue improperly interfered with the employees' freedom of choice in the election. In this regard, we specifically note that there is no evidence to indicate that at the time the decertification petition was filed there was a past practice whereby the Union was permitted to post materials on the Activity's bulletin boards. Thus, the Union has failed to establish that its right of access to the bulletin boards was discontinued as a result of the election campaign. Furthermore, even assuming that there was a past practice at the time the Activity requested that the meeting notice be removed, we find no evidence to indicate that the Union was unduly prejudiced by its failure to contact unit employees. In fact, the record clearly indicates that the Union was permitted to post notices beginning six days before the election, and that it did so. In these circumstances, we are unable to conclude that the Activity unlawfully interfered with the results of the election.(2) See Federal Deposit Insurance Corporation, Washington, D.C., 38 FLRA 952, 963 (1990) (the burden is on the objecting party to make a record that shows the potential impact the alleged conduct had on the election).
Accordingly, we will dismiss this objection.
D. Objection 8
The Union argues that "[e]xtraordinary circumstances warrant reconsideration of the Authority's policy of processing a petition where the [Panel] has improperly delayed ruling on the contractual impasse which exists between the [Activity] and the Union."(3) Application at 28. In support of this position, the Union argues that the Authority's policy of permitting petitions to be filed after the Panel has asserted jurisdiction over an impasse, but before the Panel has resolved it, undermines the Federal Service Labor-Management Relations Statute's (the Statute) policy of fostering labor-management relations by denying the parties an opportunity to utilize the impasse procedures of the Statute. The Union further asserts that the Panel's failure to act in the manner contemplated by the Statute should not be used to prejudice the rights of the parties to the bargaining relationship. It therefore asserts that in the unique circumstances of this case, it was improper for the RD to strictly apply the contract bar doctrine.
As previously noted, the Union in this case was certified as the exclusive representative of the employees in the bargaining unit on August 16, 1990. The decertification petition was subsequently filed on May 7, 1992, approximately 21 months after the certification. Despite ongoing negotiations, no collective bargaining agreement was ever executed. Based on these facts, we conclude that the Union has failed to establish a basis for reversing the RD's findings that the petition was appropriately considered. In this regard, we specifically note that the Union had been the exclusive bargaining representative for more than twelve months at the time it requested Panel assistance. The Statute clearly permits a challenge to an incumbent union if it has not negotiated a contract within twelve months after certification, regardless of whether there are issues pending before the Panel. The Petitioner was simply exercising his statutory right to challenge the Union when he filed a petition over a year and a half after the Union was certified. We additionally note the speculative nature of the ultimate outcome of negotiations after the completion of Panel proceedings. Thus, even if the Panel had proceeded without delay to resolve the matters before it, there is no assurance that the parties would have entered into a contract before the petition was processed.
We therefore conclude that the Union has failed to articulate any extraordinary circumstances that would warrant reconsideration of our current policy of processing election petitions following the commencement of impasse proceedings.
Accordingly, we will dismiss this objection.
On review of the RD's decision, we dismiss the Union's objections and order that the results of the election be certified.
(If blank, the decision does not have footnotes.)
1. As neither party has raised issues regarding the continued viability of the INS doctrine either in this case or in response to the Authority's request for comments concerning the issue before it in Order Denying Request for Major Policy Ruling, 46 FLRA 1335 (1993), see 48 FLRA 395, 396 n.1 (1993), we see no reason to address such issues at this time.
2. To the extent that the Union is arguing that the Activity unilaterally changed its past practice of permitting the Union to use its bulletin boards, we find that this issue is not appropriate for resolution in the context of the instant proceeding. Rather, we note that an unfair labor practice proceeding is the appropriate forum for the resolution of such an allegation. U.S. Department of Health and Human Services, Social Security Administration, 44 FLRA 230, 240 (1992).
3. The Union filed a motion to dismiss the petition in this case on June 11, 1992. On June 22, 1992, the Acting Regional Director (ARD) issued an Order denying the Union's motion. Thereafter, the Union filed an application for review of the ARD's Order with the Authority. On August 27, 1992, specifically finding that the Union's application for