[ v54 p1484 ]
The decision of the Authority follows:
54 FLRA No. 127
FEDERAL LABOR RELATIONS AUTHORITY
UNITED STATES ARMY AIR DEFENSE ARTILLERY CENTER
AND FORT BLISS
FORT BLISS, TEXAS
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
(Incumbent Labor Organization/Intervener)
ORDER GRANTING IN PART AND DENYING IN PART
APPLICATION FOR REVIEW
November 3, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.(1)
I. Statement of the Case
This case is before the Authority on an application for review of the Acting Regional Director's (RD's) decision filed by Petitioner National Federation of Federal Employees (NFFE) under section 2422.17(a) of the Authority's Regulations.(2) The RD found that the Agency had given unlawful assistance to NFFE and dismissed NFFE's petition. The incumbent labor organization, the National Association of Government Employees (NAGE), filed an opposition to NFFE's application for review.
We conclude that NFFE has established that, under section 2422.17(c)(1) of the Authority's Regulations, compelling reasons exist for granting review of the RD's decision because of an absence of precedent concerning the appropriate standard to apply in determining when improper agency conduct has tainted a union's showing of interest submitted in support of its petition for a representation election.(3) In all other respects, we find that the Petitioner has not established grounds for review and we dismiss the petition.
In its application for review, NFFE alleges that the RD made a variety of procedural and factual errors in the processing of the case.(4) NFFE alleges that procedurally: (1) the RD was in error to schedule a hearing, rather than an election, after the Activity and NAGE signed a settlement agreement regarding a pending unfair labor practice charge; (2) the decision to schedule a hearing disregarded section 2423.11(b)(1) of the Authority's regulations; and (3) NAGE's objections to the petition were not timely under section 2422.2(f)(2) of the Authority's Regulations.
NFFE further argues that the RD erred in inferring that any unlawful Agency assistance to its organizer tainted the showing of interest that it filed with its petition for an election. NFFE asserts that the evidence shows that the signatures were collected by employees, not the organizer, and that there was no evidence supporting a conclusion that the organizer improperly collected signatures.
NAGE contends that a hearing was appropriate in the circumstances of this case. NAGE also argues that NFFE's application does not meet any of the grounds for review set forth in the Authority's Regulations.
We find that NFFE has not established that the RD committed prejudicial procedural error in holding a hearing once the unfair labor practice charge filed by NAGE was settled. The Authority has held that an RD is obligated to resolve any remaining issues after an unfair labor practice charge that has blocked a representation matter is resolved. See U.S. Department of Health and Human Services, Public Health Service, Indian Health Service, Gallup Indian Medical Center, Gallup, New Mexico, 46 FLRA 1421, 1429-30 (1993) (Gallup). The Authority's regulations provide the RD discretion to conduct a hearing "as appropriate." 5 C.F.R. 2422.4(f). This discretion is not limited by section 2423.11(b)(1) of the Authority's Regulations, which provides that "no further action shall be taken in the case" once an unfair labor practice is settled. That section is part of the Authority's unfair labor practice regulations, and the reference to action on "the case" refers to the unfair labor practice case, not to a related representation case.
NFFE's assertion that the RD disregarded section 2422.2(f)(2) of the Authority's regulations by considering NAGE's objection to be timely is also unwarranted.(5) NAGE filed its ULP charge challenging the showing of interest before the notice of NFFE's petition was posted. The regulation states that an objection must be filed "within 10 days after the date of posting" of the notice, but the regulation does not foreclose the filing of an objection prior to the posting. Thus, NAGE's challenge was not untimely and did not delay the processing of the case. See Veterans Administration Medical Center, Brooklyn, New York, 9 FLRA 1090, 1091 (1982).
With respect to NFFE's disagreements with the RD's factual findings, we find that it has not established that the RD's decision on any factual determination which formed the basis of her conclusion that NFFE's access was improper is clearly erroneous or prejudicially affects the rights of any party under section 2422.17(c)(4) of our regulations.(6)
Finally, NFFE claims that the RD erred in inferring that any improper assistance that the Agency gave to NFFE's organizer by granting him access to Agency premises was sufficient grounds to dismiss the petition. In this regard, once the RD found that the Agency had unlawfully assisted NFFE, she concluded that "any cards signed during the Activity's unlawful assistance" were tainted. Decision at 8. Without any further findings, the RD then concluded that the petition should be dismissed.
In Gallup, the Authority, in effect, rejected a per se connection between the finding of an unfair labor practice of unlawful assistance and the dismissal of an election petition. The Authority stated that:
We do not agree [with the rival union] that the RD's decision creates a rule that a pre-petition [ULP] by an agency necessarily taints a showing of interest. On the contrary, the RD found that the nature of the [ULP], as found by the Authority in [44 FLRA 217], in the specific circumstances of this case, tainted the showing of interest so as to render it invalid and require dismissal of [the rival union's] petition.
Gallup, 46 FLRA at 1431. This passage, in context, raises an inference that an RD must make specific findings that a particular unfair labor practice has tainted the union's showing of interest. However, it does not state this principle as a requirement or provide a standard to determine what findings should be made in cases such as this one. For example, Gallup does not indicate how the RD should evaluate claims that signatures were independently gathered by employees who were not provided improper access, or claims that the presence of the non-employee organizer at certain times was due to the representation of other bargaining units at the same location, rather than improper organizing activity.
Accordingly, we conclude that this case raises a substantial question of law on which there is an absence of precedent, necessitating that the Authority grant review under section 2422.17(c)(1) of the regulations. In granting review, we request that the parties submit their positions concerning the appropriate standard for the Authority to adopt. In addition, the parties should address whether the standard proposed can be applied by the Authority on the record in this case or whether the case should be remanded to the RD, and, if it is applied by the Authority, whether the record supports a dismissal of the petition.
The Petitioner has established that grounds exist for granting review of the RD's decision under 2422.17(c)(1) of the Authority's Regulations. Accordingly, we grant the application for review on the following issues:
What standard should be used to determine whether an agency's improper conduct should lead to the dismissal of an election petition on the basis that the accompanying showing of interest was tainted.
If the standard adopted by the Authority requires that there be a specific factual determination that the showing of interest accompanying the petition is tainted, what facts in the record in this case demonstrate that the showing of interest is, or is not, tainted.
We deny the application for review in all other respects.
In accordance with section 2422.17(g) of our Regulations, the parties may file briefs, within 10 days of the date of this Order, on the issues set forth above. Briefs, and any requests for an extension of time to file briefs, should be directed to:
Peter J. Constantine
Director, Case Control Office
Federal Labor Relations Authority
607 14th Street, N.W., 4th Floor
Washington, D.C. 20424-0001
Member Wasserman dissenting:
I see no reason to grant the application for review. Contrary to my colleagues, I find that there is not an absence of precedent necessitating a grant of review under section 2422.17(c)(1) of the regulations. The Authority's decision in Gallup provides that a regional director determine whether the nature of impermissible conduct tainted a showing of interest based on the specific circumstances of each case. To me, that is clear precedent.
The Regional Director has found in the totality of the circumstances that the Activity unlawfully assisted NFFE. She concluded that the unlawful assistance tainted the process to the extent that rendered the entire showing of interest invalid. NFFE's argument is largely stated as a dispute with the factual findings of the Regional Director. However, I agree with my colleagues that the NFFE has not established that any of the Regional Director's factual findings are clearly erroneous. Where, as here, a regional director has made a connection between the impermissible conduct and its effect on the showing of interest in all the circumstances of the case, I would defer to the regional director and decline to review it.
1. Member Wasserman's dissenting opinion is set forth at the end of this decision.
2. All references to the Authority's Regulations pertain to the Regulations in effect prior to March 15, 1996. The revised representation Regulations that became effective on that date apply only to petitions filed on or after March 15, 1996, and, therefore, do not apply in this case. See Department of the Army, III Corps and Fort Hood, Fort Hood, Texas, 51 FLRA 934, 938 n.6 (1996).
3. Section 2422.17(c) provides:
The Authority may grant an application for review only where it appears that compelling reasons exist therefor. Accordingly, an application for review may be granted only upon 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.
4. In its application, NFFE recites the grounds on which the Authority may grant review. However, NFFE does not assert that any of its arguments satisfies a specific ground for review. We have construed NFFE's contentions, on this and the other issues, as best fit the grounds for review.
5. Section 2422.2(f)(2) of the Authority's Regulations states:
Any party challenging the validity of any showing of interest or showing of membership of a petitioner, or of a cross-petitioner filing pursuant to º 2422.5(b), or of a labor organization seeking to intervene pursuant to º 2422.5, must file its challenge with the Regional Director, with respect to the petitioner or a cross-petitioner, within ten (10) days after the initial date of posting of the notice of petition as provided in º 2422.4(a), and with respect to any labor organization seeking to intervene, within ten (10) days of service of copy of the request for intervention on the challenging party. . . .
6. NFFE did not raise and we do not reach the question of whether the RD properly applied the standards set forth in Social Security Administration, 52 FLRA 1159 (1997), rev'd in part sub nom. National Treasury Employees Union v. FLRA, 139 F.3d 214 (D.C. Cir. 1998).