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61 FLRA No. 59
DEPARTMENT OF THE ARMY
McALESTER ARMY AMMUNITION PLANT
RED RIVER MUNITIONS CENTER
OF INDEPENDENT LABOR
VIRGINIA BEACH, VIRGINIA
OF FEDERAL EMPLOYEES
DENYING APPLICATION FOR REVIEW
September 30, 2005
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
1. Statement of the Case
This case is before the Authority on an application for review filed by the National Association of Independent Labor (NAIL) under § 2422.31 of the Authority's Regulations. Neither the Activity nor the Incumbent, National Federation of Federal Employees (NFFE), filed an opposition to NAIL's application for review.
After a representation election in which a majority of the valid votes were cast for NFFE, NAIL filed six objections to the conduct of the election with the Regional Director (RD). In his Decision and Order on objections to the election, the RD denied the objections and certified the results of the election. NAIL seeks review of the RD's determination as to only one -- the third -- objection. For the reasons set forth below, we deny NAIL's application.
II. Background and RD's Decision
NFFE received a majority of the valid votes in an election conducted on March 2, 2005, among the nonprofessional employees of the Activity. [n2] Following the election, NAIL filed objections with the RD regarding conduct which, it alleged, improperly affected the results of the election. As relevant here, NAIL's third objection alleged that campaign literature distributed by NFFE six days prior to the election contained two statements that were "blatantly false[.]" RD's Decision at 5. The NFFE statements were as follows:
If you vote for NAIL all current contract provisions go away, including the work schedule (4-10s), and the agency will unilaterally decide these issues!
Choosing NAIL in the upcoming election will guarantee the loss of all negotiated privileges at the Munitions Division, and NAIL can do nothing to protect you from that. In addition, with this division going under Homeland Security, these privileges will be lost forever!
The RD stated that, to be valid grounds for objection, campaign statements must represent a substantial departure from the truth and must reasonably be expected to significantly affect an election. See id. at 6, citing United States Army Health Care Sys. Support Activity and the United States Army Patient Admin. & Biostatistical Activity, 16 FLRA 1178, 1180 (1984). The RD found that the NFFE literature, which suggested that voting for NAIL would result in a loss of existing benefits and that the Activity would act unilaterally to change employee conditions of employment, is inconsistent with Authority precedent and could, under certain circumstances, have the potential to impact voting for the non-incumbent union. However, the RD also stated that under Authority precedent erroneous statements in union campaign literature will not result in setting aside an election where there is sufficient time before the election for the other union to adequately respond to the statements. Id. at 6, citing Dep't of the Navy, Naval Air Rework Facility, Norfolk, Va., 12 FLRA 15, 15-16 (1983) (Dep't of the Navy). Applying this precedent, the RD found that the NFFE literature was distributed on February 24, 2005, six days before the election and that NAIL had "adequate opportunity to respond" to the literature. RD's Decision at 6-7. [ v61 p324 ] As such, the RD found that NFFE's distribution of the literature did not constitute conduct that significantly interfered with the free choice of the voters to warrant setting aside the election.
III. Application for Review
NAIL contends that the RD failed to apply established law by denying the objection despite finding the NFFE literature to be inconsistent with Authority precedent and to have the potential to affect employees' decisions in the election. NAIL claims that although the Authority has held that three days is sufficient time to make an effective reply to campaign propaganda, the RD failed to consider that the NFFE literature "was far more than campaign propaganda to which [NAIL] could make an effective reply." Application for Review at 2. According to NAIL, the NFFE literature created "confusion and fear in the minds of the voters" and "NO amount of time to reply and NO reply could undue [sic] the poisoned minds of the voters" regarding the literature. Id. at 2-3 (emphasis in original). In this regard, NAIL acknowledged that it did respond to the NFFE literature before the election. See Application for Review, Enclosure 2 at 1 (undated flyer).
In addition, NAIL contends that, if the RD properly applied Authority case law or policy, then the law or policy warrants reconsideration. In this regard, NAIL contends that an election should be set aside where the prevailing party distributed literature to eligible voters that is inconsistent with Authority precedent. NAIL argues that it could not have made an effective reply to NFFE's blatantly false information and that only a notice posted by the Authority refuting the statements in dispute could have effectively "correct[ed] in the minds of the voters false representations of Authority precedents." Id. at 3.
IV. Analysis and Conclusions
1. The RD did not fail to apply established law.
The standard for determining whether objectionable conduct requires that an election be set aside is its potential for interfering with the free choice of the voters. See United States Army Engineer Activity, Capital Area, Fort Myer, Va., 34 FLRA 38, 42 (1989). In this regard, campaign statements which can be reasonably interpreted as "mere 'campaign puffery' which the employees [are] able to evaluate as such" do not provide a basis for setting aside an election. United States Dep't of the Army, Watervliet Arsenal, Watervliet, N.Y., 37 FLRA 1086, 1088 (1990). Moreover, the Authority has dismissed objections to false statements where the opposing party had ample time to respond to disputed statements. See United States Dep't of Defense, Stateside Dependents Schools, Fort Benning Schools, Fort Benning, Ga., 48 FLRA 471, 474 (1993) (Fort Benning Schools); Army and Air Force Exch. Serv., Fort Drum Exch. (Fort Drum, N.Y.), 33 FLRA 245, 248 (1988) (Fort Drum); Dep't of the Navy, 12 FLRA at 15-16. In this regard, the Authority has found that three days constituted ample time to respond. See Fort Drum, 33 FLRA at 246, 248.
Here, the RD found that the statements contained in the NFFE literature constituted an erroneous assessment of the current state of the law as to what would happen to the employees' established conditions of employment if NFFE were replaced as the exclusive representative of the bargaining unit. However, he concluded that six days was a sufficient amount of time for NAIL to reply to the literature. NAIL has not challenged the RD's findings concerning the date the NFFE literature was distributed. Further, NAIL concedes in its application for review that it did respond to the NFFE literature before the election. See Application for Review, Enclosure 2. [n3]
With respect to NAIL's contention that the RD failed to consider the type of misrepresentation contained in the NFFE literature, the Authority, in Dep't of the Navy, 12 FLRA at 15-16, found that erroneous statements similar to the statements made in this case did not constitute a basis for setting aside the election because the other union had sufficient time to adequately respond to the statements. Thus, there is no reason to conclude that the type of misrepresentation involved here would otherwise preclude NAIL from making an effective response.
As NAIL had six days to respond -- and did respond -- to the NFFE literature, and as the Authority has held such time to be an ample time to effectively respond in these circumstances, we find that the RD's decision is consistent with Authority precedent. Accordingly, we conclude that the RD did not fail to apply established law in finding that NFFE's distribution of the literature did not constitute conduct that significantly [ v61 p325 ] interfered with the free choice of the voters to warrant setting aside the election.
2. Established law or policy does not warrant reconsideration.
NAIL contends that the Authority should reconsider its precedent and hold that an election should be set aside where the prevailing party distributed "blatantly false" literature to eligible voters that is inconsistent with Authority precedent. According to NAIL, only a notice posted by the Authority refuting the statements in dispute could have served as an effective response in these circumstances.
NAIL has failed to provide any support for its claim that there is a need to reconsider Authority precedent. In this regard, NAIL has not demonstrated why it could not effectively respond to claims such as those made here. As noted above, NAIL did respond to the NFFE literature before the election. The current policy ensures that parties who are subject to false statements during an election campaign have a sufficient amount of time to respond and this protection sufficiently forecloses interference with the free choice of the voters. As such, we conclude that reconsideration of the Authority's well-established law and policy on this matter is not warranted.
The application for review is denied.
File 1: Authority's Decision in 61
File 2: Opinion of Chairman Cabaniss
Footnote # 1 for 61 FLRA No. 59 - Authority's Decision
Footnote # 2 for 61 FLRA No. 59 - Authority's Decision
Footnote # 3 for 61 FLRA No. 59 - Authority's Decision
Member Pope notes that the dissent's view that NAIL was disadvantaged by an insufficient time to respond because three of the six days were non-workdays misconstrues the record. NAIL does not claim that the relevant time period, however computed, was insufficient to reply. To the contrary, NAIL claims that "NO amount of time" was sufficient to respond. Application for Review at 2-3. In any event, even assuming that the three non-work days should be subtracted from the time NAIL had to respond, the remaining three work days were both sufficient and the exact same time that the union had to respond in Fort Drum.