[ v61 p325 ]
Dissenting Opinion of Chairman Cabaniss:
I write separately to explain why I disagree with the finding as to the Union's Objection. February 24, 2005 was followed by three non-workdays - the Friday when the employees were not at work per their compressed work schedule and the weekend, when the employees also were not at work (all as noted by the Regional Director in his decision). See Regional Director's Decision (Decision) at 3. I conclude the "six days" finding by the Regional Director both wrong and misleading, as the Union had only three workdays prior to the election with which to respond to the erroneous assertions.
I note that in the Authority's decision in Army & Air Force Exch. Serv., Fort Drum Exch. (Fort Drum, N.Y.) (Fort Drum), 33 FLRA 245, 246 (1988), the union there had three days to respond, and the Authority found that to be sufficient time. In examining the decision in Ft. Drum, I note the improper statement by the incumbent union there dealt with misrepresenting the benefits in the current agreement between the agency and the incumbent union. Given the ability to refute that kind of assertion by examining the agreement itself, I would find three days to be sufficient time to rebut that misrepresentation, and the Authority decision itself noted that the three days was sufficient time for the agency there to publish and distribute an effective reply prior to the election, even though the petitioning union filing the objection did not file any such reply. Id. at 246.
In the present situation, the improper statement involved was an assertion by the incumbent union that if the petitioning union won the election the employees would lose their current conditions of employment established by the current agreement, such as the bargaining unit's compressed work schedule, as well as the loss of all other negotiated privileges the bargaining unit currently had. Decision at 5. Unlike the misrepresentation in Fort Drum, the misrepresentation here is not easily responded to by pointing to an existing collective bargaining agreement. Rather, it would take much more to publish and distribute an effective reply that explained to bargaining unit employees why they actually would not lose their current conditions of employment established by the current agreement, such the bargaining unit's compressed schedule and all other negotiated privileges the bargaining unit currently had. And in that regard, I wouldn't find three workdays to be enough. [ v61 p326 ]
I do not believe that the Authority can or should mechanistically decide these kinds of objections solely on the amount of days involved: there also is a need to examine the nature and the extent of the improper statement as well. In examining the improper statement here I conclude that three workdays would not be sufficient time to permit the petitioning union to publish and distribute an effective reply prior to the election. Therefore, I would grant the application for review. [*]
File 1: Authority's Decision in 61 FLRA No. 59
File 2: Opinion of Chairman Cabaniss
Footnote * for 61 FLRA No. 59 - Opinion of Chairman Cabaniss
I would not deny an application for review based upon a party's failure to prove the truth of its own hyperbole, in this case that no amount of time would have been sufficient to respond. Application for Review at 2-3.