[ v31 p996 ]
31:0996(79)RO
The decision of the Authority follows:
31 FLRA NO. 79
PACIFIC MISSILE TEST CENTER
POINT MUGU, CALIFORNIA
Activity
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R12-33
Petitioner
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1374, INDEPENDENT
Incumbent Labor Organization
Case No. 8-RO-70005
ORDER DENYING APPLICATION FOR REVIEW
I. Statement of the Case
This case is before the Authority on an application for
review filed by the National Federation of Federal Employees,
Local 1374, Independent (NFFE), under section 2422.17(a) of the
Authority's Rules and Regulations, seeking review 1/ of the
Regional Director's Decision and Order on Objections. 2/
The National Association of Government Employees, Local
R12-33 (NAGE) filed on opposition to NFFE's application for
review.
II. Background
At the Activity, NAGE was seeking to replace NFFE as the
exclusive representative. On August 27, 1987, an election by
secret ballot was conducted among employees of the Activity. Of
the 632 valid votes cast, NAGE received 360 and NFFE received
254. Thereafter, NFFE filed timely objections to the conduct of
the election.
The record indicates that on August 26, 1987, the day before
the election, NFFE was engaged in campaign activity involving
NFFE banners and helium filled balloons which were labelled with
"NFFE" on them. The record further indicates that a few of the
balloons were released and were spotted flying over the
Activity's flight path by the flightline supervisor. The
flightline supervisor telephoned Judy Eveleth, the Activity's
Labor Relations Officer, and reported that this situation
constituted a safety hazard to flight operations because the
balloons could be ingested into the aircrafts' engines causing
considerable damage, including engine failure.
As a result of this telephone call, Eveleth went to the
campaign site to investigate. She met with Charles Gaines III,
NFFE's Campaign Director, who was at the site. Eveleth advised
Gaines of the potential hazard the balloons were creating and
asked that they be immediately removed. Gaines became
argumentative and a dispute arose between him and Eveleth. Gaines
requested specific citings of Base policy, DOD policy and any
other authority directing the removal of the balloons. At that
point, in compliance with Gaine's request, Eveleth called Base
Security. Gaines continued to refuse to remove the balloons and
demanded to know what regulation NFFE was violating. Upon the
arrival of Base Security, at Eveleth's request, Gaines' visitor
badge and his temporary vehicle pass were removed. Gaines'
visitor badge was returned to him at 5:30 p.m. on August 27,
1987, in order that he be present during the tally of the
ballots.
The record indicates that both labor organizations had been
made aware of the stricter security procedures being observed at
the Activity because of the escalated tension in the Persian
Gulf. In addition during the time in question, the President's
airplane and helicopters were physically located at the Activity.
The alleged unlawful conduct of the Activity discussed above
is covered by the following three objections filed by NFFE.
Objection No. 1
On or about August 26, 1987, the Activity through action of
its designated labor-relations representatives, caused the
cessation of the distribution of the Intervenor's promotional
material. Such material was being distributed to bargaining unit
employees in a non-work area. This interference with the
Intervenor's distribution was disparate in that the Petitioner
was not denied the right to distribute materials in the very same
location and the same types of materials have been distributed at
the Activity by others.
Objection No. 2
On or about August 26, 1987 the Activity, through actions of
its designated labor-relations representatives, prohibited the
Intervenor's campaign director from entering the Point Mugu
facility for the purposes of campaigning. This action materially
interfered with the Intervenor's ability to campaign during the
crucial last days of the election and interfered with the
Intervenor's "get out the vote" program.
Objection No. 9
On or about August 26, 1987, the employer ordered its
security Department to destroy the Intervenor's campaign material
when this material was attached to employee's personal
automobiles in non-work areas.
III. Regional Director's Decision
The Regional Director found no merit in any of the nine
objections filed by NFFE and advised the parties that a
Certification of Representatives would be issued to NAGE subject
to final action by the Authority.
With respect to Objection Nos. 1, 2, and 9, those that
remain at issue, the Regional Director found that: (1) the
investigation failed to establish that the Activity acted in an
arbitrary or discriminatory manner by requesting NFFE to
remove the helium balloons; (2) the Activity did not restrict
NFFE from using all campaign material but rather only the use of
the balloons which presented a safety hazard to aircraft; (3) the
investigation failed to establish that others used balloons as a
campaign item; (4) Mr. Gaines functioned as campaign director for
NFFE with full and equal access to the Activity throughout the
election period until August 26, 1987, the date of the subject
incident and one day prior to the election; and (5) there was no
evidence to indicate that the restrictions placed on Mr. Gaines
affected the results of the election especially in light of the
fact that restrictions were placed only on the day prior to the
election and the fact that other NFFE representatives campaigned
without restrictions throughout the election period.
IV. Application for Review
A. NFFE's Application for Review
NFFE contends that a substantial question of law or policy
is raised because of the absence of and departure from Authority
precedent. NFFE also claims that the Regional Director's decision
on a substantial factual issue is clearly erroneous and such
error has prejudiced its rights.
NFFE contends that the Regional Director found that the
Agency did prohibit distribution of NFFE campaign material and as
such, the Agency's actions violated NFFE's rights. NFFE further
contends that the Regional Director erred in allowing the
Activity to rebut NFFE's charges and/or offer mitigating
circumstances while not affording NFFE the opportunity to rebut
the Activity's arguments. In conclusion, NFFE argues that the
Regional Director should have held a hearing in this case to
provide all parties with an opportunity to cross-examine
witnesses and offer rebuttal to purported extenuating or
mitigating circumstances.
NFFE argues that the Regional Director erred in finding that
having Gaines removed from the Activity's station did not or
could not have affected the results of the election as Authority
precedent states otherwise. Based on a statement of a qualified
aircraft engine mechanic NFFE argues that the balloons were not a
hazard to flight operations. Therefore, NFFE contends that there
was no reason to curtail the balloon distribution and the
expulsion of Mr. Gaines was both arbitrary and capricious.
Accordingly, NFFE maintains that the Regional Director is in
error and must be reversed.
B. NAGE's Opposition to NFFE's Application
NAGE contends that NFFE has failed to demonstrate a ground
for review under section 2422.17 (c) of the Authority's Rules and
Regulations.
NAGE argues that the Activity's action of prohibiting the
use of helium balloons by NFFE was motivated solely by safety and
security concerns. Further, NAGE contends that the issue is not
the seriousness of the hazard as alleged by NFFE, but whether the
Activity was reasonable in fearing that a hazard might exist and
in taking limited action to prevent it.
NAGE argues that the Regional Director correctly found that
the exclusion of Gaines from the base on August 26 and 27, 1987
did not affect the results of the election. NAGE contends that
NFFE presents no evidences to indicate that Gaines, if
physically present, would have reached potential voters whom its
other organizers were not able to reach.
NAGE also argues that NFFE is incorrect in its argument that
the Regional Director erred in accepting the affirmative defense
offered by the Agency as section 2422.21(b) of the Authority's
Rules and Regulations provide that "(the) objecting party shall
have the burden of proof at all stages of the proceeding
regarding all matters raised in its objections."
Finally, NAGE contends that the Regional Director was not in
error for issuing a decision without conducting a hearing or
soliciting additional evidence as he afforded all parties a full
opportunity to submit evidence in support of their contentions.
V. Analysis and Conclusion
Upon careful consideration of the application for review, we
conclude that compelling reasons do not exist within the meaning
of section 2422.17 (c) of our Rules and Regulations, for granting
review of the Regional Director's decision. Rather, the
application expresses nothing more than disagreement with the
Regional Director's findings and conclusions, which are based on
record evidence and have not been shown to be clearly erroneous
or to have prejudicially affected the rights of any party.
The Regional Director's use of an investigation does not
constitute a basis for granting the application for
review under section 2422.17(c) of our Rules and Regulations. The
parties were afforded a full opportunity to present their views
concerning the factual background of this case during the
investigation. Although NFFE may have expected or now prefers a
hearing to present its views or to rebut statements made by the
Activity, that expectation or preference does not establish a
compelling reason for granting its application for review. See
Department of the Navy, Naval Resale Activity, Navy Exchange,
Hawaii, 27 FLRA 816 (1987).
NFFE merely has expressed disagreement with the Regional
Director's findings and has not shown that any finding or
conclusion on any substantial factual issue was clearly
erroneous. The record developed from the Regional Director's
investigation contains information that clearly supports the
Regional Director's factual determinations.
Finally, we find that the application for review does not
provide any other basis for granting review under section
2422.17(c) of the Rules and Regulations.
Accordingly, pursuant to section 2422.17(f)(3) of the
Authority's Rules and Regulations, the application for review is
denied.
Issued, Washington, D.C., March 25, 1988.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
Footnote 1/ As NFFE's application for review only seeks
review of the Regional Director's findings with respect to
Objection Nos. 1, 2, and 9, the other findings are not at issue
and will not be considered.
Footnote 2/ NFFE requested a stay of the instant proceedings
pending resolution of its unfair labor practice charge covering
the same conduct involved in the present case which is currently
on appeal to the General Counsel. Since the time limit for
Authority actions on applications for review of determinations
of Regional Directors in cases such as this is prescribed in
section 7105(f) of the Federal Service Labor-Management
Relations Statute, we cannot stay the instant proceeding.
Accordingly, we deny NFFE's request.