Notice of Opportunity To Submit Amici Curiae Briefs in Representation Proceeding Pending Before the Federal Labor Relations Authority

FEDERAL LABOR RELATIONS AUTHORITY

[FLRA Docket No. DA-RO-60006]

Notice of Opportunity To Submit Amici Curiae Briefs in

Representation Proceeding Pending Before the Federal Labor Relations

Authority

AGENCY: Federal Labor Relations Authority.

ACTION: Notice of the opportunity to file briefs as amici curiae in a

proceeding before the Federal Labor Relations Authority in which the

Authority is determining the standard for evaluating a union petition

for a representation election where an activity has unlawfully assisted

the petitioning union.

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SUMMARY: The Federal Labor Relations Authority provides an opportunity

for all interested persons to file briefs as amici curiae on

significant issues arising in a case pending before the Authority. The

Authority is considering this case pursuant to its responsibilities

under the Federal Service Labor-Management Relations Statute, 5 U.S.C.

7101-7135 (the Statute) and its Regulations, set forth at 5 CFR part

2422. The issues in this case concern the standard for evaluating a

union petition for a representation election where an activity has

unlawfully assisted the petitioning union.

DATES: Briefs submitted in response to this notice will be considered

if received by mail or personal delivery in the Authority's Office of

Case Control by 5 p.m. on or before Friday, December 18, 1998. Placing

submissions in the mail by this deadline will not be sufficient.

Extensions of time to submit briefs will not be granted.

ADDRESSES: Mail or deliver written comments to Peter J. Constantine,

Director, Case Control Office, Federal Labor Relations Authority, 607

14th Street, NW., Suite 415, Washington, DC 20424-0001.

FORMAT: All briefs shall be captioned: United States Army Air Defense

Artillery Center, and Fort Bliss, Fort Bliss, Texas, Case No. DA-RO-

60006, Amicus Brief. Briefs shall also contain separate, numbered

headings for each issue discussed. An original and four (4) copies of

each amicus brief must be submitted, with any enclosures, on 8\1/

2\ x 11 inch paper. Briefs must include a signed and dated statement of

service that complies with the Authority's regulations showing service

of one copy of the brief on all counsel of record or other designated

representatives. 5 CFR 2429.27 (a) and (c). Copies of the Authority's

decision granting the application for review in this case and a list of

the designated representatives for the case may be obtained by mail or

by facsimile by contacting Peter J. Constantine at the Authority's Case

Control Office at the address set forth above.

FOR FURTHER INFORMATION CONTACT: Peter J. Constantine, at the address

listed above or by telephone: (202) 482-6540.

SUPPLEMENTARY INFORMATION: On November 3, 1998, the Authority granted

an application for review of the RD's Decision and Order in United

States Army Air Defense Artillery Center and Fort Bliss, Fort Bliss,

Texas, Case No. DA-RO-60006 (54 FLRA No. 127 (1998)). A summary of that

case follows.

1. Background

Following organizing efforts, the National Federation of Federal

Employees (NFFE) filed a petition pursuant to section 7111 of the

Statute and Sec. 2422.2 of the Authority's Regulations, 5 CFR 2422.2,

(the Regulations in effect prior to March 15, 1996, are applicable in

this case), seeking an election to represent a bargaining unit

represented by the National Association of Government Employees (NAGE).

NAGE filed an unfair labor practice (ULP) charge, claiming that the

Activity unfairly aided NFFE in its attempt to collect signatures by

allowing a non-employee NFFE organizer onto its premises. The Regional

Director (RD) held the representation case in abeyance until the charge

was resolved. NAGE contended that the Activity had permitted the non-

employee NFFE organizer access to work areas where employees

represented by NAGE worked. NAGE and the Activity settled the ULP

charge. Without admitting a violation of the Statute, the Activity

agreed to post a notice indicating that it would not permit NFFE access

to its premises.

After the settlement of the ULP charge, NFFE argued that the RD

should schedule an election and that no hearing was required because

the ULP charge had been settled. Instead, the RD scheduled a hearing to

determine whether the petition should be dismissed because of the

Activity's alleged improper conduct. At the hearing, NFFE claimed that

a large number of signatures were lawfully obtained by employees who

were assisting NFFE in its organizing efforts and were not obtained by

its non-employee organizer, and that there was no showing that its

organizer unlawfully obtained any signatures supporting the showing of

interest petition. NAGE contended that a hearing was appropriate in the

circumstances of this case.

2. The Regional Director's Decision

The RD found that the Activity had improperly granted NFFE access

to its premises. The RD determined, based on employees' testimony, that

the organizer was seen in work areas during duty hours soliciting

signatures, but that no one actually saw the organizer obtain

signatures during those times. The RD also determined that NFFE

obtained approximately 75 percent of the signatures it collected during

a time period that roughly corresponded to the organizer's activity.

Relying on Social Security Administration and National Treasury

Employees Union, 52 FLRA 1159 (1997) (Social Security), rev'd in part

sub nom. National Treasury Employees Union v. FLRA, 139 F.3d 214 (D.C.

Cir. 1998), the RD found that the Activity improperly assisted NFFE, in

violation of section 7116(a)(3) of the Statute, when it failed to

determine whether NFFE had other

[[Page 64088]]

means of contacting the employees it was seeking to organize, before

permitting the NFFE organizer access to its premises, including common

areas. According to the RD, the Activity permitted the NFFE organizer

improper access when the only limit it placed on him was to solicit

signatures of employees in work areas on their non-duty time.

The RD concluded that, under the totality of the circumstances, the

Activity had unlawfully assisted NFFE, because it controlled the

premises, it failed to verify whether NFFE had alternative means of

contact, and it permitted NFFE access to the premises. The RD concluded

that, because the unlawful assistance interfered with the employees'

rights under section 7102 of the Statute, any cards signed during the

period of the Activity's unlawful assistance were tainted. Therefore,

the RD dismissed the petition.

3. The Application for Review

As applicable here, NFFE contends that its non-employee organizer

had a right to be on the Activity's premises because NFFE represents

employees at that Activity and because NFFE did not do anything illegal

in its solicitation of the showing of interest. NFFE contends that the

signatures on its showing of interest petition were validly obtained by

bargaining unit employees. NFFE asserts that its organizer merely

gathered the petition sheets from the employees who had obtained the

signatures. NFFE also asserts that there was no showing that any of the

signatures was improperly obtained.

NAGE asserts that the facts support the conclusion that the

Activity unlawfully assisted NFFE in obtaining signatures.

Addressing NFFE's contentions, the Authority concluded that NFFE

did not establish that the RD committed prejudicial procedural error in

holding a hearing or that the RD disregarded Authority Regulations, and

denied NFFE's application in these and other respects. NFFE did not

raise and the Authority did not reach the question of whether the RD

properly applied the standards set forth in Social Security.

Finding that there is an absence of precedent, the Authority

granted the application for review on the issue of what standard should

apply to evaluate whether the type of improper conduct alleged in this

case warrants dismissal of an otherwise valid election petition.

4. Question on Which Briefs Are Solicited

The Authority has directed the parties in the case to file briefs

addressing the following question: What standard should be used to

determine whether an activity's improper conduct should lead to the

dismissal of an election petition on the basis that the accompanying

showing of interest was tainted?

As this matter is likely to be of concern to agencies, labor

organizations, and other interested persons, the Authority finds it

appropriate to provide for the filing of amicus briefs addressing these

issues.

(Authority: 5 U.S.C. 7105(a)(2) (B) and (I)).

For the authority.

Peter J. Constantine,

Director, Case Control Office, Federal Labor Relations Authority.

[FR Doc. 98-30868 Filed 11-17-98; 8:45 am]

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