[Federal Register Volume 63, Number 222 (Wednesday, November 18, 1998)]
[Notices]
[Pages 64087-64088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30868]
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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]
BILLING CODE 6727-01-P
