55 FLRA No. 155

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      By order dated November 3, 1998, the Federal Labor Relations Authority (the Authority) granted the application for review of the Acting Regional Director's (RD) Decision and Order, filed by the Petitioner, National Federation of Federal Employees (NFFE), in the above-captioned matter. NFFE requested review of the RD's decision dismissing its petition because the RD found that the Agency had unlawfully assisted NFFE in obtaining signatures in violation of section 7102 of the Federal Service Labor-Management Relations Statute (the Statute), thus tainting the showing of interest.

      The Authority granted review of the RD's decision, under section 2422.17(c)(1) of the Authority's Regulations, [n2]  based on NFFE's contention that there was an absence of precedent concerning the appropriate standard to apply in determining whether improper agency conduct has tainted a union's showing of interest submitted in support of its petition for a representation election.

      The Authority directed the parties to file briefs and published a notice in the Federal Register giving an opportunity for all interested parties to file briefs as amici curiae, to address 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?

63 Fed. Reg. 64,087, 64,088 (1998). Both NFFE and the Intervenor, National Association of Government Employees (NAGE), filed briefs and the General Counsel of the Federal Labor Relations Authority (GC) filed an amicus brief.

      For the reasons that follow, we remand this case to the RD to determine, based on the standard clarified herein, whether a sufficient untainted showing of interest was gathered by NFFE. If such a sufficient untainted showing of interest was gathered by NFFE, the RD shall conduct an election.

II.     Background and RD's Decision

      Following organizing efforts, NFFE filed a petition seeking an election to represent a bargaining unit represented by NAGE. NAGE objected to the petition, claiming that the signatures were fraudulently obtained and forged, but subsequently withdrew the objection. NAGE also filed an unfair labor practice (ULP) charge, claiming that the Activity unfairly aided NFFE in its attempt to collect signatures by allowing a NFFE organizer onto its premises. The RD held in abeyance the representation case until the charge was resolved. NAGE and the Activity settled the ULP charge. The Activity agreed to a posting without admitting a violation of the Statute. [n3] 

      After the settlement of the blocking ULP charge, NFFE filed a motion seeking an election. The RD conducted a hearing, at which 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 organizer. NFFE [ v55 p941 ] also maintained that its organizer was not in work areas during duty hours to solicit and obtain signatures. NFFE asserted that there was no showing that its organizer unlawfully obtained any signatures on the showing of interest.

      The RD found that the Agency had informed NFFE's non-employee organizer that he was permitted to solicit signatures on non-duty hours in non-work areas. RD's Decision at 3. 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% of the signatures it collected during a five week period in October and November, 1995, which roughly corresponded to the time during which the organizer was active. Id. at 3, 5.

      The RD applied the standard for non-employee access to an employer's premises set out in Social Security Administration and National Treasury Employees Union, 52 FLRA 1159 (1997) (Social Security), remanded in part 139 F.3d 214 (D.C. Cir. 1998). [n4]  The RD found that the Activity improperly assisted NFFE when it failed to determine whether NFFE had other means of contacting the employees it was seeking to organize, before permitting the NFFE organizer access to its premises. [n5]  According to the RD, the Activity permitted the NFFE organizer improper access when it only limited him from soliciting signatures of employees in work areas and on duty time.

      The RD also found that access to common areas was inappropriate, if the Agency had potential control over the premises, citing Gallup Indian Medical Center, Gallup, New Mexico, 44 FLRA 217, 218 (1992) (Gallup I), and that the Agency had an affirmative obligation to ascertain whether the union had made a diligent effort to contact employees off the premises, citing U.S. Department of the Air Force, Barksdale Air Force Base, Bossier City, Louisiana, 45 FLA 659 (1992) (Barksdale). In addition, the RD further determined, based on testimony, that the NFFE organizer had means to contact the employees off the Activity's premises.

      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 has alternative means of contact, and it permitted NFFE access to the premises. RD's Decision at 8. [n6]  The RD also concluded that, because of the unlawful assistance, the showing of interest was tainted and dismissed the petition. Id.

III.     Positions of the Parties and the Amicus

A.     NFFE

      NFFE argues that the standard to be used to determine whether an agency's improper conduct should lead to the dismissal of an election petition on the basis that the accompanying showing of interest was tainted, should be whether the agency's activity was of such a nature that it significantly affected the free choice of employees to vote as they desired. According to NFFE, this standard would be consistent with the Authority's decision in U.S. Department of Health and Human Services, Public Health Service, Indian Health Service, Gallup Indian Medical Center, Gallup, New Mexico, 46 FLRA 1421, 1429-31 (1993) (Gallup II). NFFE relies on the Authority's statement in that decision:

That is not to say that the filing of any unfair labor practice charge would block the processing of an election petition; the charge, as here, must be determined to be of such a nature that it may affect the free choice of the employees in the election matter.

NFFE Brief at 4 (quoting Gallup II at 1430).

      NFFE also contends that, as in Gallup II, the Authority should study the facts on a case-by-case basis to determine whether the agency significantly violated the free choice of employees in their election. NFFE argues that there should not be a "pre-determined list of factors" to consider. Rather, NFFE asserts that the [ v55 p942 ] Authority should consider the "totality of the evidence" in each case to make a determination. NFFE Brief at 5.

      NFFE asserts that employees who supported NFFE, and not the organizer, gathered the needed signatures. NFFE contends that the employees who had gathered the signatures then gave the signed sheets to the organizer. NFFE claims that three of the employees who supported NFFE gathered over 100 of the signatures.

B.     NAGE

      To determine whether an agency's improper conduct should lead to the dismissal of an election petition on the basis that the accompanying showing of interest was tainted, NAGE contends that the Authority should not consider any showing of interest obtained and/or associated with the improper conduct. NAGE maintains that any showing of interest obtained either directly or indirectly by non-employee representatives through unlawful agency assistance to the rival union, should not be considered. NAGE argues that a determination on the petition should then be made based on the adequacy of the showing of interest, absent the tainted showing of interest.

C.     Amicus Curiae--the General Counsel

      The General Counsel recommends that the Authority adopt a case-by-case approach to determine the effect of an agency's improper conduct on the processing of a petition. Incases involving improper access of a rival union, the General Counsel asserts that the Authority must first determine whether the agency had knowledge of a rival labor organization's organizer soliciting or engaging in soliciting a showing of interest on its premises. If the agency had no knowledge, the General Counsel asserts that the inquiry would end. If the inquiry continues, the General Counsel proposes that the extent of the agency's participation or appearance of participation in the rival union's organizational activities must be assessed.

      The General Counsel also suggests that the Authority should consider several factors in making a determination regarding an agency's assistance to a rival labor organization. These factors include:

a.     The existence of any legitimate reason for the outside organizer to be present on the activity's premises[;]

b.     The presence of another labor organization as the certified representative of the employees being solicited or as a rival labor organization[;]

c.     The extent of any policing by the activity on the outside organizers and any restrictions placed by management on the outside organizers[;]

d.     The period of time outside organizers were on the activity's premises and involved in soliciting or collecting employee signatures[;]

e.     The number of authorization cards solicited during the period of time the outside organizers were on the activity's premises in relation to the size of the bargaining unit[; and]

f.     When and where the authorization cards were solicited (work area or non-work area, work-time or breaks), and/or the presence of any supervisors or managers during the period of solicitation.

GC Amicus Brief at 16-17 (emphasis in original). The General Counsel also suggests that once the factors have been identified, the Authority should determine the impact of the agency's improper conduct on the right of employees to be "`free to choose or reject union representation without coercion and while agency management maintains a posture of neutrality.'" Id. at 17, quoting Gallup II, 46 FLRA at 1424.

IV.     Analysis and Conclusions

A.     The Standard to be Applied in Determining Whether Improper Agency Conduct Requires Dismissing an Election Petition

      Resolving the issue on which review was granted requires us to determine when improper agency conduct, such as found in this case, mandates that we determine a showing of interest to be inadequate and, on that basis, dismiss a rival union's petition for an election to replace the existing exclusive representative of the agency's employees. For the reasons that follow, we conclude that a showing of interest should be disallowed only where necessary to prevent abuse of the election process and to protect the fundamental statutory right of employees to choose their own representative. See 5 U.S.C. § 7102(2). As the Authority has previously observed, agency violations of the Statute should only block an election from going forward where they are "of such a nature that it may affect the free choice of employees in the election matter." Gallup II, 46 FLRA at 1430, n.5.

      In granting review, we noted that the Authority's precedent suggests that an RD must make specific findings that an agency's improper conduct has tainted a union's showing of interest. 54 FLRA at 1490, citing Gallup II, 46 FLRA at 1431. Our consideration of the [ v55 p943 ] RD's decision below, and the briefs submitted by the parties and the General Counsel, persuades us that this requirement is the appropriate standard to follow, but that it is necessary to state this standard more directly and clearly than the Authority stated the standard in Gallup II. We conclude that a determination to dismiss a petition because of agency misconduct must be based on specific findings concerning both the particular misconduct at issue and the effect of that misconduct on the particular petition.

      Here, after finding that the Agency "unlawfully assisted" NFFE, the RD concluded that the showing of interest was invalid because all signatures collected during the period of the unlawful conduct were tainted, without making any specific findings concerning the connection between the Agency's misconduct and the showing of interest. In particular, the RD did not address claims by NFFE that the signatures at issue were collected by employees, rather than by the organizer granted improper access, and that the organizer was properly admitted to the Agency's premises at certain times. The RD's conclusion thus failed to evaluate the actual effect of the misconduct on the petition. Examining this effect requires determining whether, absent the Agency's misconduct, a valid petition would have been filed. Such an inquiry requires that the RD focus not only on the actions of the Agency, but also on the resulting effect on employees and the petition.

      The relationship between the misconduct alleged and its effect on the petition will vary, depending on the circumstances of each case. [n7]  As the General Counsel points out in its brief, there may be circumstances where the misconduct involves such active involvement or support of the union by agency officials that the misconduct pervades the signature collection process, leading to a conclusion that an entire showing of interest must be dismissed. General Counsel Brief at 9 (citing Veterans Administration Hospital, Brecksville, Ohio, 1 FLRC 302 (1973) (Brecksville)); cf. Wright Memorial Hospital v. NLRB, 771 F.2d 400, 404 (8th Cir. 1985) (supervisory support for a union may cause employees to believe that employer supports union or to fear retaliation by supervisors). However, where the agency misconduct is limited or other reasons mitigate its significance, only those aspects of the petition directly affected by the violation may be invalid. See Brecksville, 1 FLRC at 305.

      In sum, in order to dismiss a representation petition supported by a showing of interest, we will require that any improper conduct on the part of an agency actually have affected the validity of the petition. Put in the context of this case, if after disallowing the signatures gathered as a result of the Agency's improper grant of access to the organizer, the showing of interest is valid, the petition should not be dismissed.

B.     The Case is Remanded to the RD for Findings Consistent with the Clarified Standard                                                  

      The RD's findings in this case contain no indications that Agency officials actively supported the rival union, or that employees perceived the Agency's misconduct as a lack of neutrality. Rather, the RD based her finding that the Agency unlawfully assisted the rival union solely on its failure to carry out its "obligation to ascertain whether the union has made a diligent effort to contact employees off the premises." Decision at 7. The RD made no findings that support a conclusion that the nature of the Agency's misconduct was so pervasive that it warrants an inference that NFFE's showing of interest should be invalidated in its entirety. She also made no findings that would support a conclusion that the Agency's misconduct influenced particular employees in their decision of whether to sign the petition. [n8]  Under these circumstances, the RD must simply determine which signatures were collected by the organizer when he was improperly admitted to the Agency's premises. [ v55 p944 ]

      We find that the record is not sufficient for us to determine whether, absent the Activity's improper conduct, a valid petition would have been filed. Accordingly, we remand the case to the RD to make a determination regarding how many employee signatures were obtained as a result of the improper conduct. [n9]  Specifically, the RD must determine whether, not counting the signatures obtained through improper conduct, NFFE's petition is supported by a sufficient number of signatures.

V.     Order

      The case is remanded to the RD to determine, based on the standard clarified herein, whether a sufficient untainted showing of interest was gathered by NFFE. If such a sufficient untainted showing of interest was gathered by NFFE, the RD shall conduct an election.

Member Wasserman, dissenting:

      I dissented from the decision to grant the application for review in this case because I was convinced there was ample precedent for determining whether an activity's improper conduct sufficiently tainted a showing of interest to warrant dismissal of the election petition. Subsequent briefs and the majority opinion have not shown otherwise. The standard was, and remains, whether, in the specific circumstances of each case, the nature of the impermissible conduct tainted the showing of interest. Gallup II. My colleagues now would "more directly and clearly" state the existing standard, concluding that specific findings must be made concerning both the misconduct and the effect of the misconduct on the petition. However, this is not a clarification of the existing rule. Our rule continues to require a determination in the circumstances of each case. We simply have a disagreement over the sufficiency of the RD's basis for concluding that the impermissible conduct, in all the circumstances of this case, tainted the showing of interest.

      The Regional Director determined that the Activity unlawfully assisted NFFE, a labor organization that does not have equivalent status with the exclusive representative, by improperly giving its organizer access to work areas during work time to solicit employees' showing of interest. The RD concluded that this unlawful assistance took place given the totality of the circumstances. In particular, the RD determined that since the organizer's presence interfered with the employees' rights under section 7102 of the Statute--to form, join or assist any labor organization freely and without fear of penalty or reprisal--any cards signed during the organizer's unlawful presence were tainted. Since the majority of signatures were obtained while the NFFE organizer was unlawfully on the premises, the RD concluded that the showing of interest was tainted, and dismissed the petition.

      In my view, the RD made the necessary connection between the impermissible conduct and its effect on the showing of interest, and I see no reason to second guess his dismissal of the petition. The majority now would have the RD reconstruct the conditions under which the cards were signed. This would require the motivation of the employees who indicated their interest in having an election be investigated. My colleagues want the RD to determine which signatures were collected by the organizer when he was improperly admitted to the Agency's premises, and they would remand the case for the RD to find out how many signatures were obtained as a result of the improper conduct. I must note that the improper conduct by the Respondent favoring the challenger could have been responsible for [ v55 p945 ] more signatures than those simply collected by the improperly admitted organizer. Employees who signed for the challenger may have been influenced by the improper conduct of the Agency whether or not the organizer collected their signatures. Proof of assistance to a union and interference with the employees' right of free choice does not depend on a direct showing that the employees were coerced into signing. See Farmers Energy Corporation v. National Labor Relations Board, 730 F.2d 1098 (7th Cir. 1984) (Farmers Energy Corp.).

      Improper agency support for a rival without equivalent status carries an implicit message, and it would not be unreasonable for an RD--or employees--to draw conclusions from this circumstance. Organizing campaigns are rarely conducted in laboratory-like conditions. It would not quite, as the majority suggests, "simply be a matter of determining how many signatures the organizer collected. . . ." Such an endeavor presumes an exactitude that is rarely present in labor relations. To the contrary, it is unnecessary, in negating a claim of an uncoerced majority, to show mathematically that less than a majority freely gave their signatures. See National Labor Relations Board v. Windsor Castle Health Care Facilities, 13 F.3d 619 (2nd Cir. 1994). I note my colleagues' attempt to distinguish this case and Farmers Energy Corp., but the differences in the facts from this case do not in any way diminish the validity of the principles for which they are cited. My key point, supported by those cases, is that mathematical exactitude is neither possible nor appropriate under the circumstances.

      The RD already has determined that there was unlawful assistance by giving the organizer access, which interfered with employees' rights to form, join and assist a labor organization. We should be mindful that incumbent exclusive representatives have worked long and hard to establish their status. I therefore think it is bad policy for us to so readily challenge an RD's rationally based conclusion that unfair assistance to a petitioner without equivalent status has tainted the challenger's showing of interest.

      The majority's reliance on Sunbelt Enterprises, Inc. ignores a critical distinction: that case involved an initial organizing campaign, and the misrepresentations by the union organizer of the effect of signing authorization cards. In this case, an incumbent was being challenged by an intervenor, who was given improper assistance by the agency. In these latter circumstances, the improper assistance can go well beyond the specific solicitations of the organizer.

   Member Wasserman's dissenting opinion is set forth at the end of this decision.

   All references to the Authority's Regulations pertain to the Regulations in effect prior to March 15, 1996. The revised representation Regulations that became effective on that date apply only to petitions filed on or after March 15, 1996, and, therefore, do not apply in this case. See Department of the Army, III Corps and Fort Hood, Fort Hood, Texas, 51 FLRA 934, 938 n.6 (1996).

   We note that the RD in this case stated that "it is concluded that the Activity unlawfully assisted NFFE." RD's Decision at 8. In the context of this case, it is clear that the RD's statements relate to this case alone; they do not constitute a finding that the Activity committed an unfair labor practice as alleged in the related case. Consistent with our previous order in this case, 54 FLRA at 1489, we consider the fact of Agency misconduct to be established for purposes of this case.

   The hearing in this case was conducted prior to the court's issuance of its decision in part overturning Social Security. However, the RD's decision was issued several months after the court's decision. Nevertheless, the RD did not base her decision on the court's opinion. See RD's Decision at 6.

   NFFE asserts that it represents other employees on the Activity's premises and was permitted to be in the areas where those employees were located. See Application at 11. For purposes of this decision, reference to the "Activity's premises" will mean those areas where only employees represented by NAGE are located.

   As noted in our Order, 54 FLRA 1484, NFFE did not raise, and we do not address, the question whether the RD properly applied the standard set forth in Social Security.

   The General Counsel, as amicus curiae, suggests that the Authority state several specific factors that are relevant to determining whether an agency's improper grant of access to a rival union affected the free choice of its employees within the meaning of section 7102. We decline to adopt a list of such factors because the relevant factors are likely to vary widely in each case and, as a result, would be either too general to be useful or too extensive to be workable. Instead, we will be guided by the principles stated in this opinion.

   The dissent equates the Agency's improper grant of access to the rival union with "support" of the rival union's petition drive that carries an "implicit message." Dissent ¶ 4. There are, however, no findings in the RD's Decision supporting a conclusion that the Agency improperly granted access in an attempt to support the rival union or that employees perceived the Agency action as conveying an implicit message of support for the rival union. See RD's Decision at 3-5. This situation is, thus, distinguishable from the conduct described in the cases cited by the dissent, where there was "other evidence," unrelated to the signing of authorization cards, of employer assistance to the union. Farmers Energy Corp. v. NLRB, 730 F.2d 1098, 1102 (7th Cir. 1984). See NLRB v. Windsor Castle Health Care Facilities, 13 F.3d 619, 623 (2d Cir. 1994) (pattern of company assistance).

   Such an inquiry need not involve examining the "motivations" of the employees who signed the petition, as suggested by our dissenting colleague. Dissent ¶ 3. Absent any evidence that the agency's misconduct was perceived by employees as an attempt to influence the election campaign, assessing the effect of the misconduct would simply be a matter of determining how many signatures the organizer collected while granted improper access to the employer's premises. Such an inquiry would be consistent with the practices of the National Labor Relations Board. See Sunbelt Enterprises, Inc. and Colorado State Council of Carpenters, 285 NLRB 1153, 1161-64 (1987) (authorization cards may be examined to determine whether the solicitation methods of union organizers were appropriate). We agree with the dissent that improper assistance to a union "can go well beyond the specific solicitations of an organizer." Dissent ¶ 6. We disagree, however, that the record supports such a finding here.

      As the RD has held a hearing at which evidence concerning these issues was presented by the parties, it appears that the proceedings on remand will not require another hearing. We expect that the RD will issue another decision after the parties are provided an opportunity to state how the clarified standard should be applied to the case, as well as their present intentions with respect to this bargaining unit.