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

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

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