[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]
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