Gallup Indian Medical Center; National Federation of Federal Employees, Local 1749; and Laborers' International Union of North America, Navajo Area Health Care Employees, Local Union 1376 (Authority decision, March 3, 1992)

Final FLRA decision. This is a final order resolving an unfair labor practice case. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

Gallup Indian Medical Center allowed outside representatives of a rival union onto its premises to organize employees already represented by NFFE Local 1749. The Authority adopted a judge's finding that this assistance violated the federal labor statute and ordered the center to stop and post an employee notice. NFFE asked the Authority to dismiss the rival union's separate representation petition because signatures had been obtained through the unlawful access. The Authority left that petition to the Regional Director for investigation and further action; this decision did not require an election. If the director chose to hold one, it could not occur earlier than 60 days after the notice was posted.

Decision snapshot

• Authority: Unlawful assistance and interference under 5 U.S.C. § 7116(a)(1) and (3).
• Outcome: Violation and cease and desist order adopted; separate representation petition left to the Regional Director.
• Key point: Resolving the unfair labor practice unblocks the separate representation case but does not dictate whether an election must occur.

Full text (FLRA public release)

[ v44 p217 ]
44:0217(19)CA

The decision of the Authority follows:

44 FLRA No. 19

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

GALLUP INDIAN MEDICAL CENTER

GALLUP, NEW MEXICO

(Respondent)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1749

(Charging Party)

and

LABORERS' INTERNATIONAL UNION OF NORTH
AMERICA

NAVAJO AREA HEALTH CARE EMPLOYEES

LOCAL UNION 1376

(Intervenor)

76-CA-00977

DECISION AND ORDER

March 3, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Charging Party to the attached decision of the Administrative Law Judge. The General Counsel and the Intervenor filed oppositions to the Charging Party's exceptions.(*)

The complaint alleged that the Respondent violated section 7116(a)(1) and (3) of the Federal Service Labor-Management Relations Statute (the Statute) by unlawfully assisting the Intervenor in permitting organizing efforts by the Intervenor at a time when the Intervenor did not have equivalent status. The Judge found that the Respondent violated the Statute as alleged and ordered the Respondent to cease and desist from providing assistance to the Intervenor and interfering with employees' rights and to post an appropriate notice.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. On consideration of the entire record, and noting the absence of exceptions to the Judge's finding of a violation of the Statute, we adopt the Judge's findings, conclusions, and recommended Order.

The Charging Party excepts only to the content of the Judge's recommended Order as insufficient to remedy the violation. The Charging Party notes that following the filing of the unfair labor practice charge in this case, the Regional Director "blocked the [Intervenor's previously filed] petition for representation [in Case No. 76-RO-00011] and has held it in abeyance since that time pending the outcome of the instant charge." Charging Party's Exceptions at 3-4. According to the Charging Party, if the Authority were to adopt the Judge's recommended Order, "the block would be removed and the Authority would be required to conduct an election . . . ." Id. at

4. The Charging Party asserts that no election should be held based on the
   Intervenor's representation petition and the petition should be dismissed because the signatures solicited by the Intervenor on the Respondent's premises for the purpose of filing a representation petition were tainted.

It is evident from the record that following the filing of the unfair labor practice charge in this case, the Regional Director blocked the Intervenor's previously filed representation petition in Case No. 76-RO-00011 seeking an election in the unit represented by the Charging Party. The Regional Director's action in blocking the petition was consistent with the policy that, generally, "representation elections will not be conducted when unfair labor practice charges filed by a party to the representation case are based on conduct of a nature which would have a tendency to interfere with the free choice of the employees in an election were such an election to be conducted." Office of the General Counsel's Representation Case Handling Manual, Section 220.011. The disposition of an unfair labor practice charge "will serve to 'unblock' the representation proceeding." Id., Section 220.013.

Accordingly, the representation proceeding has been blocked pending the disposition of the unfair labor practice charge in this case. Our decision in this case will allow the resumed processing of the representation petition filed in Case No. 76-RO-00011. However, our decision does not require the Regional Director to conduct an election.

The determination as to what course of action in Case No. 76-RO-00011 is appropriate in light of our decision in this unfair labor practice case is for the Regional Director to make, inasmuch as Case No. 76-RO-00011 has not been made part of the proceeding before us. Compare Department of Justice, Immigration and Naturalization Service, 9 FLRA 253, 263 (1982) (INS), rev'd as to other matters sub nom. U.S. Department of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984) and Department of the Air Force, Air Force Plant Representative Office, Detachment 27, Fort Worth, Texas, 5 FLRA 492 (1981). Our decision allows the Regional Director to resume processing of the representation petition, consistent with our decision in this case, in accordance with section 2422 of the Authority's Rules and Regulations (5 C.F.R. § 2422) and the General Counsel's Representation Case Handling Manual.

Following our decision in this case, the Regional Director shall, pursuant to section 2422.4(f) of our Rules and Regulations, make such investigation as she deems necessary in Case No. 76-RO-00011 and take appropriate action. Section 2422.4(f) provides that the Regional Director may: (1) approve an agreement for consent election; (2) approve a withdrawal request; (3) issue a Decision and Order dismissing the petition; (4) issue a notice of hearing; or (5) issue a Decision and Order based upon a stipulation by the parties that no material issue of fact exists. The Regional Director's action should be consistent with our determination that the Respondent in this case committed the unfair labor practices alleged in the complaint and with the well established principle that "a cornerstone of the Statute is that employees should be free to choose or reject union representation without coercion and while agency management maintains a posture of neutrality." INS, 9 FLRA at 263. If the Regional Director determines that an election should be held, the election should not be conducted earlier than 60 days from the date of posting of the Notice in this case, consistent with our decision in this case and the principles set forth above.

II. Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Gallup Indian Medical Center, Gallup, New Mexico shall:

1. Cease and desist from:

(a) Providing assistance to the Navajo Area Health Care Employees Local Union 1376, Laborers International Union of North America (LIU) by permitting nonemployee representatives of LIU access to its premises, including access to tables outside the employee cafeteria on the ground floor, for purposes of conducting an organizational campaign among its employees at a time when its employees are represented exclusively by the National Federation of Federal Employees, Local 1749, and at a time when the LIU is not party to a pending representation proceeding raising a question concerning representation.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of the rights assured by the Federal Service Labor-Management

Relations Statute.

2. Take the following affirmative action in order to effectuate the
   purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Post at its Gallup Indian Medical Center, Gallup, New Mexico, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Service Unit Director of the Gallup Indian Medical Center, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Denver Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT provide assistance to the Navajo Area Health Care Employees Local Union 1376, Laborers International Union of North America (LIU) by permitting nonemployee representatives of LIU access to our premises, including access to tables outside the employee cafeteria on the ground floor, for purposes of conducting an organizational campaign among our employees at a time when our employees are represented exclusively by the National Federation of Federal Employees, Local 1749, and at a time when the LIU is not party to a pending representation proceeding raising a question concerning representation.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of the rights assured by the Federal Service Labor-Management Relations Statute.

________
(Activity)

Dated: _ By: ____

(Signature)
(Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Denver Regional Office, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204, and whose telephone number is: (303) 844-5224.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

*/ In its opposition, the Intervenor moves to strike the Charging Party's exceptions as procedurally defective under section 2423.27 of the Authority's Regulations. We deny the Intervenor's motion because we conclude that the Charging Party's exceptions are sufficiently clear so as to satisfy the requirements of section 2423.27.