U.S. Department of the Interior, Bureau of Indian Affairs, Rosebud, South Dakota and National Federation of Federal Employees, Council of Consolidated Bureau of Indian Affairs Locals (Authority decision, December 27, 1989)

Final FLRA decision. This is a final Authority order resolving an objection to a representation election. It does not make an appropriate-unit determination under 5 U.S.C. § 7112, which 5 U.S.C. § 7123(a)(2) excludes from judicial review. 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).

Plain-English summary

Three of about 17 eligible employees at the BIA Rosebud Agency voted by mail ballot, and all three supported joining an NFFE bargaining unit. The agency objected that turnout was too low to make the election valid and blamed the mail ballot method. The Authority found that the agency had agreed to mail ballots and had shown no problem with notice or access to voting. Its rules required a majority of valid votes cast, with no minimum turnout. It denied review, leaving the election result in place.

Decision snapshot

• Authority: Election vote rule under 5 C.F.R. § 2422.18(c); review under § 2422.17.
• Outcome: Agency objection rejected; election result stands.
• Key point: Low turnout alone did not invalidate a properly noticed mail ballot election.

Full text (FLRA public release)

[ v34 p67 ]
34:0067(15)RO

The decision of the Authority follows:

34 FLRA No. 15

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF
INTERIOR

BUREAU OF INDIAN
AFFAIRS

ROSEBUD, SOUTH
DAKOTA

(Activity)

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES

COUNCIL OF CONSOLIDATED BUREAU OF INDIAN
AFFAIRS

(Petitioner)

7-R0-80011

ORDER DENYING APPLICATION FOR
REVIEW

December 27, 1989

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This case is before the Authority on an application for review filed by the U.S. Department of the Interior, Bureau of Indian Affairs, Rosebud Agency, Rosebud, South Dakota (the Activity), under section 2422.17(a) of the Authority's Rules and Regulations. The Activity seeks review of the Regional Director's Decision and Order on Objections rejecting the Activity's objection to the procedural conduct of a representation election. The National Federation of Federal Employees, Council of Consolidated Bureau of Indian Affairs Locals (the Petitioner) did not file an opposition to the application.

Because there were two vacancies in the membership of the Authority when the application for review was filed, Acting Chairman McKee issued an interim order on May 12, 1989, directing that consideration of the application be deferred until further notice. The interim order preserved the parties' rights under the Statute to Authority consideration of the Regional Director's decision.

We now consider the Activity's application for review. For the reasons set forth below, we will deny the application.

II. Background

A mail ballot election was conducted under the
supervision of the Regional Director on December 2, 1988, in accordance with the provisions of an Agreement For Consent or Directed Election. The election was held to determine if certain unrepresented employees of the Activity wished to be included in the Petitioner's existing nationwide consolidated unit of Bureau of Indian Affairs employees.

Out of the approximately 17 eligible voters in the unit, 3 employees voted. The three employees all voted to be represented by the Petitioner. All three votes were determined to be valid and none of the ballots was challenged.

The Activity filed an objection to the "procedural conduct of the election." Regional Director's Decision at 2. The Activity contended that because only 3 of approximately 17 eligible voters cast ballots, the number of actual voters does not represent "a sufficient or significant number" of eligible employees to warrant the issuance of a Certification of Representation. Id. The Activity maintained that the low voter participation in the election was due to the use of mail ballot procedures. The Activity cited two decisions of the National Labor Relations Board (NLRB), Kit Mfg. Co., 198 NLRB 1 (1971) and Gold & Baker, 55 NLRB 591 (1944), to support its position that "there is a per se impropriety in the conduct of the election in this case due to the low voter turn out." Id. at 3.

III. The Regional Director's Decision

The Regional Director determined that the Activity's objection had no merit.

The Regional Director noted that: (1) the Activity agreed that the election would be conducted by mail ballot; and (2) the mail ballot procedure is a valid means of conducting representation elections. The Regional Director found that there was no showing that the election was not properly publicized or that any unusual circumstances improperly limited voter participation. The Regional Director also found that the NLRB cases cited by the Activity did not apply as they dealt only with the special situation where only one eligible voter cast a ballot in an election having only two potential eligible voters.

The Regional Director ruled that the election was valid under section 2422.18(c) of the Authority's Rules and Regulations, which states that "[a]n exclusive representative shall be chosen by a majority of the valid ballots cast." She found that there was no requirement in the Authority's Rules and Regulations that a specific percentage or number of eligible voters must cast ballots in order for a representation election to be valid. Accordingly, based on the election results, the Regional Director advised the parties that she would issue a Certification of Inclusion in Existing Unit on behalf of the Petitioner.

IV. The Application for Review

The Activity states that review is requested because "there is a substantial question of law and policy with respect to what represents a significant participation in an election. There is an absence of law and precedent on this issue." Application for Review at 1.

The Activity contends that mail ballots are "an inappropriate passive method" and that "the mail ballot process has failed in this situation to elicit a representation vote." Id. at 2. The Activity also contends that the Regional Director improperly limited the application of the Board decisions in Kit Mfg. Co. and Gold & Baker. The Activity claims that these cases support its position that the election in this case must be set aside based on inadequate participation.

V. Analysis and Conclusions

We conclude that no compelling reasons exist within the meaning of section 2422.17(c) of our Rules and Regulations for granting the application for review.

In view of the Activity's agreement that the election would be conducted by mail ballot, we agree with the Regional Director's rejection of the Activity's objection to the use of mail ballot procedures. We also agree with the Regional Director that, in the absence of a showing that the election was not properly publicized or that unusual circumstances improperly limited voter participation, the election was valid under section 2422.18(c) of our Rules and Regulations. The Regional Director properly determined that there is no requirement under our Rules and Regulations that a specific percentage or number of eligible voters cast ballots in order for a representation election to be valid.

We also find that the NLRB decisions in Kit Mfg. Co. and Gold & Baker offer no support for the Activity's application for review. In Lemco Construction, 283 NLRB 459 (1987), the NLRB overruled Kit Mfg. Co. and Gold & Baker. The NLRB stated: "[W]e have decided to abandon any analysis dependent on a numerical test to determine the validity of a representation election. Rather, we will issue certifications where there is adequate notice and opportunity to vote and employees are not prevented from voting by the conduct of a party or by unfairness in the scheduling or mechanics of the election." 283 NLRB at 460 (footnote omitted).

Accordingly, we conclude that the Activity fails to show that the Regional Director's decision raises a substantial question of law or policy because of the absence of Authority precedent. Consequently, the Activity's application provides no basis for granting review of the Regional Director's decision, and we will deny the application.

VI. Order

The application for review of the Regional Director's Decision and Order on Objections is denied.

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