45:0263(23)RO - - VA, Chattanooga National Cemetery, Chattanooga, TN and AFGE - - 1992 FLRAdec RO - - v45 p263

[ v45 p263 ]
The decision of the Authority follows:

45 FLRA No. 23












June 18, 1992

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 Activity under section 2422.17(a) of the Authority's Rules and Regulations. The Activity seeks review of the Regional Director's (RD) decision and order on objections, which found that the Activity's objections were untimely. The Union did not file an opposition to the Activity's application for review.

For the following reasons, we deny the application for review.

II. Background and Regional Director's Decision

On February 19, 1992, the RD conducted a secret ballot election at the Activity in accordance with the provisions of an Agreement for Consent Election that was approved on January 21, 1992. The results of the election, as set forth in the "Tally of Ballots" dated February 19, 1992, were as follows:

Approximate number of eligible voters......8

Void ballots...............................0

Votes cast for American Federation of

Government Employees, AFL-CIO.............6

Votes cast against exclusive recognition...2

Valid votes counted........................8

Challenged ballots.........................0

Valid votes counted plus challenged


Challenged ballots are not sufficient in number to affect the result of the election.

RD's decision at 1.

On February 28, 1992, the Activity filed objections to the election, contending that certain conduct of the Authority agent during the voting period may have improperly affected the results of the election. In particular, the Activity contended that the Authority agent called the shop area and instructed an Activity foreman to send employees to the voting place so they could vote. The Activity maintained that the foreman "'followed the agent's instructions and told the employees that they needed to go to the voting place to vote in the election.'" Id. at 2 (quoting Objections). Prior to the call, only the Union observer had cast a vote. The Activity argued that the additional five votes for the Union might not have been cast absent the Authority agent's conduct.

The Union took the position that the Activity's objections were untimely filed. Further, the Union contended that there was no claim by the Activity that anyone was coerced into voting for or against the Union.

The RD found that under section 2422.21(b) of the Authority's Rules and Regulations any objections to the election had to be filed by February 26, 1992.1/ She noted that the Activity's objections were not filed until February 28, 1992, 7 days after the tally of ballots was furnished to the parties. The RD rejected the Activity's contention that the RD should consider its objections timely because the Authority agent allegedly stated, at the time she furnished the tally of ballots to the Activity's representative on February 19, 1992, that the results of the election were unofficial and that the official results would be received from the RD within 5 to 7 days. The RD stated that the Authority agent denied making such a statement and found that the issue of whether such an alleged statement was made was not dispositive. In this regard, the RD relied on the Authority's decision in U.S. Department of Housing and Urban Development, Washington, D.C., 34 FLRA 307, 309 (1990) (HUD), where the Authority held that parties dealing with the Government are charged with knowledge of, and are bound by statutes and lawfully promulgated regulations, even if they have relied to their detriment upon incorrect information received from Government agents or employees. The RD also found untimely the Activity's allegation that it had not been given an opportunity to object to the Union's observer because this allegation was raised for the first time on March 10, 1992.

Consequently, having found that the Activity's objections were untimely, the RD did not consider the merits of the Activity's objections.

III. Activity's Application for Review

The Activity contends that because of the extraordinary circumstances in this case, the Authority should reconsider its policy and procedures in establishing time limits for the parties to file objections to elections. The Activity further contends that the RD's decision "to deny the objection based on timeliness alone is clearly erroneous in light of the circumstances, and this error has prejudicially affected the [Activity] by denying review of the merits of the objection." Application at 7.

The Activity states that it does not dispute the fact that the filing of its objections was untimely by 2 days as the Authority's policy and procedures "have been belatedly described" in the RD's decision. Id. at 3. However, the Activity contends that the confusion that was generated by the statement made by the Authority agent concerning whether the 5-day clock commenced on the date of the "unofficial" tally or upon receipt of the "official results" created a substantial factual issue that was not addressed by the RD. Id. Without the benefit of a hearing to determine the factual issue of whether the Authority agent made such a statement, the Activity claims the RD's decision "is clearly erroneous." Id.

The Activity contends that section 2422.20 of the Authority Rules and Regulations is not sufficiently specific for it to have known that the information received from the Authority agent was erroneous.2/ The Activity asserts, therefore, that the RD's reliance on HUD is not relevant to this case. The Activity contends that although section 2422.20 is not sufficiently clear as to how or when the tally of ballots will be furnished, it is clear that it is the RD who furnishes the tally of ballots. The Activity maintains that on February 19, 1992, the Authority agent advised the Activity that "the 'official' tally of ballots would be forthcoming from the Regional Director." Id. at 4 (emphasis in original). Thus, the Activity contends that it waited 5 to 7 days to receive the official results and when it did not receive these results, it decided to file the objections on the seventh day. Further, the Activity argues that in HUD the Authority "ruled" that parties must be able to rely on the accuracy of the information provided to them by Authority employees. Id. at 5. In addition, the Activity contends this case is distinguishable from HUD. The Activity argues that in HUD the Authority could not extend the clearly described 60-day time limit in section 2422.17(a) of the Authority Rules and Regulations, while there is no such prohibition in section 2422.21(b), which governs the issue in this case. It also asserts that in HUD, in contrast to the situation in this case, all of the information necessary to satisfy the filing requirements was readily available to the Agency.

Further, the Activity argues that a reasonable person reading the Agreement for Consent Election would assume that the RD would furnish the tally of ballots. Thus, the Activity notes that the Agreement for Consent Election states that "'[a]s soon after the election as feasible, the votes will be counted and tabulated by the Regional Director or Authority agent(s). Upon the conclusion of the counting, the Regional Director will furnish a Tally of Ballots to each of the parties.'" Id. at 4 (quoting FLRA Form 33 (emphasis in Application)). The Activity also contends that in all other matters handled by the Authority, Authority agents do not have the authority to sign for the RD.

The Activity also asserts that the issue raised in its objections to the election is serious and without Authority precedent. The Activity argues that without a hearing on the merits of its objections, there would be no opportunity for the Activity "to substantiate its contention that the election results may have been compromised by harmful procedural error." Id. at 9. In this event, the Activity argues that it will be denied the appropriate remedy of a new and fair election.

IV. Analysis and Conclusions

We conclude that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the Activity's application for review. This conclusion is based on our finding, as discussed below, that extraordinary circumstances do not exist to warrant the waiving of the time limits set forth in section 2422.21(b) of the Authority Rules and Regulations.

The Activity contends that the alleged statement of the Authority agent concerning "unofficial" and "official" results of the election, coupled with the lack of sufficiently specific language in the Authority regulations provide extraordinary circumstances warranting the waiving of the 5-day time limit to file its objections to the election. Section 2429.23(b) of the Authority's Rules and Regulations provides: "Except as provided in paragraph (d) of this section, the Authority or General Counsel, or their designated representatives, as appropriate, may waive any expired time limit in this subchapter in extraordinary circumstances."3/ Thus, the 5-day time limit for filing objections set forth in section 2422.21(b) is discretionary and may be waived. However, we conclude that the Activity has not established that there were extraordinary circumstances within the meaning of section 2429.23(b) that required the RD to waive the time limits in this case.

Section 2422.21(b) of our Regulations clearly states that "[w]ithin five (5) days after the tally of ballots has been furnished, a party may file objections to the procedural conduct of the election[.]" Section 2422.20 provides that "[u]pon the conclusion of the election, the [RD] shall cause to be furnished to the parties a tally of ballots." Thus, the only tally of ballots contemplated by the regulations is that which is furnished to the parties upon the conclusion of the election and after the counting of the ballots. There is no indication in the regulations that there is any distinction between an "official" and an "unofficial" tally. Indeed, the fact that the regulations refer to the term "tally of ballots" only in the singular indicates that only one tally of ballots was intended. See sections 2422.20 and 2422.21(b). We conclude that the Authority's regulations are sufficiently clear in requiring that any objections to an election must be filed within 5 days after the parties receive a tally of ballots at the conclusion of that election.

We reject the Activity's contention that an Authority agent does not have the authority to act for the RD in furnishing the tally of ballots, and that, therefore, the Activity was justified in waiting for the RD to furnish an "official" tally. The signature of the Authority agent on the standard FLRA Form 39, entitled "Tally of Ballots," appears directly below the caption "FOR THE REGIONAL DIRECTOR." Accordingly, we find that FLRA Form 39 clearly indicates and puts the parties on notice that the Authority agent was duly authorized to act on behalf of the RD. On this issue, section 2422.20 states only that the RD "shall cause to be furnished" the tally of ballots (emphasis added). Accordingly, section 2422.20 clearly authorizes the delegation of authority that occurred in this case.

Further, we reject the Activity's contention that its application for review should be granted because the RD's decision did not address the factual issue of whether the Authority agent made the alleged statement. Based on our determination that the Activity could have ascertained the requirements necessary for filing timely objections to the election from the pertinent regulations and the language of the Agreement for Consent Election, we find that such a factual determination is unnecessary in this case.

The Activity also asserts that the issue of coercion raised in its objections to the election is serious and without Authority precedent and that the Authority should not avoid addressing this issue by relying on a "technical fault[.]" Application at 9. In view of our determination that the Regional Director did not abuse her discretion in finding that the Activity's objections were unt