Daniel R. Wachtler, Mark J. Ayotte, Briggs and Morgan, P.A., 2200 First National Bank Building, St. Paul, MN 55101 (for Respondent)

Kathryn F. Brown, 325 Morrill Hall, Church Street S.E., Minneapolis, MN 55455 (for Respondent)

Harley M. Ogata, Christina L. Clark, Minnesota Education Association, 41 Sherburne Avenue, St. Paul, MN 55103 (for Relator)

Considered and decided by Short, Presiding Judge, Lansing, Judge, and Klaphake, Judge.

The University Education Association challenges a ruling by the Bureau of Mediation Services affirming a decision to deny an extension of the time for receipt of absentee ballots. The Bureau's decision to deny the extension was not arbitrary and capricious, and we affirm.

FACTS

Faculty employees at the University of Minnesota-Crookston petitioned the Bureau of Mediation Services (Bureau) on October 8, 1996, for inclusion in the outstate instructional bargaining unit described by Minn. Stat. § 179A.11(9) (1996), and represented by the University Education Association (Union). The Bureau issued a November 6 election order setting the election for November 20. The order stated that absentee ballots could be requested in writing from the Bureau by November 12. The order instructed voters to return the ballots to the Bureau in person or by US mail in the stamped, self-addressed return envelope furnished by the Bureau no later than 4:30 p.m., Monday, November 18. The order prohibited voters who had been sent an absentee ballot from voting at the on-site election.

On November 8 the University Faculty Association (Faculty Association) faxed nine absentee ballot requests to the Bureau. Later that day the Bureau mailed the nine absentee ballots. One of the ballots was mailed to faculty member Marv Mattson. Mattson returned the ballot by US mail, but it was not received by November 18 and was not tabulated.

The Faculty Association faxed requests for two additional ballots on November 11, and those faculty members received their ballots on Friday, November 15. Sharon Stewart, the chair of the executive board of the Faculty Association, called the Bureau to request an extension of the November 18 return date because a snowstorm in Crookston was causing mail delay. The Bureau refused her request because the staff person traveling to Crookston to conduct the election had to leave the Bureau offices in St. Paul on November 18 for a November 19 hearing at another campus. To tabulate the total vote at the November 20 on-site election at Crookston, the staff person needed to take the absentee ballots when he left the office on November 18.

Stewart obtained five of the absentee ballots and sent them by overnight express mail to the Bureau. All of these ballots arrived on November 18. Stewart could not retrieve Mattson's ballot. Mattson indicates that he mailed his ballot on November 15; the Bureau received his ballot on November 21. The Bureau conducted the on-site election on November 20, counting only the absentee ballots received by November 18. The Commissioner's post-election order certified 16 "yes" votes and 16 "no" votes, and the Crookston faculty remained severed from Unit 9.

The Union filed a request for reconsideration of the Bureau's refusal to extend the deadline for receipt of ballots. The Bureau affirmed its determination, and by writ of certiorari, the Union now challenges the Bureau's decision not to extend the time for receipt of absentee ballots.

D E C I S I O N

This court's review of the Bureau's ruling is limited to determining whether the Bureau's findings, inferences, conclusions and decisions are supported by evidence in the record, unaffected by error of law and not arbitrary or capricious. Scott v. Public Employment Relations Bd., 461 N.W.2d 503, 504 (Minn. App. 1990), review denied (Minn. Dec. 20, 1990). "[D]ecisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by the courts to the agency's expertise and their special knowledge in the field of their technical training, education, and experience." Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977).

The Union argues that the Bureau should hold a new election because procedural irregularities in the conduct of the election may have substantially affected the results. To support its argument the Union relies on In re Investigation of Unfair Election Practices Objections (Rosemount), 461 N.W.2d 215 (Minn. 1990). In Rosemount the Minnesota Supreme Court affirmed the Bureau's discretionary decision to invalidate an election to determine an exclusive bargaining representative because the election order failed to provide notice that voters who had not received ballots within a week of the vote could obtain a ballot by telephoning the Bureau. Id. at 219.

We disagree that Rosemount requires reversal of the Bureau's ruling. The procedural defect in Rosemount was attributable to a mistake made by the Bureau, but here it is not. The record in this case demonstrates that the Bureau's voting instructions proved adequate to ensure a fair election and that the Bureau conducted the election in accordance with its posted election order. See id. at 217-18. The Bureau's decision to retain the original cutoff date may have been reached to serve administrative convenience, but it is not a procedural irregularity.

The Union alternatively argues that the Bureau should have advised Stewart to contact the other party and ask for an extension. We disagree. PELRA requirements "may be waived by agreement of all parties and the approval of the commissioner." Minn. R. 5510.0210. The rules require the Commissioner to grant joint requests unless doing so would "likely . . . result in harm to the general public . . . or is likely to result in substantial impairment or frustration of the intent or purposes of the act." But the rules do not impose an affirmative duty on the Commissioner to suggest to the parties that they request a waiver.

The Union's final argument is that the Bureau's refusal to grant an extension was arbitrary and unreasonable in light of a prior decision by the Bureau granting an extension in a similar case without the Union's consent. In re Petition for Determination of Appropriate Unit and Certification as Exclusive Representative (Academic Health Center), BMS No. 97-PCE-423 (November 7, 1996). The Bureau, in its ruling on request for reconsideration, distinguished Academic Health Center because it involved an on-site election held in the Twin Cities, and "it was not necessary to allow travel time to conduct the election." We decline to fashion a "reasonable extension" standard based on the decision in Academic Health Center because the Bureau's location in St. Paul permitted it to extend its original deadline without compromising its ability to conduct the on-site election in accordance with the posted election order.

Affirmed.