The National Labor Relations Board (NLRB) has lifted its stay of a mail ballot election ordered by a Regional Director and denied the employer’s Request for Review of the Regional Director’s decision, based on the COVID-19 pandemic, to order a mail, rather than manual, ballot election. Atlas Pacific Engineering Company, 27-RC-258742 (May 8, 2020).

On May 1, 2020, the NLRB had granted the employer’s Emergency Motion to Stay the Election “to allow the Board time to fully consider the issues presented by the Regional Director’s direction of a mail ballot election.” Atlas Pacific Engineering Company, 27-RC-258742 (May 1, 2020). The employer also had filed a Request for Review (appeal) of the Regional Director’s decision.

In its May 8 decision, the NLRB relied on San Diego Gas & Electric, 325 NLRB 1143, 1145 (1998), where it held that, although manual ballot elections normally should be held, “there may be other relevant factors that the Regional Director may consider in making this decision” and that “extraordinary circumstances” could permit a Regional Director to exercise their discretion outside of the guidelines in that decision.

The NLRB once again noted its interest in “addressing the normal criteria for mail balloting in a future appropriate proceeding.” For more on this, see our blog post, NLRB Open to Changing Criteria for Mail Ballot Elections.

The employer was an essential business, so its employees were reporting for work during the COVID-19 pandemic. The employer had laid out a detailed plan for conducting a manual election in a safe manner.

In the NLRB’s view, the Regional Director’s main concern about conducting a manual ballot was NLRB employees’ safety. The NLRB acknowledged that it had “not previously found, under San Diego Gas & Electric, that internal Agency considerations constitute extraordinary circumstances that would warrant conducting a mail-ballot election outside of the guidelines specified therein.” The NLRB appeared to sidestep that issue, and decided that a mail-ballot election was warranted on other grounds:

the extraordinary federal, state, and local government directives that have limited nonessential travel, required the closure of nonessential businesses, and resulted in a determination that the regional office charged with conducting this election should remain on mandatory telework. Mandatory telework in the regional office is based on the Agency’s assessment of current Covid-19 pandemic conditions in the local area. Under all of the foregoing circumstances, we are satisfied that the Regional Director did not abuse her discretion in ordering a mail-ballot election here.

As we noted in our Special Report, Plan Ahead, Employers: NLRB Ordering Mail Ballot Elections Because of COVID-19 Pandemic, employers will have a difficult time convincing Regional Directors that NLRB representation elections during the COVID-19 pandemic should be by manual, rather than mail, balloting. Indeed, a review of the Regional Director Decisions and Directions of Election confirms that. Atlas Pacific Engineering Company appears to ensure that pattern will continue.

Please contact a Jackson Lewis attorney with any questions.

Print:
EmailTweetLikeLinkedIn
Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Richard F. Vitarelli Richard F. Vitarelli

Richard F. Vitarelli is a principal in the Hartford, Connecticut, office of Jackson Lewis P.C. He is the co-leader of the Labor Relations practice group, the firm’s national labor practice.

Photo of Jonathan J. Spitz Jonathan J. Spitz

Jonathan J. Spitz is a principal in the Atlanta, Georgia, office of Jackson Lewis P.C. and co-leader of the firm’s Labor Relations practice group.