August 10, 2020

Volume X, Number 223

August 10, 2020

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NLRB Orders Mail Ballot Election Delayed by Pandemic Concerns to Proceed

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.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 134


About this Author

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

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...

Thomas V. Walsh, Jackson Lewis, employment arbitration Lawyer, White plains, Union Organizing Attorney

Thomas V. Walsh is a Shareholder in the White Plains, New York, office of Jackson Lewis P.C. Since joining the firm in 1986, Mr. Walsh has represented employers in all aspects of labor and employment law and litigation.

Mr. Walsh has represented employers before numerous state and federal courts, regulatory agencies, as well as in numerous arbitrations. Mr. Walsh has extensive experience in representing employers faced with union organizing drives and in proceedings before the National Labor Relations Board. He has an active practice advising employers regarding state and federal prevailing wage laws. He is consulted around the country by charter school employers regarding labor unions.

Richard F. Vitarelli Principal Jackson Lewis

Richard F. Vitarelli is a Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. Part of the firm’s national labor practice, he has over two decades of experience representing employers nationally in strategic labor relations, collective bargaining, and union organizing, including in the context of mergers and acquisitions, corporate restructuring and contract administration. He serves as general labor and employment counsel for employers and multi-employer associations in various industries, including construction, manufacturing, health care and senior living,...

Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta

Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...