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.