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Law360 (May 14, 2021, 5:44 PM EDT ) Workers at a California waste and recycling collection facility will vote in person on unionizing with a Teamsters local, marking the first time a National Labor Relations Board official has approved a manual election since the board issued rules for conducting votes during the COVID-19 pandemic.
In a Thursday decision, NLRB Los Angeles regional director Mori Rubin said improving COVID-19 metrics in the areas surrounding the GI Industries Waste Management facility in Simi Valley, California, means workers can safely vote in-person on being represented by Teamsters Local 186 under NLRB precedent. It is the first in-person election to be ordered since the NLRB issued its November Aspirus Keweenaw decision giving guidance for regional directors to follow when deciding how to hold union elections, according to the NLRB and a Law360 review.
"Based on the foregoing facts, the current status of the COVID-19 pandemic in Ventura and Los Angeles counties and board law, I find that … the circumstances here are not sufficient to justify directing a mail-ballot election under any of the factors outlined in Aspirus," Rubin said.
In general, the NLRB has expressed a preference for conducting union elections in-person, but when the COVID-19 pandemic began last spring, the regional directors who oversee the tallies began ordering elections be conducted by mail. Former NLRB general counsel Peter Robb issued a memo in July 2020 offering guidance on conducting elections during the pandemic and the board weighed in further in its Aspirus decision.
That decision instructed regional directors to consider factors such as whether there was an outbreak at the facility, the 14-day trend of cases and positive test rates where the election would take place and whether the election could be held in-person in accordance with state and local rules.
After Aspirus, regional directors still directed mail-in elections, including in cases in which both parties asked to hold an in-person vote. As vaccinations increased and case totals fell from earlier peaks, the officials often cited concerns about variants in ordering mail-ballots.
The board then issued a decision at the end of April in a case involving Rush University Medical Center that further clarified Aspirus, including by saying concerns about variants on their own are not enough to justify mail-in elections. In calling off a regional director's mail-in election decision for the first time, the NLRB further said officials should consider not just the presence of a COVID-19 case at a facility, but whether it would affect the ability to hold the election.
Rubin said the Rush University holding was particularly significant to her decision ordering the election for about 182 drivers, maintenance staff and other workers at the Waste Management facility. While an employee did test positive in recent weeks, they are not part of the bargaining unit and were last in the facility on April 29, giving the case minimal impact on the election itself.
In addition, while Rubin expressed some concerns about new COVID-19 variants, she said the Centers for Disease Control has not indicated any is so dangerous as to warrant new restrictions.
The election will take place on May 28 in two time blocks, one from 4 a.m. to 7 a.m. and another from 2:30 p.m. to 5 p.m. Rubin accepted the company's proposal to use a large tent at the facility to conduct the election and required it to provide by the day before the election the number of people who tested positive or experienced symptoms at the facility in the previous 14 days.
Counsel for the union did not immediately comment on the decision. The union itself declined to comment. Representatives for Waste Management did not immediately respond to requests for comment.
Local 186 is represented by Daniel Rojas of Rothner Segall & Greenstone.
Waste Management is represented in-house by Danielle Garcia.
The case is GI Industries and Teamsters Local 186, case number 31-RC-275296, before the National Labor Relations Board.
--Additional reporting by Braden Campbell. Editing by Leah V. Bennett.
Update: This story has been updated with a response from the union.
For a reprint of this article, please contact reprints@law360.com.
