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Law360 (May 6, 2020, 8:36 PM EDT ) A National Labor Relations Board regional director has said that employees of an environmental cleanup company can move forward with a union representation election by mail, rejecting the employer's attempt to put off the vote indefinitely in light of the COVID-19 pandemic.
David E. Leach III, regional director of the NLRB's Region 22, said Tuesday that the board will conduct a secret mail ballot election where North American Industrial Services Inc. employees working at a New Jersey site will decide whether they want the International Union of Operating Engineers, Local 825 to be their collective bargaining representative.
The company had offered various arguments against a mail-in ballot election, including the contention that workers might be afraid that the mail would be infected with the disease and then not vote as a result. However, Leach said the company offered no evidence to show that the workers actually had those concerns.
"The scholarly article in the record posits that COVID-19 remains on paper for only one day, thus allowing employees abundant time to return their ballots even if they prefer to 'quarantine' their mail for several days," the regional director said.
The New Jersey facility where the employees work is not only in a state where residents have been told to stay home as much as possible, but it is also just miles from New York City, which the regional director called "the unquestioned epicenter of the COVID-19 outbreak in the United States."
While the union typically likes to do representation elections manually, it agreed that doing it by mail was the best option in terms of safety and speed this time given the pandemic, the decision said.
The company, however, said that doing the election by mail was a bad idea, arguing that doing so would end up with unreliable results because the postal service is impaired, according to board documents. While both sides agreed that doing the election manually was not an option at this time, the company wanted to push back the election indefinitely.
And while the company said that employees wouldn't be able to adequately assess if they wanted the union as their bargaining representative since they are restricted in communicating face-to-face, the regional director rejected that argument as well.
"This seems highly unlikely, as employees are able to communicate by telephone, text message, social media, and other electronic means rather than in person at the workplace," the decision said.
Kevin Young, an organizer with the union, said in a statement to Law360 that the union was happy with the decision.
"Region 22, like its geographical regional neighbors in NY and Philadelphia, have set forth decisions that have preserved the rights of workers to unionize in spite of COVID-19," he said. "It is during these times, that workers more than ever, need representation and we are extremely happy that the region has secured these employees that fundamental right."
The company declined to comment to Law360 on Wednesday.
The company is represented by Thomas McDonough of Jackson Lewis PC.
The union is represented by Lauren Bonaguro of DeCotiis FitzPatrick Cole & Giblin LLP.
The case is North American Industrial Services Inc. and International Union of Operating Engineers, Local 825, case number 22-RC-258810, before the National Labor Relations Board.
--Editing by Abbie Sarfo.
Update: This story has been updated with a comment from the union.
For a reprint of this article, please contact reprints@law360.com.
