By Braden Campbell

Law360 (September 24, 2020, 5:47 PM EDT) -- A National Labor Relations Board official says workers at a Pennsylvania distillery can vote in-person on whether to join the Bakery, Confectionary, Tobacco Workers and Grain Millers International Union in possibly the first decision calling for a nonmail election during the COVID-19 pandemic.

NLRB Pittsburgh office regional director Nancy Wilson on Wednesday approved an organizing petition by production and maintenance workers at Pennsylvania Grain Processing and ordered a "manual" vote, citing the relatively low rates of coronavirus infection in Clearfield County, the lack of virus cases among workers, and other factors.

"I have considered the accommodations and arrangements offered by the employer, and the small number of cases in the county where the employer's facility is located, and the parties' positions, in finding that a manual election is appropriate," Wilson said.

Wilson's decision bucks a trend of regional directors ordering mail-ballot elections as employers and the agency's titular board push to resume manual union votes in areas of the country that have slowed the spread of COVID-19.

Though the NLRB has historically held manual votes whenever possible, the agency has given the regional directors who process union election petitions discretion to hold mail votes during the pandemic. They have used this power in most — if not all — cases to call for mail balloting, even after general counsel Peter Robb issued guidelines for holding in-person elections in July.

Law360 found no other cases in which the board staged an in-person vote during the pandemic other than by agreement between the involved union and employer. An NLRB spokesman said Thursday he could not "definitively say that this is the first directed manual election, but there have been very few since the onset of COVID-related closures."

The trend has frustrated employers' advocates, who have urged the agency to hold more in-person elections. The board appeared to heed this call last month, taking up a rural Michigan hospital's request that it review a mail-balloting decision in a move that could yield firm standards for manual votes.

Wilson considered several criteria in Wednesday's ruling, including the scope of infection in Clearfield County and the distillery's proposal to mitigate risks. The county has only accounted for about 300 of Pennsylvania's estimated 155,000 confirmed COVID-19 cases, and no distillery worker at Pennsylvania Grain Processing has tested positive, she said. The company has also offered to implement Robb's suggested precautions, including by holding the vote in a large conference room with separate entry and exit doors, she said.

Wilson also resolved a disagreement over which workers should vote in the election. The workers petitioned to form a union comprising all production and maintenance workers at the facility, but the company lobbied to exclude laboratory technicians and certain administrators while including truck drivers who service the plant. Wilson rejected the company's bid, saying the workers in the proposed unit have "a community of interest amongst themselves … sufficiently distinct from the interests of the excluded truck drivers."

Though unions have requested mail votes in many cases during the pandemic, the Bakery, Confectionary, Tobacco Workers and Grain Millers did not state a preference. The union's attorney, Timothy Fadel of Lee Fadel & Beyer LLC, said the union's sole concern was a speedy election.

"Thus, while we didn't stipulate to manual, we didn't oppose it either," Fadel said. "If anything, we tacitly approved a manual ballot if it got us to an election sooner."

An attorney for the company declined comment. 

--Editing by Bruce Goldman.

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