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Law360 (February 2, 2021, 7:23 PM EST) -- A National Labor Relations Board official said Tuesday that workers at an XPO Logistics facility in New Jersey should vote by mail in a decertification election, unpersuaded by a Teamsters local's argument that it could safely hold the election in person at a banquet hall.
The NLRB regional director said in his decision that a mail election was appropriate for the XPO Logistics Freight Inc. workers voting on whether to continue to be represented by Teamsters Local 107, given the high COVID-19 positivity rates for the in-person locations proposed.
Nearly 700,000 COVID-19 cases have been reported in New Jersey, the regional director noted, and the positivity rate in Burlington County where the facility is located "has been significantly higher than 5% since about November."
Further, the positivity rate in Philadelphia, the location of the banquet hall Teamsters Local 107 recommended for the election, is "almost six times" the 5% threshold suggested by the board's decision in Aspirus Keweenaw, which offers guidance on when it's appropriate for regional directors to call for mail ballot votes, the decision said.
"Although the other Aspirus Keweenaw factors may allow for a manual election, the spread of the virus, as indicated by the positivity rate, is so severe that a mail-ballot election is clearly the safer choice," wrote Thomas Goonan, the regional director for Region 4.
According to the decision, though XPO Logistics and Miguel Valle, the petitioner for the election, anticipated a mail-ballot election would be directed, they were willing to agree to a manual election. However, they said an in-person election should be held at the facility the workers reported to, while Teamsters Local 107, which argued for an in-person election, asserted that the election should be held at its banquet hall in Philadelphia, the decision said.
The union contended that the banquet hall was large enough for social distancing and said that it was willing to provide hand cleaning stations and comply with the guidance for holding in-person elections outlined in General Counsel Memo 20-10. But Goonan wasn't convinced.
"We're pleased that despite Teamsters' officials blatant stall tactics in attempting to delay this decertification election, these workers will now finally have a chance to exercise their right to vote out a union that many have already made clear that they believe they would be better off without," said Patrick Semmens, the vice president of the National Right to Work Foundation, which is representing Valle in the case.
Counsel and representatives for the remaining parties didn't respond to a request for comment late Tuesday.
Valle is represented by Matthew Gilliam of the National Right to Work Legal Defense Foundation Inc.
XPO Logistics is represented by Richard Brown of Constangy Brooks Smith & Prophete LLP.
Teamsters Local 107 is represented by Lance Geren of O'Donoghue & O'Donoghue LLP.
The case is XPO Logistics Freight Inc. and Miguel Valle and Highway Truck Drivers and Helpers Local 107, a/w International Brotherhood of Teamsters, case number 04-RD-270680, in the National Labor Relations Board Region 4.
--Editing by Leah Bennett.
For a reprint of this article, please contact reprints@law360.com.
