The
National Labor Relations Board has upheld a regional official's decision ordering a mail-ballot union election at a Texas immigration detention facility, drawing a dissent from member William Emanuel, who called on the board to reconsider its standard for holding elections during the COVID-19 pandemic.
In a decision issued on Tuesday, the two-member panel majority said NLRB Phoenix office regional director Cornele Overstreet properly determined that Comprehensive Health Services LLC employees could vote by mail on whether to be represented by International Union of Operating Engineers Local 351. The majority said Overstreet's decision was reasonable because the room the employer suggested for holding the election did not allow for adequate social distancing.
Emanuel dissented and called on the board to revisit the standards it established in a
November 2020 case involving Aspirus Keweenaw for deciding the proper method for holding elections during the pandemic.
"In light of the evolving nature of the COVID-19 pandemic, I would revisit the guidelines set forth in our decision in Aspirus Keweenaw," Emanuel wrote.
While the board has traditionally favored in-person union elections, the regional offices that oversee elections shifted to using mail-in ballots during the COVID-19 pandemic. The board's 2020 Aspirus Keweenaw decision set out the standard for conducting remote votes, instructing regional officials to consider the local 14-day case trend, whether there is a current outbreak at the facility, and the company's proposed safety measures.
As COVID-19 numbers have improved in recent months, regional officials have started ordering
in-person elections again.
The board's decision Tuesday upheld Overstreet's May ruling setting the terms of an election of case managers that Local 351 is seeking to represent at the detention facility Comprehensive Health Services operates to house children detained at the U.S. border with Mexico. Overstreet said the mail-ballot election was necessary because while COVID-19 cases were falling in El Paso, where the facility is located, they were rising in a bordering New Mexico county and detailed data was unavailable for Juarez, Mexico, which sits across the border.
Overstreet also said he was skeptical the employer was prepared to safely conduct the election in person under a memo former general counsel Peter Robb issued in July 2020 and said the close quarters of a detention facility could make safely conducting a vote in person difficult. The panel majority said its ruling was only based on Overstreet's concerns about the inadequate space to hold the election safely.
The company asked the board to review Overstreet's decision, saying it relied on "hypothetical possibilities" of COVID-19 transmission in the facility. Comprehensive Health Services also said Overstreet ignored that the company had agreed to follow applicable health protocols and upended the traditional board presumption in favor of conducting elections in person.
The NLRB declined to comment on the decision.
Counsel for the company did not immediately return a request for comment. The company deferred comment to its attorneys.
The union did not immediately respond to messages requesting comment.
NLRB Chair Lauren McFerran and members John Ring and William Emanuel sat on the panel for the board.
Comprehensive Health Services is represented by Gregg Clifton and Alan Feldman of
Jackson Lewis PC.
Counsel information for the union was not listed on the board docket.
The case is Comprehensive Health Services LLC and International Union of Operating Engineers Local 351, case number 28-RC-276077, before the National Labor Relations Board.
--Editing by Vincent Sherry.
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