By Vin Gurrieri

Law360 (May 8, 2020, 4:41 PM EDT) -- Instacart's shoppers at a Chicago supermarket can hold a vote by mail to determine if they will unionize with the United Food and Commercial Workers International Union, a National Labor Relations Board official said Thursday, rejecting the company's contention that the workers will lose focus on their "essential" jobs amid the novel coronavirus pandemic.

Peter Sung Ohr, director of the NLRB's Region 13 office, ordered that a mail ballot election be held to determine whether in-store shoppers who work for Instacart at a Jewel-Osco supermarket store in Chicago will be represented by the UFCW. The ruling was one of three issued by regional directors on Thursday that let mail ballot elections move forward over virus-related objections from employers.

Ohr rejected Instacart's arguments that the union election should be postponed indefinitely both because the workers might "become distracted from performing their 'essential' jobs" by the election, and because the COVID-19 pandemic would limit Instacart's ability to express its views to workers about unionization before they vote.

"The employer has not suggested its essential employees are unable to vote, incapable of voting, or otherwise prevented from casting a ballot," Ohr said in his order. "However, at the hearing, the employer provided no evidence it could not communicate with its employees and cited no cases where the board has delayed conducting an election, let alone processing a representation petition, due to the potential for employee distraction."

Instacart had sought to have the union petition to represent its in-store shoppers at Jewel-Osco held in abeyance until emergency measures responding to COVID-19 are no longer in effect, or alternatively have the election held in person and not by mail, according to Thursday's order, which outlined the employer's positions. The union filed the petition to represent hose workers on April 22.

Issues about whether union elections should be postponed and whether they should be held by mail during the ongoing pandemic have popped up in numerous NLRB representation cases over the past few months, with employers largely coming up short in their efforts to delay votes or force them to be held in person.  

Although the NLRB in mid-March briefly placed a moratorium on all union elections while it reviewed the logistics of holding such elections during a pandemic, the agency restarted them as the calendar turned to April, giving regional directors discretion over how to conduct them.

In Thursday's order, Ohr noted that the National Labor Relations Act protects employees' right to organize and that the labor board "since its earliest days" has held that "employee rights are not diminished during times of emergency," noting that the board in the early 1940s ordered "dozens of elections during World War II for workers performing essential functions."

Mail ballots to the bargaining unit at issue will be sent out on May 20 and are due back on June 11. They will be counted a week later, according to Thursday's order.

Instacart said in a statement to Law360 that it supports the right of in-store shoppers, who are classified as part-time employees, to consider unionizing, but that it is considering appealing Ohr's decision to the labor board.

The company also said it believes that an in-person election "can be reasonably conducted on-site" for the workers at issue if safety measures are taken.

"We believe that our employees' rights are best protected by holding an in-person manual ballot election," Instacart said. "Mail balloting has been historically disfavored by the NLRB given concerns about the integrity of the voting process, potential low voter turnout and the inability of the voters to hear all points of view. But during this pandemic, there is no question that these in-store shoppers should be given their right to vote in an in-person election."

A representative for UFCW were not immediately available for comment.

Besides the Instacart case, two other NLRB regional directors on Thursday directed elections in cases that raised issues related to the ongoing pandemic.

In one of those decisions, regional director Timothy L. Watson, who oversees the NLRB's field office in Fort Worth, Texas, ordered that a mail ballot election be held to determine if certain workers at a manufacturing facility in San Antonio, Texas, can unionize with the Smart-Southwest Gulf Coast Regional Council.

Watson said that an in-person manual ballot election would run the risk of exposing workers, NLRB personnel and members of the general public to COVID-19, rejecting Johnson Controls' argument that it can provide a safe place for the vote to be held in a part of its facility that it well-ventilated and where plexiglass partitions and a variety of other safety measures can be used.

Watson also noted that the job of the NLRB observer who oversees in-person elections would be more difficult if masks are worn by potential voters that obscure their identity, and that having to take the masks off as part of the process would defeat the purpose of requiring them to mitigate risk of exposure.

"Given the conditions in Texas at this time, and the available risk mitigation measures, I conclude that conducting an election placing employees in close proximity to Board agents and party observers, who may be traveling from areas with higher rates of infection than Bexar County — and who may unknowingly be carrying the virus — is not acceptable," Watson said, adding that the "low rate of testing [in Texas] and likely greater than reported rate of infection is particularly worrisome."

Similarly, Paul Murphy, acting director of the NLRB's field office in Boston, issued a decision Thursday that said certain workers at Curaleaf Massachusetts Inc., which operates a medical marijuana dispensary, can vote by mail to determine if they will be represented by UFCW Local 328.

Murphy pointed out that since gathering of more than 10 people have been prohibited by public health officials, a manual election and the gatherings it entails "would arguably be contrary to state law."

The acting regional director rejected a plan proposed by Curaleaf — an essential business that has remained open during the pandemic — to have an in-person vote at a vacant and spacious office building a few miles from the dispensary, where each eligible voter would be given a package that includes a mask, gloves and a pencil to limit the risk of virus exposure.

"There can be no assurance that the space proposed by the employer will have been cleaned appropriately or that those who did the cleaning were not themselves infected," Murphy wrote, outlining numerous safety and logistical concerns with the off-site vote. "Likewise, there can be no assurance that the individual who prepares the bags of protective equipment proposed by the Employer will be free from infection."

Additionally, Murphy disagreed with Curaleaf's preference that the vote be delayed entirely until Massachusetts is back to operating as normal.

"The board has long taken the position that questions concerning representation must be resolved as quickly as possible," Murphy said in his decision. "Contrary to the employer's protestations, a mail ballot election has no apparent significant drawbacks."

Instacart is represented by Alan Model and of Littler Mendelson PC and in-house counsel Nicole Hilmo.

The union in the Instacart case is represented in house by Amanda Jaret and Peter Ford.

The Instacart case is Maplebear Inc. d/b/a Instacart and United Food and Commercial Workers International Union, case number 13-RC-259423, before the National Labor Relations Board Region 13.

Johnson Controls is represented by Jeremy C. Moritz of Ogletree Deakins Nash Smoak & Stewart PC.

Smart-Southwest is represented by Patrick Flynn.

The Johnson Controls case is Johnson Controls Inc. and Smart-Southwest Gulf Coast Regional Council, case number 16-RC-256972, before the National Labor Relations Board Region 16.

Curaleaf is represented by Littler Mendelson, according to the case docket, which didn't include the name of the attorney handling the matter.

UFCW Local 328 is represented by Marc Gursky of Gursky Weins Attorneys at Law Ltd.

The Curaleaf case is Curaleaf Massachusetts Inc. and United Food and Commercial Workers Union Local 328, case number 01-RC-259277, before the National Labor Relations Board Region 1.

--Editing by Alanna Weissman.

Update: This story has been updated with comment from Instacart.

For a reprint of this article, please contact reprints@law360.com.