By Kevin Stawicki

Law360 (February 5, 2021, 8:45 PM EST) -- A National Labor Relations Board official on Friday called for a mail ballot vote for Detrex Corp. workers trying to unionize, unmoved by the specialty chemical manufacturer's contention that the United Steelworkers held a maskless, in-person meeting and contradicted their insistence on having a mail-in vote.

Acting regional director Jennifer Hadsall said the upward trend of confirmed COVID-19 cases in Ashtabula, Ohio — where Detrex wanted workers to vote in person — is well above the threshold set out by the NLRB for determining whether a union election should be held in person or by mail. About 21 production and maintenance workers are seeking to organize with the United Steelworkers.

"A mail ballot election is appropriate based on the current local COVID-19-related data," Hadsall wrote.

The 14-day trend for the number of confirmed COVID-19 cases is increasing, and the 14-day testing positivity rate is 5% or higher in Ashtabula since November, Hadsall said, noting that those metrics are aligned with the board's decision in Aspirus Keweenaw that outlined six pandemic-related situations in which mail ballots are likely to be fitting.

Detrex had argued that Ashtabula wasn't in a virus hotspot and that its 5,000-square-foot facilities with garage doors to provide air flow made it a safe place for workers to vote in person. But Hadsall said the company itself acknowledged that the positivity rate of 9.23% in Ashtabula was above the board's threshold.

"Moreover, while the employer argues that there is no current COVID-19 outbreak at the facility, the fact that four employees have tested positive is significant," she said.

Hadsall also set aside Detrex's argument that the workers shouldn't be able to conduct mail ballot voting because the union allegedly held an in-person meeting where workers didn't social distance or wear masks, after which one worker tested positive for the virus.

The company said it's inconsistent for the union to ask for a mail ballot vote if they are having in-person meetings without following safety protocols, according to the decision. The union denied the meeting took place, but the official said she wasn't convinced it was relevant to her analysis at all.

"I am not persuaded by the employer's argument that the union's actions in holding an in-person union meeting are relevant to my determination on whether to direct a mail ballot election," she wrote. "Whether the union held an in-person meeting with petitioned-for employees, and whether that meeting led to COVID-19-positive employees, is immaterial to my determination."

Counsel and representatives for the parties did not immediately respond to requests for comment on Friday.

The United Steelworkers is represented in-house by Brad Manzolillo and David Jury and by Timothy Gallagher of Fusco Gallagher Porcaro & Monroe LLP.

Detrex is represented by David Campbell and Donald Slezak of Lewis Brisbois Bisgaard & Smith LLP.

The case is United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC v. Detrex Corporation, case number 08-RC-269611, in the National Labor Relations Board Region 8. 

--Additional reporting by Danielle Nichole Smith. Editing by Haylee Pearl.

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