Hitachi Rail Honolulu JV

National Labor Relations Board - Unpublished Board Decisions

Apr 8, 2021

20-RC-269153 (N.L.R.B. Apr. 8, 2021)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
HITACHI RAIL HONOLULU JV
Employer
and Case 20-RC-269153

HAWAII TEAMSTERS AND ALLIED
WORKERS, LOCAL 996
Petitioner
ORDER
The Employer’s Request for Review of the Regional Director’s Decision and Direction of
Election is denied as it raises no substantial issues warranting review.1
1 On November 9, 2020, the Board issued its decision in Aspirus Keweenaw, 370 NLRB No. 45
(2020), which sets forth the guidelines and parameters applicable to determining the propriety of
a mail-ballot election under the current circumstances of the Covid-19 pandemic. In denying
review, we find that the Regional Director misapplied factor two of Aspirus, which states that a
mail-ballot election is appropriate where the “14-day trend in the number of new confirmed cases
of Covid-19 in the county where the facility is located is increasing, or the 14-day testing
positivity rate in the county where the facility is located is 5 percent or higher.” Id., slip. op. at 5.
The Regional Director mistakenly conflated the two contingencies by relying on an upward trend
in the positivity rate, even though it never reached 5 percent for the 14-day period at issue, and
she compounded that error by focusing only on an increase in confirmed cases for the latter half
of that period. Nevertheless, the election has been held and setting it aside would result in waste
of resources and delay and would be a disservice to the employees who cast their ballots in good
faith. Denying review is also warranted because the 14-day trend in new cases in Honolulu
County, Hawaii, where the Employer’s facility is located, is increasing as of April 5, 2021, and
would thus support a mail-ballot election under Aspirus if this election were set aside and a new
determination were to be made now. See
https://health.hawaii.gov/coronavirusdisease2019/what-you-should-know/current-situation-in-
hawaii/. Under the foregoing circumstances, we find no reason to overturn the Regional
Director’s determination.
In denying review, we also note that the Regional Director failed to comply with Board
Rules and Regulations Sec. 102.69(e) by issuing the Certification of Representative less than 5
business days after the issuance of the revised tally of ballots. However, the Employer’s request
for review does not provide any supporting arguments or demonstrate that it was prejudiced by
this error, and we therefore find that the error does not warrant granting review.
2
LAUREN McFERRAN, CHAIRMAN
MARVIN E. KAPLAN, MEMBER
JOHN F. RING, MEMBER
Dated, Washington, D.C., April 8, 2021.
Chairman McFerran agrees to deny review of the Regional Director's mail-ballot
determination for the reasons given in her separate opinion in Aspirus. She further agrees,
however, that setting aside the election at this point would be inefficient and unfair to the unit
employees, and that, even under the majority opinion in Aspirus, the Regional Director's decision
should be affirmed based on the statistics set out above.