Planned Building Services, Inc., and Planned Lifestyle, Services, Inc., part of and related to Plann

National Labor Relations Board - Unpublished Board Decisions

Aug 27, 2021

02-RD-274535 (N.L.R.B. Aug. 27, 2021)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
PLANNED BUILDING SERVICES, INC.,
AND PLANNED LIFESTYLE SERVICES,
INC., PART OF AND RELATED TO
PLANNED COMPANIES
Employer
and Case 02-RD-274535
NAIM TAIPI
Petitioner
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 32BJ
Union
DECISION AND ORDER REMANDING
The Union’s Request for Review of the Regional Director’s Decision and Direction of
Election is granted as it raises substantial issues warranting review. For the reasons explained
below, we find that the Regional Director misapplied Aspirus Keweenaw, 370 NLRB No. 45
(2020), in directing a mail-ballot election here. Accordingly, we remand this case to the
Regional Director for further appropriate action consistent with this decision.
As more fully set forth in the Regional Director’s decision (pertinent portions of which
are attached), the Employer is a company providing janitorial services to various clients. On
November 18, 2019, following a manual election at the building, the Regional Director certified
the Service Employees International Union, Local 32BJ, to represent a unit of eight janitors and
concierge employees who work at a residential apartment building located at 535 West 43rd
Street, New York, New York. That building is owned and/or managed by a third-party (“the
Entity”).1 On March 22, 2021,2 the Petitioner filed the instant petition seeking to decertify the
Union as the employees’ exclusive collective-bargaining representative. Because there was a
dispute over the type of election that should be conducted, on April 12, the Region conducted a
hearing at which the parties presented their positions on this issue.3 The Union asserted that a
1 At the hearing, the Employer’s counsel stated that he did not know whether the Employer’s
client was a property-management company or the building owner and there is no further
clarification in the record.
2 All dates are in 2021 unless noted.
3 The issue of election type is a non-litigable issue. See, e.g., Representation-Case Procedures,
84 Fed. Reg. 69524, 69544 fn. 82 (Dec. 18, 2019) (citing Manchester Knitted Fashions, Inc., 108
2
manual election should be conducted, the Employer asserted that a mail-ballot election should be
conducted, and the Petitioner was amenable to either type of election. On April 22, the Regional
Director issued a Decision and Direction of Election in which he directed a mail ballot election,
with ballots being mailed at an unspecified time on May 7. Thereafter, the Union filed a
combined Request for Review and Motion for Stay of the Election. On May 7, a Board majority
granted the stay motion by unpublished order.
On November 9, 2020, the Board issued its decision in Aspirus, 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 Aspirus, the Board identified six factors
for Regional Directors to consider in determining whether a mail-ballot election is appropriate
due to the extraordinary circumstances presented by the Covid-19 pandemic. Those six
circumstances are: (1) the Agency office tasked with conducting the election is operating under
“mandatory telework” status; (2) either the 14-day trend in 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; (3) the proposed manual
election site cannot reasonably be established in a way that avoids violating mandatory state or
local health orders relating to maximum gathering size; (4) the employer fails or refuses to
commit to abide by GC Memo 20-10, “Suggested Manual Election Protocols”; (5) there is a
current Covid-19 outbreak at the facility or the employer refuses to disclose or certify its current
status; or (6) other similarly compelling circumstances. The Regional Director found that factors
1–3 do not support a mail-ballot determination, and no party disputes this finding. Instead, the
Union contends that the Regional Director erred in directing a mail-ballot election based on
factors 4–6. As explained below, we agree that the Regional Director erred in finding that factor
6 is satisfied here; we also find that remand is warranted for further consideration of factors 4
and 5.
Factor 6
Taking the final factor first, the Regional Director erred in concluding that Aspirus factor
6 was satisfied because employees work staggered shifts and some would need to make an extra
trip to the building via public transportation in order to vote in a manual election, that the extra
trip “would heighten their exposure to the Covid-19 variants currently circulating in NYC,” and
that a “longer, multi-shift election would increase the Board agent’s exposure to Covid-19 and
would multiply the logistical difficulties of holding an election in a location that is not controlled
by any party.”4 In Rush University—a decision that issued five days after the Regional
NLRB 1366, 1367 (1954)). At the hearing, the Hearing Officer inadvertently stated that the type
of election would “be litigated,” but the hearing was, in fact, properly limited to the parties
presenting their positions on, and the hearing officer asking questions pertinent to, the issue.
Thus, any subsequent references in this decision to the hearing or the record are to the parties’
representations in stating their positions or in responding to the Hearing Officer’s questions.
4 Although the Regional Director cited the employees’ staggered shifts in finding that factor 6
was present, he did not find that this constituted “scattering by schedule,” as that exception is
defined in San Diego Gas & Electric, 325 NLRB 1143, 1145 (1998), and its progeny. The
Employer contends that scattering by schedule is present here, but the Employer cites no case
law that would establish scattering by schedule under these circumstances; further, it appears that
an election covering two short periods on consecutive days could have accommodated all voters.
3
Director’s Decision—the Board found that “the CDC’s determination that a new variant exists
does not, as of this date, constitute a ‘similarly compelling circumstance’ under Aspirus factor
6.”5 Since the issuance of Rush University, the CDC has issued no intervening guidance
recommending additional precautions that should be taken due to Covid-19 variants. Thus, as of
this date, the mere existence of and potential heightened exposure to Covid-19 variants still does
not constitute a similarly compelling circumstances within the meaning of Aspirus factor 6.
Furthermore, although the Board shares the Regional Director’s concern for the safety of Board
agents and it certainly is the Agency’s responsibility to ensure the safety of Agency personnel,
the Board has not previously found that such internal Agency considerations constitute
extraordinary circumstances that would warrant conducting a mail-ballot election outside of the
guidelines specified in San Diego Gas & Electric.6
Finally, the logistical difficulty of holding an election in a location not controlled by any
party does not constitute a “similarly compelling circumstance” justifying a mail-ballot election.
In this respect, this situation is not unique to the Covid-19 pandemic nor has it previously been
articulated as an independent basis for holding a mail-ballot election under San Diego Gas, and
therefore does not constitute a “similarly compelling circumstance” justifying a mail-ballot
election. As the 2017 election that resulted in the Union’s certification illustrates, the Board can
and does conduct elections on premises not controlled by the employer. Moreover, the Board’s
Casehandling Manual addresses this situation, and specifically provides that
Where the employer does not control the premises where the petitioned-for employees
work, the Region should seek written permission from the entity that controls these
premises before finalizing the election arrangements. If permission cannot be secured in
a timely manner, the Region should consider holding an offsite election or conducting the
election by mail.
NLRB Casehandling Manual (CHM) (Part Two) Representation Proceedings Sec. 11302.2.7 The
Casehandling Manual accordingly contemplates that a mail-ballot election may be directed in a
situation such as this, but only if the Region cannot secure permission from the entity that
controls the premises before finalizing election arrangements. And here, there is no indication
that the Region made any attempt to identify or contact the Entity.8
Cf. M&N Mail Service, Inc., 326 NLRB 451 (1998) (scattering by schedule present where 5 of
34 employees—15% of the unit—would not have been scheduled to work or would otherwise
have been available to be physically present for a manual election during any two-day period).
The Employer is, however, free to renew its “scattering by schedule” argument to the Regional
Director on remand.
5 Rush University Medical Center, 370 NLRB No. 115, slip op. at 2 (2021).
6 See, e.g., Aspirus, supra, slip op. at 3, fn. 11.
7 Although the Casehandling Manual is not binding on the Board, this provision is consistent
with binding Board precedent articulating the presumption favoring manual elections. See, e.g.,
San Diego Gas, supra; Aspirus, supra.
8 Rather, the Region appears to have placed the onus on the Union. Contrary to the Hearing
Officer’s statement at the hearing, Aspirus did not create a rule that the party seeking a manual
election in the context of the Covid-19 pandemic “has to propose and figure out how to have the
manual election.” Indeed, Aspirus rearticulated the Board’s longstanding presumption favoring
manual elections (even while outlining situations where, in the context of the Covid-19
4
In sum, the Regional Director erred in finding that Aspirus factor 6 was satisfied based on
the foregoing circumstances.9
Factors 4 and 5
The Regional Director found that Aspirus factors 4 and 5 were satisfied because: (1) the
Employer represented that it was unable to certify how many individuals have been present in
the facility within the past 14 days who have tested positive for Covid-19 and cannot provide
plexiglass barriers, erect a shelter in the event of inclement weather,10 guarantee the availability
of the proposed manual election space—the Entity’s outdoor courtyard—or preclude building
residents who are not participating in the election from using the courtyard during polling times;
and (2) due in part to the Employer not owning or controlling the property on which the
employees work, the Employer could not certify that there had been no Covid-19 outbreak there
and no party to the election was in a position to determine the facility’s overall Covid-19 status.
The Regional Director’s reasoning implicates two distinct issues: (1) the application of
GC Memo 20-10’s non-certification-based requirements (such as providing plexiglass barriers)
when a party other than the Employer is seeking a manual election, and (2) the application of GC
Memo 20-10’s certification requirements, as well as factor 5’s similar certification requirement,
where, as here, the Employer does not control the premises where its employees work (and does
not seek a manual election). As explained below, Aspirus did not consider either issue, and
therefore, we find that further inquiry is required to establish whether Aspirus factors 4 and 5 are
present.
Factor 4: GC Memo 20-10’s Non-Certification-Based Requirements. Aspirus factor 4
requires that “employers who are requesting manual elections to unequivocally commit to abide
by all of GC Memo 20-10’s suggested protocols” and similarly provides that “[a]n employer’s
failure or refusal to commit to abide by all of the suggested protocols will [ ] ordinarily support
the direction of a mail-ballot election.”11 Factor 4 therefore contemplates that the employer has
requested a manual election and does not address if or how it applies where, as here, the Union
has requested a manual election and the Employer does not own or otherwise control the
premises upon which the unit employees work.
The underlying purpose of Aspirus factor 4, however, is to obtain compliance with GC
Memo 20-10 in an effort to ensure that any manual election conducted during the COVID-19
pandemic “can be conducted safely and efficiently.”12 And here, it appears that a manual
pandemic, the direction of a mail-ballot election would not be found to be an abuse of
discretion). See 370 NLRB No. 45, slip op. at 2 (citing Nouveau Elevator Industries, 326 NLRB
470, 471 (1998)).
9 Having found that the Regional Director erred in relying on Aspirus factor 6, we need not reach
the Union’s other arguments regarding this factor.
10 There is no record evidence supporting the Regional Director’s conclusion that the Employer
“could not erect a shelter in the proposed election area in the event of inclement weather.” While
it is possible that the Employer could have provided such information after the hearing to the
Region, the Regional Director’s Decision does not indicate that the Employer provided any such
information and the Employer (unlike the Union) did not file a post-hearing brief.
11 Aspirus, supra, slip op. at 7 (emphasis added).
12 Id.
5
election could potentially be conducted in compliance with all of GC Memo 20-10’s health and
safety protocols. Specifically, the Employer agreed to abide by all of GC Memo 20-10’s
cleaning and safety protocols, with the exception of providing plexiglass barriers, which the
Union committed to providing. Given the Union’s commitment, it appears that all non-
certification protocols related to Aspirus factor 4 could be complied with.13 Further, we observe
that by permitting an employer to secure a mail-ballot election simply by stating that it cannot
comply with GC Memo 20-10 is clearly at odds with Aspirus factor 4’s purpose, as it would
require a mail-ballot election by default without any inquiry into whether the requirements of GC
Memo 20-10 could nevertheless be satisfied through the efforts of the party seeking a manual
election. More generally, the purpose of the Aspirus framework is to guide Regional Directors in
the exercise of their discretion in this area; to effectively require a mail-ballot election because
the Employer cannot or will not comply with GC Memo 20-10’s plexiglass barrier requirement
where the Union is willing to supply those very barriers would remove any discretion on the part
of the Regional Director. Finally, such an outcome would also be in tension with the Board’s
presumption favoring manual elections.
We therefore conclude that, in applying Aspirus factor 4, the Regional Director should
not have focused exclusively on whether the Employer—the party opposing the manual
election—would be willing to provide items such as plexiglass and an outdoor shelter in order to
hold an election in the Entity’s outdoor courtyard, but also should have considered the
willingness and ability of the Union—the party seeking a manual election—to provide the
necessary items and arrangements required to meet GC Memo 20-10’s non-certification-based
requirements.
Factors 4 and 5: The Certification-Based Requirements. In addition to the non-
certification-based requirements discussed above, GC Memo 20-10 (and thus by extension
Aspirus factor 4) requires a series of certifications including, as relevant here, that the employer
certify in writing, 48 to 24 hours before a manual election, how many individuals have been
present in the facility within the preceding 14 days who have tested positive for Covid-19, are
awaiting results of a Covid-19 test, are exhibiting symptoms of Covid-19, or have had direct
contact with anyone in the previous 14 days who has tested positive for Covid-19.14 Similarly,
13 Along with the Employer’s inability to provide plexiglass barriers, the Regional Director also
cited the Employer’s inability to erect a shelter in the proposed election area in the event of
inclement weather in support of his mail-ballot determination. In so doing, the Regional Director
noted that the Casehandling Manual “advises against holding elections in uncovered outdoor
areas due to the vagaries of weather” (emphasis added). CHM Sec. 11302.2, the provision to
which the Regional Director apparently was referring, states: “Because of the vagaries of the
weather, elections should not be scheduled to be held in unprotected outdoor locations”
(emphasis added). The Regional Director’s decision contains no finding that the Union’s
proposed location is unprotected. We take administrative note of the fact that the Board’s
Regional Offices have experience conducting outdoor elections, including during the Covid-19
pandemic. Thus, the Regional Director was incorrect to suggest that an outdoor location by itself
favors a mail-ballot election; at the very least, further inquiry was warranted into whether the
proposed location here was “unprotected” (and, if so, whether the Union’s offer to provide
umbrellas or other protective covering would render the location protected).
14 GC Memo 20-10 includes other certification-based requirements, but the parties stated at the
hearing that they would be able to provide those certifications were a manual election directed.
6
Aspirus factor 5 requires (as relevant here) that in all cases where a party requests a manual
election, the employer shall certify, as part of its submission to the Regional Director regarding
election arrangements, “how many individuals present in the facility within the preceding 14
days have tested positive for Covid-19 (or are awaiting test results, are exhibiting characteristic
symptoms, or have had contact with anyone who has tested positive in the previous 14 days).”15
In directing a mail-ballot election, the Regional Director invoked both certification
requirements, observing that because the Employer does not own the building it could not certify
there has been no Covid-19 outbreak there, that no party was “in a position to determine the
overall status of the facility,” and that the Employer similarly would not be able to provide the
required GC Memo 20-10 certification 48 to 24 hours before the election.16
There are two overriding considerations that warrant remand for further consideration
with respect to the certification requirements. First, the Regional Director’s discussion of the
certifications is premised on the Employer’s lack of control over the premises. But as already
discussed, this is not a novel situation and CHM Section 11302.2 directs the Region to seek
permission from the entity that does control the premises before finalizing election arrangements.
Here, neither the Region nor any of the parties contacted the Entity prior to the hearing17 (or, it
appears, prior to the Decision and Direction of Election) to seek its permission to use the
premises or to ascertain whether it was nevertheless possible to obtain the certifications the
Employer could not provide by itself.18
15 Aspirus, supra, slip op. at 7. The purpose of the factor 5 certification requirement is to
“determine whether the Covid-19 cases at the facility would reasonably be expected to affect the
conduct of a manual election.” Rush University, supra, slip op. at 1–2.
16 The Regional Director also noted that the Employer could not even guarantee the availability
of the proposed location or ban building residents not participating in the election from freely
using the space during polling times.
17 At the hearing, counsel for the Union asked the Hearing Officer if she had directed the
Employer to contact the Entity, and the Hearing Officer stated that she had not “done anything.”
Counsel for the Union then asked counsel for the Employer if there was a reason that he would
not ask the Entity, to which he responded “Yeah, because it’s not my burden. We would prefer a
mail ballot election.”
18 This is especially noteworthy because, at the hearing, the Union indicated that it was willing to
contact the Entity to determine whether the election could be conducted manually. It is unclear
whether the Union attempted to contact the Entity following the hearing, but the Hearing
Officer’s response to the Union’s offer was at best unclear and could reasonably have
discouraged the Union from doing so: when the Union stated its willingness to contact the Entity,
the hearing officer stated that “if the Employer’s . . . not doing it, [] we’re having the hearing
today that we have to figure out all this stuff so that a decision can be drafted.” Although this
remark may not have been designed to foreclose or discourage the Union from contacting the
Entity, it also was not a clear indication that the Region was encouraging the Union to do so, or
would consider information gathered by the Union after the hearing. Finally, because, in
assessing whether a Regional Director abused his or her discretion in directing a mail-ballot
election the Board is limited to reviewing the record, including any decisional documents, the
lack of information here concerning potential contacts with the Entity creates an absence of facts
that could enable to Board to determine whether, given the Region and/or parties’ efforts (or lack
7
Second, and more to the point, the certification requirements set forth in GC Memo 20-10
and Aspirus simply do not account for situations where the Employer does not control the
premises, and Aspirus factors 4 and 5 assume that the employer is the party requesting a manual
election.19 The certification requirements are accordingly incongruent with the present situation.
Again, permitting an employer to secure its desired mail-ballot election by simply stating it
cannot obtain the requisite certifications owing to its lack of control over the premises disregards
the CHM, is not consistent with the presumption favoring manual elections, and threatens to
divest Regional Directors of the discretion they can—and must—exercise in setting election
arrangements. In addition, there are equitable considerations present here. Aspirus factor 4
provides that where there are technical defects in an employer’s stated willingness to abide by
GC Memo 20-10, the Regional Director must “offer the employer an opportunity to promptly
cure any such defects” and must not reject manual election proposals based on such defects
“when minimal additional communication could cure the noncompliance.”20 It would likewise
be unfair to reject the Union’s proposed manual election where modest additional
communication—in particular with the Entity—could determine whether the GC Memo 20-10
and factor 5 certifications are attainable.21
Accordingly, under the narrow circumstances presented here it is not sufficient for the
Regional Director to direct a mail-ballot election based on the Employer’s putative inability to
comply with the relevant certifications. Rather, a Region faced with a comparable situation
should attempt to contact the Entity to determine whether the requisite certifications may yet be
obtained (and whether it will allow access to the premises and assist the parties in complying
with GC Memo 20-10, in the event a manual election is directed). 22
thereof), the Regional Director’s exercise of his discretion was an abuse thereof. See Odebrecht
Contractors of Florida, 326 NLRB 33, 33 (1998); see also Austal USA, LLC, 357 NLRB 329,
331 (2011).
19 As previously discussed, Aspirus factor 4 is phrased overtly in terms of employers requesting
manual elections. Factor 5 is phrased in terms of “a party” requesting a manual election, but it
too presupposes the employer is requesting a manual election insofar as an employer that does
not want a manual election could—not unlike the present situation—secure a mail-ballot election
by simply failing or refusing to provide the factor 5 certification.
20 Aspirus, supra, slip op. at 7, fn. 33.
21 Of course, if the Entity advises the Region that it cannot or will not provide the certifications,
then Aspirus factors 4 and 5 likely will have been satisfied.
22 We anticipate that the Employer will assist the Region in obtaining the name and contact
information for the appropriate Entity personnel.
Our dissenting colleague asserts that it is inappropriate to require the Region to reach out
to the Entity to seek the requisite certifications for a handful of reasons, none of which we find
compelling. First, our colleague expresses concern that a third-party entity might have little
incentive to provide the certifications. Although it is certainly possible that a third-party entity
would ignore a request from a federal agency to provide requested information, we do not
believe that it is prudent to base Board policy upon a theoretical, and in our view unlikely,
supposition. Our colleague also conjectures that it would be difficult for a third-party entity to
provide reliable information, stating that it seemed “highly unlikely” that such an entity “would
have access to information concerning the number of residents awaiting results of a Covid-19
test, exhibiting symptoms of Covid-19, or who had had contact with anyone in the previous 14
8
In sum, we find that further inquiry is required to establish whether Aspirus factors 4 and
5 are present by virtue of the Employer’s stated inability to obtain the requisite certifications.
Conclusion
For the foregoing reasons, we reverse the Regional Director’s direction of a mail-ballot
election and remand this case for further proceedings consistent with this decision, taking into
account any changed circumstances since his decision issued.23 On remand, the Region shall,
with the Employer’s cooperation, contact the Entity to determine whether the requisite
permissions, logistics, and certifications that would permit a manual election can be obtained,
notwithstanding the Employer’s inability to obtain them directly.24
In addition, for the duration of the pandemic we will require that—in circumstances
where the employer does not control the premises where the petitioned-for employees work and
a non-employer party requests a manual election—the employer provide the Region with the
name and contact information for the entity that does control the premises. This information
should ordinarily be included along with the employer’s initial statement of position in a RC or
RD case (or in its responsive statement of position in a RM case).25 Further, if the employer has
communicated with the controlling entity concerning whether the entity would permit a manual
election on its premises, the employer should provide a summary of those communications or,
where applicable, a copy of any written communications regarding the same in its submission to
the Region.26 Irrespective of whether the Region or the employer is the first to communicate
days who had tested positive for Covid-19.” However, it is clear to us that the third-party entity
would in fact be in the best position to reach out to all of its tenants to compile this information
for the location. Finally, our colleague makes a blanket assertion that a third-party entity, unlike
an employer party, could face “significant legal liability” if it provided certifications that were
subsequently deemed inaccurate. We are unaware of any support for that assertion.
23 See Rush University, supra, slip op. at 2 & fn. 3; Aspirus, supra, slip op. at 8.
24 Member Emanuel agrees that at the time the Decision and Direction of Election was issued,
the Regional Director improperly applied Factors 4, 5, and 6 of Aspirus to determine that a mail-
ballot election was warranted due to circumstances presented by the Covid-19 pandemic.
Member Emanuel also agrees with the general principles set forth in this decision to address the
unique circumstances presented under Aspirus where an Employer seeks a mail-ballot election
but the jobsite is controlled by a third-party entity. For these reasons, Member Emanuel concurs
in the decision to reverse the Regional Director’s Decision and Direction of Election and remand
the case to the Region for further appropriate action consistent with the Board’s instructions.
However, as recently stated in his dissent in Comprehensive Health Services, 371 NLRB No. 2
(2021), Member Emanuel reiterates his stance that the evolving nature of the Covid-19
pandemic, specifically the widespread availability of safe and effective vaccines, requires that
the Board revisit the guidelines set forth in Aspirus Keweenaw, supra, 370 NLRB No. 45 (2020).
25 In RC and RD cases, the petitioner is required to provide its statement on election type on the
petition. See Board’s Rules and Regulations §102.61(b)(9) (employer’s RM petition must state
type of election sought); §102.63 (employer’s statement of position in RC cases); and
§102.63(b)(3) (employer’s statement of position in RD cases).
26 Of course, an employer may contact the controlling entity directly to ascertain the entity’s
willingness to permit the Region to conduct a manual election on its premises and (at least for
9
with the controlling entity, the Region should, prior to any hearing or direction of election,
attempt to contact the entity to determine if it is willing permit a manual election to be conducted
on its premises and, if so, whether it is willing to comply with the GC Memo 20-10 protocols and
certifications that would be applicable to it or available to it. If the controlling entity is unwilling
or unable to agree to comply with applicable protocols or provide the necessary certifications (or
cannot be contacted or does not respond to the Region’s inquiries), that refusal will ordinarily
indicate, at least during the current state of the Covid-19 pandemic, the propriety of a mail-ballot
election.27
Dated, Washington, D.C., August 27, 2021
Marvin E. Kaplan, Member
William J. Emanuel, Member
MEMBER RING, dissenting in part.
The Employer provides janitorial services to the owners of various buildings, including
the residential apartment building where the unit employees in this case work. The unit was
certified in 2019, prior to the current Covid-19 pandemic, following a manual election held at the
building. On March 22, 2021, the Petitioner filed a petition to decertify the union. The question
presented in this case is whether the Regional Director erred in directing a mail ballot election
based on the pandemic. For the reasons that follow, I would deny review.28
the duration of the Covid-19 pandemic) the entity’s willingness and ability to provide the
certifications Aspirus factors 4 and 5 require with respect to the presence of Covid-19 at facility
or location where employees work.
27 The Board’s May 7, 2021 stay is lifted as of today’s order.
28 I agree with my colleagues that the Regional Director’s determination that new Covid-19
variants justified a mail ballot election under Aspirus factor 6 (other compelling circumstances)
was incorrect based on the Board’s subsequent decision in Rush University Medical Center, 370
NLRB No. 115, slip op. at 2 (2021).
Because I would deny review for the reasons stated below, I do not pass on the Regional
Director’s finding that an on-site outdoor election would be impractical because the location
would be uncovered, or my colleagues’ finding that the Regional Director should have
considered not only the Employer’s willingness to provide the Covid-19-related equipment
required by GC Memo 20-10, but also the Union’s.
I observe, however, that the provision of equipment, other than what is required by
Aspirus, including coverings for an outdoor election, by any party, is subject to the paramount
requirement that Regional Directors must not “approve manual election arrangements, whether
or not related to the GC Memo 20-10 protocols, that would create the impression that any party
controls employee access to the Board’s election processes or that would otherwise interfere with
employee free choice or the fairness of the election.” Aspirus, supra, slip op. at 7.
10
It is well established that Regional Directors have discretion, within guidelines
established by the Board, in determining arrangements for an election, including the location of
the election and whether it should be conducted by manual balloting or mail ballot. San Diego
Gas & Electric, 325 NLRB 1143, 1144 (1998). In Aspirus Keweenaw, 370 NLRB No. 45
(2020), the Board clarified the standards that should guide a Regional Director’s determination
of the propriety of a mail ballot election under the unique circumstances posed by the Covid-19
pandemic. Among other things, Aspirus holds that, for the duration of the pandemic,
in all cases where a party requests a manual election, the employer shall certify,
by affidavit, as part of its submission regarding election arrangements, how many
individuals present in the facility within the preceding 14 days have tested
positive for Covid-19 (or are awaiting test results, are exhibiting characteristic
symptoms, or have had contact with anyone who has tested positive in the
previous 14 days). … the employer’s failure or refusal to provide the required
certifications will ordinarily indicate the propriety of a mail-ballot election.
Id., slip op. at 7. That is what happened here: the Employer failed to provide the certifications
specified in Aspirus. Accordingly, the Regional Director did not abuse his discretion in directing
a mail ballot election in this case under extant precedent. Id.
Unlike in Aspirus, the Employer is the party seeking a mail ballot in this case and does
not control the facility where the employees work. Moreover, it appears that the Employer is
willing to provide the certifications specified in Aspirus for its employees but cannot provide
those certifications for other persons present in the building, including tenants, because it does
not have the information. My colleagues correctly observe that Aspirus at least implicitly
assumes that the employer is the party seeking a manual election, and that it does control the
premises where a manual election would be held. To address the different circumstances present
here, they modify the Aspirus standards to require Regional Directors, in cases like this one, to
seek the certifications required by Aspirus from the entity that does control the facility.
My colleagues unquestionably take this step with the best of intentions, and in
furtherance of the Board’s long-standing policy favoring manual elections. See Aspirus, slip op.
at 2. After careful consideration, however, I conclude that this modification of Aspirus is
unwarranted, at least at this time. First, certifications by the entity controlling a building where
unit employees work entail complexities and reliability issues that are not present with
certifications by an employer. The entity is not a party to the election and has no cognizable
stake in its outcome. It will therefore have little incentive to provide the certifications specified
in Aspirus, which must be sworn to by affidavit and could result in significant legal liability if
later found to be inaccurate. Second, it is not clear that such entities could provide reliable
certifications even if they wished to do so. In this case, for example, it seems highly unlikely
that the entity owning the building (the Entity) would have access to information concerning the
number of residents awaiting results of a Covid-19 test, exhibiting symptoms of Covid-19, or
who had had contact with anyone in the previous 14 days who had tested positive for Covid-19.29
29 See NYC Department of Health and Mental Hygiene, COVID-19: FAQ for Residential
Buildings (Mar. 10, 2021), www1.nyc.gov›doh›pdf›imm› covid-19-residential-buildings-faq
11
It is even less likely that the Entity could provide that information for persons who may have
entered the building to make deliveries or make repairs. For all these reasons, I believe that the
burden and delay resulting from adding this additional requirement outweigh any likely benefits
at this time.30
Lastly, this is the first case presenting this issue to come before the Board, which
suggests that the problem is not widespread or common. That also counsels against modifying
Aspirus in this case, in my view, especially since a remand to apply the new guidance in this case
may well be overtaken by events that would permit a mail ballot election, on remand, in any
event.31
For these reasons, I would deny review.
Dated, Washington, D.C., August 27, 2021.
_____________________________
John F. Ring, Member
(“The NYC Health Department will not notify building owners or other residents if a resident is
sick or tests positive for COVID-19.”).
30 Consistent with the Board’s longstanding policy favoring manual elections, the Regional
Director may direct an off-site election, where appropriate, even if the employer refuses to hold
an election on its premises. See NLRB Casehandling Manuel (Part Two) Representation
Proceedings Sec. 11302.2. Further, even where the employer does not control the premises
where petitioned-for employees work, the Regional Director may direct a manual election on the
premises so long as he or she successfully secures written permission from the entity that
controls these premises. Id. Nothing in Aspirus changes these principles. In my view, however,
asking a third party for the use of its premises for the purpose of conducting an election is
fundamentally different from asking an entity to provide the detailed Covid-19 certifications
mandated by Aspirus.
31 See, e.g., NYC Department of Health and Mental Hygiene, COVID-19: Data,
https://www1.nyc.gov/site/doh/covid/covid-19-data.page (last visited Aug. 12, 2021) (increasing
trend of 14-day positivity rate); Aspirus, supra, slip op. at 5 (stating that a mail-ballot election is
appropriate where the 14-day trend in the number of new confirmed Covid-19 cases is
increasing).
12
APPENDIX
DECISION AND DIRECTION OF ELECTION
Petitioner Naim Taipi, an employee of the Employer, Planned Building Services, Inc.,
and Planned Lifestyle, Services, Inc., part of and related to Planned Companies, filed the petition
in this matter on March 23, 2021. The Petitioner seeks an election to decertify the Union,
Service Employees International Union Local 32BJ, as the collective-bargaining representative
of approximately eight employees of the Employer. The Employer provides janitorial and
concierge services. While the Employer is headquartered in Parsippany, New Jersey, the
employees involved in this proceeding work at 535 West 43rd Street, New York, a residential
building not owned by the Employer.
On November 18, 2019, the Regional Director, as authorized by the National Labor
Relations Board, certified the Union as the collective-bargaining representative of the following
unit:
Included: All full time and regular part time janitorial employees
and concierge employees employed by the Employer at its facility
located at 535 West 43rd Street, New York, NY.
Excluded: All other employees, including office clerical
employees and guards, and professional employees and supervisors
under the Act.
The parties stipulated, and I find, that the above employees of the Employer constitute a
unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
There is no collective-bargaining agreement covering any employees in the unit.
The only matter at issue is whether to conduct a manual or mail-ballot election. The
Employer contends that a mail-ballot election would be most appropriate during the current
Covid-19 pandemic, while the Union proposes a manual election. The Petitioner is equally
amendable to a mail-ballot election or a manual election.
The Union argues that a manual election can be held safely, despite the pandemic,
because the building at which the employees work offers potential outdoor polling locations,
including a courtyard and two roof decks. The Employer argues that it does not have control
over its client’s facility and cannot guarantee availability of those locations.
I have carefully considered the positions and arguments presented by the parties. As
fully discussed below, in light of the current state of the pandemic, including the recent rise in
Covid-19 variants, I have directed a mail-ballot election in accordance with the Board’s decision
in Aspirus Keweenaw, 370 NLRB No. 45 (2020). Because the proposed manual election would
take place in a facility owned by neither the Employer nor the Union, no party would be able to
13
take the necessary precautions in setting up the voting area or guarantee the safety of the election
participants.
Facts
Proposed Manual-Election Arrangements
The bargaining-unit employees worked without interruption throughout the pandemic due
to their status as “essential workers” responsible for maintaining the safety and sanitation of a
residential building. The employees work staggered shifts seven days per week; the entirety of
the bargaining unit is never on the premises on the same day or at the same time. Employees
commute to work via public transportation or personal automobile.
Employees wear at least one mask while at work. They self-certify each day that they
have no symptoms of Covid-19, but they are not subjected to temperature checks or other
symptom checks. At the time of the hearing, no party was aware of any potential voter who had
tested positive for Covid-19 or exhibited symptoms of Covid-19 in the last 14 days.
The Union proposes that a manual election be held in one of three outdoor spaces within
the Employer’s client’s facility. The first of these spaces is a courtyard. The courtyard is below
street level and open to the elements. It measures approximately 60 feet by 20 feet. It is
accessed through three doors: one leading to the basement lobby, one leading to the gym, and
one leading to a playroom. The courtyard is accessed via keycard; all employees are issued such
keycards.
The other two spaces are rooftop decks. The north deck is approximately 40 feet by 40
feet and can be reached via elevator or staircase. Because the building’s main entrance is on its
south side, a person seeking the deck must walk through the entire building to reach the
appropriate elevator. The south deck is similarly situated and is also accessed via elevator or
stairs. The elevators and stairs do not open directly onto the decks. Rather, they open onto
passageways through which the decks can be accessed. The decks contain tables and chairs and
are open to the elements.
The Employer takes the position thar a mail-ballot election is appropriate during the
present pandemic.1 While the Employer has confirmed that its client is “reasonably likely” to
make its courtyard available for a manual election,2 the Employer also asserts that it has no real
control over its client’s facility. For example, there are not usually tables in the courtyard and
1 I note that, under ordinary circumstances, the initial burden of suggesting available alternate
locations for a manual election should be placed on the party seeking that the election be held off
company property. See NLRB Casehandling Manual (CHM) (Part Two) Representation
Proceedings, Sec. 11302.2 (Selection of Place). Here, the Employer has not refused to allow an
election on its client’s property, but has suggested that a mail-ballot election would be more
appropriate.
2 No party was able to represent that the Employer’s client would make either rooftop deck
available for an election.
14
the Employer does not keep tables on the premises.3 The Employer also does not have the ability
to place social-distancing markings on its client’s floor or to provide plexiglass barriers.4 The
Employer cannot provide cover in case of rain or other inclement weather.5 Finally, the
Employer is not in a position to confirm that no one at its client’s facility has recently tested
positive for Covid-19 or to control the flow of the building’s residents into and out of the voting
location.
The Union proposes that a manual election take place on a Wednesday between 2:30 p.m.
and 3:30 p.m. All parties are willing to extent the hours so at to allow more employees to vote
during their working hours.
Covid-19 in New York City
I take administrative notice of the current public-health crisis created by the Covid-19
pandemic. As of April 21, 2021, there have been nearly 32 million confirmed cases of Covi-19
and 568,131 deaths in the United States. There have been 51,123 Covid-19 deaths documented
in New York City, which was an initial epicenter of the disease in the United States. Although
infections and deaths have fallen since their peak, over the course of the last week, New York
City has seen an average of 63 Covid-19 deaths per day.6 The record in this proceeding contains
nine Executive Orders issued by the Governor of New York between March 7, 2020 and
February 22, 2021. Pursuant to those orders, Governor Andrew M. Cuomo declared a Public
Health Emergency, which has remained in place. Some, but not all, of the initial restrictions set
forth in the orders have been lifted.
The record also contains information and research regarding four significant Covid-19
variants: one from the United Kingdom, one from South Africa, one from Brazil, and one first
identified in New York City and surrounding areas.
The variant with the E484K mutation, as seen in South Africa and Brazil, is called an
“escape mutation” due to its ability to evade the immune response and reduce monoclonal
antibodies’ neutralizing power. These mutations were first discovered in the United States in
January 2021; by mid-February, the two together accounted for about 27 percent of New York
City viral sequences deposited into the GISAID database.
The variant known as B117, first documented in the United Kingdom, was first detected
in the United States in December 2020. By early April, it had become the predominant variant in
3 The Union is willing to provide tables and chairs.
4 The Union is willing to provide plexiglass barriers.
5 See CHM, Sec. 11302.2 (Selection of Place) (“Because of the vagaries of the weather, elections
should not be scheduled to be held in unprotected outdoor locations”
6 Coronavirus in the U.S.: Latest Map and Case Count, N.Y. TIMES,
https://www.nytimes.com/interactive/2021/us/covid-cases.html (last visited Apr. 21, 2021).
15
the United States.7 It is thought to be more contagious, possibly due to a mutation in the spike
protein which helps the virus break cells, than the original virus. Studies have suggested that
B.1.1.7 is also more lethal than the original virus.8
Although B.1.1.7 is presently the dominant strain of the virus in the United States as a
whole, the dominant strain in much of New York City is the “home-grown” variant, called
B.1.526.9 This variant first appeared in late November 2020. A Columbia University study has
shown that the B.1.526 variant shares some worrisome characteristics with the Brazilian and
South American variants, which are less susceptible to some treatments and vaccines.
Analysis
In response to the evolving realities of the pandemic, the Office of the General Counsel
issued Memorandum GC 20-10 on July 6, 2020. The suggested protocols include: polling times
sufficient to accommodate social distancing without unnecessarily elongating exposure among
Board Agents and observers; the employer’s certification in writing that the polling area is
consistently cleaned in conformity with Centers for Disease Control and Prevention (CDC)
standards; a spacious polling area, sufficient to accommodate six-foot distancing; separate
entrances and exits for voters; separate tables spaced six feet apart; sufficient disposable pencils
without erasers for each voter to mark their ballot; glue sticks or tape to seal challenged ballot
envelopes; plexiglass barriers of sufficient size to protect the observers and Board Agent; and
provision of masks, hand sanitizer, gloves and disinfecting wipes.
GC Memo 20-10 also requests an employer’s written certification of how many
individuals have been present in the facility within the preceding 14 days who have tested
positive for Covid-19; who have been directed by a medical professional to proceed as if they
have tested positive for Covid-19; who are awaiting results of a Covid-19 test; who are
exhibiting symptoms of Covid-19; or who have had direct contact with anyone in the previous 14
days who has tested positive for Covid-19.
The Board offered further guidance regarding the direction of manual elections during the
Covid-19 pandemic in Aspirus Keweenaw, 370 NLRB No. 45 (2020). In Aspirus Keweenaw, the
Board set forth six situations under which a Regional Director should consider directing a mail-
ballot election. While Aspirus Keweenaw does not require a Regional Director to direct a mail-
ballot election where one or more of the six factors are present, the Board stated that Regional
7 Erin Garcia de Jesus, Here’s what we know about B.1.1.7, the U.S.’s dominant coronavirus
strain, SCIENCE NEWS (Apr. 19, 2021) https://www.sciencenews.org/article/covid-coronavirus-
b117-variant-us-dominant-strain.
8 Nicholas G. Davies, et al., Increased mortality in community-based cases of SARS-CoV-2
lineage B.1.1.7, NATURE (Mar. 14, 2021), https://www.nature.com/articles/s41586-021-03426-1.
9 Joseph Goldstein, et al., How the Coronavirus Variants Are Spreading in New York City, N.Y.
TIMES (April 13, 2021), https://www.nytimes.com/2021/04/13/nyregion/coronavirus-
variants.html.
16
Directors who direct mail-ballot elections under those circumstances will not be found to have
abused their discretion.
The six situations are:
1) The Agency office tasked with conducting the election is
operating under “mandatory telework” status;
2) Either 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;
3) The proposed manual election site cannot be established in a
way that avoids violating mandatory state or local health orders
relating to maximum gathering size;
4) The employer fails or refuses to commit to abide by the GC
Memo 20-10 protocols;
5) There is a current Covid-19 outbreak at the facility or the
employer refuses to disclose and certify its current status; and
6) Other similarly compelling considerations.
As the Board acknowledged, no Regional Office, including Subregional and Resident
Offices, has been in a mandatory telework status since mid-June 2020. The Union’s proposed
polling place does not appear to violate any mandatory state or local health orders. As of April
21, 2021, New York County, in which the Employer’s client’s facility is located, reported its
Covid-19-positivity rate as 1.9%10 although 75% of ICU capacity was in use and the county was
deemed “at high risk” by the website Covid ActNow.11
As of April 20, Johns Hopkins University’s website showed the following number of new
cases in New York County for each day for the preceding 14 days:12
Date Number of New Cases
April 19 255
April 18 401
April 17 567
10 New York Forward, Percentage Positive Results By County Dashboard,
https://forward.ny.gov/percentage-positive-results-county-dashboard (last visited Apr. 21, 2021).
11 Covid ActNow, New York County, NY, https://forward.ny.gov/percentage-positive-results-
county-dashboard (last visited Apr. 21, 2021).
12 Johns Hopkins University, Covid-19 Status Report, New York, New York,
https://bao.arcgis.com/covid-19/jhu/county/36061.html (last visited Apr. 20, 2021).
17
April 16 541
April 15 403
April 14 329
April 13 274
April 12 293
April 11 475
April 10 530
April 9 666
April 8 604
April 7 527
April 6 370
In averaging the change in the number of new daily cases, the number of new daily cases
fell at an average rate of 8.8 cases per day in New York County. Thus, none of the first three
situations contemplated by the Board in Aspirus Keweenaw apply here.
However, the Employer does not own the facility at which employees work and therefore
cannot certify that there has been no Covid-19 outbreak there. The Employer, the Petitioner, and
the Union all believe that none of the bargaining-unit members have tested positive for Covid-19
in recent weeks, but no party is in a position to determine the overall status of the facility.
Likewise, the Employer is unable to commit to abide by the GC Memo 20-10 protocols.
In addition to be unable to certify how many individuals have been present in the facility within
the preceding 14 days who have tested positive for Covid-19, the Employer cannot provide
plexiglass barriers. The Employer cannot erect a shelter in the proposed election area in the
event of inclement weather.13 Indeed, the Employer cannot even guarantee the availability of the
proposed location or ban building residents not participating in the election from using the space
as they choose during polling times. Accordingly, the Employer has requested a mail-ballot
election.
In addition, the employees work staggered shifts. A one-day, one-shift election would
require most of the bargaining-unit employees to make an extra trip to their place of work via
public transportation. By doing so, they would heighten their exposure to the Covid-19 variants
currently circulating in New York City. A longer, multi-shift election would increase the Board
agent’s exposure to Covid-19 and would multiply the logistical difficulties of holding an election
in a location not controlled by any party.
Based on the above, I find that a mail-ballot election is warranted in keeping with the
Board’s decision in Aspirus Keweenaw.
13 As noted above, NLRB Casehandling Manual (Part Two): Representation Proceedings advises
against holding elections in uncovered outdoor areas due to the vagaries of the weather.