The ‘unsecured’ ballot box justifies the vote of Nixing, Co. Indicates DC Circ. – Law360 Employment Authority

A building management services company fought the certification of an International Union of Operating Engineers local in the D.C. district on Monday, alleging that a National Labor Relations Board agent left the ballot box “unsecured and unattended” during a representation election.

Jones Lang LaSalle Americas Inc. followed its certification testing case, telling the D.C. Circuit that board agent Matt Peterson took action in the middle of a proxy vote that should have led to the annulment of the election involving IUOE Stationary Engineers Local 39. The company argued that it should have had a hearing on evidence of board agent misconduct and that an NLRB regional director “abused her discretion” in dismissing JLL’s objections to the vote.

“Board agent Peterson twice left the voting room during [May 17, 2023,] election, leaving the ballot box and blank ballots unsecured and unattended, to solicit employees who he knew had not yet voted to come to vote,” the company said. “Peterson’s conduct violated well-established precedent of the board, as approved by this court.”

JLL employees working at an Amazon facility in Napa, Calif., voted 4-0 to join Local 39 in the spring of 2023, according to NLRB records. The company filed objections to the vote on Peterson’s actions that a regional director later overruled, according to court and board filings.

In September, the NLRB denied JLL’s request for review of the regional director’s decision.

JLL is now before the D.C. Circuit in what is known as a certification test case, which gives employers a way to challenge a union’s certification in federal court. In one certification test case, a company, such as JLL, refused to bargain, prompting a union to file an unfair labor practice charge.

If the NLRB finds that the company unlawfully refused to negotiate, the employer can appeal to a federal district court. With JLL, the board ruled in March that the company violated the National Labor Relations Act by failing to negotiate with Local 39.

JLL argued Monday that the D.C. Circuit should deny enforcement of the NLRB’s decision rejecting the settlement, saying the regional director in the related representation case cited NLRB decisions that are not applicable to this Peterson situation.

The regional director noted the 1968 board decision in Anchor Coupling Co . Inc. and the 1998 decision in Sawyer Lumber Co . including board agents and ballot boxes, JLL said.

“Anchor and Sawyer do not reach as far as the regional director suggests,” the company said. “If anything, they support JLL’s position because, in both cases, the regional directors’ decisions followed an evidentiary hearing, which JLL waived.”

JLL also accused Peterson of soliciting votes from two workers when he left the polling booth to look for employees who had not cast their ballots.

“Why else would Peterson have told observers before he left the room that he would ‘check to see’ if those employees were around? He wanted to make sure all four eligible voters cast their ballots. But that didn’t it was his duty!”, JLL said.

An NLRB representative declined to comment.

Representatives for JLL and the union did not immediately respond to requests for comment.

The company is represented by Reyburn W. Lominack III and Todd A. Lyon of Fisher Phillips.

The NLRB is represented in the House by Ruth Burdick, Milakshmi Rajapakse and David Seid.

Local 39 is represented by David Rosenfeld and Bruce Harland of Weinberg Roger & Rosenfeld.

The case is Jones Lang LaSalle Americas Inc. c. National Labor Relations Board, case numbers 24-1079 and 24-1098, in the US Court of Appeals for the DC Circuit.

–Modification by Nick Petruncio.

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