Labor & Employment Law Daily Wrap Up, LABOR—ORGANIZING, ELECTIONS—D.C. Cir.: Union properly certified at Napa Amazon facility, despite alleged election irregularities, (Feb 19, 2025)

By Jason Albright, J.D.

“During the one minute when the Board Agent stepped out, the ballot box and the unmarked ballots remained in the room, as did both observers.”

The NLRB did not err in finding that Jones Lang LaSalle (JLL) unlawfully refused to bargain with a union the Board certified as the exclusive representative of a unit of maintenance technicians JLL employed at a Napa, California Amazon, Inc. facility, despite JLL’s contention that alleged voting irregularities warranted setting aside the results of the Board-supervised representation election, the D.C. Circuit found. The Board’s Regional Director reasonably concluded that the Board election agent’s briefly leaving the ballot box in a room with designated observers did not raise “reasonable doubts” about the election’s validity, and likewise, that the agent’s act of stepping out to check in on remaining voters did not vitiate the results (Jones Lang LaSalle v. NLRB, Nos. 24-1079 and 24-1098 (D.C. Cir. Feb. 18, 2025)).

Building management at Napa facility. JLL, which provides building management services to third-party companies in facilities across the country, employed Maintenance II and III technicians at an Amazon, Inc., facility in Napa, California.

Stipulated union election agreement. In 2023, the International Union of Operating Engineers, Stationary Engineers, Local 39 filed a petition with the NLRB seeking certification as the bargaining representative of the technicians. The union and JLL then entered into a stipulated election agreement that was approved by the Board’s Regional Director. The election was set for May 17, 2023, and the parties agreed that it would take place during two polling periods, one from 3:30 pm to 4:00 pm, and the other from 6:45 pm to 7:15 pm.

Pre-election conference. On the day of the election, the Board agent hosted a pre-election conference before the first polling period. Joining him were JLL’s representative and the union’s representative. JLL’s designated observer was also present, as well as a union observer for the first polling period. The union’s had designated a second employee as an observer for the second polling period.

Left for a minute. During the first polling period, the union observer cast his own ballot, then remained in the room along with JLL’s observer and the Board agent.

At around 3:45 pm, however, the Board agent told the observers that he would step out briefly to check to see if the other employee whose shift had ended before the first polling period was nearby. The Board agent then left the polling area for approximately one minute and returned with the second employee. The second employee then cast his ballot and left the polling area.

During the one minute when the Board agent stepped out, the ballot box and the unmarked ballots remained in the room, as did both observers. And there was nothing in the record to indicate that the ballot box or the unmarked ballots were touched by anyone during the minute when the Board agent was out of the room.

Checking on remaining voter again. During the second polling period, the Board agent repeated what he had done during the first one. After the union observer for the second period cast his ballot, the Board agent again said that he would go check to see if the fourth eligible employee was nearby. He briefly stepped out, leaving the ballot box and unmarked ballots in the room with the JLL and union observers. As before, the Board agent returned shortly with the fourth employee, explaining that the latter had been waiting outside under the mistaken impression that he had to be notified to come into the room to vote. The fourth and final employee then cast his ballot and left.

During the brief moments when the Board agent stepped out, the ballot box and the unmarked ballots remained in the room, as did both observers. Again, there was nothing in the record to indicate that the ballot box or the unmarked ballots were touched by either the JLL or the union observer, or by anyone else, during the moments when the Board agent was out of the room.

Union victory. After polling closed, votes were tallied, showing that all four votes were cast for the union. Both parties’ representatives signed the tally, certifying that the counting and tabulating were fairly and accurately done, that the secrecy of the ballots was maintained, and that the results were as indicated.

JLL’s objection. JLL, however, filed a timely objection to the election and an offer of proof on May 24, 2023. JLL’s objection focused on the Board agent leaving the polling area, which JLL contended was problematic in two respects: first, the agent should not have left the ballots and ballot box in the room; and second, the agent should not have stepped out to remind employees that the polls were open.

Regional Director’s decision. The Regional Director overruled JLL’s objection without a hearing, finding that JLL failed to allege specific facts that, if credited, would prima facie warrant setting aside the election, and thus failed to raise material and substantial issues of fact sufficient to warrant a hearing. Distinguishing cases relied upon by JLL in its offer of proof, the Regional Director explained that, because the ballots were only left temporarily and in the care of the JLL and union election observers, and because JLL did not offer anything to support any allegations that the election process had been compromised or that any eligible employee had been coerced into voting, it could not be shown that the Board agent had acted in a manner that would warrant overturning the election’s results. Accordingly, the Regional Director overruled JLL’s objection and certified the election.

Denial of Board review. JLL then appealed to the Board, contending that the Regional Director had erred in certifying the election. On September 7, 2023, a three-member panel of the Board summarily denied review, with one member noting separately that even if the “Board agent took an unnecessary risk” in leaving the unsealed ballot box in the room while he briefly stepped out, such conduct did not raise a reasonable doubt as to the election’s fairness.

Refusal to bargain. JLL continued to refuse to bargain, reiterating its certification objection in a letter sent to the union. In response, the Board’s General Counsel filed a complaint with the Board, seeking summary judgment against JLL for its continued violations of the Act.

In March 2024, the Board found no merit in JLL’s attempt to relitigate certification issues, issued summary judgment against JLL, and ordered JLL to bargain with the union.

Petition for review and cross-application for enforcement. JLL then petitioned the D.C. Circuit for review, and the Board cross-applied for enforcement of its March 2024 order.

Abandoned ballot box. The appeals court first found that the Regional Director reasonably concluded that the Board agent’s briefly leaving the ballot box in the room with the designated observers was not conduct that raises “reasonable doubts” about the election’s validity. “Indeed, the evidence on the record is to the contrary,” the D.C. Circuit observed. “The Company’s representative certified that the secrecy of the ballots was maintained and that all four votes were accurately tallied. Neither JLL’s observers nor its representative objected to a single ballot.” And where, as here, the box “remained in the voting room under the ‘watchful eyes’ of both election observers,” the conduct in question did not rise to the level justifying setting the election aside under Board precedent.

Stepping out. Second, according to the appeals court, the Regional Director reasonably concluded that the act of stepping out to check in on remaining voters did not rise to the kind of election irregularity that warrants invalidating an election. Instead, as the Regional Director concluded, JLL’s allegations were purely conclusory: there was simply no evidence that the agent stepped out with the intent to solicit or compel votes. JLL only alleged that Board agent stepped out briefly, and then returned each time with an employee who had yet to vote.

Forfeited argument. Finally, the D.C. Circuit found that JLL forfeited its belatedly proffered claim that the Board applied inconsistent legal standards in assessing JLL’s objection. The argument was raised for the first time in JLL’s reply brief, and the appeals court found that it need not address the merits because, among other things, the Board was deprived of an opportunity to respond.

The case is Nos. 24-1079 and 24-1098.

Judge: Edwards, H.

Attorneys: Reyburn W. Lominack (Fisher Phillips) for Jones Lang Lasalle Americas, Inc. David A. Seid for the NLRB.

Companies: Jones Lang Lasalle Americas, Inc.

Cases: Labor UnfairLaborPractices OrganizingElections AgencyNews DistrictofColumbiaNews