Since its inception nearly 90 years ago, the National Labor Relations Board has had a “strong policy” favoring in-person secret balloting absent “extraordinary circumstances.” That policy has been upended – as so much else in 2020 – by the ongoing Covid-19 pandemic. Immediately prior to the pandemic, over 90% of representation elections were by secret ballot, whereas during the first eight months of the pandemic, March 15 and October 31, 2020, 90% of elections were by mail balloting
It is a troubling statistic. The secret ballot is far superior to mail balloting in fulfilling the fundamental purpose of the National Labor Relations Act -- to have the question of union representation decided by a majority of employees in free and fair elections. Board statistics consistently show that from 20% to over 30% more employees vote when the election is in person.
There are several other reasons:
- Employees are able to vote in the privacy of a voting booth, protecting them from outside pressure or coercion.
- A Board agent supervises the election guarding against improprieties.
- And during in-person voting, the election is held with great solemnity -- the unfurling of an American flag and sealing of the ballot box by the Board agent in the presence of observers for the union and the employer -- impressing on employees the importance of the choice they are about to make.
A mail-in ballot election is not comparable. The solemnity of the election and its importance can be lost as the ballot is received with the day’s junk mail. The ballot itself can be completed anywhere, in the car or at a voting party where the employee may be pressured to vote “the right way.” While interference by fellow employees or misconduct by the employer or the union may never occur, the potential for it in a highly-charged election is real and can undermine employees’ faith in the results of the election, interfering with the long-term interests of both the union and the employer for workplace harmony.
Absent cancelling elections for a period of time, denying an in-person election may have been necessary during the early stages of the pandemic when there was so much uncertainty over how the virus spread and widespread business closures. But we know a lot more about the virus today. Consumers no longer leave packages at the door for days at a time, there are more effective treatment regimens and, most importantly, employers have reopened with the CDC’s recommended safety protocols in place such as face masks, social distancing and shields, enabling millions to go to work without unreasonably risking their health.
Nevertheless, some agency regional directors appear unwilling to let go of mail balloting.
In late-January, the Board’s acting regional director in Atlanta denied Amazon’s (Amazon.com LLC Services) request for an in-person election for its 6,000 employees at a massive Robotics Sortable Fulfillment Center in Jefferson County, Alabama. The acting regional director’s conclusion that “the safety of all election participants and the enfranchisement of all voters . . . weigh in favor of a mail ballot election” is either outweighed by other considerations or not supported by the facts.
Mail balloting may permit the enfranchisement of all employees such as those who are sick the day of the election but that pales in comparison to the 20% or more of employees who will not vote in the election if it is by mail.
The employees have been working at the facility since the pandemic began under a myriad of safety precautions - from daily temperature checks, gloves, masks and shields to an 11-member team enforcing social distancing with the aid of cameras. The acting regional director never explains why marking a ballot while the employees are at the facility under these safety protocols imposes an unacceptable risk of coronavirus warranting they do so on a mailed ballot at home or in their car.
The decision fails to contain facts sufficient to determine the increased risks to the Board agents supervising an in-person election. We are told the agents come from several unnamed states and presume they are not locked down, they are working out of their homes, but the acting regional director never says so. She expresses concern the agents will be coming into Alabama that has a high incidence of Covid but she never identifies the incidence of Covid in the states they would be coming from. We don’t know how far the agents are from the facility (there is a resident office 20 minutes away, the Atlanta regional office is 6 hours away), and why agents traveling alone by car, which is likely, presents an unacceptable risk to them of contracting Covid.
The acting regional director summarily rejects all of Amazon’s proposals for enhanced safety during the election that would eliminate the need for agents to enter the facility – private exterior rest rooms and eating facilities – and that would have provided added protection for all the election participants. These included erecting a large tent to provide a continuous flow of fresh air, Covid free testing and contactless balloting.
The acting regional director was correct, some of Amazon’s proposals could give the appearance that the employer was in control of the election processes, but why wouldn’t a notice to employees that the Board was allowing one or more of these protocols be sufficient to demonstrate the Board remained in control. And why reject the tent? In-person elections are normally held at the employer’s facility, whether inside or outside, and a tent could fairly be considered part of the employer’s premises who is obligated to protect the safety of persons invited onto its property.
As to the arrangements for agent-only exterior restrooms and eating facilities, the acting regional director never addresses their need or why they could not be satisfied by her office or the agent’s themselves. The Board has a resident office 20 minutes away in Birmingham, Alabama and Jiffy Johns are easy to rent.
The acting regional director’s decision is on appeal to the Board. It will give the Board an opportunity to revisit a November decision it issued intended to promote a return to the secret ballot but that was used by the acting regional director in this instance to support denying one. The decision identifies specific conditions, if any one is met a regional director is permitted, but not required, to order mail balloting. The Amazon facility clearly met one condition: the 14-day testing positivity rate for Covid in Jefferson County is 5% or higher (although 2.88% in the facility). But that statistic alone leaves unanswered whether the extent of Covid in the county increases the risk to board agents of contracting Covid that they do not already have.
For the acting regional director determining whether “extraordinary circumstances warrant the need for mail balloting, the current circumstances of the employees and board agents are irrelevant. On appeal, the Board will have to decide whether she is correct.
