NLRB Rejects Amazon Challenge to Mail Ballot Union Election
Author: Robert S. Teachout, XpertHR Legal Editor
February 16, 2021
The National Labor Relations Board (NLRB) has denied Amazon's request to block a regional director's order to conduct a union election using mail-in ballots. More than 5,800 workers at Amazon's Bessemer, Alabama warehouse are voting whether to join the Retail, Wholesale and Department Store Union. The regional director for Alabama had ordered mail-in balloting to minimize the risk of spreading the coronavirus.
Amazon had attempted to delay the representation election by claiming the employees could safely vote in person. Alabama is a right-to-work state and has one of the lowest union membership rates (8%) in the country. The company also argued that there were flaws in how the regional director determined whether there was a coronavirus outbreak in the area.
Mail-in ballot elections have increased during the coronavirus pandemic. The NLRB addressed the issue in its November 2020 Aspirus Keweenaw and Michigan Nurses Association decision.
In Aspirus, the Board reaffirmed its longstanding policy favoring manual (in-person) elections, but outlined situations that might indicate the need for mail ballots due to the COVID-19 pandemic. These include situations such as:
- A current COVID-19 outbreak;
- A 14-day COVID positivity rate above 5%; or
- The inability to conduct a manual election without violating mandatory health guidelines on maximum gathering sizes.
When one or more of these situations is present, the Board held that a regional director should consider directing a mail-ballot election.
Board member Lauren McFerran wrote a concurring opinion in Aspirus calling for more mail elections generally and urging the Board to "stop treating mail-ballot elections as deviations that must be justified by Regional Directors case by case." She noted that mail-ballot elections have allowed the Board to conduct representation elections safely and effectively, thereby virtually eliminating the public health risks inherent to manual elections. McFerran asserted, "It is time for the Board to ask itself - and the public - whether it is finally time to move beyond manual elections as the default method."
President Joe Biden has since appointed McFerran as chair of the NLRB. Employers should anticipate the normalization of mail ballots and other ways of conducting union elections to become a priority after the Board shifts to a Democratic majority - likely after August 2021.
Ballots for the Amazon warehouse representation election were mailed to the more than 5,800 employees shortly after the Board denied Amazon's motion. The election will run through March 29.