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Law360 (February 2, 2021, 8:49 PM EST) -- A union seeking to represent Alabama Amazon warehouse workers has urged the National Labor Relations Board to reject the company's bid for an in-person union election, saying Amazon offered the board no reason to reconsider its policy on holding mail-in elections during the novel coronavirus pandemic.
The Retail Wholesale and Department Store Union said in a brief filed Monday that the NLRB should deny Amazon's request for review of NLRB Atlanta office acting Regional Director Lisa Henderson's order last month. The order directed an election that could form the first bargaining unit at the e-commerce giant to be conducted by mail.
The union said the order aligned with board precedent as COVID-19, the respiratory ailment caused by the novel coronavirus, spreads in the region around the Bessemer, Alabama, facility. Amazon.com offered no new arguments for why the board should rethink a decision it issued two months ago that clarified when elections should be conducted by mail, according to the union.
"The COVID-19 pandemic has taken the lives of over 430,000 people, and now is not the time to further constrain regional directors in their assessment of whether the virus presents a risk to employees and board agents," the brief said.
In a separate filing Monday, the union also urged the board to reject Amazon's request to pause the union election until the board decides whether Henderson's decision should stand. The board is slated to send out ballots Feb. 8.
The sparring over how the election should be conducted is the latest frontier in the union-averse company's fight against a union drive at its sprawling Amazon warehouse facility. Henderson approved an election Jan. 15 and said the roughly 6,000 workers in the potential unit should cast their ballots by mail in light of the ongoing pandemic, bucking Amazon's preference for an in-person election.
Amazon asked the board to review Henderson's decision and said it should reconsider the test it has laid out for allowing mail-in ballots, warning that the exceptions "are swallowing the rule." The test came in November from a case known as Aspirus Keweenaw and includes six parts, considering factors including the positivity rate in the surrounding area, the ability for the employer to put in place mitigation efforts and whether there is an outbreak at the facility.
It has become commonplace for regional directors to order elections that have taken place during the pandemic to be conducted by mail, especially in light of a recent surge in cases in the U.S.
The RWDSU said the board's Aspirus test is still relevant as the pandemic rages on and new, more infectious variants of the virus start to spread. The union noted that at the time Henderson issued the decision, the positive test rate in the county where Amazon's facility is located was above 10%. It also said Amazon's testing of asymptomatic employees at the facility returned an "alarmingly high" positivity rate that suggests a possible outbreak.
The board also already weighed all the arguments Amazon made when it first issued the Aspirus decision, the union said, and the state of the pandemic has not changed much since November to warrant its reconsideration.
Beyond generalized concerns about fraud and unsupported estimates of the number of employees who would not vote by mail, Amazon did nothing to suggest the Aspirus standard was undermining the goal of maximizing turnout in union elections, the union argued.
Amazon had told the board it could hold an election in person with new mitigation protocols and offered to arrange lodging for board employees and put up large outdoor tents for voting complete with temperature checks. But the union said those measures, in addition to not eliminating the risk of contracting COVID-19, would also be inappropriate under Aspirus because they would make it seem like the company was aiding the election effort.
RWDSU President Stuart Appelbaum, in a statement on the filing Tuesday, blasted Amazon's attempt to overturn the order of a mail-in election at the facility.
"The outrageous demand that 5,800 workers should have to vote in person in the midst of a pandemic demonstrates Amazon's blatant disregard for the safety of its employees," Appelbaum said in a statement to Law360.
The NLRB declined to comment on the filing.
Counsel for neither Amazon nor the union immediately returned requests for comment.
Amazon did not immediately respond to a request for comment.
Amazon.com Services LLC is represented by Harry Johnson, David Broderdorf and Geoffrey Rosenthal of Morgan Lewis & Bockius LLP.
The RWDSU is represented by George Davies and Richard Rouco of Quinn Connor Weaver Davies & Rouco LLP.
The case is Amazon.com Services LLC v. Retail Wholesale and Department Store Union, case number 10-RC-269250, in the National Labor Relations Board.
--Additional reporting by Braden Campbell and Danielle Nichole Smith. Editing by Neil Cohen.
Update: This story has been updated with the NLRB's response to a request for comment
For a reprint of this article, please contact reprints@law360.com.
