Denver Airport Security Guards Get Mail Vote In Union Push

By Tim Ryan
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Law360 (February 23, 2021, 7:54 PM EST) -- Security guards at the Denver airport will vote by mail on whether their workplace should be represented by a law enforcement workers' union, a National Labor Relations Board official has ruled, saying practical realities would make it difficult to hold an in-person vote safely.

In a decision issued Monday, NLRB Denver office Regional Director Paula Sawyer rejected a bid by the guards' employer, HSS Inc., to hold an election in the ballroom of a hotel attached to the airport. Sawyer said limited advance access to the polling place, the fact that many workers would not be on duty during the vote and the ongoing pandemic favor a vote by mail.

"I find the combination of the current pandemic and the circumstances surrounding the use of a third-party facility create an extraordinary circumstance making a mail-ballot election appropriate in this case," Sawyer said.

Sawyer's decision sided with the position of the Law Enforcement Officers Security Unions, which petitioned in January to represent roughly 267 workers at HSS who staff security checkpoints and patrol terminals at the Denver International Airport.

HSS had pushed for an in-person election, saying the conditions for holding an election by mail during the novel coronavirus pandemic that the board laid out in a case involving Aspirus Keweenaw were not met. That November decision said regional directors deciding between a mail-in and in-person election should weigh factors such as rising case counts in the county where the vote would happen, restrictions on gatherings that would prevent an in-person vote, or an outbreak at the facility.

Sawyer acknowledged that case counts are falling, both in the immediate area of the airport and in the counties where many of the workers live. She also noted the ballroom could accommodate the election without running afoul of any state or local pandemic restrictions.

However, Sawyer noted HSS would not have access to the ballroom ahead of election day, making it difficult for the parties to ensure the room is arranged safely and to inspect the polling place before the vote, as required.

Beyond that, Sawyer said the guards' schedules would make it difficult to safely hold the election. A third of workers would not be on duty when the election was taking place, and while Sawyer said she would normally add another day to the voting, doing so in this case would increase the risk of COVID-19, the respiratory disease caused by the virus.

Many of the workers who would be on duty work in remote corners of the airport as far as a mile from the ballroom, requiring them to catch a ride to the polling place and putting them in close contact other workers, Sawyer wrote.

Under Sawyer's order, the board will mail out ballots on March 10, and workers must return them by March 31. 

The NLRB declined to comment on the decision. A representative for HSS also declined to comment. 
 
Counsel for neither the union nor HSS immediately responded to requests for comment on the decision. The union itself did not immediately respond to a request for comment.

HSS is represented by Patrick Scully and James Korte of Sherman & Howard LLC.

Law Enforcement Officers Security Unions is represented by Jonathan Axelrod of Beins Axelrod & Keating PC.

The case is HSS Inc. and Law Enforcement Officers Security Unions, case number 27-RC-271407, before the National Labor Relations Board.

--Editing by Leah Bennett.

Update: This story has been updated to include a response from HSS.

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

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