NLRB Official Orders Coke Bottler Vote By Mail Due To Virus

By Melissa Angell
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Law360 (May 20, 2021, 9:48 PM EDT) -- A National Labor Relations Board regional official on Thursday shut down a bid by Coca-Cola Consolidated Inc. to hold a manual election concerning union representation for a subset of workers in its West Virginia facility, expressing concerns over nearby growing COVID-19 case counts and opting for a mail-in election instead.

Acting Regional Director Tara Yoest of the NLRB office serving Maryland, Pennsylvania, Virginia and West Virginia decided to hold a mail ballot election over an in-person vote due to the ongoing pandemic and high positivity rate around the West Virginia facility.

Employees of the coke bottler will vote on if they wish to be represented by Chauffeurs, Teamsters & Helpers Local Union No. 175 for collective bargaining. Delivery workers and merchandisers, account developers and warehouse employees are among the employees that can be represented.

"I find that the elevated positivity rate, coupled with the increase in confirmed cases in Raleigh County, outweigh any concerns related to voter turnout in a mail-ballot election," Yoest said.

The stipulation at hand is over how the election will be carried out, which, though "not a litigable issue," is nonetheless a matter that the parties were allowed to voice their positions on before the NLRB, the decision noted.

The coke bottler argued that it would be possible to safely conduct a manual election in a boardroom located at the facility or, alternatively, a 1,200-square-foot outdoor tent, according to Thursday's decision.

The bottler also indicated that it would mark the ground in an attempt to enforce social distancing measures and provide disposable materials for workers to cast their ballots.

The bottler further alleges that there have not been any positive COVID-19 cases among employees since Feb. 26, according to the decision.

The Teamsters, however, seek a hybrid election consisting of both a manual and mail process to accommodate those who may not be able to cast ballots in person. However, they indicated that they are also open to a strictly mail-in election as well.

And on Thursday, Yoest determined that a mail-ballot election is the safest measure for the upcoming election given the current state of the pandemic.

In weighing the decision, Yoest noted that an increasing 14-day trend concerning new confirmed cases or a 14-day testing positivity rate that's above 5% are both factors in favor of mailed ballots.

Both variables are present in this case since the amount of confirmed new cases in Raleigh County has increased over the last two weeks, Yoest noted. Furthermore, the average positivity rate in the county over the last 14 days was around 7.25%, with the positivity rate rising above 5% in nine out of the last 14 days.

The current seven-day rolling COVID-19 positivity rate in the county clocked in at 8.06% as of May 15, Yoest added.

"After careful examination of the record, the parties' positions, and the current state of the coronavirus in Raleigh County where the employer's facility is located, I have determined that a mail-ballot election is the safest and most appropriate method for conducting this election," Yoest said.

Ballots will be mailed by the NLRB to employees on June 7 and will be counted by the NLRB's office on June 28, per the decision.

Representatives for the parties did not immediately respond to Law360's requests for comment Thursday.

Coca-Cola Consolidated is represented by Kevin Carr of Spilman Thomas & Battle PLLC.

Direct representatives for the petitioners could not immediately be ascertained Thursday.

The case is Coca-Cola Consolidated v. Chauffeurs, Teamsters & Helpers Local Union No. 175, case number 06-RC-275902, in the National Labor Relations Board, Region 06.

--Editing by Daniel King.

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