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Law360 (January 22, 2021, 6:30 PM EST) -- Amazon has asked the National Labor Relations Board to reverse an agency regional official's call for mail balloting and to freeze the impending vote in a closely watched union election at an Alabama warehouse, insisting that an in-person election is safe despite the COVID-19 pandemic.
Amazon said NLRB Atlanta office acting head Lisa Henderson's Jan. 15 decision shows that the exceptions in the agency's test for deciding election format disputes during the crisis "are swallowing the rule," urging the board to vacate her ruling and tweak its test to more readily support holding so-called manual votes. The e-commerce giant separately asked the board to freeze the mail vote, which is set to start Feb. 8.
"This election case presents a perfect storm — multiple gaps in National Labor Relations Board ... precedent, acting regional director errors, and missed opportunities for mail-ballot improvements, all with the rights of thousands of employee-voters at stake," Amazon said.
Amazon has been expected to play hardball in the campaign, which labor observers say could spark further organizing at the union-averse online retailer if workers at the Bessemer, Alabama, warehouse form its first-ever bargaining unit. Thursday's filing — which could give Amazon more time to oppose the union, if successful — aligns with those expectations.
Henderson approved the workers' November petition for an election on whether to join the Retail, Wholesale and Department Store Union earlier this month, blessing a proposed bargaining unit comprising nearly 6,000 workers at the facility and ordering that the vote be conducted by mail, at the union's request and over Amazon's objections. The regional directors who decide the terms of union elections have called for mail votes in almost all cases since the start of the COVID-19 pandemic, and have done so exclusively during the recent national surge in cases.
Henderson applied a six-part test the board laid out in a November decision involving Aspirus Keweenaw, a rural Michigan hospital where workers sought to unionize. She said the rising number of positive cases in the area of the facility and the virus' spread among workers there necessitated a mail vote, overruling various concerns Amazon raised.
Henderson's analysis was flawed and her ruling illustrates gaps in Aspirus that undermine the agency's stated preference for in-person union elections, Amazon argued Thursday.
The board's direction in Aspirus that regional directors consider the 14-day COVID-19 case and test-positivity trends in the county where the petitioning facility sits may not present the most accurate picture of election safety, Amazon said. While the countywide snapshot Henderson considered showed the number of cases in Jefferson County were rising, the 2.88% positivity rate among Bessemer workers was less than the 5% countywide mark the board cited in Aspirus, the company said. Henderson also considered a snapshot that ended four days before she ruled, while more up-to-date data showed cases were on a slight decline, it added.
The Aspirus prong giving regional directors leeway to call for mail votes because of an "outbreak" at the facility is likewise unclear, the company said. By not defining the term, the board allows any number of positive cases to derail a manual vote, the company said.
"This case well illustrates the need for clarification," said Amazon, noting that 218 of more than 7,500 Bessemer workers were positive for COVID-19 in the two weeks before it filed supplemental arguments on Jan. 7.
The board should address these concerns before workers vote, Amazon added in its brief seeking to stay the election.
"The board should seize the opportunity to provide needed clarity and direction for regional directors and to correct the errors made by the acting regional director here," the company said.
RWDSU declined to comment. Amazon did not immediately respond Friday to a request for comment.
The union is represented by George Davies and Richard Rouco of Quinn Connor Weaver Davies & Rouco LLP.
Amazon is represented by Harry Johnson and Geoffrey Rosenthal of Morgan Lewis & Bockius LLP.
The case is Amazon.com Services LLC and Retail, Wholesale and Department Store Union, case number 10-RC-269250, in the National Labor Relations Board.
--Editing by Haylee Pearl.
For a reprint of this article, please contact reprints@law360.com.
