For those of us who practice labor and employment law, the COVID-19 pandemic has normalized both the use of Zoom and mail ballot union representation elections. These phenomena have inherent risks, such as technical malfunctions and voter irregularities. Both of these concerns surfaced in a recent NLRB case when a Zoom link failed during the counting of mail ballots. Stericycle, Inc. and International Association of Sheet Metal, Air, Rail and Transportation Workers Local 44.
The case arose when the Union filed a petition seeking to organize a unit of route managers working for Stericycle in Pennsylvania. Region 4 of the NLRB scheduled a mail ballot election. In accordance with COVID protocols, the counting of the ballots was done remotely via a Zoom conference call. While the Board agent was handling the ballots, the Zoom call suddenly ended, disconnecting all participants. The Board agent sent out an email stating that there was a “technical issue,” and the Zoom call resumed 3-5 minutes later. The counting of the ballots continued, and the Union won unanimously.
Stericycle filed a number of objections, including several questioning the validity and fairness of the election as a result of the Zoom outage. Stericycle alleged that the parties had no way of knowing if the ballots had been tampered with during the blackout. The NLRB Hearing Officer denied the objections, finding that “the appearance of irregularities does not require setting aside an election.” In the absence of evidence that the Board agent failed to follow established election protocols of acted improperly in handling or counting the ballots, there was no basis to set aside the election.
While the decision in Stericyle appears to be correct, the process does seem to be very disconcerting for long time labor law practitioners like myself. As those of us who have attended in-person ballot counting know, the NLRB takes great pride in ensuring the integrity of its election process. One of the great rituals in this practice is the process of opening the cardboard ballot box and then holding the box up for all to see so that the parties can be confident no ballots are stuck in the recesses of the box. With that backdrop in mind, its a bit difficult to just roll over and accept a mysterious Zoom outage in the middle of the count. But, as with so much of 2020, things are just a bit different this year!