Cemex elections highlight unions’ dubious case for mail-in balloting

Members of prospective bargaining units at essential Alabama and Florida businesses are scheduled to vote this month on union representation. Despite safety team success in containing Covid-19 infection and spread throughout the target employers’ operations, National Labor Relations Board regional offices are allowing workers in both elections to cast ballots by mail versus the standard in-person, manual method. The former opens voters to interference as they complete and submit ballots; the latter enables them to express their preference for bargaining representation in a private, tightly controlled setting. It doesn’t take much imagination to determine which method organized labor embraces.

The election sure to make national news involves the Retail, Wholesale and Department Store Union and workers at a sprawling Amazon.com Services LLC site in Bessemer, Ala. The employer sought a manual election staged in a 3,600-sq.-ft. tent at the facility—dubbed a Robotics Sortable Fulfillment Center—with the proposed bargaining unit’s 6,000-plus members voting in five-hour morning and afternoon cycles over a maximum of four days. Underpinning Amazon.com Services’ case was a metric sacrosanct to government and public health agency leaders: the Covid-19 positivity rate, typically reflecting results or percentages a county records over seven- or 14-day testing windows. One of the key criteria for NLRB regional office staff in allowing manual representation elections is a positivity rate below 5 percent for the county in which the workplace is located. Amazon.com Services reports a 2.88 percent positivity rate among the Bessemer payroll, a sharp contrast to figures for the surrounding Jefferson County and Alabama as a whole (> 15 percent). Using the broader area positivity data, the NLRB Region 10 office determined that a mail ballot election is appropriate.

The second scheduled election is notable mainly in the concrete industry but involves an employer whose experience with mail-in balloting for union representation is likely not lost on Amazon.com Services. International Brotherhood of Teamsters Local 173 in Bradenton, Fla. petitioned the NLRB for an election to represent 18 drivers at the local Cemex Construction Materials Florida ready mixed plant. To accommodate a manual election, the producer proposed a two-hour schedule for voting staged in an 1,850-sq.-ft. warehouse at its Bradenton site. Agency staff nevertheless determined that Local 173 representation voting will be conducted by mail ballot. A victory would make Teamsters locals four for four in Cemex Florida bargaining unit pursuits during the pandemic phase. In May, July and December 2020, mail ballot elections resulted in the designation of Teamsters Local 79, Tampa, as the representative for about 65 drivers at the producer’s five ready mixed plants in Fort Myers, Naples and Port Charlotte.

NLRB Region 12 documents paint a compelling picture for Cemex Florida and Cemex USA safety management since March 2020, when the producer and peers across the ready mixed business implemented protocols that continue to result in timely concrete deliveries—free of accidents and virus transmission. Cemex counsel informed NLRB officials of internal, pandemic-tailored procedures: Temperature checks prior to employees starting work; face mask and social distancing mandates; daily mixer truck and regular facility cleaning routines; and hand sanitizer availability.

Of 2,500 Cemex Florida employees, just over 4 percent have tested positive for Covid-19, below the 5 percent threshold in NLRB guidance for pandemic phase manual elections. In response to a Teamsters 173 observation on positivity rates approaching 9 percent in Manatee County, home to Bradenton, Cemex Florida countered that a figure exceeding 5 percent “is not the correct analysis to consider. More important is the actual experience of this operation [Bradenton plant] since March 2020, when testing began. Over the past nine months, there have been two reported positive tests. Neither was traced to the [Bradenton] operation.”

The Cemex Florida and Amazon.com Services cases turn on an inconsistency in representation election guidance: NLRB discounts an employer’s performance as measured in the positivity rates of employees who, as proposed bargaining unit members, have necessarily spent considerable time in well monitored, protected and sanitized workplaces.