By Don McIntosh
Back in February 2019, we reported on a razor-thin union election in which over 800 hospital support workers at Providence Portland Medical Center won a union by just one vote. Now we have to update it: This May, SEIU Local 49’s election victory was overturned by the National Labor Relations Board (NLRB) in Washington D.C.
Federal law says the NLRB’s purpose is “to encourage collective bargaining.” The agency exists to prosecute violations of private-sector workers’ union rights and hold elections to determine if workers want union representation. But in the last few years, led by Trump appointees, the NLRB has steadily reversed labor rights reforms of the Obama era and ruled against unions whenever it could find justification.
In this case, it came down to whether a single ballot should be counted as yes or no.
By any measure, the union vote at Providence Portland hospital was tight when the election was held Dec. 12 and 13, 2018. In the first tally, the result was 374 for unionizing and 376 against, a union loss. But that didn’t count 3 voided ballots and 44 other ballots that had been set aside because of legal challenges over whether those workers were eligible to be in the union. When the challenges were resolved, the result was 384-383, a one-vote win for workers who wanted union recognition.
They went out of their way to find a reason to overturn the vote.” — Felisa Hagins, SEIU Local 49 political director
One of the ballots that had been counted as “yes” wasn’t perfect. Beneath the instruction “Mark an ‘x’ in the square of your choice,” the ballot contained an “X” in the “Yes” square and a diagonal line in the “No” square that had been smudged as if by an eraser.
For decades, NLRB rules said to declare “dual-marked” ballots void and not count them — UNLESS the voter’s intent can “be ascertained from other markings on the ballot (such as an attempt to erase or obliterate one mark).” When a federal administrative law judge and the NLRB’s regional director looked at this ballot, both saw the smudged line and felt it was pretty clear what the voter intended.
But in its May 13, 2020, ruling, the three Trump NLRB appointees in Washington, DC, decided it was time to change the rules. Going forward, they ruled, all dual-marked ballots will be declared void — because determining voter intent from smudges is too speculative and subjective: “It is not an efficient use of agency resources to engage in a potentially labor-intensive inquiry into whether, for example, a smudge or blur on a ballot was an attempt at erasure or an inadvertent marking caused by a sweaty hand or the manner in which a voter folded a ballot.”
“They went out of their way to find a reason to overturn the vote,” says Felisa Hagins, political director for SEIU Local 49. “All the rules at the NLRB are changing to be more and more detrimental for workers.”
Hagins also faulted Providence Health — which she called a billion dollar corporation masquerading as a non-profit — for using the anti-union moment at the NLRB to undermine its own workers.
“These workers did a lot of work under very difficult circumstances to build their union,” Hagins said.
For hundreds of CNAs, housekeepers, cooks, phlebotomists and other support workers at the Providence hospital at Northeast 48th and Glisan, the ruling means no union recognition for now. They must wait until at least May 2021 before they can vote again on whether to unionize.