A group of Instacart in-store shoppers in Chicago will vote by mail on whether to unionize after a federal labor board official rejected the company’s argument that the election would distract “essential” workers during the Covid-19 pandemic.

The shoppers fill orders for Instacart customers at a Jewel-Osco store and are classified as Instacart employees. The election comes some three months after a group of Instacart shoppers assigned to another grocery store in Illinois voted to unionize.

Instacart is considering appealing the Thursday decision from National Labor Relations Board official Peter Sung Ohr to the three Trump-appointed sitting members of the NLRB. The company argued that the vote should be delayed until after the health care crisis subsides or other wise held in person.

The company believes in-person elections “can be reasonably conducted on-site for these in-store shoppers to exercise their rights with safeguards put in place,” and will “be exploring the right to appeal ” spokeswoman Natalia Montalvo said in an email.

An appeal would give the NLRB the chance to resolve an ongoing question for businesses still open during the pandemic as essential and the unions trying to organize their workers—whether ballots should be cast in person, by mail, or at all. The agency’s regional officials have largely opted for mail ballot elections in recent weeks.

“Given the nationwide state of emergency surrounding the coronavirus pandemic, Instacart requested that the election be reasonably rescheduled so that these in-store shoppers can remain focused on ensuring that families’ critical grocery orders continue to be fulfilled,” Montalvo said.

“We support these employees’ rights to explore unionization, as well as their freedom to reject any unionization effort,” Montalvo said. “We greatly appreciate their efforts, which is why we’ve established new sick pay policies, new COVID-19 bonuses, and are also offering extended pay for those affected by COVID-19.

UFCW representatives weren’t immediately available for comment.

Elections by Mail

The ruling comes as Instacart is fighting legal and legislative challenges over its classification of grocery deliverers as independent contractors. Those workers, unlike in-store shoppers classified as employees, are treated as self-employed entrepreneurs. The company has over 500,000 full-service shoppers and nearly 10,000 in-store shoppers.

The UFCW already has unionized at least one other group of the grocery delivery service’s workers at a store in Skokie, Ill. Instacart’s in-store shoppers work a certain number of hours at a particular location, as opposed to freelancing at any other stores where customers choose to place orders.

Ohr’s order parallels a number of recent decisions from the agency permitting elections via mail ballot in order to prevent spreading Covid-19. Those rulings indicate that the UFCW or other unions’ efforts to organize Instacart workers could receive a boost because of the conditions gig workers deemed essential are facing as the coronavirus continues to disrupt workplaces around the globe.

“Here, the Employer has not suggested its essential employees are unable to vote, incapable of voting, or otherwise prevented from casting a ballot,” Ohr said. “Its only contentions are employees may become distracted from performing their ‘essential’ jobs by having the choice for union representation, and the ongoing COVID-19 pandemic somehow prevents employees from receiving information from the Employer.”

The company didn’t provide any evidence to support that assertion, the NLRB regional director said, and cited no cases where an election was postponed because of the potential for distraction.

The NLRB will send out mail ballots on May 20, with a voting deadline of June 11.

Source: Bloomberg