Will NLRB GC’s “Suggested” Manual Election Protocols Matter?

On July 6, and after consulting with the Board’s Regional Administrators (“RDs”) and different of the Company’s inner stakeholders, the NLRB’s Common Counsel (GC) issued Memorandum GC 20-10 providing advised protocols for the RDs to observe as a means of returning to guide elections in mild of the continued pandemic. Earlier than COVID-19, the overwhelming majority of Nationwide Labor Relations Board-conducted illustration elections have been performed manually. Board brokers usually got here to an employer’s place of job, arrange a voting sales space and staff have been allowed to vote en masse on whether or not or not they wished to be represented by a union by manually marking a paper poll. Elections have been run on this method as a result of the office was the place virtually the entire staff have been bodily current and most worker participation within the election course of might be assured. Along with offering a degree election enjoying area favoring neither administration nor labor, and minimizing the Board’s bodily oversight of the voting course of, guide voting ensures that elections might be held below laboratory situations by vastly minimizing the dangers of inappropriate conduct that might adversely have an effect on the end result of an election.

Sadly, COVID-19 has upended this course of. Certainly, as states resorted to sheltering in place and shutting down nonessential workplaces, the NLRB initially suspended holding elections altogether. Then, after a quick election hiatus, the Board resumed the holding of elections, solely now, many of the post-hiatus elections have been carried out by mail-in poll even though many workplaces have been reopening. Administration has complained about this variation as a result of mail balloting has traditionally (and decidedly) favored labor organizations. Furthermore, as a result of mail balloting is carried out in a far much less managed setting, it’s topic to coercion, abuse and different types of objectionable misconduct, to not point out the vagaries of the mail.

RDs, who’re answerable for directing elections and whose places of work conduct elections, have lengthy been given discretionary authority by the Board to make preliminary choices about when, how and in what method elections are carried out. Earlier than the pandemic, RDs virtually at all times exercised that discretion by directing guide balloting generally and solely directing mail balloting when completely mandatory, and normally in solely essentially the most excessive or uncommon circumstances. Nonetheless, with the pandemic, mail balloting has emerged because the RD’s most well-liked methodology of voting whereas RDs have directed guide poll elections in solely a handful of instances. They’ve made this sea change based mostly upon such variables as COVID-19’s well being dangers and the security of Board Brokers and election contributors, the bodily location and dispersion of the voting unit, the regional workers required to conduct a guide election throughout the pandemic, and prevailing pandemic outbreak situations in an election’s locality.

Memorandum GC 20-10 addresses the optimum steps Areas should take to make sure a protected guide election, overlaying things like polling time, the configuration of polling locations ample to accommodate social distancing, the cleansing of the election space, and the dealing with of ballots. It additionally establishes a requirement for written certifications to be filed with the area between 48 and 24 hours previous to the election as to the incidence of any optimistic COVID-19 take a look at and/or the onset of any virus signs on the employer’s office and of every celebration, celebration consultant and election observer throughout the previous 14 days. Lastly, it prescribes these election preparations that should be included in an RD’s determination and path of election or an election settlement between an employer and a union calling for a guide poll election.

Whereas its issuance means that the Board’s GC wish to see a return to guide ballots, and several other Areas have the truth is permitted guide elections in latest weeks, it should be remembered that these guide poll protocols, whereas definitely useful, usually are not absolute. In recognition of this actuality, the GC closed his memo by noting “that the COVID-19 pandemic continues to be evolving and that circumstances can change. In the long run, the choice on election procedures and the security of all taking part in an election stay within the sound discretion of the Regional Director.” The GC’s memo definitely offers employers wanting a guide poll a leg to face on and a doable foundation for arguing that an RD is abusing his or her discretion by directing a mail poll, particularly in these instances the place employers are ready to implement the entire advised precautions. However will this GC memo result in an precise change again to guide ballots within the time of COVID-19? We’ll simply have to attend and see.