August 10, 2020

Volume X, Number 223

August 10, 2020

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Electronic Union Representation Elections Are Looming

Social distancing and uncertainty about COVID-19 have altered many aspects of daily life, uprooted traditions, and redefined “normal.” Unions are seizing this opportunity in a push for electronic representation elections.

On May 6, a coalition of fourteen unions (the “Coalition”) urged Nancy Pelosi, Mitch McConnell, Kevin McCarthy, and Chuck Schumer to fund and direct the NLRB to establish a system and procedures to facilitate electronic union representation elections. The Coalition highlights COVID-19’s effect on the workforce in unemployment, underemployment, and dangerous working conditions, and submits that these effects highlight the need for union representation. Further, the Coalition asserts that the nature of COVID-19 makes in-person representation elections impractical, and, in conjunction with employer objections to elections by mail, it is exceedingly difficult for workers to form unions in the current climate.

The Coalition’s push for electronic representation elections was preceded by a similar push in April by 168 members of Congress, chastising the NLRB for halting all representation elections in response to COVID-19, rather than implementing a mail-in, telephone, or internet voting system. Both the Coalition and the 168 members of congress cite to the telephone and internet voting systems utilized by the National Mediation Board as precedent of well-established electronic voting procedures.

The issue is not novel, as the NLRB has previously considered implementing electronic voting procedures. In a 2010 request for information, the NLRB sought solutions and guidance on implementing secure electronic voting systems. Nevertheless, the NLRB has declined to implement such systems and in late 2019, Congress specifically prohibited the NLRB from using funds to issue directives or regulations that provide for electronic voting in representation elections.

Undoubtedly, COVID-19 has and will continue to reinvent ‘business as usual,’ and its impact on labor relations will assuredly be substantial. In determining whether to permit electronic union representation elections, Congress would do well to balance workers’ rights against the potential for voting fraud, administrative error, and the monumental economic and logistical pressures employers face during this unprecedented time of uncertainty.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 135


About this Author

Lukas Moffett Employment Lawyer Hunton AK

As an associate in the firm’s labor and employment group, Lukas assists clients in employment litigation and general compliance matters.

Lukas focuses on litigation matters involving employment discrimination and the employer/employee covenant relationship. Lukas also helps employers comply with anti-discrimination laws by advising on employee termination and consultation procedures. In addition, he is involved in the firm’s pro bono efforts.

Relevant Experience

Advises employers regarding...

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Robert T. Quackenboss Labor & Employment Litigation Attorney Hunton Andrews Kurth Washington, DC & New York, NY

Bob litigates complex employment, labor and business disputes.

Bob is a litigator who represents businesses in resolving their complex labor, employment, trade secret, non-compete and related commercial disputes. He was recognized as a Labor & Employment Star in Benchmark Litigation’s Rankings for 2019. He advises employers regarding union organizing activities, manages union election campaigns and litigates labor arbitrations nationwide. He also serves as co-chair of the firm’s Unfair Competition and Information Protection Task Force, which concentrates on trade secret theft, restrictive covenant and non-competition matters. He also handles complex employment discrimination, harassment, and wage-and-hour disputes, including class and collective actions.

He is admitted to practice in the US District Courts for the Districts of Maryland, Washington, DC, the Southern District of New York, New Jersey, and Georgia; the US Courts of Appeals for the Second, Fourth, Eleventh and DC Circuits; and the state courts of Maryland, New York, New Jersey, Georgia and Washington, DC.

Relevant Experience

  • Defended numerous class action lawsuits alleging violations of the Fair Credit Reporting Act with regard to criminal background checks in the hiring process; designed background check programs for nationwide employers, and consulted regarding 50-state compliance on background check policies.
  • Coordinated union election campaigns for employers, resulting in multiple employer victories and petition withdrawals, and advised numerous clients on advance preparation for union organizing, “ambush” election petitions, and adapting to the NLRB’s evolving election rules.
  • Designed national labor relations programs and policies for retail, manufacturing and other clients, including strategic plans for expansion and migration into the nation’s most active and aggressive union markets.
  • Advised and defended political, media, lobbying and business entities targeted by organized labor and NGOs in corporate-style campaigns, including implementation of physical security measures, strategic public communications and related litigation.
  • Prosecuted and defended multi-state trade secret, non-compete and non-disclosure matters within numerous industries, including nuclear waste storage, financial services, computer software design, executive recruiting, television broadcasting, advertising and public relations, physician group services, banking, grocery retail, acoustics engineering, home improvement warehouse retail, prison commissary services, and many others.