Will the NLRB GC’s “Suggested” Manual Election Protocols Matter?
On July 6, and after consulting with the Board’s Regional Directors (“RDs”) and other of the Agency’s internal stakeholders, the NLRB’s General Counsel (GC) issued Memorandum GC 20-10 offering suggested protocols for the RDs to follow as a way of returning to manual elections in light of the ongoing pandemic. Before COVID-19, the overwhelming majority of National Labor Relations Board-conducted representation elections were done manually. Board agents typically came to an employer’s place of business, set up a voting booth and employees were allowed to vote en masse on whether or not they wished to be represented by a union by manually marking a paper ballot. Elections were run in this manner because the workplace was where almost all of the employees were physically present and maximum employee participation in the election process could be assured. In addition to providing a level election playing field favoring neither management nor labor, and minimizing the Board’s physical oversight of the voting process, manual voting guarantees that elections can be held under laboratory conditions by greatly minimizing the risks of inappropriate conduct that could adversely affect the outcome of an election.
Unfortunately, COVID-19 has upended this process. Indeed, as states resorted to sheltering in place and shutting down nonessential workplaces, the NLRB initially suspended holding elections altogether. Then, after a brief election hiatus, the Board resumed the holding of elections, only now, most of the post-hiatus elections were conducted by mail-in ballot despite the fact that many workplaces were reopening. Management has complained about this change because mail balloting has historically (and decidedly) favored labor organizations. Moreover, because mail balloting is conducted in a far less controlled environment, it is subject to coercion, abuse and other forms of objectionable misconduct, not to mention the vagaries of the mail.
RDs, who are responsible for directing elections and whose offices conduct elections, have long been given discretionary authority by the Board to make initial decisions about when, how and in what manner elections are conducted. Before the pandemic, RDs almost always exercised that discretion by directing manual balloting in most cases and only directing mail balloting when absolutely necessary, and usually in only the most extreme or unusual circumstances. However, with the pandemic, mail balloting has emerged as the RD’s preferred method of voting while RDs have directed manual ballot elections in only a handful of cases. They have made this sea change based upon such variables as COVID-19’s health risks and the safety of Board Agents and election participants, the physical location and dispersion of the voting unit, the regional staff required to conduct a manual election during the pandemic, and prevailing pandemic outbreak conditions in an election’s locality.
Memorandum GC 20-10 addresses the optimal steps Regions must take to ensure a safe manual election, covering such things as polling time, the configuration of polling places sufficient to accommodate social distancing, the cleaning of the election area, and the handling of ballots. It also establishes a requirement for written certifications to be filed with the region between 48 and 24 hours prior to the election as to the incidence of any positive COVID-19 test and/or the onset of any virus symptoms at the employer’s workplace and of each party, party representative and election observer during the preceding 14 days. Finally, it prescribes those election arrangements that must be included in an RD’s decision and direction of election or an election agreement between an employer and a union calling for a manual ballot election.
While its issuance suggests that the Board’s GC would like to see a return to manual ballots, and several Regions have in fact permitted manual elections in recent weeks, it must be remembered that these manual ballot protocols, while certainly helpful, are not absolute. In recognition of this reality, the GC closed his memo by noting “that the COVID-19 pandemic is still evolving and that circumstances can change. In the end, the decision on election procedures and the safety of all participating in an election remain in the sound discretion of the Regional Director.” The GC’s memo certainly gives employers wanting a manual ballot a leg to stand on and a possible basis for arguing that an RD is abusing his or her discretion by directing a mail ballot, especially in those cases where employers are prepared to implement all of the suggested precautions. But will this GC memo bring about an actual change back to manual ballots in the time of COVID-19? We’ll just have to wait and see.