The early evidence is in, and the results are clear. National Labor Relations Board (NLRB) Regional Directors decidedly have not embraced the General Counsel’s (GC) guidelines on conducting manual ballot (in-person) elections during the COVID-19 pandemic. Memorandum GC 20-10 “Suggested Manual Election Protocols” (July 6, 2020). For more on the guidelines, see our blog, NLRB General Counsel Issues Guidelines for In-Person Elections During COVID-19 Pandemic.

According to the NLRB’s website, as of July 24, 22 “Decisions and Directions of Election” (DDE) had been issued since July 6, 2020, the date on which the GC’s memo was issued. [There actually appears to be only 21. A hyperlink for the Garda CL Atlantic, Inc. decision takes the reader/researcher to a DDE associated with a different employer – Russell Reid Waste Hauling; the Russell Reid Waste Hauling DDE has a separate entry in the list of regional election decisions.]

Not all of the remaining DDEs listed as of the afternoon of July 24 involved disputes over whether a mail ballot or manual ballot election should take place; however, most did. In almost all of those, the employer cited the GC’s Memorandum in support of the employer’s position that a manual ballot election should take place. Nevertheless, the Regional Directors unanimously directed mail ballot elections. This was the case even where employers committed to implementing all of the General Counsel’s suggested procedures. Russell Reid Waste Hauling & Disposal Service Co., Inc., No. 22-RC-261504 (July 22, 2020). At least one RD even criticized the Memorandum, noting that it “does not provide an enforcement mechanism for any of its suggestions other than canceling an election, which would delay resolution of the question concerning representation.” Transdev Services, Inc., 07-RD-255421 and 07-RC-261835 (July 22, 2020). The NLRB employees union has vigorously objected to the holding of manual ballot elections during the COVID-19 pandemic.

The credibility of Memorandum GC 20-10 also was not boosted by the NLRB’s unpublished decision in Brink’s Global Services, Inc., 29-RC-260969 (July 14, 2020). In that case, the Regional Director directed a mail ballot election. The employer filed a request for review (appeal) of that decision, which the NLRB denied. The NLRB’s less-than-ringing endorsement of the Memorandum held:

“In finding that a mail-ballot election is warranted in this case, we rely on the extraordinary circumstances resulting from the Covid-19 pandemic. The Board will continue to consider whether manual elections should be directed based on the circumstances then prevailing in the region charged with conducting the election, including the applicability to such a determination of the suggested protocols set forth in GC Memorandum 20-10. Under the circumstances present in this case, however, we are satisfied that the Regional Director did not abuse her discretion in ordering a mail-ballot election here.” (Emphasis added.)

It remains to be seen whether Memorandum GC 20-10 affects any Regional Director DDEs during the COVID-19 pandemic.

Please contact a Jackson Lewis attorney if you have any questions.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Jonathan J. Spitz Jonathan J. Spitz

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the…

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the United States. He understands the practical and operational needs of clients, helping design pragmatic strategies to minimize risk and maximize performance. He was selected as a “Leader in the Field” by Chambers USA in 2009 and 2010.

He has represented management in numerous counter-organizing drives and participated in dozens of unfair labor practice proceedings, discrimination charges and other matters before the National Labor Relations Board, the Equal Employment Opportunity Commission and various federal and state administrative agencies, as well as in collective bargaining, arbitration and in employment litigation before state and federal courts. Mr. Spitz regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the Family and Medical Leave Act, drug testing laws and regulations, the Americans with Disabilities Act and other federal and state employment laws.

Mr. Spitz has extensive experience in assisting employers to create union and litigation avoidance strategies suitable to the individual organization, values and industry. He has led teams conducting multi-facility labor vulnerability assessments and has advised employers in responding to corporate campaigns and demands for card check and neutrality.

Mr. Spitz is a contributing author of Employer’s Guide to Union Organizing Campaigns, Aspen Publishers, 2007. In addition, he has authored many articles regarding labor and employment law issues which have appeared in national trade publications.

Mr. Spitz is admitted to practice in the Second, Fourth, Sixth, Eleventh and District of Columbia Circuit Courts of Appeals; the United States District Court for the Middle District of Georgia; and the Georgia Supreme Court.

He received his Bachelor of Arts degree, cum laude, from Tufts University in 1990. He earned his J.D. from Emory University in 1993