In an effort increase the use of the in-person or manual ballot method for conducting secret ballot elections, the National Labor Relations Board (NLRB or Board) General Counsel (GC) has issued comprehensive “suggestions” for conducting manual elections safely during the COVID-19 pandemic. Memorandum GC 20-10 “Suggested Manual Election Protocols” (July 6, 2020). These guidelines were developed in collaboration with NLRB Regional Directors (RDs) and others.

The NLRB conducts secret ballot elections among employees to determine whether they desire union representation. The RDs order the elections be held in-person or, where circumstances warrant, by mail balloting. The NLRB prefers manual balloting. Employers also prefer manual voting because it maximizes employee participation and minimizes the possibility of voting improprieties. (For an extensive discussion of manual ballot elections and concerns about mail balloting, see our article, Plan Ahead Employers: NLRB Ordering Mail Ballot Elections Because of COVID-19 Concerns.)

Concerns about conducting in-person elections safely during the COVID-19 pandemic has resulted in RDs ordering mail ballot elections in almost all recent cases. The RDs’ authority to do this is unchanged. The introduction to the protocols observes:

[RDs] will continue to make . . . decisions [about in what manner elections are conducted] on a case-by-case basis, considering numerous variables, including, but not limited to, the safety of Board agents and participants when conducting the election, the size of the proposed bargaining unit, the location of the election, the staff required to operate the election, and the status of pandemic outbreak in the election locality.

NLRB elections must be conducted in strict privacy, out-of-sight and earshot of all supervisors and union officials. The suggested protocols are extensive and add significant burdens on employers, particularly given the six-foot social distancing requirement. These suggestions include (but are not limited to):

  • –           A larger than usual voting area, spacious enough for social distancing between Board agents, voters, observers, and separate tables.
  • –           Plexiglass barriers between voters, agents, and observers.
  • –           Floor markings to enforce distancing and traffic flow, with separate entrances and exits for voters.
  • –           Consistent cleaning of the voting area according to established CDC hygiene and safety standards.
  • –           Inspecting the voting area by videoconference hours before the election.
  • –           Staggering voter releases from their assigned work to avoid overcrowding in the voting area.
  • –           Requiring that employers certify the number of individuals who have been in the facility in the preceding 14 days who have tested positive for COVID-19, or been told to assume they are positive, or are awaiting test results, or have symptoms or been in contact with someone who had tested positive in the previous 14 days. The certification must be provided between 24 and 48 hours before the election.
  • –           Requiring that every non-voter who will be in the voting room (observers, union and employer representatives, and employees witnessing the vote count) certify in advance that they meet the above standards.

RDs have the ultimate authority and discretion to decide how elections will be conducted and are not required to direct manual ballot elections despite the new protocols. Thus, the NLRB can ignore the protocols or establish substitute or additional protocols. The NLRB also may decide that all elections be conducted by mail ballot for the foreseeable future.

Please contact a Jackson Lewis attorney with any questions about this development or the NLRB.

 

 

 

Print:
EmailTweetLikeLinkedIn
Photo of Thomas V. Walsh Thomas V. Walsh

Tom Walsh is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He received a B.A., summa cum laude, from Long Island University and his Juris Doctor from St. John’s University. He is the author of “Recent Developments…

Tom Walsh is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He received a B.A., summa cum laude, from Long Island University and his Juris Doctor from St. John’s University. He is the author of “Recent Developments in the Weingarten Doctrine, The Board Shifts to the Right,” for the St. John’s University Journal of Legal Commentary. He is also co-author of the Atlantic Legal Foundation’s series “Leveling the Playing Field – What Charter School Leaders Need to Know About Union Organizing.” Mr. Walsh is a member of the New York State Bar Association and of the American Bar Association, and participates in the labor and employment law sections of both organizations.

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