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.