Labor Board Pressured to Resume Union Elections by Mail

Union leaders and worker advocates are criticizing the National Labor Relations Board for changing course and deciding to suspend all union elections until at least early next month because of the coronavirus pandemic, urging the board to allow voting by mail.

“Coronavirus must be taken extremely seriously, but the NLRB should be utilizing mail ballots, telephonic hearings, and the panoply of other readily available technologies,” Randi Weingarten, president of the American Federation of Teachers, told Bloomberg Law in an e-mail, adding that the new policy will “suffocate worker voice.”

The board announced March 18 it was suspending all in-person elections until April 1, but would allow balloting by mail if the employer and union agreed. But the board altered that plan the following day, halting all elections until at least April 3 and removing the mail-in option.

The agency said the move was necessary to protect the health and safety of agency employees and the public, and because elections can’t be conducted effectively by mail at this time due to office closures and staffers working remotely.

The decision likely hurts unions more than it does employers, according to interviews with nearly a dozen attorneys who counsel both labor and management. But some management-side attorneys said the delay could hurt employers as much as union organizing efforts, and that most employers will instead be focused on trying to manage their operations through an indefinite period of economic pressure and uncertainty.

The board declined to provide statistics on the number of elections affected by the halt. It conducted about 19 elections per week to certify unions in fiscal year 2019, and roughly three per week to decertify, or oust, existing unions during that time.

Bloomberg Law confirmed through interviews with union officials that elections now on hold include contests involving newsroom employees at a number of newspapers, such as the Orlando Sentinel. Also affected were elections to unionize about 850 workers for Southern California Edison, and workers at the Comanche Peak Nuclear Power Plant in Glen Rose, Texas. Many of the workers involved in those two organizing drives have been deemed essential employees under local government orders and are required to continue working during the national emergency.

‘One-Sided’ Move?

Union officials and employees who either successfully organized and had an election scheduled for late March, or were close to that point, told Bloomberg Law they believe the board’s decision to not allow mail-in ballots gives an advantage to employers who want to avoid unionization, according to conversations with several national union officials, local organizers, and workers.

Michael Murphy, a lead organizer for the International Brotherhood of Electrical Workers in Austin, Texas, said the NLRB’s decision is a “one-sided gift to employers.” Murphy was working with the Texas power plant workers who had their election suspended.

The delay could be a disadvantage for unions because they generally file petitions to the NLRB when they believe worker support for unionization has peaked, and now employers have more time to persuade workers against voting for union representation, some of the attorneys and union officials interviewed for this article said. An extended delay also could blunt enthusiasm and momentum unions had built, they said.

Board spokesman Edwin Egee told Bloomberg Law in an e-mail that all NLRB employees nationwide are teleworking, except for a few reporting to offices to process mail.

“The Board believes that it took all appropriate action to suspend elections in this emergency situation in order to ensure the safety of NLRB employees as well as those involved in elections and to preserve the integrity of the election process,” Egee said. “Many Regional Offices are closed; the ones that are open are operating on a limited basis. As such, the Board does not believe that it is possible to effectively conduct ANY elections at this time.”

The AFL-CIO is trying to come up with a solution to protect workers’ organizing rights. It is working with its affiliates “on a plan to propose to the Board that will allow employees to exercise their rights and the Board to protect their rights consistent with the health and safety of Board employees during this public health crisis,” the union’s general counsel Craig Becker told Bloomberg Law. He did not elaborate.

One issue the agency didn’t address in a brief press release announcing the policy is “how they came to the conclusion that mail ballot elections can’t be conducted,” said Tom Meiklejohn, labor attorney at Livingston, Adler, Pulda, Meiklejohn & Kelly PC.

“I understand the need to suspend elections in the current circumstances, but I think it remains safe to conduct mail ballot elections, and would encourage the Board to consider doing so,” Meiklejohn, who represents unions and workers, told Bloomberg law.

Communication Difficult for Both Sides

Whether delaying an election helps one side more than the other depends on a number of factors, said Reyburn Lominack, an attorney with management-side firm Fisher & Phillips. Those factors may include how long the union has been organizing, whether the employer has already been communicating with employees about the union, and whether employees are laid off during the period of delay, he said.

“While a delayed election sometimes benefits employers who are caught by surprise with a petition, it is not uncommon for employers to have too much time between the date of a petition and an election,” Lominack said. “In some cases, employees become fatigued by union-related communications, captive audience meetings, etc., and employers can peak too soon in a campaign.”

Closures and social distancing to prevent the spread of the novel coronavirus can make it harder for both companies and unions to communicate with workers, management-side attorneys said. With union halls, bars, and restaurants closed, unions face difficulties finding a place to gather with workers, even if participants safely distance themselves, said Steven Suflas, an attorney with Ballard Spahr who counsels employers.

Employers can hold virtual meetings by phone or online, but unlike captive audiences in the workplace, employers can’t be sure of full participation, Suflas said.

Effective, empathetic communication by management is essential during the current crisis, regardless if they’re facing a pending union election, said William Miossi, an attorney with management-side firm Winston & Strawn. Failing to properly communicate with workers about issues like sick leave, worker safety and health, and potential layoffs can become ammunition for unions, he said.

But the threat of unionization isn’t an immediate a concern for most companies compared with the economic- and health-related dangers posed by the Covid-19 pandemic, said Jonathan Spitz, a Jackson Lewis attorney who represents employers.

“I’m hard-pressed to envision a scenario where communicating on the issue of unions is appropriate right now, other than to appropriately defer the union discussion until later,” Spitz said.

Murphy, the IBEW organizer, disagreed, saying employers already had a built-in advantage because of a board ruling from last year.

“One might say that employers resisting unionization are analogously hampered by the decision,” he said, because elections to decertify a union are also suspended. “But, unlike unions, employers need no elections to decertify unions— they are permitted to withdraw recognition without an election.”

The NLRB in July issued a case ruling that permits employers to make such an “anticipatory withdrawal” without being subject to an unfair labor practice charge.