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NLRB’s In-House Union Tells Board to Scrap Election Guidance

July 10, 2020, 9:32 PM

The National Labor Relations Board’s in-house union has called upon the agency to rescind its new guidelines for conducting in-person union elections during the coronavirus pandemic, complaining the protocols were developed unilaterally and put agency staff and the public at risk.

The protocols, which are not mandatory, were published in a memorandum from NLRB General Counsel Peter Robb on July 6. The measures recommend the imposition of plexiglass shields between voters and board staff; polling-place markings to ensure social distancing; a certification from employers that those participating in an election haven’t tested positive for the coronavirus within the past 14 days; and other steps to limit transmission of the virus.

Implementation of the protocols is at the discretion of the board’s regional directors, or RDs.

“Robb’s ‘suggestions’ will expose NLRB employees to Covid-19, particularly in the many parts of the country that are reeling from record-breaking Covid-19 numbers,” NLRB Union President Burt Pearlstone said in a press statement Friday. “There is a tried and true method to hold safer elections and that is to conduct elections by mail ballot.”

The criticism comes amid a surge of confirmed coronavirus cases in southern and western states that has hindered the nation’s efforts to return to pre-pandemic normalcy. Newly reported cases on July 9 hit a single-day high of 63,206, according to data compiled by Bloomberg News.

Edwin Egee, a spokesman for the board, declined to comment on the NLRBU’s demand for rescission. The in-house union’s pushback potentially complicates the board’s efforts to employ the in-person election protocols, which also have come under fire from organized labor outside the agency.

Upon their release, Robb said the guidelines were the product of a collaborative effort involving senior officers in the agency’s regional offices and operations division, its Covid-19 task force, and the internal staffers union.

The effort was undertaken to “determine how best to conduct manual elections safely and efficiently during” the unprecedented Covid-19 pandemic, according to the memo.

During the emergence of the pandemic, the agency suspended all union elections for roughly a two-week period, with the board’s leadership panel saying they didn’t believe it was possible to conduct effective elections at that time.

Stakeholders Question Process

But Pearlstone told Bloomberg Law July 8 that agency employees didn’t participate in a meaningful sense in developing the protocols. The NLRBU represents hundreds of agency employees in regional offices across the country.

Leadership refused all the significant proposals the union put forth, said Pearlstone, Eric Brooks, and Renee Medved—the co-chairs of the NLRBU’s health and safety committee. That included a call for a requirement—instead of a suggestion—that voters and other participants wear masks when voting, in conformance with the Centers for Disease Control and Prevention’s guidelines for slowing the spread of the virus.

“The GC memo speaks for itself. Masks recommended,” Egee said when asked about the disagreement with staff over a mask requirement. “The protocols were drafted collaboratively with numerous individuals across the agency submitting suggestions,” Egee added. “All suggestions were taken seriously and incorporated where appropriate.”

Several major unions and business organizations—the usual stakeholders in NLRB policy and union elections—also told Bloomberg Law this week that they weren’t consulted in the process.

The board confirmed in a July 10 email to Bloomberg Law that the protocols were developed without participation from any outside unions or business organizations.

Although Robb’s memo doesn’t actually mandate in-person elections or even adherence to its protocols, the early internal and external opposition—Democrats in Congress also have introduced a bill to set up an electronic voting system for union elections—could hamper moves by board leadership in Washington to pivot back to manual elections.

There “was no consultation with labor on these ‘protocols,’” Sarah Hager, a media representative with the American Federation of Teachers, told Bloomberg Law in a July 8 e-mail.

Beth Allen, communications director at the Communications Workers of America, and Yona Rozen, associate general counsel at the AFL-CIO, echoed the AFT’s statement, saying they also had no involvement in developing the protocols. The American Federation of Labor and Congress of Industrial Organizations is the largest labor organization in the country, representing over 12 million unionized workers.

Indirect Input?

Glenn Spencer, senior vice president of the Employment Policy Division at the U.S. Chamber of Commerce, told Bloomberg Law that the organization wasn’t provided an opportunity to weigh in, but that the chamber supports the NLRB’s moves.

“The Board is to be commended for seeking to return to safely-conducted in-person elections,” Spencer said. “While mail-in ballots are appropriate in limited circumstances, it is not a preferred means of conducting an election, which should be done using secret ballots to protect worker privacy wherever possible.”

Patrick Semmens, vice president of the National Right to Work Legal Defense Foundation, said unions actually have provided input, at least indirectly. “The fact is, in probably hundreds of election cases over the past few months, union lawyers have filed briefs nearly every time with the NLRB seeking mail ballots and laying out what they see as the pitfalls of in-person voting,” Semmens said.

NRTW is a conservative group that often backs workers looking to decertify existing unions, and brings legal challenges against pro-union policies.

Semmens added that NRTW Foundation attorneys have “had the opportunity to file briefs on the question of in-person vs. mail ballots as well, alongside the union lawyers’ briefs.”

While developing the protocols, the NLRB also rejected a suggestion from its staffers that elections be held outdoors, if feasible, Pearlstone said. He added that the agency has conducted union elections outdoors in the past.

“The Board does not control the weather,” Egee said when asked about the agency’s rejection of that particular proposal.

Future Impact

The disagreements between stakeholders—management and unions; NLRB staffers and leadership—complicate the agency’s decisions on how to conduct union elections in the future.

Rozen, of the AFL-CIO, told Bloomberg Law that she doesn’t believe Robb’s memo will be particularly impactful. The protocols seem “like a big nothing since it is just suggestions and makes clear the RDs have discretion to decide whether to hold manual or mail ballot elections on a case by case basis,” Rozen said.

She added that the “big question will be whether there is a movement towards more in-person elections now,” and that she’s gotten a sense that “regional personnel are very hesitant to do so.”

Egee noted that the board stated clearly within the memo itself “that nothing in the protocols changes the practice whereby Regional Directors make decisions on a case-by-case” basis regarding “when, how, and in what manner to conduct elections.”

“We have already held multiple in-person manual elections safely since the beginning of the pandemic,” he added.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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