Stay at Home, Except to Vote: NLRB Issues Notice Announcing Resumption of Representation Elections, Elevating the NLRA Above Employee Safety Concerns

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Seyfarth Synopsis: At 3:26 p.m. on April 1, 2020, the National Labor Relations Board (“NLRB” or “Board”) announced (see the NLRB’s release here ) that it would not extend its temporary suspension of NLRB-conducted elections, which was set to expire on April 3, 2020.  Instead, the processing of NLRB-conducted elections will resume beginning Monday, April 6th. No one knows exactly what will occur or how that might be accomplished, but the reaction to the NLRB’s pronouncement will likely be deafening.

The NLRB’s pronouncement surprised many, especially in light of the following non-exhaustive list:

1. Nearly the entire country is under stay-at-home orders and non-essential employees are being asked to shelter in place;
2. COVID-19 is predicted to wreck its worst havoc between now and May 1, 2020;
3. Death rates from COVID-19 are predicted to spike over the next two weeks;
4. Tens of millions of Americans have been laid off or furloughed;
5. Virtually every state is adjourning Presidential primary elections for months;
6. Most courts across America are closed;
7. The NLRB itself has adjourned or postponed virtually all of its initiatives, including the rollout of the new election rules;
8. Holding representation elections at this time promises to disenfranchise voters everywhere and to assure minimal voter turnout in every election; and
9. Even if an election occurs, employers and unions may not meet in person to bargain a first contract.  Parties bargain over critical issues in person for a reason, particularly with first contracts.

Nonetheless, the NLRB appears set to march forward with representation elections. The Board’s notice states that “appropriate measures are available to permit elections to resume in a safe and effective manner,” yet its release did not outline any steps it will undertake to ensure the safety of members of the public involved in elections, let alone how it plans to protect its own employees. In the current environment, it is difficult to imagine what measures would be sufficient to protect voters, Board employees, employer and union representatives, or others sharing the same work or voting location.

Setting aside these paramount safety concerns, holding elections at this time threatens to undermine the fairness of the process.  Employees who are working from home due to COVID-19 concerns are unlikely to show up to an in-person vote, regardless of the safety precautions offered.  Many employees, especially those performing essential services, have temporarily relocated and thus may no longer be at their regular address that would be indicated on a voting list. Neither unions nor employers can lawfully hold any sort of campaign or educational meeting in most jurisdictions given social distancing guidelines. In jurisdictions where group meetings can occur, attending a meeting will enhance risk of COVID-19 exposure.  Given all of these concerns, it does not seem feasible that election turnout would be more than de minimus, potentially disenfranchising large numbers of eligible voters. 

There are additional considerations.  Employers will have an extraordinarily difficult time generating a voter list in compliance with existing NLRB election rules. Employers nationwide are making decisions by the hour on whether to terminate, layoff, or furlough employees. As noted previously, many Americans have relocated from their residences to other locations, temporary housing, or with family, and are doing so without updating their personal contact information.  Further, the primary means of ensuring voter turnout and notification—manually posting notice— will be utterly meaningless if employees are not reporting to work.  The NLRB’s decision makes it likely that elections will take place where voters are deprived of adequate notice and information.

Unions have suggested that mail ballots resolve all potential issues. It is debatable, however, whether anyone should be opening mail ballots sent in by employees (e.g., essential health care workers) who have been exposed to COVID-19, particularly given CDC guidelines that the virus lives on some surfaces for up to 72 hours.  Counting mail-in ballots poses a serious risk of exposure to all who attend a vote count. It raises the question of whether holding a tally of ballots with a group of unrelated individuals (Board Agents, observers, company and union personnel, and legal representatives) is even permitted under applicable state and local stay-at-home orders. Unions will likely argue that ballots may be impounded and opened later, but delaying the count demonstrates that it was unnecessary to move forward with the election in the first place. Indeed, if the argument is that employees need representation now, a vote-and-impound solution fails to address that concern.  Ultimately, whether employees have an election today or at a later point when it is safer to do so, they still have the right to engage in protected, concerted activity at all times — with or without a certified union.

Beyond unions and employers, the Board must consider its own employees. It is hard to believe that those Board employees working remotely will be called in to process mail ballots or to attend in-person elections.  The very thought of proceeding in such a manner seems to ignore the realities of the ongoing crisis. Indeed, when citizens are struggling for access to food, basic necessities, health care, and first responders, it does not seem appropriate to prioritize voting in a representation election over so many other things that rightfully have been placed on hold. 

If the NLRB continues on this course, employers will need to use creative strategies to communicate with employees on election-related issues, including the use of technology and social media. In addition, employers and unions will have to prepare to litigate new issues before elections proceed and to challenge the results thereafter. There will be extensive debate about who should or should not be on an eligible voter list, whether the eligible classifications or work locations still even exist, and many other questions. Given these concerns and potential challenges, it is extremely likely that pre- and post-election hearings will be required and there is no effective means to hold them or to satisfy a party’s due process rights.  In sum, there is simply no way to effectively move forward with representation elections during this crisis.  For many years, the NLRB has worked to protect the voting process and to ensure that all involved would have the opportunity to cast a vote freely in an atmosphere that maintains laboratory conditions.  Surely, these objectives cannot be abandoned in this extraordinary time. 

As always, we are here to help. Contact your Seyfarth attorney if you need assistance.