Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
After months of permitting almost exclusively mail ballot elections due to concerns surrounding the spread of COVID-19, the National Labor Relations Board released “suggested” protocols on July 6, 2020 for holding manual elections. These protocols will facilitate a return to in-person secret ballot voting, which is generally considered far superior to mail ballot voting both in terms of maximizing employee participation and in terms of ensuring employee free choice. Given the seriousness of the COVID-19 pandemic, the protocols are understandably stringent, and will require significant effort on the part of employers that wish to take advantage of them. Nevertheless, the protocols represent a welcome development for employers that wish to ensure free and fair representation elections.
The general counsel issued Memorandum GC 20-10 containing the suggested protocols and was careful to note that the regional directors have the ultimate authority to decide when, how, and in what manner elections are conducted on a case-by-case basis. The suggested protocols cover the following topics:
The protocols discuss the actual mechanics of the election, putting in place certain requirements to ensure proper social distancing:
- Procedures for polling times and releasing voters must be sufficient to accommodate social distancing and cleaning requirements.
- Any election agreement or decision and direction of election (DDE) should specify:
- The maximum number of representatives for each party who can attend the pre-election conference and the ballot count;
- Whether there will be a voter release schedule;
- The number of voter lists; and
- The number of observers per party during the election, which should be limited to one observer whenever feasible.
- Only one voter will approach the observers’ table(s) and election booth(s) at a time.
- Voting will include use of newer cardboard booths, which are easier to clean, whenever possible.
Between 48 and 24 hours before the election, the employer must make several certifications regarding the cleanliness of the voting area and whether any individuals who have been present in the facility have tested positive for COVID-19 and/or have experienced symptoms. A full list of the certifications is found in Attachment A to Memorandum GC 20-10.
In addition, each party, party representative, and observer participating in person at the election must also make several certifications regarding, among other things, whether they have tested positive for COVID-19 and/or have had direct contact with anyone who has tested positive. A full list of the certifications is found in Attachment B to Memorandum GC 20-10.
Notifications After Election
All parties must agree in writing to notify the regional director within 14 days after the day of the election if any individual who was present in the facility on the day of the election: has tested positive for COVID-19 within the prior 14 days; is awaiting results of a COVID-19 test; is exhibiting symptoms of COVID-19; or has had direct contact with anyone in the previous 14 days who has tested positive for COVID-19.
Election Arrangements to be Included in Election Agreement
Memorandum GC 20-10 specifies various arrangements to be made for the election, which must be included in the election agreement and DDE, including but not limited to the following:
- Spacious polling area, sufficient to accommodate six-foot distancing, which should be marked on the floor with tape.
- Separate entrance and exit for voters.
- Separate tables spaced six feet apart so Board agent, observers, ballot booth and ballot box are at least six feet apart.
- The employer will provide sufficient disposable pencils without erasers for each voter to mark their ballot.
- The employer will provide Plexiglas barriers of sufficient size to protect the observers and Board agent, as well as masks, hand sanitizer, gloves, and wipes.
- An inspection of the polling area will take place by video conference at least 24 hours prior to the election so that the Board agent and parties can view the polling area.
- All voters, observers, party representatives, and other participants should wear CDC-conforming masks in all phases of the election.
While these requirements must be included in the election agreement and DDE, they do not have to be included in the notice of election, which must simply affirm that appropriate safety measures will be enforced prior to and during the election and subsequent count.
Elections Requiring Travel
Finally, Memorandum GC 20-10 covers various actions the NLRB and Board agents must take in cases where the election requires that the Board agents travel.
These new suggested protocols for conducting manual elections will require careful consideration and additional steps to be taken by the employer prior to the election – if the employer wants to avoid a mail ballot election. Nevertheless, the burden of complying with these requirements is undoubtedly outweighed by the benefits of being able to conduct manual elections again. Indeed, as union activity continues to increase in the uncertain times surrounding the COVID-19 pandemic, the NLRB once again allowing manual elections is a positive development for employers.