New Guidance On In-Person Union Elections Coming Soon

By Braden Campbell
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Law360 (June 30, 2020, 7:03 PM EDT) -- The National Labor Relations Board's top attorney said Tuesday's he's readying new guidance for safely staging union elections during the pandemic, signaling the possible return of in-person voting months after the board largely pivoted to mail-ballot elections.

NLRB general counsel Peter Robb told listeners to a National Employment Law Council webinar that he's "in the process of finalizing my suggested protocols" for employers and unions to follow before the regional directors who process election petitions will call for in-person votes. The guidance should be posted to the board's website Thursday or Friday, Robb said.

He said the guidance will reflect "what I think the board might accept as sufficient safety measures to run manual elections" but will not set official agency policy, which the agency's titular board generally sets through case law.

"Ultimately, we'll see what the board says" in a dispute arising from the guidance, Robb said.

Robb, whose office prosecutes labor violations and oversees union elections, was part of a panel NELC convened to discuss NLRB issues during the COVID-19 crisis.

The coronavirus pandemic has upended labor relations, including by prompting the agency to all but abandon in-person union votes due to safety concerns. The board froze elections in mid-March and resumed them in early April, leaving it up to the heads of the agency's regional offices to decide whether to stage votes in person or by mail.

The regional directors have opted to hold almost all votes by mail, usually at the urging of the petitioning union and over objections by the employer. But the agency has overseen four in-person votes by agreement of the parties, Robb said. One of these agreements is instructive, he added.

Last month, workers for food manufacturer Hearthside Food Solutions LLC in Byhalia, Mississippi, voted in person to organize with the United Food and Commercial Workers union. Robb said the parties agreed to implement several safety measures, including erecting plexiglass barriers to separate workers, board employees and election overseers; using disposable pens and pencils; marking off spaces at 10-foot intervals; providing masks and gloves; and separating the entrance and exit so workers would not pass each other.

The impending guidance "generally follows" the protocols observed in the Hearthside election, plus "maybe a couple of others," Robb said Tuesday.

And the board is set to resume processing labor disputes in its administrative courts, albeit over video, Robb said.

The agency's regional offices have held remote hearings in so-called representation cases, in which unions and employers spar over ground rules for elections. But the agency held off on processing "unfair labor practice" cases while it bolstered its courts' videoconferencing capacity, Robb said. That effort is nearly complete.

"We've moved to videoconferencing very quickly, we've trained all our people in the field, and we are preparing for July to start the videoconference unfair labor practice hearings," Robb said.

Robb also said employers may have significant leeway to set COVID-19 safety rules without input from their workers' unions under a recent precedent-shifting board ruling. The decision, known as MV Transportation, allows employers to make unilateral decisions about job conditions "covered" by contract provisions ceding certain terms to the company.

"There may be things in your labor contracts that you didn't really think would apply to this kind of situation," Robb said. For example, an employer could argue that a provision letting it set uniform standards allows it to set rules for mask use, he said.

Univision Communications associate general counsel Angel Ortiz and Mt. Vernon City, New York, School District general counsel Cliff Christophe also sat on the panel, which Bryan Cave Leighton Paisner LLP labor attorney Jerry Hunter moderated.

--Additional reporting by Vin Gurrieri and Danielle Nichole Smith. Editing by Jack Karp.

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