By Anne Cullen

Law360 (July 7, 2020, 11:42 AM EDT) -- The National Labor Relations Board's top attorney issued a blueprint Tuesday morning for safely staging in-person union elections during the coronavirus pandemic, suggesting employers complete cleanliness certifications for polling areas, provide voters with disposable pencils and use cardboard voting booths.

The outline, compiled by NLRB general counsel Peter Robb, doesn't set official agency policy — regional directors get to decide whether to adopt the recommendations — but it indicates a return to in-person voting months after the board had all but abandoned the practice due to safety concerns amid the coronavirus pandemic.

Included in Tuesday's guidance are many of the established coronavirus safety precautions — six-foot distances between individuals; Plexiglas barriers; the use of masks, hand sanitizer, gloves and wipes — as well as some voting specific recommendations.

Robb proposed using newer cardboard voting booths rather than the older aluminum ones, as he said the former are easier to keep clean. Employers should provide voters with disposable pencils to fill out their ticket and the parties should carry out a video inspection of the polling area ahead of time to make sure it's suitable, Robb said. 

According to his guide, an employer should also have to certify that the polling area is clean and attest to the individuals who have been in the facility in the last two weeks that have either tested positive for COVID-19, are awaiting results of the test, are exhibiting symptoms of the disease or have had contact with someone who is infected.

"If the above certifications are not timely provided, the regional director or designee (i.e., manager or supervisory employee) has the discretion to cancel the election," he said.

Robb recommends a similar certification be filed covering the election participants' potential interaction with COVID-19. 

Tuesday's blueprint leans back into in-person voting after the board largely pivoted to mail-in ballots over the last few months. The board froze elections in mid-March and rebooted them the next month, after which it left it up to the heads of the agency's regional offices to decide whether to stage votes in person or by mail.

Almost all regional directors opted to have mail-in votes — usually at the urging of the petitioning union and over objections by the employer — but Robb noted during a webinar last week that the agency had seen a handful of in-person votes by agreement of both sides.

Robb said the procedures in play during those elections had been instructive and planned to model his guidance off of their strategies. 

The U.S. Department of Labor also chimed this week regarding union activity during the pandemic, publishing a special advisory on Monday encouraging labor unions to stay operational despite coronavirus obstacles to comply with federal labor laws.

Among the DOL tips, it suggested adjusting union rules and guidance to allow online methods for officer nominations and membership meetings, and creating an alternate vote counting procedure when the standard method isn't safe or practicable.

The DOL administers and enforces most federal employment laws — including those covering wages and hours of work, safety and health standards, employee health and retirement benefits, and federal contracts — while the NLRB specializes in law covering the relations between unions and employers.

The NLRB said it had no comment beyond Robb's memorandum. 

--Additional reporting by Danielle Nichole Smith, Braden Campbell, and Vin Gurrieri. Editing by Katherine Rautenberg.

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