By Braden Campbell

Law360 (July 15, 2020, 10:43 PM EDT) -- The National Labor Relations Board prosecutor's memo last week setting out guidelines for safely staging union elections during the COVID-19 pandemic signals that in-person voting is back in play, but it's not the end of mail-ballot elections, experts say.

General counsel Peter Robb's July 6 letter to the NLRB regional officials who decide when and how elections should be held paves the way for the return of in-person voting in some instances, but it ultimately preserves these officials' discretion over the election format, which they've so far exercised to order voting by mail in nearly all cases during the pandemic.

"I'm not reading this as a direction to return to in-person ballots as the norm," said James Hays, who co-leads management-side firm Sheppard Mullin Richter & Hampton LLP's traditional labor law team. "My guess is the regional directors are going to continue to look at what's going on in [their] jurisdiction … and they're going to act accordingly."

The National Labor Relations Act empowers workers to form unions and negotiate job terms and conditions with their employers. In normal circumstances, workers vote on whether to unionize via physical elections overseen by NLRB agents. But mail balloting has become the norm during a pandemic that has made close-quarters contact risky.

Board leaders paused union elections entirely when the pandemic hit in March before resuming votes in early April, leaving it up to the directors of the agency's regional offices to decide on a case-by-case basis how best to proceed. 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. The agency has overseen a handful of in-person votes by agreement of the parties, however.

Robb's memo lays out dozens of suggested protocols for safely conducting in-person, or "manual," elections during the pandemic. He recommends that board agents alter typical election mechanics to limit risks, including distributing ballots at distance, using easily cleaned cardboard voting booths and spacing booths more than 6 feet apart.

The memo also makes employers certify between 24 and 48 hours in advance that the polling area is clean and disclose the extent of workers' exposure to the coronavirus. If the employer doesn't make these reports, the regional director can cancel the election, Robb said. And the memo sets out several mandatory physical precautions, including that elections be conducted in spacious areas that allow for social distancing, that employers provide disposable pencils for marking ballots, and that they erect plexiglass barriers to separate election overseers and voters from each other.

Robb made clear that regional directors retain discretion to decide whether in-person elections are safe. Still, the memo signals that the GC "wants to try to get representation elections back on schedule," said Bryan Cave Leighton Paisner LLP senior counsel Jerry Hunter, who advises businesses on labor relations. The former NLRB general counsel said he expects most regional directors will follow the GC's advice and call for manual elections when safe.

"Without these guidelines, you would have the board employees conducting the elections basically making it up as they went along," Hunter said. "This gives them some guidance on what they should do."

However, regional directors may still opt for mail-ballot elections in many cases, said Larry Cary, a founding partner with Manhattan-based union-side firm Cary Kane LLP.

Robb's recommendations may sufficiently limit the dangers of holding manual elections in New York and surrounding states that have suppressed the virus and resumed some in-person business, Cary said. But gathering to vote may still be prohibitively risky in the southern and western U.S., where the virus is surging, he said.

And many employers won't be able to meet the safety parameters the board set out, Cary said.

"I've done a lot of elections in my lifetime, and there are lots of employers' premises that would not accommodate what these rules require," said Cary, who recalled holding votes in spaces as small as 5 feet by 8 feet. Such a space would not let voters keep their distance from board agents and other voters, or allow workers to queue while they wait to cast their ballots, he said.

Cary also voiced concern that employers could exploit gray areas in the memo to thwart union drives, such as the provision that allows elections to be canceled when employers don't file their certifications before the vote. Because the memo does not trigger mail balloting when an employer botches this step, employers could put off votes they expect to lose, he said.

The memo has also drawn fire from the National Labor Relations Board Union, which represents the agency field officials who administer elections. The union last week accused Robb's office of abandoning negotiations over how to safely conduct manual elections and publicly demanded he rescind the guidance.

"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," NLRBU President Burt Pearlstone said.

Ultimately, Robb's memo does not force regional directors to hold elections or even follow his recommendations. But it could lead the agency's eponymous board to take a binding stance.

Though Robb oversees most operations of the regional offices, notably their prosecution of labor law violations, the board has the final say on representation disputes. If a union or employer challenges a regional director's election order, the case goes to the board to resolve. Any rules the board sets out would then bind regional directors going forward.

Robb addresses this division of power in his memo, writing that the board "has the ultimate authority to make decisions on when, how and in what manner elections are conducted." But it's likely he and the board are on the same page, Sheppard Mullin's Hays said.

"The board typically gives quite a bit of deference to the guidance or the decisions that are put out from the GC's office," he said. That Robb made his recommendations after discussions with the regional directors, an internal COVID-19 task force and the agency's union — at least according to the memo — bolsters his case, Hays added.

Until the board rules, Robb's memo gives parties more ammo to push for in-person votes, Hays said.

"There's a reason why that was always the norm, because I think everyone recognizes that it's the best way to do it," he said.

However, Hays said the memo may not have "a significant impact to drive back" to that norm.

"Time is going to tell, obviously," he said.

--Editing by Aaron Pelc and Michael Watanabe.

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