NLRB In-Person Voting Guide Doesn't Sway Regional Heads

By Anne Cullen
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Law360 (July 17, 2020, 9:29 PM EDT) -- National Labor Relations Board regional leaders are still shooting down requests to shift back into in-person union elections even when companies promise to follow the board prosecutor's new COVID-19 safety guideline, finding voting by mail is still the safest method.

In a series of decisions handed down Thursday and Friday, agency heads in Michigan, Pennsylvania and Minnesota mandated businesses in the health care, waste and laundry industries stick with the new norm of voting by mail. 

Although each company had agreed to implement safety protocols issued earlier this month by board general counsel Peter Robb, the regional directors made clear they didn't believe his suggestions are enough to alleviate the risks of returning to in-person union elections.

Robb's blueprint, dubbed GC 20-10, lays out dozens of suggestions for mitigating the risk of spreading the virus in a polling place, including distributing ballots at a distance, using easily cleaned cardboard voting booths and implementing a screening process to identify any election participants that may have come into contact with the disease.

But Detroit regional director Terry Morgan said in her decision Friday that Robb's suggestions don't include any mechanism for screening out presymptomatic or asymptomatic participants.

The Centers for Disease Control and Prevention estimates that half of COVID-19 transmission occurs when people are not yet showing symptoms, and 40% of people who contract the disease never show symptoms. These individuals "would neither be identified nor have sought testing," Morgan said, and would pass through the NLRB's recommended screening process even though they would be a risk.

She also said Robb's guideline lacks teeth.

"GC 20-10 does not provide an enforcement mechanism for any of its suggestions other than canceling an election, which would delay resolution of the question concerning representation," Morgan said. "A mail-ballot election avoids these concerns."

Morgan declined to let a nursing facility hold an in-person election even with Robb's protocols in place, echoing decisions published the day before, in which Robb's memo also failed to win over Philadelphia's Harold A. Maier and Minneapolis director Jennifer A. Hadsall.

"Where the employer is engaged in an industry that exposes its employees to daily contact with hospitals and other medical facilities, locations with a high risk for COVID-19 exposure, I would not direct a manual election even though the employer has agreed ... that it would follow those protocols," Maier told a medical waste company.

Hadsall similarly told a industrial laundry facility Thursday that she had "carefully considered" Robb's suggestions, but "the decision to conduct the election by mail ballot is within my discretion."

"In this case, as I have already described, we have not reached a safe enough juncture in the pandemic," she said. "I have determined that the most appropriate course of action at this time is to follow accepted guidance to limit in-person contact and travel within the state."

While Robb's guideline paves the way for the return of in-person voting, it preserves regional officials' discretion over the election format, which they've continued to exercise to order voting by mail in nearly all cases during the pandemic.

--Additional reporting by Braden Campbell. Editing by Gemma Horowitz.

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