A group of 20 prominent labor attorneys on April 20 submitted a letter to the National Labor Relations Board (NLRB) formally requesting that the Board suspend representation and decertification elections for workplaces in essential industries during the COVID-19 pandemic. Citing policy and practical considerations, the letter seeks the postponement until the various emergency orders now in place are lifted.
The letter comes after a kerfuffle between the NLRB and House Democrats over the issue of representation elections. Just as the COVID-19 situation became more acute and workplaces closed, the NLRB on March 19 announced that it would suspend representation elections through April 3 “due to the extraordinary circumstances related to the…pandemic.” The announcement stated that its action was “necessary to ensure the health and safety of our employees, as well as those members of the public who are involved in the election process.”
Given the crisis, the Board’s announcement seemed quite reasonable to most observers, but that did not stop the complaints from certain quarters. A March 31 letter called on the Board to reverse its decision, despite the fact that its postponement was scheduled to end a few days later. The letter implied that the Board’s stated window for the postponement might be extended indefinitely and faulted the Board for its “blanket decision,” which prevented its Regional Directors from proceeding with elections using mail ballots. The letter urged the Board to allow elections “to take place as soon as practicable if…the elections can safely be done, especially when considering the possibility of mail ballots.”
Whether or not because of the letter, the NLRB announced one day later that it would resume representation elections as planned because “the General Counsel now has advised that appropriate measures are available to permit elections to resume in a safe and effective manner, which will be determined by Regional Directors.” What the announcement did not mention was that many businesses in the country are not open unless they are deemed essential, nor did it say that the Board would allow the Regional Directors to use more mail ballots.
The labor attorneys who issued their April 20 letter noted that given the COVID-19 health crisis, union representatives and employer representatives would have a harder time discussing unionization with employees in workplaces, which “will inevitably lead to an increase in home visits for such purposes.” Likewise, the situation may force the NLRB to conduct “virtual” hearings that would present “insurmountable practical problems and issues.”
While health considerations certainly are paramount, the push to hold representation elections outside of the normal process presents other important issues. Central among them is the expanded use of mail ballots, which deprive employees of their right to vote in-person in a secret ballot election. Should there be an increase in home visits from union officials, it would open the door for the type of intimidation and pressure tactics for which organized labor is well-known.
With the COVID-19 situation keeping mostly just essential businesses open, one wonders if having an NLRB election is similarly essential, but perhaps that isn’t the point. As the attorneys observe, there are numerous policy and practical problems with the NLRB’s push to permit elections using an abnormal process, such as electronic voting, not to mention the risk inherent in using mail ballots and the precedent it sets. These are valid concerns, which one hopes the Board will consider.
About the authors
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
