Union Elections Suspended Due to Coronavirus

Allen Smith, J.D. By Allen Smith, J.D. March 24, 2020
someone casting a paper ballot

​The National Labor Relations Board (NLRB) suspended March 19 union elections through April 3 in response to the coronavirus pandemic.

The board said it took the action to ensure the health and safety of its employees and members of the public involved in the election process. In addition, given the closure of several regional NLRB offices and the limited operations and significant telework at others, the board concluded it could not effectively conduct elections now.

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Coronavirus and COVID-19

Employer Attorneys Applaud the Move

"I think it's smart," said Phillip Wilson, president and general counsel of Labor Relations Institute in Broken Arrow, Okla. The U.S. Centers for Disease Control and Prevention is discouraging mass gatherings due to the pandemic. When union elections are held, people often congregate to vote in a closed space. "It seems like the safest course to take a pause," Wilson said.

At a typical union election, an NLRB agent is present, and there could be one to three voting booths, noted David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis. Each side has an observer as names of employees are checked off the voting list. In a large bargaining unit, there could be a long line of people waiting to vote, potentially putting voters at risk.

It "makes all the sense in the world" to delay union elections, Pryzbylski said. If there's a live vote, there's no way to mitigate the risk of transmitting the coronavirus, he noted. The virus stays on surfaces, and someone might be infected in a voting booth.

Employers have typically opposed electronic voting in favor of in-person, secret-ballot elections, where employees are assured their vote is private, noted Randel Johnson, an attorney with Seyfarth in Washington, D.C.

Large Meetings Could Jeopardize Health

Before elections, unions may call large gatherings. Up to 24 hours before the polls open, employers can hold "captive-audience meetings" with employees to express their views on unionization. Such meetings could put the health and safety of employees in jeopardy during the pandemic, Pryzbylski said.

Wilson said any union elections in the health care environment could be distracting. "It needs to be all hands on deck for patient safety and community safety" for now, he said, and he hoped that the board would pause for a few weeks and then consider extending the suspension if necessary.

But Johnson said unions might be disappointed that elections have been suspended. When unions get the NLRB to schedule elections, it's usually because the unions think they will win them, he said.

"I think what everyone should focus on from the employer standpoint is to take care of people and team," Wilson said. This is a time of much anxiety at work. "A lot have been laid off or are concerned they will be laid off," he said. "Make sure people feel as safe as possible."

Union elections have been postponed in the past because of snow emergencies, Wilson said.

And, Pryzbylski recalled, elections have been suspended during at least one federal government shutdown. But, he said, in the last week, "I've seen more drastic changes than I've seen in my lifetime."

The NLRB said that it will "continue to monitor this evolving situation and determine whether additional extension of this suspension may be necessary."

Join the Society for Human Resource Management and the U.S. Department of Labor (DOL) for a Twitter chat hosted by @ePolicyWorks on March 25 at 2 p.m., using the hashtag #EPWChat to provide input as the DOL develops guidance on the Families First Coronavirus Response Act. Or participate online at https://ffcra.ideascale.com from March 23 through March 29.



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