Seyfarth Synopsis: As the COVID-19 virus continues to surge throughout parts of the United States, the General Counsel's office of the NLRB has issued certain "suggested" safety protocols to allow Regions to conduct manual elections in this unprecedented environment. The suggested safety protocols are likely to receive a high level of deference from the Regions.
On July 6, 2020, after discussions with Regional Directors, the NLRB Division of Operations-Management, NLRB COVID-19 Task Force Members, and the NLRB's internal union, the Office of the General Counsel published suggested protocols that outline how to safely and efficiently conduct manual elections during the COVID-19 pandemic.
GC Memorandum 20-10 made perfectly clear that Regional Directors still have the authority to make decisions about how, when, and in what manner elections are to be conducted and that Regional Directors will continue to do so on a case-by-case basis considering numerous variables, including, but not limited to, the safety of Board Agents and participants when conducting the election, the size of the proposed bargaining unit, the location of the election, the staff required to operate the election, and the status of pandemic outbreak in the election locality.
Election Arrangements to Be Included in Election Agreement or Direction of Election
- The Employer must provide:
- Plexiglass barriers of sufficient size to separate observers, the Board Agent, and voters from each other;
- Masks, hand sanitizer, gloves, and wipes for observers;
- Markings on the floors to remind/reinforce social distancing;
- Disposable pencils without erasers for each voter;
- Glue sticks or tape to seal challenge ballot envelopes.
- The NLRB must provide a mask, face shield, hand sanitizer, gloves, disinfectant wipes, and disposable clothes (if requested) to the Board Agent conducting the election.
- The election location must:
- Contain spacious polling areas sufficient to accommodate social distancing to ensure proper separation of observers, Board Agents, and voters;
- Have a separate entrance and exit for voters in the polling area;
- Have separate tables spaced six-feet apart for the Board Agent, observers, ballot booth, and ballot box.
- All voters, observers, party representatives, and other participants should wear CDC-conforming masks in all phases of the election.
Election Mechanics
- Polling times and procedures for releasing voters must be sufficient to accommodate social distancing and cleaning requirements. Tables and voting booths must maintain proper social distancing.
- Any Election Agreement or Direction of Election should specify the maximum number of representatives who can attend the pre-election conference, whether there will be a voter release schedule, the number of voter lists, and the number of observers per party (which should be limited to one where feasible).
- Only one voter is allowed to approach voter booth at a time. After clearance by the observer, the Board Agent will place an individual ballot on the table for the voter.
Certifications Required
- Each party or party representative
participating in the pre-election conference, serving as an
observer, or participating in the ballot count must certify in
writing that within the preceding 14 days:
- They have not tested positive for COVID-19 (or have been directed by a medical professional to proceed as if they have tested positive for COVID-19);
- Are not awaiting results of a COVID-19 test;
- Have not had any direct contact with anyone who has tested positive for COVID-19 in the preceding 14 days.
* Individuals who do not provide such certification will not be permitted to be physically present at the pre-election conference, to serve as an observer, or be present at the ballot count*
**Individuals who are not a party, party representative, or an observer must stay at least 15 feet away from the Board Agent at the pre-election conference or ballot count**
- 24-48 hours prior to the election,
the Employer must certify in writing:
- That the polling area has been cleaned in accordance with CDC hygiene and safety standards.
- How many individuals present at the
facility within the preceding 14 days have:
- Tested positive for COVID-19 (or have been directed by a medical professional to proceed as if they have tested positive for COVID-19);
- Are awaiting results of a COVID-19 test;
- Are exhibiting symptoms of COVID-19;
- Had any direct contact with anyone who has tested positive for COVID-19 in the preceding 14 days.
* The Regional Director will consider whether the election should be held as scheduled if the appropriate certification is provided*
**If the appropriate certification is not timely provided the Regional Director has the discretion to cancel the election**
- All parties must agree in writing to
notify the Regional Director within 14 days after the election if
any individuals who were present at the facility on the day of the
election have:
- Tested positive for COVID-19 (or have been directed by a medical professional to proceed as if they have tested positive for COVID-19);
- Are awaiting results of a COVID-19 test;
- Are exhibiting symptoms of COVID-19;
- Had any direct contact with anyone who has tested positive for COVID-19 in the preceding 14 days.
Takeaway
This latest GC memorandum suggests that if certain safety and hygiene protocols are met, Regions may begin to return to the more regular method of conducting in-person manual elections. Although the protocols are "suggestions," the expectation is for Regions to adopt some if not all of the protocols for in-person manual elections on a case-by-case basis. If any of the suggested safety protocols are challenged in the future, the NLRB will ultimately have to decide the matter.
Originally published July 10, 2020.
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