Despite New GC Guidelines, Mail Ballot Elections The Norm

Jackson Lewis P.C.
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The early evidence is in, and the results are clear. National Labor Relations Board (NLRB) Regional Directors decidedly have not embraced the General Counsel’s (GC) guidelines on conducting manual ballot (in-person) elections during the COVID-19 pandemic. Memorandum GC 20-10 “Suggested Manual Election Protocols” (July 6, 2020).

According to the NLRB’s website, as of July 24, 22 “Decisions and Directions of Election” (DDE) had been issued since July 6, 2020, the date on which the GC’s memo was issued. [There actually appears to be only 21. A hyperlink for the Garda CL Atlantic, Inc. decision takes the reader/researcher to a DDE associated with a different employer – Russell Reid Waste Hauling; the Russell Reid Waste Hauling DDE has a separate entry in the list of regional election decisions.]

Not all of the remaining DDEs listed as of the afternoon of July 24 involved disputes over whether a mail ballot or manual ballot election should take place; however, most did. In almost all of those, the employer cited the GC’s Memorandum in support of the employer’s position that a manual ballot election should take place. Nevertheless, the Regional Directors unanimously directed mail ballot elections. This was the case even where employers committed to implementing all of the General Counsel’s suggested procedures. Russell Reid Waste Hauling & Disposal Service Co., Inc., No. 22-RC-261504 (July 22, 2020). At least one RD even criticized the Memorandum, noting that it “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.” Transdev Services, Inc., 07-RD-255421 and 07-RC-261835 (July 22, 2020). The NLRB employees union has vigorously objected to the holding of manual ballot elections during the COVID-19 pandemic.

The credibility of Memorandum GC 20-10 also was not boosted by the NLRB’s unpublished decision in Brink’s Global Services, Inc., 29-RC-260969 (July 14, 2020). In that case, the Regional Director directed a mail ballot election. The employer filed a request for review (appeal) of that decision, which the NLRB denied. The NLRB’s less-than-ringing endorsement of the Memorandum held:

“In finding that a mail-ballot election is warranted in this case, we rely on the extraordinary circumstances resulting from the Covid-19 pandemic. The Board will continue to consider whether manual elections should be directed based on the circumstances then prevailing in the region charged with conducting the election, including the applicability to such a determination of the suggested protocols set forth in GC Memorandum 20-10. Under the circumstances present in this case, however, we are satisfied that the Regional Director did not abuse her discretion in ordering a mail-ballot election here.” (Emphasis added.)

It remains to be seen whether Memorandum GC 20-10 affects any Regional Director DDEs during the COVID-19 pandemic.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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