Lawmakers Seek Relief Funds For Electronic Union Elections

April 21, 2020 by Dan McCue
Workers assemble Apple products at an Apple manufacturing plant in Austin, Texas. (AP Photo/ Evan Vucci, File)

WASHINGTON – A bipartisan coalition of lawmakers, led by Reps. Andy Levin, D-Mich., and Brian Fitzpatrick, R-Penn., is pressing for the inclusion of funding and a directive in the next coronavirus stimulus bill to enable the National Labor Relations Board to hold union elections electronically.

Last month, the NLRB temporarily suspended all union elections to ensure the safety of agency employees and members of the public in the face of the growing pandemic.

In a typical union election, an NLRB employee is present at the election site, monitoring the activity in the voting booths. At the same time, both labor and management have observers on hand as names of employees are checked off the voting list.

Depending on interest in the election, a long line of people can assemble as they wait to vote.

When the NLRB suspended the votes in mid-March, several of its regional offices had either been closed or were operating with limited staff.

John Ring, chairman of the board called the decision “difficult” but said it was the only option the NLRB had at the time. On April 1, after a review by the board’s general counsel, voting was allowed to resume.

But Levin and Fitzpatrick, along with 166 of their fellow representatives said in a letter to House Speaker Nancy Pelosi and Minority Leader Kevin McCarthy that simply resuming union voting isn’t enough.

“Workers’ rights to organize and bargain collectively with their employer are always important, but especially so when subjects like adequate health care benefits, access to protective equipment, and pandemic safety protocols, are – quite literally – matters of life and death,” the representatives wrote.

Though they disagreed with the NLRB’s decision to suspend all voting, they said they also understood why it did not use more modern voting techniques.

“The NLRB, via an appropriations rider, has been restricted from using funds to ‘issue any new administrative directive or regulation that would provide employees any means of voting through any electronic means in an election to determine a representative for the purposes of collective bargaining,'” they wrote.

“Given the current constraints on workers’ ability to exercise their rights during this pandemic, there is a legitimate need for accommodating the rights of workers and protecting NLRB employees during union representation elections. Put simply, the NLRB must have safe, efficient, and flexible processes at its disposal to administer the law it is charged with enforcing,” the representatives said.

A spokesman for the NLRB said since the request from the lawmakers is part of an appropriations bill, the agency had no position on it. “It’s a matter for Congress to decide,” he said.

But Jeffrey M. Hirsch, a labor law expert at the University of North Carolina School of Law, said of the request, “as with everything else, the devil is in the details of which there are none at this point.”

“One obviously needs to be concerned with ballot security, but other agencies have been able to do this successfully with union elections (not to mention states with political ones), so I’ve yet to see a good reason for the NLRB not to explore this option,” said Hirsch, the university’s Geneva Yeargan Rand Distinguished professor of law.

“It’s really not substantively different from mail-in ballots, which they’ve done,” he said. “Given all that, it’s hard to see any genuine reason for resisting even exploring electronic voting except that opponents want to limit voting generally. Obviously, this issue is especially pertinent now, but it’s also significant during normal times for employees who don’t work in a central location. So the opposition is not new, although there’s more attention to it currently.”

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