The National Labor Relations Board announced yesterday that it would suspend all representation elections, including mail ballot elections, at least through and including April 3, 2020, in the wake of the COVID-19 pandemic. The Board’s announcement cites the health and safety of Board employees and workers and others involved in the election process.
Board elections typically require a Board agent and employee representatives of the affected employer to sit in close proximity to each other to monitor the process. There were 121 representation petitions filed during the month of March 2020, involving an average of 93 workers each. Twenty of them involved between 100 and 1600 workers. In manual ballot elections in the workplace, eligible voters tend to congregate in close quarters while waiting to enter the polling area. These factors and the need to share equipment in the process present significant challenges to efforts to reconcile Board practice with the current CDC guidelines.
Moreover, teleworking arrangements and closures of various NLRB Regional Offices, and increasingly stricter stay-at-home directions by state and local governments bolster the Board’s conclusion that it simply not “possible to effectively conduct elections at this time.”
The agency otherwise continues its enforcement efforts, subject to a number of operational adjustments. Three regional offices have been closed in Manhattan, Detroit and Chicago, and various Resident Offices have been temporarily shuttered. Otherwise, Regional Offices remain open to the public midday (10:00 a.m. to 2 p.m.). Information Officers remain available by telephone and E-filing of documentation remains the preferred method. The Board’s agents and attorneys remain active via teleworking, and have maintained communication regarding pending cases.
Furthermore, parties should be mindful of other practical adjustments implicated by the current situation. For example, the Board may seek to extend notice-posting remedies for employers who have halted operations outright or furloughed large segments of the workforce. Future make-whole remedies may similarly require adjustment depending on schedule changes, any supplemental support payments or other similar circumstances. Employers with pending or threatened matters are advised to consult counsel for advice on these possible impacts.
Additional information about Board operations during these unprecedented times is available at the agency’s website here.
To obtain updated coronavirus-related business advice and guidance, as well as information on webinars and other resources, please check Perkins Coie’s Coronavirus Resources Page.