After the COVID-19 pandemic caused a temporary suspension of both in-person and mail ballot labor union elections, the NLRB permitted elections to resume in early April.  On Tuesday, July 6, the General Counsel issued guidance addressing suggested safety protocols for conducting manual elections.  As the COVID-19 pandemic continues to evolve, the General Counsel acknowledged the pandemic’s varying impact on different localities.  With this in mind, the General Counsel empowered Regional Directors to make election decisions on a case-by-case basis.

Even while acknowledging the unpredictability of these unprecedented times, the General Counsel still suggests specific safety protocols for manual elections.  Many of these suggestions are consistent with precautions being encouraged for everyday activities⁠—social distancing, enhanced cleaning, plexiglass barriers, and masks.  Also, for the polling facility, the General Counsel suggests arrangements such as a spacious polling area, separate entrance and exit doors, floor markings for social distancing, and disposable supplies.

In addition to these safety protocols, the General Counsel suggests employer record keeping before and during a manual election.  Before an election, the employer would be required to certify how many individuals who have been present in the polling facility (during the 14 days prior to the election) tested positive for COVID-19, are awaiting COVID-19 test results, exhibited COVID-19 symptoms, or had direct contact with someone who tested positive for COVID-19.  The employer should record the same information for individuals present in the polling facility on the day of the election.  The General Counsel’s guidance includes forms that employers would use to provide the certifications.

For the labor professional, the General Counsel’s suggestions are worth an employer’s attention.  In-person elections are an important tool to ensure the exercise of free employee choice on the question of union representation.  To maximize the ability to utilize that tool, therefore, an employer may want to proactively establish systems that would allow it to implement the suggested safety protocols, particularly if union organizing is a significant concern for the employer.

It is important to note, as the General Counsel acknowledged in the guidance, that the NLRB itself has the “ultimate authority” to decide when, how, and in what manner manual elections are conducted.  So, any employer (or union for that matter) in a representation proceeding that has concerns with the way in which a regional office conducted the election will want to consult with qualified labor counsel to determine whether objections should be filed so as to, ultimately, bring those questions to the NLRB’s attention.

*John J. Osinski, a Summer Associate at Vorys, Sater, Seymour and Pease, LLP, and a law student at The Ohio State University Moritz School of Law, co-authored this post.