E-Voting in Union Elections at the NLRB?

By Chad M. Horton - Shawe Rosenthal LLP

July 22, 2021

As our two major political parties wage battle in statehouses around the country regarding the ways in which citizens cast their votes, the National Labor Relations Board (NLRB) seems primed to implement electronic voting (“e-voting”) in union elections. E-voting has long been on Labor’s wish list. As we transition out of a pandemic that significantly reduced the number of manual (read: in-person, onsite) representation elections, it appears that the Democratic-controlled Board and Congress are prepared to dedicate resources to add an e-voting system to the Board’s manual and mail-ballot election processes.

First, a bit of history. In 2010, during President Obama’s first term, the NLRB issued a request for information through the federal government’s procurement website, and sought industry solutions regarding “capacity, availability, [and] methodology” for implementing an e-voting system. Beginning in budget year 2011 – the first year after which Republicans assumed control of the House of Representatives – the NLRB’s annual Congressional budget appropriation included a policy statement that the agency may not conduct elections electronically. Not surprisingly, the notion of e-voting quickly fizzled out.

The COVID-19 pandemic spawned substantial NLRB litigation concerning the voting method representation elections. Unions frequently pushed for mail-ballot elections, particularly where some or all of the voting unit was working remotely (never mind that unions are typically more successful in mail-ballot elections!). Employers sought manual elections – the Board’s preferred method of election – especially where the voting unit was back to working onsite and the employer could take necessary health and safety precautions (never mind that employers are typically more successful in manual elections than mail-ballot elections!). Regional Directors were forced to apply existing case law that did not contemplate a national pandemic (remember, the NLRA was enacted in 1935, decades after the Flu Pandemic of 1918), while also accounting for the health and safety of Regional office personnel. Put simply, it was a mess and the Board was bombarded with requests for review of Regional Director decisions directing one method or the other.

The initial signs of a renewed push for e-voting came in a concurrence in the Board’s Aspirus Keweenaw decision. That case established guidelines for ordering a mail-ballot election during the COVID-19 pandemic. Now-Chairman Lauren McFerran, then the Board’s lone Democrat, concurred in the result, but used a portion of her concurrence to advocate for “moderniz[ing]” election procedures. McFerran first suggested that holding onsite elections, which are “a space controlled by the employer,” may jeopardize employee free choice in a way that voting elsewhere would not. Next, McFerran opined that Board precedent establishes that maintaining the necessary “laboratory conditions” to protect employee free choice has proven difficult in manual elections. Finally, McFerran posited that other federal labor agencies have implemented electronic voting. Specifically, the National Mediation Board (NMB), which conducts representation elections in the airline and rail industries, and the Federal Labor Relations Authority (FLRA) – in effect, the NLRB for federal employees – have both implemented e-voting in union elections. Additionally, in what appeared to be a pre-emptive response to management advocates who may suggest e-voting would decrease voter participation, McFerran noted that NMB had an 85% participate rate using e-voting between 2010 and 2013. For Board watchers like myself, the writing was on the wall considering Aspirus was issued days after the 2020 election, and a Biden Board was on the horizon.

The e-voting push has made its way to Congress, as well. Recently, the House’s 2022 appropriations bill expressly included “not less than $1 [million]” of the NLRB’s annual budget to be “used to develop a system and procedures to conduct union representations electronically.” While this and many other provisions of the appropriations bill will receive significant Republican pushback, it seems less than clear that Republicans can stymie efforts to eventually implement e-voting.

So, what’s next? We think it likely that the Biden Board eventually seeks to implement e-voting through rulemaking. Rulemaking will allow the Board to set the parameters for when e-voting will be utilized – here’s betting that any final rule will set a low bar for the use of e-voting – and (hopefully) establishing safeguards for the use of e-voting. But it seems likely that e-voting at the NLRB will be implemented under the President who famously referred to himself as the “most pro-union president” in history. And Labor will finally have one of the items on its wish list.