Hunton Employment & Labor Perspectives

Social distancing and uncertainty about COVID-19 have altered many aspects of daily life, uprooted traditions, and redefined “normal.” Unions are seizing this opportunity in a push for electronic representation elections.

On May 6, a coalition of fourteen unions (the “Coalition”) urged Nancy Pelosi, Mitch McConnell, Kevin McCarthy, and Chuck Schumer to fund and direct the NLRB to establish a system and procedures to facilitate electronic union representation elections. The Coalition highlights COVID-19’s effect on the workforce in unemployment, underemployment, and dangerous working conditions, and submits that these effects highlight the need for union representation. Further, the Coalition asserts that the nature of COVID-19 makes in-person representation elections impractical, and, in conjunction with employer objections to elections by mail, it is exceedingly difficult for workers to form unions in the current climate.

The Coalition’s push for electronic representation elections was preceded by a similar push in April by 168 members of Congress, chastising the NLRB for halting all representation elections in response to COVID-19, rather than implementing a mail-in, telephone, or internet voting system. Both the Coalition and the 168 members of congress cite to the telephone and internet voting systems utilized by the National Mediation Board as precedent of well-established electronic voting procedures.

The issue is not novel, as the NLRB has previously considered implementing electronic voting procedures. In a 2010 request for information, the NLRB sought solutions and guidance on implementing secure electronic voting systems. Nevertheless, the NLRB has declined to implement such systems and in late 2019, Congress specifically prohibited the NLRB from using funds to issue directives or regulations that provide for electronic voting in representation elections.

Undoubtedly, COVID-19 has and will continue to reinvent ‘business as usual,’ and its impact on labor relations will assuredly be substantial. In determining whether to permit electronic union representation elections, Congress would do well to balance workers’ rights against the potential for voting fraud, administrative error, and the monumental economic and logistical pressures employers face during this unprecedented time of uncertainty.