February 05, 2021
A House bill has been introduced to bring remote, electronic voting procedures to union representation elections, as Acting NLRB General Counsel Peter Ohr rescinded a number of business-friendly guidance memos issued during the Trump administration.
H.R. 308, introduced by Rep. Andy Levin (D-MI), directs the NLRB to implement a system and procedures to conduct representation elections remotely using electronic voting. Levin’s legislation comes as the NLRB has been forced by the pandemic to turn to mail ballots for union elections. Implementation of electronic voting procedures would require a change in the statute.
Mail balloting and previous efforts to use electronic voting systems in union elections have been subject to criticism that such procedures result in lower voter turnout and a higher chance of voter fraud. To win an NLRB election, the union must only receive a majority of ballots cast, rather than that of the entire unit. Thus, a union could be elected by a small minority of the workers it would represent.
Meanwhile, Peter Ohr, named to the post last week, has rolled back a dozen Trump-era guidance memos. In a memo withdrawing the guidance, Ohr said he rescinded the guidance because it is “inconsistent” with the NLRA’s goal of encouraging collective bargaining and protecting workers’ rights.
The rescinded guidance memos largely involve union conduct and prosecution, including a pair that lowered the bar for prosecuting unions and two that increased the level of detail unions had to include in financial notices. Ohr also rescinded a memo restricting NLRB investigators and lawyers from receiving recorded or documentary evidence, and another limiting Regional Directors’ ability to get information from employers and unions accused of violating the NLRA.
Outlook: Previous efforts to bring electronic voting to the NLRB—which is currently prohibited from collecting votes electronically—have failed, and it is unclear whether Levin’s bill will garner the bipartisan support it will need to pass both chambers of Congress. The safety issues presented by the pandemic, however, increase its chances of success. Meanwhile, Ohr’s widespread rescission of previously issued guidance underscores the new reality at the NLRB, even with a Republican-majority Board in effect until the end of this year.