It appears the National Labor Relations Board (NLRB) has started to lay the groundwork for off-site Internet elections for employees to determine whether they wish to be represented by a union. The first sign of this development was a Request for Information (RFI) published by the NLRB on June 9, 2010.
In the RFI, the NLRB seeks proposals from the information technology industry regarding the establishment of “secure electronic voting services,” which it describes to include telephone, Web-based, and/or on-site electronic voting. Specifically, the Board says it is “seeking industry solutions regarding the capacity, availability, methodology and interest of industry sources for procuring and implementing secure electronic voting services both for remote and on-site elections.” It appears the Board is looking for information regarding the feasibility, secrecy, observability, accountability, and auditability of electronic elections before implementing any sort of rulemaking process.
Currently, most union elections are conducted in one of two ways: (1) on-site, manual voting in portable voting booths at employer facilities or (2) mail-in ballots. The vast majority of elections take place on-site. In 2008, the NLRB conducted 2,085 elections, only 150 of which used mail ballots. In the remainder of the elections, employees cast manual ballots.
What This Means for Employers
This development is significant for several reasons:
- Unions have been looking for alternative ways to make it easier for them to prevail in representation elections because the much-criticized Employee Free Choice Act (EFCA) is stalled.
- Although it specifically requests information regarding what safeguards, if any, can be implemented to ensure that votes cast remotely are free from “undue intimidation or coercion,” attorney Steven R. Semler of Fortney & Scott, LLC, notes that the inherent vices associated with any off-site voting procedure — union coercion of voters during off-site unsupervised voting, de facto public voting, and other opportunities for mischief — may be amplified by Internet voting. Those concerns are largely avoided in traditional on-site elections.
- The issuance of the RFI suggests that the NLRB will aggressively use its procurement authority to avoid the notice and comment procedures for issuing regulations and, in turn, ultimately to lay the groundwork for fast-tracking election reform rather than wait out the legislative process.
More than ever before, employers need to be cognizant of the NLRB’s goings-on. Three of the five members of the Board are prounion, which puts them in control. Both they and many Democrats in Congress have demonstrated a determination to make the election process more favorable to unions. Although the RFI is a very preliminary step, it is one that warrants a close watch.
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