On June 9, 2010, the National Labor Relations Board (NLRB or “Board”) made a move wholly consistent with its anticipated commitment to implementing “significant change.” Specifically, the Board revealed that it is exploring the future use of electronic and internet voting in representation elections. Pursuant to longstanding secret ballot election standards, no such electronic or internet means for casting votes (remote or otherwise) in a Board-conducted election is recognized as permissible. As the controversial and newest Board Members Craig Becker and Mark Pearce start getting situated among their two sitting colleagues, the NLRB’s efforts to alter well-settled Board election standards seem to be in full swing.

In terms of this most recent activity by the Board, the NLRB’s contracting office issued a request through the government procurement process for information on “industry solutions regarding the capacity, availability, methodology, and interest of industry sources for procuring and implementing secure electronic voting services for both remote and on-site elections.” As a review of the above-referenced NLRB request reveals, the Board is seeking information:

for the acquisition of electronic voting services to support conducting secret-ballot elections to determine representation issues. Specifically, the Agency requires a proven solution that supports mail, telephone, web-based and/or on-site electronic voting; that includes the necessary safeguards to ensure the accuracy, secrecy, observability, transparency, integrity, accountability, and auditability of Agency-conducted elections; and that has demonstrated experience in protecting similar type elections from both deliberate misconduct and simple error. With respect to electronic voting capabilities, the Agency specifically requests information, to the extent available, relating to what safeguards, if any, could be implemented to ensure that votes cast remotely were free from distractions or other interferences, including undue intimidation or coercion. The Agency also requests, to the extent available, information relating to experience regarding the level of participation achieved through remote electronic voting technology (vs. traditional on-site elections, whether manual or electronic).

The combination of the NLRB's continuing technological modernization, the numerous locations and size of offices, and varying end-user competency levels may add complexity to the electronic voting services solution.

The Agency notes that if it decides to proceed with the electronic process, it would prefer to start with a pilot program before a more established one is fully implemented. Responses are due by June 28, 2010 at 4:00 pm.

The importance of the above exploratory action by the Board should not be taken lightly by employers. This is a clear warning that it is quite possible – even likely – that the NLRB ultimately will allow employees to submit their votes in a representation election via the use of a remote online voting process. Currently, such voting procedures, while not applied by the NLRB, are used by the National Mediation Board (NMB). However, the NLRB and its governing law, the National Labor Relations Act (NLRA), are quite different from the NMB and its purpose. Nonetheless, we anticipate and expect that the Board will seek to draw comparisons between the use of such electronic/internet voting mechanisms by the NMB and the expansion of such to NLRB-conducted secret ballot elections. It is our understanding that the Board has already been in contact with the entity that conducts the electronic voting for the NMB.

This potential change is a huge departure from well-settled and tested secret ballot election standards. Currently, the overwhelming majority of Board-conducted elections are handled through a manual election process. The integrity of the secret ballot election is maintained such that eligible employees physically report to a pre-designated voting location, which is usually a convenient room or area within the workplace. The manual election occurs at pre-set times with a representative from the NLRB and an equal number of company and union observers present throughout the vote. The Board’s consistent and effective policy has long been that representation elections should, as a general rule, be conducted manually. However, the Board has also recognized that there are times when it is difficult for eligible employees to vote in a manual election. In such instances, the Board will only permit a “mail ballot” or even a combination of a mail and manual ballots. Only in very specific situations will the Board even consider straying from the election safeguards and procedural integrity intrinsic to the in-person manual process. Mail ballots are not preferred and, generally, only contemplated where it is deemed an in-person manual vote would be subject to problems because: (1) eligible voters are “scattered” because of their job duties over a wide geographic area; (2) where eligible voters are “scattered” in the sense that their work schedules vary significantly, so that they are not present at a common location at common times; or (3) where there is a strike, a lockout or picketing in progress.

Further, it is unclear what the Board’s position is relating to how and when electronic and/or internet voting procedures would be used. Would such procedures be viewed as alternative mechanisms, i.e., only to be used where an in-person manual vote poses unique obstacles, like a mail ballot? Or, is the Board gearing up for a full-blown push to make the electronic/internet voting process the preferred election course?

The Board’s consideration of the use of electronic/internet voting procedures is a radical departure from the successful and longstanding use of manual voting and is another effort to attack the use of secret ballot elections themselves, similar to proposals related to the Employee Free Choice Act (EFCA). Moreover, replacing (or even supplementing) the in-person manual voting process with the electronic/internet mechanism is riddled with problems, including: (1) lack of safeguards against vote tampering, increased election abuse, and other technical difficulties; (2) absence of procedures to emphasize the significance of the voting decision (i.e., NLRB representatives, election observers, private voting booths); (3) potential for voter intimidation and peer-pressure; and (4) departure from the in-person secret ballot process and the most sound process to protect the interests of the eligible voters and employers alike. Indeed, the in-person election continues to be the primary means by which our country’s political races are decided at the polls.

Littler will continue to monitor the Board’s activity on this point and will supplement this summary in greater detail.

This entry was written by Tedd Kochman.

Photo credit:  doram