With much of the air let out of EFCA (“Employee Free Choice Act”), the union-supported legislation that would make card check authorization, increased penalties, and interest arbitration a part of the labor law landscape, electronic voting in elections conducted by the National Labor Relations Board (“NLRB”) appears to be the next topic for labor law reform that employers and unions can expect in the coming months.
On June 10, 2010 the NLRB formally issued a “Request for Information” (“RFI”) for a “Secure Electronic Voting Service.” The NLRB appears ready to join the National Mediation Board (“NMB”), which administers the parallel labor-management laws for the airlines and railways, by replacing the traditional manual paper-ballot election, which has been the standard method of casting votes in representation elections for over 75 years. Specifically, the NLRB’s Division of Administration is seeking 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.” The NLRB is interested in acquiring equipment that will enable not only on-site electronic balloting, but also "remote electronic voting technology," which will allow employees to vote by telephone and internet in representation elections.
Unions are in favor of electronic voting, and for good reason. There is a strong consensus among labor relations experts, not just employer advocates, that electronic voting will lead to more victories for organized labor where unions can more easily influence employees, while employers will have far fewer opportunities to get their message out to employees. If electronic voting were to become a reality, the NLRB’s standard 42-day window from the filing of a petition to election, which is used for unit determination hearings and campaigning by both sides, could come under attack. As we have described in past e-alerts, one of organized labor’s goals has been to shorten the amount of time employers have to conduct a counter campaign once an election petition has been filed with the NLRB.
There are significant potential dangers to a fair and democratic election if the NLRB gravitates to electronic voting. The NLRB appears to be cognizant of these dangers because the RFI specifically asks potential vendors to include “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." As they always have had regarding the seldom-used mail ballot process at the NLRB, labor relations experts would have real concerns about coercion, intimidation and low turnouts if voting were to take place more remotely by electronic means. The possibility of employees being pressured or misled is much greater away from the workplace. Moreover, mail ballot elections historically have had low voter turnouts compared to manual ballot elections.
The conventional wisdom is that unions have a better chance of winning elections when voting takes place away from the workplace because fewer people actually vote. For instance, unions usually are able to get their most ardent supporters to vote in a mail ballot election while those employees on the fence may decide not to participate at all – which means that unions need fewer YES votes to win a simple majority of the total votes cast. While the nation’s labor laws are premised on the notion that it is fair when a majority of employees at a workplace can decide on union representation, there is a strong argument to be made that electronic voting would undermine this very basic and well-accepted premise.
President Obama recently filled the NLRB’s three Board vacancies, with two Board members having been confirmed by Congress and one serving under a recess appointment. A fully constituted Board could push for “labor law reform” through administrative rulemaking without Congress having to take any affirmative steps, including making any decisions regarding EFCA. Employers should be very concerned that such rulemaking by the NLRB could result in providing organized labor many of the advantages it has been seeking in the EFCA legislation, which currently is stalled, and possibly even more unlikely depending on the results of the mid-term elections in November. NLRB Chairman Wilma Liebman has officially stated that the agency’s review of electronic voting is only "exploratory and informational," however, she also is on record referencing the NMB’s growing track record of conducting all its elections by electronic voting.
In the age of the internet, it seems unlikely that the NLRB will continue to rely exclusively on paper ballots to conduct its elections. Thus, the advent of electronic voting may not be far off.
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