By: Steven R. Semler

The Obama NLRB has started to lay the groundwork for quickie, off-site, “internet elections.”  The development appeared not in any notice of a proposed rule but, rather, innocuously, in the Board’s “Request for Information” published June 9th for proposals to establish “Secure Electronic Voting Service” – in other words, off-site internet voting.

This development is significant for several reasons:

First, unions, which now control the NLRB, have been looking for alternative ways to achieve quickie elections because the much-criticized proposed “Employee Free Choice Act (“EFCA”) is stalled.  Quickie elections, established by NLRB rulemaking rather than by congressional legislation, could give the NLRB the tools to set up an internet ballot in a few days, effectively depriving employers of counter-organizational campaign opportunity!

Second, the inherent vice in any such off-site voting procedure is the same as in the EFCA-embraced card-check recognition proposal as well as inherent in the traditionally unpalatable NLRB mail ballot procedure: namely the vice of union coercion of voters during off-site unsupervised voting, de facto public voting, and boundless opportunities for mischief otherwise largely avoided in traditional NLRB on-site secret ballot paper elections.  Thus, the threat of insecure elections, ironically, is inherent in the proposal for “Secure Electronic Voting Service.”  A tainted ballot securely transmitted merely secures transmission of the abuse rather than secures the integrity of the process.

Third, this effectively sets the stage for the NLRB getting rid of secret ballot on-site elections and, indeed, conceivably, could result in employee ballots being cast from homes, if not from union halls!

Fourth, this information request demonstrates that the NLRB will aggressively use its procurement authority initially to avoid the notice and comment procedures for issuing regulations and, in turn, ultimately to lay the groundwork for fast-tracking election reform by rulemaking as an end-run around waiting for the vagaries of legislative reform.

A copy of the NLRB’s information request is available at the following federal government website.

If you have additional questions, contact Steven R. Semler or the FortneyScott attorney with whom you work.