NLRB Guidance on Mail or Manual Ballot Elections

Tuesday, November 10, 2020

The Nationwide Labor Relations Board (NLRB) has established requirements for its regional administrators to weigh in on whether or not a illustration election wherein COVID-19 is a priority ought to be carried out by mail poll or in-person (handbook) poll. Aspirus Keweenaw, 370 NLRB No. 45 (2020).

Chairman John F. Ring and Members Marvin E. Kaplan and William J. Emanuel joined within the majority determination. Member Lauren McFerran wrote a separate concurring opinion.

Though NLRB coverage strongly favors in-person elections, in the course of the pandemic, roughly 90% of NLRB illustration elections carried out since March have been ordered by regional administrators to be carried out by mail, in line with the NLRB. For extra on this difficulty, see our article, Plan Forward, Employers: NLRB Ordering Mail Poll Elections Due to COVID-19 Pandemic. (When these orders have been appealed to the NLRB, the NLRB has authorized the choices due to the dangers related to the pandemic.)

In Aspirus Keweenaw, the employer, situated in Wisconsin, requested a handbook poll election. The Regional Director directed a mail poll election “primarily based on the extraordinary circumstances offered by the COVID-19 pandemic.” On enchantment, the NLRB set forth six conditions related to the pandemic, and famous that, when a number of exists, a mail poll election usually is extra applicable.

Employers have lengthy disfavored mail poll elections for various causes, together with that voter participation is decrease than in reference to a handbook poll election. (Standard knowledge is that larger voter participation favors the employer.) In Aspirus Keweenaw, the NLRB famous statistics that help employers’ participation considerations. Between October 1, 2019, and March 14, 2020, the NLRB had carried out 508 handbook poll elections, wherein 85.2% of eligible voters forged a poll and that, throughout the identical time interval, 48 mail poll elections had been carried out wherein solely 55% of eligible voters forged a poll. The NLRB additional famous that, from March 15, 2020, via September 30, 2020, the NLRB carried out 46 handbook poll elections, wherein 92.1% of eligible voters forged a poll and 432 mail poll elections wherein solely 72.4% of eligible voters forged a poll.

The NLRB outlined the next six circumstances, that are to be utilized retroactively:

The NLRB workplace that can conduct the election is working underneath “obligatory telework” standing.

Both the 14-day development within the variety of new confirmed instances of COVID-19 within the county the place the power is situated is rising, or the 14-day testing positivity price within the county the place the power is situated is 5 p.c or larger.

The proposed handbook election web site (nearly all the time the employer’s facility) can’t be established in a manner that avoids violating obligatory state or native well being orders referring to most gathering dimension.

The employer fails or refuses to “unequivocally” decide to abide by the protocols contained in GC Memorandum 20-10. For extra on these protocols, see our weblog, NLRB Common Counsel Points Pointers for In-Particular person Elections Throughout COVID-19 Pandemic.

There’s a present COVID-19 outbreak on the facility or the employer refuses to reveal and certify its present standing.

Different equally compelling circumstances.

The NLRB remanded the case to the Regional Director to rethink her determination making use of the rules in Aspirus Keweenaw.