NLRB Pathway to In-Person Manual-Ballot Elections during COVID-19

Wednesday, November 11, 2020

As employers confronted with a illustration petition filed through the COVID-19 pandemic can attest, Regional Administrators of the Nationwide Labor Relations Board have been extremely reticent to carry in-person elections. Certainly, since April 1st, when the Board resumed processing illustration petitions, roughly ninety p.c (90%) of elections have been held by mail relatively than in-person. This mandatory paradigm shift flew within the face of the Board’s long-standing basic coverage to carry manual-ballot, in-person elections. Nonetheless, on November 9, 2020, the Board lastly supplied Regional Administrators and key stakeholders, corresponding to employers, staff and unions with vital steering regarding when, and the way, to determine whether or not to carry a illustration election by manual- or mail-ballot.

Background

In Aspirus Keweenaw, 18-RC-263185, 370 NLRB No. 45 (2020), the Employer argued {that a} guide election was warranted based mostly on the Board’s choice for manual-ballot elections and the relatively-low prevalence of COVID-19 in its Michigan county. The Employer additionally agreed to adjust to the manual-ballot election protocols issued by the Board’s Common Counsel on July 6, 2020 in GC Memo 20-10. That Memo set out an in depth protocol of find out how to maintain in-person voting through the COVID-19 Pandemic, together with detailed elections mechanics, well being certifications, an settlement to inform the Area of any indication that people current on the voting location contracted COVID-19, and preparations to make sure social distancing and compliance with CDC pointers. Nonetheless, the Area, in Aspirus Keweenaw, ordered a mail-ballot election as a result of security issues and relevant governmental steering.

The complete Board reversed the Regional Director’s choice and articulated a brand new six-“state of affairs” take a look at to find out whether or not an election ought to be held by mail relatively than by guide poll. Notably, the Board indicated that the presence of “a number of” of those conditions “usually” suggests the usage of a mail poll because of the extraordinary circumstances of the COVID-19 pandemic:

The Company workplace tasked with conducting the election is working underneath “obligatory telework” standing.
Both the 14-day pattern within the variety of new confirmed instances of COVID-19 within the county the place the ability is positioned is growing, or the 14-day testing positivity charge within the county the place the ability is positioned is 5 p.c or increased.
The proposed guide election website 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 decide to abide by GC Memo 20-10, Prompt Handbook Election Protocols.
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 Board clarified that none of those conditions require a mail-ballot election. As a substitute, the dedication stays on the discretion of the Regional Director, however “a Regional Director who does direct a mail-ballot election underneath the foregoing conditions won’t have abused his or her discretion.” In different phrases, Regional Administrators who observe the Board’s steering probably won’t be reversed on this problem by the Board on evaluate.

In Aspirus Keweena, the Board reversed and remanded the Regional Director’s choice requiring a mail-ballot election for additional consideration in step with the brand new normal.

Takeaways

The nation continues to be challenged by the COVID-19 pandemic, with outbreaks various by state and locality. As evident over this previous 12 months, the traditional operations of the NLRB, together with the kind and method of illustration elections, has been considerably affected. Particularly, the continued pandemic has resulted in way more mail-ballot than manual-ballot elections.

The Board’s choice helpfully articulates clearer steering for Regional Administrators confronted with the unenviable activity of deciding whether or not to carry in-person or mail-ballot elections at an employer’s website through the pandemic. The choice additionally provides employers and unions some standards to make use of to argue over the kind of election to be performed. This choice each lays the groundwork for a potential return to the long-standing custom of in-person elections (which can be a boon for employers preferring in-person voting), whereas additionally recognizing the gravity of the protection and well being disaster that the nation is presently experiencing by offering a number of conditions wherein a guide election virtually definitely would not be ordered.

As with all issues associated to COVID-19 and the NLRB, this case is fluid and we’ll proceed to observe it. Keep tuned!