Mail or In-Person Voting? The NLRB Issues Guidance on Representation Elections During the COVID-19 Pandemic

By John F. Lomax, Jr., Y. Rubi Bujanda and Benjamin A. Nucci

Background
As with many other facets of life, the COVID-19 pandemic is impacting how the National Labor Relations Board (NLRB) handles representation cases. This week, in Aspirus Keweenaw & Michigan Nurses Ass’n, Petitioner, 370 NLRB No. 45 (2020), the NLRB adopted a new framework for the manner in which union elections should be conducted. Before we review that framework, recall that NLRB policy has long favored in-person manual elections. While the NLRB issued guidance in 1997 in San Diego Gas & Electric, 325 NLRB 1143 (1998), providing Regional Directors with discretion to conduct elections via mail ballot, applying that precedent to the workplaces in the pandemic has not been straightforward. 

Over the summer, the General Counsel issued GC Memo 20-10. The Memo set forth suggested protocols for conducting manual elections safely and efficiently. The Memo, however, also reiterated that Regional Directors have discretion in directing elections. Nonetheless, during the pandemic, Regional Directors have relied on the “extraordinary circumstances” exception set forth in San Diego Gas & Electric to direct mail ballot elections. 

Guidance on the Manner of Elections
Turning to Aspirus Keweenaw, the NLRB established a framework that Regional Directors should follow when determining the manner in which to conduct representation elections. The NLRB provided that if one or more of the following factors is present, “that will normally suggest the propriety of using mail ballots under the extraordinary circumstances presented by this pandemic”:

1. The Agency office tasked with conducting the election is operating under “mandatory telework” status.
2. Either the 14-day trend in the number of new confirmed cases of COVID-19 in the county where the facility is located is increasing, or the 14-day testing positivity rate in the county where the facility is located is five percent or higher.
3. The proposed manual election site cannot be established in a way that avoids violating mandatory state or local health orders relating to maximum gathering size.
4. The employer fails or refuses to commit to abide by GC Memo 20-10.
5. There is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status.
6. Other similarly compelling circumstances.

The NLRB clarified that Regional Directors continue to have discretion in directing elections. However, a Regional Director “who does direct a mail-ballot election under the foregoing situations will not have abused his or her discretion.”

This decision applies retroactively, meaning Regional Directors may invoke it to support decisions ordering, depending on the presence of the factors, in-person or mail ballot elections with pending petitions for an election. In Aspirus Keweenaw, one Board member concurred, suggesting that the majority “should stop treating mail-ballot elections as deviations that must be justified by Regional Directors case by case.” In support of the concurrence, the Board member noted the large number of jurisdictions that shifted to mail ballot processes for the recent state and federal elections. Whether the anticipated change in the White House and the accompanying shift in power at the NLRB will lead to a more broad-based support for mail ballot elections – even after the pandemic passes – is a question employers and unions will be watching.