NLRB Outlines Covid-19 Factors Warranting Mail-Ballot Elections

Andrea Murphy
Andrea Murphy

Mail ballots.  Those two little words have made big headlines lately, even in the world of labor law.  As the Covid-19 pandemic continues to roll on, the National Labor Relations Board (Board) issued a decision outlining six specific factors that Regional Directors (RDs) should consider in deciding whether to hold mail-ballot elections or manual elections.  Aspirus Keweenaw, Case 18-RC-263185 (11/9/20).    

The underlying facts involve the potential representation of a group of registered nurses employed at an acute-care hospital in Michigan.  While the employer argued for a manual election, the RD decided that the state of the pandemic (in part because the employees were acute care hospital workers more likely to have been exposed to Covid-19 and because the election would take place in rural Michigan where there is limited hospital care) warranted the election by mail ballot.

The Board’s opinion reviewing the RD’s decision repeatedly mentions the Board’s strong preference for manual elections.  Such methods, the Board stated, allow for supervision of the election, increase employee participation, and serve as an expression of employees’ statutory right to select (or not select) bargaining representatives.  Nonetheless, the Board maintains that RD’s have discretion to order mail-ballot elections. 

The decision outlines six situations that should indicate the propriety of a mail-ballot election during the Covid-19 pandemic, especially given the ever-changing landscape of things.  Specifically, RDs should consider:

  1. Whether the Agency office tasked with conducting the election is under “mandatory telework” operating 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 (5) 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 refuses or fails to commit to abide by the GC Memo 20-10 protocols (e., suggested protocols for conducting manual elections safely and efficiently and retaining RDs’ discretion to make case-by-case decisions as to whether the conduct mail-ballot or manual elections);
  5. There is a current Covid-19 outbreak at the facility, or the employer refuses to disclose and certify its current status; and
  6. Other similarly compelling considerations (in essence, circumstances that “warrant an exception to [the Board’s] preference for manual elections”).

According to the decision, an RD that considers the above circumstances will not abuse his or her discretion by ordering a mail-ballot election if any of them are present during the pandemic.    

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