Authors:          Glenn J. Smith and Matthew A. Sloan

On April 1, 2020, after a temporary suspension of elections, the National Labor Relations Board announced that the processing of NLRB-conducted elections would resume again. Since about then, an unprecedented 90% of representation elections conducted have been ordered by Regional directors to be conducted by mail due to the pandemic. This is despite the Board’s existing precedent strongly favoring in-person ballot elections.

After repeated challenges to Regional Directors’ mail-ballot directives, the Board recently issued guidelines for Regional Directors to consider when deciding whether an election should be conducted by mail ballot or in-person (manual) ballot. These guidelines are described in the Board’s November 9, 2020 opinion, Aspirus Keweenaw, 370 NLRB No. 45 (2020). In that case, the employer, an acute-care hospital located in the Upper Peninsula of Michigan, requested a manual ballot election based in part on the low level of COVID-19 cases in the area and its willingness to comply with the manual election protocols established in GC Memo 20-10. Instead, the Regional Director directed a mail ballot election “based on the extraordinary circumstances presented by the COVID-19 pandemic.” The hospital appealed, challenging the Regional Director’s finding of “extraordinary circumstances.”

In their majority opinion, Chairman John F. Ring, Member Marvin E. Kaplan and Member William J. Emanuel outline six circumstances, the existence of any which one would “normally suggest the propriety of using mail ballots under the extraordinary circumstances presented by this pandemic.” These circumstances include:

  1. The NLRB regional office 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 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 fails or refuses to commit to abide by GC Memo 20-10, Suggested Manual Election Protocols.
  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 remanded the case to the Regional Director to reconsider her decision after applying the Board’s new guidelines and in light of any changed circumstances.

Member McFerran, while commending her colleagues in her concurring opinion “for recognizing the reality of a public health emergency,” argues that the default presumption during the pandemic should be that mail-ballot elections are appropriate, instead of the case-by-case framework preferred by the majority writers. She writes, “a clear instruction to Regional Directors that the default assumption is to conduct elections via mail ballot during the pandemic provides a bright-line rule that would be efficient to administer, would further public health policy, and would be easy for employees, employers, and the public to understand.” More broadly, Member McFerran adds that the Board should “reevaluate both its preference for manual elections and its related antipathy toward manual voting,” highlighting the changing nature of the American workforce and the successes of other Federal labor agencies utilizing electronic voting.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Labor Management Relations Team.