Hunton Employment & Labor Perspectives

As we previously reported, COVID-19 has fundamentally changed the way representation elections are conducted.  From March 1 to November 16, 2020, the National Labor Relations Board issued 167 election decisions and, of those, only 2 manual elections have been directed to proceed in that time-frame.  This is a marked change in the Board’s longstanding preference for manual elections.  The overwhelming trend towards mail-in elections was necessitated by the COVID-19 pandemic.

Although Regional Directors have discretion to determine what form an election will take, that discretion must be exercised according to the guidelines established by the Board.  On November 9, 2020, the Board provided clarity on the considerations Regional Directors must weigh when determining whether an election should be conducted by mail-in ballot because of COVID-19-related conditions.

In Aspirus Keweenaw, 370 NLRB No. 45 (2020), the Regional Director directed a mail-in ballot election to proceed due to the extraordinary circumstances presented by the COVID-19 pandemic.  The employer requested review of this decision, citing the low level of COVID cases in its county of operation, the safety measures it implemented at its facility, the fact that Region 18 was no longer mandatory telework, and the absence of government lockdown orders to argue that a manual election was appropriate.  On review, the Board took the opportunity to provide guidelines regarding the circumstances that would suggest the propriety of a mail-ballot election in light of the pandemic, and remanded the case for the Regional Director to make a decision consistent with the guidelines.

The decision provided that, when one or more of the following situations is present, a Regional Director should consider directing a mail-ballot election:

• The Agency office conducting the election is operating under “mandatory telework” status;
• 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 relevant county is 5% or higher;
• 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;
• The employer fails or refuses to commit to abide by the Suggested Manual Election Protocols;
• There is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status; or
• Other similarly compelling circumstances.

This guidance applies retroactively and provides much-needed clarity on the situations in which a mail-in election is appropriate.  As the COVID-19 pandemic endures, employers and unions should expect the trend of mail-in elections to continue.  Now, it is clear just what pandemic-related circumstances necessitate such an election.