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NLRB Sets Out Six-Factor Guidelines Favoring Mail-Ballot Elections During COVID-19 Pandemic
Practical Law Legal Update w-028-3584 (Approx. 4 pages)
NLRB Sets Out Six-Factor Guidelines Favoring Mail-Ballot Elections During COVID-19 Pandemic
by Practical Law Labor & Employment
| Law stated as of 16 May 2023 • USA (National/Federal) |
In Aspirus Keweenaw, the National Labor Relations Board (NLRB) issued guidelines for Regional Directors to use when determining whether to conduct in-person versus mail-ballot elections during the COVID-19 pandemic.
On November 9, 2020, in Aspirus Keweenaw, an employer's petition for review of a Regional Director's decision to order a mail-ballot election, the panel (Board) heading the NLRA's election functions issued guidelines for regional directors to use when determining whether to conduct in-person versus mail-ballot elections during the COVID-19 pandemic (370 N.L.R.B. No. 45 (Nov. 9, 2020)).
The Board held that when one or more of these situations is present, a Regional Director should consider directing a mail-ballot election:
- The NLRB Regional Office conducting the election is mandating telework.
- The 14-day trend in either:
- the number of new confirmed cases of COVID-19 in the city or county where the facility is located is increasing; or
- the testing positivity rate in that city or county is 5% or higher.
- The proposed manual election site cannot be established to avoid violating mandatory state or local health orders relating to maximum gathering size.
- The employer fails or refuses to commit to obey GC Memo 20-10, Suggested Manual Election Protocols (Subject: Suggested Manual Election Protocols, No. MEMORANDUM GC 20-10, (July 6, 2020)).
- There is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current COVID-19 status.
- Other similarly compelling circumstances.
The Board noted that the previously mentioned situations do not require a mail-ballot election. Instead, the Board was holding that a Regional Director who direct a mail-ballot election under those situations does not abuse his or her discretion.
The Board remanded the case to the Regional Director to apply the guidelines.
This guidance, which is to be applied retroactively, will help Regional Directors and parties determine whether mail-ballot elections are appropriate during the COVID-19 pandemic.
On November 10, 2020, the NLRB's General Counsel issued General Counsel Memorandum 21-01 providing further guidance and update instructions for Regional Directors concerning mail-ballot and manual elections (Subject: Guidance on Propriety of Mail Ballot Elections, Pursuant to Aspirus Keweenaw, 370 NLRB No. 45 (2020), No. MEMORANDUM GC 21-01, (Nov. 10, 2020)).
UPDATE:
In Starbucks Corp., an NLRB majority amended one of the six Aspirus Keweenaw factors justifying, but not requiring, an NLRB Regional Director to direct a mail-ballot election rather than manual elections based on circumstances associated with the COVID-19 pandemic. For Decisions and Directions of Election issuing after the issuance of Starbucks on September 29, 2022, the Aspirus Keweenaw factor 2 is whether the Centers for Disease Control and Prevention (CDC) county-based Community Level is "high". Based on the new factor, the NLRB will hold that a Regional Director has not abused their discretion by directing a mail-ballot election whenever the relevant CDC Community Level is "high." (Starbucks Corp., 371 N.L.R.B. No. 154 (Sept. 29, 2022).)