Fri, 11/20/2020
On November 9, 2020, the National Labor Relations Board (“Board”) clarified the steps unions must take to demonstrate mail-ballot elections are appropriate during the COVID-19 pandemic. The Board’s decision, titled Aspirus Keweenaw, 379 NLRB No. 45 (2020), reversed the decision of a Regional Director allowing a mail-in election to proceed due to the “extraordinary circumstances presented by the COVID-19 pandemic,” and remanded for the Regional Director to apply the Board’s new framework.
Regional directors are Board employees who oversee activities in each of the Board’s 26 regional offices. These directors are afforded some discretion in determining whether in-person or mail-in elections are appropriate, such as if voters are “scattered” or if there is a “strike, a lockout, or picketing in progress.” San Diego Gas & Electric, 325 NLRB 1143, 1144 (1998). Directors generally only authorize mail-in balloting in these limited circumstances. Indeed, the Board in Aspirus reaffirmed the strong policy preference for in-person voting. But the Board has acknowledged that other “extraordinary circumstances” may nonetheless justify mail-in balloting. Id. at 1145. Although the Board had never opined on what circumstances are, in fact, “extraordinary,” in Aspirus, it took the opportunity to craft a six-factor framework for regional directors to use to determine if mail-in ballots are appropriate during the ongoing COVID-19 pandemic. The Board’s general counsel then issued guidance to regional directors consistent with the Board’s decision. See GC Memo 21-01 (Nov. 10, 2020).
The Board will now consider whether:
- The Board’s office tasked with 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 city/county where the facility is located is increasing, or the 14-day testing positivity rate in the city/county where the facility is located is 5 percent 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 GC Memo 20-10 protocols.>
- There is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status.
- Other similarly compelling considerations.
The first three factors provide very clear rules for unions and employees to apply with publicly available information. First, the “mandatory telework” rule recognizes that, if regional offices are on mandatory telework status, the pandemic poses such a severe threat that all person-to-person interactions must be limited. In addition, mandatory telework for the Board’s employees precludes the Board from having an agent oversee voting in person—a traditionally preferred procedure to ensure election integrity.
Second, the “14-day trend” rule recognizes that, where the city or county is experiencing a surge in COVID-19 cases or positivity rate over a two-week period, the pandemic is spreading despite existing precautions and in-person balloting may not be able to occur safely. The Board emphasized that regional directors should focus on the most recent, local data and, if deviating from the Board’s rule, provide a clear explanation for what geographic information they relied upon in making their decision.
Third, the Board’s “local health orders” rule ensures that regional directors do not run afoul of mandatory local restrictions on gatherings by authorizing an in-person election. The Board emphasized that this rule only applies to mandatory, and not discretionary, local orders.
The Board also established two employer-specific factors that provide regional directors with substantial discretion and authority to ensure that specific in-person elections are conducted safely. First, regional directors will be able to consider the employer’s compliance or willingness to commit to the Board’s suggested manual election protocols (established in GC Memo 20-10). These protocols adopt CDC recommendations related to social distancing, mask-wearing, and hygienic/safety standards. They also contain numerous requirements for the set-up and running of polling locations. In Aspirus, the Board emphasized the importance of these standards, stating that employers seeking in-person elections must “unequivocally commit to abide by all of GC Memo 20-10’s suggested protocols” and that any refusal would ordinarily support mail-in balloting.
Second, the Board established a facility-specific outbreak rule. This rule provides that if a party requests an in-person election, the employer must “certify, by affidavit, as part of its submission regarding election arrangements, how many individuals present in the facility within the preceding 14 days have tested positive for Covid-19.” GC Memo 21-01, at 4. Furthermore, any new positive tests must be reported to the regional director up to the day of the election itself.
Finally, the Board in Aspirus acknowledged that the current COVID-19 pandemic presents too many novel and local challenges to create an exhaustive list of factors. As such, the Board nonetheless still allows for regional directors to cite to other “compelling” circumstances to justify a decision to conduct mail-in balloting.
For more information about your rights to form and join a Union, visit MSE’s labor union website: https://www.mselaborlaw.com/practice-areas/labor-unions.
