COVID-19-Related Situations Supporting Mail-Ballot Union Elections

By Nelson Cary and Amanda Kuehner

As this blog previously discussed, the NLRB resumed union elections in April of this year after taking a short COVID-19-related hiatus in March.  Thereafter, the NLRB’s General Counsel provided suggested safety protocols for conducting in-person manual elections.  Now, the NLRB itself has spoken in its first decision on how to determine whether an election should be conducted by mail-ballot or by in-person, “manual” ballot.

Although Regional Directors are afforded discretion in determining whether a manual or mail-ballot election is appropriate, that discretion is not unfettered and must be exercised within certain guidelines established by the NLRB, which includes the NLRB’s preference for manual elections.

The decision outlines six situations related to the COVID-19 pandemic that, when one or more is present, will normally suggest that conducting an election by mail, rather than manual ballot, is not an abuse of discretion.  Those situations are:

1. The Agency office tasked with 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 related to the COVID-19 pandemic.

Although the NLRB’s existing precedent still strongly favors manual elections, this recent decision clarifies that in any of the situations above, Regional Directors will not have abused his or her discretion if a mail-ballot election is directed.  Significantly, however, the NLRB took pains to say that, if one or more of the above factors are present, the Regional Director does not have to order a mail-ballot election.  Rather, the Regional Director can consider, without abusing his or her discretion, ordering a mail-ballot election.

The NLRB’s decision was not unanimous.  A concurring opinion by Member McFerran (D) offers, perhaps, a glimpse of things to come with a change in control of the White House.  Member McFerran would have adopted a presumption in favor of mail ballots “at least until the pandemic is over….”  She also called on the NLRB to “bring its elections into the modern age” by “expanding and normalizing” other ways to conduct an election besides in-person voting.

For the labor professional, the decision provides some welcome guidance on an issue that can be hotly contested in a representation election.  For those with pending petitions, and others for whom planning for a possible union election is important, the decision is worth a read.  It seems likely that it will be one whose outcome could well be different with a different majority at the NLRB.