Friday, November 20, 2020

National Labor Relations Board Gives Stamp of Approval to Mail Ballot Elections

Author: Brian Woolley

Prior to COVID-19, virtually all union representation elections were conducted through in-person voting, often at the workplace. In mid-April, however, the federal National Labor Relations Board (“NLRB”) empowered its Regional Directors to exercise their discretion to order mail ballot elections when circumstances warrant. Since then, virtually all such elections have been conducted by mail because of the pandemic. Many of these decisions were challenged, generally by employers arguing that in-person voting can be conducted safely, but those objections have not been successful. 

In an effort to bring some generally-applicable guidance to the exercise of Regional Directors’ discretion, the NLRB last week established criteria for determining when elections should be conducted by mail. If one or more of the following is true, this will “normally suggest” that the ballot should be by mail:
  1. the NLRB regional office which would supervise the election is on mandatory telework status;
  2. the 14 day trend in new COVID-19 cases is increasing or the testing positivity rate is five percent or higher in the county where the election would occur;
  3. the election logistics cannot be arranged in a way which would comply with state or local restrictions on maximum size for gatherings;
  4. the employer will not commit to follow the minimum guidelines for a safe election published by the NLRB in General Counsel Memo 20-10; or
  5. there is a current COVID-19 outbreak in the workforce, or the employer will not disclose whether there is an outbreak.
While these triggers may not result in an immediate return to manual elections, given the current COVID-19 conditions in most states, they at least provide a road map for returning to in-person elections as the pandemic eventually winds down.

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