NLRB Provides Additional COVID-19 Guidance On Elections

The National Labor Relations Board (NLRB or Board) has set forth the considerations Regional Directors should weigh in determining whether a union representation election should be conducted by mail-ballot instead of in-person, manual-ballot due to COVID-19.

During the pandemic, the NLRB has permitted mail-ballot elections under an “extraordinary circumstances” exception to its preference for manual, in-person elections. The Board explains that “[s]ince March, approximately 90 percent of NLRB representation elections have been conducted by mail.” In its recent decision in the case of Aspirus Keweenaw, the NLRB outlined six situations related to COVID-19 that, when one or more are present, will “normally suggest the propriety of conducting an election by mail, rather than manual ballot”:

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.

The Board’s decision provides helpful guidance to employers facing elections during this challenging time. If you have questions or need assistance with a union election or a campaign, please contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.