November 9, 2020

The National Labor Relations Board issued a decision today that sets forth the considerations Regional Directors should weigh in determining whether an election should be conducted by mail-ballot, as opposed to in-person manual-ballot, because of COVID-19-related conditions. The decision was issued as part of Aspirus Keweenaw, 19-RC-263185, 370 NLRB No. 45 (2020).

In its decision, the NLRB provides the Regional Directors with updated guidance for use in determining the appropriate election method to be used in light of the unique COVID-19 circumstances. The decision outlines six situations related to the COVID-19 pandemic that, when one or more is present, will normally suggest the propriety of conducting an election by mail, rather than manual ballot. Those circumstances are:

-The Agency 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 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.

-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 GC Memo 20-10, Suggested Manual Election 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 circumstances.

In issuing this decision, the NLRB further held that this new guidance would be applied retroactively and accordingly remanded the case to the Regional Director in light of the factors set forth in the decision.

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