By Ronald Miller, J.D.
The Board has not previously detailed what factors regional directors should consider in deciding whether to direct mail-ballot elections in the context of COVID-19.
In a four member decision, the NLRB reversed a regional director’s order providing for a mail-ballot election in a union’s attempt to organize nurses at a hospital. The Board took this opportunity to provide guidelines regarding the circumstances that would normally suggest the propriety of a mail-ballot election in light of the COVID-19 pandemic, and to ensure that parties are not unnecessarily deprived of a manual election. Accordingly, the Board remanded the case to the regional director to apply the framework in the first instance, taking into account how circumstances have changed since the decision was issued. Member McFerran issued a separate opinion concurring in the result (Aspirus Keweenaw, November 9, 2020).
Manual versus mail-ballot election. The employer operates an acute-care hospital located in Houghton County, on Michigan’s Upper Peninsula. On July 17, 2020, the union filed a petition to represent a unit of approximately 69 registered nurses at the hospital. As an initial matter, the parties signed a “stipulated record” agreeing to a mail-ballot election. Subsequently, the employer submitted a statement of position requesting a manual election.
The employer argued that a manual election was warranted based on the Board’s preference for manual elections, the relatively low level of COVID-19 cases in Houghton County and the Upper Peninsula, the safety measures it had implemented at its facility (as well as its willingness to comply with the suggested manual election protocols set forth in General Counsel Memorandum 20-10 (GC Memo 20-10), the fact that Region 18 was no longer under mandatory telework, and the absence of “lockdown orders.”
However, the regional director concluded that a mail-ballot election was warranted based on the extraordinary circumstances presented by the COVID-19 pandemic. On August 25, the Board granted review of the employer’s motion to stay the mail-ballot election.
Participation rate. The Board observed that given the value of having a Board agent present at the election, its longstanding policy is that representation elections should, as a general rule, be conducted manually, either at the employees’ workplace or some other appropriate location. Moreover, the Board noted that its recent experience supported this longstanding policy. Although internal Board statistics reflect that the mail-ballot participation rate has increased during the COVID-19 pandemic, they also reflect that the mail-ballot participation rate continues to lag significantly behind the manual election participation rate. From March 15 through September 30, the Board conducted 46 manual elections in which voter turnout was 92.1 percent, while in 432 mail-ballot elections, participation was at 72.4 percent.
Further, the Board noted that a regional director’s discretion in this area “is not unfettered and is to be exercised within certain guidelines.”
Guidelines for elections. Following the resumption of elections on April 6, regional directors began directing an unprecedented number of mail-ballot elections. In virtually all such determinations, the regional directors reasoned that COVID-19 presented “extraordinary circumstances” within the meaning of the Board’s 1998 decision in San Diego Gas & Electric.
Prior to the COVID-19 pandemic, the Board had no occasion to further define the “extraordinary circumstances” referenced in San Diego Gas. At this juncture, the Board concluded that the onset of the COVID-19 pandemic requires that it articulate guidelines to use in determining the election method under the circumstances.
On July 6, the General Counsel issued GC Memo 20-10, which set forth suggested protocols for conducting manual elections safely and efficiently. In view of changing pandemic conditions and the Board’s increasing experience in this area, as well as its longstanding preference for manual elections, the Board has set forth more specific and defined parameters under which regional directors should exercise their discretion in determining election type against the backdrop of COVID-19. Thus, when deciding whether to conduct a mail-ballot election or a mixed manual-mail ballot election due to the COVID-19 pandemic, regional directors should take into consideration the following six circumstances:
|1.||Whether 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.|
If one or more of these situations is present, that will normally suggest the propriety of conducting an election by mail, rather than manual ballot. Importantly, the Board concluded that the foregoing situations do not require a mail-ballot election. Instead, it means that a regional director who does direct a mail-ballot election under the foregoing situations will not have abused his or her discretion.
Application of guidelines. Finding it appropriate to apply this framework to the instant case, the Board concluded that nothing in the guidance conflicted with San Diego Gas and its progeny, nor has the Board previously detailed what factors regional directors should consider in deciding whether to direct mail-ballot elections in the context of COVID-19. Therefore, the Board remanded the case to the regional director to apply the framework in the first instance, taking into account how circumstances have changed since the decision was issued.
Concurrence. Although she concurred in the result of the decision, Member McFerran argued that the majority decision did not rise to the demands of the occasion. She urged that at least until the pandemic is over, the Board should adopt a default presumption that mail-ballot elections are appropriate, unless in a regional director’s reasoned judgment the circumstances of a particular case require in-person voting to achieve the goals of the NLRA. Further, McFerran argued that trying to determine on a place-by-place, case-by-case basis whether a mail-ballot election is appropriate is administratively burdensome, invites litigation, and could increase health risks.
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