The National Labor Relations Board (NLRB) recently issued a decision that provides guidance for determining when a representation election should be conducted through mail ballots, rather than in-person voting, due to health and safety concerns related to COVID-19.

The NLRB recognized that while “existing precedent strongly favors manual elections,” i.e. in-person, the extraordinary circumstances that surround the global pandemic warrant an exception to traditional methods. In the Aspirus Keweenaw decision, the Board specified that when one or more of the following six circumstances are present, it suggests that an election should be held via mail ballots:

• 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 the GC Memo 20-10 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 considerations.

Since March 2020, the Board has conducted approximately 90 percent of its representation elections with mail ballots. As COVID-19 cases across the United States continue to trend upwards as of November 2020, it is likely that the increasing trend of mail ballot elections will also continue.

The Aspirus Keweenaw decision was issued by the NLRB on November 11, 2020 and can be found here. For more updates follow Levy Ratner on LinkedIn.