Union Elections In the Pandemic – How the NLRB is Moving Towards Mail Ballot Elections

COVID-19 has shifted the National Labor Relations Board’s (“NLRB”) longstanding policy that representation elections should generally be conducted manually.  In a recent example of COVID-19’s impact on representation elections, the Acting Regional Director for Region 10 issued a Decision and Direction of Election on January 15, 2020 requiring an election petitioned for by the Retail, Wholesale and Department Store Union (“the Union”) occur by mail-ballot because of the “undeniable presence of COVID-19 both inside and outside the Employer’s facility.”  The employer, Amazon.com Services LLC, requested a manual election – still the applicable presumption – while the Union requested an election by mail ballot.  In deciding that the election should take place by mail, the Regional Director cited guidance issued by the Centers for Disease Control related to general elections and guidance issued from the Office of the General Counsel as to what protocols should be used for a manual election during the pandemic.  But the most significant guidance the Regional Director relied on in mandating a mail-ballot election was the framework developed by the NLRB in the Aspirus Keweenaw case.

Framework Established by NLRB in Aspirus Keweenaw

In Aspirus Keweenaw, the NLRB reviewed a decision from the Regional Director for Region 18 that a mail-ballot election should occur at a hospital in Michigan over a manual ballot election because of “the extraordinary circumstances presented by the COVID-19 pandemic.”  The NLRB began its analysis by acknowledging that there is a presumption in favor of manual elections, particularly as statistics show that participation is generally higher for manual elections.  However, the NLRB recognized that its approach to elections must evolve based on the unique circumstances created by the COVID-19 pandemic and the need for more defined parameters as to when a mail-ballot election is appropriate based on changing pandemic conditions and in consideration of its preference for manual elections.  Specifically, the NLRB laid out six situations that will normally suggest a mail-ballot election:

  1. The Agency officer 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% 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 the GC Memo 20-10 protocols;
  5. There is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status; or
  6. Other similarly compelling considerations.

The NLRB remanded the case to the Regional Director to apply this framework based on the current circumstances of the pandemic.  The NLRB explained that it was appropriate to apply the framework per its established presumption that a new rule be implemented retroactively in representation cases unless it will work a manifest injustice.

Application of Aspirus Keweenaw

Using the framework developed by the NLRB in Aspirus Keweenaw, the Regional Director for Region 10 evaluated the six situations to decide whether to direct a mail-ballot or manual election.  As to the first and third situations, the Regional Director acknowledged that the Agency offices were not under mandatory telework status, nor would the polling place violate any mandatory state or local health orders.  Moreover, the Regional Director recognized that the precautions proposed by the employer exceeded those discussed in GC Memo 20-10.  Specifically, Amazon proposed to hold the manual election in a parking lot adjacent to the facility that could accommodate a large tent equipped with heating and lighting, as well as making COVID testing available to participants; conducting temperature screenings; using its social distancing tools to monitor the line leading to the voting tent; providing resources to support contactless ballot distribution; and making arrangements for Board agents to safely participate. Without specifically addressing the accommodations offered by the employer or weighing the preference for a manual election, the Regional Director determined a mail-ballot is appropriate based on the remaining factors set out by the NLRB.

As to the fifth situation outlined in Aspirus Keweenaw, the Regional Director noted that the term “outbreak” has not been defined but stated that “any presence of COVID-19 in an employer’s facility has been cited as a factor in favor of conducting a mail ballot election in multiple Directions of Election.”  Thus, she determined that the 40 individuals identified as having tested positive for COVID-19 in the past 14 days out of the thousands of employees at the facility was sufficient to weigh in favor of a mail-ballot election.  She also assessed the current level of new confirmed cases in the relevant county over the last 14 days related to the second situation.  The Regional Director reviewed available statistics on COVID-19 cases in Jefferson County and decided that the testing positivity rate and number of new confirmed cases met circumstances to support an election by mail as described by the NLRB.

The Regional Director briefly addressed the employer’s concerns with the Region’s ability to handle a mail-ballot election of this size (over 6,000 workers in the petitioned-for unit), acknowledging that this would be an “unusually large election,” but dismissed the contention that the administrative burden should impact the election.  She also expressed her belief that methods of digital communication available to the employees, the employer, and the Union “in equal measure” would address Amazon’s concern related to communication with its workers.  The Regional Director gave credence to the Union’s argument that that the Region’s use of employer resources, as proposed to address the potential risks of COVID-19, would tend to give the impression that the Region is no longer neutral.  She concluded by directing a mail-ballot election to begin on February 8, 2021 and continue until March 29, 2021 – a 50-day election period versus the 4 days proposed by the employer for a manual election. On January 21, 2021, Amazon appealed this decision.

This decision certainly does not bind Regional Directors in other Regions in how they assess whether to hold a manual or mail-ballot election, but it does demonstrate how the Aspirus Keweenaw factors may be applied in the current circumstances of the COVID-19 pandemic.  If other Regional Directors do take a similar approach, considering the current state of the pandemic – rising case numbers in other states and locales – mail-ballot elections may become the norm for the time being.  However, this could shift depending on the impact of the vaccine rollout on case numbers; i.e., whether the trend in positive cases shifts away from the circumstances laid out in the second situation. Notably, Congressman Andy Levin of Michigan recently introduced legislation on conducting remote representation elections using an electronic voting system in relation to the ongoing pandemic.

Other Recent Changes at the NLRB

In addition to the shift in how representation elections are occurring, there have also been some significant recent changes at the NLRB unrelated to the current pandemic.  On the first day of his presidency, and only a matter of minutes after his inauguration, President Joe Biden requested that the General Counsel of the National Labor Relations Board, Peter Robb, resign from his position or face termination.  Mr. Robb was a Trump appointee and had been confirmed by the Senate to a 4-year term set to expire in November 2021.  Mr. Robb declined to resign and was fired from his position later that same day.  In his letter explaining his decision not to resign, Mr. Robb noted that the request for his resignation was unprecedented – the only similar situation happened back in 1950 when the General Counsel resigned before the end of his term upon the request of President Truman.  No other General Counsel has been fired.  Mr. Robb also asserted that his removal would set a problematic precedent that would undermine the proper functioning of the NLRB and the National Labor Relations Act, as well as the intended independence of the General Counsel position.  He asserted that the General Counsel is supposed to function free from political influence, including White House interference.                

Mr. Robb’s deputy, Alice B. Stock, was also fired a day later after she refused to resign.  In her letter to the White House Office of Presidential Personnel, Ms. Stock questioned whether the terminations were legal and asserted – as did Mr. Robb in his letter – that the abrupt nature of the removals would disrupt the NLRB’s operations.  One or both these firings could prompt a legal challenge, but the position of Acting General Counsel is currently being filled by Peter Sung Ohr.  In his campaign, President Biden had pledged a strong pro-union stance and these actions, as well as appointing Democrat NLRB Member, Lauren McFerran, the Chairwoman of the NLRB, demonstrate that he is already following through on that pledge.

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