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:
- The Agency officer 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% 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; or
- Other similarly compelling considerations.