The National Labor Relations Board (NLRB) has established standards for its regional directors to weigh in on whether a representation election in which COVID-19 is a concern should be conducted by mail ballot or in-person (manual) ballot. Aspirus Keweenaw, 370 NLRB No. 45 (2020).

Chairman John F. Ring and Members Marvin E. Kaplan and William J. Emanuel joined in the majority decision. Member Lauren McFerran wrote a separate concurring opinion.

Although NLRB policy strongly favors in-person elections, during the pandemic, approximately 90% of NLRB representation elections conducted since March have been ordered by regional directors to be conducted by mail, according to the NLRB. For more on this issue, see our article, Plan Ahead, Employers: NLRB Ordering Mail Ballot Elections Because of COVID-19 Pandemic. (When those orders have been appealed to the NLRB, the NLRB has approved the decisions because of the risks associated with the pandemic.)

In Aspirus Keweenaw, the employer, located in Wisconsin, requested a manual ballot election. The Regional Director directed a mail ballot election “based on the extraordinary circumstances presented by the COVID-19 pandemic.” On appeal, the NLRB set forth six situations associated with the pandemic, and noted that, when one or more exists, a mail ballot election normally is more appropriate.

Employers have long disfavored mail ballot elections for a number of reasons, including that voter participation is lower than in connection with a manual ballot election. (Conventional wisdom is that higher voter participation favors the employer.) In Aspirus Keweenaw, the NLRB noted statistics that support employers’ participation concerns. Between October 1, 2019, and March 14, 2020, the NLRB had conducted 508 manual ballot elections, in which 85.2% of eligible voters cast a ballot and that, during the same time period, 48 mail ballot elections had been conducted in which only 55% of eligible voters cast a ballot. The NLRB further noted that, from March 15, 2020, through September 30, 2020, the NLRB conducted 46 manual ballot elections, in which 92.1% of eligible voters cast a ballot and 432 mail ballot elections in which only 72.4% of eligible voters cast a ballot.

The NLRB outlined the following six circumstances, which are to be applied retroactively:

1. The NLRB office that will conduct 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 (almost always the employer’s facility) 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 “unequivocally” commit to abide by the protocols contained in GC Memorandum 20-10. For more on those protocols, see our blog, NLRB General Counsel Issues Guidelines for In-Person Elections During COVID-19 Pandemic.

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.

The NLRB remanded the case to the Regional Director to reconsider her decision applying the guidelines in Aspirus Keweenaw.