The National Labor Relations Board’s (NLRB) longstanding policy strongly favored manual representation elections. With the COVID-19 pandemic’s onset, the Board began permitting mail-ballot elections under the “extraordinary circumstances” exception to its manual ballot preference.
In November 2020, the Board issued a decision in Aspirus Keweenaw, 18-RC-263185, 370 NLRB No. 45, identifying six key considerations for Regional Directors when determining whether to conduct a mail-in election in response to the pandemic:
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The Agency office tasked with conducting the election is operating under “mandatory telework” status.
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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.
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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.
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The employer fails or refuses to commit to abide by the General Counsel’s suggested manual election protocols.
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There is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status.
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Other similarly compelling circumstances.
As always, the Board’s Regional Directors are responsible for initially deciding when, how, and in what manner to conduct an election. But, with the end of the federal COVID-19 public health emergency declaration, and the global health emergency as determined by the World Health Organization, Board General Counsel Jennifer Abruzzo has suggested new protocols for Regional Directors to follow when they opt for a manual election:
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Individuals should not participate in-person in a manual election, and other in-person meetings related to the election, if they have COVID-19, fever, chills, or other new or unexplained symptoms consistent with COVID-19 such as: new or unexplained onset of cough, shortness of breath, or difficulty breathing; new or unexplained loss of taste or smell; or new or unexplained muscle aches.
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If an individual who participated in a manual election develops symptoms or tests positive for COVID-19 within 10 days after the election or an in-person meeting related to the election, they must promptly notify the Board agent assigned to the case.
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If the Centers for Disease Control and Prevention or a state or a locality determines that a mask requirement is necessary in the location in which a manual election is to be held, all individuals must wear a well-fitting, high-quality face mask (N-95, KN-95, N-94, surgical mask, or similar). If masks are required, and the region or employer has an adequate supply of N-95 or equivalent masks available, they are strongly encouraged to offer them for use by all election participants. Individuals participating in manual elections in other locations may wear a mask at their choosing.
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Individuals participating in manual elections are encouraged to maintain reasonable physical distance and avoid overcrowding.
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Individuals will be encouraged to use hand sanitizer, where available.
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