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NLRB Top Lawyer Expands on Rules for Setting Union Votes by Mail

Nov. 12, 2020, 9:19 PM

Employers who want their workers to vote in union elections in person during the pandemic must give the National Labor Relations Board information on the scope of Covid-19 infections among their personnel, the agency’s top lawyer said.

Those employers should tell the NLRB how many staffers have tested positive in the preceding two weeks as part of their submissions on election arrangements, General Counsel Peter Robb said in a memo released earlier this week. They should then alert the agency of any positive test results or potentially exposed workers up to the day of the election itself, Robb said.

Robb’s memo, issued to the regional offices that oversee elections, fleshes out a Nov. 9 decision in which the NLRB set a framework for the agency to decide whether pandemic conditions merit holding votes by mail ballot.

The board began second-guessing whether it should continue granting orders for mail-in elections at the end of August, when new Covid-19 cases per day were a fraction of the daily numbers during the current surge—which health experts predict will last into the winter. The U.S. set a new daily record of more than 146,000 cases this week, while hospital beds are filling up across the country.

The NLRB’s ruling in Aspirus Keweenaw set forth factors that would trigger elections by mail. They include increases in confirmed Covid-19 cases or positivity rates where the worksite is located, an ongoing outbreak at a facility, or agency officials responsible for overseeing the vote being on mandatory telework status.

A Means to Monitor

The six-factor framework is welcome because it lets unions know what evidence they need to present to regional officials when arguing for mail-ballot elections, said Maneesh Sharma, the AFL-CIO’s associate general counsel. Several unions have been stuck in limbo after the NLRB suspended previously scheduled mail-in votes, he said.

Requiring that employers give the NLRB information on positive Covid-19 tests in an affidavit if they want to hold a manual election provides the agency with a way to tell if there’s an ongoing outbreak at a facility, Robb’s memo said.

The memo clarified that one of the factors—whether agency staffers tasked with conducting elections are on mandatory telework—isn’t currently an issue. NLRB regional offices have been working from home on a permissive rather than a required basis since mid-June, Robb said.

While the Aspirus ruling said mail ballots are appropriate if the proposed election site would exceed state or local limitations on gathering sizes, those caps must be mandatory and not just guidance, he said in the memo.

Furthermore, NLRB staffers traveling to worksites to conduct elections aren’t subject to quarantine orders because they’re government employees performing an essential service, Robb said.

NLRB spokesman Kevin Petroccione declined to comment on Robb’s memo.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com