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Union Elections by Mail or in Person? NLRB Unveils Framework (2)

Nov. 9, 2020, 9:14 PMUpdated: Nov. 10, 2020, 2:00 PM

The National Labor Relations Board identified specific, concrete conditions necessary for a union election to be held by mail-in ballot due to the coronavirus pandemic instead of the traditional in-person voting method.

The decision, unveiled Monday, provides a framework for regional directors to decide what type of voting method is appropriate for individual union elections as the country remains firmly in the grip of the pandemic.

The five factors that “normally” trigger a mail-in election include increases in confirmed Covid-19 cases or positivity rates where the worksite is located, an ongoing outbreak at a facility, and agency officials responsible for overseeing the vote being on mandatory telework status, the NLRB said. The board also added a sixth catchall factor of “similarly compelling circumstances” that could justify mail balloting.

The daily number of new Covid-19 infections in the U.S. set records for three consecutive days last week, according to Bloomberg News data. Roughly 90% of union elections have been conducted by mail since the pandemic took hold in March, the agency said.

The NLRB had roundly rejected employer objections to mail-ballot elections until late August, when it suspended a mail vote to determine whether nurses at Aspirus Keweenaw Hospital would join Michigan Nurses Association.

The board has halted at least seven mail-ballot elections to consider employer arguments for in-person voting. Statistics through mid-October show that unions have won seven of 10 elections this year regardless of how workers cast their ballots.

Employers are generally skeptical about mail-ballot elections due to concerns about fraud, whereas unions say they’ve been hurt by canceled mail votes and the subsequent delay.

The NLRB laid out its test for agency officials to order mail-in elections in the Aspirus case. The board sent the case back to the regional director to apply the factors and decide what type of election is appropriate. The ballots originally were scheduled to be counted nearly two months ago.

Michigan Nurses Association President Jamie Brown said the board’s development of specific factors for mail-ballot elections is “appreciated,” but it’s “unacceptable that the delay in issuing this decision” effectively deprived nurses of their legal right to form a union and bargain collectively on health and safety issues during the pandemic.

“An election must be held—and soon,” Brown said in a statement.

An Aspirus spokeswoman and an attorney for the hospital didn’t respond to email and telephone requests for comment.

Factors at Play

In its decision, the board said that the presence of at least one of the following factors can trigger a mail-ballot vote:

  • the NLRB office conducting the election is on mandatory telework;
  • either the 14-day trend in new Covid-19 cases in the county where the facility is located is increasing, or the 14-day testing positivity rate in that location is 5% or higher;
  • the in-person election site can’t be set up without violating mandatory state or local health orders limiting the size of gatherings;
  • the employer won’t commit to following NLRB guidance for safe, manual elections;
  • a current Covid-19 outbreak at the workplace or the employer won’t reveal its current status; or
  • other circumstances that are “similarly compelling.”

“While protecting the health and safety of all election participants, these guidelines also recognize the benefits of conducting elections in the workplace, where many of the employees we serve have continued to work during the pandemic,” NLRB Chairman John Ring said in a statement.

Ring and fellow Republican members Marvin Kaplan and William Emanuel joined the majority decision. Lauren McFerran, the board’s lone Democrat, wrote a separate opinion concurring in the result.

The Republican board members “deserve credit for recognizing the reality of a public health emergency,” but they failed to go far enough and declare that mail-ballot voting should be the default until the pandemic is over, McFerran wrote. The NLRB also should consider allowing mail, electronic, and telephonic voting on a permanent basis, she said.

“Other Federal agencies, such as the Federal Labor Relations Authority and the National Mediation Board, have long since adopted those election methods—it is time for the Board to bring its elections into the modern age,” McFerran said in her opinion.

The case is Aspirus Keweenaw, N.L.R.B., Case 18-RC-263185, Decision 11/9/20.

(Updated to add comment from union. The article originally published Nov. 9.)

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

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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