As pandemic continues, NLRB guidance paves way for more mail ballot elections

published in McAfee & Taft EmployerLINC | November 23, 2020

Elections for union representation have long been conducted in-person and with manual ballots.  The National Labor Relations Board has a strong preference for in-person representation elections.  However, the COVID-19 pandemic forced the NLRB to adopt, at least temporarily, a new election procedure utilizing mail ballots.  The Board recently issued a decision providing guidance to regional directors on when mail ballot elections should be held.

“Extraordinary circumstances”

Since March when the pandemic began, about 90 percent of representation elections conducted by the NLRB have been held with mail ballots.  The Board permitted mail ballot elections under an exception for “extraordinary circumstances” that the pandemic presented.  In Aspirus Keweenaw, 18-RC-263185, 370 NLRB No. 45 (11-09-20), the Board announced criteria for when mail ballot elections should be held in light of COVID-19.  The decision is retroactive and applies to pending representation election cases.

The decision outlines six circumstances related to the COVID-19 pandemic that, when one or more is present, will cause an election to be held by mail rather than via in-person manual ballots.  These circumstances are:

  1. The NLRB office conducting 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 employer’s facility is located is increasing, or the 14-day testing positivity rate in the county where the employer’s facility is located is 5 percent or higher
  3. 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
  4. The employer fails or refuses to commit to abide by GC Memo 20-10, Suggested Manual Election Protocols
  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

Several of the criteria reference local aspects of the pandemic.  The Regional Office and employers would need to be knowledgeable about local coronavirus cases and local orders on social distancing and group gatherings.  The decision on which election procedure to utilized is a discretionary decision by the regional director.  This permits employers or unions to argue for either in-person or mail ballot elections.

The Suggested Manual Election Protocols in item #4 are extensive, and by themselves likely will cause nearly every election to be held by mail ballot.  These protocols require social distancing for all participants in the election (e.g. employees voting, the NLRB representative conducting the election, and the observers for both parties) at the election location. The protocols also require the employer to make certain certifications in writing to address the pandemic, including: (1) that the polling area is consistently cleaned in conformity with CDC hygienic and safety standards; and (2) the number of individuals who have been present in the facility used for the election in the preceding 14 days who have tested positive for COVID-19, who are awaiting results of a COVID-19 test, who are exhibit symptoms of  COVID-19, or who have had direct contact with anyone in the previous 14 days.  It is doubtful many employers can make, or will be willing to make, these certifications.

The guidelines mean that mail ballot elections are likely to be the predominant way representation elections are conducted for the foreseeable future.  Mail ballot elections have different features that employers should understand.

How mail elections differ from in-person elections

Typically, the ballots are mailed to employees’ home addresses on a date certain, and the election stipulation sets a specific date and time by which employees must return ballots to the regional office of the NLRB – typically two to three weeks after the ballots are mailed.  Then the ballots are opened and counted via videoconference meeting with the election observers.

As with mail or absentee ballots in elections for national or state offices, employees must follow the procedures for completing the representation election ballot and enclosing their ballots in the blue envelope that comes with the ballot, putting the blue envelope into a pre-addressed yellow envelope, signing the yellow envelope, and mailing the ballot back to the NLRB.  Employees do not turn in their mail ballots to the employer or the union.

Election outcomes and statistics

The use of mail ballots has not affected the outcome of representation elections, based on a report from Bloomberg Law.  Unions have prevailed in slightly more than 70% of the mail ballot elections and of the manual in-person elections held since the pandemic began.  The percentage is 72.2% for 313 mail ballot elections through mid-October versus 70.5% for in-person elections for the same time period.  That rate of union wins in representation elections also is consistent with the union win rate of 71.9% for representation elections from 2015-2019.  The turnout of employees voting in mail ballot elections is lower than in-in person elections – 69.1% for mail elections as compared with 74.8% for in-person votes.