November 16, 2020

NLRB Sets Standards For Mail-In Labor Union Elections

On November 9, the National Labor Relations Board (NLRB) outlined the circumstances in which regional directors should hold mail-in (rather than in-person) voting for union elections during the coronavirus pandemic. The board said, “The NLRB’s longstanding policy strongly favors manual elections, although since the onset of the COVID-19 pandemic, the Board has permitted mail-ballot elections under extraordinary circumstances.”

The decision provided six situations related to the COVID-19 pandemic and said that, when one or more is present, circumstances would suggest the propriety of conducting an election by mail, rather than manual ballot.

Those six factors are:

  • The office that is tasked with conducting the election is operating under “mandatory telework” status;
  • 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 five percent or higher;
  • 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;
  • The employer fails or refuses to commit to abide by suggested manual election protocols;
  • There is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status; or
  • Other similarly compelling circumstances.