By Danielle Nichole Smith

Law360 (November 9, 2020, 4:31 PM EST) -- The National Labor Relations Board in a decision Monday provided more guidance to agency officials for determining whether a union election should be held in person or by mail, laying out six pandemic-related situations in which mail ballots are likely to be fitting.

NLRB Chairman John F. Ring said in the agency's press release that the decision in Aspirus Keweenaw will give "much-needed guidance to regional directors and parties on the circumstances in which mail-ballot elections are appropriate during this pandemic." About 90% of NLRB union elections have been conducted by mail since March, the release said.

"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," he added.

The first circumstance described by the board in its decision was if the NLRB office running a union election is working under "mandatory telework" status. Though the agency's offices have been having permissive, rather than mandatory, telework since mid-June, it was possible that situation could change, the board said.

Next, the board cited instances in which the 14-day trend for the number of confirmed COVID-19 cases is increasing or the 14-day testing positivity rate is 5% or higher in the county where a facility is located, also noting that there might be times when broader regional or narrower intracounty data are more relevant in a case.

Third, the NLRB pointed to an inability to set up an election site without flouting mandatory state or local health orders for gatherings as grounds for a mail-ballot election, but it said nonmandatory guidance — like that relied on in the case — wouldn't be enough justification on its own.

The fourth situation the NLRB mentioned was one in which an employer refuses to comply with the NLRB's suggested manual election protocols. However, the board also warned regional directors against approving any manual election arrangements that would make it seem like anyone other than the board had control over the process.

A current outbreak at a facility would also be a basis for directing a mail-ballot election, the board said. During the pandemic, the NLRB will be requiring employers to certify information about individuals' possible infection with COVID-19 in the facility in the prior 14 days as part of its submission on election arrangements, according to the decision.

Lastly, the board noted that "other similarly compelling considerations" could warrant a mail-ballot election, as the situations it pointed to weren't "exclusive or exhaustive."

"To be sure, regional directors must continue to exercise their discretion in this area; the foregoing situations do not require a mail-ballot election," the board said. "Instead, we conclude only that a regional director who does direct a mail-ballot election under the foregoing situations will not have abused his or her discretion."

Ring was joined by NLRB members Marvin E. Kaplan and William J. Emanuel in the decision, but board member Lauren McFerran penned a separate opinion that concurred in the result.

In her opinion, McFerran commended her colleagues for "recognizing the reality of a public health emergency" but said the decision didn't "rise to the demands of the occasion." The board shouldn't be treating mail-ballot elections as deviations that need case-by-case approval while COVID-19 is spreading uncontrollably, McFerran said.

"Accordingly, at least until the pandemic is over, the board should adopt a default presumption that mail-ballot elections are appropriate, unless in a regional director's reasoned judgment the circumstances of a particular case require in-person voting to achieve the goals of the National Labor Relations Act: free, fair, prompt, and accurate representation elections," McFerran wrote.

McFerran also said that "it is time for the board to ask itself — and the public — whether it is finally time to move beyond manual elections as the default method." She pointed out that the Federal Labor Relations Authority and the National Mediation Board, which also hold representation elections, have adopted mail, telephone and electronic voting.

The case came before the board after Aspirus Keweenaw, a Michigan hospital, asked for review of a regional director's decision calling for a mail-ballot election in response to its workers' petition to affiliate with the Michigan Nurses Association.

In its decision Monday, the NLRB remanded the case back to the regional director to have the considerations outlined in the ruling applied retroactively. In the board's press release, Ring also thanked the agency's regional directors for their efforts.

"Carrying out the mission of the agency — particularly conducting our elections — has been challenging during these unprecedented times, and the board acknowledges and sincerely thanks our regional directors and regional office staff for their extraordinary work on the front lines of this effort," Ring said in the release.

Jamie Brown, the president of the Michigan Nurses Association, told Law360 in a statement Monday that the nurses at the hospital petitioned to unionize in July "because they wanted to have a say in their working conditions and have a voice to advocate for their patients – especially during a pandemic."

"Since that time, COVID-19 cases in the hospital's area have increased by 226.6% and more nurses and healthcare professionals in the state of Michigan have died from infection," Brown said. "While the Board's articulate development of the specific factors necessary to order a mail ballot election in the remaining months of the pandemic is appreciated, it is unacceptable that the delay in issuing this decision has effectively deprived our fellow nurses of their statutory rights to form a union and collectively bargain for their health and safety during such a critical time. An election must be held – and soon."

Counsel for the hospital didn't respond to a request for comment late Monday. 

--Editing by Haylee Pearl.

For a reprint of this article, please contact reprints@law360.com.