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Law360 (November 12, 2020, 8:53 PM EST) -- National Labor Relations Board regional directors need to have solid data on how COVID-19 is impacting a city or county to justify a mail-in union election, according to a memo from the NLRB's general counsel.
The Tuesday memorandum from NLRB general counsel Peter B. Robb lays out what the agency's 26 regional directors should consider when deciding how to stage union elections in light of COVID-19, which the agency recently tackled in a case involving a Michigan hospital. Robb's memorandum outlined how regional directors can back up decisions for a mail-in ballot that will be viewed favorably in the event of a board review.
"As the Covid-19 pandemic has unfolded, the board's guidance regarding the propriety of mail-ballot elections in view of the pandemic has similarly evolved," Robb's memorandum said.
Robb's memorandum follows the NLRB's decision in a case involving Aspirus Keweenaw, a hospital operator that claimed NLRB regional director Jennifer Hadsall abused her discretion in ordering a mail-in ballot for voting on representation by the Michigan Nurses Association.
The hospital argued that since the upper Michigan peninsula was not under a COVID-19 lockdown or telework orders, an in-person election with proper safety procedures was appropriate, per the NLRB's preference for in-person elections.
Hadsall justified the mail-in ballot, citing the risk for an NLRB election monitor in traveling through Wisconsin and Michigan due to their high COVID-19 rates. She also based her decision on guidance from the Centers for Disease Control and Prevention on social distancing, and Michigan's governor recommending remote work in the peninsula region.
The NLRB reversed the regional director's decision Monday, sending it back to Hadsall so she could apply a six-point framework for determining whether COVID-19 was reason enough for a mail-in ballot.
One of those six points to consider for a mail-in ballot is the severity of the outbreak where the election is being held, Robb's memo said, offering a choice of two types of data. Regional directors can look at whether the 14-day trend in new COVID-19 cases is increasing in the city or county where the election is being held, or if the 14-day test positivity rate in that region is 5% percent or higher.
However if city- or county-level data on COVID-19 is not available, regional directors can also use state-wide data, the memorandum said. In the event employees live in a geographically distinct area from where their workplace is, regional directors can also consider COVID-19 case data there as well.
The NLRB said it will back up decisions from regional directors on mail-in elections, unless the employer can provide better geographic data and arguments to show the regional director's choice of certain data was an abuse of discretion.
"Regional directors are not required to use any particular geographic level of data where better, more applicable, data exists, and regional directors should cite with explanation the best available geographic statistical measure in making their determinations," Robb said.
Robb's memorandum also said that regional directors can justify mail-in ballots due to mandatory lockdowns from local or state governments, but recommended lockdowns are insufficient for such a decision.
Similarly, the NLRB has switched from mandatory telework to allowing employees the choice to work from home, Robb said. Should mandatory telework at the NLRB once again be required, a mail-in ballot is justified.
Employers will also have to comply with the NLRB's rules on conducting a safe in-person election, Robb's memorandum said. If an employer doesn't appear willing or able to meet with those rules, the regional director can order a mail-in ballot. An employer will also have to certify whether people at its workplace have tested positive for COVID-19, or that there is otherwise not an outbreak there.
"During the pandemic, regional directors have been confronted with many novel and difficult decisions requiring the exercise of discretion," Robb's memorandum said. "Although the board's recent decision provides further guidance, regional directors must continue to exercise their sound discretion where new situations arise."
The National Labor Relations Board Union, which represents election monitors, warned in a Thursday press release that in-person elections represent a threat to its members, and that the board's decision to overturn the Aspirus case is more likely to stifle mail-in elections.
NLRBU President Burt Pearlstone said his group wants mandatory masking of in-person elections, certification that election observers have no COVID-19 symptoms and increased air ventilation at election sites, and agents at risk of catching the disease to be exempted from overseeing elections.
Regarding the guidelines on mail-in elections, Pearlstone said the NLRB "unreasonably assumes" that regional directors can predict the course of a COVID-19 outbreak from current data, when an in-person election might occur several weeks after their decision.
"There is a tried and true method to hold safer elections, and that is to conduct elections by mail," Pearlstone said. "Using mail ballots until the agency is able to safely conduct elections gives workers the ability to vote without endangering the health of NLRB employees and voters."
--Editing by Abbie Sarfo.
For a reprint of this article, please contact reprints@law360.com.
