September 28, 2021

Volume XI, Number 271

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September 27, 2021

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The Board Weighs In on the COVID Mail Ballot Controversy

Did an NLRB’s Regional Director abuse her discretion when she directed a mail ballot election instead of an in-person (manual) ballot election during the COVID-19 pandemic?  Though not getting the attention it deserves, this is an extremely important issue going to the very integrity of the Board’s representation process.  Manual balloting has long been the Board’s preferred manner of conducting an election because mail balloting is held under less controlled conditions and, thus, more prone to irregularities.  Moreover, mail ballot elections may result in lower employee election participation.  Most importantly to employers, mail ballot elections also generally favor unions.

As we reported on July 10, in GC Memo 20-10, the Board’s General Counsel went on record as encouraging a return to the manual balloting norm, offering a set of protocols that parties may use to bring elections back to the workplace and away from the mail.  But as we predicted and despite the Board’s traditional preference for manual balloting, Regional Directors (RD) have continued to exercise their discretion, eschewing manual ballot elections, and directing that elections be held by mail ballots as a way of minimizing the risks of the pandemic while still giving workers their day at the representation election ballot box.  The NLRB’s August 25 decision in Aspirus Keweenaw, 370 NLRB No. 13 (Aug. 25, 2020), granting an employer’s Request for Review of a mail ballot election and its Emergency Motion to Stay the election, may soon change the recent spate of mail ballot elections.

The case arises out of an election petition filed by the Michigan Nurses Association involving a unit of employees working at an acute care hospital in Michigan’s Upper Peninsula where the rate of COVID-19 transmissions is low and where the hospital already has in place enhanced virus protocols minimizing the risk of infection.  Moreover, both the employer and the union agreed to a manual election under the protocols outlined in GC Memo 20-10.  Despite these facts, the RD directed a mail ballot election, resulting in the employer’s filing of its Request for Review and its Emergency Stay Motion.

Because the call of whether to conduct an election by in-person balloting or mail ballot is a matter left to an RD’s discretion, the Board will likely have to address whether this RD abused her discretion in directing a mail ballot or perhaps devise a new standard for RD’s to follow when making such discretionary calls.  In either event, Aspirus Keweenaw is an important case that should be followed.

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 245
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About this Author

Keahn Morris, Sheppard Mullin Law Firm, San Francisco, Labor and Employment Law Attorney
Associate

Keahn N. Morris is an associate in the Labor and Employment Practice Group in the San Francisco office.Keahn’s practice focuses on all areas of labor and employment law, with an emphasis on traditional labor law, high-stakes employment-related litigation, and proactive counseling of management-side clients. Recognized by Super Lawyers as a "Rising Star", Keahn was identified as a top rated labor and employment attorney in San Francisco in 2014, 2015, 2016, and 2017. He has significant experience in all aspects of labor-management relations law, including union corporate...

415-774-2934
James Hays, Legal Specialist, management of labor and employment law
Partner

 Mr. Hays is a partner in the Labor & Employment Practice Group in the firm's New York office and co-chairs the firm's Traditional Labor Law Team.

Areas of Practice

Mr. Hays' practice focuses on management labor and employment law. He represents clients in collective bargaining negotiations, labor arbitrations, and all stages of the labor election process, including election campaigns and hearings before the National Labor Relations Board. He also represents clients in employment litigation in federal and state courts, as well as...

212-634-3025
John Bolesta, Lawyer, Employment, Sheppard Mullin Law Firm
Special Counsel

John S. Bolesta is a Special Counsel in the Labor and Employment Practice Group in the firm's Washington, D.C. office

Areas of Practice

Mr. Bolesta represents management in a wide variety of labor and employment litigation matters. He represents clients in a broad range of industries during union organizing attempts and litigation before the National Labor Relations Board, contract negotiation and labor arbitrations. Additionally, he advises clients on best practices in employee relations and the development of comprehensive labor strategies to preserve the...

202 747 3375
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