May 10, 2021

Volume XI, Number 130

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May 10, 2021

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May 07, 2021

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Mail It In! NLRB Sets Standards For Mail-In Ballot Union Elections During Pandemic

In a recent decision, the NLRB set forth a framework to help Regional Directors determine whether union elections should be held in person or by mail.

As we previously reported, there has been a recent influx of mail-in ballots in union elections due to the COVID-19 pandemic. The National Labor Relations Board (NLRB) has given Regional Directors discretion on how to conduct union elections during the pandemic. Since March, approximately 90 percent of elections have been conducted by mail. 

In its Aspirus Keweenaw decision on Nov. 9, the Board identified six situations which, when one or more is present, will favor conducting the election by mail. The situations are:

  1. The agency office tasked with 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 facility is located is increasing, or the 14-day testing positivity rate in the county where the 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

This decision will provide much needed guidance to both Regional Directors and employers on the circumstances in which mail-in ballot elections are appropriate. Regional Directors will now have some boundaries that frame their decision-making on how to conduct an election, and employers have some guidance on how to assess whether a manual, in-person election is feasible at their workplace in the face of a union campaign.

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© 2021 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 315
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About this Author

David J. Pryzbylski, Barnes Thornburg Law Firm, Indianapolis, Labor Law Attorney
Partner

David concentrates a large portion of his practice on assisting employers with traditional labor matters. His deep experience includes collective bargaining, work stoppages, arbitrations, union avoidance training and strategies, union representation elections, unfair labor practice charges, contract administration, and various other labor relations issues.

David has helped companies secure favorable outcomes with labor issues around the country. He has experience with numerous labor unions, including the Steelworkers, Teamsters, Laborers, Sheet...

317-231-6464
Associate

A detailed-oriented and strategic thinker, Colleen Naumovich is committed to helping her clients navigate the ever-changing field of labor and employment law, understand how the laws affect every facet of their business, and implement best practices.

Colleen brings focus and dedication to assisting her employer clients with various workplace and employee needs they have. She conducts legal research and drafts memoranda, motions, and positions statements to the National Labor Relations Board. She also helps clients prepare for trial by reviewing depositions and providing summaries of...

317-231-6408
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