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NLRB Clarifies When Union Elections By Mail Are Appropriate

 

On November 9th, the National Labor Relations Board (“NLRB”) issued a decision in Aspirus Keweenaw and addressed when, in light of the coronavirus pandemic, a union election would be appropriately conducted by mail rather than in person.

Earlier this year, approximately seven mail ballot elections had been postponed in order for the NLRB to consider employer objections.  With that being said, the NLRB had rejected many of these employer objections.  However, the November 9th decision from the NLRB provides six factors for when union elections by mail would be appropriate:

  • When the NLRB office that is conducting the election is on mandatory telework;
  • When either the 14 day trend in new coronavirus cases in the county where the facility is located is increasing or when the 14 day testing positivity rate in that location is 5% or higher;
  • When the in person election site cannot be set up without violating mandatory state or local health orders that limit the size of gatherings;
  • When the employer cannot commit to following NLRB guidance for safe, manual, in person elections;
  • When there is a current coronavirus outbreak at the workplace or when the employer will not reveal its current status (as to certifying that it is safe to conduct an in person election); or
  • When there are other circumstances that are “similarly compelling.”
That sixth factor is a bit of a catch all, right?  I think that sixth factor was likely added to provide a bit of leeway, should a decision be made to conduct an election via mail.  

There are two additional things I will point out here.  1) any one of the six factors can trigger a union election by mail.  A majority (or all) of the factors do not need to be established.  2) this was a unanimous decision by the NLRB, with Board Member Lauren McFerran (the lone Democratic appointed Board Member) issuing a concurring opinion.  


For a copy of the NLRB’s decision in Aspirus Keweenaw:  https://apps.nlrb.gov/link/document.aspx/09031d45832bd759

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