On May 16, 2023, National Council on Labor Relations General Counsel Jennifer Abruzzo (the “GC”) issued revisions to her original July 6, 2020 memorandum of suggested manual election protocols for use during the COVID-19 pandemic. , found here. Council policies generally favor manual elections, but that rule has been overturned by the COVID-19 pandemic. During the onset of COVID-19, manual elections were halted entirely, and when elections resumed, they were held by mail-in ballot to ensure the safety of participants. As the pandemic progressed and more workers and employers learned how to safely return to the physical workplace, the Council issued its initial suggestions for how to safely conduct a manual election, signaling a desire to return to the status quo.
In its 2020 decision to Aspirus Keweenaw370 NLRB No. 45 (2020) the NLRB reiterated the duty of the Regional Director to exercise discretion inside of the guidelines and parameters established by the Board; and the GC guidance, which is incorporated into one of the Board’s test factors for determining the appropriateness of mail-in elections. The NLRB has determined that when Regional Directors decide between a mail-in election and a manual election, they must consider six factors: (1) whether the agency office is under “mandatory telecommuting,” (2) whether the 14-day trend confirmation Cases of COVID-19 are increasing or if the positivity rate in the area is 5% or higher,(1) (3) if the manual polling place cannot be established in compliance with state and local health orders regarding maximum meeting sizes, (4) if the employer fails or refuses to comply with protocols set forth in the General Council Memorandum 20-10, (5) whether there is a current outbreak at the facility or the employer refuses to disclose the current status, and (6) other equally compelling considerations. When one or more factors were present, a reality for most of 2020-2021, Regional Directors almost reflexively directed elections by mail.
With the end of the US national COVID-19 emergency, the federal declaration of a COVID-19 public health emergency, and the global health emergency as mandated by the World Health Organization, the GC has revised its initial manual election protocols suggested, signaling a likely return to the NLRB’s longstanding preference for manual elections. While the GC noted that decisions about election procedures and the safety of all participants in an election remain at the discretion of the Regional Director, the new GC protocols are significantly less restrictive than the parties previously faced:
- Individuals should not attend a manual election if they have symptoms of COVID-19;
- If an individual who participated in a manual election tests positive for COVID-19 or develops symptoms of COVID-19 within 10 days of the election (or an election-related in-person meeting), he must notify the Council agent of the case;
- If there is a local or state mask requirement, all individuals in attendance at the manual election must wear a mask – Region or Employer must provide masks if they are available;
- Individuals participating in manual elections are encouraged to maintain reasonable physical distance and avoid overcrowding; It is
- Individuals will be encouraged to use hand sanitizer where available.
Finally, as workplaces return to more sustained personal involvement, the updated GC manual election protocols align with this reality and signal the Board’s return to its outworn preference for manual elections.
*Jasmine Cooper is a summer associate of the Trabalho e Emprego group and helped with the writing of this article.
FOOTNOTES
(1) Although the NLRB refused to take down Aspirus, in 2022 it clarified and realigned the factor two, using the CDC Community Level metric instead of the 14-day positivity rate, reasoning that the community metric was a much more risky measure. need for participants.