On May 16, 2023, National Labor Relations Board 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. The Board’s policies have generally favored manual elections, but that rule was upended by the COVID-19 pandemic. During the onset of COVID-19, manual elections were halted completely and when elections resumed, they were conducted by mail-in ballot to ensure participant safety. As the pandemic wore on and more workers and employers alike learned how to safely return to the physical workplace, the Board issued its initial suggestions of how to safely conduct a manual election, signaling a desire to return to the status quo.
In its 2020 decision in Aspirus Keweenaw, 370 NLRB No. 45 (2020) the NLRB reiterated a Regional Director’s duty to exercise discretion within the guidelines and parameters established by the Board and the guidance from the GC, which is incorporated into one of the factors in the Board’s test for determining the propriety of mail-ballot elections. The NLRB ruled that when Regional Directors decide between a mail-ballot election and a manual one, they must consider six factors: (1) whether the agency office is under “mandatory telework,” (2) whether the 14-day trend of confirmed COVID-19 cases is increasing or if the positivity rate in the area is 5% or higher,[1] (3) whether the manual election site cannot be established in a way that conforms to local and state health orders relating to maximum gathering size, (4) whether the employer fails or refuses to abide by protocols established in the General Counsel 20-10 memorandum, (5) whether there is a current outbreak at the facility or the employer refuses to disclose current status, and (6) other similarly compelling considerations. When one or more factor was present, a reality during most of 2020 through 2021, Regional Directors almost reflexively directed mail-ballot elections.
With the end of the U.S. national emergency regarding COVID-19, the federal COVID-19 public health emergency declaration, and the global health emergency, as determined by the World Health Organization, the GC overhauled its initial suggested manual election protocols, signaling a likely return to the NLRB’s long-held preference for manual elections. While the GC noted that the decisions on election procedures and the safety of all participating in an election remain in the sound discretion of the Regional Director, the GC’s new protocols are significantly less restrictive than parties previously faced:
- Individuals should not attend a manual election if they are experiencing 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 after the election (or an in-person meeting connected to the election), they must notify the Board agent on the case;
- If there is a local or state mask requirement all individuals present at the manual election must wear a mask – the Region or Employer should provide masks if they are available;
- Individuals participating in manual elections are encouraged to maintain reasonable physical distance and avoid overcrowding; and
- Individuals will be encouraged to use hand sanitizer, where available.
Ultimately, as workplaces return to more steady in-person engagement, the GC’s updated Manual Election protocols align with that reality and signal the Board’s return to its well-worn preference for manual elections.
*Jasmine Cooper is a summer associate in the Labor and Employment group and assisted with the drafting of this article.
FOOTNOTES
[1] While the NLRB has refused to overturn Aspirus, in 2022 it did clarify and realign factor two by utilizing the CDC Community Level metric instead of the 14-day positivity rate, reasoning the community metric was a far more accurate measure of risk for the participants.