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As originally reported in the American Bar Association’s Summer 2020 Labor & Employment Newsletter, due to the outbreak of COVID-19 and the inherent risks in holding large gatherings of people, the prospect of mail ballot elections has recently received considerable national attention. Typically, this attention is focused on how mail ballot elections might affect voter turnout or election results in state and federal elections and whether it might benefit one party over the other. So far, state and federal elections have generally continued to be held with inperson voting occurring at polling places, albeit with new safety measures in place.

Unsurprisingly, the manual versus mail ballot election issue has also arisen in the context of labor union representation elections. However, unlike state and federal elections, representation elections have almost become uniformly mail ballot, with the National Labor Relations Board quickly adapting and adhering to a now standard analysis of the safety and logistical considerations imposed by COVID-19. From March 1 to October 22, 2020, the Board issued 152 election decisions regarding this issue. During this timeframe, only two manual elections have been directed to proceed.

The Board’s Preference for Manual Elections

As can be said about many things in light of COVID-19, the increase in mail ballot elections is unprecedented, as the Board’s “longstanding policy” and preferred method of conducting elections has always been to hold a manual vote supervised by Board personnel. The Board has recognized, however, “that there are instances where circumstances tend to make it difficult for eligible employees to vote in a manual election or where a manual election, though possible, is impractical or not easily done.” The Casehandling Manual goes on to advise that the regional director “should use his/her discretion in deciding which type of election to conduct,” and take into account “at least the following situations that normally suggest the propriety of using mail ballots: (a) where eligible voters are ‘scattered’ because of their job duties over a wide geographic area; (b) where eligible voters are ‘scattered’ in the sense that their work schedules vary significantly, so that they are not present at a common location at common times; and (c) where there is a strike, a lockout or picketing in progress.” Casehandling Manual, § 11301.2 (“Manual or Mail Ballot Election: Determination”) (January 2017). If any of these situations arise, the regional director is advised to consider “the desires of all the parties,” the “ability of voters to read and understand mail ballots,” the “availability of addresses for employees” and the “efficient use of the [NLRB’s] financial resources.”

Regional Directors’ Trend Towards Mail Ballot Elections Due to COVID-19

In recent elections, usually, though not always, it is the employer that wants a manual election and the union that proposes a mail ballot election. See Ultimate RD, Inc. d/b/a R-B Rubber Products, No. 19-RD-259129 (June 2, 2020) (mail ballot election directed at employer’s request). In arguing for a mail ballot election, employers have described in detail the measures they had taken or were willing to take to minimize person-to-person contact and keep employees and Board personnel safe. For example, employers have stated that they were able to provide a well-ventilated area for voting, including an outdoor opening that would allow room for social distancing, mandatory temperature checks and quarantine requirements for employees, a plexiglass partition to separate voters, election observers and Board personnel, disposable pens or pencils for single-use voting, and providing masks and gloves for the election observers, union representatives and Board agents. Employers have also argued that there have been no confirmed, reported or even suspected cases of COVID-19 at their premises where the election would occur. In other cases, the employer has argued that manual elections should proceed because the jurisdiction where the employer was located was “reopening” or, in the case of “essential businesses,” the voting employees had been working their regular schedules throughout the pandemic, albeit with additional safety measures. Employers also argued that there were health risks (spreading the virus via mail) and logistical concerns (loss of Board supervision and voter turnout) associated with a mail ballot election.

In contrast, the party favoring a mail ballot election, usually the union, has argued that mail ballot elections are safer than manual elections, that employer safety measures cannot adequately mitigate the risk of COVID-19 exposure and transmission, and that mail ballot elections allow for the most efficient means of deciding the question or representation, given the circumstances. Unions have also argued that the employer’s safety precautions (e.g. temperature checks and quarantine requirements) could result in voters being prohibited from entering the worksite on election day, thereby preventing them from voting in the election.

What’s Next?

Regional directors have consistently, and almost uniformly, found COVID-19 to present the “extraordinary circumstances” under which mail ballot elections are deemed appropriate. On July 6, 2020, the Board’s Office of the General Counsel released a memorandum on “Suggested Manual Election Protocols,” which provides a laundry list of logistical and procedural recommendations for holding manual elections. See NLRB Office of the General Counsel, “Suggested Manual Election Protocols” Memorandum (July 6, 2020). Many of the Board’s recommendations are similar to those offered by parties petitioning for manual elections in previous months. The Board also set forth required “certifications” relating to, for example, when the polling place was last cleaned and whether any visitors to the polling place had tested positive for COVID-19 exposure. In addition, the Board set out specific issues that must be covered in any manual election agreement. The Board’s memorandum, however, does not seem designed to reopen the gates to manual elections. It concludes by stating that “[i]n the end, the decisions on election procedures and the safety of all participating in an election remain in the sound discretion of the Regional Director.”

With the constantly shifting circumstances surrounding COVID19, it seems unlikely that the current trend toward mail ballot elections will change anytime soon. For the time being, it seems that employers and unions should plan on navigating mail ballot representation elections. What remains to be seen is whether mail ballot elections will dissipate as the pandemic flattens.

Originally published in Labor and Employment, Volume 48, Number 4, Summer 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.