It turns out that the mail-in voting debate extends beyond the 2020 presidential election. In particular, and as you may recall based on our previous post, union elections around the nation have been ripe for controversy in the mail-in voting discussion during the COVID-19 pandemic. The National Labor Relations Board ("NLRB" or the “Board") recently unveiled a framework for determining whether to hold an election by mail or in person.
The employer (the “Hospital”) operates an acute care hospital in Michigan's Upper Peninsula. On July 17, 2020, the Petitioner filed a petition to represent a unit of approximately 69 registered nurses at the Hospital. In lieu of a hearing, and because the only disputed issue was whether the election should be conducted manually or via mail ballot,1 the parties signed a "stipulated record" on August 3, 2020.
The Hospital argued that a manual election was warranted based on the Board's preference for manual elections, the relatively low level of COVID-19 cases in Houghton County (where the Hospital was located) and the Upper Peninsula, the safety measures it had implemented at its facility (as well as its willingness to comply with the NLRBGC's suggested manual election protocols), the fact that Region 18 was no longer under mandatory telework and the absence of "lockdown orders."
The Regional Director, however, concluded that a mail-ballot election was warranted based on the extraordinary circumstances presented by the COVID-19 pandemic. The Regional Director considered the fact that this election involves health care workers at an acute care hospital with greater exposure to COVID-19 who could amplify outbreaks should they become ill. The Regional Director cited "uncertainties" a mail-ballot election would avoid, including the possibility of asymptomatic or pre-symptomatic individuals participating in the election and exposing others to the virus and the possibility that voters would be deprived of their vote in a manual election should they test positive for, display symptoms of or have to be quarantined due to COVID-19.
A New "Catch-All" Factor for Mail-Ballot Votes
In the Aspirus Keweenaw, 18-RC-263185, the Board opted to allow for mail-in elections, but doing so required revisiting the existing framework for allowing mail-in elections. Since the pandemic began, NLRB Regional Directors have been tasked with considering five concrete factors in order to determine if mail-in balloting is appropriate for a local union election. In Aspirus, the Board added a sixth, "catch-all" factor to the existing framework to give Regional Directors more discretion in their decisions. In its opinion, the Board commented that only one factor needs to be present to trigger a mail-in ballot vote. Those factors now are:
- The NLRB office conducting the election is on mandatory telework;
- Either the 14-day trend in new COVID-19 cases in the county where the facility is located is increasing or the 14-day testing positivity rate in that location is 5% or higher;
- The in-person election site can't be set up without violating mandatory state or local health orders;
- The employer won't commit to following NLRB guidance for safe, manual elections;
- A current COVID-19 outbreak at the workplace or the employer won't reveal its current status; or
- Other circumstances that are "similarly compelling."
This sixth factor gives local agency officials wider discretion for justifying mail-in balloting. During the duration of the pandemic, employers have shown concerns about fraud in mail-in elections, while unions claim that they have been hurt by canceled mail-in votes and subsequent delays.
The Hospital, the county where it is located and the Upper Peninsula, in general, have experienced a relatively low amount of COVID-19 positivity rates and deaths. This case presented a seemingly ideal factual situation for a health care employer to challenge the trend of directing mail-ballot elections. Yet, the Board took the opportunity to reaffirm its willingness to permit mail-ballot elections during the pandemic and expanded the discretion of Regional Directors in this regard by adding the sixth factor. Significantly, this case demonstrates that the Board may not assign much weight to the fact that a hospital/employer is not grappling with large numbers of COVID-19 cases when deciding to allow for mail-in elections, which have historically had lower turn out than manual elections.2 Health care employers are well-advised to contact legal counsel if they are served with a petition or otherwise aware of union organizing activity to timely assess all of their options.
1 Election arrangements, including election type, are non-litigable matters. See Board's Rules and Regulations Sec. 102.66(g)(1).
2 According to the decision "Internal Board statistics reflect that from October 1, 2019 through March 14, 2020, the Board conducted 508 manual elections in which 85.2 percent of eligible voters cast a ballot; during that same period, the Board conducted 48 mail-ballot elections in which only 55.0 percent of eligible voters cast a ballot. Similarly, from March 15 through September 30, the Board conducted 46 manual elections in which voter turnout was 92.1 percent and 432 mail-ballot elections in which turnout was 72.4 percent. Although these statistics reflect that the mail-ballot participation rate has increased during the Covid-19 pandemic, they also reflect that the mail-ballot participation rate continues to lag significantly behind the manual election participation rate (30% lower before March 15, 20% lower since). Thus, in addition to the value of having a Board agent present, manual elections tend to promote greater participation in the election process."
Originally Published by Hall Render, November 2020
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