In an effort to bring some generally-applicable guidance to the exercise of Regional Directors discretion, the NLRB last week established criteria for determining when elections should be conducted by mail. If one or more of the following is true, this will normally suggest that the ballot should be by mail:
- the NLRB regional office which would supervise the election is on mandatory telework status;
- the 14 day trend in new COVID-19 cases is increasing or the testing positivity rate is five percent or higher in the county where the election would occur;
- the election logistics cannot be arranged in a way which would comply with state or local restrictions on maximum size for gatherings;
- the employer will not commit to follow the minimum guidelines for a safe election published by the NLRB in General Counsel Memo 20-10; or
- there is a current COVID-19 outbreak in the workforce, or the employer will not disclose whether there is an outbreak.
While these triggers may not result in an immediate return to manual elections, given the current COVID-19 conditions in most states, they at least provide a road map for returning to in-person elections as the pandemic eventually winds down.
Brian Woolley has a broad range of experience representing management in labor and employment matters. Brian counsels clients on day-to-day personnel matters, including issues relating to hiring and terminations, wage and hour ...
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