As pandemic continues, NLRB guidance paves way for more mail ballot elections

Elections for union representation have long been conducted in-person and with manual ballots. The National Labor Relations Board (NLRB) has a strong preference for in-person representation elections. The COVID-19 pandemic, however, forced the Board to adopt, at least temporarily, a new election procedure using mail ballots. It recently issued a decision providing guidance to regional directors on when mail ballot elections should be held.

‘Extraordinary circumstances’

Since March, about 90% of representation elections conducted by the NLRB have been held with mail ballots. The Board permitted mail ballot elections under an exception for “extraordinary circumstances” the pandemic presented.

In Aspirus Keweenaw, 18-RC-263185, 370 NLRB No. 45 (11-09-20), the Board announced criteria for when mail ballot elections should be held in light of COVID-19. The decision is retroactive and applies to pending representation election cases.

The decision outlines six circumstances related to the COVID-19 pandemic that, when one or more is present, will cause an election to be held by mail rather than via in-person manual ballots. The circumstances are: