A significant change to the manner in which representation elections have been conducted during the COVID-19 pandemic is the increased frequency of mail-ballot elections - whereas, previously, such elections were extremely rare. As circumstances regarding the pandemic have improved, there has been a greater shift to returning to in-person vote casting.
The decision to conduct a mail-ballot election is up to the Regional Director in the jurisdiction where the election petition was filed, subject to review by the
On
The Six Factors in
In
The six
- The Agency office tasked with conducting the election is operating under "mandatory telework" status.
- Either the 14-day trend in the number of new confirmed cases of COVID-19 in the county where the facility is located is increasing, or the 14-day testing positivity rate in the county where the facility is located is 5 percent or higher.
- The proposed manual election site cannot be established in a way that avoids violating mandatory state or local health orders relating to maximum gathering size.
- The employer fails or refuses to commit to abide by GC Memo 20-10, which contains recommended manual election protocols.
- There is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status.
- Other similarly compelling circumstances.
In
The Employer asserted that the Regional Director abused his discretion by directing the mail-ballot election and argued that the six factors enunciated by the Board in
The Board rejected the Employer's assertion that the Regional Director abused his discretion and also declined to revisit all six
The
The Board explained the shift to Community Levels, noting:
Unlike the stand-alone data points that currently underlie
The Board also emphasized that data regarding Community Levels is calculated on a weekly basis as opposed to the previous 14-day basis, and "Community Levels" are developed through an aggregation of various data sources, whereas positivity rate was based solely on the reporting of localities.
The Board clarified that a Community Level of "Medium" or "Low" will not independently support a mail-ballot determination under factor 2. The Board further stated that a Regional Director who directs a mail-ballot election based on Community Level should cite directly to the relevant Community Level shown on the
The Board also rejected a return to its pre-pandemic mail-ballot standards, instead noting that it hoped the
The Board acknowledged the dissent's argument that the
The Board addressed brief criticisms levied by the Employer against the remaining factors, noting that while factor 1 regarding mandatory telework may not currently be relevant, there exists the possibility that in the future, conditions may necessitate mandatory telework. The Board justified factor 3 on similar grounds, noting that localities may change gathering restrictions in the future. Finally, the Board firmly held that Regional Directors should be able to direct mail-ballot elections when an outbreak occurs at a facility. The Board also dismissed concerns from dissenting Board members that mail-ballot voting has recently had a surge in "voting irregularities.
Dissent Believes the Board Did Not Adjust the Aspirus Factors Enough
The dissenting members Ring and Kaplan agreed with the Board's decision to revisit the
The dissent also noted that the
Finally, the dissent concluded that the majority failed to consider a surge in mail-ballot voting irregularities (see here) and urged a reexamination of the
We will continue to keep you posted as the
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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