Did the regional director of an NLRB abuse her discretion when she conducted a postal vote instead of a personal (manual) vote during the COVID-19 pandemic? While this does not get the attention it deserves, it is an extremely important issue affecting the integrity of the board's representation process. Manual voting has long been the preferred way the board of directors conducts elections as postal voting takes place under less controlled conditions and is therefore more prone to irregularities. In addition, postal votes can lead to a lower turnout by employees. Most importantly for employers, unions are generally preferred in postal votes.
As we reported in GC Memo 20-10 on July 10, the Board's General Counsel has a proven record of advocating a return to the manual voting norm and offering a range of protocols for parties to use to bring elections back in and out of work Post Office. But as we predicted, and despite the Board's traditional preference for manual voting, Regional Directors (RD) have continued to exercise their discretion, avoiding manual voting and ordering that postal votes be held in order to minimize the risk of a pandemic while they are Workers still give their day in the ballot box of the representative election. The NLRB's August 25 decision at Aspirus Keweenaw, 370 NLRB No. 13 (August 25, 2020) approving an employer's request to review a postal vote and its urgency request to suspend the election could soon change the recent post-flood of election elections .
The case arises from an electoral motion filed by the Michigan Nurses Association involving a group of staff working at an acute hospital in the Michigan Upper Peninsula, where the rate of COVID-19 transmission is low and the hospital already is Has improved virus logs in place to minimize the risk of infection. In addition, both the employer and the union agreed to manual voting according to the protocols set out in GC Memo 20-10. Despite these facts, the RD initiated a postal vote, which resulted in the employer submitting his request for review and his request for emergency stay.
Since the decision of whether to conduct an election in person or by absentee ballot is at the discretion of an RD, the board likely needs to consider whether that RD has misused its discretion in running a postal vote or possibly developed a new standard for RDs who follow in making such discretionary calls. In either case, Aspirus Keweenaw is an important case that should be followed.