The National Labor Relations Board has become more efficient, reducing the backlog of pending cases by 46%. At the end of fiscal 2019, the median age of pending cases was 157 days, compared to 85 days a year later.
Since the outbreak of the CoVid pandemic, the board has been conducting most elections via mail ballot. Although the board attempted to set parameters for the allowance of manual elections, regional directors have denied almost all requests. Early this month, the board outlined how it believes mail ballot election decisions should be made. Whereas regional directors had been denying manual ballot elections simply due to “extraordinary circumstances presented by the COVID-19 pandemic at this time,” in Aspirus Keweenaw, the board laid out six situations that will require a mail ballot election:
- The agency office tasked with conducting the election is operating under “mandatory telework” status
- Either a 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% 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 the GC Memo 20-10 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 considerations
Yes, number 6 does appear to provide a loophole, but at least regional directors will have to be more creative in finding an excuse for forcing a mail ballot.
The board found that a media policy at a Maine hospital system violated the NLRA. When a nurse sent a letter to the editor of a local newspaper lauding the efforts of a nurses union in response to hospital staff reductions, the hospital fired her. The NLRB upheld her unfair labor practice filing, but went further by finding the policy for which she was fired for violating was itself a violation of the NLRA.
Sightings of Scabby the Rat as a symbol of union protest may become more rare. The NLRB posted a notice and invitation to file briefs, answering four questions related to overturning precedent on allowing Scabby to appear as protest before neutral employers. Briefs must be received by the board by December 28th.
When hotel workers in Chicago attempted to form “micro units,” the D.C. Circuit Court overruled a willingness on the part of the NLRB to allow them to do so. In this case, the board seemed to ignore the “community of interest” precedent.
The NLRB approved an employers request to withdraw from a stipulated election agreement, as a result of unforeseen developments related to the pandemic. The union and employer entered into the agreement on March 4, just prior to the suspension of all elections by the board. By the time elections resumed, the employer had hired and additional 230 workers and laid off some in the original bargaining unit due to pandemic developments, and requested withdrawal from the election. The regional director denied the request but the board overruled, confirming that an “unusual circumstance” did indeed exist.
