Since the beginning of the pandemic, the majority of union elections have been conducted via mail ballot, which is in stark contrast to the relatively few mail-ballot elections that occurred previously. Recently, however, the National Labor Relations Board (NLRB) modified the standard it has been applying in determining whether a mail ballot election is appropriate, resulting in a significant change in union elections going forward.
It has long been the NLRB’s strong preference to hold in-person elections to determine union representation among employees. Prior to 2020, only in “extraordinary circumstances” would the NLRB conduct elections via mail ballot. In March 2020 – the start of the pandemic – this practice changed significantly, with the NLRB holding 90% of its elections via mail ballot.
In November 2020, the NLRB identified six circumstances Regional Directors could rely upon in determining whether a mail ballot election was appropriate. Aspirus Keweenaw, 370 NLRB No. 45. These six circumstances included: (1) the Regional office conducting the election is operating under “mandatory telework” status; (2) either the 14-day trend in the number of new confirmed COVID-19 cases 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; (3) 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; (4) the employer fails or refuses to commit to abide by the General Counsel’s Suggested Manual Election Protocols as set forth in GC Memo 20-10; (5) there is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status; or (6) other similarly compelling circumstances. The NLRB’s General Counsel immediately followed with its own guidance document on when mail ballot elections should be ordered that mirrored the six factors set forth by the NLRB. GC Memo 21-01.
Following Aspirus Keweenaw, the number of mail ballot elections far exceeded in-person elections as Regional Directors across the U.S. concluded the above factors warranted mail ballots. Following this trend, in June 2022, the Regional Director for Region 19 issued an Order directing a mail ballot election among Starbucks employees at one of its Seattle, Washington locations. In doing so, the Regional Director relied solely on the second factor set forth above – that the testing positivity rate for King County where the store was located was above 5% during the most recent 14-day period. The employer, which wanted an in-person election, requested a review of the Regional Director’s decision by the NLRB.
In its decision in Starbucks Corp., 371 No. 154 (2022), the NLRB agreed with the Regional Director and concluded a mail ballot election was appropriate in that particular case. Importantly, however, the NLRB held the second factor set forth in Aspirus Keweenaw needed to be modified in light of changed circumstances. Specifically, the NLRB “refined” the second factor by focusing on the CDC’s new “Community Level” tracker instead of the testing positivity rate. The NLRB noted that many positive tests often go unreported given the frequent use of at-home tests, making reliance on such data inaccurate. The CDC’s Community Level tracker focuses on new COVID-19 cases, new hospital admissions, and the percent of staffed inpatient beds being used by COVID-19 patients. The NLRB found the CDC’s latest tracking method to be more accurate and current and, thus, more reliable.
As a result, going forward, if Regional Directors choose to rely on the second factor to determine whether a mail ballot is appropriate, they must cite to the CDC’s Community Level tracker. If the county surrounding the facility is in the “high” Community Level category, a mail ballot decision will be upheld. If the Community Level category in the surrounding county is medium or low, the Regional Director will not be able to rely upon this factor in directing a mail ballot election.
Based upon the NLRB’s refinement of the second factor, the number of mail ballot elections is expected to decrease going forward as the number of counties in the “high” category of the CDC’s Community Level tracker continues to fall. As a result, employers should anticipate a return to the traditional method of in-person union elections that have existed for many years.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.