The NLRB’s Latest Mail-Ballot Election Decision Provides Some Light at the End of the Tunnel

It has been almost two years since the National Labor Relations Board (NLRB) issued its decision in Aspirus Keweenaw in 2020, setting forth the standards that Regional Directors use to determine the efficacy of manual-ballot elections in a post-COVID-19 world. While it remains black letter law that the NLRB prefers in-person or “manual” elections in representation cases, Aspirus Keweenaw opened the door for mail-ballot elections in response to the COVID-19 pandemic.

For the same reasons that the federal government long preferred in-person elections, most employers have as well. In-person elections historically lead to higher voter turnout. In-person elections are less likely to have lost or void ballots due to confusing mailing instructions, or delays with the post office. The presence of a government agent during in-person elections may help to obviate the risk of fraud, corruption, or undue pressure from others. It has been reported that in some mail-ballot elections, employees have come together in groups to fill out their ballots, creating peer pressure concerns while destroying the concept of the “secret ballot” process.

Aspirus Keweenaw set forth six factors for Regional Directors to use when deciding whether a mail-ballot election, rather than an in-person election, should take place.

1. The telework status of the NLRB office administering the election
2. The fourteen-day trends in positivity and hospitalization rates for COVID-19 in the county where the election would occur
3. The existence of any public health ordinances that would prohibit group meetings
4. The employer’s ability to comply with the safety protocols outlined in General Counsel (GC) Memo 20-10
5. The presence of any recent COVID-19 outbreak at the facility
6. Any other compelling reasons to order a mail-ballot election

On September 29, 2022, in Starbucks Corporation, the NLRB modified only the second factor, but did so in a way that should be beneficial to all parties seeking in-person elections.

The New Standard

Previously, Regional Directors looked at local data trends, including the fourteen-day hospitalization rates, as well as positivity rates in the county where the election would occur. Regional Directors often relied upon these trends to order mail-ballot elections, even when both the employer and the union requested in-person elections.

In Starbucks, the Board moved away from its former reliance upon hospitalization and positivity rates in favor of the Centers for Disease Control and Prevention’s (CDC) Community Level COVID Data Tracker. The Board found, given the realities of the pandemic and the changing situation on the ground, it should abandon its reliance on local data points (hospitalization rates and positivity rates, which have proven unreliable throughout the pandemic):

Nevertheless, we recognize that, as the pandemic has evolved since the issuance of Aspirus, so too have public health authorities’ responses to it, and that it is therefore appropriate for the Board to adapt accordingly. We thus take this opportunity to reorient factor 2 from its current data points to the CDC’s recently established Community Level tracker….

The Board grounded its decision to change in the factual realities of the statistics previously used under the old Aspirus 2 standard.

[S]tate and local governments often no longer consistently provide all of the testing data needed to reliably calculate the 14-day positivity rate for all counties. Moreover, even when testing data is available, its value as a stand-alone indicator of community risk may be diminished by the expanded use of at home tests (so-called “rapid tests”), the results of which frequently go unreported to state and local health authorities. Similarly, the number of new confirmed cases in a given county may no longer be reported regularly enough to permit a reliable calculation of the 14-day trend in new confirmed cases.

In light of the information available to health care professionals and the ever-evolving response to the COVID-19 pandemic, the Board set a bright line standard for Regional Directors to follow:

[W]e find it appropriate to realign Aspirus factor 2 with the CDC Community Level tracker. We hold that a Regional Director will not abuse their discretion by directing a mail-ballot election when the county encompassing the employer’s facility is in the “high” Community Level category. “Medium” and “low” Community Levels will not be independently sufficient to support a mail-ballot determination under factor 2 ….

What Does This Mean for Employers?

Regional Directors still have discretion to order mail-ballot elections under the Aspirus standard. However, at the time of publication, only approximately 3 percent of the country has “high” community spread, independently sufficient to warrant a mail-ballot election. Accordingly, nearly 97 percent of the country has “low” or “medium” community spread levels, which according to the Starbucks decision, is not independently sufficient to warrant a mail-ballot election. Because Regional Directors have relied heavily (and, in some cases, exclusively) on the second Aspirus factor when ordering mail-ballot elections over the past two years, the new ruling may result in more in-person elections taking place. Employers with pending union election petitions may want to review the CDC’s COVID Data Tracker website for the latest community spread data in the counties at issue and direct the NLRB’s regional offices to the relevant information to have the best possible chance of having an in-person election.