NLRB Union Election Guidelines Realigned

Benjamin Nucci
Snell & Wilmer
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Snell & WilmerYesterday, the National Labor Relations Board (NLRB or Board) issued a decision realigning guidance on when a union election should occur by mail. Going forward, the new standard will make it less likely that union elections will be held by mail due to COVID-19.

Background

In-person elections, or “manual elections,” are the general rule. Numerous federal courts and the Board have acknowledged that a secret manual election is the most reliable and preferable method of assessing whether a majority of employees support union representation. They preserve the laboratory conditions, decrease delays, and increase voter turnout. However, the Board has conducted elections by mail when necessary in certain situations. This includes situations where eligible voters are scattered geographically because of their job duties, where their work schedules vary significantly, the labor organization or employer are taking specific action (i.e., if there is a strike, lockout or picketing in progress), or other “extraordinary” circumstances.

In November 2020, in Aspirus Keweenaw, the NLRB developed a six-factor test to determine whether “extraordinary” circumstances exist to trigger a mail-in election in light of COVID-19. The NLRB held that a mail-in election is “normally” appropriate when one or more of the following scenarios are occuring:

  1. the NLRB office conducting the election is on mandatory telework;
  2. either the 14-day trend in new COVID-19 cases in the county where the facility is located is increasing, or the 14-day testing positivity rate in that location is five percent or higher;
  3. the in-person election site can’t be set up without violating mandatory state or local health orders limiting the size of gatherings;
  4. the employer won’t commit to following NLRB guidance for safe, manual elections;
  5. a current COVID-19 outbreak at the workplace or the employer won’t reveal its current status; or
  6. other circumstances that are “similarly compelling.

However, in promulgating the factors, the Board reaffirmed its longstanding preference for manual ballot elections based on considerations that “remain valid today,” even with the pandemic. Nonetheless, the Aspirus factors has seen a dramatic uptick in the number of mail-in elections ordered by the Regional Director.

Consequently, with a better understanding of the virus, greater accessibility to testing kits, distribution of vaccines, and promulgation of other precautionary measures in place to combat COVID-19, there have been calls to update or even overhaul the Aspirus factors. Up until yesterday, the NLRB has been reluctant to revisit Aspirus.

Update to Aspirus Factor 2

Yesterday, in Starbucks Corp., the NLRB announced that it will no longer use trends in new Covid-19 case counts or the testing positivity rates in assessing the viability of a manual election under Aspirus factor 2. Previously, the NLRB would look to data collected by Johns Hopkins University and/or state and local governments to assess whether the 14-day trend in the number of new confirmed COVID-19 cases in the county encompassing the employer’s facility is increasing or the 14-day testing positivity rate in that county is five percent or higher.

Going forward, the NLRB will refer to the Centers for Disease Control and Prevention’s (CDC’s) Community Risk system instead of the 14-day trend in cases or positivity rate. The CDC’s Community Risk system uses COVID-19 hospitalization rates rather than case counts or test positivity rates to assess hazard levels at the county level. The NLRB’s move echoes the CDC’s February switch from using community spread to hospitalization for Covid cases in its guidance for recommending universal indoor masking. The impact of that change has been significantly lower rates of masking recommendations, which could result in a drop in NLRB regional directors ordering elections by mail.

Outlook

The switch to a less stringent factor will make it less likely that union elections will be held by mail because of the coronavirus pandemic. However, employers should be careful to note that the NLRB’s Aspirus test takes other factors into account, such as an ongoing COVID-19 outbreak at a facility or an employer refusing to commit to the agency’s guidance for safe elections. It also includes a catchall factor of “compelling circumstances” that could justify mail balloting. Employers with questions on the impact of this decision should contact counsel to obtain further guidance on the new standard.

Footnotes:
  1. See NLRB Casehandling Manual (Part Two) Representation Proceedings Sec. 11301.2
  2. See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
  3. The Board has consistently stated that, during an election to determine representation, voting is to occur in a 'laboratory' in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of employees. In re General Shoe Corp., 77 NLRB 124, 127 (1948); see also NLRB v. River City Elevator Co., Inc., F.3d 1029 (7th Cir. 2002). The lack of direct Board supervision over the mail-ballot voting process increases opportunities for improper coercion and interference. See Mission Indus., 283 NLRB 1027, 1027 (1987) (“[M]ail ballot elections are more vulnerable to the destruction of laboratory conditions than are manual elections, due to the absence of direct Board supervision over the employees’ voting.” (citing Brink’s Armored Car, 278 NLRB 141, 141 (1986))).
  4. Mail-ballot elections almost always take longer to conduct than manual elections. In contrast, a manual election for a voting unit of less than 50 can be handled in less than half a day. See NLRB Casehandling Manual (Part Two) Representation Proceedings Sec. 11336.2(d) (deadline for returning mail ballots should usually be two weeks from the date of mailing to the date of return); id. Sec. 11302.1.
  5. Issues with voter turnout in mail-ballot elections are well established, and previous elections have had such low turnout that federal courts and the Board have had to overturn them. See, e.g., Shepard Convention Servs., Inc. v. NLRB, 85 F.3d 671, 675 (D.C. Cir. 1996) (“[T]he Board’s reversal of the Regional Director’s discretionary decision to conduct a manual election cannot be upheld. Had the Board left the decision intact . . . voter turnout might well have been higher. . . . It could hardly have been lower.”); see id. at 673 (noting that only 77 out of 438 eligible employees—or 17.5 percent—cast ballots during two-week mail-ballot election); see also Int’l Total Servs., 272 NLRB 201, 201 (1984) (setting aside mail-ballot election where only 19 percent of eligible voters returned their ballots and 23 percent of eligible voters never received their ballots and urging the Regional Director and the parties “to work together to explore alternative election procedures in order to ensure that all eligible voters have an opportunity to vote and to maximize the probability of a representative vote”).
  6. San Diego Gas & Electric, 325 NLRB 1143 (1998).
  7. Id. at 1145.
  8. Aspirus Keweenaw and Michigan Nurses Association, 370 NLRB No. 45 (2020).
  9. Id. at *2.
  10. Id. at *1.
  11. See, e.g., Comprehensive Health Services, LLC, 371 NLRB No. 2 (2021); Starbucks Corporation, slip op., Case 19-RC-297142 (Aug. 8, 2022) (Members Wilcox and Ring agree that Aspirus needs to be revisited). While COVID-19 presents as a risk, it is no longer the danger it was in 2020 warranting extraordinary measures.
  12. 371 NLRB No. 154 (Sep. 29, 2022)
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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