In a welcome development for employers, a recent ruling from the National Labor Relations Board (NLRB) has cleared the way for a return to in-person voting as the standard format for conducting most union elections. This is a departure from the standards that NLRB adopted in 2020 during the height of the COVID-19 pandemic, which resulted in most elections being conducted by mail, to the benefit of unions, which prevail in mail ballot elections at a much higher rate than in-person voting.
Before the COVID-19 pandemic began, the NLRB had long preferred conducting in-person elections for a variety of reasons, including higher rates of employee participation, fewer delays in conducting and concluding the elections, avoiding complications that come from mailing ballots through the postal system, and increased confidence in the perceived fairness of the balloting process.
While mail-ballot elections did occur, they were considered the exception to the standard practice of in-person elections and were used only in situations where holding an in-person election was impractical. Somewhat paradoxically, voter turnout has historically been much lower for mail-ballot elections than for in-person elections, providing an advantage to highly motivated union supporters. Mail-ballot elections have also been traditionally disfavored by employers because of the increased opportunities for foul play such as pressure campaigns and ballot collection by union supporters.
In response to the COVID-19 pandemic, the NLRB in Aspirus Keweenaw identified six COVID-19-related conditions that, if present, would ordinarily dictate that a mail-ballot election should be held. 370 NLRB No. 45 (2020). While employers frequently were able to satisfy several of these conditions, including by agreeing to abide by COVID-19 safety protocols, certifying the absence of a recent outbreak in the workplace, and following local health orders relating to maximum gathering size, one condition that proved extremely difficult to meet focused on local trends in new cases and positivity rates within the locality where the election would be held.
The adoption of the Aspirus Keweenaw standards, combined with the ongoing prevalence of COVID-19 outbreaks across the United States, led to an unprecedented surge in mail-ballot union elections. Since the outbreak of the pandemic in 2020, approximately 75% of union elections have been held via mail ballot, and unions have prevailed in these elections at a rate of 76%, versus a 68% rate of success for in-person elections.
The New Standard
In its recent decision in Starbucks Corporation, the NLRB acknowledged that rates of confirmed cases and positive test results were no longer the most effective measures for tracking the severity of the pandemic, because these numbers are inconsistently tracked by local health authorities, and the public’s increased use of at-home rapid tests has rendered official case numbers unreliable. 371 NLRB No. 154 (Sep. 29, 2022). Instead, the NLRB adopted the Community Level tracker tool more recently established by the Centers for Disease Control and Prevention.
Under the new standard, a mail-ballot election will be appropriate when the CDC’s Community Level for the local area is listed as “high.” However, when the CDC’s Community Level is “medium” or “low,” additional Aspirus Keweenaw factors will need to be present to justify a mail-ballot election.
The Bottom Line for Employers
With the new Starbucks standard in place, employers are likely to see a return to the traditional approach of in-person balloting for a much higher percentage of union elections. Indeed, in the few weeks since the Starbucks decision was announced, it appears that almost all newly ordered elections have been scheduled for in-person balloting. This is a welcome and long-overdue change to NLRB election procedures that should benefit employers, who stand a significantly better chance of prevailing in an in-person election rather than a mail-ballot election.