11/3/22: NLRB Modifies Standards for Mail-Ballot Union Elections, Increasing Likelihood of In-Person Voting

November 3, 2022

By Nick Ball

The National Labor Relations Board recently issued a series of decisions applying an updated standard for determining whether mail-ballot union elections were appropriate. In its recent Starbucks Corporation decision, the NLRB modified the multi-factor test it had established for assessing whether an election may be held by mail-ballot at the outset of the COVID-19 pandemic. In Starbucks, the NLRB found that the prior reliance on the 14-day positivity rate in the county wherein a bargaining unit resides is no longer appropriate.

The NLRB’s holding in Starbucks refined the standard to instead look at the CDC’s COVID-19 Community Level metric. The Community Level tracker, calculated weekly by the CDC, is based upon a collective assessment of three data points: new COVID-19 cases; new COVID-19 hospital admissions; and the percentage of staffed inpatient beds in use by COVID-19 patients. The NLRB held that “whenever the relevant county is at ‘high’ according to the Community Level tracker, it will not be an abuse of discretion for a Regional Director to order a mail-ballot election.”

While the NLRB rejected the idea that it should return to its pre-pandemic standards for assessing the appropriateness of mail-ballot elections, the implementation of its new standard under Starbucks has quickly ushered in a return of manual elections. As of October 27, 2022, every election scheduled by the NLRB Regional Directors applying the Starbucks test was directed to be held in-person.

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For questions about union elections or other labor issues, contact Nick Ball at nball@barran.com or (503) 276-2150.