In-person union elections are on the road to returning as the primary method for voting because of the National Labor Relations Board’s recently modified test for deciding if pandemic conditions warrant mail-in balloting.
All seven elections that NLRB regional directors scheduled by applying the standard from its Sept. 29 decision in Starbucks Corp. were set for manual elections rather than mail-in balloting. One of those in-person contests also will feature mail voting for a subset of a Minnesota medical center’s employees who work remotely.
The board’s modified test has driven a stark shift from what had become a pandemic norm, despite mail-in NLRB elections being a rarity pre-Covid-19.
Nearly 75% of the 3,185 union elections the NLRB held since the start of 2020 were conducted by mail, according to Bloomberg Law labor data.
Unions prevailed in 76% of the mail-in elections during that time, compared to 68% of the in-person elections.
“The changes to the NLRB’s test appear to be having the effect that
Employers generally prefer manual elections because of the NLRB’s measures intended to ensure secrecy, avoid electioneering around the voting area, and prevent voter fraud or coercion, according to management-side attorneys.
Starbucks also argued that manual elections have higher voter turnout, saying that 95% of workers cast ballots during an in-person vote at the company’s New York Roastery, compared to a 66% participation rate for a mail-in election at its Seattle Roastery. The union won both of those contests.
“Every partner vote—and voice—deserves to be heard and should be able to trust the process is fair, their vote is counted, and that the outcome is true and accurate,” Starbucks told Bloomberg Law in a statement.
But some union lawyers say employers have a natural advantage in manual elections because the votes are cast on their home turf.
“Midterm elections are coming up, so imagine if there’s a Republican representative on the ballot and the election was held in the Republican Party’s headquarters,” said Robert Giolito, an attorney who represents Starbucks Workers United in California and Arizona. “That’s the analog.”
Pandemic Elections
Before the pandemic struck in March 2020, mail-in union elections were few and far between. The board’s 1998 decision in San Diego Gas & Electric allowed for mail balloting when there’s an ongoing strike or lockout, or if voters are geographically scattered or aren’t at work during common times because of widely varying schedules.
But holding union elections during the pandemic presented the NLRB with an unprecedented challenge. In Aspirus Keweenaw, the board developed a legal test to decide whether conditions require a mail-ballot election.
The NLRB’s Aspirus test takes several factors into account, such as an ongoing Covid 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.
The key factor in many cases applying Aspirus was community transmission. A mail-in election would be appropriate if 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 5% or higher.
In late September’s Starbucks Corp. ruling, the NLRB retained most of the Aspirus factors, but swapped out the community transmission element for the Centers for Disease Control and Prevention’s Community Level system, which uses Covid hospitalization rates rather than case counts or test positivity rates to assess hazard levels at the county level. Under that new factor, the CDC level needs to be “high” to trigger a mail-in election.
The NLRB’s change echoed the CDC’s February switch from using community transmission to hospitalizations for Covid cases in its guidance for recommending universal indoor masking, which has led to dramatically lower rates of masking recommendations.
For example, masking would be recommended in 62% of counties under the CDC’s old guidance, according to CDC statistics as of Oct. 21. Masking is recommended in just 1% of counties based on the new guidance.
The NLRB regional director in Seattle handed down a pair of decisions last week illustrating a similarly significant effect from the NLRB’s change to the CDC’s Community Level system for its mail-in election test.
On the same day that the NLRB modified its test, Regional Director Ronald Hooks scheduled a mail-ballot election for grocery delivery workers at Imperfect Foods Inc.’s Oregon facility based on the Aspirus test and the high test positivity rate in the area.
But Hooks reversed course in a supplemental decision issued Oct. 19, applying the Starbucks test and rescheduling the contest for a manual vote because the CDC’s Community Level for the area was “low.”
The next day, Hooks set a manual election at a Starbucks in Seattle even though the test positivity rate in the store’s area was nearly 13%, more than twice the threshold necessary for mail balloting under the Aspirus test. But it had a “low” rating on the CDC’s scale, so the election will be held in person.
Employers and unions can still agree to mail-in voting, as
And while in-person voting is returning as the norm for NLRB elections, that shouldn’t pose a threat to workers’ health and safety because the NLRB still requires employers to adhere to the agency’s safety protocols, said Rebecca Leaf, an attorney with Miles & Stockbridge who represents management.
“If employers can’t set up the safeguards, then they can’t have manual elections,” said Leaf, a former NLRB attorney.