The National Labor Relations Board (“Board”) isn’t giving up on pandemic related mail ballots in representation elections any time soon. On September 29, 2022, in a decision concerning an election at a Seattle area Starbucks, the Board passed on an opportunity to cast aside its COVID-Era six-factor test articulated in Aspirus Keweenaw, 370 NLRB No. 45 (2020), which has been used for the past two years to determine if a Board-conducted representation election should be conducted by mail or in person (called a “manual” election in Board parlance). Instead of jettisoning the Aspirus test entirely, the Board replaced just one of the tests factors, now relying on the CDC Community Level Tracker rather than test positivity trends or rates in this analysis.

The Board historically conducts most of its elections manually – in person – at an employer’s facility. Pre-pandemic, on rare occasions when voters in a unit were dispersed throughout a wide geographic area or did not report to a single location every day, an election would be conducted by mail, rather than in person. This far more complex process requires the appropriate Board regional office to print and then distribute ballots, sample ballots, instructions, and two envelopes to each employee who is eligible to vote, and it requires voters to mail the ballots back to the Regional Office, where they are counted in front of representatives from the petitioner and employer. Since March 15, 2020, the NLRB conducted 2,432 mail ballot elections. By comparison, in the 6½ months preceding March 15, 2020, the NLRB held a total of 48 mail-ballot elections.

The COVID -19 pandemic closed Board offices and many employer facilities and made employees congregating a potential danger, so the Board conducted elections by mail ballot almost exclusively from the start of the pandemic until November 2020, when it issued its decision in Aspirus.

Aspirus set forth the factors a Regional Director must consider when determining whether to order an election to take place in person or by mail. The six factors of the test were:

(1) the Agency office tasked with conducting the election is operating under “mandatory telework” status; (2) either the 14-day trend in number of new confirmed cases of COVID19 in the county where the facility is located is increasing, or the 14- day testing positivity rate in the county where the facility is located is 5 percent or higher; (3) the proposed manual election site cannot reasonably be established in a way that avoids violating mandatory state or local health orders relating to maximum gathering size; (4) the employer fails or refuses to commit to abide by GC Memo 20-10, “Suggested Manual Election Protocols”; (5) there is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status; or (6) other similarly compelling circumstances

As the pandemic waned and NLRB offices and private employers alike returned to the workplace, the most important and controversial factor has been factor 2: the local COVID-test positivity rate.  In practice, Regional Directors have come to rely almost exclusively on factor 2 to order mail voting at employers such as restaurants, hospitals, and retail facilities where employees have been working on site and reporting to a central location, even in cases where both employers and petitioning unions have told the Board that they believe a manual election with in-person voting would be more appropriate.

The use of test positivity has come under increasing scrutiny as COVID testing has shifted to rapid at-home testing and states have ceased mass testing as a means of virus detection. At-home test results are generally not reported and thus not included in test positivity metrics. Meanwhile, only the sickest individuals may seek out a PCR test from a state reporting location, which may drive positivity higher than actual community spread. That can cause test positivity to hover at or above five percent.  The result of this is that Regional Directors may order mail ballots even among workforces that have been working in-person for years, since March 2020.

In Starbucks, the employer asked the NLRB to jettison Aspirus and return to the pre-pandemic preference from manual elections. In its decision issued on September 29, 2022, the Board majority of Members Lauren McFerran, Gwynne Wilcox, and David Prouty refused to get rid of the six-factor test. Instead, they announced that they were modifying the Aspirus test and were replacing factor 2 with a new metric. Now, rather than consider the 14-day test trend or positivity rate in the county, Regional Directors will now only look to the CDC Community Level tracker.

The CDC tracker gives a low, medium, or high rating to each county in the country based on a series of factors, from test positivity to the number of hospital beds available in the region.

Under the revised test, when the county in which the employer’s facility is located is in the “high” Community Level category, the Board has held that a Regional Director will not abuse their discretion in ordering a mail ballot election. When the county where the election would take place is in the “medium” and “low” Community Levels, such a factor alone will not be independently sufficient to support a mail-ballot determination under factor 2.

This shift may ultimately lead to more manual elections as the CDC tracker is more concerned with community spread and the possibility of negative outcomes rather than raw testing data. This change in determining whether an election will be conducted in person or by mail ballot may have a significant effect on the results of an election because mail ballot elections have been shown to have lower levels of turnout and voter participation, and because there tend to be more challenges to ballots cast in mail ballot votes than in manual elections. The dissent, which argued for a complete return to the preference for manual elections, argued that participation rates in manual ballot elections are 11 percent higher than in mail ballots: As of September 13, 2022, the participation rate for mail ballot elections held in fiscal year 2022 was 64.5 percent, while the participation rate for manual elections was 75.3 percent.

You can view the CDC tracker here and check your county’s status.