Legal Alerts/Details

NLRB Union Election Guidelines Realigned

September 30, 2022
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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