Board Updates Considerations for Directing Mail-Ballot Elections

Today, the Board issued a decision in Starbucks Corporation, updating the considerations that guide Regional Directors in exercising their discretion in determining whether an election should be conducted by mail ballot, as opposed to an in-person manual-ballot election, due to COVID-19-related conditions. The decision, based on an election held in a Starbucks coffee shop in Seattle, modified one of the six factors in the Board’s 2020 decision in Aspirus Keweenaw. Previously, Aspirus factor 2 permitted Regional Directors the discretion to direct mail-ballot elections based on either a recent increase in new confirmed COVID-19 cases or recent testing positivity rates in the county encompassing the employer’s facility, using data collected primarily by state and local governments. Today’s decision changes factor 2, which now allows Regional Directors the discretion to order a mail-ballot election in communities where the Centers for Disease Control (CDC) has determined that the risk of COVID-19 transmission in a particular community is “high,” based on the CDC’s county-based community level tracker. The remaining five factors of Aspirus remain the same. The Board decided to apply this latest Starbucks decision prospectively only, thus leaving undisturbed the mail-ballot election conducted in this case and other previously ordered mail-ballot elections. Accordingly, the Region will now proceed to open and count the ballots, which have been held pending this decision, to determine the employees’ wishes regarding union representation. “State and local governments often no longer provide the COVID-19 data in the manner that they did when the 2020 Aspirus decision was issued. Using the CDC’s tracker instead will allow Regional Directors to easily and consistently evaluate the safety of conducting in-person elections, while minimizing delay caused by disputes over the appropriate interpretation and application of COVID-19 data,” said Chairman Lauren McFerran. Chairman McFerran was joined by Board Members Wilcox and Prouty in making the update. Members Ring and Kaplan agreed that Aspirus should be revisited, but dissented from the majority’s decision to revise Aspirus without seeking public input. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html