Management Memo

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 National Labor Relations Board (“Board” or “NLRB”) on Wednesday, May 13, 2020, overruled decades of convoluted Board precedent regarding “dual-marked ballots” in union representation elections – establishing a new bright line test.  A “dual-marked ballot,” to put it simply, is a ballot that has markings in or around both the “YES” and “NO” box, thus, making it difficult, if not impossible, to tell whether the employee who cast the ballot actually intended to vote for or against union representation. Indeed, a dual-marked ballot might also mean that ...