A significant change to the manner in which representation elections have been conducted during the COVID-19 pandemic is the increased frequency of mail-ballot elections – whereas, previously, such elections were extremely rare.  As circumstances regarding the pandemic have improved, there has been a greater shift to returning to in-person vote casting.

The decision to conduct a mail-ballot election is up to the Regional Director in the jurisdiction where the election petition was filed, subject to review by the National Labor Relations Board (“NLRB” or “Board”) for abuse of discretion.  In Aspirus Keweenaw, 370 NLRB No. 45 (2020), the NLRB established six factors for the Regional Director to consider in deciding whether to order a mail-ballot election – the presence of any one factor would justify, though not require, the direction of a mail-ballot election.

On September 29, 2022, a 3-2 majority of the Board, in Starbucks Corporation, Case 19–RC–295849, modified one of the six factors (factor 2) to now provide that when the relevant county is determined by the Center for Disease Control and Prevention (“CDC”) to have a COVID-19 Community Level of “High,” then Regional Director could order a mail-ballot election.  The Board’s holding will be applied prospectively (not retroactively, as is typically the case) and will not impact any Decisions and Directions of Elections that have been issued prior to September 29, 2022.  Members Kaplan and Ring dissented from the majority opinion.

The Six Factors in Aspirus Keweenaw

In Aspirus Keweenaw, the Board provided Regional Directors six factors for the Regional Director to consider when deciding whether to order a mail-ballot election, or to direct an in-person manual election.  If one of the six factors is present, then the Regional Director may order a mail-ballot election, but is not required to do so.

The six Aspirus factors are as follows:

  1. The Agency office tasked with conducting the election is operating under “mandatory telework” status.
  2. Either the 14-day trend in the number of new confirmed cases of COVID-19 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 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, which contains recommended 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.
  6. Other similarly compelling circumstances.


Starbucks Holding Modifies Factor 2 to Align with CDC Community Levels

In Starbucks, the Regional Director ordered a mail-ballot election based exclusively on the second Aspirus factor, noting that the positivity rate in the county where the election was to take place was above 5 percent during the relevant 14-day period.

The Employer asserted that the Regional Director abused his discretion by directing the mail-ballot election and argued that the six factors enunciated by the Board in Aspirus are outdated and should be revisited. The employer specifically argued that the five percent positivity rate requirement does not accurately capture the community risk of contracting COVID-19.

The Board rejected the Employer’s assertion that the Regional Director abused his discretion and also declined to revisit all six Aspirus factors. However, the Board acknowledged that changes in the current landscape of the COVID-19 pandemic warranted modifying factor 2, by changing its criteria from the 14-day new confirmed cases and positivity rate metric to “whenever the relevant [CDC] Community Level is ‘high.’”

The CDC tracks COVID-19 Community Levels by County and provides Community Level information on its website. The CDC COVID-19 Community Levels measure the impact of COVID-19 in terms of hospitalizations and healthcare system strain, while also accounting for community transmission.

The Board explained the shift to Community Levels, noting:

Unlike the stand-alone data points that currently underlie Aspirus factor 2, the Community Level measure is grounded in a collective assessment of three data points: new COVID-19 cases; new COVID-19 hospital admissions; and the percent of staffed inpatient beds in use by COVID-19 patients.

The Board also emphasized that data regarding Community Levels is calculated on a weekly basis as opposed to the previous 14-day basis, and “Community Levels” are developed through an aggregation of various data sources, whereas positivity rate was based solely on the reporting of localities.

The Board clarified that a Community Level of “Medium” or “Low” will not independently support a mail-ballot determination under factor 2. The Board further stated that a Regional Director who directs a mail-ballot election based on Community Level should cite directly to the relevant Community Level shown on the CDC’s COVID-19 data tracking page or COVID-19 by County page as of the date the Decision and Direction of Election issues.

The Board also rejected a return to its pre-pandemic mail-ballot standards, instead noting that it hoped the Aspirus factors would gradually be less applicable as COVID-19 conditions continued to improve.

The Board acknowledged the dissent’s argument that the CDC’s guidance does not prohibit manual elections from occurring when there exists a “High” Community Level. The Board instead asserted that while the CDC’s community levels are a helpful reference point, the Board ultimately determines the guidelines for how an election should be facilitated.

The Board addressed brief criticisms levied by the Employer against the remaining factors, noting that while factor 1 regarding mandatory telework may not currently be relevant, there exists the possibility that in the future, conditions may necessitate mandatory telework.  The Board justified factor 3 on similar grounds, noting that localities may change gathering restrictions in the future.  Finally, the Board firmly held that Regional Directors should be able to direct mail-ballot elections when an outbreak occurs at a facility. The Board also dismissed concerns from dissenting Board members that mail-ballot voting has recently had a surge in “voting irregularities.

Dissent Believes the Board Did Not Adjust the Aspirus Factors Enough

The dissenting members Ring and Kaplan agreed with the Board’s decision to revisit the Aspirus factors, but felt the Board’s decision did not go far enough. The dissent criticized the majority’s failure to consult expert guidance before modifying the Aspirus factors, noting that the Board does not have expertise in public health. The dissent emphasized that COVID-19 conditions have improved significantly since the Apsirus factors were promulgated.

The dissent also noted that the CDC’s own guidance does not recommend that individuals avoid workplaces or public spaces when there is a “High” Community Level, which cast doubt on whether that should be the appropriate standard for directing a mail-ballot election.

Finally, the dissent concluded that the majority failed to consider a surge in mail-ballot voting irregularities (see here) and urged a reexamination of the Aspirus factors and what safeguards can be implemented to make in-person elections appropriately safe.

We will continue to keep you posted as the NLRB continues its examination of these factors governing representation elections.


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Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Raymond Arroyo Raymond Arroyo

Raymond Arroyo is an associate in the Labor Department and a member of the Employment Litigation & Arbitration Group.

During his time at Proskauer, Raymond has focused on a wide range of employment matters, including employment discrimination litigation, labor/management relations, and policies, handbooks…

Raymond Arroyo is an associate in the Labor Department and a member of the Employment Litigation & Arbitration Group.

During his time at Proskauer, Raymond has focused on a wide range of employment matters, including employment discrimination litigation, labor/management relations, and policies, handbooks and training, among others. Raymond has gained experience across a wide variety of industries including financial services, educational institutions, and sports.

Raymond earned his J.D. from Columbia Law School. While at Columbia, Raymond worked at the Center for Public Research and Leadership as a graduate assistant, providing consulting and strategic advice to educational institutions and organizations.  Raymond was also a staff editor for the Columbia Journal of Race and Law.

Prior to his legal career, Raymond was a Teach for America corps member and taught middle school in New York City.