The Weekly Guide to Employment Law Developments

The Rocky Mountain Employer

Labor & Employment Law Updates

NLRB Rules that Mail-In Election is Appropriate Because of Local COVID-19 Positivity Rate

By:  Aaron Chaet

            On February 5, 2021, the National Labor Relations Board (“NLRB”) ruled that the representation election for the proposed bargaining unit employees of Detrex Corporation (the “Employer”) would be conducted via mail-in vote.FN1  The decision was made over the objection of the Employer, who demanded a manual election. 

            The Employer argued that a manual election was appropriate because it is an essential business that has successfully remained open during the COVID-19 pandemic.  The Employer noted that the proposed voting location is a 5,000 square foot space with 30-foot-high ceilings and a large garage door that can be opened for increased air flow.FN2  The Employer further argued that the petitioner, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC’s (the “Union”) opposition to a manual election was inconsistent with its most recent actions, such as holding a meeting where the attendees were not wearing masks or socially distanced, both of which violated the state’s COVID-19 protocols.FN3

            Conversely, the Union sought a mail-in vote because it was the “safest and fairest method for conducting” the election.FN4  The Union noted that the county where the Employer was located had a COVID-19 positivity rate was well above the 5% threshold relied upon by the NLRB.FN5  Finally, the Union denied that its in-person meeting violated the state’s COVID-19 protocols.FN6

            Ultimately, the NLRB ruled in favor of a mail-in vote election.FN7  In its analysis, the NLRB primarily relied upon the positivity rate of the county, which was nearly double the 5% threshold.  The NLRB also found it significant that although the Employer was not in the midst of an outbreak, the Employer had two employees recently test positive and that five employees were quarantining at the time of the hearing.FN8 

            Please contact the attorneys at Campbell Litigation for assistance or questions regarding representation elections and procedures. 

FN1 – Detrex Corp., 08-RC-269611 (Feb. 5, 2021) accessible at https://www.nlrb.gov/case/08-RC-269611

FN2 – Id.

FN3 – Id. at 2.

FN4 – Id.

FN5 – Id. at 3.

FN6 – Id.

FN7 – Id. at 4.

FN8 – Id.