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