In 2020, the National Labor Relations Board (NLRB or “Board”) significantly increased the frequency of elections conducted by mail-ballot rather than traditional in-person secret balloting by employees. This was a significant departure from the Board’s prior position disfavoring the use of mail-ballots as a flawed, ineffective, and unfair process for elections in most circumstances. In some ways, the Board’s decision at the time was reasonable—the country was in the midst of the COVID-19 pandemic, and there was concern that in-person elections might put voters and Board agents at risk.
Unfortunately, the Board has hung on to the widespread use of mail-ballot elections for far too long. Three years later, it has become clear that its historic wariness of mail-ballot elections was correct and justified. Election data and anecdotal evidence demonstrate that the experimental increase of mail-ballot elections has prejudiced the rights of both employees and employers by stifling voter participation and skewing outcomes in favor of union representation.
Most alarming are recent allegations that mail-ballot elections open the door to substantial interference and election manipulation by both labor unions and the Board—the agency tasked with protecting the fairness and integrity of union elections. These allegations, brought to light by Starbucks Corporation and levied by an NLRB whistleblower, are a case study on how flaws in the mail-ballot election process could be exploited by both labor unions and biased agents of the Board to favor union representation.
It is important to note that while there are similarities between elections for public office and NLRB elections, such as using a voting booth to vote in secret ballot elections, there are also some important differences. Unions are not being elected to a specific term of office and generally don’t have to run for reelection, unions that win an election are given the power to levy dues on specific workers, in non-right to work states employees can be terminated for not paying union dues or fees, and there are specific limits around campaign periods for NLRB elections that have no parallel in campaigns for public office. And while mail-in ballots seem to have increased opportunities for people to vote in elections for public office, the opposite has occurred NLRB elections.
As covered in this report, election data and the allegations in the Starbucks case demonstrate that the Board’s longstanding suspicion of mail-ballot elections was fully justified and highlight the need for an urgent return to in-person secret balloting outside of extraordinary circumstances.
