Senior Vice President, Employment Policy Division, U.S. Chamber of Commerce
March 24, 2023
A new report by the U.S. Chamber of Commerce calls out the National Labor Relations Board (NLRB) for its continued use of mail ballots over its long-standing preference for in-person secret ballot elections when workers vote on forming a union. As the report notes, the National Labor Relations Act specifies that the method to be used for union representation elections is the in-person secret ballot.
Over the years, the NLRB has, despite the statutory language, allowed for the use of mail ballots, but only in specific and limited circumstances, such as when workers in a proposed bargaining unit are scattered in different areas, or when unusual shift schedules make in-person voting impractical, or in undefined “extraordinary” circumstances. The Covid-19 pandemic, most people would agree, clearly qualified as an “extraordinary” circumstance. As a result, the NLRB, after initially suspending all elections early in 2020, began using primarily mail ballots.
There is a reason the NLRB has historically been leery of mail ballots, aside from the statutory language. Over the years, a number of flaws have been identified with this process, such as ballots being lost in the mail, failure of voters to properly sign ballots, sample ballots being sent in mistakenly instead of the actual ballot, and misplacement of ballots by NLRB staff, among others. And these flaws have shown up in turnout data. For example, in mail ballot elections held in the year before the pandemic, turnout was actually 30 percent lower than for in-person elections. These numbers did not improve much during Covid-era mail ballot votes either, with a drop of more than 20 percent in participation.
Despite these numbers, and despite the fact that President Biden has declared the pandemic “over,” the NLRB, and its new Democrat majority, has nonetheless stuck with mail ballots. There might be a reason for this—when turnout drops, unions tend to win more elections.
It’s understandable that unions would prefer mail ballots. But the NLRB is not supposed to favor one side over the other. It is supposed to act as a neutral arbiter and encourage maximum worker participation in elections. And as the report notes, in some high-profile instances, the use of mail ballots has tarnished the NLRB.
In mail ballot elections at Starbucks in particular, there have been credible allegations that the election process has been tampered with by NLRB officials. Not only is the NLRB’s Inspector General investigating, but an NLRB hearing officer found merit to complaints that NLRB agents had engaged in specific misconduct around mail ballots. Moreover, the traditional drop-off in turnout during mail ballot elections has also been seen with elections at Starbucks. As noted in the report, there has been a 24-percentage point drop off in turnout for mail ballots as compared with in-person votes.
While the use of mail ballots in political elections seems to have increased turnout, the opposite is clearly the case with NLRB elections. This all raises a simple question: if the pandemic is over, why is the NLRB persisting with a process meant only for “extraordinary” circumstances? The country has gotten back to regular business. It’s well past time for the NLRB to do so as well.
About the authors
Spencer oversees the Chamber’s work on immigration, retirement security, traditional labor relations, human trafficking, wage hour and worker safety issues, EEOC matters, and state labor and employment law.