More Proof that Mail-In Union Elections Favor Unions

The general rule is that union elections are done in-person. Both federal courts and the National Labor Relations Board have acknowledged that secret, manual elections are the most reliable and preferred method of assessing whether a majority of employees support union representation.

Mail-ballot elections have historically been permitted only when getting voters together was virtually impossible. But that changed in November 2020.

During Covid, the NLRB implemented the following 6-factor test (the Aspirus factors) to determine whether “extraordinary” circumstances exist to trigger a Covid-related mail-ballot election.

  1. The NLRB office conducting the election is on mandatory telework
  2. Either the 14-day trend in new Covid-19 cases in the county where the facility is located is increasing, or the 14-day testing positivity rate in that location is five percent or higher (a small, inconsequential refinement to this factor has been made).
  3. The in-person election site cannot be set up without violating mandatory state or local health orders limiting the size of gatherings
  4. The employer won’t commit to following NLRB guidance for safe, manual elections.
  5. A current Covid-19 outbreak at a workplace or the employer won’t reveal its current status; or
  6. Other circumstances that are “similarly compelling.”

The use of the word “or” means just one of those factors (including the “similarly compelling” factor”) needs to be present for the NLRB Regional Director to order a mail-ballot election.

The result of the Aspirus factors has been a dramatic increase in the number of mail-ballot elections.

Mail ballot elections for unions are like mail-ballot elections for politicians. Voters are mailed a packet with a ballot, a return envelope, and instructions for completing and returning the ballot. Voter participation in mail-ballot elections is significantly lower than in manual, in-person elections. Some people also express concern for the integrity of the ballot processing in mail-ballot elections because unions win mail-ballot elections at a much greater percentage than in-person elections.

Perplexingly, despite workplaces being open, and the President saying the pandemic is over, the NLRB has continued to follow the Asipus factors, even relying on the catchall “similarly compelling” reason to permit mail-ballot elections.

Enter Starbucks and its nationwide defense to union organizing. Starbucks are open. The baristas report to work daily. Yet, over Starbucks’ objections, the NLRB has ordered mail-ballot elections at most of its locations.

The union won 215 of 259 (83%) of the mail-ballot elections at Starbucks but only 20 of the 31 (65%) in-person elections. Extrapolating the 65% win rate to all 290 stores, only 189 would have a union, not 215; that’s a 26-store difference. The 65% win rate is also aligned with historical union win rates.

Why do you think the union won 20% more mail-ballot elections than in-person elections at Starbucks?

Since federal courts and the National Labor Relations Board have acknowledged that secret, manual elections are the most reliable and preferred method of assessing whether a majority of employees support union representation, Starbucks has challenged the Board’s insistence on mail ballot elections.


Matt Austin is a nationwide management labor lawyer. Labor laws govern virtually all private-sector employees regardless of union membership. Proactive management of labor relations is critical to maintaining flexibility and increasing profit.

Matt also runs Austin Legal’s HR Legal Compliance Program that, for a small monthly fee, ensures HR decisions are protected by the attorney-client privilege.

Matt’s experience is deeply rooted in helping manage many aspects of his clients’ businesses. To effectively manage labor relations, he must also manage budgets, forecasts, new growth areas, and projected market corrections. High emotional intelligence is also critical to negotiating union contracts and to properly advise HR Legal Compliance members through the nuances of the law, its application to their companies, and how it will be received by employees.

You can reach Matt via email at

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