Will Obama Fix Rigged Union Elections?

Will Obama Fix Rigged Union Elections?

Will Obama Fix Rigged Union Elections?

The NLRB has proposed a rule change that would make it much easier for workers to organize. No wonder the business lobby is up in arms.


There’s nothing the corporate lobbies hate more than organized workers. That’s why the Chamber of Commerce, the National Association of Manufacturers and the Koch brothers have launched a ferocious assault on a recent proposal by the National Labor Relations Board that would make it slightly easier for workers to organize unions. “We pick our battles carefully,” explains the Chamber’s chief lobbyist, “and this is a big one for us.”

The NLRB’s proposal is the kind of arcane policy detail that makes most people’s eyes glaze over. But although it’s far from radical, the corporate types are right to worry. Polls show that 40 million unorganized workers wish they had a union in their workplace, but fewer than 100,000 employees are able to form new unions each year through the current NLRB election process. The new regulations may open the gates to a flood of employee discontent that’s been held in check by the current rules.

Under the NLRB system, “elections” are basically a sham. There are no free speech rights for workers: management can campaign against the union throughout the workplace, all day long, while prounion workers can be prevented from talking about the union except on lunch breaks or by visiting fellow workers at their homes at night. Management can plaster the workplace with antiunion posters and leaflets while banning prounion workers from doing likewise. Workers are forced to attend mass antiunion meetings where union supporters are required keep their mouths shut; if they ask a question anyway, they can be fired on the spot.

Any election starts with getting a list of registered voters, and in elections to public office, voter rolls must be available to all candidates at the same cost, on the same date, and with the same information. It’s hard to imagine a more fundamental breach of democratic norms than providing one candidate an earlier or more complete list than their opponent. Yet this is what happens in workplace elections.

Management possesses all the contact information for employees from their date of hire, and is free to contact them at any time. But prounion employees are not provided with the list of eligible voters until seven days after an election has been scheduled. This enables employers to run antiunion campaigns for months before the union is able to make its first contact with most employees. The Jackson Lewis law firm, for example—one of the nation’s most powerful antiunion firms—recommends that its clients mail two sets of letters to employees’ homes, post antiunion messages on bulletin boards, distribute antiunion leaflets in the workplace, and require all employees to attend antiunion meetings, all before the prounion employees have even seen the list of eligible voters.

In Congressional testimony, the corporate types present themselves as moral models. But when talking among themselves—in management guidebooks and client communications—antiunion lawyers are frank about how they game a stacked system. New York management attorney Al DeMaria explains that “unions are at a severe disadvantage in the communications battle. Home visitations are expensive and time-consuming, meetings are sparsely attended because they take place on the employee’s own time and union organizers can rarely ensure that all voters will even receive the union fliers organizers hand out. On the other hand, management has the employee under its control for eight hours a day.”

Employers’ antiunion campaigns are also rife with illegal coercion. Because the penalties for violating labor law are so mild, many employers decide it’s worth illegally firing a few employees in order to scare straight a few hundred. In 2009 more than 14,000 union supporters were illegally fired, suspended or otherwise financially punished. It’s not surprising that this has made an impression on employees; 41 percent of nonunion US workers believe that “it is likely that I will lose my job if I tried to form a union.”

Because employers enjoy such advantages, corporate attorneys seek to stretch out the campaign as long as possible. Every day of delay is a day in which managers are free to confront subordinates with antiunion messages while union supporters are muzzled, another day in which threats and coercion demoralize those who dare believe in the power of their own collective action.

Under current procedures, the NLRB is required to conduct a hearing on any complaint employers file, no matter how frivolous. One employer even argued that the Machinists union was not a “labor organization,” despite its having been recognized in employer contracts going back more than a century. The board actually held a hearing on this question, ultimately siding with the union, but delaying the election by a month. Such tactics are neither rare nor random. In Confessions of a Union Buster, Marty Leavitt, who worked for one of the premier antiunion firms, describes his boss’s approach: its “centerpiece technique, now a common strategy among management lawyers, was to challenge everything. He tried to take every challenge to a full hearing, then prolonged each hearing as much as he could. Finally he appealed every unfavorable decision.” Leavitt explained: “As long as the Board went on debating and deliberating…the union would not get the [voter] list, making it hard for them to contact all the potential voters, and no election date would be set. All the while, we would have the run of the place.”

The NLRB’s proposal leaves most of this disastrous system in place but makes two significant changes. First, it requires that union supporters be given a preliminary list of voters as soon as employees announce their desire for an election, and that the list include all the contact information management has access to. Second, it removes the incentive for frivolous legal delays by stating that challenges to the election will generally be heard after the vote, as in Congressional elections.

These are modest changes, but they will make workplace elections more democratic. The question is whether the Obama administration will fight for them. After failing to make any significant effort to pass the Employee Free Choice Act—which mandated much larger improvements—the administration has promised unions a progressive regulatory agenda. But House Speaker John Boehner and majority leader Eric Cantor are committed to blocking any new regulation that makes organizing easier. Assuming the NLRB goes ahead with the changes, House Republicans will almost certainly pass legislation prohibiting implementation. To make the regulations stick, Obama will have to face down the same people he caved in to over the debt ceiling.

It’s hard to be optimistic about the president’s commitment to working people. But it’s also hard to imagine a more critical place to draw a line—both for the sake of democratic rights at work and for any hope of restoring the country’s economic health.

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