"Sacred Secret" Ballot? NOT SO MUCH...

[Earth Bound Misfit]

From An American Rights at Work Report by Gordon Lafer, Ph.D.
June 2005

FREE AND FAIR? HOW LABOR LAW FAILS U.S. DEMOCRATIC STANDARDS

Principles of U.S. Democracy: Defining Fair Elections

As the world’s first democracy, the United States has long served as the standard-bearer for defining what constitutes “free and fair” elections. But what exactly are these standards? While there are myriad practices that make up a democratic election — and many practices that vary from one state to another— a handful of core principles define the U.S. tradition of democratic elections. In addition to the secret ballot, these include:

• Genuine competition between parties and equal access to voters
• Free speech for both candidates and voters
• Equal access to the media
• Leveling the playing field by controlling campaign finance
• Protecting voters from economic coercion
• Timely implementation of the voters’ will

Competitive Elections: Equal Access to Voters

The first prerequisite of a competitive election is allowing candidates equal access to the list of potential voters. As a general rule, voter rolls are in the public domain and available to any citizen. Specific procedures for getting copies of voter names and addresses are set by each state or county, but it is axiomatic that whatever information is available must be provided to competing candidates on an equal basis.

By comparison, labor law denies workers equal access to voter lists. When workers become interested in forming a union in their workplace, neither they nor any union with which they are affiliated can get a list of potential voters; nor do employees have the legal right simply to take home a list of coworkers for use in union organizing. For pro-union employees to obtain a voter list, they must first get at least 30 percent of their coworkers to sign cards asking the NLRB to sponsor a vote on unionization. Needless to say, the fact that employees must contact this 30 percent without any list to work from is a daunting prospect. If candidates for federal office were required to produce signed statements of support from 30 percent of eligible voters simply in order to have an election scheduled — and to collect these statements without access to a voter list — it is hard to imagine how any challenger could prevail. Certainly if a foreign country operated in this manner, we would not hesitate to denounce this as a sham electoral system. But it is exactly such a system that U.S. citizens must endure in workplaces across the country.

Free Speech

The right to free speech stands at the heart of the U.S. system. In the words of the Supreme Court, it is “the guardian of our democracy.” It goes without saying, of course, that for free speech to be meaningful, it must be applied equally to both sides of a debate.

Unfortunately, however, the rules governing union elections essentially safeguard the free speech rights of employers while denying entirely those of employees.Under federal labor law, management is permitted not only unlimited reign to voice anti-union arguments to employees, but also nearly unlimited reign to stifle employees’ own political speech. Indeed, one federal commission found that there are upwards of 10,000 cases per year of workers being punished for engaging in pro-union speech. Labor law states that employees may talk to each other about the union, or hand out union literature, only when both they and the person they’re talking to are on break time and in a break area. Outside this narrow window, an employer may enforce a total ban on employees talking about the union or distributing union information anywhere in the workplace, even if managers themselves are engaged in ongoing anti-union discussions and distribution of antiunion literature throughout the workplace.

In addition to speaking with individual employees in the workplace, labor law grants employers the right to require their employees to attend mass anti-union meetings. These meetings, too, can be held as often as management chooses, except in the last 24 hours before a vote. The Board has ruled that employers have “no statutory obligation to accord the employees the opportunity to speak” at such meetings. Not only is the union not granted equal time, but union supporters may be banned from such meetings, or may be permitted to attend on the condition that they not ask questions or venture opinions; those who speak up despite this condition can be legally terminated.

In this sense, union campaigns are conducted under a particularly counterintuitive logic. Employers, who are ineligible to vote or stand for election, have almost unlimited scope for campaign activities, while the actual employees and “voters” are largely prohibited from engaging in similar actions.

Equal Access to the Media

As with rights to free speech, labor law also provides management with highly unequal access to the media. Here too, NLRB practice departs radically from the norms of U.S. democracy. In elections for public office, our system aims at enabling both parties’ messages to reach the broadest possible audience....In part, Congress has sought to make it affordable for even modestly funded candidates to reach as broad a public as possible. In drafting the 1971 Federal Elections Commission Act(FECA), the Senate declared that it aimed “to give candidates for public office greater access to the media so that they may better explain their stand on the issues, and thereby more fully and completely inform the voters.”...

...the advent of television prompted Congress to add regulations governing what was fast becoming “the most important medium of political information.” Both principles undergirding the Equal Time Rule apply with equal logic to union elections. While communication in the workplace is not the sole medium for talking with workers about unionization, it is a finite resource, and it is by far the most influential possible forum for campaigning. Yet where federal law insists that both sides of a political campaign have equal access to mass media, labor law is content to allow one party to exercise near-monopoly control over workplace media. Indeed, in union election campaigns, communication within the workplace operates much like state-controlled media in a
totalitarian nation. Employers may post anti-union information on bulletin boards, in cafeterias and in work areas, while banning similar postings by pro-union employees. Even a company that has a general “No Solicitation” rule in the workplace is permitted to violate its own rule by distributing anti-union literature while enforcing the rule against pro-union handouts. “Management prerogative,” the Board has explained, “certainly extends far enough so as to permit an employer to make rules that do not bind himself.”

Leveling the Playing Field by Controlling Campaign Finance

Traditionally, one of the most important means of creating a level playing field among competing candidates is through regulation of campaign financing. While the law does not mandate that campaigns operate with the same amount of money, it does seek to establish a rough balance between them. One of the core notions of democracy is that elections are determined by the popular judgment of the merits and faults of each candidate...

...however, a number of independently wealthy candidates have chosen to eschew matching funds in order to make use of their own superior resources. To solve this problem, Congress in 2002 passed a “Millionaire’s Amendment” to the FECA. Under this statute, candidates for federal office who face wealthy, self-funded opponents are permitted to increase both donations and expenditures beyond the normal imits. Thus, Congress has acted repeatedly, if imperfectly, to maintain the rough balance of resources needed to ensure competitive elections.

When measured against the norms of political elections, NLRB procedures fall far short. In
contrast to the FEC, there are absolutely no limits or penalties, and very limited reporting
requirements, governing the amount of money that parties may spend on union campaigns....Aggressively anti-union employers frequently make use of outside consultants, on-the-clock meetings, legal strategies, internal communications, the use of company property and equipment to support these efforts, and, above all, the paid time of supervisors who function as anti-union campaign staff. All of these expenditures would be both reported and strictly limited under the FEC. And taken together, they add up to a level of resources that few unions can ever hope to match. The fact that none of this is reported or limited in any way allows employers to exploit their superior financial resources in order to run campaigns on a fundamentally unequal footing.

Guaranteeing Voters Protection from Economic Coercion

It is, of course, axiomatic that U.S. citizens cannot be threatened, coerced, intimidated, or
bribed into voting for one party or another. Beyond the fact that no individual is permitted to bribe another, the law is particularly concerned to prohibit the potential economic coercion of employers over their employees.

A concern about employer-employee relations dates back to the Founding Fathers. Thomas Jefferson invoked “yeoman farmers” as the ideal democratic citizens because they were economically independent; employees, by contrast, were dependent on the will of others and, therefore, vulnerable to pressure and manipulation. While exceptional individuals may resist such pressures, as Alexander Hamilton noted, “in the main it will be found that a power over a man’s support is a power over his will.” For this reason, electoral law draws a wide arc designed to protect the economically vulnerable from even vague or implicit threats designed to influence voting behavior.

Federal law makes it illegal even to indirectly promise someone a job in return for political support, or to pledge support for someone’s future appointment to a government post, in exchange for political support. The law specifically bans managers in federal agencies from exercising any form of intimidation or coercion over their employees in order to control their political behavior; those who violate this statute are subject to imprisonment for up to three years...it also reflects a keen insight into how easily the economically dependent may be manipulated.

Under electoral law, things that are perfectly legal for unrelated individuals to say to each
other become illegal when conveyed by an employer to his or her employees... This reflects legislators’ recognition that the same words coming from one’s employer carry an additional weight — and an implied threat of retaliation —which is not present in the speech of random individuals or neighbors. So too do both federal and state statutes recognize the potentially coercive nature of employer-employee communications even when they do not include an explicit threat....Coercion does not need to be spelled out to be understood.

By contrast, the Board appears blind to the insight that animated the founders. Under labor law, while explicit threats or bribes are illegal, anything that falls short of an explicitly articulated threat is permitted. For instance, employers may not tell workers that “if you wear a union button, you’ll never get a promotion,” but they are perfectly free to state that “a union is a declaration of disloyalty to me personally, and an affront to everything this company stands for.” To any reasonable human being, there is little material difference between these two statements. Yet under labor law, the second is perfectly legal.

Indeed, under current labor law, it is hard to determine what employer behavior would not be permitted in the course of a union election, short of a clumsy and explicit threat...an employer who threatened to eliminate “special personal arrangement(s)” such as “time off when your children sick, weddings, for haircuts, a school prom, (etc)was deemed within his legal rights. Even an employer who told workers that “I hope you guys are ready to pack up and move to Mexico” was found to have acted legally. An employer who exhibited a series of posters depicting factories that were closed as a result of unionization was thought to have approached the “brink” of acceptable behavior, but was ultimately judged to have engaged merely in persuasive, not coercive, communication.

The range of fears that workers may experience during a union election does not necessarily prevent them from voting for a union in the privacy of the polling station. But it does inhibit them from participating in all of the pre-election-day activities that make up a political campaign. Even if threatened workers are not afraid to vote their conscience, they will be understandably wary of wearing buttons, signing petitions, going to rallies, handing out leaflets, or displaying bumper stickers. Again, if we imagine a country in which the ruling party is free to engage in all the public hoopla of campaigns, while its opponents put their livelihood at risk by doing likewise, no American could think this counted as “democracy.”

Guaranteeing Voters Protection from Coercion at the Polls

When workers decide to form a union, they are generally required to vote at work, where they may be easily observed by supervisors. Placing the voting booths in a location controlled by management creates myriad opportunities for subtle coercion. While the ballot itself remains secret, management may call individual workers to the polls on a schedule of its choosing, making it easy to monitor voting activity. Employees who show up at the polls together with known union supporters, or who are seen conversing with pro-union employees, may understandably fear that they have been marked for retribution, even though their ballot per se remains secret.

It is the concern to avoid situations such as this that has driven election officials to mandate that polling places for political elections be located in neutral spaces. While the siting of polling places is local rather than federal law, the FEC advises local officials that the importance of “impartiality at the voting booths” creates a “strong public policy reason” to guarantee that polling places are situated in nonpartisan locations. In this way, not only is the ballot itself secret, but the choice of whether or not to vote, or who to vote with, cannot be a cause for fear of retribution. In political elections, voting cannot take place at an office owned by one of the campaigns, or even by a relative of a candidate. Nor would employees be required to vote at their workplace if the employer in question had taken a very active and public role in support of a particular candidate. Thus, for example, Texas’ code mandates that polling places be located in a “public building,” and specifically prohibits polling places located at the residence of a candidate or party official. Indeed, that state is so intent on guaranteeing impartial voting locations that, in the event that no public building is available for use as a polling place, county commissioners are authorized to purchase a new building for that purpose.

Thus, both federal and state officials embrace a higher standard for voting procedures than is available to U.S. workers seeking to create a union. The practice that is nearly universal in U.S. workplaces — requiring employees to vote in their places of work, easily monitored by their managers and supervisors even when these individuals have engaged in ardent campaigning against unionization— is prohibited in political elections as a matter of course.

Timely Implementation of the Voters’ Will

As described earlier, one of the cornerstones of U.S. democracy is that elections must be held on a regular and timely basis. If union elections were run in keeping with these principles, the vote would be held within a fixed period of time. This would guarantee that the process was responsive to the will of the voters, and would prevent the incumbent administration (here, the management) from manipulating the timing, and thus potentially the outcome, of the election.

Instead, labor law provides none of these protections. When workers petition for a vote on unionization, the Board is required to hold a hearing determining (who) should be included in the union, and the employer is a fully recognized participant in this hearing. Thus, employers are provided an opportunity to delay the election, using this time to campaign more aggressively against unionization. “As a practical matter,” one anti-union consultant explains, “the union controls the initiation of the organizing drive … but the company controls the end. This is done by delaying the election.” In many cases, employers’ other advantages over pro-union workers are sufficient to deter unionization even within the normal time period. However, if employers deem it to their advantage to delay the election, the Board generally has no ability to force a timely election and no choice but to permit delays. And indeed, where employers choose this strategy, the evidence suggests a direct correlation between election delays and the proportion of employees voting against unionization.

Even more disturbing is the incidence of delay in certifying the outcome of an election once it is held. In political elections, the law requires that procedural challenges be resolved in time for a winner to take office on a timely basis. While laws vary from state to state, a common principle...which mandates that even in the case of an election whose outcome is contested, the apparent winner must take office pending the outcome of an investigation. This principle was affirmed in litigation following a particularly unusual election for Justice of the Peace. The election in question was marred by irregularities, including eligible voters having been prevented from voting due to errors by election officials. The candidate who lost the election filed a challenge immediately following the vote, and the challenge was upheld by a state judge. Nevertheless, the candidate who won the election was sworn in on schedule and took office pending the outcome of the investigation. Ultimately, the judge ordered the election to be rerun. Nonetheless, the candidate who won the first round of voting was allowed to hold office until the new election was run, and acted with full authority in that position pending the new vote.

If this principle were followed in union elections, workers who voted to organize would have their union immediately recognized by their employer, who would immediately commence good faith bargaining. In elections where employers file procedural objections, these challenges would be thoroughly investigated. If necessary, a new election would be ordered. While the challenge was being adjudicated, however, the employees would have a union with full legal authority to represent themselves.

Instead, when the outcome of a union election is challenged by an employer, the union is barred from taking office for as long as it takes to resolve the complaints. Since employers may pursue an appeal through five levels of adjudication — the regional NLRB office, an administrative law judge, the full NLRB in Washington, DC, federal district court, and finally the U.S. Supreme Court — appeals may take many years. During all this time, the workplace is governed as if employees voted against unionization, no matter what the polls may have shown.

Under these conditions, it is understandable that anti-union employers have an incentive to pursue prolonged appeals, since the appeal itself will forestall unionization, and in the meantime many union supporters will get despondent or move, leaving a weakened workers’ organization to pick up the pieces if it is ever recognized. But this process marks a dramatic departure from the norms that define U.S. democracy. It is inconceivable that we would allow a political election — whether for President of the United States or a local Justice of the Peace — to be upheld in this fashion. Yet these are the conditions that frame workers’ efforts to represent themselves in collective bargaining.

Conclusion

At every step of the way, from the beginning to the end of a union election, NLRB procedures fail to live up to the standards of U.S. democracy. Apart from the use of secret ballots, there is not a single aspect of the NLRB process that does not violate the norms we hold sacred for political elections. The unequal access to voter lists; the absence of financial controls; monopoly control of both media and campaigning within the workplace; the use of economic power to force participation in political meetings; the tolerance of thinly disguised threats; the location of voting booths on partisan grounds; open-ended delays in implementing the results of an election; and the absence of meaningful enforcement measures — every one of these constitutes a profound departure from the norms that have governed U.S. democracy since its inception.

While the nation’s elected officials include many talented and tireless campaigners, it is hard to imagine anyone — Republican or Democrat — who could win election under the conditions that workers must use to form unions. Indeed, almost any single one of the problems listed above would be enough to sink all but a handful of campaigns. If congressional elections were run just as they are now, except that a challenger was required to show signed statements of support from 30 percent of registered voters before the district would schedule an election, this by itself would make elections impossible in most of the country. Similarly, if the only change were that one candidate had access to voter lists and the other did not, this by itself would make victory virtually unattainable for the disadvantaged candidate. It is easy to imagine a similar result for each of these failures of the NLRB system: if the only problem was that one candidate had
monopoly control over the media; if it was just that one could talk to voters every day at work while the other had to visit them at night in their homes; if it was only that local businesses threatened to lay off employees if a certain candidate was elected; or only that one candidate had the power to compel all voters to attend one-sided campaign rallies — any single one of these would result in certain defeat for the vast majority of candidates.

Intuitively, one would think that if there were any difference between union and political elections, it would be that union elections provided even greater protections to participants, out of recognition of their greater vulnerability. In political elections, the actions of either employer or employee are part of a much larger electorate and, therefore, contribute in a much more indirect way to the election’s outcome. In addition, since most political campaigning — as well as the final act of voting itself — takes place outside the workplace, there is much less opportunity for employer surveillance of, knowledge of, and influence over employees’ political behavior. In union elections, all of this is reversed; the campaign primarily takes place in the workplace, where employers know who is talking pro-union, who is wearing what kind of button, who has signed what petition, and who shows up to vote (and in whose company) on the election day. Given the far greater opportunity for undue influence in the workplace, one might suppose that protections against voter coercion would be more stringent in union elections than in political
elections. Just the opposite is true.

The analysis above points to an inescapable conclusion. The high hopes and bold words that accompanied the passage of the Wagner Act have not been realized. It is possible for scholars, lobbyists, and lawmakers to hold widely divergent beliefs regarding how unions should be formed. But it is no longer possible to believe that the current system mirrors the procedures we use to elect public officials. Indeed, from the point of view of the framers of the Constitution, of U.S. jurisprudence, and of state and federal statute, the current NLRB system is profoundly broken — and profoundly undemocratic. Whatever path labor law reform may take, it must begin with this understanding.