NLRB elections: Neither Free Nor Fair

[Omaha Steve]

http://www.americanrightsatwork.org/publications/general/neither-free-nor-fair.html

Neither Free Nor Fair: The Subversion of Democracy Under NLRB Elections contrasts what NLRB elections look like in the real world with what happens in elections for public office.

» Full Report (PDF: 72 pages, 733 KB)
» Executive Summary
» Read the related press release

By Gordon Lafer, Ph.D.
American Rights at Work
July 2007

» Download this page as a PDF (4 pages, 77KB)
Executive Summary
From its inception in 1935, the National Labor Relations Act (NLRA) held out the promise that Americans may enjoy democratic rights in the workplace similar to those we count on as citizens. When the bill was passed, the U.S. Senate explained that its purpose was to guarantee rights to "a worker in the field of industry" similar to those provided to "a citizen in the field of government."

Unfortunately, however, in the 70 years since the law was established, Americans' democratic right to represent themselves through a union has increasingly become a right that exists on paper only, as aggressive employers and ineffective laws have effectively denied most employees the ability to exercise this right in practice. Over the years, the National Labor Relations Board (NLRB) has interpreted the law in ways that allow employers to deny free speech in the workplace, pervert the political process, and intimidate workers who are voting on the question of unionization. Many forms of employer intimidation that are banned in elections to public office are permitted in NLRB elections. Furthermore, since the penalties for violating labor law are so minimal, it has become commonplace for employers to break the law as part of their efforts to prevent employees from forming unions; thousands of Americans every year are either fired, suspended, or otherwise financially punished for backing the "wrong side" in union elections.

In new research, University of Oregon professor Gordon Lafer, Ph.D., lays bare the realities of how workers' rights to democratic process and freedom of association have been effectively eliminated under the NLRB system, exposing the myriad ways in which workers are denied the most basic tenets of democracy. This research illustrates just how far NLRB elections fall short of the standards that we rely on in elections to Congress and other public offices. Finally, this report addresses head-on the claim that the NLRB election process guarantees workers a truly secret ballot - the central claim of anti-union advocates who seek to keep the current NLRB system in place. Lafer's work shows instead that NLRB elections fail to safeguard workers' right to keep their opinions private; and that, on the contrary, the NLRB system results in workers being forced to reveal their political preferences long before they step into the voting booth - thus turning the "secret ballot" into a mockery of democratic process.
Employers' Foremost Goal: No Elections at All
In presentations to Congress, business lobbies have sometimes argued that the NLRB system is critical to maintaining workers' democratic right to a secret ballot election. But in their own internal publications, employer organizations routinely promote a strategy of "union avoidance," which aims above all to prevent workers from ever having a vote of any kind related to forming a union. The near-universal mantra of management consultants is "You can't lose an election that never takes place." Or, as attorneys from the celebrated labor law firm Jackson Lewis advise, "winning an NLRB election undoubtedly is an achievement; a greater achievement is not having one at all!"

"Union avoidance" consultants - employed by a majority of large- and medium-sized employers facing the prospect of a union election - counsel employers to conduct an aggressive, intimidating offensive as soon as any workers begin discussing unionization. Since an NLRB election is held only after 30 percent of employees sign cards calling for a vote, employers' foremost strategy is to prevent emlpoyees from signing cards that would trigger an election. The thousands of efforts to form unions that have been defeated through such intimidation tactics don't show up in any government statistics, because employees are scared into silence before any election can be scheduled. But in weighing the arguments of "union avoidance" proponents, it is critical to understand that these are aimed not at safeguarding anyone's democratic rights, but in guaranteeing that workers never have the right to democratic self-representation.
NLRB Elections: A Model for Authoritarian Regimes Abroad

This report describes what has become standard employer practice in response to workers' desire to represent themselves through a union. The pages that follow detail the myriad strategies - both legal and illegal - that typically comprise employers' efforts to deny their workers' the right to collective bargaining. Many of these entail practices that our government routinely denounces when practiced by foreign regimes. But they have become commonplace in the American workplace. Among the most disturbing of these practices are:
Denial of free speech

At the heart of American democracy is the principle that both voters and candidates must be guaranteed the right to free speech, including equal access to information from all sides of a political debate. But this most fundamental principle is ignored by the NLRB. While management is permitted to plaster the workplace with anti-union posters, leaflets, and banners, pro-union employees are prohibited from doing likewise. Union organizers are banned from ever entering the workplace - or even publicly-used but company-owned spaces such as parking lots - at any time, for any reason. Employees of the company are banned from talking about forming a union while they are on work time, and are banned from distributing pro-union information except when they are both on break time and in a break room. Management consultants typically advise employers on how to maximize the impact of these one-sided advantages, resulting in an election environment that more closely resembles the sham "elections" of one-party states than anything we would call American democracy.

FULL story at link.