Neither free nor fair:

America's union elections violate its own democratic standards

By DON McINTOSH, Associate Editor

Most American workers say they would like to have a union in their workplace, according to polls. Yet most don’t actually have a union in their workplace. What’s preventing the majority from getting what it wants?

Labor Education and Research Center at the University of Oregon political science professor Gordon Lafer suggests the answer: The laws governing union elections, overseen by the National Labor Relations Board (NLRB), violate the democratic standards that make elections for political office “free and fair.”

For a report released in June, Lafer studied the laws governing union representation elections, and he compared them to laws governing elections for political office. He studied the political philosophy of the nation’s founders, read the minutes of the Constitutional Convention, pored through current federal and state laws, court cases and accounts of debates among lawmakers.

The report he produced, “Free and Fair? How labor law fails U.S. democratic standards,” is available online at www.american-rightsatwork.org.

“Past studies compared U.S. law governing union elections to international standards put forth by the International Labor Organization,” Lafer said. “I wanted to compare it to America’s own standards for its political elections.”

Lafer found that a handful of core principles have come to define U.S. elections as “free and fair,” including genuine competition between parties; equal access to voters; free speech for candidates and voters; protecting voters from economic coercion; and timely implementation of the voters’ will.

None of these principles apply to elections held to determine whether workers will get to have a union.

“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,” Lafer concluded. “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.”

“Most union members, who may have gone to work for an employer that was already unionized, don’t realize how difficult it is to win a union election,” Lafer said. “Union elections look more like those of discredited foreign regimes than those by which we elect our own senators and representatives.”

Imagine, Lafer suggests, what it would be like if congressional elections were run the way union representation elections are run:

• Challengers would have to show signed statements of support from 30 percent of registered voters before an election could be scheduled in the first place; then,

• One candidate would have access to voter lists, and the other would not;

• One could talk to voters every day at work, while the other would have to visit them at night in their homes;

• One candidate could force all voters to watch their TV ads, and the other was banned from having any ads;

• Local businesses could threaten to lay off employees if a certain candidate were elected;

• One candidate would have the power to compel all voters to attend one-sided campaign rallies; and

• In the event of questioned ballots, the incumbent could continue to hold office for years while the challenge went through the courts, even though the challenger was the apparent winner.

Any one of these flaws, Lafer maintained, would be enough to sink all but a handful of congressional campaigns.

That’s the message Lafer took to staffers from the offices of 45 members of Congress at a briefing he gave in Washington, D.C., after the report’s release. “They had no idea how bad it is. People’s mouths fell open when they heard.”

Many people on staff in Congress have had experience running a political campaign, Lafer said, so they know what it means when the playing field is tilted even a little.

Two bills now in Congress would change union election procedures — in opposite directions. One is supported by unions; the other by union opponents.

The anti-union bill, H.R. 874, is known as the Secret Ballot Protection Act. Introduced by Georgia Republican Charlie Norwood in February, it has 62 co-sponsors in the House. It would make it illegal for an employer to recognize a union solely on the basis that a majority of employees had signed cards authorizing a union to represent them.

Instead, it would make a secret-ballot election conducted by the NLRB the only legal way a union could be recognized. The law is a response to the growing tendency of unions to abandon the NLRB election process altogether. Unions are using various kinds of pressure to get employers to grant voluntary recognition in cases where the union can demonstrate majority support.

The other bill is known as the Employee Free Choice Act. Introduced in April, it has 191 co-sponsors in the House (H.R. 1696) and 37 in the Senate (S. 842). It would require the NLRB to certify a union without an election if a majority of the workers had signed cards authorizing the union.

“A lot of the debate about it is based on assumptions that union elections work like regular political elections,” Lafer said. “They don’t.”

“Would a secret ballot make it a free and fair election?” Lafer asked. “It’s not enough.”

Lafer’s report was sponsored by American Rights at Work (ARW), which was formed in 2003 with financial support from unions and foundations as a counter-force to the anti-union National Right to Work Foundation. ARW is headed by former U.S. Representative David Bonior.

© Oregon Labor Press Publishing Co. Inc.