It is a
basic idea behind the national labor law: workers choose the union that
represents them. If a union has the support of a majority of workers, it
represents them. If the union doesn’t have that support, it doesn’t represent
those workers. If we don’t know for sure if the workers want a union or not, a
government-run secret-ballot election is held to find out. It is pretty simple
and very much in keeping with our democratic traditions.
That
basic principle has been under siege over the last decade as unions resorted
more and more to "corporate campaign" tactics that short-circuited the union
election process and imposed representation on workers with little regard for
their right to choose their own representatives. But the National Labor
Relations Board, to its credit, has taken decisive action that will go a long
way toward restoring that right.
The
National Labor Relations Act is emphatic: "Employees shall have the right to
self organization, to form, join or assist labor organizations, [and] to bargain
collectively through representatives of their own choosing." It has long been
understood that the best way for workers to choose a representative is through a
secret-ballot election. But the law does not always require an election — an
employer can recognize and begin bargaining with a union once it is presented
with evidence that a union has majority support, typically in the form of
authorization cards signed by a majority of workers, a process referred to as "card
check."
This
process of voluntary recognition makes sense in those cases where it is clear in
advance that the union would win a vote. Dispensing with the election avoids the
costs and delays of a secret-ballot vote and improves the chances that union and
management will build a harmonious working relationship.
But
allowing voluntary recognition — in which management can decide to skip the
election and recognize a union based on its own judgment of what its employees
want — is not without risk. Card check by itself is not an
infallible guide to employee opinion. When an employee signs a card it may
be because he or she supports a union, but it may also be the result of social
pressure or confusion about what the card really means. Or it may be because of
intimidation by union officials — unlike an election there’s no privacy and
there’s no neutral observer to verify that the whole thing is done fairly. The
cards are not foolproof; even after collecting signatures from more than
two-thirds of the workforce, a union’s chances of winning a secret-ballot
election are no better than 50-50.
Relying
too much on card check means that workers may find they have a union that most
of them don’t really want. Much depends on the employer’s ability and
willingness to discern its own employees’ opinions. A dishonest employer might
take advantage of this procedure to foist a weak union on its own employees. Or
a union might exert pressure from other sources on that employer to force it to
accept a card check.
In fact,
unions have been doing just that for the last decade, using a strategy known as
the "corporate campaign" to put pressure on companies from customers,
shareholders, government agencies and even religious groups in order to force
them to forego a secret-ballot vote and accept unions based solely on card
check.
The
typical corporate campaign is a cunning series of attacks on an employer’s
business. The attacks can go well beyond criticizing the company’s relationship
with its employees, and nothing is out of bounds. The point of the corporate
campaign is not to persuade workers to join the union, but to pressure the
company to accept unionization by card check and to then to say or do nothing to
oppose the union during the organizing drive.
Corporate campaigns may attack a company’s relationships with its clients, and those attacks may even veer into libel. In one case the UNITE HERE union sent postcards to expectant mothers advising them to avoid using Sutter Health services because the laundry service employed by Sutter Health had returned bed linens to the hospital that still had blood, feces and pathogens on them. (UNITE HERE’s actual target was the laundry service, although Sutter Health itself was the target of another union organizing campaign waged by the SEIU.) Sutter Health would eventually win a $17 million dollar judgment against UNITE HERE for defamation.
Another
tactic is to take advantage of the stock held by union pension funds to mount
proxy battles against a company’s management. Unions may use relationships with
friendly non-profits to pressure other institutional investors to support a
"pro-social" agenda. This pressure for socially responsible investing may be
well intentioned, but it also presents opportunities for unions to disrupt an
employer’s operations.
Or a
union may object to a company’s application for government permits. The
environmental permitting process can be complicated, and union-supported legal
action can result in delays or denials of government approval for a wide range
of company projects, further disrupting an employer’s plans.
The union
can also use its own resources, in cooperation with friendly groups, to wage a
public relations campaign designed to tear down a company’s overall reputation
in the community. The accusations may be focused on how the company treats its
employers — the continuing union campaign against Wal-Mart is a good example,
but the bad PR does not have to end there.
One
common thread among all these tactics is that the corporate campaign generally
is not designed to persuade workers that union representation would be valuable
to them. Even in the example of Wal-Mart, the corporate campaign is largely
directed at customers and community groups, with the goal of persuading shoppers
to go elsewhere, and motivating politicians and community groups to use
permitting and zoning rules to prevent Wal-Mart from opening new stores.
The
ultimate goal is to gag the company during a union organizing drive and to force
it to agree to recognize a union when it is presented with union authorization
cards signed by a majority of its workers. Once the employer agrees to the union
demands, the pressures on the company are relieved, but then its workers are
left vulnerable to pressure tactics from a union they may not have needed or
supported. Until recently, the union could resort to deception or intimidation
knowing that workers would not have a chance later to make their real intentions
known in a secret-ballot vote.
Under the
rules created by the National Labor Relations Board, once a union was recognized
it was very difficult for workers to get rid of it. The process of decertifying
a union requires that workers collect signatures from 30 percent of their ranks,
and then they must win another secret-ballot election. But even that had to wait
until union and management have had an opportunity to negotiate a contract —
this is referred to as the voluntary recognition bar — and if the two sides are
able to agree to a contract quickly the NLRB’s contract bar rule meant that
workers would have to wait as long as three years to file a petition and have a
vote to remove a union.
Unions resorted to corporate campaign tactics because elections had become too difficult to win: the union win rate in NLRB-supervised elections has been little better than 50 percent for several years. Frustration with workers who are increasingly skeptical of union claims has led unions to resort to tactics that subvert employee choice. According to George Washington University Professor Jarol Manheim in his report “Trends in Union Corporate Campaigns,” the union win rate goes up to 70 percent with card check and neutrality in place.
But the
National Labor Relations Board, to its credit, has now taken action to minimize
the risks created by corporate campaigns. In a decision handed down Sept. 29,
2007, the Board changed its rules so that whenever an employer recognizes a
union voluntarily — without a secret-ballot vote — workers will be given 45 days
to circulate a petition for a vote of their own. Workers will need to be given
notice of their right to petition for an election before the 45 day period can
start. If union opponents are able to collect signatures from 30 percent of
their coworkers, the NLRB will hold a secret-ballot vote to decide matters. If
they cannot get the signatures, or the union wins the election, then the union
will be put in place, just like before.
The new
rule came about in the wake of neutrality and card check agreements that
automotive suppliers Dana Corp. and Metaldyne Corp. signed with the UAW. In both
cases the UAW was able to secure signed authorization cards from a majority of
employees. In both cases, there was strong opposition to the union from those
same employees; petitions opposing the UAW were signed by 35 percent of workers
at Dana and a majority of workers at Metaldyne — something that would be
impossible if card signatures were a reliable measurement of worker support.
The rule
is not perfect — unions will still be able to use pressure tactics against
employers and it will be up to employees to force a vote. The corporate campaign
will still be useful to unions: Card check agreements can still be used to
prevent employers from calling for a vote, and neutrality agreements can still
be used to silence employers. The process of collecting sufficient petition
signatures to force a vote will still be challenging, especially in large
companies.
Ideally,
there should always be a secret-ballot vote before any union can be recognized.
But this decision is a step in the right direction. Workers will have a window
in which to act, and a legal means to prevent a union they oppose from being
forced on them. The fact that union recognition could be challenged by their own
employees is likely to make employers more reluctant to agree to card check,
especially when the company is not certain that its workers support unionism.
For that, at least, the National Labor Relations Board deserves some credit, and
workers who prefer to remain union-free can take some comfort.
#####
Paul
Kersey is director of labor policy with the Mackinac Center for Public Policy, a
research and educational institute headquartered in Midland, Mich.
Permission to reprint in whole or in part is hereby granted, provided that the
author and the Center are properly cited.
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