Intimidation can take many forms. The most serious threats of intimidation sometimes cannot be traced back directly to a union, yet still work in the union’s favor. The way in which unions carry out pressure tactics makes holding them accountable difficult. In fact, courts have offered little protection for workers and have even upheld card check elections where signatures were clearly obtained through threats of violence.
For example, in HCF, Inc. d/b/a Shawnee Manor, the NLRB concluded that statements made by a card solicitor, because they are not directly a “special agent of the Union,” are permissible, even if they are threats of violence. In HCF, the Board affirmed an election even though:
[O]n the day before the election, a bargaining unit employee approached another employee and solicited her to sign a union authorization card. The card solicitor allegedly stated that the employee had better sign a card because if she did not, the Union would come and get her children and it would also slash her car tires.
The reason for the Board allowing this alleged threat was because it agreed “that the card solicitor was not a special agent of the Union” under the precedent set in a previous ruling and “threats of violence made by card solicitors … are not attributable to the Union.”
The NLRB precedent holds that “the solicitation of authorization cards by employees, standing alone, does not make those employees agents of the union.” Except for extraordinary circumstances, employees who solicit cards are special agents of a union “for the limited purpose of assessing the impacts of statements about union fee waivers or other purported union policies” while trying to get employees to sign authorization cards. In other words, a card solicitor who is not considered affiliated with a union, can threaten other employees with violence in an attempt to influence them to sign union authorization cards but that will not be held against the union.
In a secret ballot election, an employee subject to this kind of treatment can simply sign the card in support of an election and rid themselves of a threatening solicitor and then vote “no” in the privacy of a voting booth without fear of reprisal. In a card check certification, however, an employee does not have that option. He must either capitulate and sign the card, authorizing a union he may not want, or risk further harassment, intimidation or even violence.
In the Randell Warehouse of Arizona case, the NLRB found in 2006 that union representatives photographing employees as they took union literature was coercive. However, in 2011, in a different case, the Board decided that this only applied to union employees: “only to union actions, not to the actions of union supporters.” Once again, the Board allowed union supporters to engage in intimidating activity as long as they are not direct agents or employees of the union.
In February 2007, the House Committee on Education and Labor’s Subcommittee on Health, Employment, Labor and Pensions held a hearing titled, “Strengthening America’s Middle Class through the Employee Free Choice Act.” Employees and former union organizers testified to abuses directly undertaken or attempted by unions during the card check process.
Former United Steelworkers union organizer Ricardo Torres testified about how his union wanted him to use intimidation tactics to obtain signed cards. Torres told the committee he quit his job with the union after a senior Steelworkers union official asked him to “threaten migrant workers by telling them they would be reported to federal immigration officials if they refused to sign check-off cards during a Tennessee organizing drive.” He noted that “this was the last in a long list of abuses I had observed as a union organizer.” Torres described other such tactics:
Visits to the homes of employees who didn’t support the union were used to frustrate them and put them in fear of what might happen to them, their family, or homes if they didn’t change their minds about the union. In most cases, constant pressure at work and home was enough to make workers break and at least stop talking against the union—neutralizing them, so to speak.
In a secret ballot election, threats of violence, intimidation and harassment have little effect. As noted previously, workers can simply sign the authorization card to get rid of the harasser, then vote their conscience while no one is looking and without fear of retribution for making the “wrong” choice. Employees may take advantage of the secret ballot’s protections in this way quite regularly, as it is not uncommon for unions to receives fewer “yes” votes than it received signed cards.[*]
The U.S. Court of Appeals for the 7th Circuit in 1983 acknowledged:
Workers sometimes sign union authorization cards not because they intend to vote for the union in the election but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back, since signing commits the worker to nothing (except that if enough workers sign, the employer may decide to recognize the union without an election).
Former UNITE HERE organizer Jennifer Jason echoed Torres’s account, telling the Committee, “I was taught to manipulate workers just to get a majority on the cards. I learned that promises made by organizers at the worker’s house had little to do with how the union actually functions as a service organization.”
She noted that the start of a card check campaign was often called a “blitz,” as teams of organizers went “directly to the homes of workers to get cards signed,” as a type of “surprise attack on the workers.” After participating in these blitzes, Jason testified that she “began to realize that the number of signed cards had less to do with support for the union and more to do with how effective an organizer was at doing their job.” This is why, she explained, in a secret ballot election the final vote in favor of a union “is always significantly less than the number of cards actually collected.”
At the same hearing, Mike Ivey, a materials handler for Freightliner Custom Chassis Corporation, which the United Auto Workers tried to organize via card check in 2002, testified that the UAW obtained personal information on all of his company’s employees. “It wasn’t enough that employees were being harassed at work, but now they are receiving phone calls at home,” he said. “The union’s organizers refuse to take ‘no’ for an answer. Some employees have had five or more harassing visits from these union organizers. The only way, it seems, to stop the badgering and pressure is to sign the card.”
[*] Card check usually weighs heavily in favor of the union, so much so that unions rarely settle for a simple majority if they know that there will be a secret ballot election. Unions advise their organizers to wait until they have gotten 60-70% of the workers to sign cards before they submit them to the NLRB. This is because erosion of support is practically inevitable, so the union stands a better chance of winning an election if it goes into it with a substantial margin for error. Organizers know that workers may change their mind or sign cards only so organizers will leave them alone. James Sherk, “Employee Free Choice Act Effectively Eliminates Secret Ballot Organizing Elections” (The Heritage Foundation, Aug. 27, 2008), https://perma.cc/NVW3-RLPZ.