42 Days of Infamy? (Viewpoint on Public Issues)

Are federal laws inadequate to protect workers who seek to certify a union? Do employers use the federally mandated 42 days between a union’s petitioning for recognition and the certifying election to illegally turn the will of a majority of its employees against unionization?

These questions are raised in a recent study entitled "Undermining the Right to Organize: Employer Behavior During Union Representation Campaigns," conducted by a research group at the University of Illinois at Chicago. Funded by American Rights at Work, an organization aligned with labor union interests, the study finds the answers to these questions to be "yes."

Researchers reached this conclusion after examining the low success rate of unions seeking to organize new workers in the Chicago area in 2002. Mark Gaffney, president of the Michigan AFL-CIO, has cited this study as support for his contention that workers want unions, but aren’t given a real opportunity to choose such representation.

These are important questions. Unfortunately, the Chicago study sheds little light on the answers, as it suffers from several weaknesses. For starters, the interviews cited were either of anonymous workers or union organizers. No reference is made to interviewing employers. This diminishes the usefulness of the anecdotal evidence.

The use of data is also questionable. For example, the study claims that 30 percent of employers facing potential unionization of their workforce fired a worker engaged in pro-union activities. This could be true. But it doesn’t demonstrate that actual engagement in pro-union work is why these employees were fired, instead of some other, legally justifiable reason. Indeed, actual National Labor Relations Board cases arising in Chicago do not support the conclusion of the study. The unions did not even file a complaint in 70 percent of the alleged cases. The study argues that this was because of the difficulty in proving such a claim, but another possibility is that many of the claims were unfounded.

According to the Chicago study, 91 percent of the unions enjoyed at least 50 percent support at the petition stage, and in "several cases," unions demonstrated more than 80 percent support. So what happened at the election stage? Employer intimidation?

We can’t be sure, because the Chicago study did not correlate petition support with actual election outcomes. We cannot tell the fate of the 9 percent of the unions that did not have majority support when they asked for an election, nor can we correlate the specific level of initial support with success in the certifying election. All we know is that about one-third of the petitions for an election resulted in successful certifications; about one-third were withdrawn pre-election for lack of support; and about one-third failed to achieve a majority vote. We can speculate, however, that a worker might sign a public petition at the request of a friend, but vote another way when protected by privacy.

Stung by their lack of success in certifying elections, organized labor advocates the passage of federal legislation that would give a union the right to declare, on the basis of a petition-like drive and without a secret election, that the union enjoys majority support and must be certified. The Chicago study will undoubtedly be cited by labor in support of this measure.

But the importance of the secret ballot in union certification is shown by the value union members place on it. In June 2004, Zogby International and the Mackinac Center for Public Policy conducted a survey of union members to gauge their attitudes toward their union’s performance. According to the survey report, "[A] strong majority (66 percent) think it should be illegal for a union and a company to agree in advance to bypass the secret-ballot union election when organizing a workplace." Unionized employees undoubtedly support the secret ballot for many reasons, including fear of reprisals from their employer. But it should not be forgotten that one reason may also be fear of union coercion during an organizing drive. Remember that not every unionized employee voted for a union.

Common sense counsels that we keep secret-ballot certification elections. The conclusion of the 2004 Mackinac Center report remains valid: "[Union members’ preference for private elections] suggests crafting practices and policies that guarantee workers’ ability to vote on union representation and respect the individual choices of workers to support a union or not."


Thomas W. Washburne is director of labor policy for 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.


A study claiming employer misconduct during union organizing campaigns is being cited by union leaders to support changes in labor law. But any change that would deny workers the right to a secret-ballot election in certifying a union would probably be opposed by union members themselves.

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