Lamons Law

Once again, an NLRB ruling benefits unions, undermines workers' rights.

Majority rule is supposed to be a fundamental principle of labor law: if workers want a union, they get one. If they don’t want one, they don’t have to have one. Workers have a right to join a union, but also a right to reject unionization. That’s not the case any more thanks to a recent National Labor Relations Board ruling in the case of Lamons Gasket, a gasket and bolt manufacutring company in Houston, that opens the door for collusive unionization.

In theory, the National Labor Relations Act calls for secret-ballot election whenever there is a question about union support in a workplace. The voting booth allows workers to express their opinion clearly and without risk of retaliation by employer or union. The ballot is clearly the best way to determine whether or not a union has majority support – occasional protests from union muckety-mucks notwithstanding.

But there is a second way that unions can secure bargaining authority over workers: voluntary recognition; the law allows an employer to dispense with a contentious campaign and vote, and instead recognize a union on its own. For decades the law allowed employers to concede that a union has the necessary support on its own.

Such a thing is tolerable when the result of a vote would be a foregone conclusion, but in the 1990s unions learned to exploit this loophole, pressuring employers into voluntarily recognizing them without much concern for the wishes of their workforce.

The strategy had three parts: First came corporate campaigns, often done in conjunction with leftist advocacy groups from outside the workplace, that damaged a company’s reputation.  The corporate campaign* would be used to pressure an employer into accepting the second and third parts of the strategy: a “neutrality agreement” that ensured management would not present arguments against unionizing to its own workforce, and finally, the capstone, a “card-check” arrangement under which the company would accept signed cards in place of a secret-ballot vote as evidence of worker support for the union.

Card-check is a poor way to measure union support because a worker's signature could easily be the product of confusion or intimidation. There is no neutral third party to monitor how cards are collected like there is at a poll. The number of signed cards almost always overstated union support, but the process allowed unions and companies to claim, with a straight face, that workers had expressed their preferences and wanted union representation.

Four years ago the NLRB realized that this new union tactic would subvert the principle of free employee choice by effectively eliminating secret-ballot votes. The board provided workers at a company with the option of calling for a vote on their own after a company announced it would recognize a union voluntarily. The new NLRB, appointed by President Barack Obama, has now rescinded that; its recent decision in the case of Lamons Gasket cynically leaves workers without recourse when a company decides to recognize a union, either on its own or under pressure from outside groups.

Lamons Gasket is just another in a long line of decision in which the labor board has made its intentions fairly clear: unionization for the sake of unionization, First Amendment freedoms be damned. A few months ago the board cut off the free speech rights of employers by opening up the door for quickie elections. Later on it began prosecuting Boeing for its decision to expand a non-union facility rather than a unionized one with a history or lengthy strikes. Now it is disregarding the association rights of workers who may not want a union as much as the union wants them.

At bottom the problem is a national labor law that gives a highly partisan board with broad discretion to make up labor law as it goes while providing little protection for what are fundamental rights. It’s a common problem, labor laws throughout the country tend to promote unions at the expense of employers, the public, and even workers themselves. Just as Michigan is overdue for an overhaul of its Public Employment Relations Act, Congress needs a rewrite of the National Labor Relations Act.

*Worth mentioning: there's another way that a union could coax an employer into collusively organizing a workforce that does not want a union: agreeing in advance to a sweetheart contract. The NLRB is okay with that too.