Federal Labor Board Sets Up Snap Union Elections

For private-sector labor unions that nationwide have lost nearly 2 million members in the last decade (more than 260,000 of those in Michigan) it has long been a priority to get their membership numbers (and dues revenue) back up by changing the law in their favor. Plan A was the Employee Free Choice Act and its "card-check" rule, which would allow unions to make use of authorization cards signed by individual workers in place of the secret ballot as a means of determining whether or not a union has the support of a majority of workers in a bargaining unit. Under card-check, union support could easily by manufactured by thuggish tactics, since the union would know who has signed, and there would be no way to tell if a signature was genuine or coerced.

EFCA would appear to have failed, but there's more than one way to rig the game so that the unions get the results they want. One union fallback would be the so-called "snap" election — a vote that is held quickly when union support is at its highest and before the employer has a chance to make its opinion heard. Or even better (at least from the union's point of view) would be if the election could be held without the employer even knowing about the petition. That's the one way to guarantee that workers will not hear the case against unionization. The problem with holding snap elections up to now has been that the most logical place to hold the vote is at the workplace, although the sight of National Labor Relations Board officials setting up voting booths is kind of a giveaway that something is up.

Years ago new NLRB appointee Craig Becker opined in a law review article that employers should have no right to speak on the topic of unionization, and one way to make that a reality would be to hold elections quickly and away from the workplace. And one way to do that would be through cyberspace. The NLRB has formally requested information from companies on internet voting, potentially a very troubling development depending on what the NLRB has in mind.

In the labor board's defense, it should be noted that there is one legitimate use for internet voting in labor relations: occasionally a workforce will be widely dispersed, such as a group of installers or travelling salesmen, and it won't be practical to set up a central voting location. Up to now these workers have been polled on unionization by mail, but voting over the internet might work as well and be cheaper to administer.

With that one exception though, the old-fashioned voting booth is clearly superior to voting by mail or by the web because NLRB officials can verify that votes are cast by eligible workers, in secrecy and without risk of coercion, and counted correctly. With voting by mail or by the internet, there is a real possibility that workers could be forced into voting while under surveillance or even by physical threats. It's certainly within the realm of possibility that union (or company) operatives will lie in wait for workers, laptop ready, to coerce the desired vote. Or they may dispense with the thuggery and hack into the network directly to stuff the ballot box. In terms of assuring a free choice, electronic voting may be no better than card-check.

Just as important, employers still have speech rights and that includes the right to speak to employees about unionization. Even if the risks of intimidation or fraud prove to be minimal, the web voting process should not be used to freeze employers out. Whether it's done on paper or on the web, the NLRB should leave workers with the opportunity to hear both sides and the time to think through their choices. Whatever the merits of electronic voting might be, it should not be a mechanism for instituting snap elections.

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Paul Kersey is director of labor policy at 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.