NLRB Takes a Stand for Worker Freedom

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.

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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.