REPRESENTATION ELECTIONS UNDER THE NLRA CAN THE SYSTEM BE FIXED?

It has been well known for years that the union representation election process under the National Labor Relations Act is seriously flawed and fails to reflect the desires of a majority of workers. Many scholars and activists have made proposals for reforming the NLRA election system. Others believe that the system is inherently unworkable and cannot be fixed. These individuals believe that the solution is to eliminate elections and substitute the card check system.

The first step in resolving this crucial issue is recognizing that it cannot be answered in the abstract. The controlling principle is that the decision regarding whether or not a group of workers is represented by a union is that the decision should represent the will of the majority. Whether to hold elections or use card check is not a matter of principle, but a pragmatic issue. The method used to make this decision (card check or election) should be the method which best implements the wishes of the workers.

The most serious problem with the current election system is that one side has a near monopoly of access to the voters (workers). The employer can hold unlimited meetings to put forth its arguments against the union. The union is not allowed to speak at these meetings. Neither are workers who support the union. Nor are workers allowed to stay away. Under the Act, employers are permitted to make attending these anti-union meetings a condition of employment. The union, in contrast, is not even allowed into the facility to talk to the workers.

Clearly, this is unfair. The results of a political election would never be recognized as legitimate under these circumstances. If an election based system is to be maintained, the problem of unequal access must be solved.

The captive audience problem can be solved. The NLRA could be amended to require that the union be given equal time, either at the same meeting at which the employer makes its presentation, or at a separate meeting. The rules could be changed so that the conditions of attendance (voluntary or mandatory) were the same for both. Employers would vigorously oppose such a change in the law, and it would be difficult to accomplish politically, but there is no principled reason why this change cannot be made.

This alone, however, does not solve the equal access problem. Employers do not confine their communication to formal meetings. During an organizing campaign, management communicates its message constantly. Even the most casual conversation between management and workers frequently contains a statement or question regarding the upcoming election. For the election process to be fair, the union would have to be given the opportunity for the same type of communication. This would mean giving representatives of the union unrestricted and unsupervised access to the workplace.

Such a system, however, is completely unworkable. Having outsiders wandering around the facility talking to anyone they want to whenever they want would completely disrupt production. It could even be a safety hazard. Imagine outsiders, who do not know the facility, walking around a steel mill or refinery without supervision.

This represents a fatal defect in the election model. The election is not fair unless both sides have comparable access to the voters. But giving the union such access is impossible.

The other critical problem with elections is employer coercion. Literally thousands of workers are fired every year for trying to organize. This not only denies the rights of these workers, but intimidates other workers as well. Firing a handful of workers is often enough to stop an organizing campaign in its tracks. A solution to this problem must be found if the election model is to be retained.

On paper, the problem can be solved. Any behavior which is motivated by a rational expectation of gain can be deterred if the penalty is sufficiently severe and the probability of being caught is high enough. In practice, however, it may be insoluble. The economic gains to an employer by keeping its workforce non-union are substantial. Unionized workers make at least 20% more than non-union workers in comparable jobs. A large employer can save literally millions of dollars by violating the NLRA. In addition, employers have deep personal resistance to sharing power with workers. The penalty required to overcome the combined resistance of these two factors would be huge, possibly large enough to threaten the financial health of the company (and the continued existence of the workers’ jobs). Criminal penalties against offending managers would have adequate deterrent effect, but it is questionable at best that our country is prepared to take this step.

The severity of both these problems would be greatly reduced under card check. Under card check, the decision-making period would no longer be approximately seven weeks. Instead, it would be months, or even years. With essentially unlimited time to get its message across, the union’s inferior access to the workers would be far less of a problem.

An unlimited decision making period would also diminish the impact of coercion. The time and effort required of management to keep the pressure on during an organizing drive is substantial. As a practical matter, an employer simply cannot keep holding frequent captive audience meetings forever, nor can it turn every discussion with a worker into an anti-union sales pitch forever. Over time, the focus must return to producing and selling the product.

It is often claimed that card check is a one sided process in which the union “sells” workers on organizing while the employer, unaware of the campaign, is silent. Nothing could be further from the truth. Nothing in the card check system prevents an employer from explaining its views about unions to workers as part of its regular employee communications program. Sophisticated employers do this already.

Moreover, an employer will still be able to amplify their message during an organizing campaign under card check. In virtually every company, there are some employees who are opposed to joining a union. When these employees become aware that a union is collecting cards, they will tell management. This will allow management to step up their communications during critical periods.

Even under card check, the employer continues to have the upper hand. It has easy access to the workers daily, while the union has to struggle to locate workers away from the facility. Even with a list of the workers’ home addresses (which the employer is required to provide under the Excelsior decision), communicating with workers away from the company is difficult and inefficient.

The employer also continues to have far more ability to coerce those it has not persuaded. In the absence of a union, workers are employees at will. They can be fired for any reason, fair or unfair, or for no reason at all. The employer also controls promotions, pay raises, vacation scheduling and many other decisions that seriously affect a worker and his or her family. Even if gross retaliation (such as firing the leaders of an organizing effort) can be effectively prevented, an employer retains the ability to do great harm to a worker whom it views as a negative influence. This power vastly surpasses any ability employees favoring the union may have to arm twist a few “voters” in a closely divided company.

Overall, card check is a better method to determine whether workers will be represented by a union. The employer has unfair advantages under the election model that cannot be eliminated. Under card check, however, the effect of these advantages is greatly reduced so that the ultimate decision more often reflects the desire of the workers.