The Labor Board is trying to muzzle employers, really?

According to the board’s critics, delaying litigation and speeding up access to information on election issues will mean that employees will only get to hear one side of the story – the union side – and thus make uninformed and unwise choices. Under the new election regime, they argue, the employers will be “ambushed” by union campaigns and will have no opportunity to express themselves.

Employers won’t have adequate opportunity to communicate their views on unions? Really?

What does the evidence tell us about how and when employers communicate their views on unions to employees? Let’s ignore the many and significant other advantages that employers enjoy under the current system of NLRB elections. Let’s ignore that employers have exclusive access to employees at work during working time. Let’s ignore that during organizing campaigns, employers frequently force their employees to attend group and individual “captive audience” anti-union meetings (which, in any other context, would be considered a form of false imprisonment). Let’s ignore that a regrettably high number of campaigns are tarnished by allegations of employers firing pro-union employees (most employees would consider getting fired a fairly clear indication of their employer’s view on the subject). And let’s ignore that most unions have now given up on the official NLRB election process because they consider it so biased in employers’ favor.

When do employers start to communicate their anti-union message? All of the evidence suggests that employers do not wait until the start of an official NLRB election period. These are not ten to 21-day campaigns that employers fear (double the length of union elections in Canadian provinces, where employers are also restricted more tightly in what they can say to employees), even though the proposed new rules do not specify any time period for elections. These are not even the 57-day campaigns that were the average for union certification elections in 2008. 

They are effectively, year-round, 365-day anti-union campaigns. External “union avoidance” consultants advise that employers “should design a strategy for communicating…from day one of New Hire Orientation.” Employers frequently include unambiguous statements of their opposition to unionization in all employee handbooks. Large employers such as Wal-Mart, Home Depot and Staples show anti-union films to new hires as part of their inductions. Several of these movies have recently found their way to the web. And perhaps most compelling of all, large corporations frequently hire internal union avoidance experts for high-level human resource positions. One recent ad states: “Union avoidance is key to this position.”

In the Alice-in-Wonderland reality that now dominates conservative rhetoric on labor issues, the NLRB first tried to intimidate Boeing, an immensely powerful corporation with political connections at the highest levels of government. Now it is attempting to prevent all employers from communicating with their employees on issues related unionization.  

The new rules streamlining the union certification process will prevent some of the worst abuses that allow unscrupulous employers to undermine employee free choice through dilatory tactics. But the NLRB system as a whole will continue to provide employers with significant advantages over employees who are trying to form unions.

Under the new rules, employers will continue to communicate forcefully and repeatedly their opposition to unionization. Employers’ outrage is unconvincing and their arguments disingenuous. The sole reason for opposing the election proposal is the desire to make it more difficult for employees to exercise their right to choose a union. It is unsurprising that Republicans would cry wolf over changes that protect the right to organize. 

What this manufactured outrage really demonstrates is employers’ complete unwillingness to give up their stranglehold over the current system of union organizing. Unfortunately, these relatively modest changes are unlikely to challenge that in any fundamental way.

John Logan is professor and director of Labor and Employment Studies at San Francisco State University.

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