NLRB election rules promote basic fairness at work

On Wednesday, the National Labor Relations Board reissued new rules – first issued in June 2011 – to streamline the union election process and prevent employers undermining employee free choice through deliberate and unjustified delay.

The new election rules are moderate and commonsense changes that would provide some basic fairness for workers who want unions. At present, corporations and their powerful law firms can delay the union election process for weeks or even months. During this period, workers are subjected to mandatory “captive audience” meetings, one-on-one meetings between with supervisors, anti-union videos and flyers and a barrage of other anti-union materials at the workplace. None of these tactics – most of which are outlawed in other democratic countries – would be affected by these rules. Employers would still have ample time to subject employees to aggressive anti-union propaganda. They simply would no longer be permitted to delay NLRB elections through pre-election lawsuits and other frivolous tactics.

Anti-union groups disingenuously refer to the new rules as “ambush elections,” claiming that employers will be denied the opportunity to mount intensive campaigns. In reality, employers will still have plenty of time to get their message across. Indeed, nowhere else in the democratic world are employers allowed weeks or months to pressure workers to reject unionization. In Canada, half of the provinces require mandatory elections -- others allow authorization card certification -- but these elections are conducted between 5-10 days after workers petition for a union. Canada also restricts anti-union tactics more than the U.S. No wonder, then, that its unionization rate is over 30%, while in the U.S. it is 11.3%, despite no significant difference in workers’ preference for unions between the two countries. Quite simply, Canada’s system for choosing a union is fairer to workers.   

The notion that the new election rules threaten employers’ free speech rights is nonsense and right-wing groups know it. Corporations like Wal-Mart subject new employees to anti-union propaganda from day one on job. They will still force employees to attend “captive audience” meetings, at which pro-union workers have no right of reply. They will continue to have exclusive access to employees at the workplace. They will still recruit powerful anti-union law firms that specialize in operating in the grey areas of the law and advise employers to use pre-election delay to undermine organizing campaigns. They will still hire “union avoidance consultants” that offer a money-back guarantee in the event of a union victory. And they will continue to dominate a process that is intended to guarantee that employees have a free and uncoerced choice on unionization.

Even under the new rules, the NLRB election process will favor powerful corporations. A campaign at Amazon last month demonstrates that determined companies will continue to prevail, no matter how much employees want to form a union. Amazon engaged the services of a union avoidance law firm. It held captive group and one-on-one meetings to warn employees against unionization. It did everything possible to make clear that, both individually and collectively, employees would suffer negative consequences if the facility were to come unionized. After subjecting employees to several weeks of aggressive campaigning, Amazon won the NLRB election handily. The result was not a vote of confidence in Amazon, but a reflection of the intensity of its campaign. While sorely needed and long overdue, streamlined NLRB elections will still be dominated by powerful anti-union corporations. Several years ago, Business Week wrote that American corporations had “perfected the ability to fend off labor groups,” not through persuasion but through hardball intimidation tactics. This will not change under the new rules. 

Equally disingenuous are arguments that, by providing unions with phone numbers and emails, the new rules threaten employee privacy. Currently, the board provides names and addresses after the union successfully petitions for a recognition election. But the addresses, supplied to the Board by the employer, are often outdated and incomplete. Unions have no right to contact employees at the workplace and pro-union employees cannot speak to their co-workers during working time, so outside-the-workplace communications are the only way that employees get to hear from unions.  The Board’s critics have no regard for employee privacy, but simply want to stop workers hearing from pro-union voices.

GOP efforts to stymie the NLRB are prime examples of its willful obstructionism. They will join with anti-union groups to challenge the elections rules in the Courts, which have yet to rule on their merits, but previously struck down related rules on a technicality. While adopting the language of free speech and privacy, the Board’s adversaries are concerned only with preserving corporations’ stranglehold over the union election process. Their outrage is phony. Rather than protect employees’ rights, they seek to keep American workers unorganized and powerless. Democrats must challenge their disingenuous rhetoric and stand up for fairness at work.

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

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