The harsh reality of NLRB union elections

Imagine waking up the morning after the 2008 presidential election and reading these headlines:

This sounds bizarre, and the voters would be enraged. Such a situation would make the 2000 Florida presidential vote look like a model of democracy. But this is exactly the fate that awaits many of the tens of thousands of workers who vote to join unions under the National Labor Relations Act (NLRA).

What would it say about our democracy if electoral politics were played under the rules of the National Labor Relations Board (NLRB)? Imagine if the Democratic and Republican presidential nominees had to run under the same campaign rules that American workers face during a union representation election. Here are some examples of the bizarre and the harsh reality:

• As the standard-bearer for the incumbent party, Sen. John McCain would have unlimited television time, including several hours a day of compulsory viewing. Sen. Barack Obama would be restricted to door-to-door campaigning.

During a union campaign, employers have a captive audience of their employees for eight hours a day, while union organizers have no access to the worksite.

• Obama supporters risk losing their jobs. McCain uses the power of the Bush incumbency to fire one Democratic campaign worker in every precinct to send a message to the voters.

One out of 20 union activists is fired, according to Harvard Law Professor Paul Weiler. The only penalty for firing union supporters is back pay and reinstatement (minus any interim earnings) long after the election is over.

• McCain campaign officials caught threatening Obama supporters face the maximum penalty of only having to sign a letter promising not to do it again.

The penalty for an employer who threatens workers with things such as losing their job, taking away their health insurance or moving the plant to China, is to post a notice (long after the election is over) promising not to do it again. Under the NLRA, there are no penalties for unlawful employer acts, only remedies.

• Outspoken campaign workers for Obama are identified and prevented from going to any meetings or rallies so as not to be able to persuade other voters.

A typical employer tactic is to remove and isolate union supporters, preventing them from attending employer anti-union meetings held during work time.

• McCain supporters are encouraged to wear campaign buttons. Obama supporters know that wearing a campaign button entails a risk of losing their jobs. They keep their support quiet to avoid any personal retaliation.

Wearing a button or campaigning publicly in a union organizing campaign can easily cost you your job.

• The election is held at McCain headquarters, and voters file past prominent campaign officials.

Union elections are on company premises, under the nose of company officials.

• Local newspapers predict that precincts voting for Obama will have their local economy devastated.

Threats of workplace closings are standard. One company lined the entrance with gravestones identifying the names of unionized companies that closed. The implication that a workplace might close as a result of unionization is used in almost every anti-union campaign.

• McCain has unlimited access to the electorate and can even force them to attend meetings to hear his speeches. His opponent would have to stand at the U.S. borders with Canada and Mexico and leaflet people as they drove in or out of the country.

Employers have regular, mandatory anti-union meetings with employees while union organizers have no such access or equal time. They are reduced to handing out fliers off company premises as employees come and go from work.

• Obama wins, but McCain refuses to accept the results of the election. During a lengthy appeals process, Bush stays in office. Finally, after years of litigation, the election results are upheld and Obama wins his appeal in the year 2013.

Employers routinely challenge the results of elections when the union wins. The NLRB and courts will spend months, even years, investigating minor and completely frivolous charges.

Give people a chance

You’re probably wondering how a law could be designed so unfairly. The original intent of the law was to encourage collective bargaining. But the relative power and access of the employer never allowed for a truly free choice, and consultants and lawyers have further undermined the process by exploiting every loophole in the law.

The gradual erosion of worker protection and the destruction of the right to organize is that NLRB elections are down from nearly 9,000 a year in the mid-1970s to about 2,000 a year, while popular approval of unions has increased.

Thanks to our political democracy, President Obama’s victory was secure.

Let’s give everyday people the same chance to have their voices heard.

Richard Bensinger

Bensinger is the former organizing director of the AFL-CIO and founder of the Organizing Institute. He’s co-chair of the Institute for Employee Choice with Dick Schubert, former president of Bethlehem Steel and also advises a number of national unions, including the UAW, on their organizing strategies.