Anne Marie Lofaso: Proposal would hurt unions

March 19, 2011

Anne Marie Lofaso: Proposal would hurt unions

CHARLESTON, W.Va. -- Workers' rights are under attack across the country. The attacks on public employees' collective-bargaining rights in Wisconsin and other states are the headline grabbers. But there is also a lesser-known assault -- of national importance -- on aviation and rail workers that strikes at the heart of our democracy.

A bill before Congress, the FAA Reauthorization and Reform Act of 2011 (H.R. 658), includes a provision that would reinstate the anti-democratic practice of counting workers who don't participate in a secret-ballot union election as having voted against the union.

Imagine if your failure to vote in a presidential election meant a vote for the incumbent party, in this case President Obama. Or your failure to vote on a referendum meant a vote in favor of that referendum, say, a constitutional amendment on gay marriage. The citizens of modern democracies would never tolerate this kind of system.

That is why last year, the National Mediation Board, which oversees labor relations in the rail and aviation industries, lawfully and in accordance with proper rulemaking procedures, democratized its union-election procedures to reflect an American-style democracy: the majority of those who vote in an election decide the outcome of that election.

These updated secret-ballot procedures mirror the election procedures of the National Labor Relations Board. These are the very same election procedures that big business has spent millions of dollars defending against card check on the rationale that they are "democratic." A federal court, relying in part on Supreme Court authority, upheld the National Mediation Board's rule as authorized by law.

Under the old rules, any worker who did not participate in an election counted as a vote against the union and a vote for the status quo. In these circumstances, a worker's failure to vote was no longer a secret-ballot vote. As a vote for the status quo, it meant that company bosses could continue to unilaterally determine workers' terms and conditions of employment without any say from the workers themselves. It's no wonder that the old rules ended up encouraging a climate of voter coercion; after all, managers could keep the privilege of unilateral decision-making simply by encouraging workers not to vote. The system also encourages employers to expand the eligibility list to those who won't or can't vote.

According to charges filed at the National Medication Board, those lists have included dead people and those who had been on long-term medical leave.

By making inaccurate assumptions about those who failed to vote, the old rules were also anti-democratic because they compelled voting against representation. There are many reasons, however, why eligible voters don't vote. Perhaps they forgot; perhaps they were apathetic to the outcome; or perhaps they simply exercised their right not to vote.

Imagine instituting such rules for political elections. We would not be able to elect a Congress because voter-participation in mid-term elections has not exceeded 50 percent in over half a century. By contrast, National Mediation Board rules permit telephonic and other electronic voting methods making minority participation rates exceedingly unlikely.

CHARLESTON, W.Va. -- Workers' rights are under attack across the country. The attacks on public employees' collective-bargaining rights in Wisconsin and other states are the headline grabbers. But there is also a lesser-known assault -- of national importance -- on aviation and rail workers that strikes at the heart of our democracy.

A bill before Congress, the FAA Reauthorization and Reform Act of 2011 (H.R. 658), includes a provision that would reinstate the anti-democratic practice of counting workers who don't participate in a secret-ballot union election as having voted against the union.

Imagine if your failure to vote in a presidential election meant a vote for the incumbent party, in this case President Obama. Or your failure to vote on a referendum meant a vote in favor of that referendum, say, a constitutional amendment on gay marriage. The citizens of modern democracies would never tolerate this kind of system.

That is why last year, the National Mediation Board, which oversees labor relations in the rail and aviation industries, lawfully and in accordance with proper rulemaking procedures, democratized its union-election procedures to reflect an American-style democracy: the majority of those who vote in an election decide the outcome of that election.

These updated secret-ballot procedures mirror the election procedures of the National Labor Relations Board. These are the very same election procedures that big business has spent millions of dollars defending against card check on the rationale that they are "democratic." A federal court, relying in part on Supreme Court authority, upheld the National Mediation Board's rule as authorized by law.

Under the old rules, any worker who did not participate in an election counted as a vote against the union and a vote for the status quo. In these circumstances, a worker's failure to vote was no longer a secret-ballot vote. As a vote for the status quo, it meant that company bosses could continue to unilaterally determine workers' terms and conditions of employment without any say from the workers themselves. It's no wonder that the old rules ended up encouraging a climate of voter coercion; after all, managers could keep the privilege of unilateral decision-making simply by encouraging workers not to vote. The system also encourages employers to expand the eligibility list to those who won't or can't vote.

According to charges filed at the National Medication Board, those lists have included dead people and those who had been on long-term medical leave.

By making inaccurate assumptions about those who failed to vote, the old rules were also anti-democratic because they compelled voting against representation. There are many reasons, however, why eligible voters don't vote. Perhaps they forgot; perhaps they were apathetic to the outcome; or perhaps they simply exercised their right not to vote.

Imagine instituting such rules for political elections. We would not be able to elect a Congress because voter-participation in mid-term elections has not exceeded 50 percent in over half a century. By contrast, National Mediation Board rules permit telephonic and other electronic voting methods making minority participation rates exceedingly unlikely.

The updated rules mean that workers can chose to vote for union representation or for corporate management to make all of the decisions for them. The consequence of not voting in these elections is neutral -- the lack of participation counts neither for the union nor for the status quo; it simply does not count.

Opponents of the National Mediation Board's new, more democratic secret-ballot election rules have falsely claimed that elected unions cannot be removed. In truth, the board has long-standing procedures for removing unions. Moreover, the board's new rules provide workers with an opportunity to vote "no union" when they no longer want representation.

In West Virginia, union membership is on the rise, bucking the national trend. Unions are growing stronger in the coal and construction industries, in particular. This makes sense. The last four major mining disasters have been in nonunion mines. Our miners understand that a union mine is a safer mine, because they have banded together for mutual aid or protection, voiced their concerns, and collectively bargained for better working terms and conditions.

Shouldn't aviation and rail workers have the same rules and access to electing a union voice?

The question we should all ask then is this: Why would the rules' opponents spend so much money trying to reverse a lawfully promulgated, democracy-maximizing rule?

The reason is that the old rule favored the status quo -- no representation. This means that bosses could continue to make unilateral decisions about workers' wages, hours, and other terms and conditions of employment. The updated rule lets workers decide for themselves whether they are satisfied with their bosses' decisions or whether they wish to have a voice in those decisions.

In today's economic climate, a worker's voice is more necessary than ever. This attempt to disenfranchise workers by silencing them is frighteningly undemocratic and much in line with the general attacks on unions today.

The updated rules mean that workers can chose to vote for union representation or for corporate management to make all of the decisions for them. The consequence of not voting in these elections is neutral -- the lack of participation counts neither for the union nor for the status quo; it simply does not count.

Opponents of the National Mediation Board's new, more democratic secret-ballot election rules have falsely claimed that elected unions cannot be removed. In truth, the board has long-standing procedures for removing unions. Moreover, the board's new rules provide workers with an opportunity to vote "no union" when they no longer want representation.

In West Virginia, union membership is on the rise, bucking the national trend. Unions are growing stronger in the coal and construction industries, in particular. This makes sense. The last four major mining disasters have been in nonunion mines. Our miners understand that a union mine is a safer mine, because they have banded together for mutual aid or protection, voiced their concerns, and collectively bargained for better working terms and conditions.

Shouldn't aviation and rail workers have the same rules and access to electing a union voice?

The question we should all ask then is this: Why would the rules' opponents spend so much money trying to reverse a lawfully promulgated, democracy-maximizing rule?

The reason is that the old rule favored the status quo -- no representation. This means that bosses could continue to make unilateral decisions about workers' wages, hours, and other terms and conditions of employment. The updated rule lets workers decide for themselves whether they are satisfied with their bosses' decisions or whether they wish to have a voice in those decisions.

In today's economic climate, a worker's voice is more necessary than ever. This attempt to disenfranchise workers by silencing them is frighteningly undemocratic and much in line with the general attacks on unions today.

Lofaso is an associate professor at the West Virginia University College of Law.