NLRB Elections Aren't Free and Fair Elections

Professor Gordon Lafer of the University of Oregon's Labor Education and Research Center has spent the past two years doing extensive research measuring how National Labor Relations Board elections match up — or fail to match up — to American standards for defining "free and fair." What follows are excerpts from a report and testimony he presented to the U.S. House labor subcommittee during a hearing on the Employee Free Choice Act.

Secret Ballots

"To some, it may seem that as long as an election ends in a secret ballot, it must be fair," Lafer stated. But he pointed out that NLRB union representation elections are a far cry from American democratic tradition.

Our labor laws call for an election process when private sector workers petition for union representation with at least 30 percent support of the work group. If the employer doesn't voluntarily grant recognition, the NLRB sets a date for a secret ballot vote, with a majority needed to certify union representation.

However, Lafer said, the rules that govern the pre-election "campaign" between union advocates and an anti-union management, fail to meet American standards for a "free and fair" election — particularly regarding free speech rights and equal access to the media and the voters

Access to Voter Lists

Lafer explained that getting a list of eligible voters is the first step in any political election and U.S. laws says both parties must have equal access. In NLRB union elections, however, management controls the list and workers have no right to it until all an employer's delaying tactics and legal maneuvers have been settled.

"A federal commission found that on average, unions received the voter list less than 20 days before the election. If we imagine this system being applied to Congressional elections — where one candidate had the voter rolls two years before election day, while his or her opponent was restricted to a partial list and only got it a month before the vote — none of us would call this a "free and fair" election," he said.

Economic Doercion of Voters

America's founders were particularly concerned that employers could use their economic power over workers to influence their political votes. That's why, Lafer said, it's illegal for a corporation to tell its workers how to cast their ballots or hint that if one party wins business will suffer and workers will be laid off.  "But in NLRB elections, this kind of intimidation is completely legal," he said.

Free Speech and Equal Access to Media

In political elections, Lafer said it's a "bedrock principle that there is no such thing as a neighborhood, park or shopping mall that is accessible to one candidate but off-limits to the other." Radio and TV stations are required to sell ad time on the same terms to all candidates and give them equal access.

"Yet this most basic standard of freedom is ignored by the NLRB," he said. "Management is allowed to plaster the workplace with anti-union leaflets, posters, and banners — while maintaining a ban on pro-union employees doing likewise. In addition, managers are free to campaign against unionization all day long, anyplace in the workplace, while pro-union workers are banned from talking about unionization except on break times.

Higher Standards Abroad than at Home

"We uphold higher standards for voters abroad than for American workers," Lafer said, noting that in 2002, the State Department condemned elections in Ukraine for failing to "ensure a level playing field," because workers at state-owned enterprises were pressured to support the ruling party. Further, universities told faculty and students to vote for specific candidates and the governing party enjoyed one-sided media coverage, while the opposition was largely shut out of state-run television. "Every one of these practices is completely legal under the NLRB," he said.

Illegal Activity in NLRB System

While many of the brazen tactics used by employers to thwart union drives are legal, Lafer said NLRB elections "are also characterized by an extraordinary level of illegal activity."

Using the most conservative possible calculations, he said he found that one of every 17 eligible voters in NLRB elections is fired, suspended, demoted or otherwise economically punished for supporting unions.

"If federal elections were run by NLRB standards, we would have seen 7.5 million Americans economically penalized for backing the 'wrong' candidate in the last election cycle," he said. "Imagine what this would mean. Every family in America would know someone who had been fired or suspended in retaliation for their political beliefs."

To read Gordon Lafer's full testimony, put his name in the search engine at www.aflcio.org.