The following is an op-ed written by Professor Gordon Lafer for the Miami Herald. Since the Herald has not published it, we are publishing it here. Professor Lafer is at the Labor Education and Research Center at the University of Oregon and is a national authority on card check and NLRB elections. He is the author of Free and Fair, a study commissioned by American Rights at Work about how NLRB elections fall short of the standards of democracy we hold dear.
Last Friday, the University of Miami paid to run an ad in the Herald attacking janitors’ call for their union to be recognized based on signed statements from a majority of workers. The janitors’ union criticizes the way workplace elections are run by the federal Labor Board; criticizing elections, the janitors’ bosses say, is un-American.
At first glance, it seems like the ad must be right. When most people here about “union elections,” they assume they run the same way as elections for Congress or the President. Unfortunately, nothing could be further from the truth.
The University of Miami janitors are part of a much bigger problem. Opinion surveys show that about 40 million American workers wish they had a union in their workplace. This desire is understandable since workers with unions make about 30% more than their counterparts in the same type of job. But the chances of these employees realizing their desire is very small because the “election” system is so highly stacked against workers.
When employees want to form a union in their workplace, they have to go through a process that none of the Founding Fathers would recognize as democratic. Instead, almost every aspect of workplace “elections” looks more like the discredited practices of rogue regimes abroad.
The starting point of any regular election is that both sides have equal access to the list of registered voters. But in a workplace election, while management can mail anti-union propaganda to workers for months, the union doesn’t even get a list of who the workers are until a few weeks before the vote. If we had elections for Congress where one candidate had access to the voter rolls for years and the other got it only in October, none of us would call that a “free and fair” contest.
But wait, it gets worse. Within the workplace, management is free to campaign against the union to every employee, every day, throughout the day; but union organizers are completely banned from the workplace. Furthermore, management can post anti-union newsletters and posters on bulletin boards and walls throughout the workplace while enforcing a ban on pro-union notices.
One of the most outrageous practices is also one of the most common: forcing employees to participate in mass anti-union campaign rallies. Under federal law, employers can require workers to attend anti-union rallies. Not only are pro-union employees not given equal time, but they can be forced to attend on condition that they not say anything or ask any questions; employees who speak up despite this ban can be fired on the spot. Management can hold these forced meetings as often as it wants, up to the day before the vote.
In most union elections, supervisors are required to have repeated one-on-one confrontations with the individuals they oversee. Here, the person who has the most direct control over hiring and firing, promotion, raises, hours and duties, tells their subordinates in no uncertain terms why a union would be bad for them. The message is clear: if you ever want a raise, or a day off to take your kid to a doctor, you better not support the union.
Even “election day” itself takes place in the workplace typically decked out with anti-union propaganda and under the watchful eyes of managers. In 2003, former New Jersey governor Christie Todd Whitman led a Republican party delegation to observe elections in Cambodia. Whitman declared that the vote was not “free and fair,” in part because government-affiliated “village chiefs [sat] outside polling stations and check[ed] off voters as they entered and exited, providing a palpable sense they were being monitored despite casting a secret ballot.” Yet workers across the U.S. are subject to just this type of intimidation whenever they seek to establish a union.
Many of the tactics used to intimidate employees are legal. However, because federal labor law contains no possibility of punitive fines, prison, or any other type of sanction, employers break the law at will. Last year, approximately 15,000 Americans were illegally fired, suspended or otherwise financially punished for trying to form a union in their workplace. If federal elections were run with the same “Wild West” lawlessness as the workplace, the 2004 election would have seen 7.5 million voters fired, demoted or fined for backing the “wrong” candidate.
An election where one party gets preferred access to the voter list, dominates communications, forces all voters to attend its rallies, and fires voters for backing the opposition, is undemocratic and unAmerican.
Recently, labor unions have worked with employers to create alternative means for forming unions, often using local clergy or elected officials to certify that a majority of workers want the union.
University managers decry any such alternatives, seeking to condemn their employees to a rigged “election” process that none of us would accept in a campaign for county dog catcher. Shame on them.
In 2002, the State Department condemned elections in the Ukraine. Among the problems our government cited were that employees were pressured to support the ruling party; university administrators told students how to vote; and the ruling party dominated the media while restricting the opposition’s access to tv and billboards. Under the system that the University is promoting, all of these tactics are legal.
Anyone who is serious about workplace democracy has to start by insisting that we have at least as high standards for American workers as we do for voters abroad.