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When a Democracy is not a Democracy

Organizing Unions Under the National Labor Relations Act

Richard Bensinger

Note: Richard Bensinger is one of the country’s most acclaimed labor and organizing experts who is working extensively with the Joint Board. He sets out below and in a companion article the enormous hurdles to organizing efforts that workers and unions face from the National Labor Relations Board and current labor law. These two articles are “must reads” for any Joint Board member who really wants to understand the struggle we are engaged in. (Click here to see the other article).

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

“Barack Obama elected first African-American president — Republican candidate McCain files objections to conduct of election. The court will issue a decision within 2 - 5 years. President Bush to hold office pending outcome of litigation.”

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 75-year-old 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 what that would be like:

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. Obama is restricted to door-to-door campaigning.

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

Supporters of Sen. Obama 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 twenty 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 current NLRA there are no penalties for unlawful employer acts, only remedies.

Outspoken campaign workers for Sen. Obama are identified and are 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 plant closings are standard. One company lined the entrance with gravestones identifying the names of unionized companies which closed. The implication that a workplace might close as a result of unionization is used in almost every anti-union campaign.

McCain would have unlimited access to the electorate and could 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 flyers 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 the courts will spend months, even years, investigating minor and completely frivolous charges.

You are 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 has resulted in a sharp decline in NLRB elections. In the mid-1970’s there were almost 9,000 elections a year; today only about 2,000 a year— even though the public’s approval of unions has increased.

Thanks to our political democracy, President Obama’s victory is secure. Let’s give everyday people the same chance to have their voices heard.