Open Letter to Congress on Federal Labor Law Reform, From American Political Scientists

An Open Letter from the Political Science Community

On Needed Reform to Federal Labor Law

As political scientists, part of our mission is to study and teach the principles of democracy.  As such, we are concerned about the undemocratic practices currently enshrined in federal labor law.

When American employees want to form a union, they must go through a voting  process that looks more like the rigged elections of discredited regimes abroad than like anything we would recognize as American democracy.  The ground rules allow employers to violate fundamental norms of fair and open elections, including:

• Forced attendance at one-sided political events.  Companies regularly require employees to attend meetings to hear anti-union speeches or view anti-union videos.  Such meetings are mandatory, and not only are pro-union employees not given equal time, but they can be forced to attend on condition that they not ask questions; if they speak up despite this condition, they can legally be terminated on the spot.[i]

• Lack of free speech and unequal access to the media.  While anti-union managers may campaign against unionization all day long, throughout the workplace, pro-union employees are banned from talking about their beliefs except on break time.[ii]  So too, management may plaster a workplace with anti-union banners, posters, bulletin-boards and leaflets, while pro-union employees are forbidden to display posters and can distribute leaflets only on break time and in defined break areas.[iii]

• Supervisors questioning subordinates on political beliefs.  Employee-voters are regularly required to engage in one-on-one conversations with managers, in which one's immediate supervisor makes provocative anti-union statements designed to force voters to reveal their political preferences.  Employees can be fired if they refuse to engage in such conversations, but secret ballots become meaningless if one is forced to reveal one's political decision before walking into the voting booth.[iv]

• Employees told that backing the "wrong" candidate may result in loss of jobs.   It is legal, and commonplace, for employers to state that a pro-union vote will result in some or all of the employees losing their jobs.[v]

All of these behaviors are illegal in elections to Congress or the Presidency.[vi]  When this sort of coercion and intimidation occurs in other countries' elections, our government rightly condemns it as a violation of democratic process.[vii]

Keeping American employees locked into the current National Labor Relations Board election system is condemning them to a process that we don't accept for voters anywhere in the world.  If the Congress is committed to ensuring a democratic process through which American workers may form unions, it must begin by recognizing the profoundly flawed and undemocratic nature of the current system.

[i] Livingston Shirt Corp., 107 NLRB 400 (1953); Hicks-Ponder Co., 168 NLRB 806 (1967); Litton Systems, Inc., 173 NLRB 1024 (1968); and Luxuray of New York, 185 NLRB 100 (1970).

[ii] Republic Aviation v. NLRB, 324 US 793 (1945); South Nassau Hospital, 274 NLRB 1181 (1985).

[iii] NLRB v. United Steelworkers, CIO (NuTone, Inc.), 357 US 357 (1958); NLRB v. Babcock & Wilcox Co., 351 US 105 (1956).

[iv] One anti-union consultant with Fortune 500 clients calls these encounters "eyeball to eyeball conversations between supervisors and employees." (Gene Levine Associates, Complete Union Avoidance, Delray Beach, FL, 2005, Ch. 8, p. 5).  One of the most prominent management-side labor attorneys, Al DeMaria, explains that supervisors must "make positive statements such as 'I thought that flyer on the high cost of union dues really brought home just how costly it can be in dollars and cents to be in a union,' and then watch for employee reactions." (DeMaria, Management Report for Nonunion Organizations, vol. 27, no. 10 (2004): 6-7)   Another long-time management-side attorney reprted that "supervisors were astonishingly accurate" in predicting the votes of their underlings. (Marty Levitt, Confessions of a Union Buster, Crown Books, New York, 1991, p. 29.)

[v] NLRB v. Gissel Packing Co., 395 US 575, 618 (1969).

[vi] Under the FECA, private corporations are prohibited from having one candidate for federal office address rank-and-file employees without granting equal opportunity for the opposing candidate.  Similarly, private corporations are prohibited from making any communication to rank-and-file employees that "can only be interpreted by a 'reasonable person' as advocating the election or defeat of one or more clearly identified candidates." (Federal Election Commission, Campaign Guide for Corporations and Labor Organizations (Washington: June 2001): interpreting 2 USC 441(b)(2)(A); 11 CFR 114.3, 114.4)  Many states have adopted similar guidelines.  Arizona statute, for example, mandates that within 90 days of an election, an employer may not "put up or otherwise exhibit in any place where his employees are working ... a handbill, notice or placard containing a threat, notice or information that if any particular ticket or candidate is elected or defeated work in his place or establishment will cease in whole or in part, or his establishment will be closed, or the wages of his workmen will be reduced, or other threats, express or implied, intended or calculated to influence the political opinions or actions of his employees."  Arizona Code 16-1012.

[vii] For instance, the State Department condemned the 2002 Ukrainian elections as illegitimate despite the election's ending in a secret ballot.  Among the criticisms cited were that employees of state-owned enterprises were pressured to support the ruling party; faculty and students were instructed by their university to vote for specific candidates; ruling party candidates took advantage of public offices for meeting spaces while denying suitable space to the opposition; and the governming party enjoyed "uncritical coverage from regional and local media outlets" while the opposition faced restricted access to billboards, local media, and state-funded television.  (United States Department of State, Press Statement on Ukrainian Parliamentary Elections, April 1, 2002; Organization for Security and Cooperation in Europe, "2002 elections to the Verkhovna Rada of Ukraine: Statement of Preliminary Findings and Conclusions," International Election Observation Mission, Kiev, Ukraine, 1 April 2002)    Every one of these reasons for which the Ukrainian elections were deemed illegitimate is legal in NLRB elections.