Labor Disunions

The 2008 presidential election invigorated the American democratic process as never seen before. But the economic troubles facing the nation today reflect just how confined that process really is. Beneath a broken commercial and financial system beleaguered by the poor decisions of an unaccountable business elite lies an economic infrastructure bereft of workplace democracy—worker representation and worker bargaining power.

The past 30 years have seen the slow erosion of workers’ rights in a context of falling or stagnant wages, inaccessible or inadequate health care coverage, and new extremes in wealth and poverty. The problems that have come into sharp focus over the past few months compel us to ask: can a country truly be called democratic if it achieves democracy only in the ‘political’ sphere?

SEPARATE SPHERES

Eric Foner, DeWitt Clinton Professor of American History at Columbia University, noted that American history is characterized by a separation of the political and economic realms guided by the philosophy of classical liberalism. “This very often means economic relations are seen as embodying that area where government should have as little intrusiveness as possible,” he remarked in an interview.

How it is exactly that the workplace came under the hegemonic control of management in the early chapters of the nation’s history remains a question open to interpretation, but what is clear is that the tradition is deep-rooted. The labor struggles of the 19th century resulted in extreme violence and unrest (more so in this country than in other industrialized nations of the same period), often as they were put down brutally. In this sense, the absence of countervailing forces in the American workplace is not only the product of classical liberalist ideology, but also of business mobilization and “raw power.”

But the old system came under sharp attack during the Great Depression. The weak foundation of US economic power had given way, and it took with it the entire national economic structure. 20th century liberalism came to embrace workplace democracy, higher wages, and better working conditions out of economic necessity. “The political establishment accepted an explanation for the Depression in ‘under-consumption,” explained Professor Foner. “The real problem was lack of purchasing power… American workers simply could not purchase the goods produced by American capitalism.”

With the New Deal came the expansion of the federal government, which entered into the economic sphere as it never had before, emerging for the first time as an arbitrator ready to mediate between the competing claims of labor, business and farming. In 1935, Congress passed the National Labor Relations Act (also known as the Wagner Act), which enshrined basic workers’ rights, at least in the private sector. The National Labor Relations Board (NLRB) was created as an independent agency of the US government, a body commissioned to oversee collective bargaining drives and establish federal union election procedures.

During the Great Depression, the US government responded to economic turmoil by expanding workplace democracy, granting US workers new rights that they were eager to exercise. By the year 1950, 33 percent of the private workforce was unionized.

Today, according to the Bureau of Labor Statistics, that figure stands at a mere 12.5 percent, although recent polls conducted by the Center for American Progress Action Fund indicate that as many as 58 percent of workers would join a union if they could. The history of the fall of a large unionized workforce is vast and complex, as is the scholarly analysis of it, but contributing factors include the Cold War, the growth of corporate power, and the shift toward a service sector economy. Regressive laws, such as the Taft Hartley Act of 1948, have created especially robust obstacles to union growth. And even when federal law protects workers’ rights, corporate powers have found ways to exploit the safeguards still in place. Perhaps nothing demonstrates this better than the usurpation of NLRB union election procedures by employers and management.

A LOOK AT NLRB ELECTIONS: COERCION AND LEGAL MALFEASANCE

It is widespread knowledge among those who study American labor policy that union election standards, which are generally overseen by the National Labor Relations Board, do not even closely resemble those we hold for democratic elections in the political sphere.

Business owners have been able to exploit the cumbersome and inefficient guidelines of the NLRB election process, favoring their interests above anything that might be called fair representation. Political scientists like Gordon Lafer have noted that this is accomplished through outright coercion, as well as other, subtler techniques, such as depriving workers of valuable information and delaying election procedure. These trends call for an overhaul of NLRB election procedures if union elections are ever to be truly democratic.

The exact process of NLRB elections is so punctuated and complex (an obstacle to unionization in and of itself) that a full description of it would be excessive here. Briefly though, it requires that 30 percent of the workers at a worksite sign a petition calling for a union election, the date of which must be set by the NLRB. It is then followed by an appeals period, a campaigning period, and finally the election and post-election appeals period.

Coercion runs rampant throughout the entire process: Kate Brofenbrenner of Cornell University estimates that one quarter of all employers illegally fire at least one employee during union campaigns. In absolute figures, the NLRB stated that in 2005, 31,000 workers were illegally disciplined or fired for union activity. Intimidation has become routine.

Although illicit abuse is common enough, loopholes in the framework of NLRB elections allow employers to commit malfeasance through more legal means. Gordon Lafer of the Labor Education and Research Center at the University of Oregon reports that an employer may legally oblige workers to meet one-on-one with a supervisor, who may then gauge which way any one worker will vote. In these meetings, workers are compelled to discuss their views with the individual most responsible for their pay, hours, benefits, and job stability. Lafer notes that workers commonly report receiving illegal threats during these meetings. The meetings are one example of voter intimidation, but beyond that, they also effectively eliminate the secret ballot process.

The frequency and ubiquity of “Unfair Labor Practices” (ULPs) as described above is also the result of the lack of institutionalized punishment for unlawful employers. The process of seeking legal recourse for an unlawful firing is so long and arduous, while lawyer fees often cost more than a worker can afford. Winning a court case against an employer with greater legal counsel is likely to be an uphill battle. According to the think tank American Rights at Work, between the years 2000 and 2005, only 40 percent of the 19,000 ULP cases litigated resulted in the NLRB issuing a complaint or overseeing a settlement between the two parties.

Even after all of this, if an employer is found guilty, the punishment is minimal. The employer is required simply to rehire the worker, and, in a few instances, pay back lost salary. The employer will not lose his license, and the absence of any fines or serious punitive action seems almost to invite abuse. A legal framework that virtually rewards illegal firing has ensured that ULPs remain a mainstay of any union election. Labor laws are broken every 23 minutes, according to a project of the Institute for America’s Future.

Another major flaw in the union election process is the monopoly that employers hold over the information available to workers. Union organizers are not granted access to the worksite during campaigning while workers can only meet on their lunch breaks or after hours. A federal commission found that 10,000 employees are punished every year for engaging in pro-union speech at a workplace. As a result, workers must organize on their own free time, at inconvenient, often out-of-the-way locations—an obvious obstacle, especially given the demands already placed on workers’ time.

By contrast, employers may legally force workers to attend mass anti-union meetings, what we might call “captive audience” speeches. According to Lafer’s report, the strategy that was used in nearly 92 percent of all union drives of the 90s). Given the barriers that workers and union organizers face daily, these measures amount to near total control of information. During political elections, we expect that the media will not be controlled by any one party, and that citizens will be given free access to information on the merits of all or both candidates. Why shouldn’t union elections be subject to the same standards?

Finally, union elections are rarely carried out in a timely fashion, giving employers both the room and the means to exploit NLRB proceedings. Before the NLRB decides a date for the election, employers must agree on which employees are eligible for unionization. This allows the employer to stonewall even the beginning of an election for an indefinite period of time. Evidence demonstrates that the longer an election drags on, the less likely workers are to vote for a union. Perhaps most distressingly, after an election, an employer can appeal the results and negate what the majority decided, as if the election had never even happened.

SEEKING REMEDY?

Although most scholars who study US union elections agree that the process does not even come close to meeting the standards held for democratic political elections, few if any offer tangible suggestions for remedying the procedures. One solution that different employee groups have pursued themselves is to reject the NLRB entirely in favor of the “Card Check” system, a streamlined process of majority sign-up that bypasses NLRB election procedures. Card Check is the essence of the Employee Free Choice Act, a bill that passed in the House in 2007 but currently remains stuck in the Senate due to a Republican filibuster.

Still, simple solutions exist even within the current NLRB framework. Heavier fines imposed on guilty employers would help reduce the high incidence of workplace coercion. To this same end, the legal process by which workers can seek recompense needs to be reformed. In cases of illegal firing, for instance, the burden of proof should fall on the employer rather than the worker, as is it does in sexual harassment suits. Campaign organizers should be granted access to the worksite, while employees should be allowed to freely discuss the merits of unionization with their coworkers at onsite locations. These measures are necessary to guarantee that workers receive the information necessary for them to make educated voting decisions. And to ensure timely election proceedings, it should be the NLRB, rather than the employer, who decides which workers are eligible for unionization. Finally, union election results should remain in place (with or without union representation), even if one party decides to appeal the outcome.

But what is needed most of all is a renewal of work life in America. This comes through the understanding that democracy does not end in the political sphere. It must extend to the millions of workplaces where employees are not yet considered citizens, or even people, but rather treated as commodities in the process of production. This is an issue of workers and management, labor and capital. But more fundamentally, it is an issue of democracy and the lack of it in the daily lives of most American workers.