Something kind of progressive just happened that you might have missed: The National Labor Relations Board proposed a new idea to help level the playing field for workers who want to organize a union.
A little background: under current law, once 50% of employees petition for union representation, the employer can voluntarily choose to waive a secret ballot election and recognize the union. However, employers typically take advantage of their right to call for a secret ballot election.
That’s where the problems can start. Some employers use this time between the initial petition and the election to sway workers against joining the union. That’s perfectly legal, but the structure of labor law gives employers far more access to and leverage over their workers than the union.
For example, employers can require attendance at anti-union meetings, one-on-one sessions between workers and their immediate supervisors who stress anti-union messages, subtle offers of promotion and demotion (e.g., a move to a less desirable shift), and intensive, explicit surveillance to see if workers are talking to union organizers.
Yet those organizers aren’t allowed on site–remember the movie Norma Rae, where they’re standing outside of the factory gates? It sounds impressive that with all this blowback unions won 64% of their elections in 2009, but as referenced here, 35% of successful petition drives never reach the election stage. In fact, due to employer pressure, the number of elections is way down, so that the 64% win rate is inflated.
Some of these tactics border on the illegal: the majority of unfair labor practice cases brought to the NLRB occurs during elections. It is also worth noting that a highly visible consultancy practice has arisen to support employers that want to block the union and it’s not uncommon for these consultants to offer a money-back guarantee. Getting these anti-union operations in place takes time, which is probably why win rates for the union are significantly and negatively correlated with time between petition and election.
These developments were the rationale for the Employee Free Choice Act, which gets around the problem described above by allowing petitioning workers, not the employer, to decide whether to hold a secret ballot or to just have workers sign a card if they want to organize (“card check”).
That legislation ain’t going anywhere. But the NLRB, the overseer of union elections, proposed a variety of ways to shorten the time between the initial petition and the election–the average now is about 60 days–mainly by streamlining procedures and preventing litigation from grinding things to a halt. Shortening this time span would add some balance to the system.
There are some technical issues to consider, like pre-election hearings to deal with any objections that might have surfaced over the union campaign. In Canada, elections are typically held in five to ten days, and issues like that are dealt with after the election, a practice the NLRB recommends in the new rule.
You may believe, as I do, that unions are part of the solution to the middle-class squeeze, since they provide their members with more of the bargaining power they need to claim their fair share of productivity growth. Or you may view unions as part of the problem.
But either way, you hopefully agree that if folks want to form a union, that’s their right (under the National Labor Relations Act) and they ought to have a chance to fight it out on a level playing field. That field has developed a pronounced tilt, which this rule helps to correct.