Last week, the National Labor Relations Board (NLRB) held two days of hearings to allow public comment on its new election rules, which are designed to eliminate the worst cases of deliberate and unjustified pre-election delay. Anti-union organizations and consultants dominated the proceedings, and their testimony revealed what the right wing really wants from the union certification process: to make it as difficult as possible for workers to choose a union.
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Anti-union groups argue that by eliminating unnecessary delay, the NLRB would impair the ability of employers to express their views to employees. One consultant stated that “common sense dictates” that workers make more informed decisions on unionization when employer anti-union campaigns are longer. Another said that many voters in union elections are immigrants who are unfamiliar with the law, and thus the board should “give them enough time” to be educated by employers before they vote.
Listed below are a few reasons why their arguments have no basis in reality.
● Union avoidance consultants are given unlimited access to employees at the workplace and counsel employers not to wait until they face an organizing campaign before communicating their anti-union views. Anti-union videos posted on the web demonstrate how Walmart, Home Depot, Target and other major corporations warn employees to stay well away from unions from the very first day they are hired.
● Consultants boast of their ability to “educate” employees and win union campaigns, no matter how short the time frame. Consider the actions of Georgia-based Projections Inc. in the campaign against the United Auto Workers at Volkswagen. Immediately after the election date was set, Projections traveled to Tennessee, wrote scripts, and filmed testimonials. Projections’ videos were shown at anti-union meetings, uploaded on websites, and even put on flash drives for Volkswagen workers to watch at home with their families. According to Projections, the nine-day election period offered ample time to get its anti-union message across: “The truth is, regardless of time frame, powerful employee communication is always key to remaining union-free.”
● Anti-union campaigns can be prepared quickly. Consultants often conduct “cookie cutter” campaigns that are easily replicated, and multiple employers use identical consultant materials. This standardization of union avoidance campaigns makes it easy for employers to get their message out, no matter what the time frame.
● Anti-union groups have adopted the ludicrous term “ambush elections,” but there is no ambush here. Employers know a union is organizing long before it files a petition for an election, and NLRB cases are replete with examples of employer retaliation before the union files for an election. Unions collect cards from well over 50 percent of the employees before filing for an election, which means employers always know about organizing drives. Thus, employers are able to communicate their anti-union message well in advance of the official election campaign.
● Consultants train employers to campaign continuously against unions and to identify the first signs of organizing activity. They conduct “union vulnerability audits,” which involve communicating employers’ opposition to unionization. Projections stresses that even for firms with a “low risk” of unionization, it is “vital to begin communicating directly with employees about the company’s union-free philosophy.”
● Consultants advise employers on the necessity of having their union avoidance strategy in place before employees start organizing. After praising Walmart’s union avoidance program – which trains managers in anti-union techniques from the moment they are hired – one consultant writes: “The point is to have your strategy in place before a union comes knocking. Once the union starts talking to employees, your anti-union torpedo better be in the tube and ready to fire.”
● Under the current system, unions withdraw representation petitions in over one-third of all cases because employees grow frustrated with employer delays, and employers frequently use the threat of delay to extract unreasonable concessions, such as bargaining unit changes.
● The same consultants that call the new rules a “solution in search of a problem” encourage employers to use deliberate delaying tactics to undermine union campaigns. One large firm advises employers that during the union certification process, “time is on your side.”
● Even with the enactment of the new election rules, the deck will still be stacked heavily in favor of anti-union corporations. They have overwhelming resources with which to quickly mount a campaign, including anti-union “captive audience meetings,” exclusive and unlimited access to employees during working hours, and the ability to have the first and last words before workers vote in NLRB elections.
Forget the phony arguments about giving employers sufficient time to “educate” their employee about unionization. As next week’s NLRB hearing on Volkswagen will demonstrate, anti-union organizations simply want to deny workers the opportunity to choose a union. The NLRB’s new election rules are moderate, fair and commonsense changes. They will eliminate unnecessary pre-election litigation and restore some basic fairness for employees at work.