Despite the hue and cry about the demise of their movement, union officials must be quietly relieved. The AFL-CIO’s breakaway unions are urging the use of aggressive organizing methods, some of them approved by rulings of the National Labor Relations Board (NLRB) under Bill Clinton — and others contrary to the law altogether. Meanwhile, the window of opportunity for the Bush administration to reverse this course is rapidly closing.
The five-member NLRB administers the Wagner Act of 1935 and the Taft-Hartley Act of 1947 — collectively known as the National Labor Relations Act (NLRA). The NLRA, which governs labor-management relations in the private sector, grants a series of special privileges to union officials; the board administers the law, including the setting of rules for organizing drives and collective bargaining.
In the late 1990s, the Clinton-majority NLRB overturned more than 50 long-standing precedents with activist rulings that, taken as a whole, diminished employer rights and free speech, increased union coercive privileges, entrenched incumbent unions, and sharply undercut the rights of employees who disagree with a union. A full five years into the Bush presidency, however, virtually all of these rulings remain in place, while seats on the NLRB that could be filled with Bush appointees have been left vacant for long periods of time.
Board Chairman Robert Battista says that the agency will not make decisions in “major cases” unless he has a three-member majority, and right now, he only has two votes. As a result, a host of major cases are languishing and important employee freedoms — to choose whether to unionize, or to stop the ongoing abuse of compulsory union dues for union political and ideological activities — are on hold.
That’s the bad news. The good news is that a swift recess appointment right now by President Bush could begin to reverse the damage done to the law during the Clinton years, enabling a three-member majority to issue long-awaited rulings.
Moreover, if, as expected, these rulings favor workers’ freedom over union power, some union chiefs will be very unhappy. That in turn would give Senate Republicans the leverage they need to force the Democrats — who have favored the current paralysis — to come to the bargaining table to allow the now-pending NLRB nominees Peter Kirsanow and Peter Schaumber to be confirmed.
One critical area involves the process by which unions get the exclusive right to represent employees in a workplace. The NLRA has established straightforward elections as the “gold standard” in determining whether employees want a union. Nevertheless, unions have increasingly used top-down organizing methods like the “card check” and so-called “neutrality agreements” which deny employees a secret ballot.
These methods work by pressuring employers to grant union operatives sweeping access to their workplaces, hand over employees’ personal information, and even hold mandatory “captive audience” speeches in which the employer actually encourages employees to support unionization. Workers are targeted by union operatives — at home or at work — to persuade them to sign union “authorization” cards that are counted as “votes” in favor of unionization.
Well beyond simple peer pressure, card-signing drives frequently involve threats and misrepresentations, sometimes prompting a legal backlash from targeted employees. As a result, last year a narrowly-divided NLRB voted to reconsider the agency’s practice of barring employees who find themselves unionized as the result of the “card-check” process from obtaining expedited secret ballot elections to decertify the union.
The leading “election bar” cases, now in limbo, were brought by employees of automotive suppliers Dana Corporation and Metaldyne, who obtained free legal assistance from my organization. Workers in Ohio and Pennsylvania-based plants, after having unionization imposed on them via “neutrality” agreements, filed decertification petitions to seek secret ballot elections that would determine whether the United Auto Workers (UAW) actually enjoys the support of a majority of employees. Through these cases, the NLRB could overturn its arbitrarily created rule that, once recognized, union officials may bargain with employers for a so-called “a reasonable period of time” — even up to one year — without any employee challenges.
Appearing at a Capitol Hill press conference — in support of legislation to guarantee that employees always have access to a secret ballot election introduced by Rep. Charlie Norwood, Dana employee Clarice Atherholt explained the basic issue: “We’re simply asking for a secret ballot vote so that we can have a say in our future without being intimidated or harassed.”
Nevertheless, top-down organizing methods are increasingly common in hotels, grocery stores, textiles and health care. In 2004 roughly 83% of all newly unionized workers were swept into union ranks without secret ballots. As one high-profile Service Employees International Union official confessed to this newspaper, “We don’t do elections.”
Numerous other important cases are collecting dust at the NLRB. One, pending since 1989, involves the Teamsters union and employees of a cheese processing company called Schreiber Foods in Wisconsin. The employees seek a ruling on whether federal labor law permits forcing workers to fund union organizing activities with mandatory dues. Another long-pending case filed against the UAW on behalf of a Colt Manufacturing employee in Connecticut would determine whether American workers who assert their right not to pay for union political activities must file written objections every single year — or simply once.
It’s time for the White House to get off the dime and install an NLRB majority to tackle these and other important cases. American workers cannot afford another three years of an NLRB that preserves some of the worst aspects of Bill Clinton’s legacy.
Mr. Mix is president of the National Right to Work Legal Defense Foundation. This Article appeared in the Wall Street Journal, December 31, 2005.
The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in more than 250 cases nationwide per year.