When it comes to holding free and fair collective bargaining elections, National Labor Relations Board procedures fail to meet the most basic standards of democracy, says Gordon Lafer, an assistant professor of political science at the University of Oregon. "The system is so corrupt that it doesn't remotely resemble the democratic process we think of when we use the term 'election'," he said at a June 7 briefing on Capitol Hill for members of Congress and staff.

At the request of American Rights at Work (ARAW), Lafer examined election standards established at our nation's founding, the historical development of electoral law and jurisprudence and current statutes and regulations that define fair elections. He looked at the standards applied in U.S. elections and in foreign countries and compared them to collective bargaining elections.

"There's a temptation to judge the fairness of an election based on whether there is a secret ballot," he observed. "That view is fundamentally rejected by our tradition."  It is what comes before and after the casting of the ballot that determines fairness. In all ways, he found, the NLRB-administered process is more like that "of rogue nations."

Lafer defined six broad standards beyond the secret ballot and rated how union representation elections measure up under the law:

• Equal access to the media: Employees are restricted from openly disseminating information, while employers have anytime-anywhere access.
• Freedom of speech: Employees are restricted from openly expressing their opinions. Meanwhile, employers can require workers to have one-on-one meetings with their supervisor, or "captive audience meetings," that intimidate employees.
• Equal access to voters: Employers have unilateral access in the workplace. Union supporters can only have access outside the workplace and can only get lists and addresses of employees after they have collected signatures from 30 percent of employees indicating they support a union.
• Voter coercion: Employees are not protected against economic coercion and veiled suggestions of retaliation.
• Timely implementation of the voters' will: Delaying tactics are the anti-union employers' ace in the hole.
• Campaign finance regulation: There is no regulation of campaign spending and employers have resources unions cannot hope to match.

The report, "Free and Fair? How Labor Law Fails U.S. Democratic Election Standards," is the first of a series the ARAW says it has commissioned to highlight the widespread deficiencies of present-day labor law. At the same time, Congress is considering two bills that support and would defeat the status quo, the Secret Ballot Protection Act and the Employee Free Choice Act.

The Lafer report is available at www.americanrightsatwork.org/resources/studies.cfm. [Barbara McKenna]

June 15, 2005