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Democrats, unions redouble push to move NLRB elections online

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The agency is risking the lives of workers and of its own staff by mandating that voters show up in-person mid-pandemic, they say.

Democrats and unions are stepping up pressure on the National Labor Relations Board to conduct its elections electronically to avoid the risks of in-person voting during the pandemic but are clashing with conservatives warning about fraud — mirroring the debate in the presidential race.

The NLRB, which oversees the elections that determine whether workers may form unions, is forbidden from collecting votes electronically by language included in every congressional appropriations bill since 2012. Now, as social distancing requirements continue to jeopardize in-person voting, labor groups want Congress to delete that language from fiscal 2021 spending packages and direct the agency to form its own electronic election system.

Republicans and right-to-work groups counter that conducting elections electronically opens the door to fraud and coercion on the part of labor organizations, echoing a charge that President Donald Trump has leveled at efforts to expand mail-in voting in the November election.

“The risk of hacking, fraud and coercion is just one of the many reasons union elections are held in person, closely supervised by the NLRB,” Rep. Virginia Foxx of North Carolina, the top Republican on the House Education and Labor Committee, said in a statement to POLITICO. “House Democrats scheming to rig the rules to force workers into unions isn’t new, but using the pandemic as an excuse to advance Democrats’ long-desired political objectives is particularly disturbing.”

“The idea of the secret ballot is you walk in the booth, and maybe people think they know how you vote but ultimately, only you really do,” said Patrick Semmens, vice president of the National Right to Work Foundation, a group aimed at eliminating “coercive” union power. “And that simply cannot be said of electronic voting, nor of mail-in ballots.”

“You can literally have a union organizer watch how you vote” under an electronic system, he added. “And that’s a problem; it opens the door to a lot of coercion.”

Union organizers, he said, “frequently” make home visits, so it’s possible they will be there when a person votes.

Democrats and unions counter that the agency is risking the lives of workers and of its own staff by mandating that voters show up in-person. Mail-in ballots, they say, are rejected by most employers — leaving electronic elections, something they considered during the Obama administration, as the only viable option.

“It makes no sense to deny workers access to a safe and efficient process for conducting representation elections,” the AFL-CIO wrote in a May letter to Congress. Among other organizations signing the letter were the American Federation of State, County and Municipal Employees, the United Food and Commercial Workers, the American Federation of Teachers and the Service Employees International Union.

A bipartisan pair of lawmakers, Reps. Andy Levin (D-Mich.) and Brian Fitzpatrick (R-Pa.), introduced a bill this month that would repeal a provision included in past appropriations bills forbidding the NLRB from allowing “voting through any electronic means.”

The legislation, which has 45 cosponsors, would appropriate $1 million for the agency to create a system allowing for unions to be formed via electronic voting. If the NLRB cannot develop an effective system within 60 days, the bill would mandate that it adopt an electronic voting system in use since 2007 by the National Mediation Board, a body that seeks to resolve labor-management disputes in the rail and airline industries.

“If you took politics completely out of this, no sane person would say we should have in-person NLRB elections when we can conduct them electronically with complete confidence, and even save taxpayer money and be more efficient,” Levin told POLITICO. “We’re just trying to take a public health approach here.”

Union groups including the AFL-CIO, American Federation of Teachers, the Communications Workers of America and others have endorsed the legislation, according to Levin’s office.

The NLRB suspended votes for two weeks at the outset of the Covid-19 pandemic amid uncertainty over how to proceed. Last week, its general counsel issued guidelines to allow for in-person elections to continue; those were condemned by the board’s own union, which said they would “expose NLRB employees to Covid-19.”

The suggestions included considering adjusting voting times to prevent crowding and allow for social distancing, limiting the number of observers of the election, and certifying that the polling areas are sanitized, among other protocols.

Foxx and Rep. Tim Walberg (R-Mich.) sent a letter in June to the NLRB urging the agency to dismiss calls to move elections online, calling them “little more than another attempt to change the rules in favor of organized labor, against workers who wish to represent themselves, and against employers who wish to negotiate directly with their employees.”

“[I]t is clear that in-person, secret-ballot voting is the most reliable method for elections of any kind, and we strongly encourage the NLRB to ensure that all union elections under its jurisdiction be conducted in this manner to ensure a free and fair process,” the two wrote.

Asked about the possibility of fraud, Levin pointed to the National Mediation Board’s track record. The agency has “zero” incidents of fraud since it began conducting electronic elections 13 years ago, he said. The board declined to comment when asked to confirm this.

“It’s an argument with no merit whatsoever, and if they’re making an argument with no merit whatsoever, they must be making it for a different reason, which is simply that they want to prevent workers from forming unions in America,” Levin said.

This blog originally appeared at Politico on July 16, 2020. Reprinted with permission.

About the Author: Eleanor Mueller is a legislative reporter for POLITICO Pro, covering policy passing through Congress. She also authors Day Ahead, POLITICO Pro’s daily newsletter rounding up Capitol Hill goings-on.


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Republicans Are Taking Voter Suppression to the Workplace

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A Republican party that survives through voter suppression may be replicating its model in the workplace. In December, the National Labor Relations Board (NLRB) invited public commentary on a possible revocation of a rule that makes employers provide union organizers with contact information for workers in advance of a representation election.

Ostensibly, the Board, which will almost certainly remain in control of Republicans until 2021, is reconsidering Obama-era rules that sped up the timeline of union elections and added phone numbers and email addresses to the list of contact info that unions must be furnished before an election. But outgoing Board Chairman Phil Miscimarra’s bellyaching about “employee rights of free choice and privacy” implies openness to removing any legal right of union organizers to talk with potential members.

The very fact that Trump’s NLRB is inviting public comment indicates that it is considering reversing a much older precedent: the 52-year-old Excelsior rule that employers should provide a list of names and addresses of eligible voters in an upcoming union certification election. Sharon Block, a former member of the NLRB and current Executive Director of the Labor and Worklife Program at Harvard Law School, has argued that the slew of hastily-decided reversals of second-term Obama precedents “seemed to be a rush to set the clock back on workers’ rights as much as possible.”

The Excelsior rule makes employers provide union organizers with a list of eligible voters and their home addresses a few days before an election. It’s an essential tool in a campaign, and any cut is a blow to unions. However, it is also important to remember that Excelsior was a bad compromise, and a real solution lies in actual free speech in the workplace. That will require that unions wage a free speech fight to regain our voice at work.

Captive-audience meetings versus knocking on doors

As soon as the National Labor Relations Act was passed in 1935, employers were already challenging the legal framework for workers to organize and bargain collectively.

In six short years, the bosses succeeded in demolishing the Act’s mandate of employer neutrality by strenuously appealing to the Supreme Court that the standard restricts bosses’ First Amendment right to inform their workers about just how strongly they oppose unionization. Six years after that, a Republican Congress codified this unequal application of free speech in the Taft-Hartley Act.

For a brief time after Taft-Hartley, the NLRB enforced an equal time standard by granting union organizers access to talk to workers on the job when an employer conducted captive-audience meetings. In an all-too-familiar pattern, the Board ping-ponged back and forth between different legal standards on employer speech and union access, depending on which political party was in the White House, until 1966.

That was the year of Excelsior Underwear, Inc ., the NLRB decision that established the right for unions to be furnished with a list of names and addresses of eligible voters. It was issued on the same day that the Board declined to reinstate the equal time rule. The case that we should have won that day was General Electric Co. and McCulloch Corp.

Loathe to trample on management’s rights and private property, the Democratic majority begged the unions in that case to try visiting workers at home and see if that effectively counter-balanced the boss’s work-time campaigning.

Anyone who has worked as a union organizer will tell you that an Excelsior list is no match for the mandatory round-the-clock campaigns of intimidation that union-busters consider “management’s most important weapon” in beating back an organizing drive.

Kate Bronfenbrenner, director of Labor Education Research at Cornell University, has been documenting employer union-busting tactics for decades. Her most recent study, covering the period of 1999 to 2003, found that 9 out of 10 employers use captive-audience meetings to fight a union organizing drive. Bosses threaten to cut wages and benefits in 47 percent of documented cases, and to shut down entirely in 57 percent of union elections. Incredibly, in one out of 10 campaigns employers hired “consultants” to impersonate NLRB agents.

That report is nearly nine years old. It is likely that when Dr. Bronfenbrenner updates her research, all of these numbers will be even higher—particularly the instances of outright lies and deception.

Within the General Electric Co. and McCulloch Corp. decision, the NLRB explicitly invited unions to press the issue of equal time if experience were to prove that knocking on workers’ doors was no match for mandatory captive-audience meetings. Labor law scholars Charles Morris and Paul Secunda were clever enough to notice this half-century-old invitation. Last year, they organized 106 of their leading peers to sign on to a petition to the NLRB to reinstate the equal time rule.

The right to free speech

We shouldn’t hold our breath waiting for Trump’s NLRB to respond to that petition, but we also shouldn’t be patient about demanding change. This past summer, I proposed that unions wage a constitutional battle to challenge the most unequal aspects of labor law and fight for workers’ constitutional rights on the job. Call it Labor’s Bill of Rights.

At the heart of the problem is that the National Labor Relations Act derives its constitutional authority from the Commerce Clause. That means that when workers’ rights are challenged in the courts, judges are weighing corporations’ First Amendment claims against unions’ claims that workers’ rights to organize and go on strike are good for business.

Under that framework, bosses’ rights and business interests have trumped workers’ free speech and human rights. Consider union certification elections. These are official legal elections conducted by an arm of the federal government. At stake is whether the government will enforce certain statutory rights of the workers who wish to form a union. The rules of the election are determined by the government through court decisions, congressional action and NLRB rule-making.  In this simple “yes” or “no” vote about whether there shall be a union, only an employer—and only one advocating a “no” vote—can force voters to attend speeches where they will tell them how to vote And if any voter declines to attend, she can be fired. This is compelled political speech and a massive violation of workers’ free speech rights.

Perversely, Trump’s NLRB could be doing us a favor if it really does kill Excelsior lists by making the imbalance of free speech rights in union organizing campaigns that much starker. Regardless of what new form of union busting the Trump NLRB endorses, we should start waging a campaign to restore the equal time rule now.

What this free speech fight would look like as a campaign is this: every time an employer stages a captive-audience meeting in advance of a union election, we should file an Unfair Labor Practice charge. And every time a union loses an election where the employer conducted captive-audience meetings (which, again, is almost always), we should file an appeal to have the election results overturned.

We should be filing these cases now, even with a Trump Board that will dismiss them all. If we can file a couple hundred challenges and make enough noise about them, we can turn the free speech fight over captive-audience meetings into an obvious controversy that the next Democratic-majority NLRB must respond to.

A Democratic NLRB with a modicum of decency would—at a minimum—re-establish the rule that conducting captive-audience meetings while providing union advocates no right of response is grounds to void an election and order a re-run. Better would be a rule making the very act of conducting captive-audience meetings an Unfair Labor Practice subject to court injunctions, unless union advocates are granted an equivalent platform—in work locations, on work time—from which to campaign for a union yes vote.

If the NLRB were to rule in our favor, we should expect the first employer to face sanctions to resist and drag the case into the federal courts. And then we’re off to the races with a well-deserved counter-attack to the cynical right-wing HarrisFriedrichs and Janus efforts to use free speech as a cudgel against union rights.

This article was originally published at In These Times on January 16, 2018. Reprinted with permission. 

About the Author: Shaun Richman is a former organizing director for the American Federation of Teachers. His Twitter handle is @Ess_Dog.


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