Republicans Are Taking Voter Suppression to the Workplace

Shaun Richman January 16, 2018

Employees of Republic Windows and Doors factory occupy the main entrance to the factory December 9, 2008 in Chicago, Illinois. (Photo by Darren Hauck/Getty Images)

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 Har­ris, Friedrichs and Janus efforts to use free speech as a cud­gel against union rights.

Shaun Rich­man is an In These Times con­tribut­ing writer and the Pro­gram Direc­tor of the Har­ry Van Ars­dale Jr. School of Labor Stud­ies at SUNY Empire State Col­lege. His Twit­ter han­dle is @Ess_Dog.
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