JULY 2007

Why should employers have a role in deciding whether workers have unions?

May 04, 2007
ZNet Commentary
By Bill Fletcher
Employers bring in high-priced consultants to help them develop forms of intimidation to scare workers away from voting in favor of a union.

Anti-worker forces have developed a very interesting tactical approach to the demand of workers to join or form unions. They yell "democracy." Let me explain how it works.

According to the National Labor Relations Act (passed in 1935), believe it or not, it is the public policy of the United States government to encourage collective bargaining! The NLRA gave many workers (though not all categories of workers) the right to join or form labor unions. This could happen in three main ways: (1)workers could join an existing union in a workplace, (2)workers could petition an employer to recognize a union of their own choosing (what is known as voluntary recognition), or (3)workers could petition the National Labor Relations Board for an election where the workers would choose the organization that they wish to represent them, or they could choose not to be represented.

Employers have, particularly over the last thirty years, gone all out to undermine the intent of the NLRA and destroy the ability of workers to join or form unions. Employers bring in high-priced consultants to help them develop forms of intimidation to scare workers away from voting in favor of a union. Employers threaten to close their facilities. They also discipline, up to and including the firing of worker activists. To cut to the chase, employers have displayed a remarkable willingness and ability to violate the intent and substance of the NLRA in large part because the penalties for violating the Act are so minimal.

In order to get around some of the intimidation tactics of employers, many unions have sought voluntary recognition to cut down on both the time involved in organizing workers into a union, but also to reduce the implicit fear that often accompanies a NLRB-sponsored election. Employers have now fired back, charging that by attempting to allegedly circumvent the NLRB election process and request voluntary recognition, the unions are seeking to deprive workers of their democratic right to an election to choose the union.

By staking the 'moral high ground' on this one, employers can often come off as the ones interested in the rights of workers, and the pro-union workers can be portrayed as interested in building their institutions (the unions). Unfortunately, too few advocates of workers rights have been prepared to pose the question that is implicit in this entire drama: why should employers have any role whatsoever in the choice by workers as to whether they want union recognition or not?

This may seem like a very strange question, but no one has, to my knowledge at least, demonstrated why employers should have any role in whether workers form a union; what sort of union; or whether they go unrepresented. In fact, the opposite has taken place. If one looks at what happened in 1947 with the passage of the Taft-Hartley amendments to the NLRA, it is clear that the conservative political forces were seeking to do anything that they could to reverse the NLRA and inhibit the actual rights of workers by increasing the ability of employers to interfere in something over which they should have no say.

Employers and their political allies suggest that workers should have no say over the manner in which an employer organizes their companies. Take, for instance, the question of supervisors. The NLRA fails to protect supervisors should they decide to unionize because they are deemed to be agents of the employer. In other words, the employer can choose a particular form of organization suited to their objectives. The non-supervisory workforce is not consulted about this and, to be blunt, there is nothing that they could do about such an organization. Yet, when workers are attempting to decide whether and what form of organization that they need to increase their power, for some reason the employer is permitted to interfere.

To the extent to which this issue ever emerges, it is usually linked to disingenuous suggestions that "freedom of speech" for the employer is at stake, i.e., that the employer has the right to freedom of speech in this, and for that matter, any other matter. Here is where the rubber meets the road. Freedom of speech is not an abstraction. There is a qualitative difference in power when an employer argues a point of view vs. a point of view articulated by a rank and file worker. If, for instance, an employer suggests that it is not a good idea for the workers at their workplace to join or form a union, the workers at that workplace are keenly aware that there is an implied threat. The threat may be very subtle, or it may be as subtle as an atomic bomb, but the threat is there. Forming a union is portrayed as an act of betrayal and there are consequences to betrayals.

This is not simply a matter of whether an employer is conservative, liberal or even progressive. It is really about class politics and class struggle. In the 1980s I helped to organize a non-profit agency in Boston. The employer, who at first glance seemed like a good-natured liberal, was VEHEMENTLY against a union forming. This individual, who saw himself as, at least a liberal, if not a progressive, was in favor of unions forming anywhere?except in his workplace. He pulled out all the stops, conveying to the workforce that a union was unnecessary; would be an impediment to a good workplace environment; and, ultimately, was a betrayal. It was a credit to the workers that they rejected his views and felt confident enough to vote overwhelmingly for a union. That said, it was never certain that they vote would go pro-union. The implied intimidation was quite real. In other settings, the vote can go exactly the opposite direction.

Thus, the issue cannot be left to stand as one of whether workers should exercise their right to a NLRB-supervised election or not. Whether there is an election or whether there is voluntary recognition is completely secondary to THE fundamental question: can workers exercise their right to self-organization free of ANY employer involvement (not just interference)? Insofar as employers have any ability to involve themselves in what should be off-limits, worker-only activity, the reality is that they introduce a significant power dynamic.

For those who are honestly concerned about Constitutional implications, let us be clear that an employer can "say" anything that is Constitutionally protected. What becomes problematic is where the employer engages in activities or conduct that transcends opinion and goes to involvement in a process that, according to the NLRA, concerns the self-organization of the workers themselves. As such, the employer needs to be neutral in its actions, taking no steps that can be construed, in any respect, as aimed at influencing the self-organization of the workers.

Each day, workers across the USA are engaged in a scene from a Dirty Harry movie. You know, those films with Clint Eastwood as the tough cop. In one of those films after a major shoot out, a wounded criminal is reaching for his gun as Harry (Clint Eastwood) approaches. Harry has his .44 magnum pistol pointed at the criminal and philosophizes how the criminal might believe that Harry is out of bullets, but the ultimate question is whether the criminal feels lucky.

Each day, workers are asked if they feel lucky. With a gun pointed at their collective heads, they are asked to participate in a rigged game that allegedly guarantees their right to join or form a labor union. It is a tribute to these workers that they are willing to take the chance, but insofar as many realize that the game is rigged and that that employers are quite capable of retaliation, they often answer "no" to whether they feel lucky.

Until we get the employers removed from ANY involvement in the activity of workers to join or form labor unions, we will continue looking down the barrel of that anti-worker .44 magnum.

Luck should have no part of the equation.


Bill Fletcher, Jr. is a long-time labor and international activist and writer. He is the immediate past president of TransAfrica Forum and can be contacted at Fletcher Why should employers have a role in deciding whether workers have unions May 04