Revised and updated March 6, 2009
Since the passage of the National Labor Relations Act in 1935,
the government has protected the privacy of workers considering
joining a union through secret-ballot elections. . Labor unions now
allege that secret-ballot elections are so inherently unfair that
they do not reflect workers' true choices. They want Congress to
require companies to recognize a union when a majority of their
workers publicly sign cards stating their desire to organize. This
is known as card-check organizing. But secret-ballot elections do
not stack the deck against union organizing, and Congress should
not take away workers' fundamental right to a private ballot
because of unions' anecdotal claims to the contrary.
The facts show that current National Labor Relations Board
(NLRB) election procedures are fair and do protect workers' free
choice. The system carefully balances the rights of union
organizers and employers and ensures that workers can express their
choice in a neutral environment. The NLRB investigates and
processes alleged violations of the law in a timely manner, and
there is little evidence that the NLRB is failing to enforce the
law. Over 97 percent of elections took place without any illegal
employer activities, and unions won 60 percent of organizing
elections held in 2007.
Alleged Election Abuses
A private choice expressed through a secret ballot is a
fundamental part of American democracy, but many labor activists
now allege that, despite the privacy of the voting booth,
organizing elections are coercive and unfair and should be replaced
with publicly signed cards to protect worker's "free choice."
Union activists argue that companies have complete access to
workers during the day, when unions do not. They also say
that it takes so long for the NLRB to investigate violations that
employers routinely ignore laws protecting workers. Supporters of
card-check allege that many companies illegally threaten or fire
workers who support unionizing. Private
balloting thus takes place in "an inherently and intensely coercive
Wholly aside from the bizarre nature of the argument that making
the choice of whether or not to join a union public will prevent
companies from intimidating workers, the facts show that
government-supervised organizing elections carefully balance the
interests of unions and employers while protecting employees from
retaliation by either side.
Employers May Not Threaten Workers
Under the First Amendment of the U.S. Constitution, employers
have the right to communicate their views to their employees and
may express their opposition to a union. A supervisor may remind
workers that many union negotiation demands would be set by union
bosses who know little about the company's day-to-day operations or
that union dues are expensive and fund those bosses' six-figure
salaries. Every story has two sides, and employers have the right
to point out to their employees the drawbacks to union membership
that unions train organizers to deflect.
Employers may not, however, threaten their workers. They may not
threaten to fire individual workers for joining a union, much less
actually do so, or "predict" that unionizing would lead to strikes
that would bankrupt the company and force it to undertake mass
layoffs. If the government finds that a company did
threaten workers, it discards the election results and holds a new
election. In cases of extreme abuses, the government orders the
company to recognize the union without holding another election. A
company that illegally fires workers for joining a union must also
reinstate them and provide them with back pay.
Unions Free to Make Their Case
The First Amendment similarly guarantees union activists the
right to express their views to potential recruits, but not to
recruit new dues-paying members while workers are on company time.
Union organizers may speak to workers during lunch breaks and other
unpaid time at work, unless the company has a policy prohibiting
solicitation by anyone--not just unions--on its premises. The law
does not guarantee union organizers a special exemption to policies
designed to avoid disruption at work.
To ensure that unions have an equal chance to make their case,
the law requires that companies provide union organizers with a
complete and accurate list of all employees' names and addresses
within seven days of the NLRB order to conduct an election. If a
company fails to do so or provides an inaccurate list, the NLRB
will set the election aside and order a re-vote. Union
organizers are free to contact employees at home or by phone to
make their case; employers are not. It is actually an unfair labor
practice (ULP) for a work supervisor to visit workers in their
homes to discuss the election. The law
strikes a balance between the legitimate needs of both employers
and union organizers, allowing both to make their case while
protecting workers from intimidation.
Union activists agree that workers' legal protections look good
on paper, but they claim that it takes so long for the government
to investigate violations that these protections are meaningless in
practice. The AFL-CIO argues that "in 50 percent of the
decisions issued by the NLRB in 2002 in unfair labor practice
charge cases, workers waited more than 889 days for the NLRB to
reach a decision."
This claim is misleading. The National Labor Relations Board is
the labor law equivalent of the Supreme Court. Only 3.7 percent of
cases make it to the NLRB, and many of those embody novel legal
issues, not the routine enforcement of the law. Most cases
are either settled by the parties or handled by lower levels of the
NLRB bureaucracy, typically by administrative law judges.
It takes an NLRB regional director a median of only 96
days--three months--to investigate an unfair labor practice charge,
determine whether it has merit, and file a formal "complaint." Only 13 percent of all cases reach that
stage. Fully 87 percent are closed before the
complaint stage, either dismissed or withdrawn for lack of merit or
the subjects of settlements in which the company makes restitution.
It takes a median of six more months from the filing of a complaint
to an administrative law judge's decision. Only 5 percent of cases,
overall, get to that stage.
Ninety-five percent of all alleged violations of worker rights
are settled through procedures that typically take three to nine
months. That is no reason to take away workers' right to a private
Most Allegations Dismissed
Unions allege that employers systematically violate the law, but
these allegations are only one side of the story. Government
investigations usually result in the dismissal of these
allegations. The majority of unfair labor practice charges filed
against employers in 2007 were either withdrawn or dismissed. Almost All Employers Obey the
The argument by labor activists that corporations systematically
violate workers' rights and fire workers who want to organize is
seriously undermined by the fact that government investigations
show otherwise. Firing a worker because he or she wants to organize
is an unfair labor practice that the government investigates.
Companies who break the law must rehire their workers with full
back pay. NLRB records show that companies rarely fire workers for
trying to join a union. Only 2.7 percent of organizing campaigns
between 2003 and 2005 involved illegal firings. Organized
labor's claims are more anecdotal than real. It is true that a
small minority of employers do violate the law. Companies did fire
workers in 2.7 percent of organizing campaigns in 2005. But these
bad apples are the exception, not the rule.
Unions often claim that 30,000 workers are fired or
discriminated against each year for trying to join a union. This is
not true. The figure comes from the NRLB annual reports and
reflects the number of workers who receive NRLB-ordered back pay
awards. Most back pay awards have nothing to do
with restitution for workers laid off in election campaigns. Back
pay awards typically come after an employer illegally making
changes to working conditions without first negotiating with the
union. For example, an employer might reduce the hours in
employees' schedules when demand drops. The government orders the
employer to make his or her employees whole by providing them with
the pay they would have earned had their hours not been cut. This
has nothing to do with firing or intimidating workers for
supporting a union, but with requiring employers to bargain before
altering working conditions. Claims of widespread union
intimidation are not supported by the facts. By the numbers, the
vast majority of employers follow the law.
Unions Usually Win
Labor activists argue that NLRB elections "look more like the
discredited practices of rogue regimes abroad than like anything we
would call American." If, contrary to NLRB
investigations, employers systematically violated the law and
intimidated workers, unions would lose most elections, but unions
actually win 59.9 percent of all organizing elections. This is strong evidence that employers are
not tilting the playing field against union organizers.
NLRB organizing elections are free and fair. They balance the
legitimate rights and interests of both union organizers and
employers while preserving workers' privacy and protecting them
from coercion and intimidation. Unions win most organizing
elections. The government also investigates and resolves most cases
of employer misconduct in a matter of months, and the majority of
those allegations have no merit. Investigators found that employers
intimidated or coerced workers in just 2.7 percent of organizing
election campaigns between 2003 and 2005.
The vast majority of employers follow the law. They respect
their employees' right to decide whether or not to join a union
without fear of intimidation or coercion. Congress should do the
same by allowing workers to vote their conscience in the privacy of
the voting booth.
James Sherk is Bradley Fellow in Labor Policy
in the Center for Data Analysis at The Heritage Foundation.
AFL-CIO, "The Silent War: The Assault on
Workers' Freedom to Choose a Union and Bargain Collectively in the
United States," Issue Brief, September 2005, pp. 4-5, at
Ibid., p. 4.
Ibid., pp. 4-6.
Testimony of Nancy Schiffer, AFL-CIO
Associate General Counsel, before the Subcommittee on Health,
Employment, Labor, and Pensions, Committee on Education and Labor,
U.S. House of Representatives, February 8, 2007, at www.aflcio.org/joinaunion/voiceatwork/efca/upload/
National Labor Relations Board, Office of
the General Counsel, An Outline of Law and Procedure in
Representation Cases, July 2005, Chapter 24, Sections 200-230,
Ibid., Section 324.
Ibid., Section 321.
AFL-CIO, "The Silent War," p. 4.
National Labor Relations Board,
Seventy-Second Annual Report of the National Labor Relations
Board for the Fiscal Year Ended September 30 2007, October 16,
2008, Table 8: CA Cases, at http://www.nlrb.gov/nlrb/shared_files
/brochures/Annual%20Reports/Entire2007Annual.pdf (March 6,
2009). Just 3.7 percent of all cases were closed after a
board decision, not counting the 0.9 percent of cases in which the
board ordered the adoption of an administrative law judge's
Ibid., Table 23.
Ibid., Table 8, looking at CA
Ibid., Tables 8 and 23, and
looking at CA cases.
Ibid., Table 7. The NLRB closed
16,983 ULP cases against employers in 2007. Of those, 5,438 were
withdrawn by the charging party, and 3,791 were dismissed by the
government. This accounts for 54 percent of all cases closed. Note
that these are all ULP cases brought against employers, not just
those brought during election campaigns.
J. Justin Wilson, "Union Math, Union
Myths," Center for Union Facts, 2008, page 7, at www.unionfacts.com/downloads/Union_Math_Union_Myths.pdf
(March 6, 2009).
 Seventy-Second Annual Report of the
National Labor Relations Board., Table 4.
Testimony of Dr. Gordon Lafer before the
Subcommittee on Health, Employment, Labor, and Pensions, Committee
on Education and Labor, U.S. House of Representatives, February 8,
2007, at www.aflcio.org/
(February 13, 2007).
Seventy-Second Annual Report of the
National Labor Relations Board, Table 13, total RC