Organized labor argues that Congress should effectively take
away workers' right to vote in secret ballot elections because
employers allegedly intimidate workers in the run-up to elections
by firing and threatening to fire pro-union workers. However, a
recently released study commissioned by two union-funded
organizations, American Rights at Work and the Economic Policy
Institute, shows that employers rarely break the law during
organizing campaigns. Research by the study's author--Kate
Bronfenbrenner, a former union organizer--also shows that employers
and unions agree on contracts within two years in most newly
organized workplaces and that ineffective union organizing
campaigns--not management opposition--explains the labor movement's
failure to organize more workers. The labor movement's own figures
rebut its case for replacing secret ballots with publicly signed
union cards. Organized labor's figures also show why unions want to
employ card check in the first place: Unions win 100 percent of
card-check campaigns in the public sector. Taking away workers'
rights to a secret ballot guarantees workers will have union
representation, whether they want it or not.
Killing the Secret Ballot to Prevent
Organized labor's highest legislative priority is the misnamed
Employee Free Choice Act (EFCA). EFCA would replace traditional
secret-ballot elections, where workers decide on joining a union in
the privacy of a voting booth, with "card check"--where workers
publicly sign union cards, often in full view of union organizers.
EFCA also authorizes the government to write and impose the terms
of collective-bargaining agreements on workers and businesses at
newly organized companies.
Labor unions publicly argue for congressional passage of EFCA by
maintaining that the current organizing system is broken. They
claim that most American workers want to join a union but employer
campaigns of "coercion, intimidation, and retaliation" deter
workers from voting for the union representation they desire. Unions
allege that during pre-election campaigns employees are routinely
"harassed, intimidated, spied on, threatened and fired." They
argue that this creates a climate of fear that terrifies workers
into voting against the union in the private voting booth. Labor
unions contend that Congress should eliminate secret ballot
elections in order to protect workers from this alleged
This argument makes little sense, of course. Secret ballots
specifically protect privacy so that voters can express
their views without fear of retaliation. Union membership has
fallen not because of widespread intimidation, but because unions
do not fit into the modern economy well and most non-union workers
simply do not want to organize: A recent Rasmussen poll found that
only 9 percent of non-union workers want to join a union.
Misinformation on Employer
Several studies analyzing data from the National Labor Relations
Board (NLRB) have shown that the union movement heavily inflates
charges of employer misconduct. These studies find that employers
illegally fire workers in at most 3 to 4 percent of organizing
campaigns. These numbers make sense: Employers who
want to defeat a union campaign must persuade their workers that
they deserve their trust. Threatening workers demonstrates
supervisors' untrustworthiness and can make workers more
likely to turn to the union for protection. Unions win more
elections if employers harass and discipline union activists than
when they do not.
Now a new study commissioned by the labor movement confirms the
results of these other studies. The labor movement's own figures
show that employers rarely threaten to fire workers who want to
This recent study is "No Holds Barred: The Intensification of
Employer Opposition to Organizing," by Kate Bronfenbrenner, a
former union organizer and now a professor at Cornell University. The
Economic Policy Institute, a union-funded think tank and American
Rights at Work, a union-backed organization established for the
purpose of advocating the passage of EFCA, jointly released
Bronfenbrenner's study. It has the labor movement's full
Bronfenbrenner analyzed two data sets to determine how
frequently employers break the law during union campaigns. First,
Bronfenbrenner re-analyzed data from a previously published survey
of lead union organizers in 1,004 organizing campaigns between 1999
and 2003. She asked the lead organizer of each campaign whether
employers used various tactics to defeat the organizing drives.
Second, Bronfenbrenner requested data under the Freedom of
Information Act on any Unfair Labor Practices (ULP) charges filed
with the NLRB during those campaigns and their ultimate
Organizers' Impressions Not Based on
The study relies heavily on the self-reported survey of union
organizers--data that suffers from many biases. Most important,
union organizers do not directly observe what happens in the
workplace. They only hear second- and third-hand reports. They do
not know if an employer laid off an employee because he supported
the union or because of chronic tardiness. They do not know if an
employer "interrogated" employees or had a conversation in which an
employee mentioned his views on unionizing. They do not know if
employers "threatened" workers or simply explained that in
collective bargaining everything is on the table and workers'
compensation can go both up and down--a fact that union organizers
avoid mentioning, and a statement that is permissible within the
boundaries of the National Labor Relations Act.
Additionally, union organizers suffer from their own cognitive
biases. Surveying union organizers several years after an election
campaign amounts to asking them to remember what made it difficult
for them to make a sale. People also have a natural tendency to
take credit for success and deny responsibility for failure, and
union organizers will want to lay any blame on management, not
their own shortcomings. Organizers view management as the
opposition and naturally accept most criticisms, baseless or not,
of a company's management--just as Republicans and Democrats easily
accept criticism of the opposing party's candidate during
presidential election campaigns.
Organizers also greatly exaggerate workers' interests in
unionizing. While only 9 percent of non-union workers want to join
a union, 47 percent of union members believe that most workers want
Organizers more naturally believe that widespread management
opposition explains their failure to organize more workplaces.
These biases incline union organizers to believe employer
misconduct occurs much more frequently than it does. Union
organizers' self-recollections of employer misconduct are highly
NLRB Figures Are Reliable
Unions will virtually always file ULP charges in response to
illegal employer behavior during a campaign. ULP charges make
effective campaign propaganda to demonstrate that workers should
not trust their employers. The National Labor Relations Board
conducts a thorough and impartial investigation of ULP charges and
provides much more reliable data on employer misconduct than
surveying union organizers. Unions rely on NLRB data for other
figures, such as the number of employer back-pay awards ordered by
Bronfenbrenner's analysis of ULP filings indicates that unions
withdraw, or the NLRB dismisses, 50 percent of union allegations of
threats, 57 percent of union harassment allegations, and 68 percent
of claims of firings for supporting the union. This underscores
the unreliability of union organizers' assessments of employer
wrongdoing. In many cases where organizers allege illegal behavior,
the employer did nothing wrong whatsoever.
Bronfenbrenner claims that unions do not file charges in
elections they expect to win because "employers can use the ULP
charges to indefinitely delay or block the election."
She argues that ULP charges thus understate employer misconduct.
This misrepresents the law. Fear of delaying a successful election
would discourage unions from filing charges and skew the NLRB
data--if the law allowed employers to delay elections. It does not.
Unions decide whether or not the election goes forward while the
NLRB investigates ULP charges. The union has the option of putting
the election on hold--called a "blocking charge"--while the NLRB
investigates the allegation. If the union expects to win the
election, it submits a request to proceed and the election occurs
Contrary to Bronfenbrenner's claims, the law does not give
unions any reason to hesitate to file ULP charges. Her figures also
show that unions file ULP charges frequently--in two of five
election campaigns. The best and most objective available
data for determining the extent of employer adherence to or
violation of labor laws comes from the NLRB.
Union Figures Show: Employer
The Bronfenbrenner study highlighted the unreliable results of
the survey of union organizers. These organizers reported that
management frequently violated the law, threatening workers in 69
percent of election campaigns, firing workers in 34 percent of
campaigns, and harassing workers in 41 percent of elections.
The Economic Policy Institute and American Rights at Work have
highlighted these figures as further evidence of widespread
However, the much more reliable data from the National Labor
Relations Board rebuts these claims. The NLRB data show that only a
small minority of employers ever break the law. Employers fire
union supporters in just 6 percent of elections, threaten workers
in 7 percent of elections, and harass workers in just 2 percent of
Chart 1 shows the full results of Bronfenbrenner's study from
both the survey of union organizers and the NLRB data.
Impartial data from NLRB investigations show that most employers
obey the law. While bad apples do exist, organized labor's own
analysis of NLRB data shows that the overwhelming majority of
employers obey the law and respect their employees' rights during
union campaigns. Only by citing completely unreliable data can the
labor movement contend that widespread employer misconduct
Employer intimidation rarely occurs in organizing campaigns
because workers vote in privacy. In order to win an election
against union formation, employers must persuade workers that they
do not need union representation. Intimidating workers is
counterproductive, causing them to turn to the union for protection
from hostile managers. This is why most organizing campaigns become
contests of persuasion, not intimidation.
Unions start with the advantage. They visit workers in their
homes and try to convince them to support the union months before
the employer learns of the campaign. In one-on-one and small group
meetings, union organizers use sales techniques, such as SPIN
selling, to convince workers that they have a problem that creating
a union will solve.
Unions train their organizers to move employees through four
emotional states: situation, problem, implication, and need payoff
(SPIN). Unions identify key issues with which an
employee is dissatisfied--such as wages, work schedule, or amount
of respect received at work--and attempt to convince workers that a
union will solve these problems. Former United Food and Commercial
Workers organizing director Rian Wathen explains this process:
They track what stage of those four emotions that employee is at
and write down a list of questions that they need to ask them the
next time in order to move them down that emotional scale to get
them to that point where you need to have them... what you're
trying to do is to move people down that emotional scale: ...It's
about getting them to understand that signing that card, or voting
for the union as it is under the current law, is what will get them
what they need to solve whatever problem they have.
Organizers also use workers within the plant to build support
for the union. They use member volunteer organizers alongside paid
organizers, establish representation committees in companies, and
employ group pressure tactics, such as solidarity days, rallies,
and marches. These group actions create a bandwagon effect and
persuade undecided workers to join their peers in support of the
Employers start out at a disadvantage in these campaigns because
they usually do not learn about the organizing drive until after
the union files for an election. Once this occurs they typically
have only one to two months--compared to the unlimited amount of
time beforehand that the union has already had to build support--to
counter the union campaign and persuade workers that they do not
need to organize.
The law prohibits employers from threatening retaliation if
employees unionize, interrogating workers about whether they
support the union, promising to improve working conditions if
workers vote down the union, or conducting surveillance to
determine which workers want to unionize. These acts are illegal,
and--as Bronfenbrenner's analysis of the NLRB data she collected
shows--the overwhelming majority of employers obey the law.
The law does allow employers to express their opinion and
explain the facts to the employees. After employers learn of the
organizing drive, they hold staff meetings throughout the
campaignto make their case. These staff meetings--derided by unions
as "captive audience" meetings--are the principal means by which
employers communicate their side to employees. These meetings cover
different topics and focus on giving workers factual information
about the union that the organizers avoided during their sales
pitches. As workers learn uncomfortable facts that
the organizers failed to mention, their support for organizing
Employers explain that the law does not require them to agree to
concessions and that in collective bargaining employee benefits can
go up or down. They explain that in order to obtain concessions
important to the union, such as automatic dues deductions, unions
will agree to accept lower wages or benefits. Employers explain
that workers lose both their pay and benefits for the duration of a
strike. They show that union organizers portrayed only the
potential positive aspects to unionization, and none of the risks
for the workers.
Employers also show the workers the downsides of joining the
particular union seeking representation. They hand out copies of
the union's internal constitutions and by-laws--documents that
typically give the union, not union members, all the rights and
power. If the union has a track record of corruption or
ineffectiveness, employers will bring this to the workers'
attention. Employers win secret-ballot elections by
educating workers about what unionizing entails, not by firing
workers who want to unionize.
Unions Object to Employee
Unions object to education campaigns because they are effective.
Bronfenbrenner's survey of union organizers did not just cover
illegal firings and threats. It also covered widespread methods of
educating workers about the risks of joining a union: staff
meetings, distributing educational leaflets and letters, and
distributing mock pay stubs with deducted union dues.
Bronfenbrenner's study treated these educational activities as
equivalent to firings and threats to close the plant.
When unions complain about employer resistance they do not just
object to employers firing or threatening to fire workers who
support a union. They also object to legitimate efforts to provide
workers information before they vote on whether or not to unionize.
Card-check methods and snap elections are intended to prevent
employers from having the opportunity to educate workers before
they vote--not to prevent the rare instances of employer
Ineffective Organizing Explains Failures.
Bronfenbrenner's recent study highlighted the role of employer
campaigns in weakening union support, but ignored her own research
examining the effectiveness of union election tactics.
Her research finds that unions have a variety of organizing tactics
at their disposal that are effective in persuading workers to join
unions. These tactics include:
- Staffing the campaign. Using at least one organizer for
every 100 workers, and using female and minority organizers in
- Researching the target. Researching the company for
vulnerabilities before the start of the campaign.
- Creating organizing committees. Creating organizing
committees with at least 10 percent of the eligible workers on the
committee and one-on-one communication between committee members
and their peers in the workplace and at private meetings in
- Using volunteers. Using volunteer union members from
other organized units of the same company to speak to workers.
- Making personal visits. Making union visits with a
majority of workers at the firm to a worker's home in order to
- Focusing on issues that resonate. Focusing on issues
that resonate in the workplace and community.
- Using internal pressure tactics. Solidarity days, job
actions, rallies, and marches on the boss for recognition.
- Using external pressure tactics. Developing corporate
campaigns that damage the company's reputation, using either paid
or free media.
Bronfenbrenner finds that when unions use these tactics they
fully offset the effects of employer campaigns:
[A]lthough employer opposition and election environment all have
a significant impact on election outcome, the number of
comprehensive organizing tactics has as much impact as employer
opposition and more impact than election environment.
However, despite the availability of these effective tactics,
most union organizers choose not to use them. Adopting these
tactics is expensive and requires significant effort on the part of
the union organizers. Consequently, they are rarely used and most
unions run significantly less effective organizing campaigns than
they could. Unions do not need to take away secret ballots to win
more elections. They can do it by running intelligent,
multi-faceted campaigns with methods they already know how to use.
Bronfenbrenner's own research finds that unions are failing to
organize workers because they are running ineffective organizing
[I]t is too easy to simply blame employer opposition and the
organizing environment. American unions themselves must shoulder a
good portion of the responsibility for their organizing failures.
Although our results demonstrate that even in the most difficult
contexts, unions can dramatically increase their organizing success
when they run more multifaceted strategic campaigns, the majority
of unions organizing today still run weak, ineffectual campaigns
that fail to build their strength for the long haul.
The union movement's lead researcher has found that unions could
fully offset the effect of employer education campaigns by
conducting more intelligent organizing campaigns themselves. That
admission undercuts the labor movement's stated rationale for
First Contracts Regularly Reached
EFCA has two main provisions: replacing secret ballots with card
check and giving government officials the power to write and impose
contracts on workers and employers. Card check has attracted the
most media attention, but imposed contracts radically depart from
seven decades of labor law that states neither employees nor
employers may be forced to make a concession. Organized labor
contends that imposed contracts are necessary because employers
negotiate in bad faith, intending never to agree to a contract but
running out the clock and hoping workers will vote to decertify the
These concerns lack substance. The law requires employers to
negotiate in good faith, but labor law has never expected employers
to voluntarily agree to contracts out of sheer generosity of
spirit. The law gives workers the right to organize and engage in
collective action--such as work slowdowns and strikes--to
counteract the employer's bargaining power. If employers engaged in
widespread bad-faith bargaining, unions could use their economic
clout to force them to make reasonable concessions.
In her recent study Bronfenbrenner argues that bad-faith
bargaining occurs frequently, reporting that only 63 percent of
newly unionized workers negotiate a first union contract with their
employer within two years and only 70 percent negotiate a contract
within three years. This appears to provide evidence of
widespread misconduct. However, Bronfenbrenner neglected to mention
that her own research shows that this figure dramatically
understates the true first contract rate. Commenting on a blog post
about contract rates, Bronfenbrenner wrote:
[O]ne area that unions have been making improvements in is first
contracts. That's because the unions that are successful in
organizing are running the kinds of campaigns that would make them
more likely to win first contracts, and because we have more
non-NLRB campaigns where the first contract rate is much higher,
and because there has been an in organizing in the non-profit
sector [sic], where first contract rates are also higher. So
first contract rates according to my data are consistently
averaging 68% for NLRB campaigns, above 90% for non-NLRB campaigns
(and have always averaged above 90% in the public sector). That
means that...the rate in the private sector not getting contracts
within two years of the election is more likely to average closer
Organized labor's top researcher, Bronfenbrenner, has found that
newly organized workers negotiate first contracts within two years
at 85 percent of workplaces. The labor movement's own numbers show
that employers do not attempt to delay negotiating contracts.
However, in "No Holds Barred," Bronfenbrenner chose to highlight a
lower number based on a partial sample of newly organized
workplaces. Why would a serious researcher do that? Three years ago
Bronfenbrenner explained that:
The problem within the labor movement is that there are some who
want the bad news number--that it is getting harder and harder to
organize, even when it is based on a flawed source, because they
believe it will help in the argument for labor law reform.
Bronfenbrenner has now done exactly what she formerly criticized
her colleagues in the labor movement for doing. The union movement
knows that employers rarely delay first contract negotiations, but
claims otherwise in order to advance the public case for EFCA.
An Offer Workers Cannot Refuse
Organized labor's own analysis shows that employer misconduct
rarely occurs. Union analysis of NLRB data shows that only a small
minority of employers threaten, harass, or fire pro-union workers.
Union figures show that unions negotiate first contracts relatively
quickly in most newly organized workplaces. They also show that
while employer education campaigns undercut union support, the
labor movement could counteract this by using more effective
organizing tactics themselves. The union movement knows that its
public arguments for eliminating secret ballots and allowing the
government to impose first contracts do not stand up to scrutiny.
So why does the labor movement want Congress to pass EFCA?
Bronfenbrenner's research reveals the answer. Five states in her
sample of public-sector unionizing elections allow card-check
organizing for government employees. In those states, unions
had a 100 percent win rate in card-check organizing campaigns.
Unions organized every workplace they targeted.
Not even the polls commissioned by the AFL-CIO suggest that
every non-union worker wants to unionize. But unions organized
every government employee in every workplace they targeted with
card check. Taking away workers' right to a secret ballot exposes
them to peer pressure, harassment, and threats. It allows unions to
come back to hold-outs again and again to press them to change
their minds, often in the presence of a union organizer, before
hearing the other side from their employer. Card check allows
unions to organize workers, whether they want union representation
Organized labor contends that most workers prefer to join a
union, but that employers intimidate workers into voting against
them in secret-ballot elections. Unions propose to solve this
problem by effectively eliminating secret-ballot elections and
having the government impose contracts on newly organized workers
with the Employee Free Choice Act. However the union movement's own
data demonstrate most workers do not want to unionize.
Recent analysis of NLRB data conducted by the union movement's
top researcher and released by two prominent union-backed
organizations shows that employers rarely break the law. This same
research has found that unions could counteract employer education
campaigns by using more effective organizing tactics and that
employers promptly negotiate first contracts at most newly
organized firms. The labor movement's own figures rebut its public
case for EFCA. This research does reveal why unions actually want
card check. In states that allow card check for public-sector
workers, unions win 100 percent of card-check campaigns. Card check
ensures the membership of millions of new dues-paying union
members--whether or not those workers want to unionize.
is Bradley Fellow in Labor Policy in the Center for Data
Analysis at The Heritage Foundation.
Rasmussen Reports, "Only 9% of Non-Union
Workers Want to Join a Union," March 16, 2009. Sample of 1,000
adults conducted March 13-14, 2009, with a margin of error of + or
- 3 percent.
Justin Wilson, "An Analysis of Current NLRB Data on Unlawful
Terminations During Union Organization Campaigns, 2007 to 2008,"
The Center for Union Facts, February 26, 2009, finds that illegal
firings occur in a maximum of 3.75 percent of organizing campaigns.
John-Paul Ferguson, "The Eyes of the Needles: A Sequential Model of
Union Organizing Drives, 1999-2004," Industrial and Labor
Relations Review, Vol. 62, No. 1 (October 2008), Tables 1 and
2. Employer violations of sections 8(a)(1) and 8(a)(3) of the
National Labor Relations Act occurred 914 times during 22,382
election campaigns between 1999 and 2004.
Bronfenbrenner, "No Holds Barred," Table 3.
Unions win 55 percent of elections when employers harass and
discipline union activists and only 49 percent of the elections
where they do not. This difference is not statistically
organizers responded to the survey--a response rate of 56
Bronfenbrenner obtained NLRB data on 98 percent
of the campaigns selected.
Rasmussen Reports, "Only 9% of Non-Union
Workers Want to Join a Union."
Phone interview conducted May 26, 2009, with
Rian Wathen, former organizing director, United Food and Commercial
Workers Local 700 in Indianapolis. Wathen is now a regional
president of Labor Relations Services, Inc.
Testimony of Nancy Schiffer. Schiffer
misrepresents the reason for back-pay awards: Most of the time,
back pay is awarded when the NLRB requires employers to provide
restitution after they unilaterally change working conditions, not
because of discrimination against union employees.
Bronfenbrenner, "No Holds Barred," Table
Patrick Hardin and John Higgens, Jr., eds.,
The Developing Labor Law, 4th ed., Vol. 1 (Arlington, Va.:
BNA Books, 2001), Chap. 10.II.B, p. 519.
It is unclear why Bronfenbrenner, a former
union organizer and veteran of the Labor movement, was unaware that
unions can file a motion to proceed with the election when ULP
charges are pending.
Bronfenbrenner, "No Holds Barred," p. 15.
This is roughly twice the rate of ULP filings found by John-Paul
Ferguson in his analysis of NLRB data. Ferguson, "The Eyes of the
An employer violation is a ULP charge in
which the NLRB either upheld the allegation or the employer settled
Phone interview conducted May 26, 2009, with
Bronfenbrenner, "No Holds Barred," Table 3.
Note that data on these activities are not available from the NLRB
because they are legal, protected by employers' First Amendment
right to free speech.
Ibid., Chapter 1, p. 53.
Bronfenbrenner, "No Holds Barred," Figure
Those states in her sample are New York,
California, New Jersey, Illinois, and Washington. Other states
permit card-check organizing for government employees, but were not
included in her sample of election campaigns.