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Free and Fair? How Labor Law Fails U.S. Democratic Election Standards

Free and Fair? American Rights at Work commissioned University of Oregon political scientist Gordon Lafer to investigate how current union election procedures measure up to U.S. democratic standards.  Lafer engaged in a thorough examination of the political philosophy and published works of the founders, the historical development of electoral law and jurisprudence, and current statutes and regulations that define "free and fair” elections.

The report investigates how current union election procedures measure up to U.S. democratic standards.  In spite of the presence of secret ballots, the report concludes that union representation elections fall alarmingly short of living up to the most fundamental tenets of democracy.

» Download the report (PDF: 38 pages, 409 KB)

By Gordon Lafer, Ph.D.
American Rights at Work
June 2005

Findings from Free and Fair:


Democratic Elections Standards:

How Do Union Representation Elections Measure Up? 

Equal Access to the Media: 
Distribution of Competing Viewpoints to Create an Informed Electorate

Employees are restricted from openly disseminating information:  In elections for union representation, employers have monopoly control of media within the workplace.  They can distribute anti-union information anywhere and at anytime, while pro-union workers are restricted to posting literature in the break area during break time.  Unions are restricted to distributing material off-site.
Freedom of Speech:
Broad Debate of Public Issues

Employees are restricted from openly expressing their opinions:  Employers are allowed to enforce a total ban on employees discussing the proposed union outside of the break room.  Yet employers enjoy unfettered communication?subjecting employees to mandatory staff meetings and one-on-one meetings with supervisors, often with the intent of intimidating those suspected of supporting union formation.  Labor law provides no equal opportunities for pro-union workers to respond or present alternative viewpoints.
Equal Access to Voters:
Promoting Balanced Competition & a Level Playing Field

Employers have greater access to voters:  Although pro-union workers and union organizers are permitted to contact workers outside of the workplace, such communication is exceedingly difficult to arrange.  Employers have unilateral access to employees within the workplace, and can easily contact them at home.  While employers may freely distribute a steady stream of anti-union correspondence through the mail, pro-union workers lack access to employee address information until they can document that 30% of the workforce wants a union.  Even then, employers can legally provide lists with incomplete information, such as missing zip codes and telephone and apartment numbers.

Voter Coercion:
Restricting Undue Influence









Employees are not protected against economic coercion:  Employers and their supervisory personnel exercise considerable economic leverage over workers, including the discretion to assign and change work duties, grant raises and promotions, and control work schedules.  Existing statutes prohibit explicit threats to and bribery of employees.  But this leaves ample room for employers to stop short of that threshold and still conduct activities designed to thwart union recognition.  Workers are subjected to  thinly-veiled threats in the form of ‘predictions’ that choosing to form a union may lead the company to close the worksite, lose business and make cutbacks.  Employers are also free to make statements like “a union is a declaration of disloyalty to me personally and an affront to everything the company stands for.” 

Timely Implementation of the Voters’ Will:
A Binding System of Regular Elections & Fixed Terms of Office



Open-Ended Delays:  In union representation elections workers can face infinite delays in the implementation of election results.  Often times these lengthy delays are a result of employers taking full advantage of permissive election guidelines.  These guidelines not only allow the appeals process to drag on for years, but mandate that the workplace be governed as if employees voted against organizing for the duration of the appeals process.

Campaign Finance Regulation: 
Promoting a Competitive Environment & a Level Playing Field




Virtually no regulation of election spending:  In union representation elections, anti-union employers have access to resources that few unions can ever hope to match, such as on-the-clock meetings, the use of company property and equipment, and converting supervisors to anti-union campaign staff.  In addition, U.S. labor law provides no financial limitation and alarmingly little in the way of reporting requirements for expenditures during the course of a union recognition election.


Prof. Lafer in the Media

Op-ed: True democracy in the workplace
June 14, 2007 – TheHill.com

When most people hear about “union elections,” they assume they run the same way as elections for Congress or the president. Unfortunately, nothing could be further from the truth.

» Read the full article

Congressional Testimony: Secret Ballots In Name Only
February 2007 – House Subcommittee on Health, Education, and the Workforce

Interview: Report author Gordon Lafer on freedom of speech in the workplace
November 2006

» Listen to the interview

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About Our Organization

American Rights at Work is a nonprofit advocacy organization dedicated to promoting the freedom of workers to organize unions and bargain collectively with employers.


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