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Workers Denied Access to Critical Information Before Election
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Written by Erin Johansson   
February 16, 2005

NLRB Further Undermines Integrity of Union Representation Elections

The U.S. electoral system is held up around the world as a model of democracy.  Strong principles guide free and fair elections in order to protect the rights of voters and the integrity of the system.  One such principle is that candidates and campaigns have equal access to voters, which is granted primarily through the public distribution of voter rolls.

Yet union representation elections do not measure up to these democratic standards.  For instance, in the campaigns leading up to elections where workers vote for or against union representation, union organizers aren’t allowed into workplaces, and therefore lack the same access to employees that employers maintain.  The law does require employers to provide organizers with voter rolls so they at least have the chance to communicate with employees outside of work.  So what happens when an employer breaks this law?  In one of its latest rulings, the National Labor Relations Board has decided that this employer abuse of the election process was not severe enough to overturn the results.

On November 26, 1997, the National Labor Relations Board (NLRB) scheduled a union election for roughly 300 production and maintenance employees of Washington Fruit and Produce in Yakima, WA.  The company then submitted an ‘Excelsior list‘ of the names and addresses of its employees to the International Brotherhood of Teamsters.  However, the company’s list had incorrect addresses for 87 employees, and the Teamsters were never able to locate correct addresses for 28 of those employees before election day.

On January 8, 1998, employees voted 161 to 121 against union representation, with eight additional challenged ballots.  Subsequently, the Teamsters filed objections to the employer’s anti-union conduct with the NLRB.  An Administrative Law Judge (ALJ) found that Washington Fruit and Produce violated the law on many counts, and overturned the election results on the basis of the insufficient list.  The ALJ ruled that the outcome of the election could have been reversed if the employer had provided correct addresses, allowing the Teamsters the chance to have face-to-face access to the 28 employees.  The company appealed the ruling to the Board.

Delay at the NLRB

In 2004, the NLRB’s goal was to reduce the number of unfair labor practice cases pending over 18 months by 100%.  In actuality, they only reduced the number by 38%.3

On December 16, 2004, nearly seven years after the workers’ vote, the majority of the Board ruled against overturning the election results—despite the list inaccuracies, and despite upholding the Judge’s findings of unfair labor practices by the employer.1  The Board asserted that because the Teamsters had the ability to communicate with at least 90 percent of the employees before the election, there was no reason to overturn the results.     

The dissenting member of the Board objected to the majority’s ruling, asserting that the employer’s failure to provide that information “interfered with the purpose behind the [sic] rule of ensuring that all employees are fully informed about the arguments concerning representation.”  Indeed, during the months leading up to the election, Washington Fruit and Produce waged a strong anti-union campaign and paid four ‘union-avoidance’ consultants to run the campaign (one earned nearly $200 an hour).  The company illegally threatened employees with the loss of their jobs if they voted for the union and told employees that by wearing pro-union apparel they were “cutting their own throats.”2  Yet while employees were getting this heavy-handed message from their employer at work, they could only receive communication from the Teamsters outside of work. 

The Board’s acceptance of an inadequate list of workers further tips the playing field in favor of employers.  Voters in U.S. political elections would never accept a system where one candidate controlled the voter rolls and provided another candidate with inaccurate information.  So why is this low standard of fairness accepted by the agency charged with protecting a worker’s freedom to choose a union?


What’s an Excelsior list?

In the 1966 case, Excelsior Underwear, members of the National Labor Relations Board considered whether "a fair and free election [can] be held when the union involved lacks the names and addresses of employees eligible to vote in that election, and the employer refuses to accede to the union’s request…"4  The Board ruled that in order for a union to communicate arguments in favor of representation to employees, an employer must provide the union with a list of employee names and addresses within seven days after the NLRB has scheduled an election.  But while the Board provided unions with some means of reaching employees, it failed to uphold a standard of fairness where both the employer and the union have an equal opportunity to address voters.5


 Endnotes

1. Decision and Order of the National Labor Relations Board.  Washington Fruit and Produce Company and International Brotherhood of Teamsters, AFL-CIO.  Cases 19-CA-25404, -25424, -25441, -25533, -25598, -25659, -25673, -25685, -25689, -25702, -25735, and 19-RC-13536, decided December 16, 2004.
2. Ibid.
3. Performance and Accountability Report of the National Labor Relations Board, FY 2004. 
4. Excelsior Underwear, Inc., 156 NLRB 1236 (1966).
5. Lafer, Gordon. “Democracy at Work: Measuring Union Election Procedures Against American Democratic Standards.” Forthcoming publication by American Rights at Work.

 
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