You can’t have free elections if a candidate is not allowed to campaign freely and his supporters aren’t allowed to campaign without fear of intimidation.

Those were the wise words of President Bush, commenting on the recent sham election in Zimbabwe.  Yet here at home, Bush finds the National Labor Relations Board election process to be fair and democratic, despite the fact that it bears no resemblance to what we would consider fair elections. Workers have little freedom to campaign for a union in the workplace, and employer intimidation is pervasive.

An NLRB administrative law judge recently ruled that a fair election could still occur where an employer had illegally intimidated its workers out of organizing.  In 2006, a small group of car dealership employees in San Jose, CA, lost the benefits of union representation when their company changed ownership.  The new company forced them to withdraw their union membership in order to continue working there, and committed numerous illegal tactics to prevent the workers from forming a union.

Among them:

• bribing workers with wage increases
• interrogating workers about their union activity 
• threatening to shut down the operation if workers organized, saying that “heads would roll”

The judge found the company guilty of the above tactics, and ordered it to post a notice to employees assuring them that it will not break the law.  The judge held that this remedy would sufficiently erase the impact of the illegal acts on a future election, and refused to issue a Gissel order for the company to bargain with the employees’ union, even though a majority of them signed union cards before the company began fighting the effort.  He cited a terrible decision by the Bush Board that ruled a fair election was possible despite the hostile environment created by the employer’s unlawful intimidation. 

So employees are expected to forget about all the illegal and intimidating tactics used by their employer and assume that there won’t be reprisals if they vote for a union?  Even in a workplace so small that their employer would likely know which way they voted?  If only President Bush and the NLRB applied his international standard of democracy to workplaces in this country.

In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the Supreme Court held that the NLRB could order an employer to bargain without a certification election if the employer’s unfair labor practices were so egregious as to render a fair election (or rerun election) impossible, and if it could demonstrate that a majority of employees were at some point in favor of union representation.  The NLRB currently uses signed authorization cards as evidence of majority support.