Electronic Union Elections: A Permanent “Temporary” Solution?

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Some lawmakers and their union allies want to use the COVID-19 crisis to institute a radical change to union elections allow them to be held electronically. In effect, unions are pushing for something akin to the “card check” system they pushed during the Obama administration—means to circumvent normal union elections in a way that would almost certainly benefit the organizers. Critics argue it would open the system to fraud and other shenanigans.

The proposal, the Secure and Fair Elections (SAFE) Workers Act, sponsored by Michigan Democrat Andy Levin and Pennsylvania Republican Brian Fitzpatrick, calls upon the National Labor Relations Board (NLRB) to create an electronic voting system in 60 days, or else start using the system used by the National Mediation Board (NMB). And if they can’t do that, either, allow mail ballots.

“The NLRB must guarantee that workers across the country can exercise their right to organize during the COVID-19 pandemic and that fair elections are held,” Fitzpatrick argued.

“The risk of hacking, fraud, and coercion is just one of the many reasons union elections are held in person, closely supervised by the NLRB,” Virginia Foxx of North Carolina, the top Republican on the House Education and Labor Committee, told Politico. Democrats, she said, were using the pandemic as an excuse to advance “long-desired political objectives” calling this “particularly disturbing.”

The vast majority of union elections are held at the employee’s workplace and overseen by NLRB officials. It is a simple, clear system that ensures that workers vote in the same place at the same time and there is little opportunity for either the union or management to mess with the system. However, not all union elections are conducted this way.

The main exception for the private sector is for elections overseen by the National Mediation Board. It is an agency similar to the NLRB that only covers the transportation industry. Why are there two labor law enforcement agencies? Because the Railway Labor Act (RLS), which the NMB enforces, was passed first in 1926. That was a decade before the National Labor Relations Act, which created the NLRB and covers all other private sector industries. Congress decided to let the RLA stand when it passed in NLRA a decade later.

The NMB, a considerably smaller agency, allows for electronic voting on the basis that members of pilot and stewardess unions don’t have a common workplace and are often spread out over large geographic areas. Whether that method works smoothly and could be easily translated to other industries is not clear.

Public sector elections are another matter because that is left up to the states, some of which allow mail-in ballots. This system can result in a tiny minority of workers deciding things for all the others if only a few bother to vote. That’s something that can easily happen if people mistake the letter with their ballot as junk mail. This allows unions to alert the people they know support union representation but not those who may not want it.

The proposal ignores that we will return to more normal work situation at some point in the future. Therefore, it doesn’t seem necessary to change the rules for all time now.  

The push is particularly suspect given that the same people pushed for card check a decade ago. That would have rewritten the NLRA to eliminate the ability of a businesses to call in a federal government overseer for union elections, instead forcing businesses to simply accept a union’s claim that it had majority support of workers.

Maybe if current conditions do persist for longer than we hope, the issue should be revisited, but let’s give it more time.​