There is one area of voting rights where many Democrats don’t seem to want every voice to be heard: union elections. Democratic lawmakers have accepted union leaders’ position that only pro-union workers need to have their votes counted.
In late January, 14 Democratic lawmakers called on regulators to exclude workers from elections if they are likely to vote against collective bargaining. Specifically, Democrats including House Education and Labor Chairman Bobby Scott of Virginia and Rep. Pramila Jayapal of Washington signed an amicus brief on a case before the National Labor Relations Board (NLRB), the federal agency that oversees workplace elections, asking the NLRB to restore a standard established in a 2011 case, Specialty Hardware, that effectively let unions determine which workers could vote in union representation elections.
Ordinarily, the NLRB will call for an election when a union claims majority support by the workers. The union will then tell the board which workers should be in the “voting unit.” Specialty Hardware gave the union leeway to narrow the unit and exclude certain sections of the workplace, effectively allowing it to cherry-pick the group the union thought gave it the best chance of winning. Employers could request the NLRB to extend voting to workers that the union did not include, with the board having the final say. Under Specialty Hardware, those additional workers had to have an “overwhelming” number of similarities to the others to be included.
The board loosened that standard in a 2017 case called PCC Structurals, in which it held that additional workers could vote if they merely shared a “community of interest” with the ones the union favored. In a 2019 case known as Boeing, the board clarified that workers would be included if their similarities to the other workers “outweighed” the differences.
This disturbed Scott, Jayapal, and other Democrats, who state in their letter:
[T]he Board’s decision in Boeing to include additional employees at the employer’s request, on the basis of … similarities with the petitioned-for unit members ignores that Congress assigned “the utmost importance” to employees’ freedom of choice and fails to consider whether the excluded employees have any interest in organizing.
In other words, they suggest that unions should able be to exclude workers from unionization votes on the basis that they may not vote for the union. At the same time, some Democratic lawmakers accuse companies of “gerrymandering” workplace elections by adding voters.
If Scott, Jayapal, and some of their colleagues seem blind to the irony here, it is because many unions and their Democratic allies refuse to acknowledge that some workers may not want to belong to a union. They argue that if a union loses a workplace election, that alone proves that the result was fraudulent.
“It should be no surprise, then, that more workers want to join unions,” said Secretary of Labor Marty Walsh in a recent blog post. The main reason why they weren’t doing that, he argued, was because companies were “actively working to keep them from forming unions.”
The Retail, Wholesale, and Department Store Union and others throughout the labor movement claimed last year that Amazon interfered with, and therefore tainted, an election at a facility in Bessemer, Alabama. The union got the NLRB to agree, invalidating the vote and ordering a new one. Sen. Bernie Sanders (I-VT) applauded the news, claiming that “It also appears that some of Amazon’s anti-union efforts may have been in violation of NLRB law.”
What did Amazon do? It got the U.S. Post Office to place a mailbox near the facility. The election was held by mail-in ballot due to the COVID-19 pandemic. Before the mailbox appeared, the mail-in arrangement was a lucky break for the union because it only needs to win a majority of the votes cast, not a majority of all workers. Pro-union workers are more motivated to mail in their ballots than those who don’t care for unions, so a lower turnout favors the union. But the mailbox likely ensured a higher turnout.
The NLRB, now led by Democratic appointees, sided with the union. It said that the mailbox “destroy[ed] trust in the Board’s processes and in the credibility of the election results.” Never mind that throwing out results of an election and ordering a new one when there were no allegations of fraud does far more to erode the board’s credibility. The NLRB went so far as to say that trying to increase turnout was itself wrong. “Strikingly absent from the Employer’s recitation of Board law is precedent establishing that the Board allows, permits, authorizes, or otherwise condones either party taking unilateral action to increase voter turnout,” the NLRB said.
The NLRB’s objection in the Bessemer case seems particularly nonsensical given that the vote wasn’t at all close. The Amazon worksite had 5,876 workers eligible to vote, but only 3,041 mailed in their ballots, according to the NLRB. Therefore, the union only needed the support of 1,521 workers, about a quarter of all eligible workers, to win under NLRB rules. Only 738, about 13 percent, voted for the union. A loss that lopsided ought to make it clear the workers weren’t buying what the union was selling, yet Jayapal and others refused to acknowledge that this was the workers’ choice. Like President Trump, she discounted the possibility that the actual voters might have had other ideas.
The workers themselves told a different story. “I work hard for my money, and I don’t want any of it going to a union that maybe can get us more pay, or maybe can get us longer breaks,” Melissa Charlton Myers, an Amazon worker, toldThe Wall Street Journal after the vote. “It’s not worth the risk.” Meanwhile, the facility has grown to 6,143 people and had heavy turnover from last year, so only about half of the current workers were around for the last vote. Yet a second vote is currently underway.
At least in these cases, the workers get a vote. During the Obama administration, unions attempted to effectively get rid of workplace elections altogether through the deceptively named Employee Free Choice Act. Under this legislation, introduced in several Congresses, a union would become certified as workers’ exclusive bargaining representative once it obtained cards signed by more than half of a business’ workers—hence the legislation’s nickname, “card check.” The bill would have eliminated the ability of management to request an NLRB-monitored election to verify the unions’ claim of support.
If the union’s claim of support was accurate, then the election would be a mere formality. If not, it gives workers a means of being heard. Eliminating the election, therefore, is an open invitation to fraud. Cases of unions obtaining cards through false claims, coercion, and forgery already exist under the current system. Without an election to verify the union’s claim, workers could find themselves in a union they never had interest in joining. Yet Democrats from President Obama on down tried to change the law to do just that—in the name of “workers’ rights.”
Underlying all these efforts is the idea that if workers were just pushed into joining unions, they’d quickly learn to like them and be happier. This top-down approach has seen the labor movement decline from the 20 percent of the workforce it represented in the 1980s to just 10 percent today. If the labor movement is going to revive, workers from the ground up will have to starting see unions as a viable option for them. Making it their own choice would be a step in that direction.