Freedom of association frustration

The frustration with our dysfunctional federal immigration policy that's driving local communities to pass housing ordinances that fine landlords who rent to unauthorized immigrants (for example, my posts here and here) is no different from the frustration driving labor unions, workers and other organizations to push for card-check union representation certification.

Although it's not well know, and not in the slightest made clear or in any manner promoted by the National Labor Relations Board (NLRB) (aka, the "Board"), under the National Labor Relations Act (NLRA) it is the public policy of the United States to encourage the practice and procedure of collective bargaining. The very first Section of the NLRA (Findings and Policies) states:

It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

Unfortunately, the system developed by the NLRB for American workers to secure union representation has today become so corrupt that it doesn't come anywhere close to fulfilling that policy--or living up to the most fundamental tenets of democracy.

The primary mechanism used by the NLRB for workers in the private sector to secure union representation under the NLRA (aka the Wagner Act, and which was also amended by the Taft- Hartley Act) is a secret ballot election administered by agents of the NLRB.

The way this NLRA/NLRB union representation process has historically worked, is that after securing signatures on authorization cards from a majority* of workers designating the union to serve as their collective bargaining agent, the union files a certification of representative petition with the NLRB and at the same time also turns over to them the signed authorization cards to support the petition as a showing of interest. The end goal of this process is for the Board to conduct a union representation secret ballot election among those workers for the purpose of certifying the union as the employees' collective bargaining agent. (*Although the NLRB technically only requires authorization cards be signed by 30% of the bargaining-unit workers to officially commence their election process, the actual practice used by the two major unions I worked for and the unions I knew of during my 30 years in the labor movement was petitioning the NLRB only after a majority of the workers signed up. Even though allowed to do so by NLRB rules, unions will almost never petition with less than 50% of the workers signing authorization cards for legal and practical considerations, including the knowledge that you probably would not prevail in a representation election that requires a majority vote with just a 30% showing of interest.)

The problem is that the NLRB secret ballot process has become so dysfunctional that it now serves as the major impediment to the intent and purpose of the law. Lots of folks are mighty upset and frustrated with a broken immigration policy and lots of folks are mighty upset and frustrated with this broken NLRA policy. That frustration is what's driving radical reform of both policies.

So, what are the problems with the NLRB policies and procedures? I'll write about that in my next post, but in short, ineffective enforcement and interminable delay top the list. (If you'd like to learn more now about this issue, I recommend this report (pdf file) by Dr. Gordon Lafer, an associate professor at the University of Oregon and/or Why the NLRB is Pretty Worthless by Nathan Newman.)