Organized labor is making ever-greater use of corporate campaigns, mounting a new kind of attack on corporations in order to achieve its organizing objectives. Employing political, economic and legal pressure tactics built around the media, union corporate campaigns are well-planned, deliberate assaults on a corporation’s reputation and its business as a means of extorting the end sought by the corporate campaigner. Jarol Manheim’s seminal book describing the history of the approach is called The Death of a Thousand Cuts, and that couldn’t be more accurate.
The typical goals of such campaigns are an employer’s agreements to remain neutral in face of union organizing, to forgo an election conducted by the National Labor Relations Board and to "voluntarily" recognize a labor organization based only on the union’s evidence that the majority of employees support it. Whatever the goal, through the use of such disruptive and damaging tactics, unions say to employers, "Do what we want, or we will dismantle your business." Like Don Corleone, they make an offer that many employers simply cannot refuse.
Most companies answer these attacks with nonlegal responses, opting for a defensive, reactionary approach in the form of a countercampaign. In the countercampaign, the company focuses on presenting its own side of the story in the best possible light and discrediting the union’s efforts.
Countercampaigns, however, are extremely burdensome. They require constant attention, careful thought, a coherent message and a consistent and coordinated presentation of that message to the interested public in a timely and effective manner. They do nothing to add to the company’s bottom line. To the contrary, they are expensive and time-consuming, for they require the retention of outside consultants and divert valuable management time and attention away from the running of a business to the waging of a political war.
Countercampaigns are rarely effective. Union accusations of wide-ranging employer malfeasance have first-strike advantage and are typically more sensational and newsworthy and, thus, more memorable than an employer’s rebuttal. An employer’s response is commonly perceived as defensive rhetoric, and it often goes ignored and has little neutralizing impact.
Even assuming its persuasiveness, an employer’s nonlegal defensive response almost never ends the contest. It is mere counterpunching that, at best, mitigates the corporate campaign’s damaging effects without concluding the struggle. The campaign does not end until the parties reach an acceptable accommodation or run out of time and money to engage in battle.
In short, a typical countercampaign is not a good answer to a union’s corporate campaign. Instead, it is an invitation to a media-focused form of trench warfare that an employer rarely wins. Despite its shortcomings, the countercampaign, eventually followed by capitulation, remains the only response that most companies have elected to employ when a union has made an offer that the employer could not refuse.
Whether it is due to concerns over the negative PR associated with suits against unions, timid advice of counsel or a simple reluctance to sue, few employers have answered corporate campaigns with litigation. Yet potential civil claims against corporate campaigners abound. To name but a few and depending on the particular campaign, they may include tortious interference with contract and prospective advantage, defamation, securities fraud and RICO claims. Until such legal counterattacks are mounted and begin to succeed, unions will continue to pursue extortionate corporate campaigns.
Although businesses are the primary targets of such campaigns, they are not the only victims of this new union tactic. Often, the other victims are the employees who are most ultimately affected by a campaign. Corporate campaigns occur outside the time-honored mechanisms of the National Labor Relations Act and often employ extortionate union organizing tactics. Indeed, considerable question exists as to the lawfulness of these dubious tactics. The NLRB and its general counsel are only just beginning to scrutinize corporate campaign techniques for the purpose of determining their legal effect and whether they violate the NLRA.
For example, in pending cases involving Dana Corp. and Metaldyne Corp., the NLRB will determine whether an employer’s recognition of a union obtained as a result of a coercive campaign bars the employees from questioning the union’s representative status. The facts presented by these cases are fairly typical.
The employers entered into "partnership agreements" with the United Auto Workers to stop the union’s corporate campaigns. These agreements, which were never disclosed to employees, included the companies’ pledges to remain neutral in the face of organizing and to accept the results of card checks. Thereafter, union representatives arrived at the employers’ facilities and pressured employees to sign union authorization cards. When these pressure tactics succeeded and a majority of the workers apparently signed cards, the union demanded recognition and, pursuant to the partnership agreements, the companies "voluntarily" recognized the unions as the employees’ bargaining representative.
Shortly thereafter, employees at each company petitioned the NLRB to decertify the union as their representative. However, the board’s regional office dismissed the petition based on the NLRB’s voluntary recognition rule. Under this rule, employees are barred from raising questions concerning union representation for a reasonable period, generally one year, following an employer’s initial recognition of a union so that the parties have a reasonable opportunity to negotiate a collective bargaining agreement. The employees appealed that dismissal, arguing that that the concept of "recognition bar" is unfair, undemocratic, frustrates employee statutory rights and elevates the interests of employers and labor organizations to make peace over the desires of workers to freely determine whether they want a union. The petitioners urge the board to abolish the voluntary recognition bar, or, alternatively, to create a window of at least 45 days within which employees could file for decertification following the announcement of voluntary recognition. A decision in these very important cases is expected this year.
Whatever the outcome, the Dana and Metaldyne cases demonstrate that employees are important stakeholders in corporate campaigns and that the new tactic disregards their legitimate interests and legal rights. By law, union recognition and bargaining rights must be based on employee free choice and majority rule. Most labor corporate campaigns are waged to circumvent traditional election processes, to muzzle management and to deny employees the secret ballot election guaranteed them by the National Labor Relations Act. Without the election process and the NLRB’s protective oversight, employees are the indirect victims of the new union strong-arm tactics. They are denied the vigorous debate that ensues in an NLRB election, restricted from hearing arguments against union representation and deprived of information they need in order to make an informed choice on that issue.
The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.
Workforce Management, April 2005, p. 12-13 -- Subscribe Now!