Employer campaign tactics try to influence the four key determinants of individual voting decisions: job dissatisfaction, union instrumentality, general union attitudes, and collective social identity. At a minimum these tactics usually include providing pro-company and antiunion information and opinions to the employees. This is generally legal. Some companies are more aggressive and supplement this information with the manipulation of wages, benefits, working conditions, and job assignments as well as with threats, promises, rumors, layoffs, and firings. Antiunion committees might be formed, supervisors might be reassigned, and parties might be thrown. Many of these more aggressive activities can distort laboratory conditions and are therefore prohibited. These efforts might be led by full-time antiunion consultants.
Communicating with Employees
Information and opinions are shared with employees using a variety of methods. Supervisors might meet with employees individually or in small groups. Letters or e-mail messages might be sent to workers. The letters in Figure 6.4 are representative of common employer messages: The first letter tries to weaken workers’ perceptions of union instrumentality, and the second portrays unions more generally in negative terms. Strikes and paying dues are also frequent themes. Another important employer tactic for sharing information and opinions is the captive audience meeting —a group meeting held in the workplace during working hours in which employees are forced to listen to management’s antiunion and pro-company presentations (captive audience speeches). Such meetings are legal as long as they are not within 24 hours of the election. Captive audience meetings are hotly debated—employers justify them on the basis of property and free speech rights; unions criticize them as giving employers an unfair advantage in communicating with, and perhaps pressuring, the employees.
These forms of communication are acceptable unless the employer is too aggressive and makes threats or promises. Sometimes, however, there is a fine line between predictions or opinions on one hand and threats on the other. Suppose an employer tells employees that if a union increases labor costs too much, the plant will have to close. Is this an opinion, a prediction, or a threat? Or suppose an employer tells employees that similar facilities have closed after being organized by this same union. Is this a factual statement or an implied threat? It depends. Predictions based on objective facts that some events will likely occur because of forces beyond the employer’s control (like competitive forces) are acceptable; statements that convey the impression that these events are inevitable or at the discretion of the employer are prohibited threats. An acceptable conversation between a supervisor and an employee also becomes objectionable if it turns into an interrogation about the employee’s views of unionization. A visit to an employee’s home by a management official is grounds for invalidating an election—because the employer controls an employee’s job, visiting him or her at home is viewed as intimidating and coercive.
Employer Restrictions on Employees and Union Organizers
Another employer campaign tactic is to use no solicitation rules. The employer can use its private property rights to prohibit outside organizations from entering the workplace and interacting with workers. As long as these rules are equally enforced for all types of outside organizations, union organizers can be denied access to employees in the workplace, except in extreme circumstances when unions have no other access to employees (such as in remote mining camps). Union organizers can even be banned from shopping mall parking lots. Note carefully that this applies to outside union organizers, not the employer’s employees.
Employees can discuss unionization in the workplace, but such conversations can be restricted to nonwork hours, and if they interfere with production or customers, to nonwork locations such as an employee cafeteria. As such, some unions, especially in the construction industry, have tried a tactic called salting in which paid union organizers try to get hired as regular employees (and therefore “salt” or enrich the workplace) for the purpose of organizing the workers. In a controversial ruling, the Supreme Court has decided that salts are employees under the NLRA and therefore protected against discrimination in hiring and firing. But to be protected, a salt must also have a genuine interest in working for the employer.
Restrictions on both employees and nonemployee union organizers must be equally enforced. Consider an organization that allows its employees to sell Girl Scout cookies in working areas but restricts employee discussions of unions to nonwork areas, or allows Boy Scouts into the workplace to sell holiday wreaths but prohibits union organizers from the premises. Isolated charitable acts will be overlooked. But if employees are allowed to repeatedly sell Girl Scout cookies to other workers during work time, such activities are likely not disruptive. To then restrict discussions of unionization by claiming that they are disruptive is disingenuous and amounts to discriminating against union activity. For the same reason, discriminatory enforcement of no solicitation rules is objectionable interference with employee rights to organize unions.
Currently the sharpest debates are over company policies that restrict employees’ use of company e-mail systems. It is well established in labor law that employees do not have a statutory right to use their employer’s equipment for union organizing or other Section 7 rights, whether it be bulletin boards, telephones, copiers, or e-mail systems. As with other restrictions, company policies on e-mail usage cannot be discriminatory; but in a controversial 2007 decision, the Bush-appointed NLRB ruled that employers can distinguish between various types of e-mail solicitations. Under this ruling employers are not viewed as discriminatory if they allow charitable and personal e-mail solicitations but not solicitations for noncharitable organizations, such as labor unions, as long as the policy is not motivated by antiunion reasons. Allowing antiunion e-mail messages while banning pro-union messages is discriminatory and is therefore prohibited by the NLRA. Allowing employees to send messages asking people to join a local club but not allowing messages soliciting coworkers to join a union is also discriminatory. But allowing employees to use e-mail to invite coworkers to a birthday party or to sell Girl Scout cookies while prohibiting solicitations to support a union is not discriminatory under this ruling. This controversial ruling is likely to be revisited by the Obama-appointed NLRB. Moreover, some argue that because of the sheer importance of e-mail for daily communication, employees should be allowed to use e-mail for union-related activities unless a company can show a valid business reason for restricting it.
Union Avoidance Consultants
The use of outside union avoidance consultants and lawyers is a prominent component of employers’ campaigns. Consultants can help managers take advantage of tactics such as captive audience meetings and train supervisors in union avoidance methods. Unions, however, view union avoidance consultants as another element of a deck stacked in favor of employers who can hold captive audience meetings, ban union organizers from the workplace, restrict employee use of e-mail, and hire expensive consultants to lead sophisticated communications and public relations campaigns. Moreover, at least some union avoidance consultants aggressively seek to break unions by resorting to almost any means necessary—a less publicly visible descendant of the aggressive strikebreaking agencies like the Pinkertons in the 19th century. This is labor relations at its worst: lies, threats, promises, manipulation, harassment, espionage, abuse, and firings. In one extreme case in South Carolina in 1999, a 17-year employee with no record of violence challenged his plant manager to let the employees talk with a union organizer. The following day the employer notified the local sheriff that this employee was threatening workers, so the sheriff’s deputies surrounded him at gunpoint on his way to work and forcibly took him to the local hospital. Based on what the employer told the sheriff, the employee was involuntarily committed to a mental hospital. He was held for two weeks against his will and forcibly injected with antipsychotic drugs until a lawyer could obtain his release.
With the help of attorneys and consultants, another employer tactic is delay. By challenging the proposed bargaining unit definition in an election petition, an employer can slow down the election time line and delay the election date for a couple of months or more. The 1975 unit determination case for Harvard University clerical and technical workers was stretched out by the university’s lawyers to include more than 20 days of hearings; and in a similar case at Yale University, the university’s lawyers submitted a witness list of over 300 individuals. Why is delay a significant tactic in the employer’s favor? The employer gains more time to campaign against the union; employee turnover may result in the loss of union supporters; perceptions of union instrumentality might be weakened as the union appears helpless to counter the employer’s legal maneuverings; and critical union momentum is lost.
The Controversies over Employer Campaign Tactics
Employer campaigning during NLRB representation elections is a controversial topic in U.S. labor relations. Some argue that union representation is a question solely for workers, and employers should not be granted rights as formal participants in the process—free speech should be allowed, but not the right to object to the definition of the unit, to use special campaign tactics like captive audience speeches, and to challenge the results. The usual counterarguments are that the employers’ property rights give them the right to participate in the process, that unions are too powerful without a fair counterweight of employer campaigning, and that employers need to speak for the antiunion employees and deliver their message.
More pragmatically, there is also significant debate over the practical questions of the prevalence and significance of employer campaigning. Some campaign tactics are hard to observe or measure (such as informal supervisor conversations with employees), and most are undertaken quietly (especially the illegal ones). Using NLRB data on illegal discharge unfair labor practices, it has been estimated that workers were illegally fired in 25 percent of representation election campaigns during the 2000s and that there is nearly a 2 percent chance that any pro-union worker involved in an organizing drive will be illegally fired. If union activists represent 10 percent of pro-union workers, this means that there is a 20 percent chance that union activists will be fired. Moreover, employees perceive the chances of retribution for organizing activity to be high: In one survey 41 percent of nonunion respondents agreed that “it is likely I will lose my job if I try to form a union,” and 79 percent of all respondents said it is “very” or “somewhat” likely that “nonunion workers will get fired if they try to organize a union.”
More generally, research seems to reveal a pattern of broad-based employer campaigning during NLRB representation elections. This research often relies on the reports of union organizers, so it might overstate (if organizers or their inside sources intentionally or unintentionally inflate the amount of employer resistance) or understate (if organizers do not observe all the campaigning) the true level of employer campaigning. With this in mind, Table 6.2 presents some typical statistics. Note that a large fraction of employers reportedly use outside consultants, one-on-one meetings between workers and supervisors, and multiple captive audience meetings.
But do these tactics matter? This is the most debated question. Relative to their peers in other industrialized countries, American managers appear to be exceptionally hostile toward unions and have significantly stronger traditions of using union avoidance tactics. Various studies find that employer antiunion campaign tactics reduce the likelihood that employees will vote for unions in NLRB representation elections and that unions are less likely to win these elections. In contrast, a famous study in the 1970s found that most workers already had their minds made up before employer campaigning began and therefore that employer tactics do not matter. On the other hand, a reanalysis of this study’s data revealed that because many elections are decided by thin margins, captive audience meetings as well as objectionable threats and actions toward union supporters can affect enough votes to shift the outcome of the election. Yet another study found that employer unfair labor practices did not reduce the probability of unions winning an election, but they did reduce overall union success rates by decreasing the likelihood that a petition filing would result in an election being held. And the debate continues.
In sum, by many accounts employers devote a lot of time and money to campaigning against unions in NLRB representation elections. Some campaign tactics are legal, though still criticized by labor supporters; other tactics are illegal, and union busting can be “a very dirty business.” Given the resources spent on campaigning, managers must perceive them as effective in reducing the likelihood that a union organizing drive will be successful. Moreover, the evidence points toward the presence of significant incentives to avoid unions at all costs. One-third of nonunion managers believe that their careers will be harmed if their employees unionize. And they are probably right: In one study, managers in establishments without any union organizing activity had a 21 percent chance of being promoted and a 2 percent chance of being fired; in similar establishments that experienced an organizing drive, not a single manager was promoted and 15 percent were fired.
Ethics in Action A Union Avoidance Consultant Tells
All but into the bedroom if necessary. The buster is not only a terrorist; he is also a spy. My team and I routinely pried into workers’ police records, personnel files, credit histories, medical records, and family lives in search of a weakness that we could use to discredit union activists.
Once in a while, a worker is impeccable. So some consultants resort to lies. To fell the sturdiest union supporters in the 1970s, I frequently launched rumors that the targeted worker was gay or was cheating on his wife. . . . If even the nasty stories failed to muzzle an effective union proponent, the busters might get the worker fired. . . .
Not only were working people crushed by the cruelty of the union busters, but the companies themselves were raped, as consultants and attorneys conspired to wring as much as they could out of their clients. The executives paid whatever they were asked, the consultants having convinced them that a union organizing effort amounted to the worst crisis of their business lives. In the end I understood that a union busting campaign left a company financially devastated and hopelessly divided and almost invariably created an even more intolerable work environment than before. . . .
1. Show how the type of union busting described here is unethical in all six ethical theories.
2. Given that this type of union busting is unethical in all six perspectives, why do some managers hire such consultants? Why do some people become union busting consultants? Is it simply because some people are unethical, or are there more complex reasons?
Marty Levitt spent more than 20 years as a union avoidance consultant, aggressively directing campaigns to prevent unions from winning representation elections. Then he had a change of heart and publicly revealed his past activities, offering a glimpse into the big business of labor relations consulting. Here are some of his revelations:
There are many forms of union busting. Some labor consultants and attorneys take on unions that already represent a workforce, squeezing negotiators At the Bargaining Table, forcing workers out on strike, harassing union officers. My career took another path. I refined the specialty . . . called “counterorganizing drives,” battling nonunion employees as they struggled to win union representation. The enemy was the collective spirit. I got hold of that spirit while it was still a seedling; I poisoned it, choked it, bludgeoned it if I had to, anything to be sure that it would never blossom into a united workforce, the dreaded foe of any corporate tyrant.
For my campaigns I identified two key targets: the rank-and-file workers and their immediate supervisors. The supervisors served as my front line. I took them hostage on the first day and sent them to anti-union boot camp. I knew that people who didn’t feel threatened wouldn’t fight. So through hours of seminars, rallies, and one-on-one encounters, I taught the supervisors to despise and fear the union. I persuaded them that a union organizing drive was a personal attack on them, a referendum on their leadership skills, and an attempt to humiliate them. I was friendly, even jovial at times, but always unforgiving as I compelled each supervisor to feel he was somehow to blame for the union push and consequently obliged to defeat it. . . .
Although I took on the supervisors face-to-face, my war on union activists was covert. To stop a union proponent—a “pusher,” in the antiunion lexicon—the buster will go anywhere, not just to the lunchroom,
Labor Relations Application The Case against Employer Campaigning
The major counterargument [to proposals to limit employer campaigning] made by employers— especially the majority who do not engage in this most egregious breaking of labor law tradition—is that they are denied what should be their equal right to campaign for the allegiance of employee voters. This is said to be the equivalent of a political election that allows the Democratic party, but not the Republicans, to campaign effectively for voter support in political elections.
The fallacy in that analogy and argument is that it mistakenly assumes that an affirmative vote for the union . . . means that the union is now governing employers (or even employees). All that a successful employee verdict does is give the union the mandate to represent employees in negotiations with the employer under labor law. Under Employment Law, we would never dream of suggesting that the employer should have an affirmative right and opportunity to campaign against the employee’s decision about whether to hire a law firm (and if so, which one) when challenging employer policies regarding occupational safety or sexual harassment, for example. . . .
The more apt political analog of the role of the employer in a representation election is the role of a foreign government in an American election. Canada, for example, has a significant interest in which party is elected to govern the United States; selection of one party rather than the other may make life considerably easier or more difficult for the Canadian government in negotiations over defense, trade, natural resources, energy, foreign investment, and so on. Yet no one would argue that Canadian government agencies should therefore have a right to participate in an American election campaign in order to try to persuade United States citizens to vote for a party that would be favorable to Canadian interests. After all, it is the job of the United States government to advance the interests of its own citizens when those interests conflict with the interests of Canadians; Canadians have their own government to defend their interests irrespective of the electoral verdict in the United States. . . .
The law should not restrain the employer’s freedom to say what it will about collective bargaining—censorship in the representation campaign has the same offensive flavor that it has in politics or in the arts—but there is no principle of fairness that requires that the representation process be structured to facilitate employer opposition to unionization.