Many employers seek to protect their employees’ right to a secret ballot election. To get around this, some unions pressure employers to sign neutrality agreements. Among other things, neutrality agreements usually contain a gag order that prohibits an employer from talking to employees about the union, as well as a requirement for the employer to hand over employees’ personal information to the union. An employer will generally sign a neutrality agreement to placate a union and avoid a vicious public relations smear campaign. The most important aspect of a neutrality agreement is a requirement for an employer to recognize a union via card check.
If an employer resists, unions often employ what is known as a “corporate campaign,” a sustained and wide-ranging assault on a company’s reputation that can border on blackmail and extortion. The U.S. Court of Appeals for the District of Columbia Circuit defined corporate campaigns as:
[A] wide and indefinite range of legal and potentially illegal tactics used by unions to exert pressure on an employer. These tactics may include, but are not limited to, litigation, political appeals, requests that regulatory agencies investigate and pursue employer violations of state or federal law, and negative publicity campaigns aimed at reducing the employer’s goodwill with employees, investors, or the general public.
In the words of a corporate campaigner, Ray Rogers, “A corporate campaign can best be viewed as a multidimensional campaign that attacks an adversary from every conceivable angle, creating relentless pressure on multiple individual and institutional targets.”
In 2011, the SEIU “Contract Campaign Manual” was revealed during the discovery process in a lawsuit. A catering company, Sodexo, had sued the union for racketeering and extortion during its corporate campaign against the company. The manual contains a chapter titled “Pressuring the Employer,” which recommends using corporate campaigns to “damage an employer’s public image and ties with community leaders and organizations” and to jeopardize “relationships between the employer and lenders, investors, stockholders, customers, clients, patients, tenants, politicians, or others on whom the employer depends for funds.” In some areas, the manual blatantly advises breaking the law, stating, “Union members sometimes must act in the tradition of Dr. Martin Luther King and Mohatma [sic] Gandhi and disobey laws which are used to enforce injustice against working people.”
David Bego, president and CEO of Executive Management Services, Inc., told the House Subcommittee on Health, Education, Labor and Pensions how the SEIU ravaged his company through a corporate campaign. Bego would not capitulate to the SEIU’s demands for a neutrality agreement, which included handing over his employees’ personal information and agreeing to a card check authorization of the union. According to Bego’s testimony, an SEIU organizer told him, “Mr. Bego, we enjoy conversation but embrace confrontation. If you do not execute this neutrality agreement, we will begin to target you, your employees and your customers.”
In 2016, a jury awarded Professional Janitorial Service of Houston $5.3 million dollars in damages as the result of a corporate campaign. The damages were awarded by a jury in response to a defamation suit filed by PJS against the SEIU for their aggressive corporate campaign which included:
[P]ublishing defamatory statements about PJS to its customers, tenants of buildings cleaned by PJS, and other third parties. The union published its statements about PJS on the union’s website and in flyers, handbills, letters, reports, emails, newsletters, and speeches. Most of the union’s statements accused PJS of violating wage-and-hour and other labor laws. The union’s admitted goal in publishing these accusations to PJS’s customers and others was to cause PJS to lose business to union contractors. According to PJS, it lost more than one dozen accounts due to the union’s publications.
There should be a natural limit on how much damage a union would want to do with a corporate campaign. After all, if the business suffers, eventually, so will its employees — whose best interest unions claim to represent. But some unions have demonstrated a willingness to go to the extreme with corporate campaigns against certain employers. Consider the words of Joe Crump, a former local secretary-treasurer for the United Food and Commercial Workers. Writing in the Labor Research Review, Crump bragged:
After a three-year [corporate campaign], the battle with Family Foods is over. Do we represent the employees? No. The company went out of business. The good news is that some of the stores were purchased by companies already under a Local 951 contract. A couple stores are empty, but I am sure that many of their former patrons are now shopping in unionized stores. Perhaps even more important is the message that has been sent to nonunion competitors: There is no “free lunch” in our jurisdiction.
Some unions would apparently rather see a company go out of business and be forced to lay off its employees than stay nonunion. The UFCW’s campaign against Family Foods is similar to one it waged in 2001 against the Arizona-based Basha’s supermarket chain. Basha’s executives blamed the UFCW for the company being forced to file Chapter 11 in 2009 and closing 10 stores.
The above examples describe the lengths to which unions will go to pressure employers to take away the secret ballot from employees. It is not the employees who seek card check certification, but the union. As former NLRB member Charles I. Cohen, a President Clinton appointee, told the U.S. Senate Subcommittee on Labor, Health and Human Services, and Educators, “[N]eutrality/card check agreements are almost always the product of external leverage by unions, rather than an internal groundswell from unrepresented employees.”
Banning the practice of corporate campaigns runs up against First Amendment protections. Absent libel, slander, extortion and blackmail, free speech should not be restricted. Rather than infringing on free speech, the key to ending the practice of corporate campaigns is to take away the primary goal of such campaigns: card check.