Are union-avoidance firms the final frontier of the labor movement?

BY SHAAN K. HATHIRAMANI AND AMANDA SHAPIRO

Armed with briefcases instead of bats, battling in boardrooms instead of factory back-lots, and enlisting the help of loophole-ridden labor laws instead of tear gas and truncheons, union-busters have created a multi-million dollar industry that seems to have had serious effects on the state of the union movement. These anti-union law firms and consulting agencies are increasingly enlisted by union-wary employers to keep labor from organizing—without violating labor laws. With astounding success rates in union avoidance and prevention, the aggressive anti-union campaigns may indeed throw the future of unionization into doubt.

The Bitter Fruits of Labor

The founding of the modern American labor movement can be traced back to 1955, when the American Federation of Labor merged with the Congress of Industrial Organizations. Fifty years later, the labor movement seems to have returned to its disparate origins. In the summer of 2005, five large subsidiary unions, led by the Service Employees International Union (SEIU), severed their ties with the AFL-CIO, forming the Change to Win Coalition.

This dramatic upheaval reflects one of the more salient problems facing the labor movement today: the steady decline in union density. According to the Current Population Survey (CPS), 24 percent of employed workers were union members in 1973. In 2004 however, the percentage had dropped by almost half, with total union membership at 12.5 percent. The decline has largely been attributed to the drop in union membership in the private sector. Whereas public sector union density has marginally increased over the years, private sector union density has tumbled from a 1973 level of 24.2 percent to 7.9 percent today.

Beware of the Union-Busting Serpent

According to new data on employer anti-union behavior released by American Rights at Work, an organization devoted to investigating workers’ rights violations, 82 percent of employers hire union busting consultants to fight organizing drives, and 91 percent of employers force employees to attend one-on-one anti-union meetings with supervisors. The report concludes that the decline of union density in the United States can be attributed to “employers’ systematic union busting,” rather than to decreased desire to unionize. This seems to suggest that the recent escalation of union avoidance law firms and consultants has had a direct impact on America ’s declining rates of union membership.

Richard Freeman, professor of economics at Harvard University and director of Labor Studies at the National Bureau of Economic Research, suggests that the recent surge in union busting activity is part of a larger trend that finds its roots in the 1920s.

“In the 1920s and ’30s, they could beat people up…In that sense, union busting today is much more civilized. What union busters do is make the process more efficient for employers and give them a chance to draw on a reserve of decades of union busting experience contained in these firms,” said Freeman in an interview with the HPR.

The “efficiency” Freeman alludes to can be traced to the time-tested techniques these firms utilize in aiding employers to subvert unionization. According to Freeman, “Oftentimes you will see union-busters sending people to hang out around the NLRB [National Labor Relations Board] offices to see when people file for a union. At that instant, they have the ability to pick up the phone and call an employer up, saying, ‘Did you know that your employees have filed for a union?’”

As Good as It Gets?

Yet while many are quick to acknowledge the clear impact union avoidance law firms have had in the past decade, it seems that blaming these firms for the state of the union movement ignores a larger problem. In an interview with the HPR, Elaine Bernard, Executive Director of the Labor and Worklife Program at the Harvard Law School , said, “Union busting law firms are merely sharp shooters in the larger artillery war against unionization being waged in our country today. If you look at American labor law, it is a series of barriers over which workers have to climb to get a union…With American labor law badly warped in favor of employers, it’s remarkable that anyone joins a union in the U.S. ”

Indeed, under U.S. Labor Law, employees may sue for wrongful termination only if they have suffered discrimination based on race, sex, or age. Termination for union activity does not entitle the fired employee to sue his employer. From this fact, Bernard argues that labor law enables employers more easily to fire union activists, especially since “legally, you can fire people for no reason.”

This flexibility of the law seems to permit employers and subsequently the union avoidance law firms they hire to push the boundaries of their efforts against unionization. Freeman remarked, “The means, methods, and materials [union avoidance law firms] use are probably legal, but low nonetheless…Their main goal seems to be making it clear to workers that [unionization] is going to be a war, a war like fighting with your spouse for three years.”

Inside the Firm

While union avoidance law firms reputedly push laws to their limits for employers’ sakes, in reality their efforts seem also to include instructing employers in the observance of worker rights. Howard Bloom, a partner of Jackson Lewis LLP, a national union avoidance law firm notorious among unions, told the HPR, “Union leaders would call what we do ‘union busting’—counseling employers to take illegal actions to prevent union representation. That’s not what we do at all. In reality, our job is to tell our clients to treat their employees well and to not go outside to treat their employees well.”

Interestingly, unlike the American Rights at Work report that attributed the decline in union density to “systematic union busting,” Bloom said that increased employer responsibility is likely at the root of the decline in union density, claiming that “the result is more employees don’t need union representation…I think there is some merit to that. Employers don’t feel the urgency for union-avoidance that they felt 15 years ago, largely because they don’t see any reason to beyond positive employee relations.”

The Battle of Cambridge

Yet a recent unionization effort in Cambridge , Massachusetts seems to suggest otherwise. At the Kendall Square Theater last May, a successful unionization campaign was led by the Union of Food and Commercial Workers (UFCW) despite efforts carried out by the theater’s employers and its hired union avoidance firm, Labor Relations Solutions. DJ Cronin, Organizer for the local UFCW chapter involved in the effort, related the failures of the union avoidance measures and the accompanying communal enthusiasm for the unionization effort. Cronin said, “We had stickers that said, ‘UFCW Vote Yes,’ and the customers of the theater were also wearing them…There was huge community support. The [LRS union avoidance consultants] were pretty weak. They came across as wise-asses during captive-audience meetings they held and probably got the sense early on that they were going to lose.”

The Future of Unionization

While the case of Kendall Square Theater seems to suggest that efforts to unionize are still strong, the facts indicate that unionization faces a difficult struggle with or without the presence of union avoidance firms. As Freeman noted, “While [union avoidance] firms may have been a significant factor in the decline of union density, if you were to take them out of the equation, companies would certainly have other ways of quelling unionization, perhaps enlisting the help of industry associations and other such organizations.”