American companies have been very successful at preventing their workers from organizing into unions in recent decades, one of the reasons unionization in the private sector is at a record low. A major reason for unions’ declining power in the private sector is the ability of large companies such as Amazon, Starbucks and Target to prevent unionization drives and protract contract negotiations with few consequences.
They who do the dirty work
A handful of little-known law and consulting firms do much of the dirty work that keeps companies and other organizations union-free. IKEA, for example, turned to Ogletree Deakins, one of the largest law firms that specialize in so-called union avoidance activities, to help it crush unionization efforts in Stoughton, Massachusetts, in 2016. Google hired IRI Consultants, a firm known for its anti-union activities, for advice on how to deal with growing worker unrest. And last year, two liberal-leaning organizations – the Scholars Strategy Network and ACLU Kansas – recruited the services of Ogletree when their employees tried to form unions.
According to a Cornell labor expert, about 75% of all U.S. employers have engaged the services of a consultant or law firm to stymie efforts by workers to organize – and are spending an estimated US$340 million a year to do so.
Three of the biggest law firms that do this work are Littler Mendelson, Ogletree and Jackson Lewis, which have grown from regional operations into global union avoidance behemoths. Consultants such as IRI and the Labor Relations Institute have also developed a reputation for union avoidance expertise in recent decades. IRI even used to offer a “money-back guarantee” if its efforts weren’t succesful.
Monitoring unrest in the workplace
One major reason companies hire these firms is to conduct union vulnerability audits, intended to analyze a workforce to see which departments, locations or demographic groups are most likely to organize.
Anti-union monitoring software can help management squash organizing before it starts, while heat maps that collect data from a wide variety of sources reveal granular detail about where the biggest risks are. Amazon used heat maps to show which of its Whole Foods grocery stories and distribution warehouses were most at risk of unionization.
The anti-union firms advise companies to treat unions like a “virus” and to “inoculate” employees with messaging about the purported consequences of organizing early and often.
These firms supply companies with anti-union materials, which can be anything from managerial training and websites targeting employees to “vote no” buttons and anti-union billboards – strategically located on the way to work. During a recent unionization attempt at a center in Bessemer, Alabama, for example, Amazon inundated workers with anti-union signs throughout the workplace, including in bathroom stalls, and used workers’ contact information to send multiple anti-union text messages per day.
Companies also engage in scare tactics regarding union dues. Anti-union consulting firms retained by large companies will insist that unions simply take money and offer nothing in return. One 2016 video by the Labor Relations Institute, Inc, an anti-labor consulting firm, argued that unions sent out “high-pressure salespeople” to sell a “bill of goods” because declining membership meant unions were “in danger of going out of business”. In 2019, Delta Airlines put up posters advising employees that buying a video game console would be a better way to spend money than on union dues.
Another technique is what union avoidance consultants call direct explainer activity, such as conducting mandatory anti-union staff meetings. Both Starbucks and Amazon held “captive audience meetings” disguised as union information sessions to persuade workers not to organize.
Law firms generally avoid engaging in activities that involve direct contact with employees because, technically, it must be disclosed under the Labor-Management Reporting and Disclosure Act of 1959. This has created an opening for other types of consultants to specialize in this kind of persuasion. Weak enforcement means that reporting is patchy, even among consultants who talk to employees.
As the pandemic and concerns of benefits and safety has prompted more workers to try to organize, firms have continued to conduct these meetings. HCA Healthcare reportedly hired consultants to run meetings at a hospital in Asheville, North Carolina, as part of its campaign to prevent 1,600 nurses from forming a union.
Using these and other tactics, consultants claim overwhelming success rates in preventing unionization, often 95% or higher. While it’s impossible to empirically verify these claims, most labor relations researchers believe they are highly effective.
It is easy for companies to engage in illegal intimidation with little recourse. Though it is against the law for companies to threaten workers’ jobs if they unionize, it is legal for companies to “predict” that a workplace will close should a workforce unionize, which is obviously not a real distinction.
Penalties for companies wrongfully terminating pro-union employees are just pathetic. A company might be forced to provide backpay, but that on its own is a pretty small price for them to pay if it helps them crush a union.
Which is why US employers are charged with violating federal law in over 41% of union election campaigns, because why wouldn’t they?. Even when the charges are proven, the consequences are laughable.