By R. Pepper Crutcher, Jr.
On March 10, 2000, the Federalist Society gathered academics, labor
activists, corporate communications consultants, and management
lawyers to explore the causes and effects of the "corporate
campaigns" recently mounted by labor unions against corporate
employers and others who are perceived to have the ability to influence
the labor policies of those employers. The subject was divided into
two panel discussions. Panel One, "The Core Elements of the
Union-Backed Corporate Campaign, Litigation and Regulatory Strategies,"
was moderated by John Irving of Kirland & Ellis, former member
of the National Labor Relations Board (current Chair of the Federalist
Societys Labor and Employment Law Practice Group). Panelists
were fellow Board alumnus Clifford "Dick" Oviatt, of McGuire
Woods Battle & Booth, Harvard University Economics Professor
Richard Freeman, Caterpillar counsel Chris Gangemi, and Teamsters
corporate campaign director Bart Naylor. Panel Two, "New Strategies
of Organized Labor and the Plaintiffs Bar to Influence Target
Companies Decision-Making," moderated by Chris Johns,
featured dueling public relations consultants Robert H. Bork, Jr.
and Victor S. Kamber (The Kamber Group), as well as Stetson University
Law Professor Charles Ellson, AFL-CIO Associate General Counsel
Damon Silvers, and management lawyer Richard L. Wyatt (Aiken, Gump,
The first panel generally agreed that the modern corporate campaign
arose from the AFL-CIOs inability to staunch membership decline
by organizing workers through government-conducted, secret ballot
elections. The AFL-CIO attributes its frustration to employers
undue influence over voters. Corporate representatives ascribe labor
down-sizing to good corporate management of employer/employee relations
and the related irrelevance of the union model of industrial class
warfare. Whatever the cause, panelists agreed that the AFL-CIO has
little reason to trust its future to traditional organizing tactics
which now attract less than one-tenth of the private sector, non-agricultural
Management panelists make plain their view that corporate campaigns
entail personal extortion directed against corporate executives
and directors. The panelists disagreed about the effect on targets
of tactics such as picketing family funerals and accusing corporate
executives of crimes. In the AFL-CIOs view, expressed by Mr.
Naylor, such unpleasantries are necessary means to a worthy end.
In Mr. Naylors words:
The corporation has become so dominant in terms of our economy
that I would say that the rest of us are all stars or all planets
that circle them in orbit, and what I have worked on . . . is
to try to unify these various planets and say that we are all
the same in relationship to the corporation. These planets are
customers, suppliers, shareholders, regulators, people concerned
with the environment, and employees.
Management representatives questioned the wisdom of the corporate
campaign strategy, which ultimately seeks to hurt the companies
market share, which injures the corporations employees. The
wiser tactic, according to management panelists, was that attributed
to Jimmy Hoffa, who frequently told management negotiators, "I
want you to make as much money as you can, because I want as much
of it as I can get for my people."
Management panelists also decried the NLRBs current view
that an employer commits an unfair labor practice when it sues unsuccessfully
to recover losses caused by an arguably illegal corporate campaign
tactics. This, said the management panelists, encourages unions
to defame employers, and to prosecute employers maliciously, knowing
that the Board has granted them substantial immunity from countersuit.
This criticism, according to Mr. Naylor, constitutes little more
than managerial whining that corporate campaigns are lawful, and
Panel Two focused on the corporate governance and marketing tactics
employed by unions in corporate campaigns. Professor Charles Ellson
submitted that "the root [of union involvement in corporate
governance] might have been at some point in time organizationally
related, but the effect has been that these folks are capitalists
and they are seeking what other capitalists seek, . . . a fair return
on their investment." AFL-CIO Associate General Counsel Damon
Silvers noted that assets invested on behalf of AFL-CIO members
now approach $4 trillion, and agreed with Professor Ellson that
most union corporate governance initiatives are driven by a desire
to maximize long-run returns. This explains union contests of corporate
environmental policies, executive compensation plans, and election
of directors, said Mr. Silvers.
The discussion turned then to the tobacco-inspired tactic of using
mass tort litigation to drive down target companies market
value. As Robert Bork, Jr. noted, "as far as I can tell, the
law is on the side of the defendants, but that is not important
[ . . . ]. Why does it work? Because people love it." Publicity-oriented
litigation also serves unions well because corporate hierarchies
fail to distinguish this class of suits from their general litigation
burden. In Mr. Borks view, market-focused litigation cannot
be endured if handled in the traditional claims adjustment and risk
management fashion. "How should they defend themselves? Well,
let me just say first they have to tell their story . . . and they
should do it early." "[D]efine yourself before your enemies
define you." Failure to do so, Bork noted, is tantamount to
guilt in the public mind: "40 percent of the public thinks
they are guilty by the mere fact of the suit. When the corporation
says "no comment," that number jumps to 60 percent."
Though more congenial than Panel One, Panel Two clearly demonstrated
the differing viewpoints of the participants. As Mr. Silvers noted,
"the labor movement takes serious exception with the notion
that somehow because it is workers money or workers
institutions, we shouldnt be able to play hard ball like everybody
else when our interests are at stake."
By contest, the publicists agreed that lawyers are to blame for
ineffective corporate campaign defense in many cases. As Vic Kamber
"All too often the public relations people who have ideas
and who would know how to deal with it . . . are hamstrung by
the lawyers, not by the CEOs, not by the corporate executives,
not by the people that run the company that would like to defend
themselves and feel that they should defend themselves, and
not by the PR people that frankly feel here is the way to sell
a message, . . . the lawyers feel that they are not only good
lawyers, but they are good PR people . . . ."
The panelists also agreed that most corporate campaigns can be
ended by employer pledges to remain neutral in union organizing.
As in Panel One, there was general agreement that this results from
the AFL-CIOs dissatisfaction with efforts to organize employees
through government-conducted secret ballot elections.
One member of the audience noted that neither panel had addressed
corporate campaigns effect upon those employees who are best
served by a secret ballot election - those who genuinely disfavor
union representation. The AFL-CIO response, voiced by Mr. Silvers,
is that a secret ballot election preceded by an employers
captive audience presentations is no more respectful of such employees
wishes than union representation gained through card signing under
a neutrality pledge.
AFL-CIO counsel Damon Silvers summarized the case for corporate
campaigns by conceding that Jimmy Hoffa did say, "My objective
is for you to make money so that my members can make money."
But, he added:
Jimmy Hoffa didnt start out saying that in life. Jimmy
Hoffa started out as the king of the secondary boycott back
when the secondary boycott was legal. He started out using guys
to blockade warehouse doors to get recognition for his members.
He started out in a total bare knuckle fight with management.
At the end of that fight, there was a recognition in the trucking
industry on both sides of the table that this was just a losing
way to go. [ . . . ] [O]rdinary workers in their dealings with
their management when they try to exercise their rights under
the NLRA experience a bare knuckle punch. I gather that a number
of managers feel that in the context of comprehensive campaigns
they are given the same kind of punch. The question is, is there
a better way to do it.