The recent retail and fast food industry protests regarding demands for a “living wage” remind us that corporate campaigns by unions are a form of corporate warfare. They seek to inflict upon employers a “death from a thousand cuts.” Corporate campaign tactics include publicizing extremely negative and often false statements concerning the target company and its executives and attempting to intimidate those doing business with company. The objective is typically to embarrass the target, cause customers to take their business elsewhere, and ultimately force the employer to agree to some union demand.

The situation is not getting any easier for employers. Decisions by the National Labor Relations Board (NLRB) during the Obama administration have, in all but the most egregious cases, eliminated the relief available to employers through the filing of unfair labor practice charges against unions under the National Labor Relations Act (NLRA). Current Board precedent recognizes corporate campaign tactics as “free speech” protected by the First Amendment to the U.S. Constitution, necessarily limiting the labor law remedies available to affected employers. Likewise, the inability of the criminal justice system to promptly and effectively respond to union pressure tactics can be frustrating.

Employers can adopt a more aggressive response to union public relations attacks, particularly if the union’s claims are false or misleading to the public or when the company has nothing to do with the alleged “dispute.” With private sector unions now reportedly representing only 6.7 percent of the workforce and public perception of unions declining, employers need not remain silent when unions disparage their companies and disrupt customer relationships.

The NLRB’s Refusal to Protect Employers From Banners, Rats, and Similar Customer-Facing Attacks

In United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 and Eliason & Knuth of Arizona, Inc., 355 NLRB No.159 (2010), the Board concluded that the union’s 20-foot banners with messages attacking two medical centers and a restaurant did not constitute “picketing” and, therefore, constituted activity not prohibited by Section 8(b)(4) of the NLRA. Similarly, the Board has refused to take any action when unions erect large inflatable “rats” and distribute handbills at the premises of employers doing business with companies with which the union claims to have a dispute. Protected by this precedent, it is common for unions to erect “SHAME ON” banners at places of business to create the false impression that the otherwise “neutral” employer is involved in a “labor dispute.”

Employers Fight Back

Employers are starting to see the wisdom of meeting these attacks head on. Recently, one Wichita Kansas Subaru dealership targeted with a “SHAME ON YOU” banner implemented an extremely creative response: it created its own banner (in the same color, size, and typeface as the union’s) that said “FOR HAVING UNBEATABLE PRICES” and placed it next to the union’s banner. The genesis of the “dispute” was the dealership’s decision to award drywall work to a local open shop (non-union) contractor employing local residents. The carpenters union was unhappy that the dealership did not award the work to its members. It apparently did not matter to the union that the work was competitively bid or that the union contractor’s bid was significantly more expensive. The dealership’s “counter banner” caught the attention of local television media and even shifted the focus back onto the union and its decision to employ minimum wage workers as banner holders. The dealership also put out its own message to the public detailing its efforts to grow and support the local economy.

Similarly, a Philadelphia real estate developer, Post Brother Apartments, targeted by the city’s building trades unions for using open shop subcontractors, established a website to publicize the unions’ tactics, which included vulgar handbills with photoshopped images of the president’s wife engaging in sex acts as well as various well-documented incidents of vandalism, employee intimidation, assault, and other low brow tactics, all captured on video. Another example of an employer counterattack against union corporate campaign tactics is the “Keep Colorado Construction Competitive” (KC3) campaign. KC3 is a group of general contractors and subcontractors that are combating building trade union disruptions and propaganda by getting out their own message to the public.

Lessons Learned

Because private sector labor unions are losing membership, dues money, and political influence, it is likely that unions will increase the use of corporate warfare to place pressure on employers to achieve their ends. Employers faced with a corporate campaign, particularly those that have no relationship to the alleged “dispute,” face an uneven playing field at the NLRB that favors the unions. Rather than accept the potential negative publicity brought about by misleading public relations assaults, employers should consider a more aggressive response. And, dependent upon the specific facts, a complaint in federal court against the offending union may result in a substantial award of damages. Finally, employers that may be the target of a corporate campaign should take preparatory steps to develop a common sense plan including appropriate countermeasures and preemptive action.