Lawyer-Bashing and Anti-Union Campaigns

The Thorny Distinction Between the “Legal” and the “Moral”

I am a critic of the idea that American labor law has ever been a serious mechanism for protecting the rights of working people, or that it was ever meant to be. I call this a “smash mouth” truth. Yet just because I think American labor law is deeply unserious and theatrical in complicated ways does not mean that I fail to recognize that employers will beat the crap out of workers to prevent them from formally organizing. Way back in my law school days I publicly protested (along with classmates like Andy Levin and Damon Silvers) the phenomenon of Harvard Law students going off to work for big, anti-union law firms. It was obviously akin to howling at the moon given the enormous salaries that these firms were likely to pay new legal associates. All the same I didn’t like “union busters” and I wasn’t bashful about saying lawyers should have nothing to do with them.

But there has always been a distinction in my mind between lawyers who simply counseled employers on how to exploit a preexisting labor law jury-rigged by the rich over eight decades or so, and those who were actively engaged in psyops against workers. During my days at the NLRB, I was amazed when members of the UFCW would tell stories about how quickly Walmart anti-union campaigners could be “boots on the ground” once a union petition had been filed. I was also amazed during these days at the anti-union scripts that would seemingly instantly appear in campaigns involving various employers. Under current law (which may change but I’m not optimistic because of the way conservative courts interpret the First Amendment), employers can lawfully assemble employees prior to an election (a captive audience meeting) and lie to them about all kinds of things. They can also disparage the union in almost every way imaginable. The law is unlikely to intervene in the absence of outright forgery, lying about the NLRB’s legal processes, or naked appeals to racial prejudice. Administrative prosecutors can attempt to change some of these rules, but many folks simply are unaware that, at the end of the day, it is federal courts and not administrative agencies that say what labor law is. Labor law has been “deradicalized” nearly from its inception—even though I laugh out loud when considering what the musty old judges considered radical.

All of this is consistent with my “lived experience.” I remember my employer disciplining black and white employees differently during an anti-union campaign. “Discipline the white workers more harshly than the black workers for the same attendance infractions during the campaign.” I’ll bet you can guess what happened when this policy was implemented. (Of course, I had a jiu jitsu response to this disparate treatment, as a black guy going to college full time while I was working full time: if I could be “late,” I was).     

I discussed these issues with Lee Fang (then of the Intercept) in a story he wrote back in 2022 titled “The Evolution of Union-Busting: Breaking Unions With the Language of Diversity and Social Justice.” Lee had his finger on the pulse of the always-evolving “union avoidance” industry. In this version of the tactic, an employer embraces a cause of social justice and then claims that an on-scene or nascent union organizing drive is somehow “against” the social justice cause due to interfering with the employer’s noble efforts to advance it. This is dark. It is interesting for me to remember that some of the most intense anti-union campaigns I encountered as a government lawyer involved “public interest” organizations led by some kind of individual “entrepreneur” (usually of noble birth and possessing sublime education). In one case, I can recall the entrepreneur telling the union president after a union election victory: “you believe in workers as employees; we see workers as owners.” Those worker-owners voted for the union in overwhelming numbers, and the entrepreneur (lawfully) “declined to apply” for the annual grant that kept this public interest organization operating. Under federal labor law an employer may close its business completely for nakedly anti-union reasons subject only to the limitations that the business is actually closed (and does not pop up mysteriously under a different name in a different location) and that the closure did not have the “purpose or effect” of chilling employees in some other business with which the original business is somehow affiliated. (Good luck trying to prove that). The aristocrat complied with the law (and probably consulted closely with lawyers prior to making his “speech”).   

As a lawyer, advising a business about the “closure rule”—which has been in existence for decades—seems worlds apart from supporting some of the types of shenanigans Lee discussed in his piece. You can represent a client in connection with a clear, though distasteful, rule of law that many people despise. You can tell an employer that she can close a business because she hates the union. I don’t, however, think you can assist an employer in scorched ideological “war” tactics conducted against the employer’s employees. Consider the kinds of employee activism going on in workplaces now.  Lee states,

Across the country, particularly in highly educated workplaces, employee activism has centered on demands that go beyond the bread and butter of higher salaries and better retirement benefits. YouTube and Facebook employees have demanded that management take a greater role in censoring content viewed as sexist or racist. Amazon corporate headquarters workers this month staged a protest to demand that the company restrict the sales of books that are perceived by some activist groups as anti-trans. The union that represents workers at NPR has demanded that the media outlet develop demographic tools to track the race and gender of every source that appears in stories.

Leaving to one side the reality that many such bargaining demands are not mandatorily bargainable with employers under existing law, and that unions organizing against employers to the point of “impasse” concerning them (for example, by calling a strike ) likely expose their members to a heightened risk of lawful discharge (another discussion for another time), employers can co-opt social activism and set it ideologically (and somewhat bizarrely) against union organizing. Lee  notes that,

In the new environment, businesses facing worker uprisings are attempting to co-opt the language of social justice movements and embrace trends around self-growth and positive lifestyles to counter demands for unionization — a far cry from the old days of union prevention, a history that featured employers routinely threatening workers with private guards and violent clashes on the picket lines.

Can a lawyer ethically (at least under the Model Professional Rules applicable to lawyers) involve herself in such co-option? It seems to me that a lawyer may (indeed usually must) under existing “professional conduct” rules advocate zealously that a company that has already engaged in this conduct has not violated the law: employers, after all, may lawfully engage in any speech that contains no “threat of reprisal” or “promise of benefit.” But, as Lee further reports, the DEI turn in anti-union campaigns is part of an industry of “union avoidance.”

So-called union avoidance consultants, also known as persuaders, work in a specialty profession that has been honed in recent decades. They are hired by corporations to train managers to spot union sympathies or to lead “captive audience” lectures — where attendance is mandatory — to pressure workers against voting for a union. These seminars can involve threats of retaliation, warnings that a union will force the company to close down, and claims that union dues will negate any benefit of a union contract. But the most important aspect of these meetings, experts say, can be collecting information to identify union supporters within a workplace so that they may be sidelined or fired before they gain influence with their co-workers.

Many times (always, if they are smart), companies are advised by lawyers on what to say during the mandatory meetings. Captive audience meetings, even under current law, tend to comprise a dizzying array of lawful and unlawful conduct. As an employee, I have sat through many a “captive audience” meeting. I was eventually excluded from them because a presenter was not likely to best me one-on-one in front of a group of co-workers, and the company knew it (theoretically, an employer can fire an employee “disrupting” a captive audience meeting—but I was never threatened with discharge, I was just excluded). But would most of this conduct objectively tend to coerce employees attempting to exercise labor organizing rights? I have never had the slightest doubt that it would. 

When does active development of a de facto DEI (diversity, equity, and inclusion) psyop (which is what I think Lee’s story uncovers) become toxic for lawyers committed to ethical ideals? Under the professional rules in the course of litigation “a lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.” Outside the strict litigation/adjudication confines of that rule, another rule states, “A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5,” which includes the rule I quoted before this one.

Are you feeling me? A lawyer advancing good faith arguments steeped in the law, or even making good faith arguments about making changes to the law (no matter how much I might disagree with the arguments on legal or moral grounds) operates in my view on positive legal-ethical ground. But I think I had it right all those years ago when I was a law student: lawyers cooperating in conducting psyops against workers attempting to exercise labor rights ensconced in decades-old American labor law (or even within international law) are acting immorally. If the lawyer’s essential business is generating fear and setting up false dichotomies between social justice ideals meant to broadly protect people, the lawyer is not engaged in any legal business I consider legitimate or moral. And it is not “lawyer bashing” to say so.