From Volume 83, Number 4 (May 2010)
Over the past twenty-five years, unions have turned increasingly to strategies outside the traditional framework of the National Labor Relations Act (“NLRA”). Frustrated by an ineffective NLRA legal regime and the demise of the economic strike, organized labor has pursued coordinated approaches in order to generate extended economic pressure on private employers who seek to avoid recognizing unions or to resist bargaining collective agreements. Coordinated campaign tactics include publicity efforts aimed at attracting media attention and consumer interest; regulatory reviews initiated to focus on a company’s possible health, safety, environmental, or zoning violations; and investigations of a company’s financial status through use of pension funds or other shareholder resources. Unions relying on these comprehensive campaign or corporate campaign strategies have enjoyed some success which in turn has contributed to a modest rise in private sector union density, the first such increase for decades.
Management responses to comprehensive campaigns often involve filing lawsuits against unions and workers. Employer civil actions may invoke state defamation law, federal labor law prohibiting secondary boycotts, or federal antitrust law. But the most high-profile and dramatic form of employer retaliation in court is lawsuits alleging a pattern of unlawfully extortionate activities under the Racketeer Influenced and Corrupt Organizations Act (“RICO”).