That's RICO

The Service Employees International Union (SEIU), one of the country's largest unions, recently announced that it was ending a publicity campaign intended to pressure Sodexo, one of the world's largest food-service companies, to make it easier for workers to unionize. Starting in 2009, SEIU's "Clean Up Sodexo" campaign took the company to task by criticizing its food-safety record and opposing its attempts to win new food-service contracts. But the union dropped its campaign in order to settle a lawsuit Sodexo filed against it under the Racketeer Influenced and Corrupt Organizations Act (RICO).

Though the terms of SEIU's legal settlement with Sodexo are confidential, both sides put out statements saying that they had "affirmed their mutual commitment to the rights of Sodexo's employees to make free and informed choices about unionization." That noncommittal language implies that Sodexo's RICO lawsuit got it off the hook without having to budge on a fair process.

(Disclosure: My former employer, UNITE HERE, organized Sodexo workers in cooperation with SEIU through 2008; since then, the two unions have been competing to organize Sodexo workers.)

Passed the year after The Godfather was published, RICO is part of a 1970 law designed to make it easier for companies to push back against mob infiltration. Along with easing criminal racketeering prosecutions, it allows plaintiffs to bring civil lawsuits against organizations whose members allegedly committed crimes. But in recent years, it's become a weapon for companies seeking to quash union organizing. Without showing that unions are mobbed up or murderous, companies get to bring civil suit over unions' "corporate campaigns" as though they were criminal conspiracies. That application of RICO, says University of Texas law professor Julius Getman, "harkens back to the days when unions were viewed as a criminal conspiracy. It's a real distortion of criminal law."

The application of RICO to corporate campaigns allows companies to string together as few as two allegations of illegal actions by individuals to constitute a conspiracy -- or to label otherwise legal forms of pressure as part of an illegal "pattern of racketeering." "It tends to invade freedom of speech," says Getman, because it enables "bundling a whole bunch of actions under a single tent of conspiracy, so all sorts of things which would otherwise be legal forms of pressure become criminal actions."

Employers' RICO recourse works because judges often allow it. In 2008, a federal judge denied the United Food and Commercial Workers (UFCW) International Union's motion to dismiss a RICO lawsuit filed by the world's largest pork producer, Smithfield Foods. The UFCW's alleged "pattern of racketeering" included getting city councils to pass resolutions criticizing Smithfield and convincing Oprah Winfrey not to promote Smithfield hams on her show. Interviewed by The New York Times, the company's attorney cited five other such lawsuits judges had allowed to go forward, usually ending in pre-trial settlement.

Corporate campaigns, which use media, consumer, legal, and political pressure to get recalcitrant companies to agree to "card check" or other terms for union organizing -- for instance, by publicizing safety complaints, calling for boycotts, or opposing zoning applications -- have been around for decades. But they've taken on increasing significance as industries have become increasingly dominated by large corporations with the money and legal savvy to take advantage of weak labor laws. Workers attempting to organize through the National Labor Relations Board (NLRB) process face myriad problems: de facto management control of election timelines; mandatory anti-union meetings; and frequent impunity for companies that punish union supporters. Even when workers win union elections, many employers intentionally deadlock negotiations to prevent workers from winning a contract. Because our legal system lets companies get away with these anti-union tactics, unions increasingly turn to corporate campaigns to pressure companies out of using them. When combined with worker mobilization, such campaigns can help level the playing field.

To big corporations and the right-wingers who love them, there's no better purpose for anti-mob law than punishing unions that drag their dirty laundry into the open while seeking more members. But unions' corporate campaigns are more analogous to campaigns like Color of Change's push for an advertiser boycott of Glenn Beck's show than they are to mafia tactics. Unlike mob racketeering, union corporate campaigns take place in public, rest on companies' fear of embarrassment rather than violence, and pursue a goal that the government is legally committed to promote: collective bargaining.

Plus, when unions make claims that companies find unfair, they have ample venues to contest them. If unions break the law, companies can and do sue them. But to apply mafia law to union campaigns just emboldens management lawlessness. Corporate campaigns are a private-sector remedy to the government's refusal to make good on the promise of the National Labor Relations Act: Workers should be able to organize without losing their jobs.

The Sodexo settlement won't end corporate campaigns. But the company's success here may make unions more cautious and embolden more companies to use similar tactics. The best result that could come from this bad precedent would be a greater focus on backing up corporate campaigns with worker mobilization. The worst result would be a greater resort to overcoming employer opposition by enticing companies with offers of cheap contracts or anti-regulation lobbying, approaches that have brought SEIU and other unions deserved criticism within the labor movement.

While some judges have dismissed employers' RICO charges against unions, they remain a potent threat. "It has definitely frightened people" in the labor movement, says Getman. "It has an intimidating effect."

Comments

Great article - one point to add. The tactics used by unions in corporate social responsibility campaigns are not only distinct from RICO-prohibited actions because they occur in public, and useĀ embarrassmentĀ instead of violence. They are also PROTECTED BY THE FIRST AMENDMENT.

Another point - you're right about alternate venues for companies to pursue recourse against unions. However, I think in fairness you must note that the NLRA - which you correctly cite as promoting and guaranteeing collective bargaining rights - also preempts much (if not most) state law that would otherwise be available to companies made subject to corporate campaigns. For example, any union interference in contracts with third parties (certainly a common, if unstated, goal of corporate campaigns) would not be actionable under state tort law because it's preempted by the NLRA.

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