Ethical Considerations for Lawyers Engaging in Union-Avoidance Persuasion, Including the Impact of the 'Persuader' Rule

• Author: Daphne Assimakopoulos
• Position: Georgetown University Law Center, J.D. expected 2023; Hamilton College, B.A. 2017
• Pages: 509-527

Ethical Considerations for Lawyers Engaging in

Union-Avoidance Persuasion, Including the Impact

of the “Persuader” Rule

DAPHNE ASSIMAKOPOULOS*

INTRODUCTION

Law firms and attorneys are intimately tied up in labor-management tensions.

Employers and unions alike turn to lawyers to protect themselves from legal

liability and vindicate their rights. Amidst a broader public debate around unions

and corporate power, it is imperative to examine what lawyers engaging in union-

avoidance consultations owe to society from an ethical perspective, both broadly

and under the Model Rules of Professional Conduct.

Union density in the United States is low. From 2018 to 2019, union member-

ship dropped by 170,000, reducing the unionized share of the workforce to

10.3%, the lowest portion on record since 1983.

1

Eric Morath, U.S. Union Membership Hits Another Record Low, THE WALL ST. J. (Jan. 22, 2020), https://

www.wsj.com/articles/u-s-union-membership-hits-another-record-low-11579715320 [https://perma.cc/7XRQ-

DHEY].

At the same time, the popularity

of unions is increasing, particularly among young people. A 2020 Gallup poll

found that 71% of people ages 18–34 support unions.

2

Megan Brenan, Approval of Labor Unions at Highest Point Since 1965, GALLUP (Sept. 2, 2021),

https://news.gallup.com/poll/354455/approval-labor-unions-highest-point-1965.aspx [https://perma.cc/Z9B5-

MSVR].

Almost half of nonunion

workers polled in 2017 (48%) said they would join a union in their workplace

tomorrow if they had the chance.

3

ECON. POL’Y INST., Working People Want a Voice at Work (Apr. 21, 2021), https://www.epi.org/

publication/working-people-want-a-voice/ [https://perma.cc/E489-EFGC].

This figure is 50% higher than in 1995, when

32% of those surveyed said they would vote for a union.

4

Labor-management tensions are front page news, with large organizing cam-

paigns continuing within major businesses like Amazon and Starbucks. Amazon in

particular has been subject to public scrutiny due to the tactics deployed against

unionization at its Bessemer, Alabama, fulfillment center.

5

David Streitfeld, How Amazon Crushes Unions, N.Y. TIMES (Mar. 16, 2021), https://www.nytimes.com/

2021/03/16/technology/amazon-unions-virginia.html [https://perma.cc/5NEH-YAY3].

The Department of

Labor (“DOL”) estimates that between 71% and 87% of employers hire professional

* Georgetown University Law Center, J.D. expected 2023; Hamilton College, B.A. 2017. © 2022, Daphne

Assimakopoulos.

1.

2.

3.

4. Id.

5.

509

union-avoidance consultants to run campaigns to hinder workers’ organizing

efforts.

6

The Economic Policy Institute estimates that employers are now spend-

ing nearly $340 million per year on such consultants.

7

This Note will provide a detailed roadmap after sketching a brief background

on current labor law and the field of union avoidance consulting.

BACKGROUND

The country’s predominant labor law, the National Labor Relations Act

(“NLRA”), was passed in 1935 with the purpose of encouraging “the practice and

procedure of collective bargaining” and to protect “the exercise by workers of

full freedom of association, self-organization, and designation of their representa-

tives of their choosing, for the purpose of negotiating the terms and conditions of

their employment or other mutual aid or protection.”

8

The NLRA also established

the National Labor Relations Board (“NLRB”), the independent agency tasked

with assuring fair labor practices through enforcement of the NLRA.

9

What We Do, NAT’L LAB. RELS. BD., https://www.nlrb.gov/about-nlrb/what-we-do [https://perma.cc/

W52X-BQTU].

The NLRB

is headquartered in Washington, D.C. and has regional offices across the country

where parties can file charges alleging illegal behavior or file a petition seeking a

union election.

10

Despite the lofty goals established in the NLRA, the statute faces criticism

from labor advocates who note that the legal framework is ill-equipped to address

the challenges facing workers today.

11

See, e.g., Protecting Workers’ Right to Organize: The Need for Labor Law Reform Before the H. Comm.

On Education and Labor, Subcomm. On Health, Employment, Labor, and Pensions, 116th Cong. (Mar. 16,

2019) (statement of Devki K. Virk, Bredhoff & Kaiser P.L.L.C.) https://edlabor.house.gov/imo/media/doc/

VirkTestimony032619.pdf [https://perma.cc/TQ2Z-22F7]; Sarah Jones, The PRO Act Could Do More Than

Revive Unions, N.Y. MAG. (Mar. 13, 2021), https://nymag.com/intelligencer/2021/03/what-is-the-pro-act.html

[https://perma.cc/X23C-325A]; Wilma B. Liebman, Decline and Disenchantment: Reflections on the Aging of

the National Labor Relations Board, 28 BERKELEY J. EMP. & LAB. L. 569, 570–72 (2007).

The NLRA has not been meaningfully

amended since 1947, and in that time, many of its core provisions have been

chipped away, weakening workers’ rights.

12

The NLRB is largely unable to take

strong action to prevent or disincentivize unfair labor practices. Notably, Section

10(c) of the NLRA limits the remedies available to the Board to a cease-and-

desist order, and in the event of an unlawful firing, reinstatement with back pay

with a required notice posting.

13

At the same time, the Supreme Court has issued

6. Interpretation of the “Advice” Exemption in Section 203(c) of the Labor-Management Reporting and

Disclosure Act, 81 Fed. Reg. 15,924-01, 15,927 (Mar. 24, 2016) (to be codified at 29 C.F.R. pts. 405–406)

[hereinafter Interpretation of the “Advice” Exemption in Section 203(c) of LMRDA].

7. Celine McNicholas, Margaret Poydock, Julia Wolfe, Ben Zipperer, Gordon Lafer & Lola Loustaunau,

Unlawful: U.S. Employers are Charged with Violating Federal Law in 41.5% of All Union Election

Campaigns, ECON. POL’Y INST. (Dec. 11, 2019).

8. 29 U.S.C. § 151.

9.

10. Id.

11.

12. Liebman, supra note 11, at 570.

13. 29 U.S.C. § 160(c).

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