The AFL-CIO has posted a new video on YouTube entitled: 'Browbeating'. It depicts a supervisor in a one-on-one meeting with an employee where, among other things, the supervisor claims to know who has attended a union meeting, suggests that the company may shut down or that “union people” will be fired, promises to “work things out” and says “I can see a raise in your future.” The employee, of course, looks terrified.

For the record, if it needs to be said, any reputable management lawyer would tell supervisors that not only is such a speech illegal, it is a very stupid strategy. I feel certain that most workers -- my friend Earle, for example -- would just smile and nod and then vote for the union out of spite for the supervisor.

But the AFL-CIO’s point appears to be that such pressure tactics are sometimes used by employers. It’s true. EFCA Updates does not pretend that all employers are clean on this issue. We’ve observed that proponents of the Employee Free Choice Act are not so willing to admit improprieties by some union organizers, but that’s a different story. We do believe, however, that the vast majority of employer and union supporters are honest and ethical people. The secret ballot is necessary to protect against abuses from both sides.

The actions depicted in the 'Browbeating' video would go a long way towards meeting the standard for extraordinary remedies by the National Labor Relations Board. Where an employer’s unlawful actions have undermined the union's majority and made a fair election an unlikely possibility, the Board has the authority to order the employer to recognize and bargain with the union even where there has been no secret ballot election or where the union has lost an election. This authority was upheld in the U.S. Supreme Court’s 1969 decision in NLRB v. Gissel Packing Co.

In September 2006, the Board imposed a Gissel bargaining order in Evergreen America Corp. where the following 'Browbeating' was found to have occurred:

• Approximately 27 employees received threats of job loss and plant closure;
• 13 employees were unlawfully instructed not to attend union meetings, not to read the Union’s literature and to throw the material away;
• 9 employees were unlawfully interrogated
• 7 employees were subjected to the impression that their union activities were under surveillance. 
• On 23 occasions, managers made express or implied promises to remedy solicited grievances;
• The company granted unprecedented and excessive across-the-board wage increases to bargaining unit employees;
• Managers manipulated the promotion process in order to promote more unit employees than in past years; and
• The company made other workplace changes designed to undermine union support, including liberalizing the attendance policy, expanding its casual dress policy, improving its sick leave policy, lowering the age for early retirement eligibility, and and awarding employees $400 Christmas gift certificates.

Far from being the type of pro-employer agency that EFCA proponents are attempting to portray, the NLRB would undoubtedly pursue more Gissel bargaining orders against the few bad actors dramatized in the 'Browbeating' video. Unions would then get card check recognition where they really need it. As we’ve noted before, there is no need to throw the secret ballot out with the bathwater.