Nissan Accused of Snooping in Labor’s Latest Fight for the South

  • Union files new complaint after losing Mississippi plant vote
  • It says surveillance of workers had chilling effect on rights

Automakers have battled hard to keep organized labor from gaining traction in the U.S. south. Mostly, they’ve won -- as Nissan Motor Co. did when workers at its Mississippi plant voted in August against joining a union. But the Japanese company has been accused of fighting dirty.

It could prove a test-case for labor in the age of Donald Trump. Unions have been fighting a rearguard action as automakers shifted production to southern states, where wages are lower and laws are more management-friendly -- something Trump encouraged, even as his campaign was winning union votes. It’s part of a wider squeeze on workers who’ve seen pay stagnate and protections erode, sparking a backlash in industrial regions that both Trump and Bernie Sanders tapped into.

A Nissan manufacturing plant in Canton, Mississippi.

Photographer: Daniel Acker/Bloomberg

In Mississippi, Nissan carried out illegal surveillance of employees for years and used the findings to rate them on a scale of union-friendliness, the United Auto Workers said in an amended complaint filed Sept. 19 with the National Labor Relations Board.

The carmaker said it abides by all labor laws. The filing is “another attempt by the U.A.W. to ignore the voices of Nissan employees who chose to reject representation by a nearly 2-to-1 margin,” spokesman Brian Brockman said in an e-mail. He didn’t directly address whether the company had a rating system.

‘If They Knew’

Organizing foreign-owned plants in the south is a life-or-death matter for the U.A.W., which represented 1.5 million workers at its peak in 1979. Its membership today is about a third of that size, after a series of defeats like the one in Mississippi.

The union has cast a wide net to make its case against Nissan, targeting lawmakers in the U.S. -- including Sanders, who rallied with workers at the Mississippi plant in March -- and in France, whose government is a major shareholder in Nissan via its stake in Renault SA. “I have a hard time seeing how the French government or Renault, if they knew about this, could in any way justify it,” said U.A.W. lawyer Michael Nicholson.

Bernie Sanders speaks at a campaign rally at United Auto Workers Union Local 600 Feb. 15, 2016.

Photographer: Bill Pugliano/Getty Images

U.A.W. complaints about Nissan’s conduct date back to well before the bitterly contested August vote in Mississippi. Some charges have been pursued by the government’s National Labor Relations Board, whose regional director accused the company of labor law violations including threatening to fire employees for union activity; and warning that the whole plant could shut down if the vote went the union’s way. Nissan denied any wrongdoing.

In its latest filing, the U.A.W. presented the Board with what it describes as evidence of Nissan’s rating system. The union said the document, obtained by Bloomberg News under the Freedom of Information Act, shows files kept on employees. It includes comments such as “has talked with solicitors at the gate before a shift” and “has been seen hanging with pro-union technicians.”

‘Quite Sure’

Two people who’ve worked at the Nissan plant said they were concerned that something along those lines was going on.

Eric Hearn, who’s been there since 2012, said in an interview that he confronted his supervisor before the vote, and asked whether Nissan was rating employees on their union stance. He said the supervisor answered that he was “quite sure” it was. That bothered Hearn, and he showed up at a company event soon afterward in a T-shirt that read, “I am not a -2,” a reference to the rating he’d heard was assigned to the most pro-union workers.

Hearn said that when he and other pro-union employees gathered at the plant’s entrance to sign up their colleagues, they’d frequently notice that they were being observed by management and security staff who wouldn’t normally have been there. That had a chilling effect on other workers, he said: “They wouldn’t even look at you.”

Calvin Ealy, a former supervisor who said he was fired by Nissan in 2013, said in an interview that at the request of company officials, he provided information about how the people under his supervision were likely to vote. “I knew at the time it was wrong -- I considered it to be spying – but hey, I needed a job, to take care of my family,” he said.

‘Common Tactic’

“Allegations of threats or intimidation made by the union are false,” Nissan’s Brockman said. He described labor-board charges such as those made by the U.A.W. as “a common tactic in an organizing campaign,"

Not everything the union is alleging would necessarily be illegal, said management-side attorney and former Labor Board member Marshall Babson. There’s no law stopping companies from keeping track of what their managers have happened to observe about employee attitudes toward unionizing, he said. “The employer doesn’t have to blind his eyes, cover his ears and pretend that he doesn’t know.”

The key legal questions, said Babson, are whether the company did anything illegal to get the information, and whether anything illegal was done with it. Federal law restricts companies from rewarding or punishing employees based on their union stance; from having managers go out of their way to observe union activity, and from creating the impression among employees that union activism is subject to surveillance or retaliation.

Wilma Liebman, who chaired the NLRB under President Barack Obama, said that if employees were informed of the ratings system’s existence, that alone could be illegally coercive. “There’s this implied message that the company people will be rewarded and the union adherents will suffer,” she said. Some management-side lawyers agree. “It’s going to be very hard to explain what legitimate purpose you’re using that list for,” said Brian Paul, who trains companies on how to defeat union drives.

Move From Michigan

But legal arguments like the U.A.W.’s may get a more skeptical hearing from labor board prosecutors under the Trump administration, according to Steven Swirsky, a former NLRB attorney who’s represented companies including Volkswagen.

While Trump campaigned against auto companies that exported jobs to Mexico, he encouraged them to move from labor-friendly Michigan to other parts of the U.S., saying they’d then have a stronger bargaining position with employees. He won 37 percent of the union-member vote, unusually high for a Republican.

The NLRB’s current general counsel is a former union lawyer. His term is up next month, and Trump has named a management-side attorney to take over.

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