A judge ordered a new vote after finding that the retailer used illegal tactics last year.
Even as a union won the right to hold a new election to represent workers at a Target store in New York last week, the company's allegedly improper behavior to defeat the first effort last year may have been enough to keep the nation's No. 2 retailer union-free, analysts say.
An administrative law judge with the National Labor Relations Board (NLRB) found that Target Corp. prohibited union supporters at its Valley Stream, N.Y., store from speaking to other employees on company property. A company video shown to employees improperly intimidated them, and a company leaflet wrongly suggested that the store would close if unionized, the judge ruled.
Despite the findings, Target's tactics were likely effective in poisoning the idea of union representation so thoroughly that workers may no longer want it, according to Chris Tilly, an economist at the University of California, Los Angeles.
"The damage is done," Tilly said. "If there was an effective anti-union campaign, we should not expect to see a union victory in a speedy second election."
Target denies doing anything wrong in battling the United Food & Commercial Workers Local 1500 (UFCW) at Valley Stream. But the store in a middle-class Long Island suburb just outside New York City became a critical test.
The company, which operates 1,764 stores and is the country's second-largest retailer, has never had any of its facilities unionized. Prior to the New York vote, the last union election at a Target retail store was an unsuccessful organizing effort in 1988 in Michigan.
Retailers across the country saw the 2011 Target election as a test case for organized labor's attempt to gain a foothold in an employee-rich industry where it lacked clout.
Target spokeswoman Molly Snyder said the company has not decided whether to appeal the NLRB ruling.
"Target is disappointed in the NLRB judge's ruling, and we respectfully disagree with the judge's decision," Snyder said in a statement last week. "We firmly believe Target followed all laws throughout the union's campaign at its Valley Stream store and that the process leading up to the June 2011 election was fair and legal, resulting in a strong rejection of unionization by our team members."
If the company doesn't appeal, the labor relations board will set a date for a new union election. If Target does appeal, the process can continue for months, if not years.
Yet even immediate admissions of guilt would not overcome several circumstances that hurt the union's chances of winning a rematch with Target, said University of Minnesota labor expert John Budd.
Foremost is Target's lopsided margin of victory in the 2011 contest. A year ago, 137 employees voted against union representation and only 85 voted for it.
Adding to the union's challenge is the fact that Target closed the Valley Stream store for renovations in April, spreading its employees to other stores.
High turnover in retail businesses such as Target could also play a role. Budd said union supporters frustrated by the bad outcome of the first election may already have left.
"The union is still the underdog," he said.
Union spokesman Patrick Purcell acknowledged challenges. He called Target's temporary closure of the Valley Stream store a ploy "to get out of a judge's ruling." However, the NLRB dismissed a UFCW charge that Target renovated the store to avoid compliance.
Target's Snyder called the charge "inaccurate" and said Target renovates hundreds of its stores. "At the Valley Stream store, we are adding more than 14,000 square feet," Snyder said.
Purcell said he hopes the NLRB schedules a new election within months of the Valley Stream Target reopening. The store is expected to be closed for a few months.
"The NLRB ruling is a vindication of what we've been saying since day one," Purcell noted. "We lost an election under a poisoned atmosphere. The question is: Can we win it in a clean atmosphere?"
It will be "difficult," Purcell admitted, but "if the union does not continue to campaign, it will have been cost-effective to violate the law. There are no teeth in the National Labor Relations Act unless the union continues to go after this."
For instance, two months after the 2011 election, Target fired union backer Tashawna Green. The NLRB judge's new ruling says Target "unlawfully threatened" Green for her union activism.
Green now works for the union, Purcell said. "We want them to return her to work [at Target]. We think she was martyred."
Jim Spencer • 202-408-2752