“American Factory,” the first in a series of projects from Netflix and Barack and Michelle Obama’s Higher Ground Productions, chronicles Fuyao’s repurposing of a former auto plant, including culture clashes between the American workforce and Chinese management and workers’ attempts at United Auto Workers union representation.
Labor academics and lawyers who watched the documentary and were interviewed by Bloomberg Law said some of the on-camera statements made by managers imply violations of U.S. labor laws that give workers the right to unionize and prohibit bias based on national origin.
“If a union comes in, I am shutting down,” Fuyao Chairman Cao Dewang says during a management meeting in one scene. In another, a manager shows an employee’s picture to the camera, describes the man as a friend and union supporter, then says he’ll be fired in short order.
“American Factory” was released Aug. 21. A day later, an unfair labor practice charge was filed against Fuyao. The filer is unknown—the National Labor Relations Board accepts and investigate charges of labor law violations from almost anyone, and the government will then prosecute the case if there’s some evidence supporting the allegations—but its allegations that the company’s representatives made threats and statements meant to interfere with workers’ rights to join or form a union are supported by scenes in the film.
“Some of the statements look to me just like what the [National Labor Relations] Board calls ‘hallmark violations,’ which are especially serious violations of the National Labor Relations Act,” said Charlotte Garden, a labor and employment law and Constitutional law professor at Seattle University School of Law. “ Threatening to close a plant is “a classic hallmark violation,” Garden said.
Yet Garden and Michael Lotito, management-side attorney and co-chair of Littler Mendelson’s employer advocacy group, agreed that the chances are small the labor charge will lead to action, given that it seems to be based on statements that managers made in 2017.
“The statute of limitations for filing an unfair labor practice charge is six months,” Lotito said. “Whether there were or were not any violations, the limitations period may make the question moot.”
Nonetheless, Fuyao may find itself defending against legal disputes stemming from its Ohio plant and the period depicted in “American Factory” for some time.
The company and its attorneys didn’t respond to requests for comment. But one lawyer who’s currently suing the company thinks the film will help his client’s case, particularly because of the portrayal of ownership and management criticizing American workers.
Former plant Vice President David Burrows, who is featured in the film, is suing Fuyao for breach of contract and national origin discrimination. He was fired in 2016 and replaced by a Chinese manager. “The discriminatory comments made by Chinese executives will definitely have an impact on Mr. Burrows’ claims,” his attorney, Anne Frayne, said in an email.
Cao, in a voiceover in the film, is heard saying, “American workers are not efficient, and output is low.”
“I can’t manage them,” Cao says. “When we try to manage them, they threaten to get help from the union. How can we make the Americans understand that the Chinese can open factories in America? This is a big problem.”
Legal actions aside, the film speaks to political issues that Democrats want to address, said Lawrence Mishel, former president of the Economic Policy Institute and a current fellow at the think tank, which was founded to focus on the needs of low- and middle-income workers.
Democratic presidential candidates, including Sens.
The NLRB can order companies to reinstate workers or pay back pay, although those remedies are rarely awarded, and if they are, often come after years of litigation.
Republicans have opposed previous and ongoing efforts to revamp labor law, saying the kinds of changes put forward by Democrats would kill jobs and hurt smaller businesses.
Big Investments, Big Grants
Fuyao’s massive capital investments brought enthusiasm to a struggling region of the Buckeye State, and the promise of hundreds of jobs won the company sizable state incentives and grants.
In 2014, the company committed to an initial $230 million in capital investment to retool a former General Motors plant outside Dayton, Ohio, and promised at least 800 jobs. It received a government tax credit estimated at $9,687,166, as well as $6.6 million in grants from JobsOhio, the state’s private development arm.
Fuyao expanded its plans in 2015, getting another $4 million from JobsOhio with its commitment to invest another $130 million and hire an additional 750 workers. Matt Englehart, spokesman for JobsOhio, said in an email that Fuyao has exceeded all of its commitments, including its pledge to create over $60 million in new payroll.
The United Auto Workers’ unionization drive failed by a roughly 2 to 1 margin after plant management and Ohio politicians lobbied against it. Employees were called into mandatory meetings where the company’s anti-union consultant advised them against unionizing.
A UAW spokesperson said the union doesn’t comment about organizing campaigns until there is an official filing for union representation or other organizing action.
The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the largest American union, has entered into a partnership with the producers of the film, Participant Media, along with Harvard Business School and other organizations, according to an Aug. 29 press release. The partnership involves a national campaign to bring visibility to labor-management relations nationwide.