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Exploiting Legal Loopholes: Rare Lawsuit Exposes Tactics Of Union-Busting Companies, Lawyers
In the battles American workers are forced to fight to exercise their rights to organize and bargain, union-busting companies frequently rely on the advice of management-side labor lawyers.
Employers shell out hundreds of dollars per billable hour to learn just how far they can go to sink union organizing drives and challenge votes. Can they fire union leaders? Threaten employees? Make false promises? And even if they can't - legally - what's the risk? A slap on the hand and miniscule fine from the National Labor Relations Board, perhaps years later?
But even in a system so heavily weighted in favor of employers, there is such a thing as bad advice. That's what EnerSys Inc., a battery manufacturer, says it learned the hard way after IUE - now IUE-CWA - successfully organized the company's now defunct Sumter, S.C., plant.
In court documents that reveal some of the insidious tactics used against unions, EnerSys is suing its lawyers for legal malpractice. It says the New York-based firm Jackson Lewis "engineered a relentless and unlawful campaign to oust the union." In the process, the company amassed 120 federal labor law violations, faced union lawsuits and wound up paying a $7.5 million settlement.
The firm and two lawyers specifically singled out gave "reckless and negligent legal advice," and then tried to cover it up, the company claims in court papers. Further, it said the "conduct… was malicious, intentional and evidenced wanton disregard for the interests of EnerSys."
Hired Guns
While a union-buster suing its own lawyers is highly unusual, the use of lawyers or other highly paid consultants to beat back an organizing drive is not.
"Hired guns make millions attacking workers when they try to stand up for themselves," says David Bonior, Chair of American Rights at Work, the workers' rights advocacy group that is uncovering the pattern of union-busting across the country. "Unions aren't declining because workers no longer want them. Union membership is down because employers will spare no expense to keep them out."
According to research by Cornell University labor researcher Kate Bronfrenbrenner, 75 percent of employers faced with organizing campaigns hire firms such as Jackson Lewis or the Burke Group, a consulting firm advising management at the Chinese Daily News in Los Angeles. Organized by The Newspaper Guild-CWA in 2001, workers there have endured firings, harassment and threats as the company refuses to recognize the union at all, let alone to bargain.
Bronfrenbrenner says 25 percent of employers illegally fire pro-union employees during organizing drives and 51 percent illegally threaten to close down worksites if employees vote to unionize. And as happened at EnerSys and continues to happen at the Chinese Daily News, when workers beat the odds and form unions despite the many obstacles, lawyers and consultants then go to work helping employers avoid bargaining.
In Sumter the employees voted in favor of IUE representation in February 1995. The company challenged the election, but the National Labor Relations Board upheld it. In the years following, the company says now that Jackson Lewis gave management unlawful advice about working to decertify the union or withdraw its recognition.
"What makes this case so unusual is the public exposure by an employer of the strategies often used to crush unions or prevent their formation," says Fred Feinstein, former general counsel to the NLRB. "There are serious concerns about the failure of the law to adequately protect the important right of workers to organize."
Chinese Daily News
Despite more than 50 unfair labor practice complaints pending against the Chinese Daily News, the company hasn't relented in its union-busting campaign, directed largely by a Burke Group consultant who specializes in fighting unions that involve mostly Asian or Pacific Island employees.
Management even provided the consultant, Larry Wong, with a "luxury suite" in the building from which to run the anti-union campaign, said John Logan of the London School of Economics, who wrote a detailed study of the struggle titled "The Long, Slow Death of Workplace Democracy at the Chinese Daily News."
"In an effort to exploit the cultural sensitivities of the workforce, the company publicly humiliated several union activists and interrogated employees about their loyalty to the company," Logan wrote, describing the anti-organizing campaign. "The newspaper's attorneys delayed the representation proceedings at every opportunity."
Once an election date was set, "the company intensified its anti-union invective," telling employees they wouldn't get a raise and that the plant might relocate to Taiwan if they voted for representation, Logan said. They offered pay hikes and promotions to anti-union workers and told employees that it was illegal for them to discuss unionization at work.
Today, nearly four years after workers cast their vote for TNG-CWA, the company hasn't budged. But even in the face of a relentless, nasty campaign, the workers haven't budged either.
More CWA Battles
Verizon Wireless and Comcast are also on top of CWA's dishonor role of union-busters, using every legal loophole to their advantage. Comcast's vicious campaign of firings, intimidation and harassment is so pronounced that CWA Executive Vice President Larry Cohen has described the workers' fight against the nation's largest cable provider as CWA's own Wal-Mart.
The company has even tried to intimidate politicians who support the union, with Comcast attorneys last year trying to subpoena two Montgomery County (Md.) City Council members in a case involving an illegally fired worker who ultimately won his case and got his job back.
"It is an effort to send a message to elected officials, 'You better butt out of our business,' " Councilman Tom Perez said, quoted in the Washington Post. "They want to send a message to employees that if you get involved in union organizing and you try to get elected officials involved, we will make every effort to make sure you are a failure."
In Sacramento, Calif., at one of the company's mandatory anti-union captive-audience meetings, a Comcast lawyer dressed in clothing resembling that worn by service technicians spoke out against the union. He was exposed by a worker who suspected he was a plant.
"When we find transnational corporations flagrantly disrespecting workers' freedom of association in other parts of the world, we call it a violation of human rights," Bonior said last year, introducing a report on Comcast labor violations. "American workers are entitled to the same, universally upheld principle."
While Comcast and Verizon Wireless, which has fought the union for 15 years, have scores of lawyers working to defeat unions, in newspaper circles one anti-union attorney has become especially familiar. Michael Zinser of Nashville has worked against TNG-CWA locals in Albany, N.Y., Eugene, Ore., Honolulu and Hilo, Hawaii, and, presently, Memphis. He continues to be hired in spite of what Guild leaders say most employers would consider a dismal record defending them against the unfair labor practice complaints his tactics cause them to incur.
"He sells employers on a bill of goods that sounds like he has an entire plan for busting the union," TNG-CWA President Linda Foley said. "He sells them on the idea that they can be union-free, that he can somehow reign in the union, but what he really ends up doing is dragging out bargaining and ruining the relationship between employer and employee."
Guild lawyer Barbara Camens said Zinser not only purposefully creates tension between workers and their bosses, he tries to "drive a wedge between union members and their unions." By focusing, for instance, on whether workers can continue to have their dues automatically deducted from their paychecks, Zinser ensures that bargaining is extended indefinitely while members wonder when they'll get their next raise.
Meanwhile, Zinser's income keeps going up. "He exploits all the shortcomings available to him," Camens said. "The only winner is Michael Zinser."
EnerSys Tactics Backfire
In its court paper, EnerSys admits that an "anti-union committee" at EnerSys "began working overtly to foment anti-union sentiment at the Sumter Plant." What union leaders began to realize in 2000 was that the group was getting illegal support either from management or someone they hired.
The New York Times reported in December that a worker who helped lead the anti-union campaign testified recently that "a mysterious consultant known as Mr. X had advised him on how to oust the union and had helped him write fliers that called the union's leaders names like 'trailer trash,' 'Uncle Tom,' and 'dog woman.' Not only that, (he) testified that envelopes filled with cash had often been sent to his home."'
"Mr. X" was later determined to be working with one of the lawyers. The man admitted in a deposition that he advised the committee, drafted anti-union materials and consulted with anti-union employees, according to court documents.
Jackson Lewis has admitted no wrongdoing. Quoted in the Dec. 14 New York Times story, a spokesman for the firm denied any role in trying to oust the union but said the company "zealously represents its clients."
Where the blame lies - with the lawyers or their client, EnerSys - will be hotly contested if the case makes it to court.
Vincent Gailliard, who served as the union's president and was fired by EnerSys in 2001, told the Times that "The company gave carte blanche to the law firm - the law firm was pretty much running the plant. It came back and slapped them in the face, and now they want someone to blame."
For a full report on the EnerSys case
and regular updates on NLRB issues visit the American Rights at Work website, www.americanrightsatwork.org.
Employers shell out hundreds of dollars per billable hour to learn just how far they can go to sink union organizing drives and challenge votes. Can they fire union leaders? Threaten employees? Make false promises? And even if they can't - legally - what's the risk? A slap on the hand and miniscule fine from the National Labor Relations Board, perhaps years later?
But even in a system so heavily weighted in favor of employers, there is such a thing as bad advice. That's what EnerSys Inc., a battery manufacturer, says it learned the hard way after IUE - now IUE-CWA - successfully organized the company's now defunct Sumter, S.C., plant.
In court documents that reveal some of the insidious tactics used against unions, EnerSys is suing its lawyers for legal malpractice. It says the New York-based firm Jackson Lewis "engineered a relentless and unlawful campaign to oust the union." In the process, the company amassed 120 federal labor law violations, faced union lawsuits and wound up paying a $7.5 million settlement.
The firm and two lawyers specifically singled out gave "reckless and negligent legal advice," and then tried to cover it up, the company claims in court papers. Further, it said the "conduct… was malicious, intentional and evidenced wanton disregard for the interests of EnerSys."
Hired Guns
While a union-buster suing its own lawyers is highly unusual, the use of lawyers or other highly paid consultants to beat back an organizing drive is not.
"Hired guns make millions attacking workers when they try to stand up for themselves," says David Bonior, Chair of American Rights at Work, the workers' rights advocacy group that is uncovering the pattern of union-busting across the country. "Unions aren't declining because workers no longer want them. Union membership is down because employers will spare no expense to keep them out."
According to research by Cornell University labor researcher Kate Bronfrenbrenner, 75 percent of employers faced with organizing campaigns hire firms such as Jackson Lewis or the Burke Group, a consulting firm advising management at the Chinese Daily News in Los Angeles. Organized by The Newspaper Guild-CWA in 2001, workers there have endured firings, harassment and threats as the company refuses to recognize the union at all, let alone to bargain.
Bronfrenbrenner says 25 percent of employers illegally fire pro-union employees during organizing drives and 51 percent illegally threaten to close down worksites if employees vote to unionize. And as happened at EnerSys and continues to happen at the Chinese Daily News, when workers beat the odds and form unions despite the many obstacles, lawyers and consultants then go to work helping employers avoid bargaining.
In Sumter the employees voted in favor of IUE representation in February 1995. The company challenged the election, but the National Labor Relations Board upheld it. In the years following, the company says now that Jackson Lewis gave management unlawful advice about working to decertify the union or withdraw its recognition.
"What makes this case so unusual is the public exposure by an employer of the strategies often used to crush unions or prevent their formation," says Fred Feinstein, former general counsel to the NLRB. "There are serious concerns about the failure of the law to adequately protect the important right of workers to organize."
Chinese Daily News
Despite more than 50 unfair labor practice complaints pending against the Chinese Daily News, the company hasn't relented in its union-busting campaign, directed largely by a Burke Group consultant who specializes in fighting unions that involve mostly Asian or Pacific Island employees.
Management even provided the consultant, Larry Wong, with a "luxury suite" in the building from which to run the anti-union campaign, said John Logan of the London School of Economics, who wrote a detailed study of the struggle titled "The Long, Slow Death of Workplace Democracy at the Chinese Daily News."
"In an effort to exploit the cultural sensitivities of the workforce, the company publicly humiliated several union activists and interrogated employees about their loyalty to the company," Logan wrote, describing the anti-organizing campaign. "The newspaper's attorneys delayed the representation proceedings at every opportunity."
Once an election date was set, "the company intensified its anti-union invective," telling employees they wouldn't get a raise and that the plant might relocate to Taiwan if they voted for representation, Logan said. They offered pay hikes and promotions to anti-union workers and told employees that it was illegal for them to discuss unionization at work.
Today, nearly four years after workers cast their vote for TNG-CWA, the company hasn't budged. But even in the face of a relentless, nasty campaign, the workers haven't budged either.
More CWA Battles
Verizon Wireless and Comcast are also on top of CWA's dishonor role of union-busters, using every legal loophole to their advantage. Comcast's vicious campaign of firings, intimidation and harassment is so pronounced that CWA Executive Vice President Larry Cohen has described the workers' fight against the nation's largest cable provider as CWA's own Wal-Mart.
The company has even tried to intimidate politicians who support the union, with Comcast attorneys last year trying to subpoena two Montgomery County (Md.) City Council members in a case involving an illegally fired worker who ultimately won his case and got his job back.
"It is an effort to send a message to elected officials, 'You better butt out of our business,' " Councilman Tom Perez said, quoted in the Washington Post. "They want to send a message to employees that if you get involved in union organizing and you try to get elected officials involved, we will make every effort to make sure you are a failure."
In Sacramento, Calif., at one of the company's mandatory anti-union captive-audience meetings, a Comcast lawyer dressed in clothing resembling that worn by service technicians spoke out against the union. He was exposed by a worker who suspected he was a plant.
"When we find transnational corporations flagrantly disrespecting workers' freedom of association in other parts of the world, we call it a violation of human rights," Bonior said last year, introducing a report on Comcast labor violations. "American workers are entitled to the same, universally upheld principle."
While Comcast and Verizon Wireless, which has fought the union for 15 years, have scores of lawyers working to defeat unions, in newspaper circles one anti-union attorney has become especially familiar. Michael Zinser of Nashville has worked against TNG-CWA locals in Albany, N.Y., Eugene, Ore., Honolulu and Hilo, Hawaii, and, presently, Memphis. He continues to be hired in spite of what Guild leaders say most employers would consider a dismal record defending them against the unfair labor practice complaints his tactics cause them to incur.
"He sells employers on a bill of goods that sounds like he has an entire plan for busting the union," TNG-CWA President Linda Foley said. "He sells them on the idea that they can be union-free, that he can somehow reign in the union, but what he really ends up doing is dragging out bargaining and ruining the relationship between employer and employee."
Guild lawyer Barbara Camens said Zinser not only purposefully creates tension between workers and their bosses, he tries to "drive a wedge between union members and their unions." By focusing, for instance, on whether workers can continue to have their dues automatically deducted from their paychecks, Zinser ensures that bargaining is extended indefinitely while members wonder when they'll get their next raise.
Meanwhile, Zinser's income keeps going up. "He exploits all the shortcomings available to him," Camens said. "The only winner is Michael Zinser."
EnerSys Tactics Backfire
In its court paper, EnerSys admits that an "anti-union committee" at EnerSys "began working overtly to foment anti-union sentiment at the Sumter Plant." What union leaders began to realize in 2000 was that the group was getting illegal support either from management or someone they hired.
The New York Times reported in December that a worker who helped lead the anti-union campaign testified recently that "a mysterious consultant known as Mr. X had advised him on how to oust the union and had helped him write fliers that called the union's leaders names like 'trailer trash,' 'Uncle Tom,' and 'dog woman.' Not only that, (he) testified that envelopes filled with cash had often been sent to his home."'
"Mr. X" was later determined to be working with one of the lawyers. The man admitted in a deposition that he advised the committee, drafted anti-union materials and consulted with anti-union employees, according to court documents.
Jackson Lewis has admitted no wrongdoing. Quoted in the Dec. 14 New York Times story, a spokesman for the firm denied any role in trying to oust the union but said the company "zealously represents its clients."
Where the blame lies - with the lawyers or their client, EnerSys - will be hotly contested if the case makes it to court.
Vincent Gailliard, who served as the union's president and was fired by EnerSys in 2001, told the Times that "The company gave carte blanche to the law firm - the law firm was pretty much running the plant. It came back and slapped them in the face, and now they want someone to blame."
For a full report on the EnerSys case
and regular updates on NLRB issues visit the American Rights at Work website, www.americanrightsatwork.org.