Unusual Court Case Provides An Inside Look at Union-Busting

A rare inside glimpse of how employers and their union-busting advisers conspire came to light several years ago in a case involving CWA.

In 1994, when 400 production and maintenance employees attempted to organize a battery plant in Sumter, S.C., the employer, EnerSys, turned to the anti-union law firm Jackson Lewis for advice. Ten years later, EnerSys paid $7.75 million to IUE-CWA to settle lawsuits and unfair labor practice charges related to unlawful firings, failure to give notice that the plant was closing, refusal to bargain with the union about the shutdown and other illegalities.

Then, in an extremely rare turn of events, EnerSys sued Jackson Lewis to recover what it had paid to the union, plus attorney fees, "directly and proximately caused by [Jackson Lewis'] negligent advice." Jackson Lewis countersued for nonpayment of legal fees. 

Much of the interaction between Jackson Lewis and EnerSys management was portrayed in a New York Times article and in the depositions of witnesses.

During the organizing drive, the company forced workers to listen to speakers who claimed the union wouldn't help them and only wanted their dues. Management posted pictures of skulls and crossbones and tombstones in the cafeteria and warned workers that plants that unionize are often closed.

"They said if the union came in the company was doomed," Paulette Jackson told Times reporter Stephen Greenhouse. "They fought tooth and nail. They didn't want a union in the South, period."

The workers prevailed in their February 1995 election but Paulette, a quality control worker and union steward was fired — allegedly for failing to detect faulty batteries. Her supervisor later told the National Labor Relations Board the charges were trumped up.

The company refused to bargain a contract until ordered to do so two years later by the 4th Circuit for the U.S. Court of Appeals. An agreement was reached in April 1998, but some workers blamed the union when the company violated the contract, slashing pay by 16 percent. IUE-CWA took the dispute before an arbitrator, who — another two years later — ruled in the union's favor.

Then, in the fall of 2000, exploiting the workers' discontent, a longtime maintenance man at EnerSys, Tom Brown, began circulating fliers that called union leaders "trailer trash," "Uncle Tom," "Dog Woman" and other names. He later testified that a "Mr. X" had helped him write the fliers and that envelopes full of cash had been sent to his home.  "Mr. X" turned out to be Darrell Jennewine, a consultant illegally hired by a Jackson Lewis partner to work with the anti-union committee.

It later came to light in court proceedings that Brown knew EnerSys had illegally assisted the anti-union committee, could name names and threatened that "unless he was taken care of … he was going to blow the whistle." EnerSys executives arranged a job for Brown at another company and an enhanced severance package for a manager who had also been involved in the conspiracy.

Meanwhile, as business dwindled, EnerSys began to shut down the plant. It sent three rounds of notices to workers to be laid off, as required under the WARN Act, with a copy of the notices to the union. But in June 2001, on the advice of Jackson Lewis — and without going through NLRB procedures — the company withdrew recognition of the union and failed to send the union copies of subsequent WARN notices.

In his deposition, Daryl Davids, EnerSys' former human resources manager, indicated that the fourth WARN notice targeted numerous stewards and union officers for layoffs.

Finally, with no advance notice to the union as required under the WARN Act, EnerSys announced on Sept. 10, 2001, that it was closing the plant. On Nov. 1 of that year, the Sumter plant closed and never reopened. It took another three years to resolve the legal fallout.

Davids testified that in 2002 or 2003 he took before-and-after photos of sections of the plant where equipment had been moved out and sent to other EnerSys plants. He said he took the photos when he was putting together a model presentation to show other human resources managers how they could send a message to workers about what happens to plants when workers choose a union.

IUE-CWA President Jim Clark said, "Even though we won a handsome settlement in this case, it in no way remedies the harm done to the workers. We need a tougher labor law. Corporations like EnerSys look at fines and back pay awards imposed by the NLRB as simply part of the cost of doing business."