Spotlight on Union Busters

Union busting is a field populated by bullies and built on deceit. A campaign against a union is an assault on individuals and a war on truth. As such, it is a war without honor. The only way to bust a union is to lie, distort, manipulate, threaten, and always, always attack.

Martin Jay Levitt, 1993, Confessions of a Union Buster

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union busting
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Just as any good union organizer needs to size up a company early on, so too does the cagy consultant search for evidence of your weaknesses and vulnerabilities. Such information comes from government-required filings such as LM2 forms and other public documents. In addition to the names and titles of union officers, they disclose the locations of union offices, membership size and details of a union's structure and finances.

You can count on the consultant to publicize everything he can find about the union's dues rates and initiation fees. He'll also do his best to distort the reality that dues are necessary to provide collective bargaining and contract administration services, arbitration hearings, education, job training and strike assistance.

In their zeal to portray unions as "outside third parties," consultants will direct payroll departments to deduct the maximum dues amount from employees' checks during an organizing campaign, and then reissue the deducted amount in a separate check. "This is what you can expect every month if the union gets in," they'll proclaim.

This type of paycheck ploy is often used just before a vote on representation. Long before that, your union should have already conducted frank and thorough discussions of dues and especially of how contract benefits won by your union will more than compensate for the amount deducted. Some prospective members may not even realize that dues aren't collected until after a contract is negotiated and ratified by the membership!
Speaking of threats, the employer will now raise the specter of strikes, implying that there is no alternative. He'll say something like: "Even though we think of all of you as family, if a strike takes place, we won't rule out hiring replacements."

Two things you must remember about strikes - There are Two Types of Strikes
"economic" strikes and "unfair labor practice" strikes

United States labor law draws a distinction, in the case of private sector employers covered by the National Labor Relations Act, between "economic" and "unfair labor practice" strikes. An employer may not fire, but may permanently replace, workers who engage in a strike over economic issues.

On the other hand, employers who commit unfair labor practices (ULPs) may not replace employees who strike over ULPs, and must fire any strikebreakers they have hired as replacements in order to reinstate the striking workers. EMPLOYERS NEVER TELL YOU ABOUT ECONOMIC STRIKES.

The other thing you should know about strikes is that no union can force you out on strike just like a union can't force you to jump off a building!
Generally, strikes are rare: according to the News Media Guild, 98% of union contracts in the United States are settled each year without a strike.
Backers of the union may already have been fired or threatened with discharge. At the very least, you can assume that the movements of key leaders in and around the workplace will be severely restricted and they'll be under constant surveillance.

With few exceptions, employers will violate the National Labor Relations Act repeatedly during an organizing campaign. How can the union respond? Given the weakness of the Labor Board as an instrument to secure justice, many employers are completely unfazed when a union responds to discriminatory terminations by filing unfair labor practice (ULP) charges. If you were a fly on the wall during a private meeting of the employer and his consultant, you'd hear them saying things like this:

"What's the worst scenario we're looking at? Even if we're found guilty of committing ULPs, victims of discrimination are only entitled to back pay and reinstatement - and that's assuming that in the interim (which could mean many months or years), they've made a diligent search for work and haven't turned down any job offers."

Even a well-intentioned bureaucracy usually moves at a snail's pace, and the National Labor Relations Board (which administers the Labor Act and attempts to settle disputes over its interpretation) is no exception. And as everyone knows, "Justice delayed is justice denied."

If there are enough strong supporters of the union and you're sure they won't back down in the face of adversity, a union can consider calling an unfair labor practice strike. However, this can be very risky - particularly during an economic slump or a period of high unemployment.
Instilling in employees' minds what companies like to call "the downside of unionism" is a priority item on management's agenda as Election Day nears. In meetings or in writing, they'll exploit workers' fear of the unknown with this type of message:

"We want to discuss with you, our trusted employees, what a company like ours needs to survive and remain competitive in today's economy. In a word, that means flexibility. We're proud of our history and our ability to provide stable jobs, good pay and benefits in the years since we chose to set up our business here. But the determination on whether to stay here has been - and will continue to be - based on sound economic reasoning."

The union will invariably be labeled a "third party" or an "outside party" bent on disrupting friendly, established relationships: "This is not to say that should you choose an outside party to represent you, we would necessarily pick up and move to a new location. After all, to say so at this juncture would be unethical." (Incidentally, it would also be illegal.)

Once again skirting the edges of illegality, your foes will say: "By continuing to work together, without any undue influence from those who would weigh us down with restrictive production requirements and bothersome union rules, we will succeed in meeting our goals." Through such thinly-veiled threats, seeds are planted in every worker's mind: "Will I lose my job next month if the union is voted in?"
When I was a little boy my parents use to tell me not to go in the basement  because the Boogie Man Lived Their ... When I Grew Up I Realized there was no such thing as the Boogie Man !
The vote on union representation at our hypothetical workplace is now only two weeks away. Will the workers choose the union, or will they succumb to the false hopes of a "better," union-free future that the employer and his fear-mongering consultants have instilled?

If the union has managed to retain majority support at this late stage, management knows it's time to drop some big bombshells. Some union-busting consultants have become specialists in particular industries or have positioned themselves to challenge the same labor organizations in many locations. The bombshells they lob at the last minute may be fashioned from records they've carefully compiled to identify disgruntled members of an international union.

It doesn't matter if (as is often the case) the "horror stories" happened years ago, involved only a handful of people or simply bear no resemblance to the realities of your situation. Since the consultant routinely portrays union advocates as "outsiders," he has every reason to reinforce this bad-guy image with wildly exaggerated tales of what "this very same union" did a long time ago, thousands of miles away.

As we've noted before, at various stages in an organizing campaign the most activist unions rely on their own rank-and-file members to rally support from those they seek to organize. The stale "horror stories" and the "outsider" stigmas lose their sting when they are countered with sincere, believable testimony of real people who speak from their own experience about union pride and achievements.
Jackson, Lewis, Schnitzler & Krupman, founded in 1958 and headquartered on Park Avenue in New York, is a national "labor and employment law firm" which represents management exclusively. With 20 offices in 11 states, more than 300 lawyers and annual revenues of nearly $40 million, they are formidable indeed.

One of the first outfits to refine the techniques of "coaching" management on preventing unionization, Jackson Lewis is also one of the few bold enough to write a book on the subject. But don't look for "Winning NLRB Elections: Avoiding Unionization Through Preventative Employee Relations Programs" on the shelves at Barnes & Noble. Jackson Lewis won't even sell the book, now in its fourth edition, to individuals, let alone to unions.

The 253-page volume, billed on its back cover as "the best and most comprehensive publications on how to establish and maintain a union-free workplace," actually doesn't reveal more than the broad outlines of what a capable consultant's "bag of tricks" contains. Still, it illustrates much of the basic posture union busters recommend when confronting unions.
Since 1935, the law has provided two ways for employees to express the choice to be represented by a union: majority sign-up or a NLRB Election

Organized labor's top legislative goal this year is passage of the federal Employee Free Choice Act, which would allow formation of a local labor union branch if a majority of employees sign union cards. Opponents, who favor continued secret ballots, say the act would invite undue peer pressure to sign a union card. President Barack Obama supports EFCA, but Democrats are short of the 60 Senate votes needed to assure its passage. Here are views, pro and con.

The EFCA would contribute to economic recovery by making it easier for workers to bargain for improved wages, hours and working conditions. It would not take away the right of employees to vote on whether to form a union.
Employee sign-up was legal even before the National Labor Relations Act was passed. When a majority of employees had signed cards or petitions designating a union as their representative, the employer could legally negotiate with the representative. The act was interpreted as giving the company the right to decide whether the employees would choose a union through majority sign-up or through an election conducted on the company's premises.

The process of forming a union with or without the Employee Free Choice Act would remain the same.

The only difference would be if the Employee Free Choice Act should be passed is that:

The EFCA would give employees, rather than the company, the right to decide which method to use.

Spotlight on the Union-Busters
It's time for a closer look at the anti-union consultants who have been a prominent feature of the labor-management landscape since the early 1970s, quietly developing, marketing and fine-tuning their programs and tactics on behalf of employers.

Their basic goal and the fondest wish of those who hire them is, of course, to keep unions out of workplaces or to decertify established unions. When negotiations can't be avoided or delayed any longer, they take a new tack: meet with the union but try to make bargaining as onerous and excruciating as possible.

In extreme cases, the employer-consultant team will not only "go through the motions" of bargaining, but will fabricate some crisis that provokes the union to strike and allows the employer to replace the entire work force with people who are younger, cheaper and "more flexible' (that is, easier to control).

Union people from the local level to the largest internationals have long sought to counter such brazen aggression and regain a level playing field for genuine collective bargaining. Knowing the enemy who may be hiding behind the boss is often the key to success for organizers.

They Work Behind the Scenes
Always assume that the union-busting consultant has sold your boss on a "3-C" strategy: conceal, camouflage, and operate clandestinely. Rarely will the consultant reveal himself during a "preventative campaign," certainly not to anyone eligible to vote in a representation election. Realizing that to occupy center stage is to reveal the employer's and his own motives, the consultant will stay behind the scenes, advising corporate officers and middle managers on what to say and how and when to say it.

The mountain of anti-union propaganda to which workers are exposed during the typical consultant's campaign bears witness to this. For a union, any opportunity to expose the fact that an employer has engaged the services of an anti-union law firm should be seized.

Jackson Lewis: They (Literally) Wrote the Book On

Union-Busters They Search for Soft Spots
Finding Out About Fines

It's a glorious day for your consultant foe when he discovers any history of fines or assessments imposed by your union (or perhaps even some other union) on individual members. He can then circulate a flyer asking, "Can you guess the amount of the highest fine the union ever imposed on one of its members?"

The "quiz" can become a contest in which the worker making the closest guess wins a TV set or some other prize. Even though the chances of getting fined by your union are right up there with getting struck by lightning or winning the big jackpot in the lottery, you should be ready to respond to these questions before the other side brings them up.

We've all read newspapers and seen TV news reports cluttered with references to "union bigs" and "union bosses." Expect to find these terms in the materials generated by consultants; after all, their own prosperity depends upon perpetuating the myth that all unions are run by greedy fat cats whose only concern is squeezing out more dues dollars to pay for limousines and Las Vegas junkets. Remember: the consultant wants his client's employees to think of a union as "just another business, only worse than most."

Spotlight on Union Busters:Four Weeks and Counting

For both unions and management, the last four weeks of an election campaign are critical. Each side must use its most effective arguments and techniques of persuasion to gather peak support by election day.

While no two organizing or election situations are exactly alike, anti-union consultants always have a basic game plan for an upcoming representational vote. When you learn that an employer has hired lawyers and other professionals who specialize in keeping workplaces "union-free," you can anticipate certain kinds of behavior and plan your own initiatives and responses accordingly.

Let's suppose an election is just four weeks away. At this stage, the union is concentrating on large group meetings, home visits and literature aimed at exposing the employer's vulnerabilities. The standard, "boilerplate" strategy of the union busters is designed to force you onto the defensive. The trick is not to fall into his trap, but to stay on the offensive and maneuver the employer into reacting to what you're doing and saying.

An Election is Set

The National Labor Relations Board regional director has issued a decision and directed an election (or both parties have entered into a stipulated election agreement). When the Labor Board has determined which employees can and cannot vote and makes known such details as voting hours and the location of polling places, a race often ensues between company and union to see who will be the first to notify employees.

The employer's consultant team will begin intensive training meetings for front-line supervisors. Several times a week until election day, they'll gather to discuss and refine the not-so-subtle arts of intimidation, persuasion by instilling fear and divide-and-conquer techniques.

It's important to note that the hearts and minds of foremen and front-line supervisors are often up for grabs in ways that union organizers don't always recognize. By not taking seriously the existence of close personal ties between workers and these individuals, or by being unaware of them, union organizers may be too quick to concede this ground to their opponents.

Professional union busters, aware of such relationships and how they have been affected by them in the past, are quick to search them out. The union, through its in-plant committees, should vie for the support of all - including even those who aren't eligible to vote, but can still influence the outcome of the election.

We're not suggesting that union organizers invite middle management people to group meetings or meet openly with supervisors. But the friendship and trust that has developed over time between some workers and mid-level management can be encouraged in the hope that it may spawn a useful grapevine and an early warning mechanism to give the union an advance look at what to expect.

When the Supervisors Emerge - The First Line of Defense
After all the intense training by the employer's consulting squad, the supervisors will emerge, ready to launch their carefully calibrated propaganda barrage. The initial presentation often will set the tone for the whole campaign.

"We (the good employer) want you to consider all the facts before making a decision that could affect the rest of your lives," they'll say. "Be sure you understand the difference between reality and wishful thinking."

Just as any good union organizer needs to act early to "inoculate" those they seek to organize, so does the anti-union consultant attempt to poison workers' perception of the union. "They're calling your company liars," they'll say - and while they may indeed be liars, you must be careful to avoid saying so unless you can support the charge with solid facts.

Organizers can make a great deal of headway by sharing with workers the contract terms and provisions that have been won for others in similar workplaces or in the same industry. As long as you make it clear that someone else's contract cannot be construed as a promise or guarantee of what will be obtained for them, you'll be well positioned to counter the veiled threats union busters customarily use: for example, "Every wage provision and benefit term currently provided by your employer is subject to change and could be reduced as a result of negotiations."

Self-interest vs. Solidarity

A multifaceted approach is the key to placing pressure on your organizing targets. It is a great advantage to be able to point to examples of a company's vulnerabilities with respect to relationships with other businesses, insurers, banks, creditors and the general public. The employer may be subject to criticism from environmental watchdogs, civil rights advocates, consumer groups or others with broad community interests.

Union busters encourage a "go-it-alone, every man for himself" mentality. They'll argue that individual self-interest should take precedence over all other considerations. An activist-oriented campaign, in which your future membership is directly involved, is the best possible approach.

Spotlight on Union Busters:Three Weeks Until Election Day

With a representation vote only three weeks away, you can be certain that the employer's union-busting consultants have identified key members of your in-house organizing committee.

Feasting on Fear of the Unknown - The Boogie Man Strategy

Exploiting such fears is at the heart of all "union avoidance" strategies. Less easy to spot are the effects of conflict generated during the organizing process - conflict as distinguished from fear, because the adversarial relationship itself has an impact on undecided workers.

Anti-union consultants advise managements to take actions that polarize the workplace, and then transfer blame to "outside agitators" and "inside troublemakers." A divide-and-conquer strategy, pitting worker against worker based on race, gender, age, seniority, skill levels or a combination of all these factors, can stop organizers in their tracks. From the employer's point of view, the morale of the workforce takes a back seat to the primary objective of defeating the union.

With employees still divided on the need to organize, management can haul out some of its most trusted brown-nosers in the workforce and beam contentedly (from a legally safe distance) as they form a "Vote No Committee." A petition will be circulated saying, "I would like to be counted among the group of employees who want to be recognized as against unionization."

A simple checkmark near one's signature grants the committee permission to print each signer's name on flyers that will soon appear. When they do, some workers who initially chose not to sign will start worrying that they could now be viewed as
pro-union. And of course, the non-signers will soon get another chance to sign.

Alert unionists will see this kind of challenge coming and will make sure that pro-union sentiment becomes just as visible and tangible. Lots of workers wearing "Union Yes" buttons, caps, T-shirts and other paraphernalia will demonstrate the growing popularity of the union and the isolation of management's brown-nosing allies.

Spotlight on Union Busters: Two Weeks Until Election Day
Paychecks and promises

Often, in the campaign's final stages, it comes down to this: the payday surprise. As the employer hands out the pay envelopes, suddenly someone shouts: "Hey, what's going on? I've been shortchanged!"

Anti-union leaflets based on the notion that the union had better "put its promises in writing" tend to multiply at this stage. Here is some typical wording as recommended by a prominent consultant:

"Ask the union salesperson for a signed, notarized, legally enforceable guarantee about any of the following:

"1. I guarantee you will get a pay raise of (blank space for amount promised) in your first contract.

"2. I guarantee you will not lose any of your current wages or benefits as long as you are represented by my union.

"3. I guarantee if you are called out on an economic strike, your job will not be filled by a permanent replacement.

"The union won't sign this because it can't make such guarantees. Talk is cheap - VOTE NO!"

Another type of "supervisory handout" that is often held back until the last weeks is what the notorious consultants, Jackson, Lewis, Schnitzler and Krupman (in their $75-a-copy book, Winning NLRB Elections) call "Your Personal Strike Cost Calculator." Over a chart with the heading, "How Long Will It Take You to Break Even after a Four-Week Strike?", columns of figures are stacked up like poker chips portraying ever-growing amounts of "lost wages."

Then there's the "contest" type of flyer, which asks questions like, "What's the largest fine ever levied against a member of the union?" and "What was the length of the union's longest strike?" Ostensibly to protect the "privacy" of contest entrants, entries are numbered and the employee retains a receipt. The correct answers and the winning number are announced right before the election.

Small group meetings and supervisory handouts may also be devoted to "the truth about collective bargaining," or at least the consultant's version of the truth. Management's basic point is that nothing in the law compels an employer to agree to any union "demands." They'll quote with approval the segment of the Labor Act that says an employer's only obligation is "to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment...but such obligation does not compel either party to agree to a proposal or require the making of a concession."

If the union has done its job of preparing those whom it seeks to organize to do battle with the employer, all the flyers will fall flat and workers will react to the rhetoric at the "captive audience" meetings with skepticism. A viable union campaign isn't built on false promises; it's developed through visible strategies that show how working people can bring the utmost pressure to bear on a company and its corporate allies.

Spotlight on Union Busters:
Both Sides Turn Up the Heat As Election Day Approaches

After all is said and done in a contentious union election campaign, neither side can afford to sit back and relax on the eve of the voting, even when one side clearly appears to hold the edge.
The boss then hands out a second set of envelopes, labeled on the outside: "Enclosed is $20 of your hard-earned money, the minimum amount the union takes from its members' paychecks every month." Union-busting consultants call this all-too-common ploy "the split paycheck stuffer." The National Labor Relations Board deems it an acceptable tactic as long as it's used no less than 24 hours before the voting.
At times like this, expect the unexpected. Figuratively speaking, rabbits will be pulled out of hats. Seasoned union busters will pull out all the stops if they think the union might prevail. And if ever there was a time when anti-union adherents would be likeliest to provoke violence this is it.

Management and their consultants may feel emboldened to encourage a visible demonstration of what they have alleged throughout the campaign - namely, that unions breed dissension in the workplace.

The potential for such management provocation is not always easy to recognize. The attentive union organizer will look for signs of it, such as reports of verbal altercations, sexual harassment, company bullies being transferred into departments where there is a high level of support for the union, and cases of intimidation outside the workplace.

Regardless of how it originates, violence always poses a dilemma. Publicly identifying where the hostility came from may help, but won't resolve underlying fears that the workplace may become a very hostile place if the union wins. At a minimum, the union should promote non-violence and strongly encourage those who might be prone to violence not to be provoked. When conflicts arise organizers should encourage all pro-union workers to "turn the other cheek."
The Full-Court Press

With so little campaign time remaining, activist unions at this stage will have their in-plant committees functioning at full tilt. They will have identified strong supporters, the uncommitted, and co-workers who don't favor a union at all. Since management's consultants have directed the employer to do the same, the endgame for both sides is to sway the group still on the fence.

For the employer, that means intense one-on-one sessions pairing supervisors with undecided members of the bargaining unit. For you and the union, it means targeted home visits in which organizing committee volunteers reach out to those same potential voters.

During the last week there will also be one or more handouts or mailings by the company as well as the union. Each will be timed to reach voters as close to election day as possible. Naturally, management will attempt to push its "trust only us" line of malarkey, while the union will emphasize a "look forward to a better future" theme, complete with outlines of the kind of proposals the union and its member-based negotiating committee plans to present to the company.

The employer may proclaim or imply that he has a "new attitude" and has suddenly realized the need to improve communications with workers. A savvy union response to such a claim would be, "That's why we're here, to keep 'em honest and ensure that your voices are heard."

The 'White Knight' Approach
In a large-group setting, a top management official who has not previously been seen during the campaign may appear. He announces: "Because of the sensitive legal circumstances at present, we are prohibited from making any promises just now. However, be assured that your concerns have not gone unnoticed. If you support us at this most difficult time, major changes will take place in the future."

Whether or not this kind of appeal materializes you should assure those you have been organizing that shortly before election day, there may be veiled promises and vague assurances that are no guarantee at all and that the employer would never dare to put in writing. If management were truly sincere, why fight the union in the first place? Guarantees for workers are what contracts are all about.

The union also needs to pull out all the stops. The last week of the campaign is probably the best time to unveil labor and community support for the organizing drive. Schedule that rally. March up Main Street. Call out every available unionist, religious leader and political leader who would speak out for justice.

At this juncture, even if your chances of winning are slight management may minimize retaliatory moves against union supporters simply because of the fear that a larger social movement has grown out of the attempt to organize their employees. And even a minimal public turnout before the vote can strongly encourage workers who need to know they are not alone in the struggle.

Prior to the vote organizers should know who is scheduled to work and when even though you have done everything you can to publicize the date and times of the voting. You can't leave anything to chance. If you know any union supporters who have the day off make sure they show up to vote, even if it means offering to drive them to the polls yourself. I've seen more than one election in which my own union observers told me that they forgot to vote.

Counting the Ballots

Face it: you go to enough representation elections, you're going to experience a few squeakers. I've always dreaded ballot counts, even when I knew my union was going to win. You stand there trying to keep count while the Labor Board agent separates the ballots into two piles. What's the point in trying to keep an accurate count anyway - so you'll know the results 30 seconds before the tally is officially announced.

In more than 30 years of organizing I have yet to get the count right on my personal check-off sheet. What I have succeeded in doing, however, is determining the outcome before a single ballot was cast.

If we do our homework and regularly interview members of the organizing committee, we'll know how each and every employee stands long before they enter the booth.

If we don't, we risk everything. There is no such thing as a silent majority. If you see certain people turning out to vote, or at least hear them discussing the issues, you can probably predict how they'll vote.
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