How Do You Drive Out a Union? South Carolina Factory Provides a Textbook Case

Tom Brown, the leader of an anti-union campaign at the EnerSys battery factory here, made some surprising admissions in recent testimony about how his campaign had been run and financed.

Mr. Brown, a longtime maintenance man, acknowledged 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, Mr. Brown testified that envelopes filled with cash had often been sent to his home. He said he had no idea who had sent them. "I don't look a gift horse in the mouth," he said.

Across the South companies have long used bare-knuckled tactics to fight unions. But now a surprisingly detailed roadmap to such tactics has emerged from an unusual court battle between EnerSys and its law firm over whose wrongdoing - the company's or its lawyers' - led to a $7.75 million settlement that EnerSys entered into after federal officials accused it of 120 labor law violations in its seven-year effort to eliminate the union.

The company has accused the firm, Jackson Lewis, of malpractice and of advising it to engage in illegal behavior. The law firm says that EnerSys ignored its sound advice and that the company is trying to avoid paying its legal bill.

The wrangling has cast a spotlight on how the company fired and harassed the union's top officials and aided Mr. Brown, the anti-union leader, although federal law prohibits companies from financing or otherwise assisting efforts to get rid of a union.

The litigation also highlights a little known but thriving business in which law firms and consultants work with corporations to beat back unionization efforts. Jackson Lewis, a national law firm based in New York, describes itself as "committed to the practice of preventive labor relations."

"Union membership is declining because employers will stop at nothing to prevent employees from having a union," said David Bonior, the former Michigan Congressman who is now president of American Rights at Work, an advocacy group fighting violations of workers' rights. "Unfortunately, 75 percent of employers use union-busting consultants to fight unionization drives."

Labor experts call the EnerSys case unusual, with federal labor officials accusing the company of firing the top seven union leaders, spying on workers, refusing to bargain and ultimately closing the 500-worker plant to retaliate against the union. Its $7.75 million settlement is evidence of how far the company strayed from the law. But labor experts also say the case opens a window onto some common tactics.

"Jackson Lewis is a key player in the union avoidance industry," said Fred Feinstein, former general counsel at the National Labor Relations Board. "This kind of aggressive anti-union campaign is not unusual."

"Jackson Lewis zealously represents its clients," Kevin A. Hall, a lawyer representing the firm, said. "In doing so, the firm always honors the letter and the spirit of the law. Jackson Lewis was neither involved in the initial campaign by the union to organize the employees nor involved in any effort to assist the employees to oust the union." EnerSys refused to comment.

This tale began a decade ago when the International Union of Electrical Workers began rounding up support at the factory, which produced giant batteries to power forklifts and provide backup power to cellphone towers.

The union petitioned for a unionization election when many workers voiced dismay about meager pensions, bullying supervisors, production speedups and safety problems, especially with the high temperatures and lead used in production.

The company, then called Yuasa, hired Jackson Lewis to help mount a last-minute anti-union campaign. The company required employees to listen to speakers saying the union did not want to help workers, but only wanted their dues money. Management posted pictures of tombstones and skulls and crossbones in the cafeteria to warn employees that unionized factories often closed.

But on Feb. 23, 1995, the workers voted 191 to 185 to unionize. Management was livid.

"They said that if the union came in the company was doomed," Paulette Jackson, a union steward and quality control worker, said. "They fought tooth and nail. They didn't want a union in the South. Period."

The company fired Ms. Jackson, accusing her of failing to detect some faulty batteries, but her supervisor later told the National Labor Relations Board that the charges were trumped up.

The company's tactics led to many tangles with the labor board, which ultimately filed a sweeping complaint against EnerSys, accusing it of 120 violations of federal law, among them wrongly firing Ms. Jackson and other union leaders, assisting the anti-union campaign, improperly withdrawing union recognition and moving production to nonunion plants as retaliation.

As a result of all the litigation - including the battle between the company and its lawyers - detail after detail of what had happened emerged. In a deposition, Darryl Davids, the factory's director of human resources, testified that John Craig, the company's president, had once said: "We need to do whatever we've got to do to get rid of this union, regardless of what it may cost us."

After the unionization vote, management refused to negotiate a contract, challenging the union's victory. After a two-year legal battle, a federal appeals court ruled that the union's victory was valid and ordered the company to bargain. During those two years, the company refused to grant raises.

Once negotiations began, the company said it faced such hard times, even though the economy was booming, that it would lay off workers unless the union accepted a 10 percent pay cut. Management indicated that a new "gainsharing" plan would offset those cuts by providing bonuses for increased productivity.

Pressured by union leaders from Washington, union officials and workers in Sumter reluctantly approved management's proposals, they say.

But then the company stunned the workers, cutting most salaries by 16 percent, not 10 percent. Workers complained that the gainsharing bonuses were minuscule, even though productivity had increased.

"They gave us a bum deal on that gainsharing," said David Bunker, a machine operator whose pay fell to $11.07 an hour from $13.26. "The union was trusting the company to do what is right. That didn't work."

The union protested the tiny bonuses, and the dispute went before an arbitrator. After two more years came a final ruling that EnerSys had improperly manipulated the system to give paltry bonuses.

The arbitration's star witness was a former human resources director, Choice Phillips. Mr. Phillips said the factory's budget had provided no money for bonuses, indicating that management had never intended to offset the pay cuts.

Mr. Phillips also testified that the plant manager, Doyle Thresher, used to leave cash on a table in his office for Mr. Brown, to help finance the anti-union campaign. The plant manager, Mr. Phillips testified, said the cash was "trash" that Mr. Brown was to pick up.

EnerSys said in legal hearings that Mr. Phillips had been fired for sexual harassment, an allegation he denies. The company won a defamation suit against him, but in November, a federal judge vacated that judgment, concluding that EnerSys had lied when it denied that it had helped the anti-union campaign. Mr. Phillips said he had been dismissed for refusing to participate in the company's illegal conduct.

"They did everything they could to make the union look bad," Larry Brown, a union vice president, said.

Many workers became angry with the union over the pay cuts, especially because they received no raises from 1995 to 2001.

The anger fueled the effort to oust the union. Tom Brown organized anti-union meetings, sent mailings to the plant's 500 workers and asked them to sign cards saying they wanted the union out.

Mr. Brown testified that Mr. X, the company consultant, had given him advice. EnerSys officials later admitted that they had paid the consultant $39,000 to help guide the anti-union campaign. Mr. Brown also acknowledged that company officials had given him stamps for anti-union mailings.

The company also went after union officials directly. In June 2001, EnerSys fired Vincent Gailliard, the union's president, during an arbitration hearing over the bonuses, accusing him of lying. EnerSys announced that same day that it was withdrawing recognition from the union, asserting that a majority of workers had signed cards saying they no longer wanted a union.

"They figured if they got rid of the leaders, the rest of us would buckle under," Cathy Moody, another fired union official, said.

The labor board accused EnerSys of fabricating its allegations against Mr. Gailliard, asserting that it fired him to cripple the union and cow workers.

Facing a downturn in orders, EnerSys began several rounds of layoffs in 2001, often giving no advance notice to the union. On Sept. 10, 2001, EnerSys announced it was closing the factory, again giving no notice.

Federal law generally requires that factories give unions notice before large-scale layoffs and plant closings.

Union officials said EnerSys's tactics were an egregious version of what many corporations do. According to N.L.R.B. statistics, companies illegally retaliate against 20,000 workers a year for supporting a union. And according to a study by Kate Bronfenbrenner of Cornell University, half the companies that face unionization campaigns threaten to close their plants and one fourth fire at least one union supporter to derail the campaigns.

Faced with the sweeping complaint by the N.L.R.B., EnerSys agreed to pay $7.75 million to settle the board's charges and the union's lawsuits over the failure to pay bonuses or give notice of the layoffs.

After the settlement, EnerSys sued Jackson Lewis, accusing it of malpractice, including misleading federal investigators, giving illegal assistance to Mr. Brown and engineering "a relentless and unlawful campaign to oust the union."

"The company gave carte blanche to the law firm - the law firm was pretty much running the plant," Mr. Gailliard said. "It came back and slapped them in the face, and now they want someone to blame."

EnerSys said that Jackson Lewis had engaged in malpractice by recommending that the company withdraw union recognition when the firm must have known about the illegal anti-union aid. Federal law bars the withdrawal of union recognition when companies have financed a decertification effort. EnerSys also accused Jackson Lewis of wrongly advising it not to give the union notice of the layoffs and plant closing.

Jackson Lewis has mounted a vigorous defense. It has accused EnerSys of obstructing justice and paying "hush money" to Mr. Brown by placing him in a job with a company that services the shuttered battery factory and by paying his salary there. EnerSys insists that the arrangement was not intended to buy silence.

Mr. Hall, the lawyer representing the firm, said, "Sometimes when clients ignore their attorneys' advice and end up with disappointing results, especially where legal fees are still outstanding, they deny responsibility for their own conduct and sue their lawyers for malpractice, hoping that the case will settle with a forgiveness of the legal fees." Jackson Lewis says EnerSys owes it more than $270,000.

Frank Macerato, general counsel for EnerSys, which is based in Reading, Pa., declined comment, saying the company would not discuss matters in litigation.

Today the factory lies quiet, and many workers remain unemployed. Jackie Clemmons, one of the earliest union supporters, said the firings, the lack of raises and the plant closing had all sent a powerful message.

"After all this, I don't think you could pay the people here to join a union, to mess with a union," Mr. Clemmons said. "And I don't believe the union would want to deal with us anymore down here."

It's not as if the Unions are a bunch of nuns or anything. They are constantly involved in some of the shadiest activities in this country. Well, consider the source.

The bottom line is that most unions make a company uncompetitive in the global market place. It's no coincidence that car companies that open up shop in the US wouldn't touch Michigan with a seven foot pole.

"I am just stunned that there is still a battery factory left in the U.S."

same here, and they look pretty solid -

http://www.enersysinc.com/backgrd.asp

Just hope the Unions don't drive them off-shore

I agree 100%, but I think the laws give almost no protection to the corporation. I still can't figure out why people demonize corporations. They are nothing more than a legal fiction. Just a group of people and resouces that are grouped together as a legal entity. It's morally neutral as far as I'm concerned.

I still can't figure out why people demonize corporations. They are nothing more than a legal fiction. Just a group of people and resouces that are grouped together as a legal entity. It's morally neutral as far as I'm concerned.

The same moral neutrality is applicable to unions.
Afterall, they too are merely a legal grouping of people.
Such a grouping is often necessary to balance negotiation power in the employer/employee relationship.
Abuses can (and do) occur on either side of that relationship, neither is inherently "good" nor "evil".

I agree except that unions exists for the sole reason of creating a monopoly on labor. Corporations exists for the sole reason of increasing profits. A corporation obtaining a monopoly is "usually" short lived because a new innovation changes the dynamics of the market after some time passes. But, there is such upsetting mechanism that exists with Unions. A innovation doesn't do something to knock the unions off of their perch. Also, a monopoly of the type that a corporation can obtain is usually in a market where there are alternative choices (but not always). Unions exists for the sole reason of ensuring that there is no other alternative choice. In other words, unions try to obtain a monopoly on a highly inelastic market, while corporations try to obtain a monopoly on a realitivly elastic market.

You are making an apples to oranges comparison.
If you want to discuss the effect of organized labor in the labor market, then you must compare it to the corporation's position in the SAME labor market, NOT the market where they sell their goods. When a large corporation locates facilities in a small labor market, they can indeed dictate terms of employment if insufficient alternative employers exist in that market.

You load sixteen tons, what do you get?
Another day older and deeper in debt
Saint Peter don't you call me 'cause I can't go
I owe my soul to the company store...

"... federal law prohibits companies from financing or otherwise assisting efforts to get rid of a union."

Bad law.

ditto.

the only unions left will be in schools, universities, police departments, prisons, the postal service, fire departments, etc., that can't be moved overseas.

few union employees work like other people in comparable businesses work.

Yes, I understand the distinction of the two market but I'm only trying to make the observation that a monopoly of labor is espically hurtfull because the market is inelastic. As a matter of fact, most labor markets are highly inelastic compared to any other kind of market. The more inelastic the market the higher the prices a monopoly can charge, thus getting more than what is optimally efficient for the economy overall.

As a matter of fact, most labor markets are highly inelastic compared to any other kind of market.

Small town labor markets have far less flexibility than larger urban areas. Both employees AND employers have fewer options available. However, due to economies of scale, it is the employer who holds monopolistic control over the working relationship unless there is at least the potential for labor organization to balance the negotiation process.

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