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Unionbusting Confidential (cont’d)

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One such scenario dealt with union authorization cards being circulated at a factory. Stief, playing a confused worker, turned to a hotel executive named Kevin. “How are you doing, boss?” said Stief. “My uncle is in the UFCW and I met an organizer with them, Rob Youblind. I need to fill out a card about interest in a union. What should I do with the card?”

Kevin didn’t know. Stief advised him to warn his employee of the dangers of signing his names to such a document. “It’s a legally binding contract, it’s like a power of attorney, it’s like signing a blank check,” Stief said. “When you talk to them, bring it down to their level.”

Another example dealt with a supervisor who had harbored sympathy towards union organizing. “You know what we do with a supervisor who comes to you and says, ‘Hey, boss, it wasn’t me, they said it was the company’?” asked Stieff. He jerked his tie upwards against his neck to suggest a hanging–the only time the lawyers openly hinted at lawbreaking.

What if we simply wanted to fire union organizers? That was possible to do, said Stief, as long as you were careful to do so for other reasons. “Union sympathizers aren’t entitled to any more protection than other workers,” he explained. But the firing could not be linked to their union activity.

What if we felt like saying a lot of anti-union stuff to our workers? Lotito introduced a segment called “You Can Say It.” Could we tell our workers, for instance, that a union had held strike at a nearby facility only to find that all the strikers had been replaced–and that the same could happen to the employees here? Sure, said Lotito. “It’s lawful.” He added, “What happens if this statement is a lie? They didn’t have another strike, there were no replacements? It’s still lawful: The labor board doesn’t really care if people are lying.”

But if everything failed, and we found ourselves negotiating with a newly formed union, then we still shouldn’t lose heart. Instead, we could continue to undermine the union by rejecting all of its demands during negotiations. (In fact, in about a third of the cases after a union victory, employers don’t even agree to a contract.) The trick was in how to word refusals. First, with a shout, Stief demonstrated what not to say in response to a demand for increased wages: “I’m not listening to no stinkin’ wage increases!” He resumed his normal voice: “Does that sound like good faith? No.” Then Stieff showed us the proper alternative: “I’m not inclined to agree to that proposal at this time.” He observed. “Does that sound like good faith? Yes, but I’m saying the same thing I did before.” The lesson? “You can say no to anything.”

If such examples were intended to sell us on the idea of hiring legal experts, the irony is that Jackson Lewis has advised companies that have sometimes gotten into serious legal trouble. In the case of EnerSys, a South Carolina battery plant that retained Jackson Lewis at a cost of $2.7 million to thwart unionization, things got so bad that the NLRB eventually filed a complaint against EnerSys, accusing it of 120 violations of labor law, leading to a $7.75 million settlement with federal officials. EnerSys, for its part, would subsequently sue Jackson Lewis for engaging in what it termed “a relentless and unlawful campaign to oust the union.” (EnerSys was apparently astonished to learn that the union-busting firm they’d hired had engaged in union-busting.) Jackson Lewis forcefully denied that it advised or engaged in wrongdoing. The case was recently settled under confidential terms.

At your service

I had learned much in our two days together, but for those of us who’d become attached to our new friends at Jackson Lewis, we could take solace in an additional half-hour of free phone consultation. I called Michael Stief to ask him how to get rid of possible union sympathizers. I explained my concern about the “master contract” the SEIU local had arranged with its residential buildings for $18-per-hour porter salaries.

Stief assured me that the solution was essentially more Stief, or at least more Jackson Lewis, noting the New York branch’s expertise in challenging SEIU there. “That’s why you need us,” he said. “You’re not a mammoth company and you can’t afford a contract like that. The implications of that are not good for anybody.” What did he mean? “Between us, if you’re telling me that if you had to live under the master agreement, you’d be out of business and they’d be out of work–that’s what I mean,” he said. He added with a laugh, “There’s a legal way to say that.”

That’s where Jackson Lewis would come in. “Jackson Lewis was founded on the concept of preventive labor relations, and we want to help our clients before there’s full-blown organizing,” Stief told me. “We are a full-service law firm,” he stressed. “We just don’t do the legal stuff–we handle the campaign.”

I said I’d think about it.

Art Levine, a contributing editor of The Washington Monthly, has written for Mother Jones, The American Prospect, The New Republic, The Atlantic, Slate.com, Salon.com and numerous other publications.

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