Corporations spend millions of dollars on union busting firms; experts at dividing workers, annihilating hope, and overwhelming organizers. But an equally ruthless organizer supported by dedicated local leaders can defeat them at their own game. Fear is a sword that cuts both ways.
Building a Legal Foundation
The National Labor Relations Board (NLRB) is a law enforcement agency created by Congress in 1935 to protect the rights of workers to form unions and engage in union activity. Management is limited in their ability to oppose workers’ choice to have union representation. They’re prohibited from threatening or coercing workers for union activity. It’s illegal to show favoritism to anti-union employees while discriminating against pro-union employees. But American labor law is filled with loopholes that are easily exploited.
When management wishes to shut down an organizing drive or decertify an existing local, they often hire union busting firms whose lawyers are experts at beating the system. Anti-union employees are allowed free run of the workplace to circulate a decertification petition. Management pressures workers considered vulnerable to sign the petition and threatens to close the facility if the union remains. Sometimes union leaders are fired under false pretexts. Everyone knows this is happening. The challenge is proving it to NLRB agents.
This is where the magical blend of union organizing and legal tactics comes into play. The employer maintains a law-abiding façade in the presence of union activists and targets workers perceived as weak links, confident in their fear of becoming whistleblowers. But some end up feeling shamed and angry. The first step is convincing them to meet privately with a union rep or lawyer. If their information is solid, the union will then have to persuade the witness to provide a sworn affidavit to an NLRB agent. All the legal knowledge in the world is useless if one doesn’t know how to talk to people and gain their trust.
"The Old NLRB" Board Members 1933 (Photo from the National Labor Relations Board)
It’s essential to explain the protections granted by the NLRB to potential witnesses:
Affidavits are confidential and the moment a worker sits down with an agent, they become a witness of the United States government. It’s a serious violation of federal law to discipline, fire, or even harass a worker for testifying.
It’s important for the union to conduct an investigation covertly. Never let management or anti’s know they’re being investigated or confront them about their violations. It would only serve to make them more careful. Better for them to grow arrogant and feel above the law, leading to mistakes that can be documented.
I employed this approach during a management-sponsored decertification effort at Mohawk Industries in 2017. Following a gut-wrenching process with terrified employees, we delivered over twenty witnesses to the NLRB, half of them nonmembers, resulting in a massive unfair labor practice complaint against the company.
A solid NLRB complaint is the cornerstone of most campaigns against union busters, providing the perfect opportunity to undermine management’s reputation as pillars of the community. Unfortunately, penalties for the employer’s illegal activities are minimal. If not overwhelmed by other tactics, they will often drag out an unwinnable case through a lengthy appeals process, fighting a war of attrition against worker morale.
What Terrifies Management?
When outgunned by a superior enemy, one must identify their vulnerabilities and how to exploit them. Behind smug exteriors and lofty mission statements, the driving force behind every corporation is fear. Executives fear both their customers and lending institutions, understanding that alienating either will result in falling stock prices and eventually getting fired. The secret is driving a wedge between companies and those who hold them accountable.
The first step after the NLRB issues a complaint is holding press conferences, with union spokespersons surrounded by workers. These gatherings create not only a great story but a photo-op. Once the press has become involved, the weapon is loaded and decisions must be made about where to aim. Intel about your targets can be easily gathered by studying shipping labels on outgoing product, casually chatting with friendly supervisors, and contacting the international union’s research department.
When dealing with manufacturers supplying other companies, draft a polite, professional letter to large customers, signed by as many workers as possible. Say how much you value their business and feel obliged to inform them of the NLRB complaint and escalating labor dispute that if not resolved, will present difficulties fulfilling orders in a timely manner. Include a press kit in the mailing. Submit a similar package to lending institutions, sharing regrets that your employer’s ability to meet debt obligations may soon be compromised. I guarantee the phones of top executives will soon be swamped with concerned calls from those they answer to.
The tactic is somewhat different when fighting companies selling directly to the public. Discover their primary marketing theme and generate conflicting publicity. I once negotiated a first contract with a licensee of Serta Mattress while directing a campaign against the union busters they’d hired. While studying Serta’s advertising, I noted their promotion of a wholesome, squeaky-clean image.
During my first meeting with workers, I learned they sometimes had to refurbish used mattresses that were sold to wholesalers who serviced migrant labor camps. To their disgust, the materials were occasionally stained with urine and other bodily fluids. I’d just been handed the silver bullet.
Of course, none of these second-hand mattresses were ever sold in department stores. But advertising is all about image. I held statewide press conferences, joined by dozens of workers, going into detail about this unsavory practice, along with the lengthy NLRB complaint issued for illegal union busting. Mattress customers continued to see Serta and Sealy displayed side by side, but now with repulsive stories about Serta in back of their minds. Shortly afterward, workers in thirty-one cities across America marched in protest of urine-soaked mattresses. Three weeks later, a great union contract was unanimously ratified.
It’s all about the Stock Market
What better way could there be to draw blood from a hostile employer than to crash its stock value? Unions should own a couple of shares in the stock of every company being fought or perceived as a future threat. It allows representatives to attend annual shareholder meetings.
I was engaged in a brutal three-year fight against an illegal decertification at Highland Yarn Mills, a subsidiary of Texfi Industries. Making full use of my discovery rights under the NLRA, I uncovered horrific health and safety violations, ultimately resulting in a willful citation by OSHA (their most serious determination) and the highest fine for cotton dust violations in North Carolina history.
I attended Texfi’s annual shareholder meeting accompanied by two local union officers and a battery of television cameras. I sat in the front row wearing a suit and tie, and rose at the appropriate time to address Chairman of the Board Terrell Sovey and my “fellow shareholders.” I politely asked Sovey how he expected the serious workplace hazards and resulting casualties at the Highland plant to affect corporate liabilities and stock value over the coming year. As he fumbled for an answer, the two workers circulated detailed documentation among shareholders while the cameras rolled.
Texfi stock fell the next morning. It was a major victory in a campaign leading to the termination of all plant management, a new union contract, and NLRB precedent that further defines illegal union busting.
Health and safety is the ultimate bipartisan issue when it comes to the press and public opinion, as even conservatives don’t condone an unsafe work environment.
Work-to-Rule Campaigns
This is in essence a work slowdown without the company being able to prove it – carefully and with finesse. It hurts the company economically almost as much as a strike, but with far less risk and no loss of income for workers. Unlike a strike, we can outlast them.
Employees are trained by management to perform their jobs by the book, according to specific protocols. But on the shop floor, these methods often prove to be cumbersome and unrealistic. They learn from co-workers how to cut corners without compromising quality, and thus produce at required levels.
During a work-to-rule campaign, workers revert to doing their jobs exactly as taught during training. They follow all regulations to the letter and thereby stall production. When questioned by management, employees explain they are mindfully performing their jobs as instructed. (After all, management always knows best.) As you can imagine, the result is utter chaos. Departments wait for expected work from elsewhere in the plant that is slow to arrive.
There’s a strategic discipline that must be maintained in order for these tactics to be successful and not backfire:
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Don’t initiate the campaign at a public meeting. Work through trusted committee members and stewards, who in turn spread the word to workers they trust, and designate competent friends to do the same.
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No one can ever hint to management or untrustworthy workers that this is a slowdown.
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Union representatives must feign no knowledge of what’s occurring on the shop floor.
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Workers must avoid insubordination. After some conversation, a supervisor may order a group of workers to resume their usual short cuts. Workers should act bewildered, but comply. The tactics will remain in effect elsewhere in the plant and in a few days, they can resume working-to-rule.
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Err on the side of not involving a worker if there’s any doubt about their loyalty or trustworthiness. (That includes having a big mouth.)
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If only half the workforce participates, it will still disrupt the plant.
Supplement these tactics with an informational picket line at dawn before shift start. With a good crowd, you’ll get solid media coverage. Let management think you’re on strike, but then report to work a minute before the bell (and work-to-rule.) All of this provides great ammunition for the aforementioned letter writing campaign.
I’ve leveraged numerous companies to sign good contracts through this approach. I never had one worker fired, or even disciplined. (It’s unrealistic to discipline a whole department or even half of it, especially for doing their jobs exactly as instructed.)
While engaging in sophisticated strategies, don’t ignore the basics. Maintain shop floor presence through union t-shirts, stickers and frequent leaflets. Bolster employee morale while presenting a frightening spectacle to the customer and bank officials you’ve been writing to, as they tour the plant.
It’s unfortunate that some recent high-profile organizing victories are unlikely to result in collective bargaining agreements. The flaw lies in the idealistic belief that an NLRB complaint, supported by “workers standing together,” will force employers to the bargaining table. When the day of reckoning arrives, it’s easy to point the finger at corrupt corporations and weak labor laws. A good organizer understands reality and how to turn management’s own weapons of fear and division against them.
*Serta Mattress Company had no knowledge of or complicity in the alleged practices of its licensee, as noted above.
Phil Cohen spent 30 years in the field as Special Projects Coordinator for Workers United/SEIU, and specialized in defeating professional union busters. He’s the author of Fighting Union Busters in a Carolina Carpet Mill and The Jackson Project: War in the American Workplace.
Graphic created by Patricia Ford.
