Unholy Alliance
The EnerSys company and its "union avoidance" law firm fought their employees' organizing campaign and lost. But so did the workers when EnerSys closed the plant.
By Susan Ellen Holleran
SUMTER, SOUTH CAROLINA
David Bunker is grateful that he has a job. But it doesn't pay nearly as much as the old one, and it provides only two weeks of annual vacation, not the four he used to get.
What happened to Bunker? The answer is all too simple: He and his co-workers decided to exercise their legal right to organize a union and the boss fought back. The bitter struggle that followed demonstrates yet again that many corporations will go to great lengths to keep workers from having a voice on the job. It also shows why unions and their members need a new law. (See red box, Page 26.) Although this story involves union busting at a private company, the issue raises concern for our members. We have increasingly been organizing in the private sector; and right-wing governors, in such states as Missouri and Indiana, have rescinded our bargaining rights and canceled our contracts.
Employer opposition is a leading reason for the recent decline in union membership. All too often, the interference includes hiring law firms specializing in "union avoidance" — that is, keeping unions out and weakening or destroying those that are voted in. Jackson Lewis, a national firm with offices across the country, is a pre-eminent example of this new breed of union busters (see Page 26). They carry briefcases instead of brass knuckles, but the devastation they bring to workers and their families is no less severe. (In September, President Bush nominated a partner at Jackson Lewis, Edwin Foulke, to be Assistant Secretary of Labor. Little more need be said about Bush's attitude toward unions and working families.)
Research by Cornell University's Kate Bronfenbrenner indicates that 75 percent of employers faced with union organizing campaigns hire these consultants. Some 25 percent of employers fire pro-union employees during campaigns, and 51 percent threaten to close down worksites if the organizing succeeds, even though both of those actions are illegal.
OBJECTIVE: NO UNION. David Bunker worked at EnerSys, an industrial battery factory in Sumter. When he and fellow employees decided they wanted a union, the company hired Jackson Lewis and mounted a 10-year campaign, first to derail the organizing drive, and then — when the workers won — to destroy their union. Facing 120 labor law violations arising from its union-busting efforts, EnerSys settled with its former employees for $7.75 million in 2004. The company subsequently sued Jackson Lewis for malpractice!
The suit has brought to light many details of this unholy alliance. It demonstrates how big business circumvents and ignores our current, toothless labor laws. And it demonstrates why the National Labor Relations Act, which was enacted to protect workers' rights, must be strengthened.
Production and maintenance workers at EnerSys (then called Yuasa) began organizing in 1994. "We were doing good till 1993," says Bunker. "That's when the company started doing us dirty. They were firing the more senior workers for no reason. And they insisted that we do two, three different jobs in the plant."
Few unions operate in this part of the country, but the International Union of Electrical Workers (IUE) decided to help the 400 EnerSys employees organize. The company immediately retained Jackson Lewis — infamous for union busting. Together, the corporation and the law firm deployed every weapon at their disposal to destroy the organizing effort and its leaders.
'WAR GAMES.' Jackson Lewis conducts union avoidance seminars around the country. One of them is called "War Games." EnerSys employees must have felt as if they were in a war zone. As the workers collected enough cards to bring in the NLRB for an election, EnerSys held mandatory anti-union meetings.
Management told the workers that — even if they voted for union representation — it would stall bargaining for three years, and it did. A majority of EnerSys production employees voted for IUE representation on Feb. 23, 1995. The company tried to throw out the election by appealing to the NLRB and then to a federal circuit court, which in 1997 ordered compliance with the NLRB's bargaining order.
Pointing to decreased earnings, management told the union that the workers would have to take a pay cut if the plant was to survive. It was a bitter pill to swallow, but EnerSys also proposed a new incentive plan — called "gainsharing" — where it said workers could actually earn more.
"By that time, we had been five years without an increase," says Cathy Moody, who was president of Local 175 and a member of the committee trying to win that first contract. "Management said that gainsharing would even things out." In April 1998, the members ratified their first contract. Union leaders felt relief at their accomplishment.
But EnerSys manipulated the gainsharing program to reduce wages by up to 16 percent — despite improvements in performance. In May 1999, an arbitrator ruled that the corporation had broken the contract and ordered a recalculation of employees' pay. Management appealed that decision all the way to the U.S. Supreme Court and lost. But that didn't help the workers.
"The company got away with murder," says Bunker. "The union pressed charges and won, but EnerSys kept appealing. Why doesn't our legal system step up to help the workers? Those anti-union lawyers are trying to kill us!"
STEWARDS TO THE FORE. Throughout the attacks, Local 175 members kept trying to build a union. Pres. Vincent Gailliard had recruited 19 stewards and helped them get the training they needed to deal with management assaults and keep everyone informed.
"The plant was 30 years old, and we were working with lead and battery acid," he recalls. "The union brought in health and safety specialists to meet with the workers." When it realized that the gainsharing plan was not working, the union also brought in the professor on whose book the plan was based to show how gainsharing should operate.
EnerSys made life difficult for union activists, firing at least seven of them, including Gailliard. The union got him reinstated, and he kept trying to save other jobs and strengthen the union.
Deciding it was time to push the union out, EnerSys, in the fall of 2000 recruited Tom Brown, who had been a maintenance worker at the plant for decades, to head up a decertification campaign that quickly became personal and nasty. Brown later testified that the company consultant he knew as "Mr. X" gave him advice and stamps for anti-union mailings and that he received envelopes of cash for his efforts to decertify the union.
The local Chamber of Commerce and newspaper joined the fray — on the company's side — picking up quotes from the flyers that blamed the union for pay cuts — even though management had rigged the gainsharing system.
CLOSING DOWN. For years, the plant manufactured several types of batteries. Now EnerSys moved most of them to other facilities, leaving Sumter with only one type. When demand for that one dropped, the company began a series of temporary and permanent layoffs, which added fuel to the decertification fire. In June 2001, in violation of NLRB regulations, EnerSys unilaterally withdrew recognition of Local 175.
From then until it closed the plant in November, management refused to communicate with the union. The company says it acted on advice of counsel, but it nonetheless violated the law. By shutting down the plant without notifying the union, it broke the federal WARN (Worker Adjustment and Retraining Notification) Act, which demands that management inform unions before a shutdown, so they can take whatever steps are necessary to protect their members.
As EnerSys and Jackson Lewis continue their bad-guys' brawl in the courts, hundreds of families try to pull their lives together in the aftermath of that destructive partnership. Although the IUE fought and won its battles at every step, the remedies for workers are meager indeed: an average per-person settlement of $15,000; replacement jobs that don't measure up to those that were lost.
Sumter is a small city, and after EnerSys closed, the union activists learned that they had been blackballed by the area's major employers. Some workers moved away. Gailliard went to Columbia, where the state Department of Corrections hired him. After many rejections, Bunker at last found a manufacturer who appreciated his skills and dependability. Moody now takes care of her grandchildren.
"We got a dirty deal at the end," says Cathy Moody who, along with her husband Jerry, lost her job. "Fifteen thousand dollars! What's that for a lifetime of work?"
How to Improve Workers' Rights
The Employee Free Choice Act was introduced in 2005 and has 42 Senate co-sponsors and 208 House co-sponsors. Its changes would strengthen the National Labor Relations Act and protect workers' rights to organize:
Jackson Lewis
The AFL-CIO rates Jackson Lewis as the country's No. 1 union buster. The management firm makes its headquarters on New York City's Park Avenue. With 20 offices nationwide, it employs more than 300 lawyers; annual revenues total nearly $40 million.
Helping swell the coffers are "union avoidance" workshops that are offered to prospective clients nationwide.
You can get a sense of the firm's brand of poison by visiting Jackson Lewis.
