Forget Haymarket and Harlan County: The front line of today's labor struggle is a hotel conference room in Cleveland.
by Kim Phillips-Fein
These days, the descendants of union-busting operations such as the Pinkertons carry briefcases instead of truncheons, stride into CEOs' offices instead of lurking near the gates with bats, and take advantage of weak labor laws and ineffective regulatory agencies to bust unions right and left instead of having employers ask the governor to call out the National Guard.
When workers at Citarella Fine Foods, a gourmet meat and fish store on New York's Upper West Side, started talking union, Citarella's owner, Joe Gurrera, wasn't pleased: He promptly fired three pro-union workers. After the United Food and Commercial Workers union organized months of community protest, the workers were reinstated, but Citarella is still nonunion.
The man behind the scenes counseling Gurrera was Alfred DeMaria, a partner at one of New York's well-known labor law firms, Clifton, Budd & DeMaria. DeMaria advised Citarella's owner throughout the worker-reinstatement battle, and, organizers say, was instrumental in keeping the store nonunion. Such aggressive anti-union campaigns are increasingly common as the labor movement pushes to organize workers, especially in the service sector. These anti-union strategists skirt the edges of legality, and DeMaria is just one example in a growing industry of professional union busters, experts in showing employers how to keep labor from organizing and still remain within the law, teaching them these tactics via a newsletter, pamphlets, a video series, and "continuing education" seminars such as the one Mother Jones sat in on this June.
At these seminars, lawyers and labor relations consultants from the nation's top union-busting law firms come to speak to rapt, intimate groups of executives, advising them on how to beat union election drives, do end runs around the National Labor Relations Board (NLRB), and decertify unions, all the while hawking their own firms' services. Union members are expressly banned.
Hoping to find out for ourselves the secrets of these modern day Pinkertons, we slipped into a seminar in Cleveland, Ohio, titled Maintaining Nonunion Status. Led by DeMaria himself, the two-day event was organized by Executive Enterprises, one of the largest, best-known, and oldest management training seminar firms in the country. The New York City-based company -- founded in the first wave of white-collar union busting during the 1970s -- holds regular workshops on topics ranging from how to deal with environmental regulation to union avoidance. They are pricey (about $500 a day), and designed to "deliver...information to high-level executives."
Surprisingly, the 20-odd executives gathered in the windowless conference room on the seventh floor of the Embassy Suites hotel aren't rabid anti-union ideologues. From vice presidents of midsized Rust Belt manufacturing companies to human resources managers at Southern food-processing plants, they're not really "high-level executives," either -- more like midlevel managers who've been looking forward to this all-expenses-paid company trip...to Cleveland. In the frequent coffee breaks and over the abysmal hotel lunch, they chatter about what they're going to do at night -- the Rock and Roll Hall of Fame? an Indians game? -- and what shops they'll visit before heading back to the airport on Wednesday. One vice president of an auto parts firm says his father has been a United Auto Workers union member for 30 years ("I didn't tell him I was at this meeting," he says sheepishly). Another participant used to be a lawyer for Local 1199 of the Hospital League, the health care workers union in New York City. Sometimes they even sound sympathetic to their workers' desire to unionize: "Our people are in food service. They have no benefits and we pay them minimum wage. What do they have to lose?" comments one attendee.
It is the seminar leader's task to take the mild, straightforward attitude of these human resources managers -- who are here because discouraging unions is basically part of their job -- and transform it into one of visceral fear and loathing toward the unions. With his New York accent and matter-of-fact hostility toward labor organizers, DeMaria is good at his job.
DeMaria's work for Citarella fits into a career of anti-union campaigns that spans the entire country and three decades. He is also the author of How Management Wins Union Organizing Campaigns and several other handbooks filled with union-busting tips, copies of sample anti-union fliers and leaflets, and texts of speeches shop-floor supervisors can make to discourage their workers from unionizing. On top of all that, DeMaria edits a monthly anti-union newsletter, Management Report.
Tellingly, the overriding metaphor DeMaria uses during the seminar is that of battle. The days of actual violence against union organizers may be waning, but DeMaria's language is larded with imagery that recalls its heyday. "The earlier you know that the enemy is out there, the faster you can act to nip it in the bud," he says. From the moment the campaign starts, he explains, union and management are in a state of war: "When the enemy is at the gate, you got to combat it."
In DeMaria's war zone scenario, even the most harmless activity of workers starts to seem ominous and threatening, a harbinger of skirmishes to come.
How to tell if a union is about to hit? Well, there might be "small gatherings of employees," "a great deal of busyness during breaks," and, DeMaria warns, "the restroom becomes suddenly very popular.... You'd think there was some kind of a kidney disease going around the plant."
Just as DeMaria frightens the human resources managers with images of unions stirring up betrayal among loyal employees, he so instructs the managers to terrify the supervisors with visions of greedy, fat-cat, strike-happy, Mob-infested unions.
To illustrate the horror of union organizing, DeMaria screens the first video in a series made especially for supervisors. It's a seething melodrama about an arrogant, lazy worker who becomes the union steward. The steward waves a pesky union contract all over the place, making it impossible for the supervisor to promote or fire his workers, demand overtime, or control his employees. "In a union shop," the narrator intones, "discipline goes to hell." As the supervisor loses control of his workforce, his own job appears to be in peril. At the end of the video, in a plot twist that wouldn't pass muster on "Melrose Place," the supervisor wakes up in a cold sweat. "I had a terrible dream!" he tells his wife. "I dreamed that a union got into the plant. It was awful!"
DeMaria's methods may sound petty and preposterous, but they work. According to studies by Kate Bronfenbrenner, director of labor education research at Cornell's School of Industrial and Labor Relations (which DeMaria jokingly refers to as the "Cornell School of Communist Relations"), employers can cut union win rates in half by using such tactics as compulsory management-employee assemblies, anti-union leafleting, one-on-one meetings with supervisors, and firing pro-union employees.
Yet not all of DeMaria's advice hinges on playing mean; he tells his audience that the one surefire way to keep unions out is to run a decent shop. DeMaria says he has talked to union organizers, and "a common refrain I get is, 'We don't organize employees, management does.'" DeMaria recommends offering competitive wages (but not the highest wages around, he stresses, because you want discontented workers to leave) and seniority and peer grievance review provisions.
Why would a bunch of employers go to a "union avoidance" seminar if they're willing to raise wages? It seems counterintuitive, but DeMaria knows his audience; human resources managers are deeply flattered by this line of argument. The managers believe – or convince themselves -- that no employee of theirs really wants a union. One woman confides to me that while it may seem as if employers are anti-union, what they really want is to be "enlightened" with their workers. From the manager's point of view, workers don't want unions, unions want workers. To make up for falling membership -- and declining dues -- unions "target" companies, greedily trying to con hitherto loyal workers into signing up with the union, or so the managers are told.
"I honestly want you to ask yourselves, Do you think those union organizers care one bit about you or your working conditions? Of course not. They only pose as being interested in you in order to attract you into voting for them. Once they have done that, then they are in a perfect position to charge you and your co-employees, and that's the way the union works," reads a sample text for one supervisor's pre-union-election speech in DeMaria's handbook.
All of his recommendations about higher wages and benefits should be taken with a grain of salt, of course: Even the most enlightened managers have trouble arguing with the bottom line. But DeMaria's willingness to make the suggestion shows that the reasons employers are frightened of unions go beyond immediate financial concerns, extending to fundamental questions about how production is organized and who controls the workplace. The mere presence of a union, the barest suggestion that management must cede some power over the shop to workers, is a thought so frightening that raising wages and paying bigger benefits seem like justifiable (and relatively minor) expenses.
The regulations of the NLRB are intended to check management's rule of the workplace, but, as DeMaria shows, a determined and resourceful manager can sidestep these safeguards. Employers can bar union organizers from campaigning or leafleting in almost all areas of the workplace, and workers can be forbidden from talking union on the job. Meanwhile, employers can distribute innumerable leaflets and letters, and can talk about the union as much they want to, for as long as they want to, devoting hours of each day to mandatory group meetings and anti-union diatribes. As DeMaria puts it, running an anti-union campaign is "an exercise in property rights."
Take DeMaria's description of how to convince employees that if they vote the union out, they'll get raises and better conditions -- without actually saying so, which would be illegal: He says to tell them, "Our eyes have been opened. These are not concerns we can address, because the NLRB has very strict rules on us which prevent us from making any promises in a campaign, because that would be a bribe, and the board might force us to bargain with the union. We're not in the business of bribing. But we hear you." You can stay within the letter of the law, he advises, you just need to be creative: "A couple of changes of words here, elimination of a sentence or so, substitution of one word for another word -- you would get the absolute same message across, as powerful as it was before, with no risk of an unfair labor practice [lawsuit]."
By this point in the seminar, the executives at the Embassy Suites are disturbed by even minor restrictions. "Labor lawyers are so conservative!" complains one woman. "Everything is so pro-union and anti-employer," moans a man.
Still, the most effective weapon employers always have is the power to fire workers. Technically, it is illegal to fire a worker for union activity, and DeMaria presents himself as a stickler for the law, saying that campaigns can easily be won without ever resorting to illegal tactics. "Disabuse yourself of the information that in order to win you got to get nasty and illegal. You can get nasty all you want, you just don't have to get illegal." But, like most union busters, he implicitly suggests that firing workers can be very helpful early in a campaign.
"Let's suppose during this early period of card signing you discharge a prime mover, and the NLRB finds that you did it on a discriminatory basis. What are the remedies? Reinstatement, back pay...and you gotta post a notice saying, We've been bad boys and girls, we won't do it again," says DeMaria. By the time an employer's appeals are over, the worker will probably have a new job, so reinstatement won't be a real issue, and the back pay requirement will have been offset by the wages the employee earned in the meantime. The potential consequences of such a firing are so minor that, as DeMaria puts it, "Some companies will just say, 'Hey, where's the check?'"
Workers who believe in unions because they think they offer the best chance for dignity and democracy in the workplace implicitly deny management's prerogative for total control. DeMaria knows this. The greatest threat to management, the employees who'll be the most difficult to dissuade in an election campaign, he says, are the ones who want to join a union because they "feel a sense of belonging." In an issue of Management Report, DeMaria describes "careful hiring" practices at one firm, which conducts two-hour interviews with job candidates and their spouses, paying special attention to how the couple reacts when told that the company "doesn't believe unions are necessary." Presumably, those candidates who seem taken aback don't get hired. But if, somehow, employees with this desire for a "sense of belonging" creep into the workforce, DeMaria has this advice: "You gotta blast it out. You have got to make them perceive that if they carry out on their sense of belonging and join the union, consequences to them will be so dire they will be better off subverting their sense of belonging and voting no."
This is the real logic behind a union-busting campaign, whether at a hospital, office, or factory. By demonstrating management's power in the workplace, the company appeals to two opposing psychological poles in its employees: loyalty and fear. You can "make an appeal to the employees' loyalty to the company: 'We're the company, and we want you to be loyal to us because we're good.' That's the loyalty approach," DeMaria explains. "The other approach is [through] fear: 'If you join the union, you may not get what you want; there may be a strike; you may be permanently replaced; we may, with the appropriate underpinnings, close the plant.'"
DeMaria adds, "The majority of campaigns are based on fear. [Because if] the employee has a sense of belonging, you can't overcome that by saying, 'I'm wonderful, vote for me.' The way you overcome the sense of belonging is you make a bomb, and you throw it in."