New York Times
December 14, 2004

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

By STEVEN GREENHOUSE

SUMTER, S.C. - 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 says it did nothing wrong.

"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.

Jackson Lewis says it consistently gave sound advice.

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."