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$340 Million Anti-Labor Consulting Industry Is Behind Contemporary Union-Busting

Union-busting firms are teaching corporations to cynically co-opt progressive rhetoric as they crush worker organizing.

Union workers rally in downtown Los Angeles in support of unionizing Amazon workers in Alabama, on March 22, 2021, in Los Angeles, California.

The remarkable spikes in union activity over the last few years have given many on the left cause for hope: could we be on the precipice of a resurgent, newly galvanized U.S. labor movement? In the first three quarters of 2022, the National Labor Relations Board (NLRB) documented a 53 percent increase in organizing petitions — including startling wins by new, independent unions at Starbucks, Amazon, Trader Joe’s, and numerous others, across many sectors. There’s a widespread sense that a qualitative shift has taken place.

That said — despite the perceptible increase in agitation — on quantitative measures, the picture is not quite so rosy. Overall union density in fact declined in 2022, to a new low of 10.1 percent. It’s yet to be seen if newly roused energies will translate into sustained, structured power. By some metrics, much of the present organizing wave seems to have been dashed upon the rocks — in no small part thanks to a merciless backlash from the bosses.

Modernized Union-Busting

In response to the uptick in unionization efforts, corporate bosses have turned to their reliable toolkit of anti-union tactics. The mainstays of management clampdowns — store closures, firings, intimidation, the hiring of replacement workforces (“scabs”) to neutralize strikes, surveillance and illegal manipulation of elections — are just as familiar as they were in the early 20th century, if lighter on club-wielding Pinkertons. (Though the mercenary detectives and picket-line violence are not entirely things of the past.)

Managements, following the advice of their expensive consultants, have found some success in splitting worker solidarity through the cynical application of social justice rhetoric and nebulous progressive values. They may recite the proper ideological shibboleths, but they offer little substantive shop-floor change to match, laundering exploitative practices.

Kim Kelly is an inveterate labor journalist and the author of Fight Like Hell: The Untold History of American Labor. As Kelly put it in an email to Truthout: “Anti-union bosses have been using the same old playbook for centuries, and many of those time-worn tactics haven’t changed — intimidation, retaliation, and misinformation never go out of style. But just as workers and unions have had to adapt to social, political, and technological shifts, so have our enemies in the C-suite.”

These days, companies with an ambiguously liberal aura often conceal anti-union efforts in the trappings of social justice language, diversity and inclusion initiatives, and an ersatz, surface-level social consciousness. An illustrative example is the coffee giant Starbucks, where a rapidly proliferating union campaign has been met with vicious backlash from a corporation that likes to pitch itself as progressive, value-driven and worker-friendly — and tries to capitalize on that image to stanch organizing. Why would employees need a union, the logic goes, when the company already cares so well for them and practically embodies their beliefs and values?

“Starbucks has put itself in a position where it says, and it exudes, that it wants to be better to its partners and its customers while disproving that time and time again, especially with this union drive,” said Gianna Reeve, a Starbucks worker quoted by Candice Bernd in an article for Truthout. So far, the company has put up numerous roadblocks, but has only been able to slow the union’s inexorable march.

These new permutations of anti-union rhetoric make clear that when capital’s priorities are threatened, the boss’s soothing words and insistence on values reliably prove to be little more than window dressing. The bosses, however, did not develop these deceptions on their own.

A Specialized Anti-Worker Industry

Deterring unions in the workplace has become a veritable cottage industry — though perhaps that phrase is inappropriately diminutive for a sector which brings in hundreds of millions annually.

The Labor-Management Reporting and Disclosure Act (LMRDA) offers some rare insight into these operations. The Economic Policy Institute (EPI) estimated that total spending on the union-busting industry amounts to at least $340 million a year. However — because “loopholes in the law’s reporting requirements allow consultants and law firms [to] avoid reporting their work” — a full accounting is currently impossible.

It’s no surprise that the business lobby opposes even this limited disclosure. Corporate interests like the Chamber of Commerce, joined by the American Bar Association (ABA), are seeking to shoot down an Obama-era proposal for a “persuader rule” under the LMRDA, which would require disclosure of funds spent on anti-union consultants who advise management behind the scenes. Experts in legal ethics say that the lobbyist claims of First Amendment violations are unfounded, and that the ABA’s real interest is in protecting a lucrative legal niche.

Legal firms and consultants that specialized in “union avoidance” first swelled in number during the 1970s, as part of the establishment reaction to ‘60s-era sociopolitical turmoil. Research published in the British Journal of Industrial Relations documented only around a hundred anti-union law firms in the 1960s. By the 1980s, there were over a thousand. These boutique consultants, industrial psychologists, and specialist lawyers would come to play a significant role in subduing what was left of the labor movement, and have helped keep U.S. unions pinned down to this day.

Notable law offices include Proskauer Rose, Ogletree Deakins, Jones Day (which also helped Donald Trump attempt to overturn the 2020 election), Morgan Lewis, Littler Mendelson and Ballard Spahr, among others. Such firms field legions of lawyers who are keen to take advantage of all of the loopholes strewn throughout the U.S.’s weak labor laws. Meanwhile, hired agents contracted or supplied by these law offices might advise from the shadows or infiltrate shop floors to sway workers themselves, serving as modern-day strikebreakers who use deflection and confusion in the place of batons and revolvers. They tend to use euphemistic, if still vaguely sinister, terms like “persuaders” or developers of “human capital” to describe themselves.

This work is facilitated by a National Labor Relations Board that is enfeebled by defunding, drained of personnel, and rendered toothless by corporate lobbying and regulatory capture. More broadly, the anti-union industry works in an environment in which legal protections for labor have been throttled — both under the reactionary Trump administration, the professedly “union-friendly” Biden, and many presidents past.

The result has been that U.S. workers cling to workplace rights that, relative to other “developed” countries, are weaker by orders of magnitude. It’s the inevitable result of the decimation of union power, while lopsided legal advantages and political barriers loom large. Precedents like 2018’s Janus v. AFSCME, which bans public-sector unions from collecting dues from nonunion employees, and a Supreme Court stuffed full of right-wing justices promise to further disempower workers.

While the anti-union consortium is not a monolith, there is a great deal of collaboration. Upper-class solidarity runs deep — the elite and their partisans understand very clearly where their interests lie, and collaboration can be as frequent as competition. From the nation’s lavishly funded networks of right-wing foundations, think tanks and astroturfed “activist” groups have come ideological “anti-union organizers” — like those of the Koch-backed Freedom Foundation, which canvasses West Coast union members, harassing them to cancel their memberships.

More typical, though, is mundane business networking. Today, corporate managers attend full-blown conferences on union deterrence, like the one hosted by the Council for a Union-Free Environment (CUE), which calls itself a “non-profit, member-led community [of over 200 businesses] with the latest techniques for improving labor and employee relations.”

The Intercept managed to get a glimpse inside the CUE conference, where corporate managers receive updated information on legal loopholes, political advantages, strikebreaking techniques and winning union-busting strategies. A Kellogg’s vice president could reportedly be heard describing union negotiators as “behaving more like terrorists than partners.”

Tellingly, nowhere on CUE’s website is the meaning of their acronym spelled out; instead, they only describe themselves as an “Organization For Positive Employee Relations.” Again, euphemisms abound. This industry is obliged to disguise its true nature so as to better infiltrate and influence. Ever rebranding, anti-union operatives can be expected to find new means of bureaucratic and rhetorical camouflage.

Union-Busting’s Time-Honored Traditions

The bosses’ tactics range from crude to complex — though it’s often the case that the simplest tools remain the most effective. Some strategies date back practically to the dawn of the Industrial Revolution, despite federal labor laws that are theoretically intended to level the playing field. All too often, the barriers between legal and illegal practices are porous. U.S. employers “are charged with violating federal law in 41.5 percent of all union election campaigns,” according to EPI data. The National Labor Relations Act (NLRA) of 1935, also known as the Wagner Act, protects private-sector collective bargaining rights. Yet employers encroach on those rights as a matter of course. Firings, demotions, loss of benefits, workplace closures (or threats thereof), interrogation about union activity, surveillance, refusing to hire union members — all are NLRA violations.

According to EPI data, unfair labor practice (ULP) charges of coercion or illegal discipline were filed in 29 percent of all elections surveyed; larger companies — those with more than 60 employees — were charged with violations in 54.4 percent of elections. The real rate of unreported violations is doubtless far higher. Employers are able to manipulate NLRB investigations with stalling tactics, and the NLRA does not ban all possible coercive measures. An analysis by the EPI and Cornell University researchers estimated that, “whereas 30 percent to 40 percent of elections had a ULP charge filed with the NLRB, a detailed survey revealed that unions claimed employers committed ULPs in 89 percent of elections.” (That analysis dates to 2009, but updated EPI research corroborated comparable figures up through 2018.) “One out of five union election campaigns,” reports the EPI, “involves a charge that a worker was illegally fired for union activity.”

Ongoing Conflicts, Historic Developments

The union drive at Starbucks has been one of the most visible and protracted of last year. Since their first successful election at a location in Buffalo, New York, the independent Starbucks Workers United had, as of December 2022, organized a stunning 267 stores, winning around 80 percent of elections held.

Public relations blitzes by top Starbucks executives and CEO Howard Schultz about the company’s progressive values and “inclusive” working environment are contradicted by its unfavorable working conditions and a retaliatory anti-union campaign. Outright store closures with deeply suspicious timing have been a common occurrence. Captive audience meetings, firings, intimidation, and other strong-arm tactics have been employed against pro-union workers.

By the end of 2022, Starbucks had been hit with a staggering 548 ULP charges. Federal officials described the violations as “substantial.” It’s instructive to consider how quick management was to hold gender-affirming health care for trans employees hostage — treating marginalized workers’ health as little more than a bargaining chip. As Schultz professed good faith from one side of his mouth, the other was ordering that new raises and benefits be denied only to union members.

A similar situation arose at Amazon, which has lashed out mercilessly at the slightest hint of organizing. Scattered organizing efforts of past years were quickly crushed, but a 2021 union drive at an Amazon warehouse in Bessemer, Alabama, by the Retail, Wholesale and Department Store Union (RWDSU) nearly met with success, although it was ultimately stymied. Yet Bessemer was only a prelude: In April 2022, the independent, newly formed Amazon Labor Union (ALU) won their election at a Staten Island facility; widely greeted as a triumph, the effort propelled organizer Chris Smalls and the ALU to the national stage.

This story is by now a familiar one, though no less inspirational for it. What may be less known are the true lengths to which the megacorporation has gone in its scramble to protect profit. As Kim Kelly pointed out in an email to Truthout, one tactic is “the increase in surveillance on the clock and otherwise. Digital communications [make it] that much easier for the hierarchy to observe the behavior of its lower ranks.”

The Bessemer effort was met with strong-arming and overreach that extended into outright cheating, as determined by the NLRB. The company unveiled “a sophisticated campaign that involved sending text messages and mailers to employees warning them of the downfalls of a union, offering bonuses to employees who quit before the union election, and even allegedly accessing the drop box that employees used to mail their ballots,” as Julia Rock reported for Jacobin.

Amazon has also employed professional for-hire strikebreakers, the infamous Pinkertons, to conduct anti-union spying and infiltration. And last summer, The Intercept publicized Amazon plans for an internal messaging app that would ban the word “union,” “restrooms,” “slavery,” and other revealing terms. The list goes on; Amazon has fielded anti-union “intelligence analysts,” factory-floor infiltrators, good-cop/bad-cop ploys against workers, and systematic espionage against unions, activists, and more.

Amazon and Starbucks are only two of the more prominent examples of such struggles. A planned work stoppage by railroad unions over the denial of sick leave to overburdened railway employees was broken when President Biden signed legislation forbidding the strike. The coal workers’ strike at Warrior Met, on which Kelly has reported thoroughly, has been ongoing since April 2021; it’s been marked by picket-line violence, police crackdowns on strikers, and an intransigent management.

Other corporations have turned to the legal complex, like the notoriously anti-union Tesla; Google, which appears to be at the end of its tolerance for employee dissatisfaction; and Apple, which has hired legal outfit Littler Mendelson and faces ULP charges for interrogation and surveillance. Media workers have not been exempt: Jones Day has been the go-to legal firm for media outlets attempting to thwart union efforts. Columbia Journalism Review reported on an invite-only, Jones Day-hosted anti-labor conference, “where media outlets in the room included The New York Times, The Washington Post, Slate, Univision, and Atlantic Media.”

Universities — however keen the right is to portray them as hotbeds of radicalism — are no different. Modern U.S. colleges are profit-seeking enterprises, with massive endowments, investment portfolios and real estate holdings. Accordingly, a spate of organizing among low-paid graduate students and adjunct faculty was not welcome news to administrations. In one of many examples, the University of Pittsburgh spent $2 million on an anti-union law firm to deter unionization efforts.

Union-busting efforts distort and co-opt progressive language to defend not the working class or the marginalized, but power structures and the status quo. One facet of this approach is the “Employee Resource Group” (ERG) — an employer-controlled venue for collectivity without collective bargaining. Dissent is funneled into these internal pseudo-unions, which allow for a watchful eye over the workforce and diffuse tempers, without employers ceding any power. The Intercept cited figures from consultant firm McKinsey & Co.: a survey of “423 organizations employing 12 million people” found a dramatic post-pandemic increase — “close to 35 percent of firms have added or expanded ERGs since 2020.”

The ERG harkens back to the days of the “company union,” which served a similar function in defanging resistance. Company unions were banned by the Wagner Act, and there’s a good argument to be made that modern ERGs are in violation, a company union in all but name. They are now a common feature of large workforces, with some expressly designed for workers from marginalized groups. Groups for marginalized employees might allow workers to vent frustrations, but the managers will be sure to steer them away from collective action or material change. Employees might find solace or solidarity, but their energies will be directed away from unionization.

Kelly remarked on the dissonance: “Whether it’s a ‘consultant’ pausing to make a land acknowledgement before unspooling another line of anti-union bullshit” — the case of REI comes to mind — “or a boss trying to convince their workers that unions are corrupt, money-hungry havens for racist, conservative old white men, [they] seem to have learned that by using twisted analyses of race and class — or embracing performative, hollow ‘wokeness,’ for lack of a less grating word — they might be able to trick workers.”

A Full-Bore Crackdown at Trader Joe’s

The popular grocery chain Trader Joe’s has likewise faced its first union drives. Just as in the case of Amazon, Starbucks, and now Peet’s Coffee (which just last month saw its first unionized store, directly inspired and assisted by Starbucks union members), Trader Joe’s workers have formed an independent union — i.e., one specifically for that company’s employees. Organizing began in response to pandemic hazards, but it wasn’t until the summer of 2022 that Trader Joe’s United (TJU) successfully unionized a store. After that initial win in Hadley, Massachusetts, other locations soon followed, as management rushed to stem the rising tide.

Truthout spoke with a union organizer at a high-volume Trader Joe’s location in a major market who requested anonymity in order to avoid inviting further retaliation from management.

This organizer and her in-store allies, in coordination with external TJU members who advised them, were central players in the union drive — to which management reacted with, as she described it, “a shock-and-awe anti-union campaign.” Her story of her experience at the receiving end of a coordinated, professional crackdown is illustrative, and harrowing.

First, an ominous nighttime message from a manager and a note posted in the breakroom “inspired anxiety.” The following day, managers “fired one of our lead organizers,” a Black woman, citing unconvincing justifications. “That really scared a lot of people of color in the store, especially Black people, who had already been worried about retaliation and firings,” the organizer said.

The fired employee was an experienced and well-liked organizer. Her loss impacted the campaign “not only because of the implications for the racial aspects/dynamics of our drive,” continued the source, but also because “she was a powerful pro-union presence” who “made others want to get involved and showed them the power of unions and worker solidarity.”

This and other pre-campaign firings left the most visible employee organizers as a largely white group, leading to some hesitancy from workers of color. The source believes this was carefully calculated. Management identified divisions and “exploit[ed] them in a savvy way to undermine trust in the union,” she remarked. “They were saying, ‘These are white people speaking on these racial issues. Are you comfortable with that?’”

Captive audience meetings were held, and managers pulled union supporters into individual one-on-one “ambushes.” The climate of mistrust and division that the bosses conjured destabilized the organizing effort, and ultimately, the union lost at the ballot box by 14 votes. The organizer underscored how thoroughly she felt that management had weaponized social justice rhetoric.

“Our [manager] is a woman of color,” she went on, and other bosses leapt to claim “how much [the union] hurt her feelings.… A critique [of] managers, to some workers, feels like a personal attack.” That empathy was manipulated to vilify the union organizers. “The message was, ‘You are accusing people of being racist,’ rather than, ‘You are pointing out a pattern of targeted harassment.’” Management’s canny rhetoric inverted the organizers’ narrative. “You can imagine,” she continued, “in a very racially diverse group, how much voltage these racial issues have when they’re not handled in the most sensitive or democratic way.”

The barely concealed subtext was, “‘You’re destroying this workplace,’ ‘You don’t care about the workers,’ etc. — pointed at the union.”

“It’s a psychological onslaught that’s hard to describe unless you’ve been through it,” the organizer shared. “The heart of the anti-union campaign was to sow enough doubt about the truth and who you can trust that makes it really psychologically challenging to advocate, not only as an organizer — because you’re trying to present a trustworthy and solid operation to your coworkers so they’ll want to vote for you — but also as an individual.”

This organizer’s account drove home how emotionally grueling it can be to look down the barrel of a campaign designed by expert manipulators. High-level psychological operations conducted from far above impose confusion and frustration, negating solidarity and rendering certainties uncertain. Despite the taxing setback, she underscored that this struggle is far from over: the union did win 60 votes, and ULP charges are pending. Meanwhile, they’ve found hope in the fact that a third Trader Joe’s just unionized in Louisville, Kentucky. Whatever the odds, it should be remembered that, even in the wake of a loss, committed union organizers rarely yield entirely — rather, they regroup to fight another day.

A History Still Unwritten

As devastating as corporate interference can be, the appearance of unions at places like Starbucks and Amazon was, until very recently, considered almost unthinkable. Organizers have also started exposing some of management’s more devious tactics — part of their pushback against Amazon’s anti-union shop floor agents was to “compile unflattering dossiers, to show workers that the consultants get rich ‘convincing poor people to stay poor,’” said ALU leader Connor Spence, quoted in HuffPost. “We turned the internal systems against [Amazon] in ways even some managers wouldn’t know how to do.”

Militancy carries its own momentum: it’s notable that the spate of successful union efforts at Starbucks didn’t just inspire workers at the similar Peet’s Coffee — they collaborated directly. The dissemination of knowledge, and the assiduous increase in positive examples, will help to armor future efforts and allow unions to gain crucial footholds before employers can open their coffers to union-busting operations. “Inoculation is everything,” Kelly added. “It’s absolutely critical to head off the bosses’ bullshit at the pass, and to prevent them from gaining any opportunity to plant seeds of doubt.”

Still, Kelly voiced concerns that are shared by many on the left: “I am worried that if the capitalist goons at Amazon and Starbucks both really start working overtime to crush the Amazon Labor Union and Starbucks Workers United (which they’ve already been doing, with relish) that it may have a cooling effect on the amount of energy and enthusiasm we’ve seen spring up in the wake of those wonderful victories.”

But the struggles of recent years will continue to reverberate. Regardless of the future tactics that might issue forth from managements and their well-paid legions of anti-union consultants, the stunning upsets at behemoths like Starbucks and Amazon are now an indelible part of the story of U.S. labor. Kelly spoke for many others when she told Truthout: “I’m so proud and awed by the incredible amount of work these workers have put in and the history they’ve made.”

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