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Anatomy of a Decertification Drive: Confronting Kmart in the Early Aughts— Part III

Editor’s Note: This is the conclusion of Phil’s three-part saga looking back at the decertification campaign that shook a Kmart distribution center located in Greensboro, North Carolina during the early aughts. If you missed it, here are Parts I and II

Part III – Labor Board Crisis

During the bargaining period and through September, I made countless trips to Winston-Salem, presenting a total of thirty-four witnesses, some of whom had to return with me to provide supplemental affidavits in regard to information discovered during the Board’s own investigation. Several additional agents were added to the case. I continuously exchanged correspondence with Lisa, addressing questions and submitting position statements regarding specific allegations. Kmart presented members of management and anti-union employees as witnesses, supported by written rebuttals to the union’s position.

Management continued to commit ULP’s and I filed three additional charges to address the new violations, the most ludicrous of which included:

  • Allowing anti-union employees to sleep on the job and report late

  • Failing to discipline Daryl Copes for launching a profane outburst at a shop steward, ironically referring to her as “psycho.”

At 3 p.m. on July 28, I met with Lisa Shearin to give my own affidavit. Having spent every day at the facility throughout the decert window, and being intimately familiar with the bargaining history and its interpretation through past practice, my testimony would provide foundation for the evidentiary value of other witnesses.

Lisa and I had developed a rapport during the investigation and our process was informal as she typed my answers to her questions.  By 8 p.m., the forty-three page statement was finally complete and we were both swooning from exhaustion. But another two hours of work remained. I had to carefully review the printed testimony, stop when I reached a fact that hadn’t been accurately or fully represented, have Lisa cross it out and make handwritten notes of my corrections, then return it for me to initial the change. We just stared at each other, our eyes communicating how are we gonna get though this without passing out?

“I have an idea,” I told her. “Why don’t you just email the affidavit to me as an attachment? I’ll make the necessary revisions tomorrow, print, sign and mail it back to you.”

“I don’t understand what you’re asking,” replied the weary attorney. “How do I do that?”

I’ve always been ten years behind the times when it comes to computer tech but I was astonished that a Labor Board lawyer didn’t know how to attach an email file.

“How about setting up an email to me, let me sit at your desk and I’ll do the rest. You can watch and then you’ll know how to do it.”

The highly unorthodox suggestion was appealing to Lisa compared to the alternative.

In the morning when I opened the file, I discovered this procedure had advantages other than getting me home at a less unreasonable hour. I was not only able to give some thought to corrections as I typed them directly into the affidavit, but also included details I’d overlooked.

On July 31, the NLRB issued a quick decision in favor of Billy Key’s charge, issuing a Complaint against the union, but it was a Pyrrhic victory. The comparatively minor allegation didn’t compromise the union’s case and we were only subject to similar slap-on-the-wrist penalties as employers. The union, with my consent, decided not to contest the ruling. Billy was actually legally correct. It had been one of the few times I’d allowed a bad mood to compromise my judgment.

To remedy the Complaint, I was required to post a notice at the union hall stating we’d never again repeat our transgression. I displayed it prominently on the wall behind the office manager’s desk, proudly pointing it out to union members, sharing the leaflet incident and making jokes. The only thing of consequence to workers was that I’d held my ground and confronted our enemy.

Once all witnesses had been presented and interrogatories addressed, the autumn clock ticked slowly as both parties awaited the Board’s decision. I periodically spoke with union attorney Ira Katz and we agreed the Board’s investigation was taking an unusually long time. It seemed as if under scrutiny from Bush-appointed NLRB directors, Region 11 felt obliged to turn over every stone three times to avoid being subject to reproach once a ruling was made.

Union reps and attorneys who’ve established relationships and credibility with the Board are privy to off-the-record discussions with the lead investigator about how charges are progressing. The lynchpin of the union’s case was the May 20 incident, when Billy Key was allowed to remain in the breakroom for fifteen hours, soliciting signatures while on vacation. During early December, Ira and I were stunned to learn from Lisa that the Board was seriously considering the theory that the union was seeking superior access to the canteen by utilizing its contractual visitation rights, and the employer had simply been trying to level the playing field.

“I’m going to have to write a brief to clarify this,” said Ira.

A week later, I opened the attorney’s brief in my email sent to me for review before submission. I was trembling with stress by the time I’d finished the first paragraph. Ira began by stating The Union stipulates that Billy Key had a right to be in the breakroom on May 20, but the rules were disparately enforced because Patti Little was disciplined for being in the breakroom after her shift ended. The next ten pages were spent arguing that is one discrepancy tainted the petition and required its dismissal.

It was the worst example of legal reasoning I’d ever encountered. I felt to the core of my being that everything we’d worked and fought for was about to be sabotaged. I called Regional Director Harris Raynor and warned, “If we submit this, we lose the case and the local.” The director heard me out and agreed, then promised to immediately contact Ira.

I received a call from Ira the next morning. “I understand you and Harris weren’t satisfied with my brief. So, where do we go from here?”

“Let’s write a new brief together,” I suggested. “I’m the one most familiar with the evidence and witnesses, so I’ll write the Statement of Facts. You write the Arguments and Authorities. Once I send you my part for reference, get on your Westlaw, pull some relevant cases and argue how they support our evidence and theory of the case.” The lawyer agreed and a week later our twenty-one page brief was ready.

My opening remarks concluded with:

“The Company can’t have it both ways. It cannot be argued that on one hand, they could suspend the plant rules in order to grant the ‘anti’s’ equal access to the breakroom, while at the same time denying the Union equal access to the shop floor.”

I presented headings for each of the disparately enforced plant rules, citing witnesses and specific pages within their affidavits providing testimony regarding each incident, and noted the location of the rules in question (employee handbook, contract, memorandum, etc.)

This was followed by sections listing anti-union employees for whom these rules weren’t enforced, citing every event documented within affidavits, and then union leaders for whom the rules were enforced more strictly. Throughout, I placed emphasis on anti’s being given free run of the plant and the illegal permission for Billy Key to spend his vacation in the breakroom.

Ira did a masterful job of citing case law and applying it favorably to our allegations, eviscerating any possible notion that management was simply trying to create a level playing field.  I was surprised to read he’d cited Highland Yarn Mills regarding ‘anti’s’ soliciting signatures on the shop floor, as this had been my campaign back in the mid 90’s. When we spoke, Ira told me it had become governing case law regarding free rein and I learned for the first time that my work had established national precedent. Our brief was submitted on December 17.

The holidays passed and the Board continued deliberating throughout the winter. The ruling would ultimately be made by a committee consisting of the regional director, Lisa, and several agents. It began to feel as though, with the Bush-appointed panel looking over their shoulders, if even a grammatical error was found in one of our position papers, we’d lose the case along with most of our worker credibility, having spent nearly a year accusing management of violating the law.

On March 18, 2003 the National Labor Relations Board finally issued a Consolidated Complaint against Kmart Corporation for sixteen separate violations, many of which cited multiple counts. Paragraph 8(b): “Disparately enforced work rules, in order to assist employees engaged in anti-union activity,” listed eleven documented instances.

In a separate filing, the NLRB dismissed the decertification petition. Regional Director Willie L. Clark wrote:

On May 20, 2002, prior to the filing of the instant petition, the Employer disparately suspended its work rules and allowed employees to solicit support for a decertification petition, thereby assisting employees with the decertification effort. Such action by the Employer raises a question of tainted interest and I am, therefore, dismissing the petition in this matter.

The next day, Billy Key was promoted to maintenance supervisor. I was surprised that Kmart management was so unabashedly transparent in fulfilling their deal with him. They’d needed him to remain in the bargaining unit as the petitioner while the case remained active.

To maintain control of the spin, I immediately distributed a leaflet announcing:

“LABOR BOARD ISSUES COMPLAINT AGAINST Kmart”

The commentary praised the workers without whom, we couldn’t have prevailed:

“A lot of time and effort went into winning this victory. Over 30 Kmart workers traveled to Winston-Salem to testify and provide evidence. Our thanks goes out to all of them for their courage and hard work.

An NLRB complaint is comparable to an indictment in a criminal case. Kmart had the option of challenging the ruling in court and through a lengthy appeals process but given the overwhelming magnitude of our evidence, decided to cut their losses and accept the outcome.”

To my amusement, Rory Ford posted his own leaflet throughout the DC, titled, “The Union Lied.”

He noted that a number of our allegations had been dismissed by the Board and therefore we couldn’t claim victory. It was like the attorney for a convicted mobster telling the press his client had been exonerated because several lesser charges were dropped.

Within the next several months, Joe Wells and Rory Ford were both fired and replaced by managers who had more experience and a better attitude in regard to collective bargaining.

A human resource executive began attending monthly grievance meetings in an effort to help rebuild a productive relationship. He confided off-the-record that two production vice presidents had engineered the decertification drive and were also terminated. Corporations have zero tolerance for failure, especially when it results in an embarrassing litigation defeat.

Exactly one year after his promotion, Billy Key was fired and several months later, Daryl Copes followed him out the door. This is a common fate of anti-union leaders following an unsuccessful decertification. Employers build their committees around hostile, insecure personalities with a desperate need to feel important. But these same traits make them unreliable employees and perhaps more importantly, these volatile individuals know where all the skeletons are buried.

The union contract remained in force and was further improved during negotiations in 2005.

Lisa Shearin is still an NLRB attorney and a featured speaker at seminars pertaining to labor law. I’ll wager she’s become adept at sending email attachments.

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

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