Anatomy of a Decertification Drive: Confronting Kmart in the Early Aughts—Part II
Editor’s Note: This is Part II 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’s Part I.
CONFRONTING ‘ANTI’S’ IN THE BREAKROOM
We learned that anti-union leader Billy Key was planning to take vacation and visit the breakroom on all three shifts to gather signatures on decertification cards. This would be in violation of a strict company policy prohibiting non-scheduled employees (whether on vacation or off-shift) from entering the building. I discussed this with Joe Wells, Rory Ford, and the corporate attorney, all of whom assured me the rules would be enforced. I wasn’t expecting to influence them but rather document management’s knowledge of upcoming disparate treatment in support of the decertification.
I scheduled breakroom coverage for the next two weeks on all shifts, taking committee members off work on union business to assist me. Employees had three breaks, taken by various departments at staggered intervals, which meant the canteen was often full. I was in the warehouse twelve hours per day, having to temporarily put my other locals on hold. But it proved to be an excellent opportunity to interview witnesses who were now overflowing with first-hand observations. Five members of the union-busting committee worked in Maintenance and I learned they had been rewarded with generous portions of lumber, paint and birdseed.
Anti-union employees were being allowed free run of the plant during working hours to solicit signatures on decertification cards, while committee members were placed on a tight leash and disciplined for even momentary excursions away from their work area. Billy Key spent his time roaming the warehouse in an orange maintenance vehicle, stopping in all departments to hold lengthy discussions and sign cards. This is legally referred to as free rein and represents the classic National Labor Relations Board [NLRB] violation as it involves the employer’s complicity in the decert and disparate plant rule enforcement.
The challenge lies in proving it to the NLRB’s satisfaction. The union has to document company knowledge of the activity and failure to take appropriate action. This requires numerous witnesses placing management on the scene quietly observing or offering support. Common sense suggests that any supervisor would be aware if an employee was off their job for hours and not performing any work. But common sense isn’t a legal principal. The NLRB has little interest in circumstantial evidence and will accept an employer’s defense of ignorance unless empirically discredited.
Once the decertification drive was underway, assistant plant manager Rory Ford and maintenance manager Frank Pippin were frequently observed holding lengthy meetings with individual “anti’s” out on the shop floor and with larger groups in a second floor area where conveyor belts intersected called the Merge. Anti-union supplies were also stored at this location.
On May 7, management posted a notice discouraging workers from being represented by a shop steward during step-one of the grievance process. On the same day, Daryl Copes used the company’s copy machine to run off a leaflet which he then distributed throughout the breakroom. It was a thousand-word rant typed in single space with eight-point text to fit onto a single sheet of paper. He rambled haphazardly between unrelated thoughts, hurling insults at the union and twisting the names of committee members into demeaning caricatures [similar to Donald Trump today]. In the lower right corner it read, “Signed: Ex-Con of Team Viper.” It was like viewing the CAT scan of a demented mind.
One of first things I do when fighting decertifications is cutting the company’s union-busting committee down to size through frequent leaflets offering a mixture of information and humor. The specter of co-workers roaming the plant and frequently meeting with management raises them to a higher level of authority in the eyes of many employees. Some are influenced to support them, believing their jobs will otherwise be at risk if the union is voted out. I always generate an amusing name for the anti’s, based on their collective personality. In this case, I labeled them the “Company Goons.”
One of these leaflets contained the headline and message:
“SCABS & FOOLS
COMPANY TOOLS”
“The company goons are saying we should get rid of the Union “to see what the Company has to offer.” They are really fools. Kmart showed us what they had to ‘offer’ before we had a union and top pay was $8.”
I periodically toured the shop floor on various shifts, accompanied by Calvin or other committee members, flaunting the union’s presence and hoping to personally observe the Unfair Labor Practices (ULP’s) brought to my attention. But of course the “anti’s”—like a bunch of mice—were put on notice when the cat was approaching.
After a nearly two-week vigil, during which anti-union employees on vacation never entered the canteen, the committee and I began to believe our information had been faulty and discontinued our ongoing surveillance.
On Monday morning, May 20, I was driving to visit one of my recently neglected locals when I received a frantic call from Union Recording Secretary Patty Little. Billy Key had been in the breakroom soliciting signature since 3 a.m. I made a u-turn on the interstate and sped back towards the Kmart distribution center.
I entered the breakroom an hour later and encountered a hectic scene. Billy was sitting at a table toward the rear with a stack of decertification cards and anti-union literature. Patty was standing directly behind him screaming in his ears. While her affront had no tactical value, it was personally very satisfying to the tall, overweight woman with a pasty complexion, whose favorite pastime was arguing. Calvin and several other committee members had taken union leave and were also present.
Early in the afternoon, Calvin called Billy a scab. Billy leapt to his feet with his face two inches from Calvin, challenging the local president to fight. Fortunately, the war veteran had the discipline to restrain himself. Shortly afterward, Joe Wells and Rory Ford entered the breakroom and were apprised of the confrontation. I denounced Joe in the presence of a full canteen for his failure to enforce plant rules consistently, in support of illegal union-busting.
“Let’s go out on the floor and see what else the ‘anti’s’ are up to,” I suggested to Calvin. Joe and Rory were still in the room and I provided notice per the contract. They then violated the contract by following us into the work area and walking closely behind. A few minutes later, I stopped to shake hands and briefly talk with a union member.
“That’s it!” exclaimed Rory. “You’re interfering with production. I order you to leave the building right now!”
I turned to face him. “I have a contractual right to be here and I’m not going anywhere.”
“Leave immediately or we’re calling the police and having you arrested for trespassing!” said Joe.
“That’s an excellent idea,” I responded, pulling out my phone. “You call the police and I’ll call my press contacts. We’ll have a regular three-ring circus on the evening news.”
Following a few moments of silence, Joe said, “We can go ahead and finish the tour. Just don’t disrupt production.”
“I never do, but I’ve always been allowed short discussions with workers. Otherwise, why the hell would I be out here? Please stay far enough behind us so these discussions remain private.” We stayed on the floor for another hour with management trailing us at a distance of twenty feet.
The next morning, I was on my daily drive to the Kmart Distribution Center, feeling irritable and exhausted. Things weren’t going well with my girlfriend and I’d hardly slept for several nights. I entered the canteen prior to the commencement of break periods and encountered Billy Key placing leaflets on every table. I quickly circled the large room, removing all the leaflets and walked toward a garbage bin, closely followed by Billy screaming, “You can’t do that! Those are my property! Give them back to me NOW!” But I was the wrong guy on the wrong day.
Billy was a large man with thirty pounds on me, but there’s nothing more liberating than being in a space where one truly doesn’t give a damn. Standing face-to-face by the trash receptacle, Billy’s tirade escalated as I calmly ripped his leaflets in half and disposed of them. “I’ll get you for this!” he shouted before storming out of the breakroom.
Corporations divide management into two distinct categories with separate chains of command: Production and Human Resources. It’s common for decertification campaigns to be organized and supported by one of these groups with the other kept in the dark, in an effort to maintain plausible deniability. All the indications pointed to this situation being underwritten by Production Management.
On May 22, Calvin and I met with Vice President of Human Resources John Harris, accompanied by Joe Wells and Rory Ford in the plant conference room. Harris appeared concerned and shocked by my candid report of recent events and within minutes I was certain he and his subordinates hadn’t been involved or informed.
“I’ve had nothing to do with this,” said Rory when I was finished. “This is strictly an employee matter involving those who’d rather not have a union.”
I stared directly at him. “BULLSHIT! You’re neck deep in this.”
The assistant manager shot an awkward glance at the corporate executive and Joe remained silent. This meeting wasn’t going to alter current events but might ultimately prove useful behind the scenes.
On May 24, I faxed charges to Willie L. Clark, regional director of the National Labor Relations Board at its Winston-Salem headquarters. The document alleged twenty-five Unfair Labor Practices based on witness accounts and my own observations.
NLRB allegations are formal, one sentence descriptions of violations to later be supported by witness affidavits. Introductions to each ULP read as follows, “Since on or about (date) the Employer restrained and coerced employees in the exercise of their Section 7 rights and undermined the Union, by…”
Several days later, the charge was docketed. The NLRB considered the alleged violations so egregious that the case was assigned to U.S. Attorney Lisa Shearin, to be assisted by field agents. I submitted an “Overview of Case No. 11-CA-19497-1,” providing underlying details of each allegation.
The decert window closed on June 5, with the company stooges, supported by management, having collected signatures from slightly more than the required thirty percent of employees. At this juncture, a petition must be filed by an individual worker requesting the NLRB schedule a new election based upon his showing of support. This task is usually performed by the lead “anti” (in this case Billy Key) who is thereafter referred to as the petitioner.
I prepared a leaflet the same day titled:
“LABOR BOARD CHARGES FILED AGAINST Kmart
ILLEGAL UNION BUSTING PLOT IS EXPOSED”
The commentary began:
“The company stooges are going around the plant crowing about the petition they filed with the Labor Board. They are asking for a new election in order to give Kmart a chance to divide and frighten workers, and bust our union.”
After presenting the allegations in plain English, I concluded with a phrase I used in all decert campaigns:
“The Union Is Here To Stay!”
Based on the union’s solid prima fascia case, the Board blocked the scheduling of an election pending the investigation of charges. If the allegations were upheld, the petition would be dismissed.
I spent part of every day meeting with witnesses at the union hall. While several committee members couldn’t wait for their chance to provide a sworn affidavit to the Board, other workers required an in-depth explanation of their rights:
Affidavits are confidential and agents are prohibited from revealing the identity of witnesses to management. The moment a worker sits down with an agent, they become a witness of the United States government, which doesn’t tolerate its witnesses being tampered with. It’s a serious violation of federal law to discipline, fire, or even harass a worker for testifying. A big corporation may have lots of power—but the United States government has more.
I took pages of handwritten notes with each witness, and later typed the relevant testimony in chronological order, annotated by allegation, and mailed the package to Board Attorney Lisa Shearin. This practice not only ensures important information won’t be overlooked, but allows the union to control the spin from the onset. Agents are overworked government employees who welcome anything that makes their job a bit easier. I’ve seen portions of affidavits that were exact copies of my notes. Our first ten witnesses were scheduled to appear on the mornings of June 20, and 21.
While the union’s case took shape, Billy Key filed his own charge against UNITE, naming me as a respondent, for having destroyed his leaflets. Joe Wells was listed as his representative, having typed the allegation with the assistance of counsel. Billy could no more file a legal document than I could fix a broken conveyor belt.
At 8:30 a.m. on June 20, I traveled with the union’s first five witnesses to NLRB Region 11 headquarters, located on the outskirts of Winston-Salem. Three of them rode in my car and we were followed by a second vehicle. I always accompany witnesses to the Board. It provides an opportunity for a final prep on the day of their testimony and equally important, helps calm the nerves of people about to provide a sworn affidavit to a federal law enforcement agency.
The suite of offices was located on the second floor of a three-story building. As we entered the waiting area, I was startled to see the smiling face of Bill Clinton replaced by a large photo of George Bush and knew this would be a long, grueling process. All regional Board officials and staff are governed by a five-member panel in Washington, appointed by the president. These individuals strongly influence the policies and determinations of their subordinates.
We were announced by the receptionist, a locked door opened to the main area, and I made the acquaintance of Lisa Shearin, an attractive woman in her early thirties who offered a friendly greeting. I was surprised to learn the supervising attorney would participate in taking affidavits, assisted by an agent named Tom Finger with whom I’d previously worked.
The first two witnesses followed them into their respective offices. I sat with the one who seemed least sure of himself. When he started going off on tangents leading in the wrong direction, I gently tapped his leg.
We headed back to Greensboro at 5 p.m., with a stack of copied affidavits in my briefcase, and I took the group out to dinner at Ruby Tuesday. The process was repeated the next day with the second set of witnesses, and I used part of my time in Winston slowly building a relationship with Lisa and becoming reacquainted with Tom.
Patti Little provided one of the most interesting statements, credibly addressing half of the allegations. But she couldn’t resist including a paragraph about how she screamed at Billy Key during his May 20, breakroom incursion, with her face so close to his head that she could “see the hairs on the back of his neck moving.”
The collective bargaining agreement was set to expire on August 5, and negotiations for the third contract began in the shadow of ongoing litigation to determine whether it would ultimately be deemed valid. The major language hurdles had been resolved in the first two contracts, so this was primarily an economic discussion. Both parties participated in an odd engagement within the hotel conference room, as if the labor dispute wasn’t happening. There was no mention of charges or events leading up to them, as all the players were smart enough not to discuss their case now that it was before the Board.
The economy was in a recession and the Kmart Corporation was in the process of restructuring under Chapter 7 bankruptcy, so money was tight and management proposed a wage freeze in the first year. We finally came away with 2 ½ percent across the board for three years and union members ratified by eighty percent.