The Evolution of Union-Busting – The Intercept

John Merrell, speaking in a southern drawl, apologized for presenting over Zoom in such casual attire. The lack of a jacket and tie, he said, was intentional. He was on-site with a client.

I figured this group would appreciate as much as any that you know, when youve got a lawyer in your facility, you usually dont want them to come in looking all lawyered up, said Merrell, a management labor attorney at the firm Ogletree Deakins, a South Carolina-based law firm that specializes in closely advising businesses on how to counter union organizing drives. Im trying to be somewhat incognito.

The group had gathered to speak candidly about creative new ways in which employers can subtly counter union organizing. Theres a huge uptick in activity, Merrell began, not just at name brand companies like Starbucks, but union drives even in the Carolinas where [I am] based, were seeing a lot of an uptick of activity in some kind of unexpected places, unexpected industries, not the industries that you typically think of as being your unionized industries.

In the heyday for union organizing, he continued, we just thought of them as seeking better wages and working conditions for their workers. Now, workers were agitating for respect and in opposition to harassment, bigotry, discrimination and retaliation, said Merrell, quoting a mission statement from the Alphabet Workers Union, which secured bargaining rights for a small group of Google Fiber workers in Kansas City, Missouri, in March.

Corporations, advised Merrell, should be ready to pivot and respond quickly to these social justice-driven campaigns.

Across the country, particularly in highly educated workplaces, employee activism has centered on demands that go beyond the bread and butter of higher salaries and better retirement benefits. YouTube and Facebook employees have demanded that management take a greater role in censoring content viewed as sexist or racist. Amazon corporate headquarters workers this month staged a protest to demand that the company restrict the sales of books that are perceived by some activist groups as anti-trans. The union that represents workers at NPR has demanded that the media outlet develop demographic tools to track the race and gender of every source that appears in stories.

Workers now have a heightened focus on the optics of race, continued Merrell, so management should do more to match the demographics of the workforce. Diversity, Equity and Inclusion initiatives, social consciousness raising, and constant surveys were all on the table as tools to monitor employee sentiment.

Merrells presentation was just one in a two-day April conference that showcased the changing face of union-busting. Over a dozen other presenters who work in union avoidance gave talks during the virtual conference, sponsored by a group called CUE, on the latest trends in organizing, strike-breaking, and how to get ahead of changes in the law and political environment that could provide an edge to the labor movement. They included representatives from Kelloggs, John Deere, Five Below, Lowes, and the U.S. Chamber of Commerce, as well as a consultant hired by Amazon to oppose the warehouse worker union drives.

In the new environment, businesses facing worker uprisings are attempting to co-opt the language of social justice movements and embrace trends around self-growth and positive lifestyles to counter demands for unionization a far cry from the old days of union prevention, a history that featured employers routinely threatening workers with private guards and violent clashes on the picket lines.

Businesses facing worker uprisings are attempting to co-opt the language of social justice movements and embrace trends around self-growth and positive lifestyles to counter demands for unionization.

Leny Riebli, the vice president of human resources at Ross Stores, noted that given whats happening at Amazon and Starbucks, her company had retooled its training to remain union-free. We really had to redouble our efforts, said Riebli. The company, said Riebli, closely monitors employee concerns that might spill over into support for unionization, so managers have been trained not only to spot potential card check organizing, but also listen for issues around safety, scheduling, and respect in the workplace.

This relates to our diversity, equality and inclusion efforts, explained Riebli, noting that the company sought managers who can be approachable to an array of worker issues.

Virtually none of the presenters identified explicitly as anti-union agents. Many described themselves or had professional biographies emphasizing their role as DEI experts, developers of human capital, and champions of workplace belonging. The industry has undergone somewhat of a rebranding, with many labor relations executives now identifying as people experts and diversity executives.

Even the host of the conference was camouflaged. The conference was organized by a group called CUE, which bills itself publicly as simply a community for positive employee relations. But that sunny image belies its true agenda: Founded in 1977 by the National Association of Manufacturers, as part of a sweeping crusade against organized labor, CUE is formally known as the Council for a Union-Free Environment. The organization provides research and training for the union suppression tactics, an estimated $340-million-per-year cottage industry of lawyers and consultants who specialize in assisting corporations with mitigating the threat of organized labor.

But there was no doubt that they understood how controversial their work can be. Ken Hurley, the vice president of Kelloggs Co. for human resources and labor relations who presided over the effort last year to replace striking cereal workers, said he did not want participants to share his slide deck, for fear of leaks. And, after The Intercept published his remarks in which he described the union as behaving more like terrorists than partners, Hurley left Kelloggs.

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

Photo: Al Seib/Los Angeles Times via Getty Images

So-called union avoidance consultants, also known as persuaders, work in a specialty profession that has been honed in recent decades. They are hired by corporations to train managers to spot union sympathies or to lead captive audience lectures where attendance is mandatory to pressure workers against voting for a union.

These seminars can involve threats of retaliation, warnings that a union will force the company to close down, and claims that union dues will negate any benefit of a union contract. But the most important aspect of these meetings, experts say, can be collecting information to identify union supporters within a workplace so that they may be sidelined or fired before they gain influence with their co-workers.

The industry has undergone somewhat of a rebranding, with many labor relations executives now identifying as people experts and diversity executives.

The persuader industry has evolved to match the cultural trends among many workers. Jason Greer, who has led a diversity seminar at CUE in the past, embodies the evolution of the anti-union industry to match cultural trends among workers. Greer, founder of the eponymous business Greer Consulting, is a persuader who helps companies fend off unionization drives, but you wouldnt necessarily know it from talking to him.

I do leadership coaching. I do diversity management training, said Greer. Im known as the employee whisperer within my industry.

Major corporations are at once under pressure to appear sensitive to employees from marginalized groups and eager to blunt unionization efforts that would hurt their bottom line. Thanks to consultants like Greer and others, these companies can sometimes kill two birds with one stone by wrapping anti-union talking points in a patina of racial sensitivity and commitment to diversity; Greers company advertises labor relations alongside diversity training.

Over the last year, Greer and his team have worked for B&H Photo, Keurig Dr Pepper, Studio in a School, and Blues City Brewery, and are paid as much as $2,000 per day to pressure workers not to join a labor union. B&H, notably, settled a federal racial discrimination lawsuit in 2017, and agreed to paying $3.2 million in back pay to over 1,300 individuals.

Employees, said Greer, fundamentally want respect and dignity on the job. Listening to worker demands, he explained, can prevent workers from drifting toward a third party, like a labor union. In some cases, that means providing seminars on leadership and understanding, or creating employee resource groups that provide special recognition to marginalized communities.

People will work for money, but they will die for respect and die for recognition, continued Greer. If your employees are talking about wanting diversity and inclusion practices, dont shut your eyes and, you know, shut your ears to that.

The Labor Pros, a Florida-based firm that runs anti-union campaigns across the country, prominently presents a diverse team that conducts diversity training adjacent to interventions to remove the union threat.

Nekeya Nunn, the chief executive officer of the Labor Pros, has adopted terminology from left-wing, activist spaces. Im a proponent of listening, heart-led leaders, people who make decisions on how they would want somebody else to treat them, said Nunn, in an interview with The Intercept.

Nunn echoed Merrells argument, that employees care as much about dignity as wages and benefits. People unionize against bad managers, not bad companies, she said. Programs that help people from different demographics and different nationalities integrate are simply part of a positive workplace culture, she continued. People work for companies that make them feel valued and included, so if thats a tactic to not have a union, then so be it.

A contract obtained by The Intercept shows that the Labor Pros provided a menu of options to Hilton Hotels last year on options for persuading workers against joining a union. The firm offered up to four consultants to speak to 80 employees for four days at a cost of $43,120, plus per diem.

Danine Clay and Byron Clay of the firm Diverse Workforce Consultants are among the union avoidance professionals who have worked on recent high-profile campaigns to persuade workers against joining a union at Hersheys and at Mission Hospital in North Carolina, according to disclosures. Their firm touts its ability to empower management with employee selection, retention, diversity training and skills, and union avoidance tools and strategies are unmatched.

Danine Clay was listed on disclosure forms as a consultant for Amazon engaged in persuading warehouse workers not to join a union. Over the phone, she said the disclosure form was incorrect but declined to comment further.

Theres kind of a jiujitsu, to get employees thinking about racial justice issues, at least superficially, as a way to deflect labor and collective bargaining, said Michael C. Duff, a law professor at the University of Wyoming. Duff attended law school after union organizing cost him his job working for an airline. He understands why the diversity, equity, and inclusion field has become an asset for companies hoping to skirt unionization particularly at a time when employee interest in both is rising rapidly.

Labor consultant folks converting into DEI folks, added Duff. Its really a wonderful kind of psyops, right, because these people are supposed to be close to employees.

The approach is on display in some of the most high-profile union battles going on now. One example is Starbucks, which has faced growing unionization pressure as over 100 stores have voted to join a union. The company, in response, launched an anti-union website earlier this year. Among the reasons not to join a union? The Starbucks website says the firm already provides an inclusive environment and maintains a strong commitment to diverse hiring practices.

So far, the approach has mostly backfired for the company. Starbucks claims to be a progressive company, and theyre using this social justice language, but people see past that, said Joseph Thompson, a student barista who organized two Starbucks locations in Santa Cruz, California.

Thompson has corresponded with other baristas seeking to form unions around the country as far away as Idaho. Many have voiced frustration at the companys union-busting tactics in contrast to its purported values, he said.

Despite the rosy image of inclusiveness and activism touted in Starbucks press releases, the company has been accused of over200 violations of federal labor laws, and over 20 baristas say they have been illegally fired in retaliation for attempting to form a union.

Its a brutal anti-union campaign, but also one that tries to appeal to the sort of progressive sensibilities of the kinds of people who work at Starbucks, said John Logan, professor and director of labor and employment studies at San Francisco State University.

Effective or not, its becoming a standard playbook. Princeton University, in a page outlining alternatives to unionizing for graduate students, notes that the school already welcomes input on all areas of university life, such as professional development and diversity and inclusion.Princeton University has so far prevailed: The graduate student union has not held a unionization vote, there is no recognition to bargain with the graduate students, and they do not have a contract.

When workers at vegan food company No Evil Foods, which makes imitation meat products sold at Whole Foods and other upscale groceries, held captive audience anti-union seminars, the company warned workers about the old white guys in union leadership and compared union dues to taxpayers funding President Donald Trumps golf junkets.

In other records leaked out of the No Evil Foods seminars, workers were warned that unions were hotbeds of sexism and sexual harassment, and did not share the vegan food manufacturers progressive values. The union drive at the firm ultimately failed.

Corporations are trying to hijack the language of liberation as a way to prevent workers from having a voice at the table and a say in their jobs.

Critics say that many corporations merely channel concerns around racial injustice into a reputation-laundering strategy, one that can serve the bottom line of keeping workers in check. For lack of a better word, were in this woke moment, said Wes McEnany, a former organizer with CODE-CWA, a project of the Communication Workers of America to unionize the tech industry. Corporations are trying to hijack the language of liberation as a way to prevent workers from having a voice at the table and a say in their jobs.

McEnany noted that when he worked on a campaign to organize workers at Mapbox, a technology firm that provides custom online maps, management responded with accusations of bigotry, claiming efforts to prevent the offshoring of jobs reeked of xenophobia.

Medium, the publishing website launched by Twitter co-founder Ev Williams, countered a union organizing drive with a promise to increase spending on diversity and inclusion efforts, according to McEnany. After the union vote failed by one vote, Medium liquidated its primary editorial division.

Such left-leaning language and promises were on display in the recent organizing drive at REI, the outdoor clothing and equipment retailer. The company this year posted an internal podcast featuring its chief executive, Eric Artz, and the companys chief diversity and social impact officer, Wilma Wallace, discussing why REI doesnt think unionization is the right thing for the co-op or for the employees.

Much of the conversation centered on claims that a union would hamper the companys ability to listen and communicate directly with our employees and reduce the companys ability to be flexible in resolving workplace concerns. Such arguments are routine in most organizations facing a union vote.

But what stood out was the language of social justice that filled the discussion. Wallace began the talk by stating her preferred pronouns and a land acknowledgement to honor the traditional lands of the Ohlone people. Artz, while arguing against unionization, peppered his remarks with comments about how REI intends to maintain its focus on inclusion and racial equity.

Finally, Dollar General is perhaps one of the most glaring retailers facing criticism for its labor practices. The company, in its latest annual disclosure, reported that its median annual salary for workers was $17,773. Workers have cited broken air conditioners, mold in the break rooms, and little safety precautions for employees who face constant robberies and violent incidents within stores. The widespread problems have led to a worker revolt, including store clerks posting TikTok videos of unsanitary work environments and grossly understaffed stores, and some moving toward demands for a labor union to negotiate better conditions.

Dollar General has responded with an aggressive anti-union effort that is overseen by Kathy Reardon, the companys chief people officer. In public, Reardon is touted for leading the discount retailers ongoing diversity and inclusion journey and for creating an allyship guide that helps employees play an active role in creating a more inclusive environment.

Records show that Reardon is involved in the hiring of $2,700-per day consultants who have helped the firm defeat a push for a labor union at its Connecticut locations.

One of the most insidious tactics have been the use of supposed employee resource groups, also known as affinity groups or ERGs, to undermine labor activism. Many companies offer specific ERGs for Asian, Black, Latino, or LGBTQ+ individuals, among other identity-based suborganizations as part of a larger diversity and inclusion program.

The management-sanctioned groups are attempts to create safe spaces for historically marginalized identities to voice shared concerns and create a sense of community within the workplace. According to a study published last year by McKinsey & Co. that surveyed 423 organizations employing 12 million people, close to 35 percent of firms have added or expanded ERGs since 2020.

Supporters of these initiatives say these groups provide a useful channel to improve communications and spotlight company practices that might be shaped by racial biases or lack of sensitivity to minority cultures.

These lofty goals, however, at times run parallel to or even in conjunction with anti-union measures at some firms. IRI Consultants, a union avoidance firm, noted in one publication that unions in some industries, particularly high tech, have drifted toward capitalizing on demands that employers do a better job of hiring diverse talent. One way to union-proof your business, IRI claims, is to develop effective leadership, consistent employee training, and diversity and inclusion (D&I) initiatives that address challenges like unconscious bias in the human resources (HR) process.

When people feel powerless, resentment festers until someone comes along, like a union representative saying, You have a right to be heard. We can help you get a voice in your workplace, and your employer will have to listen, IRI noted in another publication.

In response, IRI suggests the creation of ERGs within a workplace. If you dont give todays employees a voice, the workforce is likely to have a low engagement level, and the union is going to see an opportunity, warns IRI.

ERGs are becoming more and more common. CUE, along with Littler Mendelson and Jackson Lewis, two of the largest union suppression law firms, have encouraged them.

Thats because ERGs can provide a useful corporate alternative to unions that places management in control. The tech reporting site Protocol noted that when tech firms such as Mapbox faced a union organizing drive, the company kicked off DEI-related efforts, including ERGs, in order to allay worker concerns.

ERGs kind of passively work against the idea of a union in that theyre a way for you to kind of spend your energy without it turning into anything, one tech worker told the media outlet.

When Google, notably, hired IRI Consultants to suppress union activism within the tech giant, the decision, recent court documents show, was made by the then-chief diversity officer, Danielle Brown, who previously led the firms ERG programs.

The ERG is essentially the companys union. Its more about surveillance, about keeping an eye on workers.

The ERG is essentially the companys union. Its engaged in this way: Oh, youre from a marginalized identity group, you have a place to speak, said McEnany, the organizer. But if you talk to a lot of workers interested in real change, they see this as a way to throw money for a party. Its more about surveillance, about keeping an eye on workers.

In the late19th and early20th century, in the early days of the U.S. labor movement, corporations facing labor activism would often create fake union organizations controlled by management. These so-called company unions would provide a false sense of worker empowerment, with some fringe benefits like a pool hall or recreation center, while keeping wage and benefit decisions controlled by corporate leaders.

The National Labor Relations Act of 1935, also known as the Wagner Act, which enshrined federal labor union rights, expressly outlawed the formation of company unions. Corporations cannot form worker organizations that claim to negotiate on behalf of employees.

Company unions were a major concern of Sen. [Robert F.] Wagner because its very easy for a working person to mistake these groups as third parties, said Duff, the University of Wyoming law professor.

The movement to create ERGs at a time when workers demand better conditions could be a violation of labor law, Duff argued.

Its a distraction. The idea is, Were going to siphon off energy that might be devoted to creating your own arms-length groups that would be adversarial, he added.

Nunn, of the Labor Pros, agreed that operating ERGs in some ways could run in violation of the National Labor Relations Act but questioned the wisdom of such prohibitions. So workers get what they want, companies could not have to deal with a union if they didnt want, and employees would still feel theyre fairly compensated and they work in a just environment that speaks up on social justice issues. It would make unions obsolete, said Nunn.

If a company is willing to create those things outside of the union, outside the labor union, whats the problem with that? she asked.

The success or failure of a union election is almost always determined by knowledge of the workforce and an intimate understanding of the values and beliefs of each employee. The union suppression industry has made workforce intelligence gathering a key element of its trade.

In the70s and 80s, industrial psychologist Charles Hughes trained over 27,000 managers and supervisors to make unions unnecessary. One of his methods was to promote the use of surveys to collect information about workers. Employers signed up by the hundreds to attend Hughess talks, including a seminar titled, Attitude Survey Techniques for Measuring Union Sentiments. CUE which hosted the conference helped streamline the emerging industry of management consultants, industrial psychologists, and law firms that helped turn the tide against the labor movement, which has declined precipitously since the 70s.

Its intimate to talk about race and identity, said Duff. That creates a vulnerability, and to have consultants come in and say, Hey, look, I understand the discrimination youve gone through, you can open up to me, that can get you a lot of valuable intelligence.

Such vulnerabilities can be key insights during an organizing drive. In 2011, Pratt Logistics opened a new plant in Pennsylvania. The company brought in a man who only identified himself as an efficiency expert named Jay. Jay went around conducting one-on-one interviews with workers, asking them about what problems they faced, their values, and concerns.

Later, when truckers and warehouse workers at Pratt began steps to form a union at the new plant, the company instantly fired union sympathizers. It wasnt until later that they found out Jays real identity: Jason Greer, the union suppression consultant, who had been hired explicitly to identify potential union supporters.

When the Teamsters union later brought the case to court, arguing illegal retaliation and unfair labor practices, labor attorneys noted that Greer on his website explicitly advertised himself as a union buster who wakes up every day with one goal in mind, and thats to keep unions from taking over and ruining businesses that my friends and my clients have worked their entire lives to build.

Those words are gone from Greers website. Now he lists himself as a diversity consultant.

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The Evolution of Union-Busting - The Intercept