Phil Cohen is one of the most effective and celebrated organizers to have ever set foot in the south -- a region of the United States not necessarily known for being sympathetic to union organizers. Cohen's most recent book - Fighting Union Busters in a Carolina Carpet Mill: An Organizer's Memoir - is riveting and a must read, especially for anyone who has been part of an NLRB fight or is interested in learning more about how working people can push back on corporate power. It's for these reasons we're so excited to offer the following workshop prepared and presented by Phil Cohen: Enforcing your Rights.
Phil Cohen's Enforcing Your Rights workshop can be listened to right here:
A transcript of the workshop follows:
My name is Phil Cohen. I’m Special Projects Coordinator for Workers United, an affiliate of SEIU. I’ve spent 30 years in the field assigned to the most difficult situations. One of my specialties is investigating and exposing illegal union busting - by presenting evidence to the National Labor Relations Board. I also write and publish books about my exploits. I’ll provide more details about that when we wrap-up.
The biggest secrets in America are the laws that protect working people. They don’t teach that in school and you’re sure as hell not going to learn about them from an employer. The ONLY way workers get educated about their rights is if they have a union. And knowing your rights is only half the challenge. You then have to learn how to enforce them.
The National Labor Relations Board (NLRB) is a federal law enforcement agency - created in 1935 to protect the rights of workers to form unions and engage in union activity. Those rights are spelled out in National Labor Relations Act.
Bottom line: It violates federal law for employers to interfere with those rights. Management is required to remain neutral regarding the free choice of workers to have a union.
They’re prohibited from threatening or coercing workers for union activity. It’s illegal for them to show favoritism to anti-union employees and discriminate against pro-union employees. I’ll explain how this plays out in the real world during the next few minutes.
Illegal union busting on a plant-wide scale usually takes place under 2 circumstances: Workers are trying to form a union; or management is trying to get rid of an existing union. Here are their six most common dirty tricks (legally referred to as unfair labor practices)
- Allowing anti-union workers free run of the plant during working hours to talk trash about the union - or circulate a petition to get rid of the union.
a. What would happen if you left your job to visit other departments during working hours? You’d get written-up and maybe fired.
- Management talking privately with workers, saying they’d be better off without a union
- Threatening to close the plant if there’s a union
- Promising raises or other improvements if there’s no union
- Interfering with your right to show union support in any way, so long as it doesn’t interfere with production:
a. This includes handing out union leaflets at the plant gate, or in the canteen when you’re on break, wearing union stickers and t-shirts. The NLRB defines this as protected activity.
- Threatening, firing, or disciplining workers for engaging in protected activity.
If these illegal activities are taking place where you work, immediately notify your union organizer. An experienced union rep, or a union lawyer, will file charges with the NLRB.
Your job then becomes gathering evidence to back up the charges. Under our system of justice, people are innocent until proven guilty. That includes management.
I’ve had some of the biggest corporations in America busted by the NLRB. But I couldn’t have done it without a dedicated group of workers investigating inside the plant and finding witnesses.
There are several things you need to understand about evidence:
- You’ve heard the expression there’s too much of a good thing. You can eat too much good food. You can have too many lovers at the same time. But you can’t have too much evidence. When it comes to winning a case: the more evidence the better.
- “Everybody knows….” isn’t evidence. We need to present witnesses to tell what they directly experienced.
- “Somebody told me” isn’t evidence. It’s hearsay. We need witnesses who personally saw or heard something illegal
- There are two types of evidence: Cumulative & Corroborative. It’s best to have both.
- Cumulative is many people testifying about the same type of violation.
- Corroborative is the most powerful: several people testifying about the same incident.
Your job is to identify witnesses and convince them to meet privately with a union rep or lawyer. If their information is good, the union will present them to an agent of the NLRB to give a sworn affidavit. Someone else telling an agent what the witness told them doesn’t count. It’s hearsay.
Many witnesses will be frightened. That’s the whole point of company tactics. It’s critical to understand and explain their rights:
- NLRB affidavits are confidential. Agents are prohibited from revealing the identity of witnesses to management.
- The moment a worker sits down with an NLRB agent, they are no longer the union’s witness. They become a witness of the US government.
- The government doesn’t like its witnesses being tampered with. It’s a serious violation of federal law to discipline, fire, or even harass a worker for being a witness.
- So, if somehow management figured out someone was a witness, they’d have to screw up twice as bad for the company to justify their termination to the NLRB.
- I’ve presented hundreds of witnesses to the NLRB. Not one of them ever received so much as a dirty look from management.
- Remember: a big corporation may have lots of power - but the US government has more power.
Let’s talk about the kind of evidence needed to prove the various types of violations:
Allowing anti-union workers free run of the plant during working hours: We need to prove management knew and didn’t take action to stop and discipline them. That means we need multiple witnesses saying they saw management observing the activity.
- You might argue it’s common sense that management knew people were off their jobs. But common sense isn’t evidence.
- Management always defends themselves by saying they didn’t know and would have taken action of they did. We have to PROVE beyond a reasonable doubt that they did know.
Management privately coercing workers to not support the union: We need people to testify about discussions management had with them.
- The company always targets people they consider weak links. But some of these folks end up feeling shamed and angry.
- Direct management solicitation is the capital offence of NLRB violations. It’s the most compelling evidence of illegal union busting.
- Threatening to close the plant or promising incentives to get rid of the union: This occurs at both employee meetings and with individuals. We just need people to come forward.
- Interfering with your rights to engage in union activity: This always involves union activists so getting witnesses to testify is relatively easy.
- Threatening, firing, or disciplining workers for engaging in protected activity: Another very serious offence. But we need enough evidence to overcome management’s claim they fired the person for other, legitimate reasons.
TACTICS FOR A SUCCESSFUL NLRB INVESTIGATION
Conduct your investigation as a covert operation:
- Never let management know you’re investigating them. Never confront them about their violations. If you do, they’ll just become more careful. Better for them to grow arrogant and feel above the law. It leads to making mistakes you can document.
- Never confront the anti-union workers. They’ll just give a heads-up to management that you’re on to them. They may get the company lawyer fo file charges against the union for harassing them. It’s a 2 way street.
- This isn’t about winning arguments. It’s about winning a war. As I’ve told every union committee I’ve ever worked with, “Loose Lips Sink Ships”
- The company should be blindsided by the charges.
So, that begs the question, WHAT DOES THE NLRB ACTUALLY DO IF WE HAVE A GOOD CASE?
- If federal agents and attorneys find the union has presented enough evidence, they issue a Complaint against the company. It’s the equivalent to an indictment in a criminal case.
- It will overturn any election tainted by unfair labor practices. Illegally fired workers will be reinstated with back pay.
- It also gives the union an excellent platform to go public with press releases, putting further pressure on the company.
- The employer can appeal this in federal court in a process that can potentially go on for a couple of years. But if the union has a strong enough case it usually doesn’t happen. Management makes a business decision to cut its losses and deal with the union.
- Often, the management ring leaders of the union busting campaign are fired. In 30 years of doing this, my work has gotten countless members of management fired. Only one case went through the appeals process – and we won!
So, that’s an introduction to your federally protected rights to unionize. The rest will come with time, experience and hopefully having a good union rep. I wish you strength and power enforcing your rights.
As I mentioned at the beginning, in addition to being a union organizer, I’m an author. If you’d like to read a hard core, real-life drama about how what we discussed today was put into action during a campaign I recently directed…..one that brought a Fortune 500 company to its knees….. despite support from the Trump administration, check out my new book: Fighting Union Busters in a Carolina Carpet Mill, released by McFarland & Company at the end of 2020.
The best place to get it is my website, fightingunionbusters.org, where I’m passing on my 40% author’s discount to working people, and including a free CD of working class music. That’s fightingunionbusters.org.
In closing, I’d like to thank Mark Gevaart, host of My Labor Radio, for his recording and production services. You can listen to his outstanding podcasts by following the links at mylaborradio.org.
If you want to help protect worker's Section 7 rights, please consider donating.