The Devil at My Doorstep

by David Bego

  In life, many times we get hoodwinked when we are so intent on agreeing to something that later on we know was too good to be true. But we decide doing so makes good common sense especially when we are tired of fighting the fight and just want some peace. This was my mindset when the agreement was reached for EMS to settle the 13 complaints, minor as they were. By doing so, I hoped to put the SEIU mess behind me and move forward. I thus forgot to watch my backside, a mistake that would cost me dearly, both personally and business-wise.

  The allegations against EMS dating from January 2007 included a variety of charges, each of which could have been defended to our satisfaction. But the carrot tempting me to agree to a “non-admission of guilt” document, a “Notice to Employees” that would be posted in customer buildings for 60 days, was the union’s agreement that no more picketing and no more customer inference would occur. When NLRB officials contacted us and proposed, actually pushed this resolution, we felt we needed to listen.

  When I looked at the specifics of the notice, my reaction was to believe that all we were doing was agreeing to what the law required, what we had been doing all along, and nothing more. Among the provisions was the statement: “Federal Law Gives You The Right To: Form, Join, or Assist a union; Choose representation to bargain with us on your behalf; Act Together with other employees for your benefit and protection, and Choose not to engage in any of these activities.” What would be wrong with those statements, I wondered. I believed in these rights to a T.

  Listed under these words were the following: “We will not threaten you with job loss, discipline, discharge or other unspecified retaliation because you engage in activities on behalf of the SEIU, Local 3, or any other labor organization, because you talk about your terms and conditions of employment with other people outside the company, or because you engage in a lawful strike.” Further, we agreed: “We will not ask you about your union activities. . . ., We will not watch your union activity . . . or threaten your union activity . . . We will not instruct you to remove your union buttons, and we will not prohibit you from wearing union buttons; We will not instruct you to not talk about the union or not to talk with a union representative; We will not delay issuing you your paycheck because you engage in union activities, including participating in a lawful strike, and We will not in any like or related manner interfere with, restrain, or coerce, you in the exercise of the rights guaranteed you by Section 7 of the act.”

  Once again, when I read these provisions, I knew we would, in essence, be agreeing to exactly what we had been doing all along. Additionally, there was a non-admission of liability statement absolving EMS of any wrongdoing. No change was necessary and I believed this was how a company should operate. How could I not sign an agreement stating these principles, especially if the SEIU was promising to end the war once and for all by waving the surrender flag.

  Was I ready to get back to running the business on a daily basis? Certainly so, but this is no excuse as I knew what I was doing. Perhaps I was just tired of spending more money on legal fees and other costs as the total headed toward seven figures, or just wanted to give my employees and our customers a rest. Maybe I just thought this was the right thing to do, to give in a bit so I could once and for all say goodbye to Stern and his union. Regardless, I signed and every day I knew the notice of our agreeing never to do any of these things again was posted for all to see. This was fine with me because we never violated any of the laws. Additionally, we never heard one comment from employees about the postings. Had I made a mistake; maybe, but I always knew there was the possibility of the strikers asking for reinstatement and was content with that possibility. What I had not anticipated was the duplicity of the NLRB in processing these charges. Was I surprised at the NLRB’s reversal and support of the SEIU’s position?

  Yes, I was, because a trap had been laid and I had fallen into it. Shortly after the agreement was reached, the union, on behalf of the employees, sent notices on behalf of eight of the strikers requesting reinstatement to work. Immediately I conferred with our attorneys and decided we were not going to honor the reinstatements for two reasons: first, and most importantly the NLRB had concluded that the union had engaged in illegal recognitional picketing activities and each of the strikers had personally participated in that illegal picketing, and second the strike was not as the union had alleged—an unfair labor practice strike. Past case law indicated that any striker participating in illegal recognitional picketing forfeited his or her rights to reinstatement.

  The SEIU immediately Filed NLRB charges stating that EMS wrongfully refused reinstatement to the strikers, because it was supposedly an unfair labor practice strike. We were very comfortable with our position, because we based it on the fact that the we had settled the frivolous unfair labor practices with no admission of guilt, and the union had agreed to end its illegal recognitional picketing. We were absolutely shocked when the NLRB in their infinite wisdom agreed with the union and decided to issue a complaint against EMS for failing to reinstate the strikers. Now I was not only continuing to fight the union, but also my own government. The NLRB offered to settle the charges if EMS agreed to reinstate the strikers with back pay, but I could not accept their proposal.

  Early in 2009, we received notice that the NLRB hearing would be held in April debating our refusal to permit striking employees to return to work. Apparently knowing they had the NLRB in their back pocket, the SEIU had outwitted me and set us up so that now they could waltz EMS in front of the NLRB and make us defend our decision not to rehire the workers. I should have seen this coming, but my tactical error was apparent especially when we learned of the miniscule amount of evidence SEIU had regarding the 13 charges we had settled back in May of 2008. We would have wiped them up at a hearing, but instead settled. And when we did so, the union then directed the employees back to work, resulting in EMS declining their request.

  Left on the table was thus the plight of ten (the NLRB decided to include the two strikers the union forgot to send EMS reinstatement letters to) employees who alleged EMS had not permitted them to return to their jobs after the strike. It was no surprise that the SEIU characterized the walkout as an unfair labor strike while we believed the strike was nothing more than an economic strike. To bolster their claim, a clever move, the union brought up the 13 charges we believed were now off the table due to the settlement. They were thrown in our face as a show of unfair treatment to the employees.

  The SEIU’s mischaracterization of the strike as an unfair labor practice strike was significant. If, as we believed, the union’s unfair labor practice charges were merely a ruse and the union was striking for recognition, then the strikers would be ineligible for reinstatement. If on the other hand, EMS really had committed unfair labor practices and those were truly a reason for the strike, then workers may have been eligible for reinstatement. Even then, we believed that the union’s illegal recognitional picketing that had continued for at least eight months was sufficiently severe so that the strikers had lost their right to reinstatement.

  After the brief respite of inactivity during the first few months of 2009, the war resumed when the NLRB conducted the hearings in April. NLRB and SEIU attorneys began by presenting several witnesses to the administrative law judge all in an attempt to prove that the strike was based on alleged unfair labor practices by the company. But huge discrepancies soon appeared as our crack legal team cross-examined complaining employees when their stories conflicted with documented evidence we presented, and even their own previous sworn testimony. In numerous instances the strikers’ testimony often supported EMS’s claims that the strike was for recognition reasons and not unfair labor practice, and disputed supposed incidents of harassment by EMS managers and supervisors. Once again, our ability to chronicle every single incident occurring before and during the strike along with fresh information about the disgruntled employees the union convinced to strike made the difference. When the union had completed its side of the story throug
h employee testimony, I spent two hours on the witness stand explaining our side of the story.

  As I spoke, I could not help but temper my remarks about the employees because I knew they had been provided with false information and had been used by the union for its own purposes. But I had to tell the truth under oath and I did so by detailing the work-related problems we had with these employees including poor attendance, poor work performance, and in some cases, theft and incidences of threatening behavior against supervisors. I think the judge was impressed at how well we had documented each employee’s track record and sensed his belief that the walk-out was anything but an unfair labor practices strike. Our legal team had the same impression to the extent that we believed through the judge’s words that the union had indeed engaged in illegal recognitional picketing. This occurs when the union continues to picket after 30 days without petitioning for a secret-ballot election, a violation of the NLRA. In our case, the SEIU had not only repeatedly ignored our request for a secret-ballot election, but had openly told us they did not want an election, supposedly because it took too long.

  On the topic of documentation and training, one thing we learned along the way is that the SEIU has no formalized training programs or manuals. Why? Much like what we have learned about ACORN (under investigation for voter fraud and, as mentioned, a close ally of the SEIU), they do not want any documentation that could convict them if they are investigated for working outside of the law. They also do not want any smoking guns that can be traced back to the corporate headquarters. I have always found that outstanding corporations, businesses that have nothing to hide, document and train to a fault. Our discovery concerning the SEIU did not surprise me at all!

  Witnesses we called substantiated these claims. Every one of the strikers seeking reinstatement admittedly had been engaged in picketing EMS during the eight-month strike. Just as importantly, EMS was able to credibly refute all of the supposed unfair labor practice claims that the SEIU was using to establish the strike as an unfair labor practice strike. When the hearings concluded, I was hopeful the judge would rule in our favor. Clearly the evidence had substantiated our position, but many times before we felt this way, only to be broadsided by a ruling against us. This was especially true regarding the incident where the large banner was draped over the side of a customer’s building in Cincinnati. No real question existed that SEIU was responsible, but the NLRB sided with them because of a lack of proof the union was behind the action. The NLRB said we had no physical documentation that the people were union organizers or supporters, despite the fact that one of our employees had witnessed the event and two days later union organizers were on the corner passing out photographs of the banner and a flyer defaming EMS. Hard to believe, but true. Does common sense not count for anything? Additionally the NLRB was now backing off their earlier ruling that the SEIU had participated in illegal recognitional picketing, even though they had signed an agreement with the SEIU preventing then from doing so! What?

  Such rulings were proof positive, to my way of thinking, of the bias of the NLRB against business and management. While the labor board was supposed to be objective, time and time again we experienced a feeling that we were presumed to be guilty and had to fight to prove our innocence. The NLRB siding with the SEIU provided the SEIU the confidence that their best shot at beating us was certainly before the board and not in a court of law. This is why union leaders like Stern insist on binding arbitration as a pivotal element of the Employee Free Choice Act legislation. If it passes, businesses like mine are doomed because no legal recourse is possible if we disagree with union negotiation regarding contracts. All the union has to do is to make absurd demands, ones surely rejected, and then head toward arbitration presided over by government-appointed officials. A government with a lot of politicians indebted to unions because of election wins (in private elections, I might add) based on massive union campaign donations. In fact current rumor is that Stern has a weekly meeting with President Obama. This is not justice in any form, Stern and the SEIU don’t care.

  On June 23, 2009, rays of sunshine broke through on what was otherwise a dreary day. Our attorney informed us that EMS had been exonerated of the charges Filed by the SEIU that it had unlawfully failed to reinstate the striking employees. In a sweeping decision, the Administrative Law Judge for the NLRB found that the SEIU had failed to prove the vast majority of the alleged unfair labor practices by EMS and that, in any event, the alleged unfair labor practices were not a motivating cause for the strike. The judge also ruled that EMS did not have to reinstate 10 former strikers, because they had engaged in illegal recognitional picketing in violation of Section 8(b)(7)(C) of the National Labor Relations Act. The judge was very clear that the testimony provided by the SEIU witnesses was contrived, contradictory and not believable. He stated for example, “These witnesses are not credible because when testifying they appeared to be more interested in supporting a litigation theory than in testifying candidly.” Wow, the judge got it right! What a great victory for not only EMS and its employees, but for companies and employees across the country who are willing to stand up to the bully tactics of unions like the SEIU!

  Eight days later, however, I sat in my office not in disbelief, but rather with disillusionment and concern for where our great country is headed. I had just received a call from our attorney, Greg Guevara, who had spoken to legal counsel from the regional NLRB office in Indiana. Mike Beck, the NLRB attorney, informed Greg that the General Counsel for the Washington NLRB had directly instructed him to appeal the case to the National Board. This seemed incredulous at first since an NLRB Administrative Law Judge had made the ruling which was, beyond a shadow of a doubt, the correct decision! However, I knew the striker reinstatement decision in our favor had been a severe blow to the SEIU. It effectively eliminated one of the major planks in their Corporate Campaign to bully companies into signing a neutrality or recognition agreement, thus substituting card check in place of a secret ballot election. I also suspected they would call in political markers to have the decision overturned. Why? Because pressuring a company’s employees into striking and engaging in recognitional picketing is the SEIU’s last-ditch effort in its Corporate Campaign to embarrass and intimidate an employer into signing a recognition agreement. It fact, this was openly expressed during testimony by one of the SEIU’s witnesses during the hearing. It was obvious in his brief, the judge clearly understood that the unfair labor practices, the strike and the picketing had been manufactured for one purpose, to pressure EMS into signing a Neutrality Agreement, nevertheless the NLRB was set to appeal. Although not surprised by the turn of events, my blood pressure was rising once again!

  Despite our attorney’s belief that an appeal by the NLRB on the union’s behalf made no sense, it was not unexpected and very clear to me. In my mind (and I am not a conspiracy theory believer) Stern and the SEIU were introducing their proclaimed “persuasion of power” via their association with the White House. I believe that the SEIU contacted the Obama administration when they learned of the decision, who in turn made a call to the General Council of the NLRB in Washington D.C. and demanded an appeal of the case. (Again, it is widely reported that Stern has a weekly meeting with President Obama.) Despite an overwhelming decision in EMS’s favor, the SEIU is betting on its political influence to have the case overturned. Classic SEIU “persuasion of power” is based on political contributions and ideology, but in my mind it is political corruption. It is a shame that Stern and the SEIU, who could not even win on a playing field tilted in their favor, now have to resort to using political pressure to achieve their objectives.

  Earlier in the book, I mentioned that Stern was apparently unsuccessful in the private sector, but became so in the union environment where he could use his bully tactics. This latest development reinforces my suspicions, and even sadder, it appears the current administration of our country may be complicit in the “persuasion of power.” How terrifying for the future of all of u
s!

  Despite the latest developments, I am optimistic that our system of government will continue to vindicate EMS, but we the people must continue to be vigilant and remove politicians on both sides of the aisle who abuse their positions and power. Even with the probability of surviving the war with Stern and the SEIU, a multi-headed monster lurks in the future—the Employee Free Choice Act (EFCA). But as it makes its way to the Senate floor where passage remains unclear, I am more concerned with presenting a plan whereby unions will leave a company like mine alone through the realization that 1) we treat our employees with dignity and respect, paying them the highest wages in the industry along with good benefits, while still remaining competitive in the marketplace; and 2) we are willing, according to the law, to permit secret-ballot elections at any point in time if our employees want to consider unionization.

  This reasonable, common-sense attitude is based on a strong employer–employee foundation built, more than anything else, on one important factor—trust. During my 20-plus years of owning and operating my own business, lessons learned along the way helped me build this trust. The result is a number of tips that might help others who want to start their own business, grow it, and then sustain it using solid business practices with the main focus on how to treat fairly the front-line employees who bust their butts every day to make the company successful so everyone wins in the end. If the company does this, then a union is not needed to protect those workers.

  Before anyone decides to start their own business, several factors must be weaved into the equation; owning and running your own business is not for everyone. People have to ask themselves whether they are willing to take the risk, to give up the security of working for others who take the risk. One important question to ask—whether there is enough inner strength to start from nothing with an unsure future—doing so is not for the faint of heart.