This article appears in the October 2023 issue of The American Prospect magazine. Subscribe here.
It’s a scene replayed endlessly at countless corporate events: a bunch of old white men, clad in either business casual or their finest Tommy Bahama shirt, launching into a crappy dadcore cover of some old rebellious anthem. As Littler Mendelson, the notorious “union avoidance” law firm, celebrated its 70th anniversary in 2012, the top brass hit the stage as the Littler Mendelson Garage Band, to mangle the Talking Heads’ 1977 single “Psycho Killer,” while lanyard-wearing attorneys in the crowd bopped along in the least rhythmic manner imaginable. The opening line: “I can’t seem to face up to the facts.”
San Francisco–based Littler Mendelson ranks among an elite crop of about a half dozen law firms that have riled labor organizers for decades, alongside names like Jackson Lewis and Ogletree Deakins. But Littler is the largest employment and labor law firm exclusively representing management, with more than 1,700 attorneys in offices around the world. Since 1942, its sophisticated counsel has helped clients navigate America’s changing workforce, from the postwar labor boom to the civil rights movement, and later through the Great Recession.
In one of the few profiles of the secretive firm, a union lawyer explained, “It’s not just that they play hardball, but they’ll do [just] about anything to accomplish their ends. They push the line as far as they possibly can and eventually step over.”
Littler Mendelson’s notoriety supersedes its competitors not just because of its ruthless reputation. (A previous generation of labor lawyers and organizers snidely referred to the firm as “Hitler Mussolini Fascist,” a nod to the firm’s previous name, which included other partners: Littler, Mendelson, Fastiff, Tichy & Mathiason.) Littler’s reputation is built upon the firm’s insistence that no anti-union employer is unworthy of their services. In other words, they aren’t just chasing high-profile cases, they’re scraping from the bottom of the barrel.
The firm has reportedly worked for 70 percent of the companies on the Fortune 500, and is the legal muscle for the largest current union-busting campaign in the United States: Starbucks’s bid to stall its more than 350 unionized coffee shops from getting a first contract, and to thwart any of its other thousands of stores from winning a union election. Other clients in the last decade have included Apple, Nissan, Trader Joe’s, Amazon, and McDonald’s, as it attempted to fend off the Fight for 15 campaign.
Littler has expanded its union avoidance operations overseas, with offices in over 20 countries.
But Littler was also retained by the Southeast Alaska Conservation Council (SEACC), a nonprofit with ten employees at the time of its union election and only four members in the bargaining unit. The union won 3-1, prompting SEACC, under Littler’s guidance, to seek to delay and challenge the election results based upon the risk of “national ramifications” from a small nonprofit organization unionizing. (The National Labor Relations Board rejected this; then SEACC filed another challenge.)
Endless delays are part of a suite of tools Littler attorneys use to frustrate worker organizing. Littler’s influence is so far-reaching, a 2022 article from the website of the Labor and Working-Class History Association described how its tactics are the gold standard for entire sectors of the labor market.
But while labor advocates would call Littler’s approach union-busting, the firm sits in a more vague space between that and the ordinary counsel that any attorney provides to a client, regardless of the field of law. Because of this, Littler’s activity can be protected by attorney-client privilege, something the firm assiduously covets to prevent organizers from knowing about their involvement in active campaigns.
Even what little we know about Littler is enough to describe what appears to be its philosophy: prevent any worker anywhere from collectively bargaining for anything.
FOUNDED BY ARTHUR MENDELSON AND ROBERT LITTLER, the firm started as a regional leader on the West Coast before going national. In 1980, Mr. Mendelson described his philosophy on working with employers: “Our clients pay a lot of money … If they want aggressiveness, they are entitled to it.”
One of Littler’s earliest key attorneys, Wesley Fastiff, helped transform the firm into the union-busting powerhouse it is today. His rise to fame came after filing an unfair labor practice complaint against the Teamsters in 1963, then represented by Jimmy Hoffa. Reflecting on the negotiations with Hoffa, Fastiff told his alma mater Harvard Law School in 2002, “I became a big hero of the trucking industry.” Littler Mendelson soon represented the California Trucking Association’s 150 companies.
Littler’s hardball tactics through the 1960s and ’70s proved so fruitful that by the 1980s, the firm pivoted for a period to focus on defending employers in cases over disability, sexual harassment, discrimination, wrongful termination, and pension issues.
Essentially, the firm is everywhere. A 1996 article in the San Francisco Chronicle detailed some of Littler’s clients; they included the Chronicle itself. Littler has so much experience with anti-union campaigns that it has created specialties by economic sector, from retail to health care to hospitality to financial services.
I realized that I had already profiled Littler without even knowing it. When I looked back on a story I wrote about the unsuccessful efforts of veterinary professionals organizing for a union, I uncovered that Mars, Inc., retained Littler as it stalled elections and first-contract negotiations. Mars would go on to close a veterinary practice in San Francisco that had organized with the International Longshore and Warehouse Union.
The company would repeat this tactic at a veterinary hospital in North Seattle. The head of the National Veterinary Professionals Union, Liz Hughston, described Mars’s bargaining tactics to me as the “edge of legality.” Shortly before the company eventually closed the North Seattle hospital, Hughston said that 60 to 75 percent of the bargaining unit had already left the hospital.
John Logan, a labor history professor at San Francisco State University, explained to me how Littler’s tactics of indefinite delay are among its most common. Delays often breed frustration among workers; thus support for the union drive dwindles, reinforcing narratives from management that the union won’t fulfill its promises. “Delay is often a killer for union campaigns,” Logan said.
Indeed, last year I spoke to organizers frustrated that a union drive in the Southwest was being delayed as they were waiting to hear back from the National Labor Relations Board about where the election would take place. They said they were running against the clock, and the bargaining unit of mostly Spanish-speaking migrant construction workers was losing hope.
A 2014 document co-written by Littler, its in-house think tank the Littler Workplace Policy Institute (WPI), and the International Franchise Association (IFA) contained other tips and tricks for employers seeking to prevent unionization, including advice on what they can and cannot legally say to workers and what elements of unionization they should play up as negatives. At one point, the authors urge employers to call the police on union officials when necessary.
JOSHUA BESSEX/AP PHOTO
At least 110 Littler attorneys have worked for Starbucks, on the largest union-busting campaign in the United States.
The Workplace Policy Institute, founded in 2006, is Littler’s hybrid research hub and lobbying vessel, illustrating how the firm’s influence extends beyond the clients and sectors it advises. This April, the Workplace Policy Institute appeared on a coalition letter led by the U.S. Chamber of Commerce in support of the anti-union Employee Rights Act of 2023, a Republican House bill that explicitly seeks to neuter the NLRB’s role in elections. WPI has also been active in fighting efforts at the state and federal level to reclassify workers as employees, and to improve labor protections for gig workers.
The Starbucks campaign is perhaps the best example of Littler’s handiwork. Starbucks engaged in a relentless campaign of “captive audience” meetings and spam texts to dissuade baristas from unionizing. When that didn’t work, the company tried to quickly hire new workers before union elections. And when that failed, Starbucks denied raises to workers at unionized stores while offering them to non-union employees, a tactic aimed at encouraging unionized workers to decertify their shops. Littler has had at least 110 attorneys working for Starbucks, as of last year.
Littler has also been at the forefront of using “data analytics” in its campaigns, to “predict union risk” at particular workplaces. The company has a “Robotics, Artificial Intelligence and Automation” practice group that helps overcome “legislative and regulatory obstacles” to employing these technologies.
Though U.S. labor law is the most forgiving among industrialized nations, Littler has expanded its union avoidance operations overseas, with offices in over 20 countries, including Singapore, Germany, and Venezuela. Littler Global even merged with labor and employment firms in France and the U.K. to build its business and manage the debate on global labor standards. Logan termed this “the new union avoidance internationalism” in a 2019 research paper.
A number of Littler’s attorneys have actually written labor law. William Emanuel, a Trump appointee to the National Labor Relations Board from 2017 to 2021, practiced at Littler before entering the government. Other Littler attorneys have gone through the revolving door.
Today, amid its growth, Littler has tried to pull back from its cutthroat image. Following the George Floyd murder and associated protests in 2020, in the same way as the rest of corporate America embarked on a “woke” soul-search, Littler Mendelson followed suit. Those efforts included a podcast on what law firms such as Littler could do to improve gender and racial diversity in their ranks, without a shred of reflection upon the fact that Littler’s anti-worker counsel most directly impacts women and racial minorities who work in the retail and service sectors. By 2021, the firm named its first ever chief inclusion, equity, and diversity officer.
Littler Mendelson did not respond to the Prospect’s request for comment.
WHILE WE KNOW A LOT ABOUT LITTLER, its full scope is still largely unknown, because it does its best to avoid reporting requirements under U.S. labor laws. As long as Littler attorneys don’t directly speak to workers in the bargaining unit, they can classify their role as advising clients as legal counsel. The work of encouraging workers to reject unions falls to company supervisors, or specialized consultants known as “persuaders,” which are separate from the law firms.
Those persuaders are legally obligated to reveal their work for employers under the 1959 Landrum-Griffin Labor-Management Reporting and Disclosure Act (LMRDA) within 30 days of being hired. At its best, it’s an equalizer allowing employees to know the extent of their employer’s efforts to prevent a union in the workplace. But enforcement of these disclosure laws is lax; employers and consultants often miss the deadline or don’t report at all. Labor advocates I spoke with said it’s obvious why employers and consultants delay their reporting: You can inflict more damage on an organizing drive if the union doesn’t know who’s running the show.
Bob Funk, founder of LaborLab, a nonprofit that tracks union-busting, told me that if an “employer is spending massive amounts of money on persuaders,” that constitutes an “illegal and unfair advantage over workers who are entitled to information prior to an election.”
In 2011, the Department of Labor engaged in the most thorough investigation of the union avoidance sector to date by reviewing LM-20 and LM-21 forms. The LM-20 form requires consultants to file information on specific agreements with particular employers; the LM-21 is an annual receipts and disbursements report on overall spending.
The topline conclusion was that LM-20 forms only reflect 7.4 percent of the work consultants and employers actually used in anti-union campaigns. The Labor Department arrived at this by calculating the discrepancy in the total money paid to the union avoidance industry in the LM-21 forms and the specific money in the LM-20 forms. According to LM-20 forms, the industry was paid $25 million; the LM-21 forms showed $338 million. Using an updated analysis, the labor-backed Economic Policy Institute (EPI) estimated this March that companies spend $433 million a year on consultants. Of course, that doesn’t count the amount spent on law firms like Littler Mendelson.
Attorney-client privilege is critical for offering confidential legal advice, but if that tips over into general strategy conversations, employers and counsel could lose that privilege. The LMRDA exempts attorney-client communications from disclosure, but technically speaking, other communications would be subject to reporting. In practice, the reporting requirement for lawyers is only triggered if they interact with a non-management employee.
The most inexperienced anti-union employer would not have to report anything about a law firm like Littler Mendelson’s involvement.
Former President Barack Obama’s Labor Department, over a seven-year period, tried reclassifying legal services provided by firms like Littler as subject to the same federally mandated reporting standards that persuaders are obligated to file by the LMRDA, regardless of their direct interaction with employees.
Labor advocates argue that the Obama-era update was not entirely necessary. They point to the LMRDA’s language under Section 203, titled “Reports of Employers,” which says that reporting requirements apply for indirect persuasion activities. It’s hard to argue that Littler and other law firms aren’t engaging in indirect persuasion. As Funk told me, “I’m shocked that the [LMRDA’s] language needs clarification since it says direct and indirect persuasion.” Therefore, advocates argue, an aggressive Labor Department could even enforce the LMRDA’s existing language. Nevertheless, they welcomed the Obama-era rule change.
Management-representing labor lawyers, meanwhile, strongly disagreed. Regarding possible changes in 2014, Littler’s Workplace Policy Institute described them as a threat to the “confidential nature of the attorney/client relationship … many small employers without in-house counsel to assist with the LMRDA’s reporting requirements would be placed at a disadvantage.”
But the changeover in power after the 2016 election extinguished the threat to anti-union law firms and consultants on several levels. Under Donald Trump, the Labor Department announced that it would no longer require employers to report anti-union work on the LM-21. A year later, LM-21 forms filed dropped by 38 percent, even though the number of NLRB elections dropped only 8 percent.
Trump’s Labor Department also issued a final rescission of the Obama-era rule in 2018. This triggered a large sigh of relief among the union avoidance legal industry; it’s plausible that some firms would have left the business entirely if forced to reveal their pay rates and dealings with employers. That exodus would have tipped the scales in the legal battlefield between union organizers and hostile employers closer to an equilibrium.
The Prospect asked the Labor Department how it was ensuring timely anti-union activity reporting practices and if it was continuing the Trump-era policy that allowed employers to not report annual persuader spending. A spokesperson pointed to a blog and said that the Department’s Office of Labor-Management Standards “has no present plans to change the enforcement policy. It will remain in effect until further notice, which will be provided no less than 90 days prior to any change.”
THE ARGUMENTS OVER THE LMRDA INTERPRETATION point to how the reporting requirements are effectively a loophole. As the law stands today, the most inexperienced anti-union employer would not have to report anything about a law firm like Littler Mendelson’s involvement. Simultaneously, as Sen. Bob Casey (D-PA) noted in a hearing earlier this year to Starbucks CEO Howard Schultz, fees paid to law firms can be deducted from corporate taxes. “Under federal law, Starbucks is able to write off those costs as a run-of-the-mill business expense,” Casey said, “meaning taxpayers are subsidizing union-busting in the United States.”
In 2019, EPI published a report on how 41.5 percent of employers are charged with violating federal law in union campaigns. One of the citations in the report included how in 1980, the U.S. House of Representatives concluded that the LMRDA’s reporting requirements were a “virtual dead letter, ignored by employers and consultants and unenforced by the Department of Labor.”
Failure to file an LM-20, the form’s instructions state, can subject someone to “criminal penalties” or “civil prosecution.” It sounds tough, but in reality, if an employer or consultant doesn’t file, the onus is placed on the Labor Department to track a missing report. How this plays out in real-life organizing drives was recently detailed in an investigation from HuffPost, which found that due to the lag between when a union-busting campaign begins and the time the documents are available, the information is no longer useful. By the time a persuader is revealed in a union drive, workers have already likely endured captive-audience meetings, firings of key organizers for frivolous reasons, and other anti-union tactics.
The disregard for complying with reporting requirements continues, even under a labor-friendly president in Joe Biden. Funk’s LaborLab evaluated LM-20 forms from 2021 and 2022, and uncovered that 82 percent of all LM-20 filings came after the 30-day deadline, translating to 522 late disclosures. Almost 30 percent of those late filings were more than six months late. Put differently, the reporting rules as they stand today are the Labor Department’s equivalent of how the IRS “requires” taxpayers to disclose income from drug dealing for taxation purposes.
Susan Walsh/AP Photo
Barack Obama’s Labor Department, led in his second term by Tom Perez, tried to make employer-side law firms subject to the same federal disclosures as consultants. Trump’s Labor Department rescinded the rule.
The Obama-era update would not have remedied every deficiency in U.S. labor law. But in theory, it would have equipped unions with the ability to request public records documenting the extent of a law firm’s involvement in an anti-union campaign at workplaces they’re organizing. In other words, it would have provided at least a means for seeking accountability and transparency in the courts.
In theory, an ambitious litigator at the Labor Department could follow the advice of labor advocates and challenge union avoidance firms’ premises about attorney-client privilege. But that would likely be met by employers and law firms throwing everything from their end to withhold documents from the public—an inevitable legal showdown dragged out for so long that the documents are no longer relevant for the pertinent organizing drive. And of course, the current makeup of the courts is not exactly friendly to union organizing.
“It’s absolutely imperative that the Department of Labor get more aggressive,” Funk said. “We’re only seeing a slice … a lot of it’s still in the dark.”
Unraveling the consensus of pro-management labor lawyers would be a monumental task. For decades, the employer and law firm rationale citing privileged communications has been the status quo. Undoing this would require a multi-agency effort, amid annual debates over federal appropriations, in addition to the inevitable personnel changes from Democrats to typically anti-union Republicans.
The deficiency in tracking persuader and law firm transactions is matched by the aggressiveness with which law enforcement tracks union finances. Some experts argue that this is a relic of a bygone era. In the late 1950s, Congress put union racketeering in its crosshairs.
SO LABOR UNIONS ARE PRESSED against a mixture of severe underreporting and lax penalties levied against their adversaries. In addition, the legal brain behind the companies they want to unionize is effectively shielded from the law. Funk explained to me that organizers and pro-labor leaders only tend to discover Littler Mendelson’s involvement once a petition is filed to the NLRB. “[Littler] doesn’t show up in any other disclosures,” he said. “We know that companies are spending a lot of money on it. But unfortunately, they’re hiding that from workers and the public.”
Even though there is no push to re-amend the LMRDA reporting requirements, Biden’s labor regime has pulled different levers that could help unions in their organizing efforts. As my colleague Harold Meyerson recently reported, a recent decision from the NLRB over union recognition and the consequences against employers for interfering in organizing efforts could give unions an upper hand in the first hurdle of an organizing drive. The Cemex ruling states that any unfair labor practice incurred during an election campaign will lead to immediate and automatic recognition of the union.
By streamlining the election and recognition process, employers lose many of the key tactics law firms like Littler Mendelson deploy against an organizing drive: captive-audience meetings, election delays, and the like. Importantly, however, election and recognition are just the beginning of a union drive. It’s likely firms like Littler will instead pivot resources toward delaying contract negotiations, bargaining just enough to keep the NLRB away. That has in fact long been a Littler Mendelson specialty: A 1997 Washington Post article explained how the firm was “infamous for using the intricacies of labor law … to delay the bargaining indefinitely.”
In the most extreme example, they could advise companies to close facilities where union activity is present. It’s what companies that Littler has represented in the past have done, for example at veterinary hospitals owned by Mars, Inc.
Location closures have also become the latest move against the Starbucks union campaign, where Littler is an important partner to management. I spoke to former AFL-CIO organizing director Richard Bensinger, who is also serving as a senior adviser to the organizers at Starbucks. The first thing he told me was about how egregious it was of the company to close all the stores in Ithaca, New York, which were all unionized. “They’re trying to crush the aspirations of a whole generation of young workers,” he said.
Bensinger has almost 50 years of organizing experience. In all those years, he said that no other union-busting campaign compares to what he’s seen the organizers at Starbucks experience thus far. I spoke to Bensinger days before the NLRB’s latest ruling. Still, Bensinger reflected on the toll Starbucks tactics had taken on the organizers he knew.
He told me about Alexis Rizzo, one of the first Starbucks employees who supported the union drive in Buffalo, New York. Despite working at the company for seven years, she was fired two days after Schultz testified this spring. The official reason was over tardiness, but according to Bensinger it was clearly a pretense for her long-standing support for the union.
Bensinger said that while Rizzo formally filed an unfair labor practice complaint to the NLRB, the union-crushing efforts have taken their toll. “I’m sure she’ll win her job back someday,” he said. But the damage has already been done. An official reinstatement could take years, Bensinger told me, referring to how when he was fired from a factory job for union activity it took six years for the NLRB to make a final decision on his case.
“She’s on to her new life. She’s got two jobs so she’ll be fine,” he paused. “The only answer for any of this is in the court of public opinion. It has to become socially unacceptable to fire and terrorize someone for organizing a union.” Otherwise, as Bensinger put it, “life goes on.”
