Karla Ann Cote/NurPhoto via AP
A coalition of labor rights groups protests Starbucks’s labor practices, April 14, 2022, in New York.
$4.3 million in one year spent on anti-union activities at Amazon. $2,625 a day to stop UPS drivers from fighting for their survival amid heat waves and a lack of air-conditioning in their trucks. Over $1 million spent on the union-busting firm Labor Relations Institute to stop stressed-out truck drivers at concrete distributor Cemex from unionizing.
Without the mandatory filings with the U.S. Department of Labor (DOL) under the Labor-Management Reporting and Disclosure Act (LMRDA) of 1959, few of us would know about the extent of companies’ union busting or the consultants they engage to lurk in warehouses and on worksites to undermine workers’ union sympathies.
Yet the data is far from adequate.
A new report from the labor watchdog organization LaborLab that analyzed the DOL’s Office of Labor-Management Standards (OLMS) data found that the number of LM-10 and LM-20 forms filed have fallen to nearly their lowest level in a decade. These forms disclose the relationship between companies and the consultants they engage for labor activities, including the amounts the companies paid for their services.
By law, LM-20s have to be filed by consultants—customarily, people who work for union-busting firms—within 30 days after they are hired, with their names and the terms under which they were engaged.
For their part, companies have to file their LM-10s within 90 days after the close of their fiscal year. These forms reveal who the consultants are and how much the companies pay them.
Even when filed in a timely fashion, these forms don’t reveal everything about how much these companies spend on union busting, as companies are only required to document their dealings with consultants who communicate directly with employees. That’s why we don’t know how much Starbucks is really spending on union busting: Their union-buster law firm, Littler Mendelson, has been hired to strategize for and counsel the campaign, but the firm’s attorneys do not meet with workers directly, so we don’t know what Starbucks is paying its anti-union masterminds.
“It’s a loophole so large you could drive a yacht through it,” said LaborLab’s founder Bob Funk.
Between 2010 and 2017, the number of LM-20s filed actually rose from 446 to 753, DOL data showed. But then it drastically fell again after 2017, down to just 314 in 2021.
LM-10s filings have been steadily falling—from 1,000 in 2010 to 403 in 2021.
Even worse, 82 percent of anti-union consultants did not file the LM-20s by the 30-day deadline in 2021, LaborLab’s analysis discovered. Consultants are also supposed to attach any written agreements they have with the companies that hire them, but only around one-quarter did. And over half did not report how much they were compensated.
Employers who hire these third-party consultants are just as bad. LaborLab’s analysis of LM-10s filed in 2021 found that $26 million was reportedly spent by companies to hire consultants. But nearly 90 employers have still not filed the LM-10 for that year, even though it should have been done by March of this year. The total amount spent on union busting, then, could end up being much higher—a 2019 Economic Policy Institute report found that an estimated $340 million a year was spent on union avoidance companies between 2014 and 2018.
The information in LM-10s and LM-20s is a crucial tool in workers’ fights against corporations like Amazon and UPS. Funk said that a “culture of uncertainty and fear” is created in the workplace when workers do not know where the anti-union material they encounter is coming from.
“But when workers know their employer has engaged union-busters to conduct potentially coercive activity, they are better prepared for the onslaught of lies and threats,” Funk said. Finding out a person you just talked to is getting paid $400 an hour to dissuade you from joining a union could put that person’s message in a different—and discountable—light.
Since union-busting consultancies use the same playbook to infringe on workers’ rights—such as forcing workers to attend meetings where anti-union talking points are repeated—once workers and organizers know union-busters are in town, they can quickly devise strategies to “push back” against the standard anti-union tropes, Funk said.
“It’s an information war between the union organizers [and] the employer,” said Ryan Stygar, an employment lawyer from Centurion Trial Attorneys. The employer’s goal is to “skew the narrative.”
SO IF THE FORMS ARE SO IMPORTANT and submitting them is mandatory, why have so many consultants and businesses been able to break the law?
Stygar said a lack of punitive measures is to blame. While a false report or “willful failure to file a required report” could result in criminal penalties, the LMRDA does not impose monetary penalties on delinquent filers, and OLMS must file a case with a U.S. district court to get a recalcitrant employer or consultant to submit the forms.
Given the number of companies and consultants engaged in union busting, the DOL is too busy to go after every violation, Stygar added. Funding for OLMS has been flat the past 16 years at around the $40 million to $45 million mark. In fact, OLMS got more money in 2006—$45.7 million—than in 2022, when it received $44.4 million from the federal budget.
Seth Goldstein, an attorney representing the Amazon Labor Union who also works for the Office and Professional Employees International Union, said the LMRDA regulations right now are “not strong enough, not broad enough.” He believes that criminal charges need to be enforced on those who do not file properly. Incomplete names, lack of any payment details, office addresses that are UPS mailboxes, and simply a lack of any information are common in OLMS filings, and often add up to a failure to reveal the extent of anti-union activities.
In response to queries, a DOL spokesperson said that “timely disclosure of these reports is a priority for OLMS” and that it expects more filings in the 2022 fiscal year compared to previous years “as a direct result of numerous outreach efforts.”
OLMS Director Jeff Freund acknowledged in a blog post in January the “significant under-reporting” and said that the agency was “taking steps to end this chronic non-compliance,” including reviving a program to remind employers and consultants to make their filings.
Getting these forms filed on time is all the more crucial today as a wave of unionization spreads across the U.S. The Bureau of Labor Statistics’ figures showed that union membership has been falling over decades, and only 6.1 percent of private-sector employees were unionized in 2021, down from 16.8 percent in 1983.
But support for labor is at its highest in 57 years, with 71 percent of Americans approving of unions, in a poll Gallup released last week. Amazon, Starbucks, and Trader Joe’s are just some of the corporations where workers—many of them sick and tired of being underpaid, overworked, and threatened with losing their jobs at any time—now want a voice at the bargaining table.
Many things can be done to fix the blatant law-breaking. One of them is to pass the Protecting the Right to Organize Act, which would protect workers trying to organize, but has been stalled by the Republicans in the Senate and several Democratic senators’ opposition to scrapping the filibuster. Another solution, as Terri Gerstein, director of the State and Local Enforcement Project at the Harvard Labor and Worklife Program, has pointed out, is a proposed DOL rule that could stop companies from using federal funds to hire consultants, or could require companies to disclose their information much earlier.
“Greater disclosure and more attention will likely reveal that what’s on the scale isn’t typically a thumb. Often, it’s more like a hammer,” she said of companies spending tons of money to squash any organizing efforts among workers.
The federal government could also take a cue from California, said Stygar, who is based in San Diego. While the state has a robust labor code, there were so many violations of workplace law that the state labor commissioner and attorney general’s office were swamped with complaints.
So in 2004, California enacted the Private Attorneys General Act, under which workers could sue their employers through civil court (the act is now at risk of being repealed at California’s 2024 elections). PAGA “deputizes” private law firms to enforce parts of the labor code on the state’s behalf, said Stygar. The state receives 75 percent of the PAGA penalties, while the remaining 25 percent goes to the aggrieved workers, and the attorneys receive a fee.
“If you’ve had a bunch of federal class action lawyers suddenly taking up enforcement on these claims, you’re not going to see as many unenforced violations,” he said.
Or, more simply and directly, employers could just redirect the funds they spend on worker suppression into bettering workplace conditions and treating their employees fairly.
“The answer is not to pay a bunch of union-busters a bunch of money.” said Stygar. “The answer is just give people raises, give them decent health care, and don’t stick them in hot warehouses where people get injured. It’s really not that hard.”
