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How to Work with Lawyers in a Contract Campaign

Many kinds of pressure tactics should be discussed with legal counsel during the planning stages. Employers may claim that union members are violating laws on secondary boycott, libel, slander, or extortion.

Lawyers may be able to advise you on...

• The risk to members of arrest, fines, or disciplinary action.

• The risk to members’ dues money from potential lawsuits or fines against the union.

• Ways to design campaign tactics to minimize the risks.

At the same time, keep in mind that many laws are written primarily to protect employers, and that our union might never have been established in the first place if our founders had not used creative and powerful tactics.

Union members sometimes must act in the tradition of Dr. Martin Luther King and Mohatma Gandhi and disobey laws that are used to enforce injustice against working people.

The job of lawyers is not to make decisions for us about when and how we obey the laws. Their job is to tell you what the laws are and how they are likely to be interpreted by the courts.

Using that advice, union members and their elected leaders must then weigh the risks and benefits of potential actions. Workers often have a complicated judgment to make because they can lose either by engaging in unwise illegal acts or by not doing what it takes to win a fair contract.

In evaluating the possibility of legal or disciplinary action by an employer, you should discuss not only the question of could the employer win but would the employer take action in the first place. In many situations, employers may have strong incentives not to take legal action against workers or their union.

• Disciplining workers sometimes may strengthen the determination of other workers, hurt employee morale and productivity, or cause major staffing problems for the employer.

For example, if a hundred workers stop work for five minutes as a show of solidarity, they might be in violation of their contract, but that doesn’t automatically mean that it would be in the employer’s interest to fire them and have to find replacements. The employer might have the legal right to dock them for the missed work time, but management would have to consider whether that would further unite the workers and cause significant extra paperwork.

• Legal action, no matter who initiates it, may expose an employer to the process of “discovery,” which means that the union has the legal right to subpoena employer documents and witnesses in order to prepare its case. The employer may feel that revealing inside information through that process is too risky.

• Lawsuits also may mean more publicity, which the employer may not want.

• Certain acts that might technically be illegal might be seen by the public, news media, customers, or other potential worker allies as justifiable and not something the employer should be challenging.

For example, let’s say workers obtain inside information showing that the employer has polluted the environment or cheated on its taxes. Revealing that information might technically expose workers to charges of possessing stolen documents, but that doesn’t necessarily mean that the employer would consider it smart to bring charges.

• Even if workers or the union might be found guilty, you have to consider what the penalty is likely to be. If a civil lawsuit might be involved, what damages could the employer actually prove and collect?

Giving lawyers the facts

Regardless of what course of action you think you want to take, give your attorney all information that could possibly be relevant before he or she gives you advice. While you don’t always have to follow that advice, you do want the most informed, honest analysis you can get. You don’t want a lawyer merely to tell you what you seem to want to hear, nor do you want to influence the advice by withholding key information.

Planning what lawyers say to others

In most cases, it is not a good idea to have attorneys meet with members or committees without a prior discussion between union leaders and the attorneys regarding the issue at hand. Bringing a lawyer cold into a meeting of the membership or the negotiating committee can mean that the lawyer may...

• Only hear some of the facts from those at the meeting.

• Feel pressured to give advice without doing the necessary research and analysis.

• Give advice which, intentionally or not, sways people toward a decision they would not have reached in a more structured, better prepared discussion.

This is not to say that members or committees don’t have a right to know what legal advice the union has received; they do. It is also not to say that lawyers should be asked to give advice publicly which is contrary to their best professional judgment; they should not. But union leaders and attorneys do need the chance to discuss that legal advice first and plan how it will be presented.

Similarly, any occasions for attorneys to speak at the negotiating table should be planned in advance. While in general union leaders should speak for themselves, there may be times when it would be psychologically useful to have an attorney make a particular point. Union leaders, not the attorney, should determine when those times are. If the attorney feels that a legal issue needs to be discussed among the union negotiators, he or she can pass a note to the chief negotiator suggesting a caucus.

If a management negotiator says to a union attorney, “What is your legal opinion on the issue?”, the attorney should be instructed to say, “That is something I will discuss with my client if I am asked to do so.”

Not relying on legal action

Union locals have become increasingly aware in recent years that we can rarely win against employers by relying primarily on legal strategies such as filing charges with the National Labor Relations Board.

Even if we win when we file unfair labor practice charges, for example, the penalty usually is that the employer is asked not to violate the law anymore—and even that ruling may take months or years to obtain.

Here again, you have to work with attorneys to realistically discuss not just what the law says on paper but how it is likely to be enforced and how long that process is likely to take.

In general, workers should be told from the beginning that, while legal charges do need to be filed and documented, workers’ own activities are the heart of the campaign and they cannot rely on lawyers to win for them.

Evaluating lawyers

The best way to evaluate lawyers is to consult others who have worked with them in the past.

Did they prove to be committed to the labor movement, so that they had a personal interest in helping the union figure out how to achieve its goals?

Did they clearly explain in simple language the choices and possibilities, and leave it to the union to decide what action to take?

Were their cost estimates accurate?

Were they available when they were needed?

Was work that should be done by experienced attorneys in fact done by them, or was it handed off to less experienced lawyers to save the firm money?

Do they have experience with the particular legal questions on which you need advice? For example, do they have the expertise you need on immigration law or on enforcing fair labor standards rights for overtime pay?

Have they given advice based on the interests of the client and not their own self interest? For example, do past clients feel they were advised to embark on a long, complicated legal road in part because it would mean a lot of paid work for the lawyers?

Or, in contrast, did a lawyer on a fixed retainer or staff salary give cautious advice perhaps because of a desire to avoid the potential workload a client’s proposed strategy might involve?

 Courtesy of TheWorkSite.org