EnerSys, workers settles for $7.5M

Company suing attorneys for malpractice in helping drive out union

Keith Gedamke/The Item EnerSys in Sumter closed its doors in 2001, but lawsuits between the company and employees are still before the courts.

By KRISTA PIERCE
Item Staff Writer

Battery manufacturer EnerSys Inc., which closed its Sumter manufacturing plant in November 2001, has filed a malpractice suit against its attorneys, alleging the Greenville law firm of Jackson Lewis "engineered" what EnerSys refers to as a "relentless and unlawful campaign to oust the union" from the Sumter plant.

The lawsuit comes on the heels of a $7.5 million settlement, which EnerSys has agreed to pay to former employees pending unfair labor practice charges for unlawful firings, improper implementation of a "gainsharing" incentive plan, illegal withdrawal of recognition of the union, failure to give notice of the plant's closing to the union and refusal to bargain with the union over the closing.

The ongoing discovery phase of the case is publicizing union avoidance tactics that labor experts say are widely used by companies hoping to oust unions from their midst.

"This case is remarkable because it's revealing in court documents for the first time how union busting really works," said David Bonior, chair of American Rights at Work, a non-profit agency that advocates worker's rights and investigates alleged abuses of those rights. "This is a story that deals with a variety of problems — money under the table, illegal firing of workers and just terror in the workplace and it happens all across this nation."

Jackson Lewis representatives say their firm never advised EnerSys to engage in illegal behavior of any kind. Rather, attorney Kevin Hall, who represents the firm in the case, said such lawsuits are common and that the firm will vigorously defend itself against such "outrageous tactics."

"EnerSys owes Jackson Lewis more than $270,000," Hall said. "Sometimes when clients ignore their attorneys' advice and end up with disappointing results, especially where legal fees are still outstanding, they deny responsibility for their own conduct and sue their lawyers for malpractice, hoping the case will settle with a forgiveness of legal fees."

EnerSys attorney Keith Babcock declined comment, saying the company does not discuss ongoing litigation.

But court documents allege corruption at the highest levels in the Sumter facility.

Tom Brown, a maintenance worker who led the anti-union campaign at the Sumter plant, testified more than a year ago that a mysterious consultant known only as "Mr. X" advised him on how to go about ousting the union and helped him craft fliers and letters that were widely circulated in the plant and the community.

Brown, who declined to comment for this story, said in his deposition that envelopes filled with cash were often sent to his home, but he had no knowledge of who sent them.

Brown's testimony came as no surprise to former EnerSys workers like Vincent Gailliard, who served as president of IUE Local 175 from 2000 until the plant closed and had long suspected the company of waging an illegal campaign against the union. After an exemplary work history spanning two decades, Gailliard was fired in June 2001. He was an outspoken supporter of the International Union of Electronic, Electrical, Salaried, and Machine and Furniture Workers. Gailliard said after years of waging litigation against the company, he's surprised to see EnerSys turn and point the finger of blame at Jackson Lewis.

"Each case we filed, we won," he said. "Eventually you think the company would decide things weren't going the right way and maybe they hadn't hired the right attorney ... I actually think both are involved. The company hired Jackson Lewis to aid them in ridding themselves of the union. They gave Jackson Lewis carte blanche to rid themselves of the union. The company is not a saint in this thing here."

Workers at the EnerSys plant began to seek union representation in 1994, when the EnerSys plant was called Yuasa-Exide. Soon after, EnerSys hired the firm Jackson Lewis, which specializes in labor law, to help the company in its union avoidance campaign.

The war between union supporters and those who opposed joining the union began in earnest when, after years of campaigning, a majority of the 400 EnerSys production workers voted in favor of the union on Feb. 23, 1995, becoming the first, and to date, only union to represent a Sumter company since World War II. EnerSys quickly appealed the results of the election and the matter was shuffled through the courts until February 1997 when a U.S. Court of Appeals ordered the company to recognize the union and comply with bargaining orders.

In the year that followed, EnerSys and the union came to an agreement, signing a three-year contract. The union reluctantly agreed to a "gainsharing" incentive pay plan that was supposed to allow workers to earn more money for increased production.

Instead, workers found their paychecks slashed by an average of 16 percent and production workers didn't receive raises from 1995 through 2001.

The anti-union campaign headed by Brown circulated flyers and letters to workers that said the union was responsible for the decrease in pay and anti-union sentiment among workers began to build. During that time, Gailliard and other supporters said the material circulated in the plant's cafeteria on a daily basis was never signed by Brown. Gailliard told The Item that he believed Brown to be a "middle man" for someone "higher up and financially stable" who wanted to see the union ousted from the plant. Gailliard called the anti-union campaigners a "ghost committee."

By June 2001, EnerSys withdrew recognition of the union, without going through the official decertification process with the National Labor Relations Board and in September 2001, EnerSys announced it would close its Sumter facility after laying off hundreds of workers in the months leading up to the announcement.

Before the end of the year, the union had filed a class-action complaint against the company, alleging EnerSys did not provide notice of the plant closure to the union in violation of the WARN Act.

In its malpractice suit, EnerSys claims Jackson Lewis advised it to ignore the union's request for information concerning the closing and denied union requests to enter into bargaining over the closing.

In January of this year, EnerSys agreed to pay $7.5 million to settle the lawsuit and pending unfair labor practice charges. The resolution included $3.4 million to settle the unfair labor charges and approximately $2.3 million for the WARN Act claims.

"It was a dirty, nasty war for almost 10 years," said Gailliard, who said receiving his first payment as part of the settlement was "bittersweet."

Attorney Stephen Koslow, who represented the Sumter workers as the union's principal attorney, said the settlement was no victory for workers.

"The settlement and money the workers received in no way compensates for what they lost economically and financially in terms of the infringement of the rights federal law is supposed to guarantee," he said. "I can't conceive of a settlement that would compensate these employees for what they actually lost."

Now, EnerSys says Jackson Lewis was directly responsible for giving "negligent advice" that lead to the illegal labor practices.

Bonior, the head of American Rights at Work, said union "busting" is big business, one that intimidates workers and has caused union membership to decline over recent years.

"One of every four union busting drives fires workers illegally," he said. "That sends a chilling message to workers."

Gailliard said he's pleased to see the inner workings of the anti-union campaign finally coming to light, especially since many of the EnerSys workers who supported the union had a difficult time finding employment in the years that followed the plant closing.

Gailliard said many people still believe the union caused the closing of the Sumter plant.

"All the promises they made to the people if they got rid of the union didn't come," he said. "Production closed the plant. If folks knew the real story of what happened at EnerSys and they knew that the employees did reach a settlement, they may change their minds."

Still, the revelations now coming to light about the tactics used to oust the union from the Sumter plant are unlikely to change opinions in a state where anti-union sentiment is popular and widespread. South Carolina is the second least unionized state in the country, just behind North Carolina. In fact, only 4.2 percent of the state's wage and salaried workers belong to a union, according to the Bureau of Labor Statistics.

In addition, organizations like the South Carolina Chamber of Commerce strongly oppose unionization and offer to connect members to union avoidance experts.

John DeWorken, spokesman for the chamber, said unions are bad for business because they "promote a contentious working environment."

"Honestly, it does not make a healthy working and business environment in South Carolina," he said. "We believe only by camaraderie and teamwork that productivity will increase, not arbitration and bargaining."

Gailliard said he hopes what happened at EnerSys will not deter South Carolina workers from joining unions. Instead, he hopes the case will spur workers to take a stand by seeking out union representation. That, he said, would honor the EnerSys workers and their hard-fought battle to find justice.

"What stands out in my mind is the tactics that were used, when all the people wanted were fair wages for an honest day's work and better health care. They were just trying to make their quality of life a little better."


Contact Staff Writer Krista Pierce at kristap@theitem.com or 803-774-1272.