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If labor unions are showing new signs of life in Florida, it’s despite the best efforts of Lisa Berg. A shareholder in the Miami office of the 85-lawyer firm Stearns Weaver Miller Weissler Alhadeff & Sitterson, Berg practices labor law. Like most labor lawyers, Berg’s clients are managers, not workers. A big part of her job is to tell clients how they can prevent their employees from unionizing. As a “right-to-work” state, Florida has never been a hotbed of union activity. While the state constitution guarantees workers a right to collective bargaining, employees need not join unions, even if their workplace is unionized. But the union organizing climate is changing. In the last several years, despite its anti-union reputation and national trends unfavorable to union organizing, Florida has seen a proliferation of organizing efforts. That means more business both for law firms representing companies trying to ward off unionization and for the generally smaller firms representing workers and unions. Private companies almost always hire attorneys when there is a union organizing campaign involving their workers, says Bruce Nissen, a labor researcher at Florida International University. “Union avoidance goes right up to the edge of law and sometimes over it,” Nissen says. “The dirty secret is that it pays to break the law.” RANKS GROWING In the private sector, petitions for union recognition in Florida have risen from 127 in 1996 to 139 in 2000. In the public sector, the growth has been more dramatic, from 116 representation claims in 1996 to 150 in 1999. While this may be bad news for business, the increase in collective bargaining efforts is good news for Berg and the small contingent of labor lawyers who make their living fighting off or assisting unions. Only 2,167 Florida Bar members belong to the Bar’s labor and employment section. Of that number, 90 percent focus on employment matters other than collective bargaining, such as discrimination, benefit claims, wage and hour rules, and occupational safety regulations. The remaining 10 percent practice “classic” labor law — the complex issues surrounding unions and collective bargaining. The ranks of classic labor lawyers are clearly divided between management attorneys and union attorneys. Richard McCrea, chairman of the state Bar’s labor and employment section and a partner at the 17-lawyer Tampa, Fla., labor law firm Zinober & McCrea, estimates that almost three-fifths of his section’s members represent management. “That’s where the money is,” notes McCrea, who focuses on non-union issues. The firm’s founding partner, Richard Zinober, is considered one of Florida’s most aggressive management attorneys in union organizing cases. Labor lawyers are paid in various ways. Some receive retainers from companies or unions, while others bill by the hour. Some clients pay success fees for blocking or facilitating a collective bargaining drive. WHICH SIDE ARE YOU ON? Labor lawyers tend to be either passionately anti-union or pro-union. Consequently, says McCrea, they exclusively work one side or the other. “You may see occasional career changes,” he says, but no switching of sides. Prominent Florida firms that exclusively represent management include: Allen Norton & Blue, a 20-lawyer firm headquartered in Miami with offices in Tampa, Orlando and Tallahassee, Fla.; Muller Mintz Kornreich Caldwell Casey Crosland & Bramnick, headquartered in Miami, with 30 lawyers there and in Orlando, Fla.; Kunkel Miller & Hament, based in Sarasota, Fla., with eight attorneys there, in Tampa and Fort Myers; Atlanta-based Ford & Harrison, with more than 30 lawyers in Miami, Tampa, Orlando and Jacksonville, Fla.; and the 300-lawyer Jackson Lewis Schnitzler & Krupman, headquartered in New York’s Westchester County, with 21 lawyers in Miami and Orlando, Fla. The law firms’ client lists represent a broad spectrum of Florida business and government agencies. Muller Mintz handles labor matters for private firms such as Florida Power & Light, the St. Joe Corp. and the Florida East Coast Railway, for the cities of Orlando and Miami Beach, and for Monroe, Pasco and Volusia counties. On the other side, Florida’s leading pro-union law firms include: Miami’s six-lawyer Sugarman & Susskind, which represents regional, state and local branches of more than 50 unions including the United Food and Commercial Workers and the Florida Professional Firefighters; Orlando’s five-lawyer Egan Lev & Siwica, representing more than 50 unions including the Orange County Classroom Teachers Association and the Disney unions’ umbrella Crafts and Maintenance Council; and Jacksonville’s two-lawyer Kattman & Pinaud, representing more than 15 Duval County union locals, including the Teamsters and the International Brotherhood of Electrical Workers. TOUGH TACTICS Labor lawyers represent their clients’ during the negotiation and administration of collective bargaining agreements, in grievance proceedings, and in litigation arising from strikes and lockouts. In workplaces undergoing union drives, they advise their respective sides, and file appeals to the National Labor Relations Board or the Public Employees Relation Commission for rulings on union organizing activities and management countermeasures. NLRB and PERC rulings can be challenged in state or federal courts. The work of management and union lawyers differs sharply. Union lawyers’ clients include professional organizers, who deal with labor law on a regular basis and know it well. In contrast, management attorneys represent managers who, unless they’ve been through past union drives, generally are unfamiliar with labor law. Consequently, management attorneys tend to play a much greater role in their clients’ so-called persuader activities. These lawyers often are involved in developing plans designed to convince employees to vote against unionization. “Management gives counter-campaign attorneys ‘carte blanche,’ ” allowing them to orchestrate anti-union campaigns, says Kattman & Pinaud’s John Kattman. Joseph Egan, a partner at Egan Lev & Siwica in Orlando, says management lawyers conduct “union avoidance” seminars to teach employers how to “intimidate and discourage” their employees’ organizing efforts. “It’s not per se unlawful,” Egan says. “It depends what’s said and done.” But Berg insists there’s nothing nefarious about what she and her colleagues do. “If [our clients] choose to stay union-free, I see to it that they do it in a lawful fashion and violate no one’s rights,” she says. “I’m proud of that. “You’ve got to be kidding me if you think an employer should just sit back and take it.” SCHOOLS FOR SUBVERSION? In February, Stearns Weaver held a seminar in Miami titled “Union Organizing in the New Millennium: What Every Employer Should Know.” The firm’s promotional literature said the session was designed to help managers and human resource executives identify ways “to reduce a company’s vulnerability to unionization efforts.” “We tell employers to look for the sources of worker unhappiness,” Berg says. Seminar leaders point out that favoritism by supervisors, inequitable wages, poor employee feedback systems, lack of management-worker communication, and lack of performance recognition for workers can make a company ripe for unionization. But Egan, who has attended such seminars “undercover,” claims that such seminars teach employers how to evade the law. “They’ll tell you what you can’t do, and then they tell you what will happen if you do it and get caught,” says Egan. For example, firing employees for involvement in union organizing activity is illegal; violations require payment to employees of back pay. But, Egan points out, management attorneys advise their clients that filing and winning a NLRB complaint takes so long that complainants have to find other work while waiting for the outcome. Even if the NLRB eventually penalizes the employer, the company has succeeded in sending a message to its employees about the dangers of joining a union — and “at a bargain rate,” Egan says. Union busters in Florida have regrouped in light of labor’s new efforts, according to Monica Russo, an organizer for the New York-based Union of Needletrades, Industrial and Textile Employees, known as UNITE. She says such illegal firings and other unfair labor practices are routine. During the last 50 years, complaints of such practices have risen from about 40 percent of the NLRB’s caseload to more than 80 percent. More than 30,000 complaints are filed with the board annually, about one-third of which are found to have merit. Most are disposed of by settlement between the parties. But of those in which the NLRB takes formal action, employers are found liable more than 90 percent of the time. Russo cites an NLRB suit filed in May of last year against Miami-based Goya Foods, alleging that Goya engaged in illegal firings, threats, intimidation and failure to bargain in trying to stymie employees’ collective bargaining efforts. Goya Foods counsel James Crosland, a partner at Muller Mintz Kornreich Caldwell Casey Crosland & Bramnick, failed to return calls for comment. NEW POLITICAL CLIMATE With a Republican back in the White House, the legal environment for union-management battles is likely to turn significantly against workers, predicts William B. Gould, a Stanford University law professor who headed the NLRB from 1994 to 1998. President Bush soon will appoint four new members to the five-member NLRB, which hears complaints about unlawful labor practices and sets national rules. He’ll also appoint the all-important general counsel, who decides which cases the board will hear. Allan Weitzman, a partner in the labor and employment unit of Proskauer Rose in Boca Raton, says Bush and labor are likely to be at odds. Organized labor campaigned hard against Bush last year. “It’s payback time,” Weitzman says. The Bush administration already has fired its first shot. In a last-minute move, the Clinton administration had ruled that law firms that help prepare anti-union campaign material must publicly disclose their client lists and financial arrangements. Unions considered this a victory because they could use the information to show wavering workers how much employers were spending to defeat the union movement. Management law firms, however, protested that this violated attorney-client confidentiality. The Bush administration reversed that ruling in April. “Labor has no friend in the White House now,” Egan says.

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