Refresco has waged a prolonged and costly fight to stop the workers from unionizing.
As the spread of Covid-19 forced millions of workplaces to close in March 2020, Cesar Moreira continued to report to a bottling plant in Wharton, N.J., where he works as a batching technician. During 12-hour shifts, Moreira mixes vats of powdered concentrate and sugar to churn out brand-name beverages like Gatorade and Arizona Iced Tea.
Management for Resfresco Beverages Inc., the owner of the plant and one of the largest bottling companies, told workers these operations fell under the umbrella of “essential services.” Moreira was incredulous.
That the company would risk the health of its employees to maintain the supply of sugary drinks angered him. In mid-March, as workers at the plant began to call in sick with coronavirus symptoms, Moreira says plant management ignored their concerns and refused to temporarily halt production.
On March 21, 2020, Moreira and his coworkers walked off the job to demand adequate protections and contact tracing, part of a wave of safety-related stoppages in the first months of the pandemic. Workers at a Perdue chicken plant in Georgia and a meatpacking facility in Nebraska soon followed suit, the food production sector being a particular hotspot for Covid-19 cases and emergency organizing by a heavily immigrant workforce.
But workers at the Wharton plant didn’t stop there. Their spontaneous protest quickly blossomed into a full-fledged union drive. In June, 15 months after the walkout, Refresco workers voted 114–101 to join the United Electrical, Radio and Machine Workers of America (UE). Their 250-person bargaining unit is one of the biggest victories of blue-collar organizing during the pandemic.
To win the election, Moreira and his co-workers also had to overcome an aggressive anti-union campaign targeting their predominantly Spanish-speaking workforce. The company pulled out all the stops, posting anti-union flyers and a fake UE contract—and hiring Lupe Cruz, a union avoidance expert who specializes in “bilingual consulting.” In These Times obtained more than eight hours of recordings from six weeks of mandatory anti-union meetings led by Cruz at the Refresco plant this spring. The recordings provide a window into an especially insidious union-busting strategy: exploiting ethnic and linguistic differences to sow doubt and confusion among immigrant workers.
The tactic is old, but it speaks to the increasing specialization of a multi-million-dollar union-busting industry. Labor activists say Cruz, himself a former union organizer, is infamous for his attempts to thwart organizing in industries with large numbers of immigrant workers.
Alejandro Coriat, who encountered Cruz in 2017 while organizing a union at his job at a Hilton Hotel in Stamford, Conn., even coined a term to describe this approach: “intersectional union-busting.” In a workplace dominated by Latino and Haitian immigrants, Cruz and his team “divided us according to two language groups, and with each group, they tried a different tack,” Coriat says. The workers ultimately won their union by a near-unanimous vote.
Cruz’s strategy also failed at Refresco, but the workers’ fight isn’t over. After the union won the election, Refresco moved rapidly to scrap the results on a technicality. While a representative for the National Labor Relations Board (NLRB) recommended certification of the union in September, Refresco has signaled that it intends to appeal.
That leaves the Refresco workers in limbo, unable to start contract negotiations. At a time when essential workers are reporting more willingness to take collective action, the Refresco drive shows just how many hurdles they still face.
Licinia Ochoa has worked as a machine operator at the Wharton bottling plant for 22 years. It was her first job after she moved from Colombia to New Jersey in 1999. UE estimates that, of the 250-some workers who mix, bottle and pack beverages at the Refresco plant, more than 85 percent are Latin American immigrants.
Work at the plant, which opened in 1980, was never easy, Ochoa says. But until recently, it was dignified. Her schedule was regular, the hours weren’t too bad and she knew she would be covered if she got injured or sick.
Then, in 2016, the plant’s original owner sold it to Refresco.
The beverage giant has grown rapidly by gobbling up smaller companies in North America and Europe; its gross profit in 2020 was 1.9 billion euros, according to an annual report. Refresco operates more than 60 plants worldwide, including about 30 in the United States. The majority of workers in the U.S. facilities are not unionized.
“Many things changed since Refresco came,” Ochoa says.
Soon after acquiring the Wharton plant, Refresco switched the company’s healthcare plan to one with high deductibles and skimpier coverage. Later, the company replaced many 8-hour shifts with 12-hour shifts. For many workers, wages stagnated below $20 per hour.
Cesar Moreira immigrated to the United States from Ecuador and has worked at the plant for seven years. He suffers from sleep apnea. “I’m paying $750 [for treatment], plus $1,500 to the company that makes the mask that sends oxygen to my brain,” he says. “That’s $2,200.
“We are talking about a multinational corporation. So why couldn’t they keep our health insurance [from before]?”
Ochoa, 62, was among those assigned to 12-hour shifts. Ochoa makes $17 an hour and says her healthcare copays are so high she avoids seeing a doctor. But she had no choice after becoming seriously ill in March 2020, eventually requiring hospitalization for Covid-19. The virus put her out of work for two months.
Ochoa and several coworkers had reached out to UE in 2019, beginning talks over healthcare and scheduling concerns. But the drive didn’t kick into high gear until spring 2020.
Anthony Sanchez, an employee of 15 years, says when he tested positive for Covid-19 in March 2020, he tried to alert the company. “They didn’t talk to the coworkers I interact with all the time,” he says. “They didn’t give tests. They didn’t put anybody in quarantine.”
For months, workers kept their intentions to unionize quiet, while distributing and amassing signed union cards to demonstrate majority support.
“They never would have thought we would do this under their noses,” Ochoa says. “It was brutal when they found out.”
When workers attempt to organize a union, it’s almost a given they’ll face resistance. A 2019 report by the Economic Policy Institute reveals employers spend about $340 million on anti-union services annually. Hiring professional “union avoidance” consultants to interrogate workers and carry out so-called captive audience meetings is an especially common tactic.
As the union avoidance industry has grown, it’s also become increasingly sophisticated. Richard Rehberg, a researcher for the International Union of Operating Engineers, says he first encountered Cruz and his special brand of culturally competent union-busting while working for Food and Allied Service Trades, an AFL-CIO affiliate, in the early 2000s.
“It was a new thing,” Rehberg says. “Basically, the union-busters were pandering. You know, ‘OK, how are we going to deal with these Latino workers and Spanish speakers?’”
Now, says Rehberg, this kind of specialization is common. Employers can hire union-busters to appeal—sometimes crudely—to almost any demographic. On campaigns to organize construction and building trades, for example, Rehberg says he has repeatedly encountered one man with a “pseudo-biker look” apparently intended to help a well-paid consultant relate to blue-collar workers.
In 2020, employers gained another anti-union strategy: They could simply lay off workers attempting to organize and blame it on Covid-19. That appears to have successfully stalled active union drives among nurses in North Carolina, truck drivers in New Jersey and a host of others, according to an April 2020 New York Times investigation.
“This is a continuation of behavior that has become all too common, of employers being willing to use increasingly aggressive tactics to stop unionizing,” Sharon Block, a former NLRB board member, told the Times. “The pandemic has given them another tool.”
The situation creates a kind of paradox: While unions report workers increasingly want to organize (spurred by the pandemic), the number of actual union drives has declined.
The number of union representation elections fell by 30% from 2019 to 2020—partly due to a total stoppage of NLRB elections in March 2020 and the new challenges that in-person organizing faced. The Refresco workers’ campaign was a bright spot amid the lull.
Soon after Refresco workers submitted their union cards in May, management ushered them into the first of six weeks of mandatory meetings. In a recording of one of the first meetings, obtained by In These Times, Lupe Cruz introduces himself.
“Where are you from, sir?” Cruz asks employees in the audience in Spanish. One is from Ecuador. Another is from Peru. Venezuela, Colombia, El Salvador and Mexico are also represented.
“All different countries—six for six!” Cruz says. The workers’ immigration backgrounds will become an ongoing theme.
“One of the first things we’re going to teach you is, What is the process and the system here in the United States,’” Cruz says. “Because the way this works in Mexico, in Colombia, in Venezuela—it’s very different.”
Throughout the meetings, Cruz and the other consultants refer to the sessions as “classes,” saying they intend to provide the workers an education about U.S. labor law.
In one session, a worker chimes in with a story about how Refresco changed the plant. Cruz interrupts him: “I’m giving you a legal opinion, not an emotional one. There’s a difference. This is objective.”
“They wanted to trick people with an image that they were neutral,” says Anthony Sanchez, who sat through multiple anti-union meetings.
In another session, Cruz presents a truncated history of UE, implying that thousands of workers jumped ship from the union after learning about U.S. labor.
“You know what the highest number of members this union has had?” Cruz says. “Six hundred thousand. What happened with those members? They left. Those who understood the system left.”
In fact, UE’s steep decline in membership, beginning in the 1950s, followed a wave of plant closures and vicious anti-Communist attacks, including by Sen. Joseph McCarthy’s notorious House Un-American Activities Committee.
In the same session, Cruz suggests UE is incapable of defending workers: “If this union isn’t one of the big ones, and Refresco is the biggest in the world, what kind of funds does this union have to help you in a fight?”
In an apparent attempt to cast doubt on the union, a document with the header “legal and binding contract between UE and the employees of Refresco” was posted at the plant. It contained a list of benefits and raises, as well as a blank signature line for the union—as if to say the union couldn’t actually guarantee improvements.
After casting the union as underfunded and impotent, Cruz describes a hypothetical scenario in which Refresco loses its big clients, like Pepsi, and workers are laid off.
“Who’s the real boss?” Cruz asks. “The real boss is Pepsi. If you’re Pepsi, you’re in the best position to negotiate [with bottling companies] because they all want your business. So if Pepsi looks into contracts with other businesses, what if they like them? They steal Refresco’s business. And then what happens to your jobs?” According to UE, the possibility of layoffs came up frequently in anti-union meetings.
The National Labor Relations Act prohibits employers from threatening workers with layoffs or reduced benefits if they join a union. Because of this, “employers are more likely to make implied rather than direct threats of job loss,” explains Kate Bronfenbrenner, labor scholar and director of labor education research at Cornell University. “They are much harder to prove [as legal violations], because so much is dependent on the culture and history of a particular workplace.”
In a statement emailed to In These Times, a spokesperson for Refresco says the company’s actions are entirely legal. “As it has done throughout this election process, Refresco has and will continue to follow all the legal rules governing its behavior in connection with and arising out of the union’s efforts to organize employees at its Wharton, New Jersey facility,” writes Antonella Sacconi, Refresco’s communications manager. “This includes, but is not limited to, neither retaliating against nor rewarding employees based on their union sympathies or support.”
Neither UE nor pro-union Refresco workers allege the company’s anti-union campaign broke any laws, just that Refresco and its hired consultants sought to confuse and manipulate workers—the legality of which, they say, serves as evidence of the weak labor protections for U.S. workers.
Cruz did not respond to multiple requests for comment. But to union organizers and labor activists, he is a familiar figure. Bronfenbrenner calls him “notorious.”
Cruz once worked as an organizer for the hospitality union Unite Here but has been battling the campaigns of his former union for more than a decade. In 2006, the owners of a Hilton Hotel in Los Angeles paid Cruz $480,000 during a particularly bruising anti-union fight, according to reporting by the Los Angeles Times. Hilton fired an employee active in the union drive who had allegedly been caught stealing by a “mystery shopper” posing as a guest. When workers gathered in the cafeteria to protest the firing, management suspended more than 70 of them for a week.
Cruz has since gone on to consult for such employers as Trump Hotels, the auto club AAA and others. His involvement helped quash high-profile union campaigns at American Apparel in 2015 and a New Seasons Market grocery store in Oregon in 2019.
Cruz is associated with at least two firms that have filed disclosures with the Office of Labor Management Standards (OLMS), which requires third-party labor consultants to report income from employers. The firm Cruz & Associates reported more than $3.5 million in income in 2018 but has not filed additional reports since 2019. Quest Consulting, established in 2019 with Cruz as its president, reported $1.4 million in revenue for 2020, according to OLMS records.
Workers who have encountered Cruz on other union campaigns report seeing similar tactics to those at Refresco.
During a union drive at Tartine Bakery in 2020, workers say monolingual Spanish speakers were siloed for separate captive audience meetings. OLMS data shows Quest collected $243,363 from Tartine in 2020.
Refresco has since hired Seyfarth & Shaw, a prominent employer-side law firm, to appeal the union election results to the NLRB, which Bronfenbrenner says is an “extremely common” tactic. “It gives the employer more chances to raise questions about what the union really wants. And [make] the workers who voted for the union feel less secure,” she says.
For their part, workers on the organizing committee are preparing for steward elections and the eventuality of contract negotiations.
“I’m OK, but I’m uneasy,” Moreira says. “The only way to make a change is to pressure these people into understanding that we aren’t … animals to control at their will.”
This blog originally appeared at In These Times on October 19, 2021. Reprinted with permission.
About the Author: Alice Herman is a 2020–2021 Leonard C. Goodman Institute for Investigative Reporting Fellow with In These Times.