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 ofÂ âessential services.â 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 haltÂ production.Â
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 didnât stop there. Their spontaneous protest quickly blossomed into aÂ full-fledged union drive. In June,Â 15Â months after the walkout, Refresco workers votedÂ 114â101Â to join the United Electrical, Radio and Machine Workers of America (UE). TheirÂ 250-person bargaining unit is one of the biggest victories of blue-collar organizing during theÂ 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 aÂ fake UE contractâand hiring Lupe Cruz, aÂ union avoidance expert who specializes inÂ âbilingual consulting.âÂ In These TimesÂ 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 aÂ window into an especially insidious union-busting strategy: exploiting ethnic and linguistic differences to sow doubt and confusion among immigrantÂ 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 inÂ 2017Â while organizing aÂ union at his job at aÂ Hilton Hotel in Stamford, Conn., even coined aÂ term to describe this approach:Â âintersectional union-busting.â In aÂ workplace dominated by Latino and Haitian immigrants, Cruz and his teamÂ âdivided us according to two language groups, and with each group, they tried aÂ different tack,â Coriat says. The workers ultimately won their union by aÂ near-unanimous vote.
Cruzâs strategy also failed at Refresco, but the workersâ fight isnât 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 werenât too bad and she knew she would be covered if she got injured or sick.
Then, in 2016, the plantâs 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.
âMany things changed since Refresco came,â Ochoa says.
Soon after acquiring the Wharton plant, Refresco switched the companyâs healthcare plan to one with high deductibles and skimpier coverage. Later, the company replaced manyÂ 8-hour shifts withÂ 12-hour shifts. For many workers, wages stagnated below $20Â perÂ hour.
Cesar Moreira immigrated to the United States from Ecuador and has worked at the plant for seven years. He suffers from sleep apnea.Â âIâm paying $750Â [for treatment], plus $1,500Â to the company that makes the mask that sends oxygen to my brain,â he says.Â âThatâs $2,200.
âWe are talking about a multinational corporation. So why couldnât they keep our health insurance [from before]?â
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 didnât kick into high gear until spring 2020.
Anthony Sanchez, an employee ofÂ 15Â years, says when he tested positive for Covid-19Â in MarchÂ 2020, he tried to alert the company.Â âThey didnât talk to the coworkers IÂ interact with all the time,â he says.Â âThey didnât give tests. They didnât put anybody inÂ quarantine.â
For months, workers kept their intentions to unionize quiet, while distributing and amassing signed union cards to demonstrate majority support.
âThey never would have thought we would do this under their noses,â Ochoa says.Â âIt was brutal when they foundÂ out.â
When workers attempt to organize aÂ union, itâs almost aÂ given theyâll face resistance. AÂ 2019Â report by the Economic Policy Institute reveals employers spend aboutÂ $340Â millionÂ on anti-union services annually. Hiring professionalÂ âunion avoidanceâ consultants to interrogate workers and carry out so-called captive audience meetings is an especially commonÂ tactic.
As the union avoidance industry has grown, itâs 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.
âIt was aÂ new thing,â Rehberg says.Â âBasically, the union-busters were pandering. You know,Â âOK, how are we going to deal with these Latino workers and SpanishÂ speakers?ââ
Now, says Rehberg, this kind of specialization is common. Employers can hire union-busters to appealâsometimes crudelyâto almost any demographic. On campaigns to organize construction and building trades, for example, Rehberg says he has repeatedly encountered one man with aÂ âpseudo-biker lookâ apparently intended to help aÂ well-paid consultant relate to blue-collarÂ 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.
âThis is aÂ continuation of behavior that has become all too common, of employers being willing to use increasingly aggressive tactics to stop unionizing,â Sharon Block, aÂ former NLRB board member, told theÂ Times.Â âThe pandemic has given them anotherÂ tool.â
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 byÂ 30% fromÂ 2019Â toÂ 2020âpartly due to aÂ total stoppage of NLRB elections in MarchÂ 2020Â and the new challenges that in-person organizing faced. The Refresco workersâ campaign was aÂ bright spot amid theÂ 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.
âWhere are you from, sir?â 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.
âAll different countriesâsix for six!â Cruz says. The workersâ immigration backgrounds will become an ongoingÂ theme.
âOne of the first things weâre going to teach you is,Â What is the process and the system here in the United States,ââ Cruz says.Â âBecause the way this works in Mexico, in Colombia, in Venezuelaâitâs veryÂ different.â
Throughout the meetings, Cruz and the other consultants refer to the sessions asÂ âclasses,â saying they intend to provide the workers an education about U.S. laborÂ law.
In one session, aÂ worker chimes in with aÂ story about how Refresco changed the plant. Cruz interrupts him:Â âIâm giving you aÂ legal opinion, not an emotional one. Thereâs aÂ difference. This isÂ objective.âÂ
âThey wanted to trick people with an image that they were neutral,â 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.
âYou know what the highest number of members this union has had?â Cruz says.Â âSix hundred thousand. What happened with those members? They left. Those who understood the systemÂ left.â
In fact, UEâs steep decline in membership, beginning in the 1950s, followed a wave of plant closures and vicious anti-Communist attacks, including by Sen. Joseph McCarthyâs notorious House Un-American Activities Committee.
In the same session, Cruz suggests UE is incapable of defending workers:Â âIf this union isnât 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 aÂ fight?â
In an apparent attempt to cast doubt on the union, aÂ document with the headerÂ âlegal and binding contract between UE and the employees of Refrescoâ was posted at the plant. It contained aÂ list of benefits and raises, as well as aÂ blank signature line for the unionâas if to say the union couldnât actually guaranteeÂ 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.
âWhoâs the real boss?â Cruz asks.Â âThe real boss is Pepsi. If youâre Pepsi, youâre 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 Refrescoâs business. And then what happens to your jobs?â According to UE, the possibility of layoffs came up frequently in anti-unionÂ meetings.
The National Labor Relations Act prohibits employers from threatening workers with layoffs or reduced benefits if they join aÂ union. Because of this,Â âemployers are more likely to make implied rather than direct threats of job loss,â explains Kate Bronfenbrenner, labor scholar and director of labor education research at Cornell University.Â âThey are much harder to prove [as legal violations], because so much is dependent on the culture and history of aÂ particular workplace.â
In aÂ statement emailed toÂ In These Times,Â aÂ spokesperson for Refresco says the companyâs actions are entirely legal.Â âAs 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 unionâs efforts to organize employees at its Wharton, New Jersey facility,â writes Antonella Sacconi, Refrescoâs communications manager.Â âThis includes, but is not limited to, neither retaliating against nor rewarding employees based on their union sympathies orÂ support.â
Neither UE nor pro-union Refresco workers allege the companyâs anti-union campaign broke any laws, just that Refresco and its hired consultants sought to confuse and manipulate workersâthe legality of which, they say, serves as evidence of the weak labor protections for U.S.Â workers.
Cruz did not respond to multiple requests for comment.Â But to union organizers and labor activists, he is aÂ familiar figure. Bronfenbrenner calls himÂ ânotorious.â
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 aÂ decade. InÂ 2006, the owners of aÂ Hilton Hotel in Los Angeles paid Cruz $480,000Â during aÂ particularly bruising anti-union fight, according toÂ reporting by theÂ Los Angeles Times.Â Hilton fired an employee active in the union drive who had allegedly been caught stealing by aÂ âmystery shopperâ posing as aÂ guest. When workers gathered in the cafeteria to protest the firing, management suspended more thanÂ 70Â of them for aÂ 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 SeyfarthÂ &Â Shaw, aÂ prominent employer-side law firm, to appeal the union election results to the NLRB, which Bronfenbrenner says is anÂ âextremely commonâ tactic.Â âIt 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,â sheÂ says.
For their part, workers on the organizing committee are preparing for steward elections and the eventuality of contract negotiations.
âIâm OK, but Iâm uneasy,â Moreira says.Â âThe only way to make aÂ change is to pressure these people into understanding that we arenât âŚ animals to control at theirÂ will.â
This blog originally appeared at In These Times on October 19, 2021. Reprinted with permission.
About the Author: Alice Herman is a 2020â2021 Leonard C. Goodman Institute for Investigative Reporting Fellow with In These Times.