Note: This report was a collaboration between LaborLab and EWOC (Emergency Workplace Organizing Committee)
Some of the largest costs for employers during a strike are scab labor, lost production and private security.
But employers also typically spend tens of thousands of dollars on attorneys who render services before and during a strike. The magnitude of these fees alone underscores the determination of some employers to resist agreeing to fair contracts. Indeed, attorney fees can sometimes amount to thousands of dollars per worker — often enough to pay for a substantial portion of the raise sought by the union.
The Role of Union-Avoidance Firms in Bargaining and Strikes
Employers frequently hire anti-union attorneys to bargain aggressively against unions and to prepare for and help manage strikes. Guided by these lawyers, sometimes employers aim to provoke a strike in order to weaken or even destroy a union, not just to obtain concessions.
Union-busting attorneys also help employers:
- Lead or assist negotiations
- Formulate contract proposals and draft counter-proposals
- Oversee contract campaign strategy, including how to respond to escalating actions by unions
- Help conduct economic analyses
- Craft and/or edit communications with workers to lower their expectations and sow division
- Defend the employer against unfair labor practice charges or file such charges against the union
- Obtain injunctions from state and federal courts, typically to limit the number of picketers outside an employer
These attorneys also help employers prepare for and break strikes and advise them on how to hire scab labor and use private security and specialized strike-management firms, with which they often have developed close relationships. (Beverage Market is reported to have been using scab labor and private security at huge additional costs.)
Importantly, the conduct of attorneys and the strikes they orchestrate don’t always reflect the organic preferences of their employer clients. To varying degrees, these attorneys can be an independent factor in bargaining and strike-breaking campaigns. They can stiffen the resolve of client and persuade them to adopt aggressive strategies. They can also prolong negotiations and stonewall or provoke unions beyond what an employer might have chosen to do in the absence of their advice.
Attorneys as Strike-Breakers
Indeed, attorney profiles and comments demonstrate the potential for attorneys to drive or encourage aggressive strike-breaking activity. Bond, Schoeneck & King has boasted of “setting a precedent for combating disruptive labor tactics” by securing a temporary restraining order against strikers, advised universities to consider using lockouts against faculty, and noted that a court ruling allowing an employer to refuse reinstatement to striking workers served as a “good reminder” that not all strike activity is protected.
Meanwhile, Blank Rome attorney Michael G. Greenfield touts his experience of counseling an entertainment company during a nine-month strike that ended with the union ceasing to represent the workers. And Tanja L. Thompson, the former co-chair of Littler Mendelson’s labor relations practice, recently warned employers in an annual survey report that their bargaining and strike-breaking plans might not have enough “teeth.” Thompson has also advised employers against promoting “free thought and expression” or encouraging social justice advocacy among employees because it “may backfire when that advocacy targets the company.”
Some Kickstarter workers have further told LaborLab that they believe Thompson was a major impediment to settling their recent strike, not just Kickstarter itself. Thompson’s reported hardball didn’t pay off in that case, however. The Kickstarter workers won a contractually-enshrined 32-hour week, setting a new standard for the tech industry.
Notably, the longer negotiations drag on and the longer a strike lasts, the more money attorneys rake in during a bargaining-related engagement.
Like Thompson, Dinsmore & Shohl’s attorneys are similarly seen to have obstructed a strike settlement. As of late August, The Beverage Market’s two owners – Theresa and Marty Johnson – reportedly hadn’t participated in any bargaining sessions since the strike began. That seems to have been the result of Dinsmore’s recommendation that they refrain from doing so. According to Teamsters 175, one of The Beverage Market’s owners told workers that Dinsmore had advised them not to take part in negotiations at the bargaining table. This has inevitably limited the capacity of the people with responsibility for settling the strike to respond organically, flexibly and promptly to arguments and offers at the bargaining table.
Dinsmore & Shohl’s reported advice that the Johnsons give Teamsters 175 the cold shoulder aligns with the aggressive anti-unionism advertised on its website. The firm touts its expertise with implementing strategies to “defeat organizing” efforts, advising “management in strike preparations” and “getting people across picket lines.”
In a standalone section on “strike preparation/litigation,” the firm also adds that it offers “practical training” to supervisors on how to respond during a strike; moves “immediately to obtain any injunction necessary and react quickly throughout the strike to situations that arises,” and advises companies on filing legal charges, gathering evidence and handling unemployment comp questions.” It further boasts of litigating damage suits for lost profits and RICO cases and obtaining a “very rare” kind of injunction in the past.
Sources for estimate
Employers’ payments to attorneys to handle strikes can be immense. Jackson Lewis received hundreds of thousands of dollars in the 1970s (roughly more than $1 million today) to orchestrate “union avoidance and strike-breaking campaigns at several nursing homes in New York state,” leading to hearings on indirect public funding of union avoidance activities, according to historian John Logan.
Information is limited on how many hours Dinsmore & Shohl has billed The Beverage Market for behind-the-scenes services, but the time that its attorneys have been present during bargaining sessions is possible to ascertain. Public engagement agreements and court records involving Dinsmore & Shohl reveal hourly rates that can be used to assume conservative hourly billing rates.
Combined with such records, reports provided to LaborLab by Local 175 of the time Dinsmore attorneys have spent in bargaining sessions provides sturdy ground for our estimate that Dinsmore’s services have cost The Beverage Market at least $151,650.
Attorney Fees for Union-Busting
The players and their estimated rates
Mark Carter is one of the attorneys who has participated in bargaining sessions with Local 175. He is a highly experienced partner at Dinsmore & Shohl and a past chair of the firm’s labor practice group. Carter was also appointed the chairman of the Federal Service Impasses Panel by President Trump, chairs the West Virginia Chamber of Commerce Human Resources Committee and is a member of the Labor Relations Committee of the United States Chamber of Commerce. He most likely costs a pretty penny.
As a general reference point, Dinsmore & Shohl stated in a 2021 agreement with the city of Centerville, Ohio, that the firm’s rates ranged from $300 to $975 an hour for partners and between $185 and $430 an hour for associates. In light of this experience, Carter’s hourly rate must be well over $500 an hour and could easily exceed $700 an hour. Court records reporting an hourly rate range charged by Carter in the past also corroborate this inference.
Brian Moore, another attorney on the case, has participated in negotiations and been a partner with Dinsmore & Shohl since 2008, according to Moore’s LinkedIn profile. Based on that experience, Moore likely bills in the mid range or higher of Dinsmore & Shohl’s reported rates for partners ($300 to $975 an hour in 2021, and higher now in light of inflation).
Based on this data, LaborLab conservatively assumes that each attorney bills an hourly rate of $500 an hour, even though Moore’s rate likely exceeds that rate and Carter’s may far surpass it.
Dinsmore & Shohl has included a third affiliate at the bargaining table who is likely an associate attorney. But LaborLab conservatively assumes they are a paralegal or other assistant with a lower hourly rate billing of $200 an hour, based on an agreement between the firm and the city of Blue Ash.
Estimating attorney fees before the strike
Billing for bargaining sessions. Local 175 reports that both Mark Carter and his associate participated in 10 full-day bargaining sessions before the strike alongside the third affiliate. Each session reportedly lasted roughly eight hours. That time alone would have cost the employer an estimated $56,000 ($500/hr x 8 hrs x 10 sessions + $200 x 8 hrs x 10 sessions)
Billing for services performed outside of bargaining sessions. In addition to time spent in bargaining sessions, Dinsmore & Shohl would have billed time for work performed outside of such sessions. LaborLab assumes Carter and his associate spent half as much time on such work as they did in bargaining sessions. This would have cost an additional $28,000 (50% of $56,000).
In light of the litany and potential time intensity of the strike-preparation services advertised by Dinsmore & Shohl, this assumption is highly conservative, and Dinsmore & Shohl could easily have billed more hours for work outside of the bargaining room.
Total estimated pre-strike bill. In all, we estimate that Dinsmore & Shohl billed The Beverage Market at least $84,000 ($56,000 + $28,000) for bargaining and strike-prep related services leading up to the strike. The Beverage Market’s owners could have saved most or all of this money if they had taken an agreeable approach to bargaining and conducted negotiations themselves.
Estimating attorney fees during the strike
Billing Moore and his assistant’s participation in bargaining sessions. According to Local 175, during the strike itself, Moore replaced Carter as The Beverage Market’s lead negotiator, and met with Local 175 for six 8-hour sessions and two 6-hour sessions. He reportedly was joined by the third affiliate for six of the sessions, though they may have also been present for the other two as well. The reason the presence of the third affiliate for the other two sessions is unclear is that Local 175 was never in the same room as Dinsmore & Shohl’s bargaining team during some sessions, Local 175 reported. During those sessions, negotiations reportedly were conducted by a mediator traveling between rooms.
As a result, we conservatively assume the third affiliate was only present for six sessions. These estimated hours billed by Moore and their assistant add up to $39,600 ($500/hr x 8 hrs x 6 sessions + $500/hr x 6 hrs x 2 sessions + $200 x 8 hrs x 6 sessions).
Billing for Carter’s limited participation in bargaining sessions. In addition, Local 175 also said Mark Carter is known to have participated in caucuses during two 8-hour bargaining sessions and in one 6-hour session conducted through a mediator traveling between rooms. We assume Carter billed half the length of those sessions given uncertainty around the time he was present when the two bargaining teams remained in separate rooms: 4 hours for each of the two 8-hour bargaining sessions and 3 hours for the 6-hour session. We consequently estimate that Carter billed $5,500 ($500/hr x 4 hrs x 2 + $500/hr x 3 hrs) for his participation in these three sessions.
Combined, the time that the three affiliates spent in bargaining sessions after the strike began would have cost Dinsmore & Shohl $45,100 ($39,600 + $5,500).
Billing for services performed outside of bargaining sessions. Work performed outside of the bargaining room may have expanded during the strike because on top of time spent on activities such as bargaining prep, the employer has taken on the legally sensitive and strategically consequential tasks of hiring scab labor and private security. In addition, Dinsmore & Shohl must have evaluated and presented strategic legal options to the employer, if the firm’s description of its services is any guide. Local 175 has also formally charged The Beverage Market with bad-faith bargaining and illegal coercion, likely creating at least some additional work for Dinsmore & Shohl.
Nonetheless, we conservatively retain our assumption about time billed for work outside of bargaining for the pre-strike period and assume that the Dinsmore & Shohl associates known to be working on the case have all continued to bill time spent on activities outside of bargaining sessions that is only half of that spent in those sessions. This would mean The Beverage Market would owe Dinsmore & Shohl $22,550 ($45,100 x 50%) for services performed outside of the bargaining room during the strike.
The two costs combined add up to $67,650 ($45,100 + $22,550) spent on Dinsmore & Shohl for services performed during the strike.
If we combine our pre-strike estimate of $84,000 with our post-strike estimate of $67,650 we arrive at our total estimate of the cost of Dinsmore & Shohl’s services to date: $151,650
That’s equivalent to $3,094 per worker for attorney expenditures alone.
As mentioned, this number reflects highly conservative assumptions at every turn — in particular, lower hourly rates and significantly less time billed.
Total Strike Cost Might Exceed $500,000
In addition to attorney fees, The Beverage Market has likely borne a significant cost by hiring temporary replacement workers, given that scab labor has more than doubled labor costs for employers in past cases. For example, during a recent hospital strike, the hospital reportedly spent five times what its striking nurses normally make – enough to have covered an eight percent wage increase for the strikers. The Beverage Market has also reportedly deputized managers as scabs; failed to make all deliveries; and hired “an armed private security force” that allegedly costs “almost $30,000 a week” to follow scabs on their delivery routes, according to reporting by WTAP, a local media outlet.
LaborLab has not yet obtained enough evidence to make a concrete estimate of the total cost of the strike. But if these reports are true, back-of-the-napkin math would suggest that The Beverage Market may have eaten a loss of over $500,000, at least $10,000 per striking worker.
Regardless of the number, none of this captures the economic hardship and stress borne by the striking workers who are rightfully unwilling to accept the gutting of their healthcare benefits, retirement plans and effective pay by an employer that reportedly enjoys “high profitability,” not to mention the lost revenue of local businesses that have solidaristically refused to sell brand-name products distributed by the employer during the strike.
Thankfully, The Beverage Market strikers can take consolation in knowing that workers who sacrifice based not only on collective self-interest but also moral principle inspire other workers to stand up for themselves and remind employers that they may have hell to pay if they threaten the living standards of their employees.