Phil Cohen’s War Stories: Montagnard Insurgents Join the Union-The Arbitration
War Stories By Phil Cohen
Editor’s Note: This is Part II of Phil’s two-part story about a community of Montagnard tribesmen who fought alongside US Special Forces in the Vietnam War, were abandoned for 20 years, and ultimately allowed to immigrate to Greensboro, North Carolina many years later. That’s where Phil met them working at a Kmart warehouse and started organizing. Part I is here in case you missed it.
When the date for the long-awaited hearing on the forklift issue eventually arrived, Hin Nie and several Montagnard workers joined me in a Marriot Hotel conference room. The arbitrator requested to meet with both parties in the lobby to acquire a better understanding of this most unusual issue before we went on the record.
“I’d like to propose a logical settlement for the parties to consider,” said the arbitrator once the exchange had concluded. “Allow the company to displace forklift drivers per the new rule with a guarantee of reinstatement once they’ve taken the courses necessary to communicate in English.”
Kmart’s attorney briefly huddled with management and agreed on the spot. I requested fifteen minutes to speak privately with my people. Hin Nie translated the suggestion to his people who all vigorously shook their heads. “We don’t accept this offer,” he told me. “Let’s go before the judge.”
“This is brand new to all of you,” I responded, “but it’s what I do for a living. I can tell you from experience that when an arbitrator attempts to mediate a settlement and only one party agrees, that side usually wins. It’s not a great solution and I’ll do whatever you want, but give some thought to this: sometimes all or nothing isn’t the best approach.”
“Our cause is just and because of that we will win,” said the pastor without even translating my concerns.
How’d that work out for you back home? I wanted to reply but saw no point in alienating him. Instead I informed the arbitrator we were going forward and prepared myself to walk on water.
The union was the charging party and therefore presented first. The arbitrator accepted our offer of proof that Hin Nie should be our primary witness based on his understanding of English and intimate relationship with the Montagnard community. The company argument that this would amount to hearsay was rejected. Nie would translate while a couple of workers subsequently corroborated his testimony.
For twenty minutes, Hin Nie did a decent job rendering the facts as he’d been prepped. The arbitrator interrupted to ask for clarification of a point made. The pastor responded in French, then in a Montagnard dialect, and finally English, looking at the arbitrator with a self-satisfied smile on his face. I realized that for Hin Nie, taking the witness stand was tantamount to being on stage. His testimony began straying in directions we hadn’t discussed, as he appeared more interested in impressing the arbitrator with his own merits rather than the merits of our case. “Look at me, I’m wonderful” is not a recommended legal strategy.
During cross examination, the company attorney asked Nie why his people had never taken free courses in English that were available at Kathleen Quinby’s agency. “We are a very close knit community,” answered the pastor. “We have our own church and communicate in our own language. They see no need to waste time learning a second language.”
There goes any chance of winning this case, I thought.
When the expected ruling arrived on my desk following a two-month wait, I simply explained it to Hin Nie as a bad decision by the arbitrator which wasn’t legally subject to appeal. The Montagnard forklift drivers accepted it with forbearance, adapting to their new jobs and schedules without resentment. By comparison to what they’d previously endured, this was a minor inconvenience.
A Special Forces veteran named Roger, who’d served two tours in Vietnam fighting beside Montagnards, was hired by Kmart during the summer of 2004 to work second shift. He was highly trained in Kung Fu and upon learning I practiced Karate, took an interest in me. When I visited the warehouse, he sought my company in the breakroom where we discussed martial arts and life in general. He was a pretty sharp guy but by his own admission had a serious drinking problem.
One night while making his rounds at work, he encountered a Montagnard sergeant he’d met in Vietnam. Roger and his small squad had become trapped within hostile terrain, surrounded on all sides by an entire platoon intent on their annihilation. Realizing the situation was hopeless, they were desperately fighting a losing battle, when out of nowhere, a small Montagnard contingent led by the sergeant punched a hole through enemy lines and led them to safety.
Roger shared how, with tears running down his face, he’d embraced the man who once saved his life; a truly astonishing reunion to occur in a warehouse.
Over time I educated the veteran about the union and eventually convinced him to serve as a shop steward. Despite doing a fairly good job hiding his drinking, on two occasions it caused him to make errors resulting in discharge. Both times I uncovered minute due process issues sufficient to get him reinstated. Management knew that firing one of my stewards was a situation they’d rather avoid.
I was driving home from vacation on a Saturday afternoon and stopped at Hardees for lunch. Just as I began to eat my phone rang. You’re still on vacation, I told myself. Don’t answer it. But I did anyway and it was Roger.
“I’m sorry to bother you over the weekend,” he began, “but I got fired last night. I came to work as usual but my department manager accused me of being drunk. I told him I wasn’t and we ended up having an argument and the next thing I knew I was out the door.”
“Did they ask you to take an alcohol test?” I inquired.
“Yes, but I told them there was no way I was taking a damn test because I wasn’t drunk!”
“That puts us in a really difficult position. Refusing to be tested for drugs or alcohol is grounds for immediate termination under any union contract, unless I can prove management didn’t have probable cause.”
“I know you can do it,” said Roger. “Hit a home run for me one more time.”
On Monday morning I emailed Human Resources requesting all evidence and witness statements related to the incident. A few hours later I received documents signed by two members of management and three hourly employees, including a union member, who’d been terrified by what unfolded. I called Roger and told him if he wanted even a prayer in hell, he had to come clean with me about everything so I wouldn’t get blindsided. Synergizing our discussion with the various witness reports, I gained a very clear picture of events:
The previous night, Roger had received an unexpected knock on his door at 1 a.m. after returning from work and was greeted by two members of his former military unit who were now employed as mercenaries. Roger sat with his comrades getting drunk and discussing old times, while they encouraged him to share their new vocation, until all three fell asleep on the living room floor.
Roger awoke at 2 p.m. and rushed to work, arriving just before shift change, reeking of alcohol and unsteady on his feet. When his manager ordered him to submit to an alcohol test the veteran burst into a tirade, screaming, “Who do you think you’re fucking with?! I’m a goddamn mercenary! I’ll come back here with an AK 47 and blow you all away!” He was instructed to leave the building several times and finally did so to avoid police intervention.
“Do you have any witnesses who would back up a different version of what happened?” I asked after studying the files.
“No…but who’s to say they’re not all lying just to get rid of me?”
“An arbitrator and he won’t buy your story in the face of all the company’s evidence. Look, you’re a good man who’s been through a lot of shit. You might wanna consider entering a rehab program or at least joining a twelve-step group.”
“I heard the army is hiring private contractors for Afghanistan. With my background I should have a good chance.”
“Maybe so…if your age doesn’t get in the way. Stay in one piece, brother.”
A new generation of Montagnards began appearing at the warehouse. They’d grown up in villages that were constantly subject to attack but had been too young to fight before being evacuated with their parents. Like most immigrant children, they found themselves living in rundown neighborhoods, surrounded by an alien culture and having to defend themselves against previously established ethnic groups. But they were taught how to communicate in English within the public school system.
During 2005 I received a call from Hin Nie. “You need to speak with John as soon as possible,” he said. “A young Montagnard forklift driver has been fired. They’re accusing him of theft.”
The next day I visited the warehouse, got John off work on union business and met with him in the breakroom, where he explained that Krin Hra had been caught by the red shirts stealing a cassette player.
Kmart employed a Loss Prevention Department tasked with uncovering serious plant rule violations and informing management. Its members scurried about the warehouse like mice, spying on workers, clad in uniforms with bright red shirts. Most of them were wanna-be street cops who’d settled for a lowly position in plant security.
John had attended the discharge meeting in the Human Resource office and told me that Krin had been previously suspected of stealing. Two of the red shirts spent an hour crouching beneath a storage module that their target was scheduled to service, no doubt enjoying their fantasy of being on a stakeout.
Krin spotted a pallet of small, round CD players when he ultimately arrived on his forklift, stopped to examine one, opened the box for a look, tearing the lid in the process, placed the unit inside his shirt and continued driving. The two undercover operatives immediately pounced on him, seized the CD player, and brought him to the department manager’s office where he was suspended pending a formal discharge hearing the next morning.
I asked John what Krin had said during the meeting. “He say he spotted damaged box and was bringing it to his supervisor so it not get mixed in with other merchandise.”
The young man had good instincts, because without even realizing it, he’d just handed me reasonable doubt. Under the Just Cause Doctrine embedded in union contracts, management is prohibited from terminating an employee without a quantum burden of proof that the rule in question had been violated. Rather than ambushing their subject as if making a drug bust in a Hollywood movie, the red shirts should have discretely followed from behind to establish motive and document what he actually intended.
I met with Krin at the union hall and confirmed he’d said nothing else to management that would have contradicted his initial explanation. I filed a grievance on his behalf and scheduled a preliminary meeting with Human Resource director Bill McLaughlin.
One of my greatest pleasures as a union rep is successfully representing a worker who’s guilty as sin. Corporations engage in illegal activities far worse than any plant rule violation and have a building full of lawyers and executives to successfully defend their actions. The only thing a terminated worker has is me and I’ll stop at nothing to save their job.
“I’m surprised you’re making an issue about an associate caught stealing…” Bill began but I cut him off.
“He wasn’t caught stealing, only suspected of it.” I detailed the due process lapses in the red shirts’ protocol. “If Loss Prevention personnel had been properly trained in Just Cause, we might not be sitting here, but as things stand, I’m prepared to arbitrate this case. You might want to consult with counsel.”
Krin Hra was back on his forklift within two weeks. There’s nothing more compelling for workers than to witness the union fulfilling its promise and membership among the Montagnards rose to two-thirds. They remained in the union over the years but never attended meetings or ratifications because they wouldn’t have understood the discussion. But they were always grateful for the yearly contract raises and receiving better treatment from management.
Y Hin Nie is a heroic man who deeply loves his people, helped organize them into the union, and still preaches at a church in Greensboro. I hope he’s gained a better understanding of how our system really works so he can better represent their interests.
Phil Cohen spent 30 years in the field as Special Projects Coordinator for Workers United/SEIU, and specialized in defeating professional union busters. He’s the author of Fighting Union Busters in a Carolina Carpet Mill and The Jackson Project: War in the American Workplace.