Union Busting: The bad tricks of the cheap company TK Maxx

The year 2017 seems a long time ago, with pandemic, wars and inflation in between. At the time, Elin* was working in Aschaffenburg for the retail group TK Maxx as a loss prevention advisor, a kind of store detective. She has been working for the company for seven years. The working conditions for the predominantly female employees in the stores, as the company’s branches are called, are not good: the pay for unskilled employees is just above the minimum wage and is barely enough to live on. The working days are long. “I was often not home until 11 a.m., even though the shifts officially only lasted until 9 p.m.,” says Ajana*, who, like Elin, is a former works council member in the company. There were no surcharges. Minus hours should also be taken into account if the sick note was not received after just one day.

The US company, which is regularly hyped, especially among young people, mainly sells clothing items. But the program also includes toys, cosmetics, accessories, furniture and kitchen utensils. The company is now on a growth path: after opening its first branch in Germany in 2007, the retail giant now operates 174 of the over 640 European stores here. This means: In 2023, the Germany division achieved sales of almost 1.4 billion euros. The umbrella company’s net profit rose by 6.5 percent to 3.5 billion US dollars, and the trend continues to rise.

While business is booming, the company is resisting the conclusion of collective agreements for employees, who often have a migration background – either they themselves, or they are children of guest workers from Turkey, Greece, or they come from Eastern Europe. Resistance is emerging against the unacceptable conditions, and employees in various industries are beginning to organize themselves into unions. Once set in motion, this will gain momentum from 2018 onwards: works councils will gradually be established scattered across the republic. In the end there will be around twenty, according to union circles. Some of them are even elected to the company’s general works council. They worked together and trusted each other, Ajana reports.

For a moment it seems as if the fight could become a success story: the employees are pushing through regular working hours and statutory health regulations. When the companies applied for short-time work during the Corona pandemic and noticed irregularities in their operational planning, they didn’t let up. They protested against the company management’s plan to raise the starting salary for salespeople to 13 euros as a result of inflation from 2021, but not the standards for long-term employment.

The conflict comes to a head in autumn 2022: the company initiates internal investigations against Elin. The accusation is that you bullied a colleague. There is talk of “verbal violence, insults, harassment and presumption”. She is also accused of wanting to cause damage to the company. The management paints an almost demonic picture: It was about “maximum damage and downright destruction of their opponent,” says the first-instance judgment from February of this year, which is available in “nd”. She wanted to “blackmail” higher wages by calling for a wildcat strike. In an email from September 2022, Elin suggested disrupting staff scheduling in the pre-Christmas business. In doing so, she wanted to put pressure on the company in the course of the dispute over better working conditions. In the course of the internal investigation, material amounting to over a thousand pages was collected, and the extraordinary termination followed on December 15th.

“What is happening at TK Maxx is a prime example of the method of destroying critical works councils.”

Work guard

However, since works councils enjoy special protection against dismissal, she could not simply be dismissed. First, the works council had to agree. In a first vote, she supported her colleague. But then a member who supported Elin was expelled from the works council. The majority in the committee changed and the termination was approved on the second attempt. Particularly explosive: The works council members who made the bullying allegations were also said to have taken part in the crucial meeting. In the end, only the smallest part of the thousand pages is relevant to the verdict. The presiding judge primarily represents the alleged intention to cause harm. It is said that the termination was right.

While TK Maxx does not respond to “nd” inquiries, representations from works council members with whom I was able to speak paint a different picture: Elin stood up for the interests of her colleagues, also based on specific problems in the company. She was particularly popular among organized employees and received numerous expressions of support during the process. The allegations against Elin are based largely on hearsay, they explain. And statements that contradict the allegations were said not to have been heard during the internal investigation. The fact that internal works council communication even reaches the employer is a scandal. The suspicion is that someone must have leaked the email to management.

The company’s approach appears to be professionally prepared and bears the hallmarks of the law firm around lawyer Jan Schiller, according to union circles. He is known for his expertise and enjoys a good reputation among employers when it comes to combating unpleasant works councils. A scandal, say critics, including activists from the “Work Watch” initiative, who have been following the case for a long time. “What is happening at TK Maxx is a prime example of the method of destroying critical works councils,” criticizes the initiative in a statement about the case.

Elin also receives support for the lengthy legal dispute from the Verdi service union. The order of the company’s actions is described as “union busting”. A practice by companies to silence active trade unionists. This is intended to weaken their power. These practices can include both legal and illegal methods, subtle or violent.

At TK Maxx, this ranges from attempts to prevent works council elections or to influence them in their favor, to warnings and terminations, to aggressive bullying strategies, explains Nils Schmidbauer from Verdi. He is the union spokesman for the Bavarian state district. “Some of the employees are being smeared with false allegations.” The union has received several corresponding reports about incidents within the company. Some works council members tell me that they have been confronted with unfounded accusations from the company. According to their own statements, two have long since become ill. Ajana knows that Elin was taken aback by the company’s actions. They are said to suffer from sleep disorders and have even been exposed to threats.

Disrupting works council elections or the work of committees is actually illegal. But taking action against it is difficult, says Schmidbauer. “A lot happens on a personal level.” Active people are put under pressure in direct conversations, often subtly. Most cases remain under the radar of the investigative authorities and charges are rarely filed.

This is also why trade unions are calling for stricter penalties for corresponding offenses as well as public prosecutors, who are mainly responsible for investigating violations of the Works Constitution Act. The traffic light parties had announced in the coalition agreement that they would take action here and initiate appropriate changes to the law. But so far nothing has been done in this direction at either the federal or state level – the states would be responsible for setting up specialized public prosecutors.
The unions therefore have little choice for the time being other than to think strategically about the cases in which they can allocate time, energy and money to the fight against works council bullying. This also makes the dispute at TK Maxx difficult, where the level of organization is comparatively low due to the precarious working conditions.

Wolfgang Alles from the “Solidarity Against BR Bullying!” committee can understand the strategic considerations. He is a former works council member at the power plant builder Alstom Power and an active IG Metaller. But from his point of view, the responsible union is letting Elin and the other works councilors down. He is also concerned with overarching questions: For years, he explains, small, medium and large companies have been making efforts to take action against the organized workforce. The unions have generally reacted too slowly to this development. After all, IG Metall has set up a contact point at the board that focuses on defending against union busting strategies.

There is nothing comparable at Verdi so far. However, that would be crucial with regard to the opponents: TK Maxx has a lot of money, can afford specialized lawyers and a long legal battle. In complete contrast to Elin, who is currently unemployed and, at the age of 61, may have difficulty finding a new job. But thanks to the diverse solidarity, she can at least afford a lawyer. She needs that too: The appeal process is due on October 9th, this time before the State Labor Court in Nuremberg. Whether the scandalous verdict from Würzburg will be overturned, as critics call it, is anything but certain.

*Name changed by the editors.

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