Chapter C1
Rule 1- Planning amorally
The collapse of the Soviet Union in 1991 brought with it unforeseeable ideological challenges. In one fell swoop, the world order of the time lost its ideological foundation! How were we to divide the world now? Who is ‘us’ and who is ‘them’? As public intellectuals groped for a new narrative, Samual Huntington argued (in ‘Clash of Civilizations’, 1996) that the primary axis of conflict in the post cold war world will now be along cultural lines. He argued that cultural identity is the highest expression of every civilization and incompatibility of culture cannot find accommodation. Thus, for instance, the battle between Islam and America at the turn of the century was about cultures. Huntington has always had its detractors but as the world’s focus moved from Islam to China in the wake of the Covid scourge, we can now see how similar arguments can be made about these new fault lines, and just as easily criticised.
My own difficulty with this cultural conflict storyline is the misleading morality in which it is clothed. Cultural preoccupations permeate us with otherness, exclusivity, and ultimately a sense of superiority. We come to believe we are better than the other, and we then find elevated reasons why we must stoke this conflict. The truth is that the ongoing conflict between China and America is about world dominance, not culture. It is a war for control of resources, technology, and ultimately power. There is no space here for morality. Power seekers are fighting for turf in one sense or another and the moral hoopla is just the side show for the naïve and the gullible.
Indeed, this true of all war. There is no glory in war; there is no superlative principle to protect. Wars are about power, its acquisition, control and exercise. The Clash is not of ‘civilizations’; it is of power, often economic power. This is also largely true of litigation. Litigation is war by other means, and it is fought with more or less the same mindset. This overriding thought has already found reflection in our study of litigation so far. We have pondered the fact that every litigant must always consider the cost of any war in which it engages. In making this assessment, a wise litigant looks not only at its ability to win, but also the damage it may take. It follows that the smart litigant will only fight legal wars that it knows it can win and at a realistic cost. I would go further, much further. The really smart litigant will only fight a war that has been won even before the fight starts!
In all this reasoning, the one complexity the litigant does not need is moral angst. It is important to internalize this. It is irrelevant that bombing civilians in London in 1942 was wicked. It is irrelevant that fire bombing Dresdan in 1945 was evil. It is irrelevant that napalm bombing the Vietcong in 1972 was unconscionable. Bringing down the twin towers in 2001 was also despicable. It makes no difference. War is about destruction. These examples merely object to ‘who’ takes damage: they make no attempt to condemn all violence and damage as a legitimate tool. Unless you are willing to say all violence is bad (= all litigation is unacceptable), cherry picking the acceptable subject of violence must remain arbitrary. This is why I reserve a lot of my anger for the plight of ordinary domestic help in middle class third world homes. We don’t have to go too far to confront gross brutality.
In short, if you wish to efficiently fight and win your battles, you will do well to embrace this fundamental principle of war. Let us look at an example where amoral planning led to a successful result.
The Indian Boards case
There was a time in India when no one lost their jobs, not till they were ready to retire. The nanny who brought me up cooked for me till she was 75 or so, and then we had her looked after in an old age home till she passed away aged 90 or so. In her later years, she didn’t work very much at all but she spent a lot of energy terrorizing my young bride, fighting over turf! Allow me to add that this was not unusual at the time. It was the same in offices big and small around the country. India had no culture of downsizing: it had a culture of loyalty.
All this started to change in the 1990s. I would love to blame Cable Television for the introduction of ‘global’ values into our landscape. The truth is probably more complex and better described as the rise of materialism, or a belief that the quality of your life could be measured in what you own and consume. In this world, wealth mattered more than relationships and job losses became normal. Today, if Covid-19 has led to joblessness, the morality of it does not even cross our minds. It seems appropriate that we should use such an example to illustrate this point about amoral planning.
As a US owned entity in good standing, IBL represented a perfect example of remote-controlled management! The moment the company slipped a quarterly target in the wake of a global slowdown, IBL’s Indian managers were told to address shareholder sensitivities. The work force must be cut to half. Management argued that labor costs represented 7% of the cost of production, that savings would be negligible. They argued that a 50% cut in labor would mean a 25% increase in outsourcing at higher cost and reduced efficiency. They reminded Head Office that previous contract labor efforts had created a variety of legal issues. Head Office was unmoved. It wasn’t about the money. A shareholder advisory had been issued and local management had to deliver, period.
IBL had two plants, located one each in north and south India, servicing both ends of the country. The southern plant was newer, more efficient, and produced construction board some 5% cheaper per meter than the plant in the north. Curiously, the southern plant had excess labor, even before the decision to downsize. Logically, it should have seen the first job cuts. Not so. Labor in the south was more productive, less hostile and far more adaptable. It’s the north that would face the brunt of the downturn even as the south was turned into the main production hub. Both plants had unionized labor and non-unionized blue collar ‘staff’ such as drivers, sweepers, cleaners, peons, and so forth.
Should IBL announce some sort of VRS? Indian management were unsympathetic. RS packages are very expensive, and you still have to sell the idea to general resistance. Everyone would have to be pushed out using whatever stratagem was available. It was time to engage in amoral planning.
Investigations into labor contracts revealed that union agreement contained a clause permitting workers to be transferred from one plant to the other. Why not simply transfer everyone to the southern plant, 25% percent at a time, and let their stomachs deal with the alien food? English speaking people like us underestimate the effect an alien language and culture have on vernacular speaking people be they workmen or staff. That said, one must never underestimate the destructive potential of union action, especially when ambitious local politicians get in on the action. Union members could not be the first to face the brunt of the strategy. Blue collar staff obviously were easier to push around since they had no union to back them up: they would have the face the first wave of transfers. If they resisted, they would be sacked.
Action began at the northern plant with artfully placed rumors. This uneconomic plant was going to be shut down and production shifted to the south. The company entertained quotations for dismantling the plant and transporting it to the south. HR manager generally visited local labor authorities and hazily inquiry about plant shutting procedures. Senior managers contacted neighborhood factories and inquiring about job openings. Routine workmen benefit not specifically contained in the union agreement – free tea, free extra safety shoes, leave travel concessions and so forth – were withdrawn. The rumor mill went into hyperdrive.
At this point, IBL transferred a quarter of the blue-collar staff manning the northern factory, handpicking the managers favorite people so to speak. Others inevitable concluded that since the factory was history, the favored few were getting to save their jobs by moving south. Favorite or not, blue collar staff are far more immobile than white collar executives. Many approached the management in search of an honorable exit. Others joined duty, but then found the combination of an alien culture difficult to adapt to. In a month, the mood in the factory had changed. Rapid negotiations ended with a payout of “90 day for each completed year of service”. At that point, half of the blue collar downsize target was achieved. Two days later, half of the remaining ‘tougher nuts’, were also handed their transfer papers. Simultaneously, IBL transferred ten percent of workmen as well.
Workers now woke up to the methodology being applied by the management. They went on strike. In retaliation, Management immediately announced the implementation of a “no work no pay” formula. In due course, the Conciliation Officer constituted under the Industrial Disputes Act intervened in the matter. It made no difference. Successive conciliation meetings degenerated into a farcical face off. It was highly debatable if management’s actions were legally defensible. Protest and sloganeering shattered the peace of the factory. The management was compelled to approach a civil court and obtain an injunction restraining workmen from holding any protest within 100 meters of the factory gates. IBL strengthened internal security arrangements and arranged police presence at the gate. Talks ground to a halt, all conciliation efforts ended and proceedings moved to a labor court.
Management now adopted stalling tactics, tying all court proceedings down into a plethora of procedural and jurisdictional objections. In due course, the “no work no pay” formula started to impact workmen resolve.
When talks between Workmen and management first commenced, Workmen wanted all transfers to be cancelled. Ultimately, a solution was found by which, a percentage of Workmen would accept a VRS on the lines already agreed and Workmen salaries would see a small upward revision at the end of the following financial year. The strike was called off, and workmen joined duty. In this manner, the Indian management was able to report that downsizing targets had been successfully met.
If one pauses to consider the IBL case, it is clear that victory was always a foregone conclusion. The workers could not threaten anything that was valuable at that point in time to the management. Management had the capacity to turn off their salaries. Right sized Workmen and Staff did not have a case they could quickly take to court and obtain an injunction. Their only weapon was striking and that was of no concern to management. Further, the management did not view any of the proceedings in moral terms: whatever may have been the feelings of individuals; they did not as a group allow their personal concerns to impact their actions as managers. In all respects, they acted impeccably and the result was resounding victory.
When contemplating any litigation therefore, the litigant keeps two action points in mind. It plans its battles without moral considerations and it persuades itself only to fight battles that are won before they are fought. At the risk of repeating myself, let us remind ourselves that wars are not for the squeamish. They are impossible to win if we also burden ourselves with additional moral considerations which have no relevance to the business of fighting. If a litigant should find that a war raises moral issues for it, it is best off employing some other means to achieve its objective.