Union Busting | The blunt "119er": Criminal proceedings against Foot Locker dropped

Colleagues who organize within the company, build union structures, and establish a works council are putting themselves in danger. While there are endless happy stories of employees successfully improving their working conditions together, the reality is also the risk that union-active employees and committed works council members take, and how little German law protects them from attacks by employers. Quite the opposite: the legal process is long and arduous. It rarely ends with a verdict—even if those affected are right on paper. Those who take this path often leave the company feeling worn down and are then missed as committed colleagues. Recent developments in a case involving the sports shoe chain Foot Locker, in particular, suggest that criminal law is of little use to works councils for (self-)defense.

"I've worked for this company for 25 years, supported my colleagues, dedicated myself to others, and invested heavily. Now, with the results, I'm asking myself whether this price was worth it." Murat Atas says this. He was a works council member at a Berlin Foot Locker branch and chair of the general works council. By "the results," he refers to the events at the Berlin District Court in recent weeks.

After Ata's colleagues formed the first works council at the Tauentzienstrasse store in Berlin in 2016, they first had to convince it to take action. From the very beginning, the relationship between the works councils and management was strained. When the works council refused to approve the work schedules because Foot Locker failed to clean the employee restrooms, the company threatened to withhold wages. In June 2021, the works council stronghold on Tauentzienstrasse was closed. The reason given at the time was that the store was no longer profitable. A new branch opened two doors down in September 2022.

The employees mobilized against the closure. Murat Atas, as chairman of the general works council, was also involved in the matter. At this time, several proceedings are pending before the Berlin Labor Court in which the Foot Locker works councils are fighting their dismissals. However, the proceedings usually end without a verdict. Those affected agree to the dismissals because Foot Locker is willing to pay severance payments – and because decisions from the labor court are slow to arrive. Anyone wanting a decision must first go through the conciliation process with the employer. If no agreement is reached, as of today, court hearings are scheduled for May 2026. Many then prefer a quick end to horror without end.

In May/June 2022, Atas was also scheduled to leave Foot Locker. He was given notice, and part of his salary was withheld. He was having trouble paying his rent. "And so thoughts like suicide sometimes cross someone's mind," Atas said in a Deutschlandfunk report. The radio feature from 2023, which is still available, documents the changes in Atas and one of his colleagues' personalities during the course of their legal proceedings. In February 2023, Atas agreed to the termination. He will receive 1.3 months' salary for each year of employment.

After the release of the radio play feature, Atas now says he'd actually "closed his mind." But as "nd" research revealed, the case has recently taken another unexpected turn. Because Atas and his colleagues on the works council consider the company management's actions against them so serious, they filed a criminal complaint. "We spent days documenting the events with my lawyer, and we testified for three or four hours before a dedicated criminal investigator," Atas recalls. Until then, no charges had ever been brought in Berlin.

That changed at the beginning of this year: The public prosecutor's office accused two Foot Locker executives of obstructing and disrupting the work of the works council in conjunction with coercion, a spokeswoman for the district court announced. The offense occurred in May 2022. Section 119 of the Works Constitution Act (BetrVG) criminalizes obstructing the work of the works council and disrupting the establishment of a works council. The maximum penalty is one year in prison.

"So far, the law only targets small businesses."

Murat Atas Former Works Council Member of Foot Locker

For months it remained unclear whether the court would admit the charges and open a trial. Only then would the full indictment be available to the public prosecutor's office. Then, at the end of May, the disappointing news came: "The Tiergarten District Court has provisionally discontinued the proceedings against both defendants in return for a fine of €5,000 each." As the court announced, according to Section 153a of the Code of Criminal Procedure, " proceedings can be discontinued if a condition is sufficient to eliminate the public interest in criminal prosecution." A court spokeswoman explained that this was the assumption the court made in this case. The defendants continue to be presumed innocent. An investigation into their guilt will not take place.

Atas says he doesn't understand why the court isn't pursuing the case further. "Union busting isn't a trivial offense, and it certainly wasn't in our case." Atas, who has shared his own experiences with other victims and experts, is certain that obstructing works councils is common practice in Germany. The outcome now announced confirms his earlier assessment. "We already determined in 2022 that the Works Constitution Act needs to be reformed so that the perpetrators don't get away with just €5,000, but can expect €500,000 in fines. So far, the law only targets small companies."

Foot Locker itself previously stated that it would not comment on "individual cases." The company continues to work on positive relationships with works councils in Germany and considers all employee participation to be extremely important, a spokeswoman explained. "When establishing this collaboration, we follow all guidelines and requirements of the respective country."

To gain insight into the incident, "nd" met with the lawyer who has long advised the works council since its founding on Tauentzienstrasse. He was also present when the works council filed the criminal complaint. He wishes to remain anonymous.

Initially, the conflicts were within the normal range, he says. But in the end, "there was an escalation between the two parties to the company that I've never personally experienced before." In his opinion, the core of the criminal complaint was the work schedules that had not been approved by the works council. "The employer tied the payment of remuneration to certain conditions regarding how the works council should conduct itself."

The intended procedure for this is actually to resolve the dispute before the conciliation board. The lawyer says: If the dispute had been resolved through regular channels, it would likely have cost the employer a total of around €15,000. Now Foot Locker is paying €10,000. With regard to the public prosecutor's office and the courts, the lawyer says: "In order to understand the impact of this behavior on the work of the works council and thus its significance for Section 119 of the Works Constitution Act, in-depth knowledge of works constitution law is necessary."

The biggest hurdle in applying Section 119 of the Works Constitution Act (BetrVG) is proving intent. "And then, of course, that it's a complaint-based offense," says the labor lawyer. The public prosecutor's office may only initiate proceedings upon the request of the works council itself or a union represented in the company, which is particularly problematic when new works councils are to be formed. The "Ampel" government wanted to declare the "119" offense a complaint-based offense, which would have required public prosecutors to initiate investigations on their own initiative, for example, if they had learned of the facts through the media or whistleblowers.

The lawyer recommends that works councils under fire "first lay out all their options in every case." It's a mistake to think that one must first defend oneself individually, for example, if one's wages have been withheld or several warnings have been issued because a form wasn't filled out. "My feeling is that when works councils are cornered, they tend to take the immediate next step without considering the specific attack in the bigger picture."

The lawyer says that the attacks are always quickly perceived as isolated incidents, even though they are a systematic issue. "It's essential to look at the attacks structurally." Many employer law firms have recognized that this is the most effective way to drive a wedge into the works councils. "My practical experience shows that this works perfectly," says the lawyer.