Faced with widespread union busting and a feckless NLRB, a more aggressive labor movement is brewing.
The National Labor Relations Board has a long history of dysfunction, but its job just got a lot harder. In January, a federal appeals court ruled that Obama had illegally appointed three of the board’s members while the Senate was in recess early last year. Now, recess appointments are a touchy subject in Washington, but Obama had good reason. Republicans in the Senate had threatened to block any and all NLRB appointments, leaving the president with few options. (Oddly, there’s no law against deliberately obstructing a vital government agency.)
If the decision stands, the board is toast. With only one remaining member, the NLRB lacks a quorum, and legally loses all decision-making power. The bedrock of labor law enforcement would grind to a halt. What’s more, all decisions since the January 4 appointments last year could be nullified—that’s hundreds of rulings on everything from workers using social media, to who handles union dues on a day-to-day basis.
This is bad news for organized labor, but not as bad as you might think. While few doubt the board’s importance in protecting things the right to organize, the NLRB also has a long history of institutionalizing the bureaucracy and hierarchy that have plagued American labor for decades. The board was born during an era of historic labor militancy, and reforms that established basic workplace protections also went hand in hand with bans on more militant actions like sit-downs, sympathy strikes, and wildcats. In their place, the board set up channels like union elections and regulated negotiations. The new system was more predictable for everyone, but also more top-down, less democratic, and arguably much less effective for labor.
So, alienated by the rigidity and hierarchy of the NLRB system, many workers and organizers have begun learning to live without it, preferring to engage in struggles on their own terms. Indeed, with or without a functioning labor board, many of the movement’s brightest flashpoints are operating well outside the system.
One of the clearest of those flashpoints was certainly last year’s unprecedented organizing effort at Walmart, a grassroots campaign that united unions, labor groups, and activists across the country. The push began in September, when workers at a Walmart-controlled warehouse in Mira Loma, California, walked off the job and began a “Walmarch” to Los Angeles to demand safer working conditions. Earning well below a living wage, the Mira Loma workers had suffered 120-degree heat, inadequate ventilation, and broken equipment—conditions that lead more than 80 percent to experience on-the-job injuries. They were also mostly part-time workers, and often relied on a “buddy system” during slower workweeks.
The symbolism of the 50-mile march, inspired by the 1966 United Farm Workers march to Sacramento, was striking. Like the UFW, the warehouse workers found themselves excluded from the protection of the NLRB system—the UFW because the board explicitly excludes agricultural workers, the warehouse workers because of Walmart’s notorious (not to mention illegal) union-busting. But also like the UFW, where the warehouse workers lacked legal support, they found an outpouring of community reinforcement. During some of the march’s hottest days (with temps climbing above 100 degrees), volunteers set up impromptu clinics to provide health care to the mostly uninsured workers. A few days later, the warehouse workers were joined by more than 100 California farm workers as well as activists from Students Against Sweatshops, who marched alongside them in solidarity. By October 5, the marchers returned to work with a guarantee of better conditions.
That extraordinary victory soon galvanized Walmart workers in other states to more militant action. Within a couple of days of the Mira Loma strike, workers at a Walmart warehouse in Elwood, Illinois, presented a petition for safer conditions, consistent schedules, and an end to forced overtime. When supervisors began firing those who had signed, workers walked out. On October 1, hundreds of community activists joined the striking workers, where riot police arrived and arrested 17 protesters for civil disobedience. But like the workers in California, the Elwood strikers quickly won victories on core demands. By October 15, increasingly under the umbrella of the labor group OUR Walmart, actions had spread to a dozen cities nationwide.
Such early success had a lot to do with strategy, writes historian Staughton Lynd in December’s Industrial Worker. Although they relied on support from recognized unions like the United Food and Commercial Workers (UFCW), their grievances, demands, tactics, and victories were entirely their own. At every step of the way, including the climactic Black Friday actions throughout the country, Walmart workers operated decidedly outside the NLRB system of petition and arbitration. Instead of channeling time and energy into the tedious process of requesting recognition and electing representatives to negotiate, workers in Mira Loma and Elwood decided collectively to organize and take action themselves. This direct action approach had a big impact.
For one thing, it meant a much quicker process. Workers in Illinois and California organized, went public, and won concrete victories within a matter of weeks—an unheard of timeline for unions sticking with official channels. Eschewing official recognition also meant sidestepping legal restrictions like no-strike clauses and bans on civil disobedience, sympathy actions, and boycotts. In California, Illinois, and across the country, much of the campaign would’ve been difficult under the NLRB umbrella—from the “Walmarch” in California to the civil disobedience in Elwood, not to mention the spontaneous way it all took off.
But most importantly, workers took the company by surprise. For decades, Walmart has remained union-free by exposing and undermining union campaigns in whatever way it could. A 2007 Human Rights Watch report found that the company routinely breaks US labor law to snuff out labor actions, from spying on workers, to banning discussions of unions on company property, to firing those who join. The report added that because labor law in the US is so toothless, Walmart’s illegal conduct usually results in little more than a “slap on the wrist.”
And if workers can somehow make it over these barriers and go public with their demands, retaliation can be swift. When organizing workers at a Quebec Walmart went public in 2005, the company pulled up roots and left. When a handful of Walmart meat-cutters in Jacksonville voted to join the UFCW in 2000, Walmart announced it was terminating meat-cutting operations in 700 stores. And like many big-box companies, Walmart’s managers have long been trained to put a stop to organizing efforts before they get off the ground. One “Manager’s Toolbox” from 1997 urges supervisors to be “constantly alert for efforts by a union to organize your associates.” It also gives instructions on curbing unionization at every step of the process, from initial organizing to petitions to elections and bargaining. The handbook even provides a “Union Hotline” to alert upper management at the first sign of trouble. Bottom line: Walmart knows the NLRB process very well, and how to subvert it.
Which is what made last fall so exciting. If workers in Mira Loma had circulated a petition, signed cards, or went public with demands, management would’ve been all over it. But there’s nothing in the “Manager’s Toolbox” about a Walmarch. This is what gives unofficial actions their power: instead of working through a process stacked against them, workers in Mira Loma, Elwood, and across the country took up the fight on their own terms. In so doing, Staughton Lynd argues, Walmart workers revived the tactics and strategy of the labor movement’s zenith—the heady decades before the NLRB put a lid on labor militancy in during the Depression.
But as groundbreaking as these victories have been, they’ve not been alone. Workers in Mina Loma and Elwood are part of a growing trend in organized labor, one that relies more and more on decentralized, grassroots action outside the NLRB system—what the American Prospect’s Josh Eidelson calls “alt-labor.” It’s a method more radical unions like the Industrial Workers of the World have been pushing for a long time, and lately, it’s been catching on. Especially in big cities like New York, workers in traditionally unorganized sectors have started to organize in a different kind of way, and it’s led to more than a few concrete victories. From broad-based movements like Coalition to Immokalee Workers to local restaurants like Hot and Crusty, workers, particularly in food service, are winning critical victories by taking a more militant and creative approach to demanding their rights.
One of the most interesting approaches has been that of the Restaurant Opportunities Center, a radical labor group based in New York City. Like OUR Walmart, the ROC is not a formal union and has no desire to become one. Their strategy is a familiar one: direct action, unofficial strikes, and building community support for campaigns. Not only that, with a cadre of lawyers and worker advocates, the ROC helps educate workers on their rights, and when necessary, provides legal support against the industry’s worst offenders. It’s also adept at publicizing ongoing struggles. When food service workers win a victory on, say, overtime violations, like they did at Mario Batali’s Del Posto restaurant in Manhattan in 2012, the ROC labels them a “high road” establishment. To date, the ROC has won more than a dozen settlements against employers in New York City, along with millions of dollars in workers’ back-pay.
The ROC has been active in the New York area for more than a decade, but last year, they were joined by Fast Food Forward, a coalition of community groups and unions including the SEIU. Unlike OUR Walmart and the ROC, Fast Food Forward would eventually like to see their workers gain NLRB protection. But instead of petitioning for recognition and then entering into negotiations with employers, the group decided to take action in a more direct way. Less than a week after Black Friday, the group organized a mass walkout in New York to demand higher wages and greater labor protection. Workers pulled off the largest strike in fast food history before anyone even signed a union card.
Now, at first glance, the fast food strike doesn’t make a lot of sense. Historically, big unions like the SEIU have not been fans of acting outside the NRLB system. Even during the Depression, when wildcat actions and unofficial strikes broke out in hundreds of cities nationwide and labor’s power was at its height, large, established unions like the AFL and CIO urged moderation. The difference today, argues Labor Notes reporter Jenny Brown, is that the moderate strategy hasn’t worked. If labor was at its militant height in the 1930s, today it’s at an historic low. Faced with employers like Walmart that regularly violate the law to impede organization, and an NLRB system that offers few prospects for victory, some labor leaders have started to rethink and retool. The result has been a labor movement that is more grassroots, more democratic, and more about action.
And it seems to be working. The last few years have seen a wave of unprecedented achievements, often in industries long thought impossible to organize. Numbers are still small, but activists and strikers in New York, Mira Loma, and across the country have shown an energy and creativity that’s been hard to ignore. Whether supported by established unions or not, this new militant wing of organized labor has in many ways brought the movement back to its roots—rank and file workers, organizing themselves democratically to fight for their rights in direct and meaningful ways. If the campaigns spearheaded by OUR Walmart and the ROC can continue this trajectory, it will have much more to do with their unique vision and spirit than whatever ends up happening at the NLRB.
Above image, of a Fast Food Forward/Occupy/RiseUpNY day of action in July 2012, by Katie Moore. Used with permission.