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Staughton Lynd

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5. Practicing Solidarity Unionism
« on: December 29, 2007, 05:13:52 PM »
5.  Practicing Solidarity Unionism

    What is Solidarity Unionism?

    Solidarity unionism affirms rank-and-file initiative in workplace change.  It stands in opposition to what has been termed "business" or "service-provider" unionism:  the idea that a worker joins a union to obtain material benefits in exchange for monthly dues payments, much as the worker might buy an insurance policy.

    In solidarity unionism, workers themselves carry out their own organizing.  There are three fundamental principles:  1.  Rank-and-file control; 2.  Direct action; 3.  Members carry their union membership with them when they move on to other jobs (particularly important in high turnover industries like food service).

    Business unionism is based on very different premises.  In a business union:  1.  The union is controlled from the top down by officers and staff (usually white males) who are not regularly employed at the workplace; 2.  Direct action is avoided or used only when it can be choreographed and tightly controlled from above; 3.  Membership is lost when the worker leaves a unionized bargaining unit.

    Year after year the percentage of the work force in business unions declines and the unions themselves survive only by concession bargaining.  Solidarity unionism offers an alternative.  Further, because solidarity unionism rejects the accommodation with capital inherent in the business union model, a solidarity union is situated to take part in the worldwide movement against "globalization" and "neo-liberalism" and for radical change.

Solidarity Unionism and the Law

    Because the goals and practices of a solidarity union differ significantly from those of a business union, a different legal perspective is also needed.

    The business union is obsessed with the quest to become the exclusive bargaining agent for a particular bargaining unit.  Only as a legally-recognized exclusive bargaining agent can the union bargain for a dues check-off clause.  The way business unions win exclusive bargaining status is through a certification election conducted by the NLRB or a campaign for voluntary recognition by the employer, in either case driven primarily by outside staff.

    Because exclusive bargaining status requires majority support, business union organizing focuses on getting signed authorization cards.  All too often, signing that card may be the first and last union activity in which a worker will participate -- even if the union wins!  The worker is a passive spectator rather than an agent of change.

    Support from 50% of those voting, rather than a majority (50% plus 1), is worthless to the business union since it cannot result in a dues check-off.  An election campaign that does not result in majority support is considered lost:  the staff person, often recently imported from a college campus, checks out of the motel the day after the election; the business union sponsors no further activity at the workplace; and union supporters among the work force are simply left behind, exposed to discipline and discharge.

    A successful business union campaign results in a collective bargaining agreement that gives up the right to strike and any voice in fundamental decisions about the enterprise, and directs the submission of grievances to a legalistic arbitration process. Workers are lulled into complacency for the duration of the contract, stirred into action temporarily when the contract expires, and then once again forgotten.

    In the legal arena, business unions rely on the certification or recognition provisions of Section 9 of the NLRA on their march toward dues check-off.  Solidarity unions heavily utilize the protection of collective action by Section 7, and the opportunity to file Unfair Labor Practice charges (ULPs) offered by Section 8.9   Even then it is imperative that shop floor and community struggle not be swept into the hallways of the NLRB.  The serious limitation of ULPs, including lengthy delays, tragi-comically weak remedies, and inadequate substantive protections, must be frankly acknowledged to fellow workers.

    It's particularly illuminating to consider the remedying of a grievance in a business union and a solidarity union.  In a business union, when something goes wrong at work the union member calls a steward or business agent and hopes that some bureaucratic process disconnected from the rank and file will right the wrong.  The worker is a passive consumer of a service and an individual spectator of an alienated process.

    By contrast in a solidarity union, the worker shares his or her grievance with a committee of co-workers and they decide together on a course of direct action, which the workers will lead, to right the wrong.  The workers thereby harness their own power and creativity without interference from "professionals."

Unionism Without Compulsory Membership or Dues Check-Off

    It is possible to achieve legally-recognized status as a majority union without forcing new workers to join the union or compelling any workers to pay dues.  Like a no-strike clause, these are contractual provisions not required by law.  Such a union represents a halfway house between a traditional business union and solidarity unionism.

    One of the authors and his wife interviewed veterans of the 1930s as to why the unions of the 1960s were not the unions they had dreamed of and organized decades previously.  Sylvia Woods, an African American, said of the UAW local union to which she had belonged during World War II:
        We had the reputation with the international for being a good local.  In fact, the region gave a party for our local because we kept 90% signed up. . . . .   We never had check-off.  We didn't want it.  We said if you have a closed shop and check-off, everybody sits on their butts and they don't have to worry about organizing and they don't care what happens.  We never wanted it.10 Further, verbal or written agreements between workers' organizations and employers are not incompatible with solidarity unionism so long as no provision in the agreement corrupts solidarity unionism principles.  Of course, even among solidarity unionists just which provisions should be off-limits is debated and ultimately it is the rank and file in a given shop who will decide.

Minority or Members-Only Unionism

    The newest big idea in labor law is that "in workplaces where there is not yet a majority/exclusive representative, collective bargaining on behalf of the members of a minority labor union is a protected right fully guaranteed by the" NLRA. 11

    The organizer of a national members-only union of technical employees    for IBM explains this approach in a leaflet for potential members.  "Many employees have the misconception that all we have to do is call someone up and schedule a vote," he writes.  But it's not that simple.  For one thing, if the employer has workplaces all over the United States, it will predictably argue that the "appropriate bargaining unit" is  regional or nationwide.  Then a union with solid footholds in a few workplaces, but not in most, will predictably lose a vote.

    The organizer of this members-only union poses the question, "So what do we do?"  He answers as follows:   We build the Alliance@IBM site-by-site, office-by-office, worker-by-worker.  We organize for the long haul and when roadblocks are erected, we find a different path.
        One of those different paths is what is called a non-majority union.This particular non-majority union has 400 dues-paying members, located in every state.   Our message to our co-workers in IBM is that there is no need to be discouraged that we have not sought or won a union recognition vote through the NLRB.  Simply put, we are a union as defined by section 7 of the NLRA and we will act accordingly.  We believe that workers standing together can be very effective.  In 1999 IBM employees in a revolt against corporate management changing our pension plan . . . held mass meetings nation wide, testified to congress and took other actions that resulted in IBM backing down and restoring choice to over 30,000 US employees. 12
 Another organizer, who is building non-majority unionism among adjunct teachers in universities, argues that "acting like a union" is the best way to go even when an NLRB election might be possible.  "There is no point on which we cannot force concessions and some sort of de facto bargaining if we are strong enough," he writes, "just as our union ancestors did before the laws were passed."  As soon as you have a serious committee you should consider "starting to act like a union," he continues.   Do whatever sounds like fun and what people are willing to do.  The employer will probably meet with you if you have a petition with a number of signatures on it.  This starts the process of recognition and bargaining in fact, if not legally. 13
 Legally-compelled recognition of minority or members-only unionism will require a National Labor Relations Board different from that which exists as this booklet is being written.  But we can begin to act out the idea right now, and it opens up several dramatic possibilities.

    First, even within a conventional strategy of seeking exclusive representation by a single union supported by a majority of workers in an appropriate bargaining unit, minority or members-only unionism would force unions seeking majority support to act instead of making promises about what they would do after an election.

    Second, many of the problems associated with exclusive representation could be avoided if less than a majority of workers could lawfully require the employer to negotiate with them.  At present, workers have few remedies for a negligent or inattentive union other than the nuclear bomb of decertification. Members-only unionism would make it possible in the United States, as in many European countries, for there to be more than one union in the same workplace, and therefore, "a wide choice of opportunities regarding the selection of bargaining representatives."     14

    The Power of Secondary Pressure

    "If it works, it's illegal," more than one labor lawyer has been known to say about pressure tactics against employers.  But while it's true that much secondary pressure was outlawed by the Taft-Hartley Act, it's our view that a good deal of lawful and very powerful secondary pressure has been underutilized.

    Secondary pressure is pressure exerted against an employer other than the employer with which workers have what's called a "primary" dispute.

    For example, you work at a food warehouse and you're attempting to organize workers there.  Your primary dispute is with the warehouse where you work.  However, if you choose to exert pressure against a restaurant that sells some of the food that your warehouse distributes or a trucking company that delivers foodstuffs to your warehouse, then (unless the warehouse and the other employer are owned by the same entity) "secondary" boycott rules apply.

    A primary employer has a major incentive to hold out during a struggle with its workers.  On the other hand, a secondary employer has much less to lose if it complies with workers' demands.  Thus the restaurant would simply need to purchase elsewhere the particular food products it has been ordering from the primary employer, the warehouse.

Pressure from the Community

    First, we'll consider pressure exerted by workers' centers, community groups, students, religious organizations, and the like.

    Taft-Hartley applies only to "labor organizations" as defined by the Act.  Since community organizations are not "labor organizations" they can exert whatever secondary pressure they like.  In the strike against a Buick dealer described earlier, strike supporters gathered on the courthouse steps as individuals to call on the community to suspend for a time the purchase of Buicks.

    In New York City, an employer brought an NLRB charge against the Restaurant Opportunities Center of New York (ROC-NY).  ROC-NY is a workers' center.  ROC-NY was involved in a campaign against the Fireman Hospitality Group restaurants and famed Restaurant Daniel.

    In a 2006 advice memorandum, the NLRB General Counsel concluded that ROC-NY was not a labor organization and therefore was not covered by the various prohibitions in the Act as amended against secondary activity. 15   The General Counsel was persuaded that, in contrast to a union's dealings with an employer, ROC-NY's interaction with the restaurant owners did not entail a pattern or practice that would extend over time.

    A note of caution:  If the support group is found to be an "agent" of the embattled labor organization, the group will be subject to the Taft-Hartley restrictions.  The issue of agency centers on control.  A mere request for solidarity from a union to another entity does not create an agency relationship.  See International Longshoreman's Association v. NLRB, 56 F.3d 205 (D.C. Cir. 1995).

Leafleting and Picketing Customers

    Unions and community organizations may lawfully call on prospective customers of a secondary employer to boycott the secondary's entire establishment if they do so only through leaflets.  DeBartolo Corp. v. Fla. Gulf Coast Trades Council (DeBartolo II), 485 U.S. 568 (1998).

    What leafleters may not legally do is to induce a strike of the secondary employer's workers or block deliveries to the secondary.  As a safeguard, note on the leaflet that these are not your objectives and that your labor dispute is with the primary employer.

    Picketing a secondary employer is more restricted but not wholly prohibited.  A landmark Supreme Court decision, and casesfollowing it, do in fact carve out the guidelines for lawful secondary picketing.  NLRB v. Fruit Packers (Tree Fruits), 377 U.S. 58 (1964).

    The key is to identify the particular product of the primary employer that pickets ask customers of the secondary employer not to purchase.  In Tree Fruits, for example, picket signs were held to be lawful because they solicited a boycott of Washington State apples and did not call for a boycott of the entire Safeway store where the apples were sold.

    Be careful, though, if the secondary employer derives nearly all its revenue from the products of the primary employer.  The Supreme Court has held that under those circumstances even picketing directed solely at products of the primary employer is unlawfully coercive.

    What about using the beloved inflatable rat at a secondary's location?  The issue is whether the rat is more like speech or more like a picket.  Judges have gone both ways and, as we write, the NLRB has declined to resolve the matter.  If you want to use a rat outside the workplace of a secondary employer, you can minimize the likelihood of liability by:  clearly directing your message to customers; using the rat when customers, not just workers, are in evidence at the site; and refraining from patrolling (picketing) back and forth beside the rat.  A banner displaying a rat is a less risky alternative.

    Finally, whatever medium one chooses for conveying a message at the workplace of a secondary employer, the message must be truthful.

    Using Wage and Hour Claims as a Sword

    Workers' centers have made good use of wage claims on behalf of workers who are paid less than federal and state law requires.

    As previously discussed, the federal Fair Labor Standards Act (the FLSA, or Wages and Hours law) requires the payment of a minimum hourly wage plus time and a half that minimum wage for "overtime," that is, hours more than forty worked in a workweek. The FLSA also includes stronger protection against retaliation than does the NLRA.

Federal and State Claims
    The employer's potential liability in a wages and hours case is maximized if its violation is "willful."  For willful violations, employees may double the lost earnings to which they are entitled.  29 U.S.C.  216.  In addition, proving a willful violation enables employees to collect three years of lost wages instead of just two.  29 U.S.C.  255.  A willful violation is made out by showing that the employer knowingly or recklessly disregarded FLSA violations.  McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988), applied for example in Reich v. Waldbaum, Inc., 52 F.3d 35 (2d Cir. 1995).

    If the employer retaliates against workers who file under the FLSA, the employee is authorized to add punitive damages (in effect, a monetary penalty) to back pay owed.  A federal judge also has the power to issue an injunction against further retaliation.

    Under the collective action provision of the FLSA, 29 U.S.C.  216(b), each worker who wishes to join a suit must "opt-in" by signing a simple form.

    Many states also have their own wages and hours laws, which may be more protective than federal law.  In some of those jurisdictions workers can file for lost wages as a class.  Members of a class such as "all full-time wage workers for corporation X in location Y during time period Z" then are automatically covered unless they choose to "opt-out."

    State claims, whether or not brought as a class action, sometimes have added benefits such as a longer period in which to file the claim, a higher minimum wage, and greater monetary damages.

    When workers bring a federal law suit under the FLSA, they can file related state claims as well under the law of supplemental or "pendant" jurisdiction.  28 U.S.C.  1367.  In some parts of the country, workers can bring a federal collective action and a state class action in the same case.  Lindsay v. Gilco, 448 F.3d 416 (D.C. Cir. 2006).

    Advocates for undocumented immigrant workers are well aware of the unfortunate Supreme Court decision in the Hoffman Plastic case (discussed below).  While Hoffman has restricted available remedies for certain undocumented employees under the NLRA, these workers are still covered by the wage and hour laws.  See Zavala v. Wal-Mart Stores, Inc.,, 393 F.Supp.2d 295 (D.N.J. 2005).

    Saving Fringe Benefits

    It is somewhat bizarre to use the term "fringe benefits" to describe pensions and especially health insurance for retirees.  Many retirees have been permanently laid off before attaining the age of eligibility for Medicare, and are wholly dependent on collectively bargained health insurance.

    When LTV Steel declared bankruptcy in July 1986 and simultaneously cut off health insurance for retirees, Roy St. Clair had just been released from a Youngstown, Ohio hospital.  He experienced a recurrence of heart symptoms, but did not seek to re-enter the hospital because he did not know how he could pay for it.  Instead he frantically sought replacement insurance.  Mr. St. Clair died the next day. 16

    Almost all other industrialized nations provide retirement benefits as government programs financed by taxation.  In the United States, pensions and health insurance became part of collective bargaining contracts during and just after World War II.  Wartime regulations, and the promises of union leaders to "freeze" wage demands, made it impossible for workers to pursue wage increases to keep up with inflation in the cost of living.  Fringe benefits came to be negotiated as a substitute.  Workers viewed these promised benefits as deferred compensation that would make possible a trouble-free retirement.

    When the war ended, the manufacturing plants of Germany and Japan lay in ruins and it seemed that companies headquartered in the United States would enjoy a virtual monopoly in supplying worldwide markets for the indefinite future.

    It proved otherwise.  By the 1960s competitors abroad had rebuilt their facilities with the most up-to-date technology.  In steel, for example, competitors installed basic oxygen furnaces and electric furnaces to melt iron ore and other ingredients into steel at a time when U.S. Steel built a new complex in Pennsylvania with outmoded open hearths.

    As importation into the United States of products made abroad increased, and responsive technological steps in the United States increased productivity per "man hour," the ratio of retirees to active workers in steel and auto firms increased also.  It began to become awkward or impossible to pay three or four retirees their promised fringe benefits from the surplus value created by a single production worker.  This is the problem of "legacy costs" that is at the heart of the crisis in fringe benefits.

No Legal Relief

    Labor law and the law under ERISA (the Employee Retirement Income Security Act) provide inadequate remedies.

    First, employers are not required by law to bargain over retiree benefits.

    Second, union negotiators have often permitted companies to insert language in contract provisions for fringe benefits that allow the employer to change these provisions unilaterally.

    Third, federal law enables corporations to "terminate" some kinds of pension obligations by transferring payment of basic benefits to the government, but there are no comparable provisions for health benefits.

    Fourth, federal bankruptcy judges allows employers to pay off "secured" creditors such as banks before meeting their obligations to retirees. 17
 
    Fifth, federal bankruptcy law leaves it up to the union whether or not it will represent individual retirees in bankruptcy court. 18 This arrangement is unfortunate because retirees in most unions do not pay dues, do not vote for union officers, and do not have an opportunity to ratify or reject contracts.

    As a result, the union has a conflict of interest if it seeks to represent both active members and retirees, and will inevitably tend to favor its dues-paying active members.  A union that bargains for both current workers and retirees may be compared to the union of white railroad workers that sought to bargain for black workers who were not allowed in the union and could not vote on contracts.  Steele v. Louisville & Nashville Railroad, 323 U.S. 192 (1944).

Solidarity USA

    What can retirees do to protect themselves?  As in so many arenas of solidarity unionism, the answer is not to seek a legal solution but to use those legal protections that are available to seek a solution through direct action.

    After LTV Steel declared bankruptcy in the summer of 1986, the wife of an LTV steel retiree called radio talk shows to announce a meeting in downtown Youngstown the next Saturday afternoon.  A thousand people attended.  In a follow-up meeting, it was suggested from the floor that we were something like Polish Solidarity, which had recently been in the news.  The new organization adopted the name "Solidarity USA." 19

    Even the conservative local press condemned LTV's sudden, unilateral termination of benefits as heartless.  Less than a month after it stopped paying benefits, LTV asked the Bankruptcy Court for permission to resume payments.

    In subsequent agitation, Solidarity USA adopted the practice of informing a corporation, union, or insurer (including LTV Steel, the United Steelworkers of America, and Blue Cross) that it would appear on a designated day and expect to confer with representatives of the chosen interlocutor.  Were it not possible to confer, we told whoever it was, we would just picket outside the front door.

    We were never denied entrance.  Without fail a representative of the beleaguered entity within would appear and invite "your lawyers" or "your leaders" to a meeting, sometimes specifying how many persons might take part.  We always answered, "No, we have a committee.  We want you to hear from people who actually lost their benefits."

    Because of many, many early morning and late night bus rides, by our calculation when LTV Steel emerged from bankruptcy its retirees had regained roughly the same benefits they received when the company sought bankruptcy protection.

    Working to Rule

    "Working to rule" probably goes back to the workers who built pyramids in ancient Egypt.  The boss has more power than the worker.  But the worker knows better than management how to do the job, and oftentimes the foreman, if required to do the job alone, is helpless.

    Therefore the worker uses the supervisor's power against him.  Whatever written rules exist are followed to the letter.  All the informal shortcuts by means of which workers ordinarily maintain production are set aside.  Output slows down as workers fill out forms, demand the availability of every tool listed in the employer's instructions, make unnecessary trips around the workplace, report mysterious machinery breakdowns, scrupulously follow safety rules, and otherwise act the part of half-witted but obedient subordinates.

    Working to rule, or as it has also been called "running the plant backward," seems to have originated in modern times with the IWW in the early 1900s.  In the era of globalization and plant shutdowns it enjoyed a revival that demonstrated both its tactical effectiveness and its strategic limitations.

Skirmishes

    Beginning in the early 1980s, workers in UAW Region 5 in the Southwest won a series of victories by working to rule.  Beside following management instructions literally the workers at an auto parts plant in St. Louis, a Bell Helicopter plant in Texas, and elsewhere, unitedly refused to work overtime.

    Working to rule proved especially effective after the expiration of a collective bargaining agreement.  In this situation, workers are no longer restricted by a no-strike clause in the contract, so that the full range of Section 7 rights to "concerted activity" become available.  Under these circumstances workers may experience a joyous creativity:  cell phones maintain communication between separate buildings, a whistle summons all within earshot to the scene of a confrontation with management, improvised forms of communication blossom.  Since unions do not enjoy dues check-off when a contract is not in force, financial contributions like everything else become voluntary.

    Traditionally when the contract expires good union practice requires "no contract, no work."  But these workers, like workers at General Motors' Lordstown, Ohio plant in the early 1970s, found that staying inside the plant and engaging in direct action (what Lordstown workers called "the schmozzle") got better results than walking picket lines.

Working to Rule at A.E. Staley

    The most significant effort to work to rule came at the A.E. Staley plant in Decatur, Illinois.  When the Staley contract expired in 1992, the plant was owned by a British conglomerate, Tate & Lyle.  Under the NLRA, when contract negotiations are unsuccessful an employer can declare an "impasse" and legally impose its final contract offer.  Tate & Lyle did so.  According to two Chicago activists heavily involved in the Staley struggle:   Tate & Lyle management virtually eliminated the safety program, gutted the grievance procedure, and weakened the seniority system.  They substantially increased use of non-union contractors and raised workers' health insurance costs.  Supervisors were given full latitude on work assignments and shift assignments.  Tate & Lyle management quickly evicted the union from its office in the plant and abolished "excused time" for union officers to handle grievances. 20
 Remarkably, the workers fought back.   21 Union meetings took place weekly and were attended by family members.  During the nine months that they worked without a contract, 97% of the local union's members voluntarily paid their dues.  A "Solidarity Team" was created to coordinate resistance in the plant.

    Members of the Solidarity Team first reviewed the contract  imposed by management, line by line, with every member of the local.  Meetings were held in each of the four critical departments.  Most Staley workers had more than two decades in the plant, often working the same job.  Most of the supervisors had been installed when Tate & Lyle took over the Staley company in 1988.

    The results were predictable.  One twenty-four year veteran recalled:   You call up the boss and say, "This piece of equipment is doing such-and-such."  And he says, "What do you think we ought to do?"  And you tell him, "You come up here and tell me what to do.  That's what they pay you for."  And if he tells you to do something and you know it's wrong, you do it anyway.This worker added, "Everybody knows you got to kick a Model A to get it to start.  But it takes twenty years to know where to kick it."

    On their own, workers began to meet at lunch, breaks, and shift changes, to plan their next moves.  Grievances became group grievances.  People started saying, "Let's get five other people and go see the boss," and the local's in-plant newsletter instructed, "Never go in one-on-one."  The workers also created an underground weekly newspaper called the Midnight Express.  

    Within a few months, production dropped from 140,000 bushels of ground corn a day to an estimated 80-90,000.  Unfortunately, under United States labor law the company had one major weapon left in its arsenal.  On June 27, 1993, carefully choosing a moment (3 a.m. on a weekend night shift) when the number of workers inside the plant would be least, Tate & Lyle locked out the existing union work force.

Afterwards

    A "corporate campaign" directed at major stockholders in the corporation failed to provide an adequate substitute for work to rule.  Even a hunger strike by Staley militant Dan Lane, and personal promises to Lane by newly-elected AFL-CIO president John Sweeney to support a product boycott, came to nothing.  The Staley local joined a larger but ineffectual national union, a new local union president advocated settlement, a concessionary contract was ratified, and what had begun as a glorious uprising ended in defeat.

    Certain reflections suggest themselves.  One has to do with the company's readiness to resort to lockout.  Like Staley, Bell Helicopter also responded to a work-to-rule campaign by temporarily locking out its work force.  However, as a defense contractor Bell may have been less able to sustain this strategy than was Staley, which processes biological feedstocks into sweeteners for soft drinks.

    Further, when push came to shove the Staley workers decided against occupying the plant.  One of the authors talked with locked-out union members who explained that they had selected the facility they wished to take over, and developed detailed logistical plans for doing so.  But the political support inside and outside the local union for this always-risky strategy was not available.

    The Fight Against Shutdowns

    Since this booklet was first published (1978, with a revised edition in 1982) the central economic fact in the lives of American workers has been plant shutdowns, especially in the "Rust Belt" of the Midwest.

    There had been previous waves of factory closings:  think of the shuttered textile mills along the streams that run through many cities in New England.  In the past, companies that left town typically relocated to the Southern United States.  Nowadays they more often move out of the country.

    The trade union movement has had no effective response to plant shutdowns.  The major obstacles have been:  1.  the "management prerogative" clause in almost all collective bargaining agreements negotiated after World War II; and 2.  court cases which hold that company investment and shutdown determinations are at the "core of entrepreneurial control" and, for that reason, are not a mandatory subject of bargaining.

    As the result of manufacturing plant shutdowns, service industries that cannot move -- medical care, education, food service, local utilities, construction, trucking -- have, in general, offered the only realistic possibilities for union organization.  This fact prompted seven major unions in such industries to break away from the AFL-CIO in 2005 to form the Change To Win federation.

Why Don't We Buy The Damn Place?

    One response of manufacturing workers and their unions has been to explore worker-community purchase and operation.  This strategy often took the form of an Employee Stock Ownership Plan, or ESOP.  Basically, what happens in an ESOP is that employees give up a portion of their wages and accept stock in the company as a substitute.  In theory this may provide a firm with sufficient working capital to stay in business.

    With rare exceptions, ESOPs have been successful only in small- and medium-size companies and offer only a partial strategy for responding to a proposed plant shutdown.  In some ESOPs, union officers have become board members of the worker-owned entity.  Experience suggests that this scenario presents a conflict of interest:  it seems wiser for one group of persons to represent employees as workers concerned with wages, benefits, and health and safety, and another group of persons to represent employees as owners or part-owners of a company seeking to stay in business.

    In Youngstown, Pittsburgh and a few other places, it was proposed that municipalities could acquire plants threatened with closure by using the eminent domain power.  Lawful exercise of eminent domain requires two things:  a public purpose, which is usually obvious; and sufficient capital to pay the present owner "fair market value," which is almost never available.  The mere threat of eminent domain has been effective in some instances, as at a NABISCO plant in Pittsburgh when the mayor threatened to bake his own oreo cookies if the company followed through on its announced decision to relocate.

    A variation on the theme of worker-community ownership has been litigation seeking to make companies perform past promises to the community or the union.  In Ypsilanti, Michigan, a local judge found that General Motors was bound by a promise to keep the plant open, but his decision was overturned on appeal.

    Finally, speaking and leafleting about saving your plant may be considered unprotected by the NLRA.  The Board has held that advocacy of an Employee Stock Ownership Plan to buy out the employer is not protected by Section 7 since the proposal did not "advance employees' interests as employees, but rather advances employees' interests as entrepreneurs, owners, and managers."

Sit-Ins and Occupations

    Because all other strategies have been unsuccessful, workers think about sitting-in and occupying the plant.  They perceive that if they can prevent the company from moving the machinery, there remains a possibility that production will resume and their jobs will be saved.

    Between 1936 and 1939 American workers staged 583 sit-down strikes that lasted at least one day. 22   Certain sympathetic law professors made a determined effort to argue that at least under some circumstances, for example when the employer had committed outrageous unfair labor practices, a sit-in might be lawful.  But in NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939), the Supreme Court said, No:  henceforth, no matter what the employer might have done to provoke the situation, a sit-in or plant occupation was unlawful trespass for which an employee might be discharged.

    In other countries, usually in much smaller workplaces, plant occupations have sometimes been successful.  In Argentina, for example, workers at print shops, at health clinics, at a  ceramics factory, at a butchery, even at a hotel, have "recuperated" their places of work when the owners abandoned them or fell far behind in paying wages.  23

    In this country, workers who opt for sitting-in or occupation must begin with the recognition that they are acting outside the law.  That doesn't mean that such actions are hopeless, or should never be undertaken.  What it means is that, as in true even in Argentina, everything will depend in the end on the ability of the workers to persuade the immediate neighborhood and the larger community that they are acting justly, and that it would be cruel and unfair to permit the legal owner to take their jobs away.

    No One is Illegal

    No human being is illegal.  We are far stronger if we stand together instead of letting bosses and politicians divide us.  

    While the law does erect hurdles to immigrant organizing and often treats immigrants like second-class workers, it is possible to build solidarity regardless of immigration status.  Indeed, much of the growth in the labor movement is taking place among immigrant workers.

Hoffman Plastic

    The landmark Supreme Court case in the area of undocumented immigrants and labor organizing is Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).  In that case, a worker named Jose Castro supported an organizing drive at a plastics factory and was active in encouraging his fellow workers to sign up with the union.  In retaliation, the company fired him along with other pro-union employees.  Castro was an undocumented worker from Mexico and had shown fraudulent papers to obtain the job.

    In 2002, thirteen years after Jose was fired, the Supreme Court decided his case.  The Court held, in an opinion by then-Chief Justice Rehnquist, that Jose had been illegally fired but was not entitled to back pay.  Rehnquist argued that immigration law trumped this particular NLRA remedy.  He maintained that even in the absence of back pay, "significant sanctions" against Hoffman had been imposed.  The significant sanctions were:  a piece of paper posted on the wall for ninety days which said that Hoffman would not again fire union supporters and a highly improbable contempt order should the illegal conduct be repeated.

    Hoffman is no doubt a pernicious decision but a solidarity union can and must overcome it.  You'll see how to get around Hoffman by looking at what the decision did not do.  

    First, Hoffman did not take away from undocumented workers their status as "employees" under the NLRA.  Therefore, undocumented workers still have the absolute Section 7 right to organize and to join unions, and retaliation for that activity remains illegal.  This undisturbed right to join a union is critical for workers to understand, especially if the employer's union-busting campaign makes the common but erroneous argument to the contrary.

    Second, as Justice Breyer pointed out in his dissent, Hoffman did not involve an employer who knowingly hires an undocumented worker as is often the case in industries employing large numbers of immigrants.  Justice Breyer's dissent was the basis for the first case after Hoffman to distinguish Hoffman and order back pay for undocumented workers who are illegally fired. Mezonos Maven Bakery, Case No. 29-CA-25476 (2006), available at


    In Mezonos Bakery, a group of seven undocumented employees who were not members of a labor union complained about disrespectful treatment from a supervisor.  Such concerted activity is protected by the NLRA.  Nonetheless, the boss illegally discharged the employees.

    The employer sought to rely on Hoffman in order to avoid back pay.  However, unlike Jose Castro in Hoffman, the bakery workers had never been asked to show immigration papers.  Administrative Law Judge Steven Davis held that the concerns expressed in Hoffman were not implicated in a case where the employer was fully aware that the employees did not have immigration papers.  Judge Davis ordered that the workers be paid the money they would have earned had they not been illegally fired.

    The same logic was applied in the union organizing context in Handyfat Trading, Inc., Case No. 29-CA-28181, available at http://www.nlrb.gov/shared_files/ALJ%20Decisions/2007/JD-NY-39-07.htm>.  Handyfat relied on Mezonos and ordered back pay and reinstatement for nine undocumented IWW food warehouse workers who had never shown false immigration papers and who were fired as a group for joining the union.  As we write, both the Mezonos and Handyfat decisions have been appealed.

    Finally, of course, nothing in Hoffman prevents unions, workers' centers, and community groups from deploying the full array of their own direct action tools in support of undocumented workers.

Other Battles, Other Laws

    In addition to the right to join a union protected by the NLRA, undocumented employees are also covered by minimum wage and overtime laws, by the safety standards contained in OSHA, and in most jurisdictions, by the workers' compensation system and Title VII.

    Employer sanctions contained in Section 274 of the Immigration and Nationality Act of 1986 make it illegal for employers knowingly to employ undocumented workers.  Some employers try to use this provision to smash organizing efforts.

    Many employers, when hiring a worker, fail to obtain the I-9 forms required by the law.  Some employers even instruct new employees as to how to obtain fraudulent papers.  Then, if the newly-hired workers engage in organizing activity, the boss tries to retaliate by demanding that workers verify their immigration status.

    Sometimes employers will even call in an audit from Immigration and Customs Enforcement (ICE).  These audits can lead to terrifying immigration raids and the mere threat of such a raid is often enough to stop an organizing effort in its tracks.

    Employers also use what are called Social Security "no-match letters" to try to stifle immigrant organizing.  The Social Security Administration sends a no-match letter to an employer when an employee's Social Security number does not correspond with the Administration's data base.

    Employers argue that receiving a no-match letter triggers a legal obligation to fire the employee.  However, the no-match can be caused by many causes, including an error in the data base.  Despite the best efforts of the Bush Administration, at this writing courts have held that no-match letters do not create a legal obligation to discharge.

    Unions and workers' centers should file anti-retaliation charges under the statute or statutes used by immigrant workers. In Centeno-Bernuy v. Perry, 302 F.Supp.2d 128 (W.D. N.Y. 2003), a federal court granted a preliminary injunction against retaliation by an employer that reported immigrant workers to various government agencies to deter them from exercising rights under the wage and hour laws.

    Workers and their allies can also cite the ICE's own internal policy, Operating Instruction 287.3a, which discourages the agency from engaging in enforcement actions that interfere in a labor dispute. 24    In one campaign, a garment contractor called in ICE to raid its Manhattan factory so as to defeat the union.  The raid led to removal proceedings against two workers.  An Immigration Judge ruled that OI 287.3a was binding and therefore the workers could not be deported.  

    The labor movement in the United States has a long history of trying to keep workers from other nations out of this country. We believe that Planet Earth is a relatively small rock floating around in a large galaxy and even larger universe, and that dividing people based on where they happened to be born is absurd.  Borders are nothing but fictions which serve to obscure our common humanity as well as our class interests as working people.

    Cross-Border Solidarity

    Nothing that any of us do is more important than what has been called cross-border solidarity.  It means reaching out to workers from other countries so as to create an international working class.  It puts flesh and blood on the idea that "My country is the world," expressed by Tom Paine, whose father was a corsetmaker; by William Lloyd Garrison, the son of a sailor; by Haymarket anarchist Albert Parsons, a printer who spoke these words to his judge and jury before being sentenced to death; and by railroad worker Eugene Debs, in a speech opposing World War I that led to a long federal prison term.

    Here we discuss three ways of implementing cross-border solidarity, and the law (if any) relevant to each.  

Going there oneself

    Except for travel to Cuba, the obstacle to travel to other countries is not so much the law but time and money.   25
    The rewards are enormous.  More privileged organizers who have travelled abroad may not realize how rare an experience this is likely to be for lower-income workers.  The movement in Youngstown made it possible over a period of a decade for about a dozen persons to attend a school run by the network of independent unions in Mexico, the Frente AutÚntico de Trabajadores.  One traveler had never been in an airplane before. For African Americans in particular, to spend time in a society where race and ethnic prejudice is dramatically less than in the United States (although by no means absent) was a heart-warming experience.

    On another occasion the Workers Solidarity Club of Youngstown sent people to Nicaragua to share, for a short time, in the daily life of ordinary workers.  Ned Mann, a sheet metal worker, helped workers at Nicaragua's only steel mill to install a vent in the roof over an especially polluting furnace.  Bob Schindler, an electric lineman, spent a week with a utility crew in Managua.  He spoke no Spanish, they no English.  Everybody got on fine, although Bob was appalled at the tools with which his Nicaraguan counterparts were obliged to do their dangerous jobs.

    The next year Bob again used his annual vacation to go to Nicaragua, together with a younger fellow worker.  They did what they could to finish the installation of the electric line in the far north of Nicaragua on which a young man named Ben Linder was working when he was killed by contra guerrillas.

Doing something about sweatshop labor

    The most effective form of solidarity with sweatshop workers in other countries has been the activity of students who pressured college administrations not to buy sports paraphernalia from companies that employ sweatshop labor abroad.  When other tactics failed to bring results, students sat-in.  Companies like Nike felt obliged to reveal the names and locations of subcontractors producing for the college market in the United States.  The media reported measurable gains at some of these overseas plants.

Creating cross-border joint actions

    The attitude of the labor movement in this country toward workers coming into the United States has been defensive.  Such hostility is prompted by an understandable fear that new participants in the work force, coming from countries in which wage levels are much lower, will undercut the wages and benefits won by unions in the United States.

    Even the most progressive unions and rank-and-file movements have exhibited this attitude.  In the late 1960s and early 1970s, for example, the United Farm Workers led by Cesar Chavez "used every means at its disposal to get undocumented migrants out of the fields.  It reported workers to the Immigration and Naturalization Service and demanded that the agency arrest and deport them." 26

    Meantime, however, the number of undocumented immigrants in the United States rose from 3.3 million in 1980 to an estimated 11.5 to 12 million in 2007, and approximately one million new immigrants arrive each year. 27   Moreover, and never to be forgotten, it was these very same new immigrants and their families who poured into the streets on May 1, 2006, and reclaimed the historic workers' holiday of May Day for the entire working class of the United States.
   
     Elsewhere we discuss how immigrant workers in the United States, whether or not undocumented, can use the law to organize. Here we simply suggest the idea that workers in the United States should begin to meet with their Latin American counterparts to plan joint actions.  Truck drivers, for example, instead of asking the United States Congress for ways to keep Mexican truckers out of the United States, should consider meeting with their Mexican counterparts to develop actions that would benefit all teamsters.  And if General Motors workers in the United States contemplate a strike, why not approach Mexican workers for GM in Puebla, Mexico, and Canadian workers for GM in St. Catherine's, Ontario, and consider striking for goals that are continent-wide?
_______________________________
     [9]Once again, the authors refer to their article "Solidarity Unionism at Starbucks," in Working USA, v. 10, no. 3 (Sept. 2007), which explores the possibility of using Sections 7 and 8 of the NLRA while avoiding the representation process set forth in Section 9.    

   [10]Rank and File, ed. Lynd and Lynd, p. 126.
 
[11]Charles J. Morris, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace (Ithaca: Cornell University Press, 2005), p. 2.

     [12]Lee Conrad, "Organizing for the long haul.  Building employee power in IBM," available at <www.allianceibm.org>      

[13]Joe Berry, Reclaiming the Ivory Tower: Organizing Adjuncts to Change Higher Education (New York: Monthly Review Press, 2005), pp. 121-122.

    [14]Morris, The Blue Eagle at Work, p. 218.  Nicaragua in the 1980s offered still another variant:  At the expiration of every collective bargaining agreement, there was a new election to determine what union should exclusively represent the work force for the duration of the next contract.

    [15]NLRB Office of General Counsel Advice Memorandum (Restaurant Opportunities Center of New York), 2-CP-1067 (2006), available at .
   
[16]This subject is more fully presented in Staughton and Alice Lynd, "Labor Law in the Era of Multinationalism: The Crisis in Bargained-For Fringe Benefits," 93 West Virginia Law Review No. 4 (Summer 1991), pp. 907-944.

    [17]The Retiree Benefit Bankruptcy Protection Act of 1988 directs a Chapter 11 debtor-in-possession to "timely pay and . . . not modify" retiree medical benefits unless a modification is negotiated with a union (in the case of hourly retirees) or ordered by the court.  11 U.S.C.  1114(e)(1) (1989).  The experience of one of the authors is that, in practice, federal bankruptcy courts permits bankrupt companies to pay off banks and other secured creditors before attending to promises made to retirees.

    [18]A union is permitted to choose whether or not it will represent retirees in bankruptcy proceedings.  11 U.S.C.  1114(c)(1) (1989).

    [19]See Alice and Staughton Lynd, "'We Are All We've Got':  Building a Retiree Movement in Youngstown, Ohio," in Law Stories, ed. Gary Bellow and Martha Minow (Ann Arbor: University of Michigan Press, 1996), pp. 77-99.

     [20]Steven K. Ashby and C.J. Hawking, The Staley Workers and the Fight for a New American Labor Movement (2004), p. 86.      

[21]The details that follow are drawn from Ashby and Hawkins, The Staley Workers, Chapter 10.  The authors also wish to acknowledge the insights of Rose Feurer, who at the time lived in St. Louis and was deeply involved in the Staley struggle.

     [22]James Gray Pope, "Worker Lawmaking, Sit-Down Strikes, and the Shaping of American Industrial Relations, 1935-1958," Law and History Review, v. 24, no. 1 (Spring 2006), p. 45.  

[23]Inspiring first-hand accounts are collected in Marina Sitrin ed., Horizontalism: Voices of Popular Power in Argentina (Oakland: AK Press, 2006), pp. 67-105.

    [24]Although common usage still refers to Operating Instruction 287.3a, the policy has been redesignated as 33.14(h) of the Special Agent Field Manual.
     
[25]If you want to go to Cuba, consult .
 

    [26]Jennifer Gordon, "Transnational Labor Citizenship," Southern California Law Review, v. 80, no. 3 (March 2007), p. 534.
 
[27]Id., pp. 504, 535-36.
« Last Edit: December 29, 2007, 11:50:01 PM by Tony Budak »

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Examples from the workplace
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