Wobblies and unfair labor practices

Wobblies and unfair labor practices

An article by Kevin S about the problems of using Unfair Labor Practice charges in IWW organizing.

We stand up against the boss, demanding change and stopping work. The boss fires us. We immediately mobilize, rushing to...the office of some government lawyer. What’s wrong with this picture?

When private sector employers in the United States break the law, workers can file what is known as an Unfair Labor Practice (ULP) charge with the National Labor Relations Board (NLRB). Violations include threatening or retaliating against workers for lawful union activity or for acting as a group without a union, also known as “protected concerted activity.” When found guilty of a ULP, an employer may face various penalties, like an order to reinstate a fired worker with back pay.

There are many examples of the Wobblies using ULPs. The charges filed against Starbucks eventually led to a fired worker’s reinstatement. In Minneapolis, charges were filed against Jimmy John’s after a failed union election in 2010, and again last year when the company fired six union members. The NLRB nullified the election due to management’s illegal behavior. The illegal firing charges were won in court, but the employer appealed and the appeals process could take years.

ULPs are used for pragmatic reasons: we need protection against employer retaliation, and it makes good press when we charge employers with breaking the law. Protection is hard to ensure through direct action alone, especially in the IWW, since we are small, with few friends in high places and little interest in having such friends. Yet filing ULPs is precisely calling on friends in high places to solve problems for us—except the NLRB is not really our friend.

ULPs are a crucial component of the state’s most perfected instrument for enforcing labor peace: arbitration. While many Wobblies criticize union contracts’ management rights clauses, no-strike clauses, and bureaucratic grievance processes as being obstructions to direct action, all these practices predated and are far less effective at preserving class peace than government arbitration. Workers have hostile interests to employers and may force their unions to adopt a militant posture. As a result, even the craft unions of the old AFL often used violent disruption against stubborn employers and broke their own no-strike agreements, due to threats from angry workers who frequently split and formed more radical competing unions. The capitalist state’s answer to this was state-sponsored arbitration.

Labor law as we know it was a response to mass “industrial warfare” during the last century. Courts, local and state governments, and wartime federal agencies all experimented with various practices to ensure “industrial peace” in order to protect the flow of commerce and meet the production needs of the state. Federal legislation codified these practices in the 1930s, with the explicit intention of restoring economic tranquility. ULPs are a product of this period and are part of the state’s mechanism for controlling labor conflict.

Wobblies often rightly view labor law with skepticism. A while back, the Industrial Worker published some critical responses “Direct Unionism: A Discussion Paper,” which criticized the “pitfalls of contractualism” and called for “organizing without contracts,” describing some historic examples and specific tactics for non-contractual organizing. The paper expresses doubt that “labor law can ever be a liberating force for workers.” It asks, “Can even defensive use of labor law, ULPs for example, disempower workers?”

While “not universally opposed to ULPs,” the discussion paper turns “a very skeptical eye,” concluding:

“ULPs and other forms of government- recognized grievance procedures... removes power from the worker’s hands. Knowing basic labor law and being able to ‘represent oneself’ are worthwhile skills, but labor law always attempts to individualize grievances, and thus lessen collective power and put up walls to effective solidarity.”

This skepticism could go farther. Wobblies ostensibly use ULPs as a last resort when other forms of escalation fail. In practice, folks often treat them as a form of escalation. In truth, they are a form of de-escalation. A phrase some Wobblies use is: “Direct action is our sword, while labor law is our shield.” A better phrase might be: “Direct action is our sword, while labor law is capitalism’s shield.” The whole point of labor law is to restrain workers’ power, encourage class collaboration, and prevent economic disruption.

It’s problematic that ULPs are treated as standard union practice. ULPs often act as a relief valve when struggles reach a point where further escalation poses hazards for the union, especially potential legal consequences. This happened when Jimmy John’s fired six Wobblies. A plan to escalate through a series of direct actions fell apart when an action was canceled due to the lawyer’s concerns about potential legal issues. The lawyer was afraid direct action would have negative repercussions for the fired workers’ court case. The decision not to use direct action transformed the workers’ struggle into a legal battle.

It can be a smart move for individual workers to file ULPs but it depends upon the situation. Workers have little power right now and sometimes the odds of winning grievances are better in court than on the shop floor or in the street. Because of this we get in the habit of filing ULPs when we want better results. Yet when the union pursues pure legalistic practices, even when individual cases are won, it does nothing to build power for the union or the working class.

Originally appeared in the Industrial Worker (October 2012)

Comments

Social Manageme...
Oct 6 2012 13:24

Perhaps it would behoove anti-contract organizers to begin drafting (a/competing) proposal(s) for a unified position on the limits of ULPs, with some wiggle room for accommodating the tactical needs of weak-labor periods (like now) and strong-labor periods (like the 1930s/1970s?).

E: Consider the activist, organizer or collective whose home is subject to an illegal police raid. There must be some point on the balance of power between a social movement and the police force, before the time of revolutionary upheaval but after uniting at least a loose 1960s-style coalition of movements with mass appeal, where it would be preferable to post flyers and go squat the police station rather than take the cops to court for damages and injunctions. It could be squandering momentum to make premature evaluations, but it is always good to take a critical eye to our past, present and future approaches.

EdmontonWobbly
Apr 23 2014 16:11

Where does anything in this piece actually not allow for wiggle room around legal tactics? Also how is a police raid of an activists home going to be addressed by a ULP?

Fnordie
Apr 24 2014 03:21
EdmontonWobbly wrote:
how is a police raid of an activists home going to be addressed by a ULP?

I don't think that's what this person is saying at all. It's an analogy: in the case of an illegal raid, there are certain 'subdued' periods when challenging it in the courts is more appropriate - and there are also 'heightened' periods when fighting via direct action and ignoring the courts might be more appropriate.

Similarly: there are periods when the labor movement is weak, like now, when strategic use of ULPs might make sense. There are also periods when we're strong, and ignoring legal methods is best.

edit - don't get me wrong, direct action is always appropriate, whether or not it's in conjunction with a legal game plan

Ablokeimet
Apr 24 2014 13:54

The problem with legal strategies arises, in my mind, when they are used as a substitute for direct action. If there is a strong enough campaign of direct action, the legal case can be the mechanism by which the State over-rules the individual capitalist employer and says "Let's settle this".

Here in Australia, we've had an arbitration system for over 100 years. It's survived that long by being willing to overrule individual capitalists sufficiently frequently for conservative union officials to put faith in it. Left unions, back in the days when we still had rank & file organisation, would often take direct action* to win disputes. The Arbitration Commission would get involved and would often be the mechanism for settling the dispute - but whether the workers won could usually be determined by whether they were still on strike at the time the Commission was handing down its decision.

The general principle I am advocating, therefore, is to be prepared to use all available legal channels, but not to rely on them. Instead, our reliance has to be on the power of the working class in action.

Is it an ironclad condition of filing an ULP claim in the States that all industrial action ceases? Or can claims be progressed while a strike is occurring?

* Shop stewards learnt to hold the vote on walking off the job before ringing the union office, rather than after, in order to lock the officials in behind the workers. Both the stewards and the officials were generally in the CP.

Fnordie
Apr 24 2014 14:39

Yeah, I agree completely.

There's no rule that industrial action has to stop, ULPs can be filed and processed during strikes.