Wobblies and unfair labor practices

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)