A slightly edited version of this was published in the “Workers Power” column of the Industrial Worker. A few, mostly minor, changes were made to the published version by the editor of the column, which I found personally annoying but anyway… below is the pre-edited version I submitted to the column. I also got a more than usual amount of help in the writing process (being a stubborn individualist, I’m usually more protective of my writing), the little intro “hook” paragraph was actually suggested by someone else, and the whole thing went through multiple revisions in which a lot of other suggested edits were incorporated. A lot different from how I usually do things but, it was actually pretty helpful in getting the piece done quickly, and it came out pretty good I think, so…
The Industrial Worker/Workers Power version of this piece can be found here: http://libcom.org/library/wobblies-unfair-labor-practices
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 US break the law, workers can file what is known as an Unfair Labor Practice charge (ULP) 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.
Examples of IWW use of ULPs include charges against Starbucks which led to a fired worker’s reinstatement, and charges against Jimmy John’s in Minneapolis over illegal activity during the failed union election in 2010, and 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 widely used in the IWW, 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 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 with their “management’s rights” and no-strike clauses, and bureaucratic grievance processes (“work now, file a grievance later”) as being obstructions to direct action, all these practices predated and were 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. Awhile back the Industrial Worker published some critical responses to a discussion paper called “Direct Unionism,” which criticized the “pitfalls of contractualism” and called for “organizing without contracts,” describing some historic examples and specific tactics for non-contractual organizing. (You can find the paper and responses to it online at http://libcom.org/library/debate-direct-unionism.) I disagree with some of the paper, however, I fully agree with its aversion to legalistic union practices. It expresses doubt that “labor law can ever be a liberating force for workers,” asking “Can even defensive use of labor law, ULPs for example, disempower workers?” While “not universally opposed to ULPs,” it 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 it as a form of escalation when in fact it’s a form of de-escalation. A phrase some FWs use goes something like “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 an escape 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 and whether this would have negative repercussions for their court case. After that the firings became a strictly legal battle.
When individual workers file ULPs, this can be a smart move depending on the situation. Because workers have little power right now, often the odds of winning grievances are better in court than in the street or on the shop floor. Because of this we get in the habit of filing ULPs when we want better results. Yet when the union pursues legalistic practices like ULPs, even when individual cases are won, it does nothing to build power for the union or the working class.