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Repurposing American Labor Law: Immigrant Workers, Worker Centers, and the National Labor Relations Act Jessica Garrick Politics & Society 2014 42: 489 DOI: 10.1177/0032329214547352

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Politics & Society 2014, Vol. 42(4) 489–512 Repurposing American Labor © 2014 SAGE Publications Reprints and permissions: Law: Immigrant Workers, sagepub.com/journalsPermissions.nav DOI: 10.1177/0032329214547352 Worker Centers, and the pas.sagepub.com National Labor Relations Act

Jessica Garrick University of Michigan

Abstract The National Labor Relations Act (NLRA) of 1935 has been widely portrayed as an anachronistic piece of legislation that needs to be reformed or abandoned. In the absence of reform, many US labor unions try to avoid the NLRA process altogether by organizing workers outside the confines of the law. But Somos un Pueblo Unido, or “Somos,” a worker center in New Mexico, has been using a novel interpretation of the NLRA less to boost union density than to develop an alternative to contract unionism. By helping nonunionized workers use Section 7 of the NLRA to act concertedly in their own defense, I argue, Somos is combating employer abuse, in the short run, and demonstrating that worker centers and their memberships may be transforming the US labor movement, in the long run. Their experiences illustrate the ability of organizations to redeploy existing institutional resources with potentially transformative results.

Keywords labor movement, law, worker centers, immigrants, institutions

Corresponding Author: Jessica Garrick, Department of Sociology, University of Michigan, 500 S. State St. Ann Arbor, MI 48104. Email: [email protected]

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A substantial body of literature documents the perils of the low-wage labor market in the contemporary United States. These include falling wages, rising insecurity, and an epidemic of underground and illegal employment in blue- and pink-collar occupations in particular. While almost all low-wage workers are at risk of abuse by unscrupulous employers, undocumented workers are particularly vulnerable, and the most compre- hensive study undertaken to date thus identified a “high prevalence of workplace violations among unauthorized immigrants” in the country’s largest cities.1 Observers continue to debate the sources of this trend, but many activists point to the de facto deregulation of the labor market, in general, and the watering down of the National Labor Relations Act (NLRA), in particular.2 The NLRA’s failure, they argue, derives from the corrosive effects of amendments, such as the 1947 Taft-Hartley Act, and judicial decisions that allow employers to circumvent the unionization process out- lined by the Act and overseen by the National Labor Relations Board (NLRB or “the Board”). Illegal approaches to union avoidance are also widely available and rarely punished, and much of the organizing activity in the United States today therefore presupposes either the reform of the NLRA by means of lobbying and political mobilization or the circumvention of the NLRB by means of “card check” certification and/ or alternatives to traditional unions (e.g., minority unions and affinity groups). But the experiences of some nonunion organizations that help workers defend their rights on the job suggest that other possibilities are available. Worker centers—defined as community-based organizations that organize, serve, and advocate on behalf of low-wage workers—and legal justice clinics have been taking advantage of the “concerted activities clause” of Section 7 of the NLRA to help workers defend themselves against abuse and exploitation on the job. And they have done so in the absence of broader organizing campaigns, let alone collective bargaining agreements, which have traditionally been portrayed as the Act’s raison d’etre.3 Their efforts suggest that the NLRA is both more expansive and less anachronistic than most observers believe. Despite a longstanding focus on the collective bargaining provisions of the NLRA, Section 7 has always protected workers who act together for their own “mutual aid or protection,” regardless of their collective bargaining status. Workers who are aware of these rights can therefore join forces to improve their working conditions, knowing that if their employers retaliate (e.g., with their dismissal or discipline), they will have suffered an unfair labor practice under the NLRA’s Section 8. Section 8 makes it illegal for employers to interfere with the employee rights in Section 7, and workers may be eligible for reinstatement and back wages. What has changed is less the law, therefore, than the social and organizational infrastructure around the law, including 1) the decline of the private sector unions, 2) the increasing prevalence of worker centers that have arisen to fill the gap left by the unions’ demise, and 3) their creative use of a law that has been almost exclusively the domain of unions. Although unorganized workers have traditionally been unaware of the NLRA, and have thus turned to Section 7—if at all—in an ad hoc manner after suffering retaliation, worker centers and legal justice clinics increasingly are informing workers of their rights, thus making them more likely to act proactively in their own defense. Such efforts are particularly pronounced in the lower depths of the US labor market, where immigrants are omnipresent, unions

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all but absent, and abuse and exploitation ubiquitous. In these areas, such efforts pose a direct threat to the business community, which increasingly views them with alarm.4 In the remainder of this paper, I use a case study of a New Mexico worker center, Somos un Pueblo Unido (or “Somos”), to show how nonunion, immigrant workers have used a law previously thought to be anachronistic in new and potentially transformative ways. Somos has used the NLRA’s concerted activities clause (Section 7) more than eight times since 2008, and workers have achieved redress—by means of settlement or legal victory—in the vast majority of these cases. Although the activists who lead Somos originally turned to Section 7 in an ad hoc effort to defend immigrants who had been involved in spontaneous workplace protest, they have learned to use the provision proactively in an effort to encourage protest, defend immigrant activists, and build their organization simultaneously. And they are not alone. Other organizations have pursued similar strategies. The NLRB itself seems to be encouraging a more expansive understanding of the rights protected by Section 7. The United States Chamber of Commerce is on high alert.5 And the results therefore suggest not only that worker centers may be reshaping, rather than simply revitalizing, the US labor movement, but rather that institutional paths thought to be sticky may contain within themselves “possibilities and resources for transformation and off-path organization” more generally.6

Historical and Theoretical Background The Debate over the National Labor Relations Act Among the numerous causes of deunionization and impediments to collective bargaining, US labor law has received a fair bit of blame. That the NLRA is now seen as an obstacle to organizing the workplace is nothing short of extraordinary. When the law was initially enacted in 1935 it was meant to protect the rights of workers to organize, strike, and bargain collectively with employers, and was considered to be “labor’s Magna Carta.”7 Today, the NLRA, amended initially with the passage of the Taft- Hartley Act in 1947 and intermittently over subsequent years, still provides the basic process for unionization: a union petitions for an election by gaining the signed cards of at least 30 percent of the workers. The NLRB determines which workers are eligible—termed the “bargaining unit”—and then presides over a secret-ballot election. If a majority votes for the union, the employer is required to bargain, although they are not mandated to come to an agreement. Labor activists worry that the NLRA system allows employers to intervene—both legally and illegally—to derail the unionization process. Gordon Lafer points out that employers are allowed to campaign endlessly against unionization, while union supporters may only discuss the benefits of unionization in break areas during break times.8 Management can use endless delay tactics during both the election and bargaining processes.9 Employers can bring in external “union avoidance” experts, and illegal tactics, such as the dismissal of union supporters, are not at all uncommon. Furthermore, Kate Bronfenbrenner found that the arsenal of antiunion techniques is

Downloaded from pas.sagepub.com at SARAH LAWRENCE COLG LIBRARY on November 12, 2014 492 Politics & Society 42(4) not only diverse but effective: depending on the tactic they used, employers lowered the chances of a union victory, let alone the negotiation of a first contract, dramati- cally.10 Finally, labor organizers point out that the NLRB framework is ineffective, not only because of employers’ ability to thwart the process, but also because of the difficulties of using the process given the pattern of employment in the low-wage labor market. In her case studies of four organizing attempts in Los Angeles, Ruth Milkman found that an electoral union victory in any one firm often just motivates the employer to shift work to a nonunion subcontractor.11 Because of the employer bias in the NLRB process, many labor activists have spent the last decade finding ways to get around it. “Getting around the NLRB” often means organizing on the basis of card-check, or majority sign-up, to determine whether the workers want to form a union. In these cases, the secret-ballot election is foregone, and employers can choose whether or not to bargain with the prospective union. Avoiding the NLRB process therefore necessitates the use of other tactics to persuade employers to bargain in good faith. For example, the Service Employees International Union’s (SEIU) organizers in the Justice for Janitors campaign avoided the NLRB process, organized across the entire industry, utilized media and policy outlets to put pressure on employers, and continuously bolstered support among the rank and file.12 Along with the card-check elections and the use of publicity tactics to pressure employers, labor activists’ support for the failed Employee Free Choice Act (EFCA) of 2009 demonstrates the conviction that the current NLRB process is harmful to employees’ abilities to engage in collective action. The EFCA would have codified many of the strategies that unions already take. Rather than a secret-ballot election, recognition of union representation would occur through “card-check” or majority sign up. It also mandated a mediation and arbitration procedure to reach a first contract within ninety days following union certification, which would address the issue of employers’ delaying tactics and refusals to bargain in good faith.13 Along with these changes to the unionization procedure, all of which are meant to lessen the employer advantages within the current system, the EFCA required employers to pay triple back pay for illegally fired employees. This provision was meant to address the issue often perceived by labor activists and academics that current laws provide no effective deterrence against employer violations.14 Although the EFCA’s potential effectiveness was widely debated, scholars and activists viewed its failure to pass Congress as a profound blow to the labor movement. 15

Institutions and Change: Building with the Ruins of the NLRA Thus, neither reform nor circumvention of the NLRA has reversed the trend of union decline, and the problems with the NLRA remain at the center of discussions of the labor movement and its potential revitalization.16 In fact, most observers tend to equate the labor movement with the unions that are recognized under the auspices of the Act, and its reform or replacement is central to their analyses. But Dorothy Sue Cobble argues that there is another labor movement growing alongside the traditional one. This movement includes alternative forms of organizations—such as the worker

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Table 1. Old and new organizations and institutions in the labor movement today.

Institutions

Organizations Old (NLRA) New (post-NLRA institutions) Old (unions) UAW organizing (and failing) SEIU and other unions utilizing “card in Tennessee this year; check” and other tactics that avoid any traditional AFL-CIO the NLRB process21 organizing campaign New (worker Somos un Pueblo Unido and Worker centers’ campaigns for living centers) Section 7 of the NLRA wage laws, anti-wage-theft laws, and others22

centers identified by Janice Fine and legal justice clinics—and new tactics to help workers in the workplace outside of the realm of contract bargaining.17 These organizations typically blend together advocacy, legal services, and organizing to help workers who remain outside the reach of unions. The presence of both traditional and alternative organizations and their attempts to buttress the legal regime around the workplace provide important insights into the relationships between organizations and institutions more generally. Existing accounts tend to assume that new organizations will build or exploit new institutions.18 But new organizations have also been known to repurpose old institutions in new and potentially transformative ways, just as old organizations may actually build new institutions of their own. In fact, drawing from the experiences of unions and worker centers, several combinations are already at work in the contemporary labor movement and depicted above in Table 1. Some unions still draw on the protections of the NLRA, albeit with limited success. The recent attempt (and failure) of the United Auto Workers (UAW) to win a unionization election at the Volkswagen plant in Tennessee provides one example, as do the many AFL-CIO unions that still organize under the NLRA framework.19 As described above in the case of the SEIU’s Justice for Janitor campaign, unions also adopt new strategies and in so-doing, attempt to carve out room for other forms of organizing and relations with employers. Moving to new organizations, worker centers have also sought to create new regimes, largely through their policy- making activities, such as involvement with living wage campaigns, anti-wage-theft laws, and winning victories for workers long excluded from traditional labor laws. Fine cites the success of the Domestic Workers United in passing the New York Domestic Workers Bill of Rights as a particularly significant example of a worker center’s innovation.20 These experiments largely have been covered in the scholarly press, yet one other combination—that of new organizations experimenting with old institutions—has received little attention. Specifically, some worker centers and legal clinics have used Section 7 of the NLRA to help nonunionized workers act together in their own defense and, in so doing, have unearthed novel paths to worker empowerment.

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In fact, Somos’s experiments with the NLRA are in keeping with the insights of the most recent social scientific literatures, which indicate that institutions are often built (or rebuilt) with the ruins, rather than on the ruins of old systems.23 Institutional actors engage in a variety of experiments with existing arrangements, such as the recombina- tion of existing institutional elements into a new configuration of actors, organizations, and institutions—or what John L. Campbell and others have referred to as bricolage.24 Actors essentially draw on the ambiguities and latent resources that exist on institutional paths, and find innovative ways to redirect them in new contexts and in the face of new problems to solve. Before using Somos un Pueblo Unido as a case to illustrate this process, I give a brief background of Somos, along with the context of New Mexico, and I provide the rationale for using the organization as a case study. I then move into the analysis of their initial and evolving use of the NLRA, and con- clude with a discussion of the strategy in the broader context of the historical and contemporary labor movement.25

Somos un Pueblo Unido and Section 7 of the NLRA History of New Mexico’s Somos un Pueblo Unido Somos un Pueblo Unido, or “Somos”, is an immigrant and worker resource center in Santa Fe, New Mexico. The founders of Somos were Mexican immigrants, Chicanas, and allies, many of whom had been involved in the sanctuary movement of the 1980s, which sought to protect refugees from Central America. The group first mobilized in 1995 in order to pass a memorial condemning California’s Proposition 187, which would have barred undocumented immigrants from receiving health care, public edu- cation, and other social services. After the memorial passed the state legislature, many of the members continued meeting to help each other with immigration processes, and eventually, they applied for and received a small grant from a foundation and began working toward hiring paid staff. They started with just one staff member who worked from her home, and then slowly expanded over the years as they built up their organizational infrastructure. Somos’s activities grew in both scale and scope with the organization. Earlier on, the group focused on building a membership in the Santa Fe area, and improving the climate for immigrants in the community. In 1999 they succeeded in passing a city council anti-discrimination resolution. The resolution bars city employees, including police officers, from asking residents about their immigration status, and it created a permanent city committee on immigrant affairs. The organization now considers these earlier efforts at building a membership and trust between the immigrant community and city officials as crucial to their statewide policy efforts and to their more recent efforts around workplace organizing. Today, Somos is largely responsible for the poli- cies that mark New Mexico as an immigrant-friendly state: undocumented immigrants receive in-state tuition in the state’s universities, for example, and New Mexico is one of only a handful of states that allows immigrants to obtain driver’s licenses. Although the group always helped immigrant workers who had problems in the workplace on a case-by-case basis, Somos Director Marcela Diaz traces the

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organization’s move into more proactive workplace organizing to a specific case. In 2004, the group became a key part of the Living Wage Network, a coalition committed to passing and maintaining a living wage law in Santa Fe. The law was passed, but in the first weeks of its implementation many employers retaliated against immigrant workers who needed to be paid higher wages. A group of McDonald’s workers who experienced retaliation came to Somos for help. Because the Santa Fe minimum wage law includes a provision that protects workers from retaliation for asserting their right to the new living wage, Somos, along with lawyers from a private firm, helped the women sue for wrongful termination. They eventually came to a settlement for an undisclosed amount. Over the subsequent decade, Somos has grown, and the organization now operates with a small staff of eight people, including an in-house attorney, and the help of vol- unteers and interns. It is still based in Santa Fe, but has “membership teams” in ten counties, which are supported by Somos staff. Somos maintains a mailing/call list of thousands of supporters around the state. “Members” pay dues or have donated, and “leaders” are those who take on a more active role—participating in strategy meetings, outreach activities, trainings, etc. Most of the funding still stems from grants from large foundations, as well as smaller amounts from grassroots fundraising, and from dues paid by members.26

Somos as a Case Study of the NLRA and Nonunion Organizing Somos provides an important case study for several reasons. The first is that the organization is broadly similar to other worker centers that have sprung up around the country in recent years. In her book on the phenomenon, Janice Fine describes worker centers as “community-based mediating institutions that provide support to low wage workers, including service, advocacy and organizing.”27 Somos was founded during the “second wave” of worker centers that Fine identifies, which grew in the late 1980s and 90s in response to the arrival of new groups of immigrants from Central and South America.28 Like many of the centers examined by Fine, Somos does not exclusively focus on workers’ issues; instead, it had roots in broader peace and civil rights movements, and its activities expanded to include worker justice issues over the years.29 Another notable parallel between Somos and similar organizations is their pattern of networking. Fine points out that many worker centers operate in a largely isolated manner, and Somos, too, operates largely independently from national organizations or networks. Somos has joined ad hoc coalitions to achieve policy goals on occasion, and has utilized connections with unions and other organizations for informal advisory support. But it was not until recently that the organization followed in the footsteps of other worker centers such as the National Day Laborer Organizing Network (NDLON) and formally affiliated with the AFL-CIO’s Central Labor Council (CLC) in northern New Mexico. And Somos continues to operate independently in most respects. Thus, while at least some of its tactics appear unique, the organization shares many attri- butes—in terms of size, scope of activities, and affiliations—with similar organizations around the country.

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Second, Somos operates in a state that has a vulnerable workforce. Service jobs that support New Mexico’s tourism, agriculture, and natural resource extraction industries make up a large portion of the state’s economy, and the state’s immigrant workers are largely concentrated within these low-wage industries. Immigrants make up only around 11 percent of the state’s total population, yet around 28 percent of immigrants in the labor force work in the service sector. Another 24 percent are employed in construction jobs.30 Furthermore, evidence shows that immigrant workers in the state experience wage and hour violations at high rates. A group of researchers from the University of New Mexico surveyed immigrant workers in the Mexican consulate in Albuquerque, New Mexico, during the summer and fall of 2012 and found that 27 percent of the respondents had experienced at least one wage and hour violation and that 17 percent had experienced physical or verbal abuse by their employers.31 These numbers are striking in light of the fact that New Mexico is often viewed as a state with an immigrant-friendly environment, which some researchers have theorized less- ens the vulnerability of immigrant workers. Third, the organization has extensive experience using the NLRA to help nonunion, immigrant workers. Somos has been using the protected concerted activities clause of the NLRA since 2008, by helping workers act collectively to make demands on their employers. In the case of employer retaliation, Somos helps workers file unfair labor practice charges with the NLRB. In many cases, Somos and the regional NLRB attorneys have helped workers reach settlements with employers. In other instances, the cases have been heard by an administrative law judge and have continued on to the Board itself. Most importantly, the majority of Somos’s cases have resulted in successful outcomes for workers, defined as settlements in which the workers are awarded back wages and/or reinstatement, or through a successful Board decision. Drawing largely from their expertise in other areas, the group’s earlier organizing successes in low-wage workplaces throughout Santa Fe have developed into a honed and practiced strategy, and the NLRB itself seems to view the organization’s use of Section 7 as a model. Upon the recent launch of an effort to inform nonunionized workers of their rights under the NLRA, the agency featured Somos and one of its cases—along with a handful of others from around the country—on its website.32 This particular case, therefore, provides a clearer picture of the strategy, including its adaptation, evolution, and potential implications. I turn next to the actual development of the strategy, and discuss its evolution from initial discovery, to its institutionalization and routinization, and the further learning and diffusion that has occurred as Somos gains more experience with the tactic.

Discovery and Innovation: the Santa Fe Hilton Case Somos director Marcela Diaz views the organization’s support of the McDonald’s workers as their first experience with worker organization. Yet it was another situation a few years later that spurred their evolution into a worker center. In 2008, fourteen female immigrant housekeepers at the Santa Fe Hilton hotel decided to voice concerns about their working conditions with management. Conditions had always been sub- standard, but a change in management had resulted in a deterioration of working

Downloaded from pas.sagepub.com at SARAH LAWRENCE COLG LIBRARY on November 12, 2014 Garrick 497 conditions. The number of rooms the housekeepers were required to clean per shift had increased and they were working with harsh chemicals without protection. In response, the women collectively refused to work until a manager heard their concerns. When they demanded to speak with their manager, a human resources employee told them that they would be fired unless they returned to work. They refused and were subsequently fired. Afterward, they all drove to the office of Somos un Pueblo Unido, although none of the women were dues-paying members of the organization at the time. Unlike the McDonald’s case—in which there had been a clear legal violation of the antiretaliation provision of the citywide living wage law—the staff did not believe the women had any viable options for legal recourse. Noting that the employer might have had the right to discharge them, the organization nevertheless encouraged the women to stick together. If the women stayed united they would at least be able to hold a press conference and publicize the story. Getting press coverage was nothing new to Somos, which had used publicity tactics heavily in other campaigns, including the McDonald’s wrongful termination suit. After speaking with several attorneys, Somos staff helped the women draft a letter to their employers, asking to return to work. They stated that they had collectively acted in order to discuss various working conditions and that all they wanted was a meeting. Hilton management denied their request to return to work. Although they remained doubtful that there were any channels for legal redress, the staff members thought that the press would be more likely to cover the women’s story if official complaints had been filed. Thus, Somos and the attorneys sifted through the women’s stories, looking for potential legal grievances. They filed an OSHA complaint because the women had to use harsh chemicals and were not provided protective gear. They filed an EEOC complaint, but were worried that discrimination would be difficult to prove, since some women who had not acted with the group were also immigrants. Finally, a recent graduate from the University of New Mexico Law School who had begun to practice labor law reviewed the case and realized that the women had technically gone on strike. They had not clocked in that morning, and refused to do so until the manager agreed to speak with them. The Santa Fe Hilton housekeepers had—without knowing it—mobilized their Section 7 rights, which state that workers can “engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection” (my emphasis). Section 7 and 8 of the NLRA jointly provide for the rights and remedies of workers who act together and experience retaliation for doing so. Section 7 gives workers the right to engage in these activities, while Section 8 defines employer interference with these rights as an unfair labor practice. When the workers were fired, therefore, their employers had committed a direct violation of Section 8 of the NLRA. These provisions are well known for their ability to protect workers who are attempting to organize or to obtain a collective bargaining agreement, yet their implications for nonunion workers who are acting concertedly to improve their working conditions have largely gone unnoticed by both academics and activists, although a few legal scholars have written on the subject. Moreover, very few workers or employers seem to be aware that nonunion workers are protected by Section 7 in their collective efforts to alter their own working conditions.

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Surprised at the lawyer’s finding, Somos staff immediately spoke with the local NLRB office in Albuquerque. After the NLRB officers encouraged them to file a charge, the next step was to have one of the women come forward to sign her name as the main complainant. Because all the women were undocumented, this was consider- able cause for concern, but one woman stepped forward, and from that point on acted as the main representative of the group. The NLRB investigated, found that the Hilton had likely violated the Act and filed a complaint. Somewhat unexpectedly, the letter that the workers had written to the Hilton management was a key piece of evidence in the investigation. At that point, the group began publicizing the case. They held protests outside of the Hilton, during which the women taped their mouths shut and wore signs that stated they had been fired for speaking up about their working conditions. Director Marcela Diaz and organizers who worked with the women stated that the publicity resulted in a wellspring of support for the workers and increased donations to Somos. Once an NLRB complaint has been issued, parties can come to a settlement with the aid of the regional director, and most cases end in settlements. The Hilton workers did not reach a settlement until the day of the hearing in front of the administrative law judge. The workers and Somos staff had struggled with the idea of settling. Because they were uncertain of the amount they should push for, the staff reached out to a contact they had with UNITE HERE, and asked for help. The contact explained that back wages and reinstatement are the usual remedies for violations of the NLRA that result from illegal discharges; workers are paid the wages they would have received had they not been fired in the first place and reinstated to their positions. Because of the poor treatment they had experienced, most of the women were not interested in reinstatement, and many of them had already found other jobs or had left the state. Yet, the contact at UNITE HERE encouraged them to push for reinstatement. In these cases, because the employer rarely wants to rehire workers they view as troublemakers, management is often willing to pay a higher settlement in lieu of reinstatement. In the Hilton case, the amount awarded was $32,000, which the women agreed to divide among themselves.33 In the wake of the settlement, having followed the union leader’s advice, the Hilton workers and Somos members discovered another advantage to the NLRB process. Although employers may use the reaching of a settlement to show that there had been no wrongdoing on their part, another typical NLRB remedy is to require the employers to post a notice in the workplace, which states that they violated the rights of employees. It lists the names of the individual victims, and then it lists all of the employee rights under the NLRA. Again, Somos was ready to publicize. They enlarged a copy of the notice and held another press conference to share the workers’ victory.

Institutionalization and Routinization: Somos and Santa Fe after the Hilton Case Somos now argues that immigrant workers have little to lose and much to gain by organizing. Yet it was the Hilton workers themselves, after experiencing worsened

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conditions in the workplace, who sparked the new recognition of rights—and subsequently, the ability to claim them. This is consistent with the literature on legal mobilization, which has shown how changes in conditions can cause changes in rights-consciousness and subsequently, the decision to claim certain rights.34 After the women self-organized, Somos helped them combine rights-claims with previously mastered publicity tactics, thereby leading the organization to a powerful new strategy. The show of support from the community at large emboldened the Hilton workers and the organization. According to Director Marcela Diaz, until the Hilton case,

We didn’t know that we could organize. I mean we always would say “you have the right to organize,” but what did that mean? We didn’t know what that meant. You know, even in our little pamphlets, it would say, “You have the right to organize without being retaliated against,” but we didn’t know what the recourse was, we didn’t know that that actually meant something. We just figured that it meant with a union. After Hilton, we would explain it to people by saying, “these women were acting like a union without even knowing it.”35

The Hilton case, therefore, led the organization to realize what it meant to be able to organize. No union necessary, workers can act together and know that they are protected in doing so. Somos and its members were not the only ones bolstered by the case. The group reports that it was a “moment for immigrant workers” and that the Hilton experience encouraged many workers who previously had been afraid, feeling that any sort of resistance to their conditions was futile. Drawing from the wide press coverage, some workers in other hotels reportedly used the Hilton example to gain leverage with their employers. New donors contacted Somos, and some unions became interested in the case, resulting in an increased sense of legitimacy as an organization helping workers. Perhaps the most important outcome of the Hilton case was that Somos began helping workers who came to them with problem in their workplace by encouraging them to form small workplace-based “workers’ committees” with their coworkers. Guided by their experience with the Hilton workers, Somos helps newly formed committees to immediately send a letter to their employer stating that they have formed a committee, that they are acting collectively, and that they would like to meet to address X, Y and Z working conditions. If the employer retaliates by terminating the committee members, or subjecting them to unfair treatment, Somos now knows the NLRB proce- dures and will help the committee to file a case. What started as a process of organizational search became a honed, routinized method. After all, organizations learn from direct experience, and Somos is clearly learning by doing.36 Ad hoc techniques that had successful outcomes—such as writing employers to voice concerns, and thereby documenting the workers’ concerted activities—are now efficiently applied to every case. Somos has a formula for the letters, which declare the committees’ collective nature, while stating the specific working conditions that they wish to address. The organization has learned through their cases that demonstrating these two elements is crucial, both for the NLRB to consider the cases and for successful outcomes.

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Since Hilton, twenty to twenty-five Somos-affiliated workers’ committees have begun operating in Santa Fe. Although Somos continues to engage in other issues, the formation of workers’ committees has become central to the organization’s opera- tions. On May 1, 2012, the organization opened the United Worker Center of New Mexico, giving a formal name to what it has been doing for years, and beginning an effort to extend Somos’s organizing and service work to nonimmigrant workers as well. Upon opening the worker center, Somos also hired an attorney. Until that point, the organization had relied on pro bono counsel from lawyers in the community. The Worker Center has a standing workers’ committee, which serves to support the workplace-based committees throughout New Mexico and encourages the formation of new ones. Members of the workers’ committees frequently tell their own stories about workplace organization to potential new members, help newly formed committees with letter-writing and strategies, and in the case of an NLRB suit, help prepare them for testimony and for publicity. Somos insists that all workers who accept help agree to speak in front of the press. The cases themselves, they argue, will not result in broader change if the larger community remains unaware of them. The meetings include discussions and reminders of workplace rights, and often include the video- taping of a “derecho del día,” in which a committee member speaks about a specific workplace right.

Diffusion and Learning: Subsequent Cases and Their Challenges Just as the organization itself has learned, so too have the workers—and some of them reportedly carry their organizing skills from job to job. One of the staff organizers reported that one worker started workers’ committees at two subsequent jobs after he witnessed the Hilton women’s successes.37 One of these committees won a Board decision after filing a charge against their employer, Merchants Building Maintenance, a case that is further described below. As Somos continues to help workers organize into committees, it has learned about the variety of possible outcomes. Somos staff and members report that sometimes committees are successful without going through the NLRB process. Success means that employers improve conditions in the workplace and that the employer does not retaliate against the workers who have formed a committee. If the employer does retaliate, then Somos helps them to file a case. Table 2 describes each of Somos’s cases: as of 2013, Somos has helped workers file eight cases, and six of those have been successful—meaning they reached a settlement agreement favorable to the workers, or the Board made a successful decision. In a case similar to the Hilton case, workers at the Plaza Real Hotel filed a charge in 2011 after they were fired for collectively complaining about discrimination and unsafe working conditions. They received their back wages in a settlement, and turned down offers to return to work at the hotel. Workers at the Merry Maids cleaning company, however, had to withdraw their charges when they learned that the main victim of retaliation was not protected by the Act because she was a supervisor, and this status kept her outside the Act’s protection.

Downloaded from pas.sagepub.com at SARAH LAWRENCE COLG LIBRARY on November 12, 2014 Outcome of the case rewarded back wages, settlement in lieu of reinstatement. Hilton had to post sign complaint back wages, sign posting. NLRB and employers now in mediation. was a supervisor, not covered by Act’s protection (due to bankruptcy) reinstatement, sign-posting, declaration of the worker’s committee as a bargaining unit injunction granted, workers reinstated while case is being appealed to the Board after ALJ decided in favor of workers Successful settlement: workers Not enough evidence to issue a Successful Board decision: instatement, Successful settlement Workers withdrew charge: fired worker Successful Board decision: back wages, Successful District Court decision: Other details after initial case complaints, retaliation delayed precedent invoked by employer. Employers appealed decision and lost. NM Dept. of Workforce Solutions, and negotiated a settlement the U.S. Circuit Court to stop injunction sought by General Counsel First NLRB case Conditions had improved Went to Board, Hoffman Restaurant filed bankruptcy Successful settlement: partial back wages Company sought motion from by employers meeting organization, discriminatory supervisor fired year fired resign one suspended Retaliation committed Fired after requesting Not rehired for school Several workers fired Leader of collective action Two fired, one forced to Fired for organizing Also filed a wage claim with Two workers discharged, collective action management change discrimination working conditions overtime) verbal abuse, discrimination Conditions that motivated Discrimination, harassment Initially successful Sexual harassment Unsafe working conditions, Wage theft (minimum wage and Wage theft Unsafe production line speed, NLRB Cases of Somos Un Pueblo Unido Members, as August 2013

(2009) Maintenance (2009) (2011) Restaurant (2012) Carwash (2012) Company (2012) Table 2. Name of case/ year filed Hilton (2008) Unsafe, too fast paced under El Dorado Hotel Merchants Building Plaza Real Hotel Merry Maids (2011) Abusive treatment, unsafe China Star Squeaky Clean Santa Fe Tortilla

501

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Successful cases are not without challenges. Although many employers seem eager to avoid any discussion of the workers’ legal statuses, the issue arose in one case that wound its way through the NLRB process and was heard by the Board. This case involves the company that provided janitorial services to the Santa Fe Public School District. After female janitors had been subject to sexual harassment by a male supervisor, the workers organized to voice their complaints. When the supervisor was dis- missed and conditions improved, the workers thought their efforts were successful. However, when the time came to renew the workers’ contracts for the next school year, the company did not renew any of the workers who had joined the workers’ committee. The administrative law judge and the Board itself found that the reason the workers were not instated for the new school year was in retaliation for their collective action. The employer, however, insists that the workers were not asked back because of their legal statuses. The employer has asked the Board to rehear the case, which again decided in favor of the workers who are now in remedial negotiations.38 This case is the first one in which the US Supreme Court’s decision in Hoffman Plastics and the NLRB’s subsequent Mezonos Maven Bakery have played a role. Hoffman Plastics is a 2002 decision in which the Supreme Court ruled that undocumented immigrant workers whose rights are violated under the NLRA may not be eligible for the standard remedies of back wages or reinstatement if they had presented fraudulent documents to obtain the work in violation of the 1986 Immigration Reform and Control Act (IRCA).39 In 2011, the Board issued a decision in Mezonos Maven Bakery and followed—although not without critical commentary—the Supreme Court’s ruling and clarified that back pay cannot be awarded to undocumented immigrant workers, even if it was the employer, rather than the employee, who violated the IRCA.40 Although the group is aware that typical NLRB remedies may no longer be available to immigrants without documentation, it also points out that it is the employers who must prove that a worker was in the United States illegally, and that they are frequently hesitant to delve too deeply into their own hiring practices. Although this case remains open, Somos staff frequently use this case as an example of the empow- ering nature of the actual legal process for the workers who testified. The CEO and other managers were flown in from California, and the workers were able to tell their stories in front of them, along with the representatives from the NLRB. Other legal challenges arise from employers’ tactics when they are faced with legal complaints. A group of restaurant workers filed both wage claims and an NLRB retaliation case after complaining about years of stolen wages. The employer—China Star Restaurant—responded by declaring bankruptcy and opening a new restaurant under a different name. Although the bankruptcy stayed the wage claim, it had no effect on the NLRB case, and the workers won a settlement. Thus, it appears that the NLRA can sometimes be more robust than the civil suits filed in cases that also involve wage theft and other violations of employment law. In another more recent case, the lawyers for the Santa Fe Tortilla Company responded to an injunction against the company— sought by the regional director and approved by the general counsel before moving on to the federal district court—by filing a motion with the U.S. Court of Appeals-D.C. Circuit.41 The employer is arguing that the Board has no authority to seek this relief in

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light of a recent decision that found that the Board did not have quorum.42 The US District Court found reasonable cause to issue the injunction, and therefore ordered the employer to reinstate the workers to their jobs while the case continues through the process to be heard by the Board itself. An administrative law judge decided in favor of the workers in July, but the employers have appealed the decision. The District Court’s decision ensures that the workers do not have to wait through the lengthy process to begin working again. Other legal twists and turns have been equally unpredictable. In 2012, the Board issued a surprising decision in a case involving a group of carwash workers. The Board ordered the company not only to pay back wages and reinstatement, but also deter- mined that the workers’ committee had been acting as a union, and that the employers would be required to bargain. They are currently working on gaining a contract.43 The implications of this case are unclear: on one hand, this case provides further illumina- tion of how nonunion Section 7 activity can be extended into another form of contract unionism, but the difficulties in gaining a contract for such a small unit are clear, and the workers themselves state that their goals of improved working conditions have been accomplished; they say they are unsure of their own desire to gain a collective bargaining agreement. The aforementioned cases illustrate the unique challenges and opportunities the workers’ committees have faced and they have therefore become part of the group’s organizational narrative. Through the successful Hilton case, the group found a powerful new tool for organizing. In addition, the case brought Somos publicity and legitimacy in the labor world, and it emboldened the Santa Fe immigrant community. The janitorial company case is the first case to go all the way to Board, and it was the first in which the workers were able to testify in front of their employers. Yet, the employers used immigrants’ legal statuses as a reason for discharge and it is likely that Somos will continue to deal with the repercussions of the Hoffman Plastics decision. Other employers find different tactics—such as filing for bankruptcy—that add complica- tions to cases. Yet, Somos continues to organize, and every year more workers’ committees are formed throughout Santa Fe. Thus, while the Hilton case was an ad hoc response to retaliation, Somos has since turned the use of Section 7 into a proactive strategy to help workers organize and voice their concerns while knowing that they have the protection of the law. Hiring an on-staff lawyer is indicative of the centrality of the group’s use of the law in its organizing efforts.

Discussion Somos’s initial use of Section 7 resulted in part from their position as one of the sole organizations in New Mexico that sought to protect immigrant workers and their rights. While the organization was already a powerful local force in terms of immigrant rights and organizing, it was relatively new to workplace organizing and legal mobilization. However, this very newness led Somos to the discovery of a broader purpose behind Section 7 than the labor movement had typically recognized. In the search for a way to help the Santa Fe Hilton workers, the group relied heavily on its

Downloaded from pas.sagepub.com at SARAH LAWRENCE COLG LIBRARY on November 12, 2014 504 Politics & Society 42(4) network: members reached out to the media, several regulatory agencies, and lawyers they trusted, one of whom recognized the action of the Hilton’s workers as a legally defensible strike. In the course of the case, the organization used connections with unions for advisory support during the NLRB settlement process. Since this initial victory, the organization routinized the tactic, hired an attorney, and opened a formal worker center within the organization. It also continues to deploy a network of resources to help workers who come in with similar grievances against their employers but different legal challenges. Somos’s status as a newcomer to the legal and organizational terrain of workplace organizing enabled the organization to identify and implement a creative reinterpretation of the NLRA. For Somos, lawyers, union activists, and government agencies all provided informational resources as the organization learned how the NLRA could be useful to its membership. Underlying their search for organizing tools is a commitment to helping a vulnerable workforce, namely, the immigrant workers that comprise a large part of the Santa Fe service economy. At first glance it seems surprising that Somos has mobilized the NLRA to help immigrant workers, who many commentators assume are unlikely to receive the full protection of the law. In fact, immigrants were central to Somos’s strategies in at least two ways. The first is their heightened vulnerability in the low wage labor market, which renders them more in need of innovative solutions. The second is that immigrant solidarity has been central to virtually all of Somos’s organizing efforts, starting with their early days aimed at building trust among the immigrant community. Thus, the staff of the group attribute their success in discovering Section 7 rights to their very commitment to aiding the efforts of immigrants to better their situations in the workplace. The belief that workplace rights apply equally to all workers, including immigrants, motivated the drive to help the Hilton hotel workers. While the group felt that the women may have been legally discharged, they also continued searching for legal recourse. This search led them to Section 7, which the group now views as a powerful organizing tool, not least of all because workers are informed that “they don’t need a union to organize and act together.”44 Moreover, their more active members have clearly internalized this approach and attempt to apply the tactic of organizing a workers’ committee whenever they begin in a new workplace.

New Gains? Broader lessons from Somos’s use of the NLRA What are the broader implications of Somos’s experiences with Section 7? At a minimum, it suggests that vulnerable workers have a means of redress that few knew was available. Tactics that prevent the worst abuses are useful on their own, even if they fall short of complete institutionalization. Given the vulnerability of low-wage workers—and immigrant workers specifically—it is no small feat to discover any layer of protection that can be successfully deployed, as Somos has. Second, institutional theory tells us that broadly constructed statutes tend to allow for the sort of bricolage undertaken by Somos, which can result in transformative change.45 The NLRA certainly seems to fit this description. Labor lawyers have recognized that alternatives to contract unionism were written into the very DNA of the

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NLRA. Beginning in the 1990s, for example, Clyde Summers argued that Section 9—which makes a majority union the “exclusive representative” of all employees in a bargaining unit—had obscured the more sweeping and basic rights in Section 7.46 Summers and law professor Charles Morris have gone so far as to argue that the NLRA allows for minority unions, but that the utility of minority unions was overlooked and forgotten during the heyday of contract unionism and the closed shop.47 Morris makes a convincing case, in fact, that employers may be legally required to bargain with small groups of workers who demand to have their grievances addressed.48 The sweeping nature of this particular provision in US labor law is, in Gregory Jackson’s terms, an institutional ambiguity that existed ex ante, and has thereby allowed for ex post flexibility.49 The potential for nonunion use of Section 7 has existed on the “path” of US labor relations ever since the passage of the New Deal labor legislation, and legal scholars have identified the viability of minority contracts, both in terms of their legal- ity, and in the context of the continuing decline in union density.50 Somos’s experiences on their own speak to the beginnings of potential institutionalization. Members of the organization view this tactic as a separate tool from the earlier years when they helped workers on a case-by-case basis. Because of the publicity tactics, and the proactive formation of workers’ committees, Somos believes that the use of Section 7 is beginning to change the workplace dynamic throughout Santa Fe, and members tell how highly publicized cases provide leverage for workers who are beginning to organize in their workplaces, and how powerful people in the community write to say that they will no longer patronize a business that is currently being publicized as a bad employer. Thus, it is possible that Somos’s actions have a deterrent effect on errant employers, though this obviously demands further research. In addition, it should be emphasized that Somos’s use of Section 7 occurs within the context of its organizing activities more generally. Somos has pushed for (and helped win) numerous gains, including higher minimum wages, expedited wage-theft cases in local courts, and a more tolerant climate for immigrants throughout the state. It is within this broader context that Somos’s workplace strategies must be judged. Just like other experiments going on in the low-wage labor market today, we should not expect a panacea. But it may be one piece of a larger puzzle that workers and activists are fitting together. Finally, Somos is by no means the only nonunion organization to use Section 7. While Somos seems to be one of only a handful of organizations that encourages the proactive organization of workers into workers’ committees, organizations around the country have helped immigrant workers who have acted together—without necessarily understanding their right to do so, much like the Hilton workers—and have been subsequently discharged. For example, in 2002 Baltimore’s Public Justice Clinic filed charges with both the EEOC and the NLRB when a group of immigrant workers in a furniture warehouse complained about discriminatory pay practices.51 In 2008, the Equal Justice Center in Austin, Texas, helped immigrant workers in a countertop fac- tory–who had for years been denied overtime compensation—file a NLRB complaint.52 And some more high-profile cases are seemingly inspiring other groups of workers around the nation. When a group of immigrant workers at Walmart supplier

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CJ’s Seafood walked off the job to protest wage theft and abusive treatment in 2012, for example, strikes and walkouts followed at a number of Walmart stores and contract warehouses. The retailer responded by suspending the supplier. The Labor Department responded by seeking unpaid wages for the workers. And the leaders of the strike have gone on to organize workers elsewhere in Walmart’s supply chain. 53 Since this strike, other union-community organization coalitions have helped nonunion workers to mobilize Section 7. Among the most prominent examples are the walkouts and strikes of Walmart workers—supported by the nonunion organization OUR Walmart, which is backed by the United Food and Commercial Workers (UFCW)— and fast-food workers who have the support of a network of community organizations along with the Service Employees International Union (SEIU). 54 Most of these actions result in retal- iatory actions by Walmart or its contractors, and the groups have thus filed a slew of NLRB charges. These activities have also gained the attention of the NLRB itself, which now seems to be encouraging this use of the Section 7 provision by nonunionized workers. On June 18, 2012 the Board launched an outreach initiative (including the aforementioned website) with an eye toward educating more workers (and employers) about the rights of nonunionized workers.55 Perhaps more tellingly, the business community has expressed increasing concern over these developments. A 2014 Chamber of Commerce report documented the rise of worker centers and recent decisions and rules on the part of the NLRB and the Department of Labor, which have provided inroads for members- only unions, such as those argued for by Morris and others. The authors of the report contend that these developments represent a fundamental shift in US labor law, and that they “give organized labor a powerful tool to reverse its membership decline by allowing worker centers to organize small groups of unrelated employees,” into formal unions.56 That the business community clearly views worker centers and their forays with the NLRA as a threat provides further evidence of the potential for these tactics to evolve into something more institutionalized, perhaps in the form of members-only unions. Thus, the point of presenting Somos’s experience is not that unions are no longer needed. The point is rather that new organizational forms, such as worker centers, and their coalitions seems to have uncovered a novel and potentially powerful alternative to worker organizing as we know it. While it is unlikely that this flavor of organizing will completely replace traditional union organizing, it could serve as a powerful complement, especially in sectors of the economy and geographical regions that are notori- ously difficult to organize. Thus, it provides support for the convictions of activists and scholars such as Richard B. Freeman and Joel Rogers that the future of the labor movement likely lies in some combination of union and nonunion organizing.57 Researchers have captured the promises and pitfalls of union-worker centers collaborations, yet few have noted that the very tools that have become problematic for the labor movement may have more potential for nonunion organizations.58 Strong union- worker center collaborations, on one hand, and worker centers that connect only loosely with unions, on the other, both have promise; which model is more appropriate likely depends on the local context. Somos—which only drew on unions for advisory

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support—exemplifies the latter and shows that strong union collaboration is not a necessary condition for this model of organizing. Future research could further explore these differences, as well as many of the dynamics mentioned above. For example, do employers recognize the threat of nonunion NRLA cases? If so, does the possibility serve to deter abuses ex ante? Have workers elsewhere learned about the NLRA? Do they go on to use it successfully? Answering these questions will further address the more general question of whether this use of Section 7 helps workers to gain new ground.

Conclusion Somos un Pueblo Unido, and organizations like it, are breathing new life into an old law and are recasting the conversation about the labor movement’s revitalization. Until recently, that debate has focused on whether union tactics and efforts to organize previously underrepresented groups of workers are bolstering union density or not. But the labor movement has never been synonymous with the collective bargaining regime or union membership per se, and workers have historically organized with whatever tools are available to them.59 Section 7 of the NLRA offers one such tool, and by exploiting it to the fullest Somos has achieved redress for workers in the short run and opened up new possibilities for the labor movement over the longer run. While the rights enshrined in Section 7 are by no means unlimited, they are acces- sible, and are not contingent upon some long awaited—but politically unlikely—combination of legislative and presidential action (and judicial restraint). Labor activists have long decried the NLRA as obsolete, after all, and have called for a variety of reforms designed to revive unions and collective bargaining. But the actions of Somos and its members suggest that new approaches to industrial and labor relations may be constructed with the remains of the old, rather than upon their ruins. Revitalization of the labor movement may already be underway, in fact, as workers and their advocates unearth new potential in an old law rather than trying to “get around the NLRB” or to pass new legislation like the ill-fated 2009 Employee Free Choice Act. My case study thus speaks to the idea that old institutions contain latent or untapped possibilities that can at times be reopened or recombined in new and exciting ways. After all, Marc Schneiberg holds that institutions that seem to give rise to path depen- dent outcomes are not necessarily one-way streets but instead contain the remnants of “paths not taken.”60 Institutional actors can engage in bricolage and other forms of innovation to apply these resources to new contexts and purposes. And the history of the NLRA would seem to underscore this point, for the law’s recent repurposing not only by Somos but by workers and worker centers more generally harkens back to the more disruptive labor militancy of the late nineteenth century, when strikes were largely a “local affair,” rather than the stable collective bargaining regime of the mid-twentieth.61 By combining publicity with a repurposing of the NLRA, Somos un Pueblo Unido and its immigrant members are actively working to transform the workplace dynamic in Santa Fe, for example, and in so doing they are demonstrating the potential for

Downloaded from pas.sagepub.com at SARAH LAWRENCE COLG LIBRARY on November 12, 2014 508 Politics & Society 42(4) transformation that may exist within traditional labor laws. The workers in the cases who are reinstated and return to their jobs with improved working conditions offer a rebuttal to unions’ earlier claims that worker centers do little besides enforce laws.62 In fact, it is possible that this tactic can provide a powerful deterrent to nonunion employers who impose poor working conditions on their workers. These strategies, therefore, are undoubtedly an important component of Cobble’s “other labor movement,” and as demonstrated by the Walmart employees and warehouse contract workers, the tactic may be useful even in the face of aggressively antiunion companies in other parts of the country. Thus, while the long term implications of the use of Section 7 by nonunion workers is still indeterminate, it is clear that the absence of unions does not necessarily mean the absence of organization. With the aid of groups such as Somos, workers’ collective efforts to act in their own defense on the job can be transformed into more systematic and sustained movements. Whether these experiments continue to be local affairs that occur on the margins of the mainstream labor movement or to complement or even replace traditional unionism, their contributions and potential should not be overlooked. By repurposing the National Labor Relations Act to help small groups of workers, Somos and its members have shed light upon another potential path to labor movement renewal, using the very law that has too often served as an obstacle to unionization. Given the heightened vulnerability of workers today, and especially immigrant workers, experiments like Somos un Pueblo Unido’s are all too important, and all too timely.

Acknowledgments I would like to thank Peter Catron, Peter Evans, Katie Hauschildt, Katelyn Parady, Richard Wood, the participants of the UCLA Conference on Low Wage Work and Organizing of May 2013, and the board of Politics & Society for their comments on earlier drafts. Special thanks go to Andrew Schrank for all of his suggestions and insights throughout the course of the study and numerous iterations of this paper. I am also grateful for ongoing cooperation and help from the staff and membership of Somos un Pueblo Unido, especially Alma Castro, Marcela Diaz, and Elsa Lopez.

Declaration of Conflicting Interests The author declared no potential conflicts of interests with respect to the research, authorship, and/or publication of this article.

Funding The author received no financial support for the research, authorship, and/or publication of this article.

Notes 1. For overview of deteriorating and illegal working conditions and the vulnerability of immigrant workers, see Annette Bernhardt et al, “Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in America’s Cities (Chicago: Center for Urban Economic Development, 2009): 53. Annette Bernhardt, Heather Boushey, Laura Dresser, and Chris

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Tilly, The Gloves-off Economy: Workplace Standards at the Bottom of America’s Labor Market, (Champaign, IL: Labor and Employment Relations Association, 2008); Elizabeth Fussell, “The Deportation Threat Dynamic and Victimization of Latino Migrants: Wage Theft and Robbery,” The Sociological Quarterly 52 (2011): 593-615. 2. For an account of how economic restructuring and deunionization have increased worker vulnerability and difficulties mobilizing the law, see David Weil, “Broken Windows,” Vulnerable Workers, and the Future of Worker Representation,” The Forum: Labor in American Politics 10, no. 1 (2012): 1-2. 3. Janice Fine, Worker Centers: Organizing Communities at the Edge of the Dream,” (Ithaca: Cornell University Press, 2006), 2, and J. Fine, “Community Unions and the Revival of the American Labor Movement,” Politics & Society 33, no.1 (2005): 153-99. 4. US Chamber of Commerce, The Blue Eagle Has Landed: the Paradigm Shift From Majority Representation to Members-Only Representation, (Washington DC: Workforce Freedom Initiative, 2014). Retrieved from workforcefreedom.com on May 1, 2014. 5. Ibid. 6. Marc Schneiberg, “What’s on the Path? Path Dependence, Organizational Diversity, and the Problem and Institutional Change in the US Economy 1900-1950,” Socio-Economic Review 5 (2007): 48. 7. David Brody, “Section 8(a)(2) and the Origins of the Wagner Act: Reforming US Labor Relations,” in S. Friedman, R.W. Hurd, R.A. Oswald, and R.L. Seeber, eds., Restoring the Promise of American Labor Law (Ithaca, NY: ILR Press, 1994): 29. 8. Gordon Lafer, “What’s more Democratic than a Secret Ballot? The Case for Majority Sign-Up,” Working USA: The Journal of Labor and Society 11 (2008): 71-98. 9. Kate L. Bronfenbrenner, “Employer Behavior in Certification Elections and First-Contract Campaigns: Implications for Labor Law Reform,” in S. Friedman, R.W. Hurd, R.A. Oswald, and R.L. Seeber, eds., Restoring the Promise of American Labor Law (Ithaca, NY: ILR Press, 1994): 75-89. 10. Ibid., 75, 85. 11. Ruth Milkman, L.A. Story: Immigrant Workers and the Future of the U.S. Labor Movement, (New York: Russell Sage Foundation, 2006), 155-61. 12. Ibid,. 23. 13. Sheldon Friedman, “Why the Employee Free Choice Act Deserves Support: Response to Adams,” Labor Studies Journal 31, no. 4 (2007): 15-22. 14. Bruce Nissen, “Would the Employee Free Choice Act Effectively Protect the Right to Unionize? Evidence from a South Florida Nursing Home Case,” Labor Studies Journal 34, no. 1 (2009): 65-90. 15. Nelson Lichtenstein, “Despite EFCA’s Limitations, Its Demise is a Profound Defeat for U.S. Labor,” Labor Studies in Working-Class History of the Americas 7, no. 3 (2010): 29-32. 16. Private sector union density has been declining since the 1950s, when a third of nonagri- cultural workers, and over half of blue-collar workers were union members. See Richard B. Freeman, “Contraction and Expansion: The Divergence of Private Sector and Public Sector Unionism in the United States, The Journal of Economic Perspectives 2, no. 2 (1988): 63. This trend has continued through the last decade. In 2013, private sector workers had a union membership rate of only 6.7 percent. See Bureau of Labor Statistics, “Union Members–2013,” (25 Jan 2014). For more descriptions see Janice Fine, “New Forms to Settle Old Scores: Updating the Worker Centre Story in the United States,” Industrial Relations 66, no. 4 (2011): 612, and Jake Rosenfeld and Meredith Kleykamp, “Hispanics

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and Organized Labor in the United States, 1973-2007, American Sociological Review 74, no. 6 (2009): 918. 17. Dorothy Sue Cobble, “Betting on New Forms of Worker Organizations,” Labor Studies in Working-Class History of the Americas 7, no. 3 (2010): 17-23. 18. See for example, Hayagreeva Rao, “Caveat Emptor: The Construction of Nonprofit Consumer Watchdog Organizations,” American Journal of Sociology 103, no. 4 (1998): 912-61. Paul J. DiMaggio, “Constructing an Organizational Field as a Professional Project: U.S. Art Museums, 1920–1940, in W. W. Powell and P. J. DiMaggio, eds., The New Institutionalism in Organizational Analysis (Chicago: University of Chicago Press, 1991), 267-92.Wesley D. Sine, Robert J. David, and Hitoshi Mitsuhashi, “From Plan to Plant: Effects of Certification on Operation Start-up in the Emergent Independent Power Sector, Organization Science 18, no. 4 (2007): 578-94. For an overview, see Pamela S. Tolbert, Robert J. David, and Wesley D. Sine, “Studying Choice and Change: The Intersection of Institutional Theory and Entrepreneurship Research,” Organization Science 22, no. 5 (2011): 1332-44. 19. Steven Greenhouse, “Volkswagen Vote Is Defeat for Labor in South,” New York Times (14 February 2014). 20. Fine, “New Forms to Settle Old Scores,” 614. 21. Milkman, L.A. Story, 155-61. 22. Fine, Worker Centers. 23. David Stark, “From System Identity to Organizational Diversity: Analyzing Social Change in Eastern Europe,” Contemporary Sociology 21, no. 3 (1992): 299-304. Wolfgang Streeck and Kathleen Thelen, “Introduction: Institutional Change in Advanced Political Economies,” in W. Streeck and K. Thelen, eds., Beyond Continuity: Institutional Change in Advanced Political Economies (London: Oxford University Press, 2004), 1-39. James Mahoney and Kathleen Thelen, “A Theory of Gradual Institutional Change,” in J. Mahoney and K. Thelen, eds., Explaining Institutional Change: Ambiguity, Agency, and Power (Cambridge, UK: Cambridge University Press, 2010), 1-37; John L. Campbell, “Institutional Reproduction and Change,” in G. Morgan et al., eds., The Oxford Handbook of Comparative Institutional Analysis (Oxford, UK: Oxford University Press, 2010), 87-116. Schneiberg, “What’s on the Path?” 24. John L. Campbell, “Where Do We Stand? Common Mechanisms in Organizations and Social Movement Research,” in G.F. Davis, D. McAdam, W.R. Scott, and M.N. Zald, eds., Social Movements and Organization Theory (Cambridge, UK: Cambridge University Press, 2005), 56. Also see Campbell, “Institutional Reproduction and Change,” in G. Morgan et al., eds., The Oxford Handbook of Comparative Institutional Analysis, 87-116; and Elisabeth S. Clemens, “Organizational Repertoires and Institutional Change: Women’s Groups and the Transformation of U.S. Politics, 1982-1920,” American Journal of Sociology 98 (1993): 755-98. 25. This ethnographic study of Somos un Pueblo Unido evolved through a cooperative relationship that started when I helped to carry out a survey of immigrant workers on behalf of the organization. This relationship resulted in extensive access to the organization, and through this time with them, I learned of their seemingly innovative use of the NLRA. It was clear that the strategy presented an innovation, and I therefore designed this study to explore the organization’s discovery and development of this tactic. While initially, I planned an interview-based study, eventually I was invited to participate in the organization’s Wage Theft Working Group, a group formed to address problems with the enforcement of the state’s minimum wage laws, and the workers’ committee meetings that are further described below. Through these meetings, I observed the group’s strategic

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discussions, and I witnessed their efforts with workers and the efforts of the workers themselves. Thus, while a small number of formal interviews with the staff informed my presen- tation of the group’s history in New Mexico and its use of the NLRA, this study is based largely upon participant observation from January 2011 through the spring of 2013. 26. Thanks to Marcela Diaz for helping to reconstruct this brief history of Somos. 27. Janice Fine, Worker Centers, 2. 28. The first wave of worker centers were those organized in the 1970s and 1980s by black worker activists in the South, along with immigrant workers in various parts of the country: New York City, along the border in El Paso, Texas, and San Francisco. Fine, Worker Centers, 9. 29. Ibid., 6. 30. New Mexico Fiscal Policy Project, “Immigrants and the New Mexico Economy; Working for Low Wages.” (Albuquerque, NM: New Mexico Voices for Children, 2008). Retrieved Oct. 24, 2012 from nmvoices.org. 31. Andrew Schrank and Jessica Garrick, Mexican Immigrants and Wage Theft in New Mexico: Report Summary (2013). 32. National Labor Relations Board, “Protected Concerted Activities. http://www.nlrb.gov/ concerted-activity 33. Sandra Baltazar Martinez, “Ex-Employees, Hotel Reach Deal,” The Santa Fe New Mexican (24 September 2008). 34. Frances Kahn Zemans, “Framework for Analysis of Legal Mobilization: A Decision- Making Model, American Bar Foundation Research Journal 7, no. 4 (1982): 1003. 35. Interview, May 21, 2012. 36. James G. March and Johan P. Olsen, “The Uncertainty of the Past: Organizational Learning Under Ambiguity,” European Journal of Political Research 3 (1975): 147-71.

37. Interview, May 17, 2012. 38. Merchants Building and Maintenance NLRB Lexis 392 (2012). 39. Hoffman Plastics Compounds, Inc. v NLRB, 535 U.S. 137 (2002). 40. Mezonos Maven Bakery 357 NLRB no. 47 (2011). 41. SFTC LLC, d/b/a Santa Fe Tortilla Company NLRB Lexis 61 (2013). 42. Noel Canning v. NLRB, 705 F.3d 490, 403 U.S. App. D.C. 350, 2013 U.S. App. Lexis 1659. 43. All Jay LTD, d/b/a Squeaky Clean Carwash, NLRB Lexis 133 (2014). 44. Interview, May 21, 2012. 45. For such a treatment of broad statutory construction, see Nicholas Pedriana and Robin Stryker, “The Strength of a Weak Agency: Enforcement of Title VII of the 1964 Civil Rights Act and the Expansion of State Capacity, 1965-1971,” American Journal of Sociology 110, no. 3 (2004): 709-60. 46. Clyde Summers, “Unions Without Majority—A Black Hole?” Chicago-Kent Law Review 66 (1990): 531-48. 47. Charles J. Morris, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace (Ithaca, NY: Cornell University Press, 2005), 5. For example, Morris shows that 85 percent of the Steelworkers’ original contracts were for “members only” units. Most of the time, these minority unions served as stepping stones for a union to achieve majority status, at which point the earlier agreements were followed by an exclusive-representation contract. Yet, it was still accepted that in the absence of a majority, the rights of the minority group would be recognized. 48. Morris, The Blue Eagle at Work, 2005. 49. Gregory Jackson, “Contested Boundaries: Ambiguity and Creativity in German Codetermination,” in W. Streeck and K. Thelen, eds., Beyond Continuity: Institutional Change in Advanced Political Economies (London: Oxford University Press, 2004), 245.

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50. Nor are legal scholars alone in identifying alternatives to contract unionism. See Michael J. Piore and Sean Safford, “Changing Regimes of Workplace Governance, Shifting Axes of Workplace Mobilization and the Challenge to Industrial Relations Theory,” Industrial Relations 45, no. 3(2006): 299-325. Alan Hyde, “Employee Caucuses: A Key Institution in the Emergent System of Employment Law,” Chicago-Kent Law Review 69 (1993): 149-193. Both identify the growing importance of worker collectivities that they refer to respectively, as “identity groups” and “employee caucuses.” While these collectivities boast many features of traditional unions, they are much more spontaneous, issue-driven, and flexible, much like the immigrant-led committees proliferating in Santa Fe. 51. Lawrence Hurley, “Public Justice Center Files Complaint against Furniture Warehouse for Labor Law Violations,” The Daily Record (25 October 2002). 52. Juan Castillo, “Through Suit, Immigrants Get Unpaid Wages,” Austin American-Statesman (13 April 2008). 53. Josh Eidelson, “Guest Workers as Bellwether,” Dissent Magazine (Spring 2013).http:// www.dissentmagazine.org/article/guest-workers-as-bellwether; And, Josh Eidelson, “The Great Walmart Walkout,” The Nation (12 December 2012). http://www.thenation.com/ article/171868/great-walmart-walkout#axzz2Xw30ueP0 54. Josh Eidelson, “Labor Board Alleges Repeated Retaliation at Walmart’s Top US Warehouse, The Nation (20 March 2013).http://www.thenation.com/blog/173442/ labor-board-alleges-repeated-retaliation-walmarts-top-us-warehouse# 55. National Labor Relations Board. “Protected Concerted Activities.” http://www.nlrb.gov/ concerted-activity 56. US Chamber of Commerce, The Blue Eagle Has Landed, 40. See also, Amanda Becker, “U.S. Chamber says Non-union Groups Could Reshape Labor Relations,” Reuters (16 April 2014). 57. Richard B. Freeman and Joel Rogers, “Open Source Unionism: Beyond Collective Bargaining,” WorkingUSA 5, no. 4 (2002): 8-40. Also see Richard B. Freeman, “What if Anything, Can Labor Do to Rejuvenate Itself and Improve Worker Well-being in an Era of Inequality and Crisis-driven Austerity? Perspektiven der Wirtschaftspolitik 14, no. 1-2 (2013): 41-56. 58. See Janice Fine, “A Match Made in Heaven?: Mismatches and Misunderstandings between Worker Centres and Unions,” British Journal of Industrial Relations 45, no: 2 (2007): 335- 60. See also, J. Fine, “New Forms to Settle Old Scores,” 604, in which the author notes that one contribution of worker centers has been to win victories for workers exempted from the NLRA’s protection, such as domestic workers. 59. Cobble, “Betting on New Forms of Worker Organization,” 18. 60. Schneiberg, “What’s on the Path?” 52. 61. William E. Forbath, Law and the Shaping of the American Labor Movement (Boston: Harvard University Press, 2009), 63. 62. As described in Fine, “New Forms to Settle Old Scores,” 614.

Author Biography Jessica Garrick ([email protected]) is a PhD student in the Department of Sociology at the University of Michigan. She is broadly interested in political sociology, organizations, and the role of social movements in creating and shaping institutional change. In this context, she is studying the labor movement, alternative forms of labor organizing, and the immigrant rights movement.

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