Refocusing Rights “On the Books”: The State, Social Movement Organizations, and U.S. Labor Law by Jessica Garrick A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy (Sociology) in the University of Michigan 2019 Doctoral Committee: Associate Professor Sandra Levitsky, Chair Professor Kate Andrias Assistant Professor Rachel K. Best Professor Kiyoteru Tsutsui Jessica Garrick [email protected] ORCID iD: 0000-0003-4791-7265 © Jessica Garrick 2019 Acknowledgements This dissertation spans research and writing that took place in two separate PhD programs. Starting the process in one program and ending it in another had its challenges, but it also had advantages. I benefited from instruction, mentoring, and, above all, friendships in both New Mexico and Michigan and consider myself fortunate to have spent time in each place. I would have been especially lost without Katie Hauschildt and Jessica Gillooly. They made Ann Arbor feel like home even during the early years when I just missed New Mexico. I thank my dissertation committee for their intellectual guidance and support. My doctoral chair Sandy Levitsky kept me motivated, and pushed my writing and thinking, and I'm grateful for her ongoing mentoring. Rachel Best was my methodological and study design go-to from the earliest stages of the project, Kate Andrias my source of expertise on all things labor law, and Kiyoteru Tsutsui a source of thoughtful feedback and encouragement. From the first day in his research methods class at UNM, Andrew Schrank has motivated me to be a better sociologist. His standard questions (“How will you know if you're wrong?” and “Would anyone disagree with you?”) still ring in my head as reminders of how to do social science. What I have gained from his instruction, mentoring, overall support and encouragement, and friendship is immeasurable. ii I thank my parents and my brothers for their limitless love, support, and patience. Graduate school is long and full of setbacks, but their encouragement never wavered. Katelyn Parady, my first and best friend, has been my ethical and intellectual touchstone since our days together in Wyoming. Few people have lifelong friendships; even fewer have lifelong friends that inspire them the way Katelyn inspires me. My husband, Andy Hinz, who I met halfway through my time in Michigan, made my last years of graduate school easier (thanks to his eye for copy-editing and programming prowess), but more importantly, much, much happier. Finally, I thank all the workers' advocates and civil servants that took time from their packed schedules to tell me about their experiences and contribute their thoughts. Their generosity made the project possible and I’m grateful to have learned from their work. iii Table of Contents Acknowledgements ..........................................................................................................ii List of Tables ...................................................................................................................v List of Figures ..................................................................................................................vi Abstract ............................................................................................................................vii Chapter 1 Introduction .....................................................................................................1 Chapter 2 The NLRB’s Refocusing: Non-unionized Workers and Section 7 .................30 Chapter 3 Regional Offices and Non-Traditional Outreach ............................................69 Chapter 4 Worker Centers, Organizational Logics, and the NLRA ................................107 Chapter 5 Workers’ Mobilization of the NLRA ..............................................................150 Chapter 6 Conclusion .......................................................................................................180 Appendix ..........................................................................................................................198 Bibliography ....................................................................................................................199 iv List of Tables Table 3-1 Numbers of Regional Offices by Outreach Type ............................................. 82 Table 3-2 Regional Summary Statistics for Select Years by Case Type .......................... 90 Table 3-3 Different Organizing Types and Levels of Proactive Outreach ....................... 92 Table 4-1 Worker Centers’ Funding Levels in Boston and Chicago .............................. 126 Table 4-2 Worker Centers’ Frames and Logics .............................................................. 144 Table 5-1 Descriptive Statistics, States 1995-2010 ........................................................ 167 Table 5-2 Workers’ Reasons for Acting Concertedly (1992-2011) ................................ 168 Table 5-3 Longitudinal Negative Binomial Regression on Count of Section 7 Cases ... 170 v List of Figures Figure 2-1 Declining NLRB Elections and Charges, 2000-2015 ..................................... 40 Figure 5-1 News Coverage of Non-union Cases Over Time .......................................... 153 Figure 5-2 Counts of Potential Non-union Charges Over Time ..................................... 154 vi Abstract This dissertation examines recent efforts to refocus the enforcement of the National Labor Relations Act (NLRA)—the 1935 statute that granted workers the right to organize, strike, and bargain collectively. The National Labor Relations Board (NLRB) has come under immense criticism for its inability to exploit the law to protect workers’ right to unionize in the face of economic changes and increased employer hostility to unions. Yet, in recent years officials in the agency have sought to expand their reach by promoting the NLRA's Section 7, which grants workers the right to “concerted activity” regardless of their union membership. By attempting to reach non-unionized workers who can mobilize the law to protect themselves when they voice demands to their employers, the Board has acknowledged that many workers today labor outside of unions’ reaches and are nevertheless in need of protections for self-organization and voice in the workplace. I explore these developments in the agency, along with the response from worker organizations and workers, and thus speak to the question of whether and how latent resources in existing laws can be deployed to protect disadvantaged groups. Drawing on agency documents and interviews, I find significant variation in the level to which agency officials have sought to reach non-unionized workers, especially at the regional level. Officials are more likely to conduct proactive outreach with groups representing non- unionized workers in parts of the country where they have more information about their needs. That information stems from organizing efforts from diverse organizations. vii Likewise, as more worker organizations—often referred to as “worker centers”—have learned about the relevance of the NLRA, only some of them have gone on to mobilize it. This finding can be traced to organizational identities and logics that make some laws more obvious tools than others. The dissertation thus speak to the opportunities and constraints that exist in laws long “on the books.” While laws may contain latent resources that can benefit disadvantaged groups, their potential is limited by the law's social embeddedness, and in particular, the relationships and identities that shape whether and how information about a statute is received and interpreted by societal and state actors alike. viii Chapter 1 Introduction Of the institutions that defined the New Deal and American prosperity in the 20th century, perhaps none has suffered a decline as drastic as the collective bargaining regime enshrined in the National Labor Relations Act (NLRA or “the Act”). Initially viewed as radical, the 1935 statute that granted workers the right to strike, organize, and bargain collectively is today viewed as an “elegant tombstone” for the dying institution of collective bargaining (Weiler 1983, 1769). While the law in its early years provided the rights and legal framework that paved the way for millions of workers to unionize— covering a third of all private sector workers by the 1940s—the statute was amended in 1947 in ways that critically weakened labor’s power. Ultimately, the law proved too weak to protect workers and unions in response to increased employer opposition beginning in the 1970s. Since this time period, union density has plummeted and today rests in the single digits for private sector workers. In much of these discussions, the agency that implements the NLRA—the National Labor Relations Board (NLRB or “the Board”)—is viewed at worst as a key part of the problem, and at best as a bystander to larger political and economic trends. Either way, the NLRB has been unable to restore the integrity of the Act. Throughout years of conservative administrations, the Board has acted to restrict workers’ freedoms and unions’ maneuverability and access to workers (Corbett 2006; Corbett, Dannin, and Harper 2005; Liebman 2007a). Even during years when the Board issues pro-worker 1 decisions, the agency's efforts to reverse distortions to the Act have often been quickly rebuked by the courts (Brudney 1995). Despite this, however, some of the law’s strengths and the agency’s contemporary efforts