Politics & Society http://pas.sagepub.com/ 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 The online version of this article can be found at: http://pas.sagepub.com/content/42/4/489 Published by: http://www.sagepublications.com Additional services and information for Politics & Society can be found at: Email Alerts: http://pas.sagepub.com/cgi/alerts Subscriptions: http://pas.sagepub.com/subscriptions Reprints: http://www.sagepub.com/journalsReprints.nav Permissions: http://www.sagepub.com/journalsPermissions.nav >> Version of Record - Oct 24, 2014 What is This? Downloaded from pas.sagepub.com at SARAH LAWRENCE COLG LIBRARY on November 12, 2014 PASXXX10.1177/0032329214547352Politics & SocietyGarrick 547352research-article2014 Article 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] Downloaded from pas.sagepub.com at SARAH LAWRENCE COLG LIBRARY on November 12, 2014 490 Politics & Society 42(4) 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 vio- lations 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 mobi- lization 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 “con- certed 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 ille- gal 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, there- fore, 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 Downloaded from pas.sagepub.com at SARAH LAWRENCE COLG LIBRARY on November 12, 2014 Garrick 491 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 trans- formative 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 immi- grants 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 encourag- ing 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 organi- zation” 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 bargain- ing, 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 eligi- ble—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 sup- porters 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 bar- gaining 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