Solidarity for Later
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Solidarity for Later

December 2013

Sitting in a car stuck in traffic at the Bay Bridge maze during the October BART strike, the word solidarity did not come to mind. Despite an earlier walkout, a 60-day cooling off period, and federal mediation, the unions shut down the system a second time - stranding hundreds of thousands of commuters. Days later management capitulated when an operator trainee accidentally killed two trackside maintenance workers. If this had been the final episode of Seinfeld, both sides would have been tried for "criminal indifference" and convicted.

For all of management's demands for concessions, public transit employees work in rarefied air. Their campaign money assures that local politicians stay on the sidelines. Their leaders bargain with elected officials, not corporate lawyers. Their wages and benefits are paid from tax dollars, not private capital. And their contracts generally protect them from at-will discharge and arbitrary work assignments. It's easy to forget how the other half works.

In the nonunion private sector, wages and conditions are very different. Labor lawyer Thomas Geoghegan took a hard look at his clients 20 years ago in Which Side Are You On? Trying to Be for Labor When It's Flat on Its Back (Farrar, Straus & Giroux, 1991). "Labor gives off now an almost animal sense of weakness," he wrote. "Concessions, de-certs, shutdowns. It's like the Italian army in 1918."

And that was before manufacturing fled the country, before Wall Street became a casino. In 1991, more than 16 percent of the workforce was still organized. Today, the share is around 11 percent - and barely over 6 percent in the private sector. "Once it drops to 10, it might as well keep dropping to zero," Geoghegan lamented.

To Geoghegan, the National Labor Relations Act (NLRA) - repeatedly watered down since 1935 by Congress and the courts to make organizing all but impossible - was part of the problem. He felt trapped in his clients' grievance proceedings and pointless arbitrations. "The idea of a union, of solidarity, is becoming less and less acceptable," he wrote.

Still, trade unions long to recapture the magic. Meeting in Los Angeles last September, the AFL-CIO Convention proclaimed in Resolution 5, "The labor movement cannot be confined within bargain units defined by government agencies or limited to workplaces where a majority of employees votes 'Yes' [for representation]. ... The labor movement consists of all workers who want to take collective action to improve wages, hours and working conditions."

Resolution 5 embraced "alt-labor," a disparate collection of centers focused on low-wage and immigrant workers operating under section 7 of the NLRA. The statute establishes a right to self-organization "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

So long as these entities maintain an amorphous legal status and refrain from bargaining directly with employers, they may engage in activities that might be prohibited as unfair labor practices under the NLRA. It's how Cesar Chavez and the National Farm Workers Organizing Association began in 1962.

Operating mostly from storefronts, alt-labor groups have filed suit for back wages, distributed handbills and picketed, lobbied for minimum wage laws, and exposed workplace abuses in corporate campaigns. For financial support they rely on dues, donations, union subsidies, or grants from churches and foundations. Recent targets range from local restaurants to Wal-Mart - anywhere organized labor can't or won't go. At last count in 2006, the AFL-CIO found more than 140 worker centers in 31 states.

As marginal as these centers may be, they have nonetheless attracted the attention of employers and members of Congress. In September the House Education and the Workforce Committee heard testimony from Stefan Marculewicz, a shareholder at the Washington, D.C., office of Littler Mendelson. Marculewicz argued in a Federalist Society article last year that worker centers are no different from traditional "labor organizations" defined by the NLRA (29 U.S.C. §§ 142(3), 152(5) and the Landrum-Griffin Act of 1959 (29 U.S.C. § 402(i)) - otherwise known as the Labor Management Reporting and Disclosure Act (LMRDA).

By Marculewicz's reckoning, worker centers should be classified as labor organizations if they seek to engage employers to change hours, wages, or working conditions. This would make them subject to LMRDA requirements to have a constitution, by-laws for membership, regular meetings, and provisions for how funds may be spent. Worker centers would have the same fiduciary duties as unions, and they'd have to file financial reports with the Department of Labor (DOL). These conditions, Marculewicz testified at the congressional hearings, serve "to protect worker self-choice, to ensure a balance between labor and management interests, and to ensure the free flow of commerce."

Nonsense, says Eli Naduris-Weissman, a labor lawyer at Rothner Segall & Greenstone in Pasadena. "The reality is that worker centers are small, community-based, shoe-string operations that function almost like charities," he says. "Most commonly, they deal with wage theft, worker safety issues, and immigrant rights. So long as there is no intent to seek union recognition, this is protected activity under Section 7."

Naduris-Weissman has published a tactical guide to help worker centers steer clear of labor organization status. He warns, for instance, against setting up bilateral mechanisms for "dealing with" employers, or establishing "formal negotiations" with them - or even targeting a single company in a code-of-conduct campaign, rather than an entire industry.

Yet it's Marculewicz's reading of labor law that's "on the money," according to William B. Gould IV, professor emeritus of labor law at Stanford Law School and former chairman of the NLRB. Gould emphasizes that the NLRA was intended to promote union organizing - not to prevent groups of workers from taking concerted action. He also says the reporting requirements for worker centers would be burdensome. "But pushed to the logical conclusion of the act," he says, "any time you pursue a company for wages or conditions, you would be a labor organization."

Reps. John Kline (R-Minnesota) and Phil Roe (R-Tennessee) repeatedly referenced Marculewicz's article in July when they wrote to Secretary of Labor Thomas E. Perez requesting a determination of the filing requirements for worker centers. Their letter referenced six worker centers that Marculewicz had scrutinized: the Korean Immigrant Worker Advocates, OUR Walmart, the Retail Action Project, the Coalition of Immokalee Workers, Fast Food Forward, and the Restaurant Opportunities Center (ROC).

A month later the DOL's Office of Labor-Management Standards responded that it routinely applies a statutory test to determine an entity's status and considers the facts on a case-by-case basis. The OLMS stated it had twice concluded, in 2004 and again in 2008, that "ROC is not a labor organization under the LMRDA." The standards office also rebuffed a complaint filed this year by Gibson, Dunn & Crutcher that OUR Walmart had failed to fulfill its financial reporting requirements.

Ultimately, however, dodging labor organization status is a strategy that keeps worker centers on the periphery. And that may be just what management lawyers want. "Littler needs enemies," Gould says. "Part of their pitch to employers is that people who support low-wage workers will begin to attack shareholders and demand they support better wages and conditions. The pitch is, 'You need us.' "

Back in 1991, Geoghegan found no easy way to rejuvenate unions. "The union movement in America will always be a scandal," he wrote. "The subversive thing about labor is not the strike, but the idea of solidarity."

Maybe the lesson of the BART strikes is that solidarity begins at home - with, say, a commuters union. This time around the BART workers got much of what they wanted but failed to make common cause with the riders - and that kind of "criminal indifference" could prove costly.

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