Wither the NLRB?

Walmart StrikeOringinally posted on Libcom, by Chilli Sauce:

Although there can be little doubt that class struggle in on the uptick, the past month has seen two remarkable events.  The first was the UFCW-backed Walmart strikes on Black Friday.  The second was the series of SEIU-backed fast food walkouts in New York City.

What’s immediately evident about these strikes is that they symbolize quite a dramatic shift in the tactics of the American trade union establishment. This is especially noteworthy given that the UFCW is one of the largest unions in the country. Similarly, the massive SEIU led the breakaway of Change to Win from the AFL-CIO. So we’re not talking about independent unions taking it upon themselves to innovate. Nor has it been small unions who may have to operate differently due to lack of resources. The unions who’ve helped organize these strikes are the big boys of big labor.

What went before

For decades, the modus operandi for the American trade unions was to have workers sign cards agreeing that they wanted to have a NLRB-overseen collective bargaining election. Once roughly two-thirds of the workforce was in support, the union would petition for an election.

Worker mobilization was secondary to the election and the idea of a recognition strike was seen as a relic. Little effort was made on getting workers to join as individuals and then encouraging them to organize on the job. Instead, unions focused on gaining political influence. Members were mobilized not to support organizing in non-unionized workplaces, but as fodder in the campaigns of Democratic politicians.

Such a legalistic strategy assumes (1) both the union and the employer will operate in good faith and (2) that the NLRB—and by extension US labor law—is, if not in favor of unions, is at least a neutral arbiter.* Needless to say, such assumptions have seen a dramatic drop in the number of Americans working under a union contract since the 1970s.

So what explains this new found willingness of the trade unions to undertake strikes so at odds with their long-standing strategy?

Two explanations

The simplest explanation would be that trade union leaders have come to see the error of their ways. Academics who track such things have argued for a number of years now that the most successful recent union campaigns have been those which eschewed the NLRB. And, in fact, some unions have had some moderately high profile successes organizing outside the NLRB.

Additionally, a book entitled Reviving the Strike has gained currency across the American labor movement. I haven’t read it, but my understanding is that it advocates such tactics as have apparently burst onto the scene in the past month.

On the other hand, this could be simply the unions exploiting the shop floor anger that has inevitably accompanied the deepening crisis to ensure their continued existence. After decades of decline, the unions need to re-establish themselves.

Both in workplaces and on the streets, the working class has begun to mount a defense in this latest round of the class war. Unsurprisingly, it’s been sporadic and incomplete and full of contradictions, but it’s been there. Movements like Occupy and the mass protests seen in Wisconsin have alerted the trade union bureaucracy that they are no longer anything close to the default institution workers turn to in times of crisis.

Consequently, the business unions have had to give in somewhat to the self-organized spirit of those movements. Workers who have no existing loyalty to the trade unions might not be willing to wait for months and months while employers duck, dive, and delay NLRB elections. That means trade unions, if they are to remain legitimate conduits for channeling worker discontent, must adapt.

For the beleaguered unions, interestingly, wildcat strike waves allow them to establish their legitimacy in the eyes of both capital and labor. For pissed-off workers, the unions come in with their professional organizers, their specialist knowledge, and their financial resources. For employers, the unions offer themselves up as ‘responsible leadership’.

It’s not surprising to hear the reports from the Black Friday strikes that UFCW were very keen to keep pickets orderly and ensure that entrances remained unobstructed. Union officials let the police know in advance when and where protests would be and what sort of activity they’d be permitting on the picket lines.

The message to management in this situation is clear: the union is here to keep this from getting too antagonistic. You’re better off with us than hedging your bets alone against your workforce who, unconstrained, might actually try tactics which effectively disrupt business.

History repeating itself?

There’s a historical comparison to be had in all this. The NLRB came into being in 1935 at a point when self-organization and self-activity amongst the industrial workers who formed the bulk of the American proletariat was increasing dramatically. Six years into the Great Depression, there was one expectation shared by capital, labor, and the government: shop floor anger.

Certain sections of the bourgeoisie, in particular those represented by FDR and his New Deal programs, saw unions as part of the remedy to this. Acting without any institutional restraint, workers could issue unreasonable demands, spread strikes, and potentially challenge the very notion of private property through their actions (whether they realized it or not, it’s worth adding).

Trade unions, on the other hand, are legal bodies. They have named officials and large treasuries. They can be fined and their officials jailed. They can be regulated and brought into corporatist structures to ensure labor peace.

At this point it’s probably worth quickly discussing that anomaly of labor law known as Section 7 of the National Labor Relations Act, the “concerted protected activity” clause. By any reading of the clause, it gives all American workers the right to strike with or without a membership in a union. But it should be understood in the context of the goals of the larger act.

As has been argued by Staughton Lynd, section 7 was directed at the things workers were allowed to do in the process of forming a union. Once the union was formed, their was an expectation that a no-strike clause would be included in the collective bargaining agreement. The recognized union was then expected to accept responsibility for enforcing the contract on both workers and management. For the unions, the trade off for this was they gained government sponsorship via the NLRB and, from capital, gained the dues check-off system that ensured a steady funding stream for their officialdom.

Such an arrangement was supported by that supposed bastion of militancy, the early CIO. In fact, the organization pitched itself to capital on the grounds that “A CIO contract is a guarantee against strikes”.

To put all this another way, the National Labor Relations Act granted unions legal legitimacy in exchange for policing worker unrest.

Playing politics

I should conclude by saying that I don’t think the NLRB is finished. Just the opposite, in fact. The unions would like nothing more than an opportunity to strengthen their legitimacy by having a union-friendly government strengthen the privileges afforded to them by the law. This would most likely come through a strengthening of the NLRB.

Of course, having a more pro-union government shouldn’t be the aim of workers.

The unions mediate the power that we hold as the productive class in society. Governments which give privileges to unions do it as a means to check that raw power and channel it through manageable structures. Instead, we need to resist this inevitable co-optation as much as we need resist to the direct attacks we face at work.

After all, it will only be by exercising our power, unfettered, that the class will come to understand the full extent of the power we hold.


*US Labor law is in favor trade union representation. The National Labor Relations Act which created the NLRB was designed to give trade unions legitimacy under the law.

There is a larger point, however, which is that at high points of class struggle—the 1930s being the classic case—capital turns to the trade unions to ensure workplace conflict stays within certain, legally defined boundaries. The ruling class is rarely open about this (although not always, as I’ve written about here) and at low points of struggle, capital will still take the opportunity to malign unions and push for a retreat of the limited protections won by the working class. This means attacking the NLRB, stacking it in their favor, and breaking unions. But it rarely goes so far as to push the state to abolish trade unions altogether. No doubt, capital (or at least certain sections of it) maintains an institutional memory of the utility of trade unionism as a check on independent and unrestrained working class activity.

EDITED for accuracy and length