Immigrant Workers Show New Uses for an Old Labor Law

By Jessica Garrick

Immigrant workers have long been crucial to the United States labor movement. Their contributions were particularly clear during the Progressive Era when immigrants like Sidney Hillman, Samuel Gompers and Philip Murray laid the early foundation for the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO), and the New Deal Era when C. Wright Mills described them as the new “men of power.” In contemporary times, some scholars have seen immigrants as crucial to union organizing efforts. For instance, Ruth Milkman argues that low-wage Latino and Latina immigrants were on the front lines of union innovation in Los Angeles in the 1990s, and others have used survey data to show that immigrants may join unions at higher rates than their native counterparts (but also see Catron).

The literature on immigrant organizing is important, for it speaks to the question of social stratification as well as the prospects for the revitalization of the labor movement. However, the focus on union density obscures another potential contribution: Immigrant workers may be responsible for transforming a dated industrial relations system by developing new strategies that are a better fit for the contemporary labor movement. With the help of worker centers, for example, some immigrants in non-unionized workplaces have been taking advantage of the “concerted activities clause” of Section 7 of the National Labor Relations Act (NLRA or “the Act”). They have done so to defend themselves against abuse and exploitation on the job in the absence of the broader organizing campaigns, let alone the collective bargaining agreements that are typically viewed as the NLRA’s primary purpose.

In my research, I documented the evolving strategy of Somos un Pueblo Unido (or “Somos”), an immigrant resource center in Santa Fe, New Mexico. Somos had long worked to further the rights of immigrants, beginning with a successful state level campaign to allow undocumented immigrants access to driver’s licenses in 2002. In 2008, the organization was approached by several immigrant workers who had worked for the Santa Fe Hilton Hotel. They had walked off the job after management refused to meet with them to address their working conditions, and were subsequently fired. Somos and the workers staged protests, held press releases and gained the sympathy of the broader community. However, they were uncertain of whether a legal remedy was available until a law student from the University of New Mexico reviewed the case, and noted that the women had inadvertently gone on strike. Because they had clocked out as a group, and had done so to voice their dissatisfaction with their working conditions, they were protected by Section 7 of the NLRA. This provision provides for the right of workers to act concertedly not only for the purposes of collective bargaining, but also for their own “mutual aid or protection.” When management fired them, it was an unfair labor practice under the law, and the women were eligible for the standard remedies of reinstatement and backwages—or the wages they would have earned had they not been illegally fired. In this case, the workers were unwilling to return to their jobs, and they accepted a settlement in lieu of reinstatement.

The experiences of the Hilton workers transformed Somos. The staff said that they learned what it actually meant to be able to organize: union or no union, workers have the right to act together to address their working conditions. They have since turned the use of the NLRA into a proactive strategy. Somos helps workers form small workplace-based committees through which workers voice their demands. Sometimes this is enough for the employer to make changes. Should they retaliate, however, Somos is well versed in helping their members through the NLRA process, and has done so with workers from at least 12 different companies. The organization and its tactics have received attention from national media outlets, and the National Labor Relations Board itself.

Nor is Somos alone in the strategy. Several other organizations have demonstrated the potential of the same strategy, including the Equal Justice Center in Austin, Texas which went to bat for immigrant workers who were fired after protesting their employer’s refusal to pay them their due overtime wages. The Western North Carolina Worker Center provides another example. This organization has helped poultry workers at Case Farms protect their rights in the wake of a failed unionizing drive by the Laborer’s International. While the strategy is not limited to immigrant workers and is used by US-born workers too, immigrants seem to be at the forefront of turning the provision into a more proactive strategy for organizing. This may be the case because of immigrants’ receptivity to organizing efforts, as documented by Milkman and others, and their heightened vulnerability to employer abuse.

What are the implications of the efforts of immigrant workers and their organizations to repurpose the NLRA? At the very least, it suggests that the most vulnerable workers have a proven means of redress that few knew was available. And while it is unlikely that these cases could ever reach a scale commensurate to that once enjoyed by unions, it is possible that they could form a crucial component of broader campaigns. Indeed, in the eyes of Somos, these shop-level efforts are seen as pieces of larger campaigns that include raising wages, helping to implement stricter enforcement of existing laws, and ameliorating the difficulties faced by immigrants and low wage workers more generally. Moreover, the efforts of immigrants and their organizations serve as a powerful reminder that, in the words of historian Dorothy Sue Cobble, “the labor movement has never been synonymous with collective bargaining,” or union membership per se, and that workers have historically organized with whatever tools are available to them. Section 7 offers one such tool, and by exploiting it to the fullest, immigrants and their organizations are opening up new possibilities for the labor movement.

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Filed under Essay Dialogues, Immigrants and Refugees

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