Josh Eidelson covers labor as a blogger for The Nation and a contributing writer at Salon. He worked as a union organizer for five years.
Mayor Vincent Gray (D) vetoed the District’s landmark retail “living wage” bill Thursday. Before Gray’s decision, this summer has seen a stepped-up debate over whether Wal-Mart’s low-wage business model is good for the District and the country. But amid the arguments over whether the D.C. Council should mandate that Wal-Mart and certain other companies pay a living wage, there’s been too little talk about how the company has managed to keep its pay so low: by aggressively — and allegedly illegally — suppressing employees’ efforts to change that business model themselves.
Last year, Lisa Lopez was one of 400 nonunion Wal-Mart workers to join a high-profile Black Friday walkout. In June, she was one of around 100 strikers who traveled to the retail giant’s Arkansas headquarters to take part in a week of protests. Now she’s one of 20 strikersto have been fired within weeks by Wal-Mart. Another 50-plus have been otherwise disciplined since returning to work.
“I think they don’t want me to actually let people know what’s really going on at Wal-Mart as an associate,” Lopez told me in an interview for the Nation following her June 21 firing. “So they’d rather get rid of me.”
Firings like Lopez’s may not come as a shock — Wal-Mart once shut down a store in Canada after workers there won collective bargaining rights, and it eliminated its entire U.S. meat-cutting department after a handful of meat-cutters at one store voted to unionize. But the alleged retaliation defies an eight-decade-old promise from the federal government to most U.S. workers: Banding together to improve your workplace, whether you win or lose, shouldn’t cost you your job. That 1935 law — the National Labor Relations Act – is still on the books. But its ban on retaliation today reads more like a cruel joke than an ironclad commitment. A 2009 study released by the progressive Economic Policy Institute found that pro-union workers are fired — allegedly illegally — in at least a third of unionization election campaigns supervised by the government.
As expected, Wal-Mart denies illegally retaliating against anyone. The company claims that some of the discipline was unrelated to the protests — Lopez ostensibly lost her job for violating a food safety policy by bringing the employee handbook into the deli area where she works. And Wal-Mart says other workers were punished not for protesting per se, but for “a violation of attendance policy.” While disciplining strikers for not coming to work is generally illegal — indeed, not working is literally what makes a strike a strike — a Wal-Mart spokesperson noted that “hit-and-run intermittent work stoppages” can sometimes forfeit that protection. These aren’t the most persuasive defenses: The timing of the discipline makes for a conspicuously convenient coincidence; the distinction between punishing strikers for striking and punishing them for not showing up to work is specious; and, as Wilma Liebman, a former National Labor Relations Board (NLRB) chair, notes, the application of that intermittent strike doctrine to these scattered strikes appears to be a stretch.
Indeed, organizers say the NLRB has found sufficient merit in allegations of Wal-Mart intimidation from 2012 to issue complaints, the equivalent of indictments; those prior cases could be resolved with settlements — probably requiring Walmart to temporarily post notices promising to follow the law — or head to hearings before a judge. But for the fired employees’ 1.3 million U.S. co-workers, the merits of Wal-Mart’s legal case may be beside the point. That’s because the prolonged process and paltry penalties generally available at the National Labor Relations Board, created by Congress to enforce the 1935 law, do little to deter or punish companies that retaliate. Low-wage workers who consider organizing must weigh the risk of losing their livelihoods. But bosses who fire firebrand employees rarely have to fear any penalty worse than the cost of reinstating them with back pay (minus anything they earned in the meantime), after a process that can drag on for years — and that’s only if the pretext (say, a food safety violation) doesn’t hold up. In the meantime, a troublemaking employee is exiled, and her co-workers are often chastened, slowing or stopping any employee uprising afoot. In other words: low risk, high reward.
The specter of rampant retaliation hasn’t hurt only Lisa Lopez. While Wal-Mart directly employs about 1 percent of the U.S. workforce, the Wal-Mart-ization of work is widespread. U.S. workers are creating more wealth than ever, but their bosses are capturing the benefits, even as workers’ jobs become increasingly insecure. Given the opportunities for management manipulation, intimidation and delay, the government-supervised election process for winning collective bargaining rights and a union contract only works when employers choose to cooperate — and they only do that if workers mobilize enough pressure to make them.
In other words, workers’ agency depends on their audacity. That’s as true for efforts such as the one at Wal-Mart, a union-backed campaign that organizers insist isn’t aimed at unionization, as it is for more traditional union efforts. Stifle the activism, and anything goes.
Facing that bleak tableau, some workers and organizers have concluded that the swiftest, strongest way to defend workers engaged in collective action is with even more collective action. Last November, when a Wendy’s store allegedly refused to let a woman who’d gone on strike the day before return to work, activists occupied and then picketed the establishment until management reversed itself. Two months earlier, four fired sub-contracted workers at Wal-Mart’s top U.S. warehouse won their jobs back after their co-workers mounted a multi-week strike.
When Mayor Gray was considering whether to veto the the District’s large retailer living wage bill, Wal-Mart workers last week staged protests in 15 cities; 109 people were arrested in civil disobedience actions in cities across the United States, including Hyattsville. Those actions, which organizers say drew hundreds of Wal-Mart employees and thousands of supporters, followed pressure on Wal-Mart board members, including Yahoo! chief executive Marissa Mayer, a concerned letter to Wal-Mart’s CEO from 16 congressional Democrats and two European pension funds’ announcements that they’ll cease investing in the company. Workers have pledged to mount major strikes this year on Black Friday, the crazed shopping day following Thanksgiving. But two months after this wave of firings started, they’ve drawn limited media attention, Wal-Mart has deterred some workers from organizing and the company’s cozy relationship with the White House appears intact. With the stroke of a veto pen, Mr. Gray dealt another victory to the retail giant.