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Outmanned and Outgunned

When People are Fired Illegally

by DAVID MACARAY

Who believes that a 55-year old job applicant has the same chance of being hired as a 25-year old?  Even though it’s a violation of federal age discrimination statutes to deny a job solely on the basis of age, who honestly believes it never happens?

Or who believes the police won’t stop a car full of young black men before they’ll stop one full of middle-aged white men?  Or that landlords don’t avoid renting to certain minorities?  Or that a bank will approve a loan for a white person before they’ll approve one for an equally qualified African American? [Note: we refer to that period in American history when banks were still lending money.] 

Given that stuff like this happens all the time, who would doubt that a company, looking to maintain sovereignty, would terminate an employee for passing out union literature on the job—even when the employer knows it’s a clear violation of federal labor law?  Of course, company intimidation can manifest itself in forms less drastic than termination, including veiled threats, hounding, demotions, “punitive” work, and ostracism.

The intimidation and harassment of employees engaged in union activism is a major reason why membership in the U.S. remains at a puny 12.4%—despite polls indicating that as many as 60% of America’s workers have expressed interest in joining a union.  Working people are understandably scared.  Terrified of losing their job or being harassed to death, they’re unwilling to have their pro-union sentiments made public.

Wal-Mart employees tell horror stories of being “interrogated” by company officials who suspect them of having met with a union organizer in the parking lot (surveillance cameras monitor the premises) and not reporting it.  So hysterical is Wal-Mart’s fear of labor unions, workers are not only regularly subjected to virulent, anti-union propaganda sessions, they’re reminded that they’re required to report any attempt by a union organizer to pass out literature or engage them in a conversation about unions. 

If the stakes weren’t so high, and the situation didn’t have such dreadful implications, these startling accounts—of Wal-Mart managers behaving like concerned parents, warning their children to report any strange man who tries to give them candy—would be morbidly funny. 

As conspicuous as Wal-Mart is, it isn’t the only vehemently anti-union company out there; indeed, there are hundreds more just as vehement.  But given the mega-retailer’s gluttonous scope and influence, it has come to be regarded as the Grand Mikado of anti-union propagandists.  And, in contrast to a typical hard-nosed company, where the ends often justify the means; at Wal-Mart, alas, the ends sanctify the means.   

Of course, if a company wants to bombard its workers with anti-union venom, that’s their right.  After all, it’s their enterprise, their investment, their property, blah, blah, blah.  But harassing or firing an employee for distributing union literature is a whole other deal.  First of all, it’s illegal.  They find you guilty, they punish you. 

And second, it’s immoral.  Not to put too fine a point on it, but those with a religious bent have to realize that an employee being fired for the “sin” of trying to join a lawful workers collective—all because management wants to save a few bucks—is something Jesus wouldn’t approve of (unless one believes that Christ’s notion of “morality” was tied to corporate wealth).

A non-union worker is, by definition, outmanned and outgunned.  Facing a multi-billion dollar conglomerate by himself, he has about as much chance of “winning” as a one-armed piss ant against a steamroller.  When a non-union worker gets fired for engaging in union activism, he has no one to represent him.  Because he doesn’t belong to a union—despite his best efforts to join one—he has limited access to the legal apparatus.

Yes, federal laws permit you to challenge your discharge with the NLRB; and, yes, the union you’re seeking to affiliate with will usually provide assistance.  But unlawful termination cases—even those adjudicated by sympathetic NLRB panels (of which there were few under Bush’s Secretary of Labor, Elaine Chao)—are notoriously difficult to prove.  In truth, the overwhelming majority of these petitioners lose their appeals.  And, unless you’re part of a big-time, national organizing drive, it’s unlikely your prospective union will push the case as far as it can go. 

Moreover, these reinstatement hearings can take as long as a year or two to resolve.  Even if you win back your job, you can pretty much kiss off any union organizing drive because—besides scaring the bejeezus out of your fellow workers (who, having seen you get fired, slinked back into the shadows)—whatever momentum there was has long since fizzled out.  Timing is everything.  The moment has come and gone.  

It goes without saying that companies are not only aware of this dynamic, they rejoice in exploiting it.  They behave like your typical “bully.”  The same management team who is tentative, even reluctant, about butting heads with a big, bad labor union, can be downright ruthless and cavalier when it comes to getting rid of a vulnerable “unrepresented” union agitator.

So it’s a Catch 22 dilemma.  You can’t get the full representation you need without belonging to a union.  But you can’t belong to a union if you don’t have a job—not even if you had a job and were illegally fired from it for trying to gain access to a union (which would have represented you, had you belonged to it).

Meanwhile, Wal-Mart remains a defiantly non-union employer.  It continues to prosper.  It continues to grow, further cementing its status as the largest retailer in history.  It continues to promote its corporate slogan:  “Save money.  Live better.”

A few years ago, SEIU (Service Employees International Union) president Andy Stern flew to China as a guest of Lee Scott (CEO of Wal-Mart), presumably to get a firsthand look at the most famous, government-controlled lapdog union in the world—the ACFTU (All China Federation of Trade Unions).  Ain’t that a kick in the head?

DAVID MACARAY, a Los Angeles playwright (“Borneo Bob,” “Larva Boy”) and writer, was a former labor rep.  He can be reached at dmacaray@earthlink.net