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March 08, 2005

Wal-Mart: Response to Prof. Wilson

A belated reply to Phillip Wilson, a conservative at the blog Laboring at the Institute. Responding to my post on how Wal-Mart's campaign against the Colorado union effort is symbolic of the general state of labor law in the US, given Wal-Mart's threats to replace anyone on strike and refuse to bargain, Prof. Wilson complains:

I think Nathan's view of the law of organizing campaigns is what he wishes it would be, not what it is. Telling employees that they could be replaced during a strike is not a threat; it is a legal fact.
He's correct on the state of law in regard to the ability of employers to fire strikers, one of the things that makes the US an outlaw by many human rights organizations.

The ILO Committee on Freedom of Association commented on US labor law that:

The right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests. The Committee considers that this basic right is not really guaranteed when a worker who exercises it legally runs the risk of seeing his or her job taken up permanently by another worker, just as legally.
(See Unfair Advantage by Human Rights Watch for the reference). But I agree with Prof. Wilson that this farce is the state of the law in the United States, one reason it's often silly to talk about US workers being less inclined to join unions than those in other countries, when US workers face a much more hostile legal regime.

But Prof. Wilson may be reacting to my statement that Wal-Mart intimidated workers in Colorado by threatening to "continue to violate labor law." I was thinking not of the threat to replace workers during a strike but the statement by one of the workers, who initially favored the union, but who described the message from Wal-Mart that the company would "never agree to a contract, out of pure stubbornness." A threat to refuse to bargain in good faith if the union was voted in is a clear violation of federal law. We'll see if Wal-Mart was smart enough to phrase its words in a way that allow the Bush NLRB to pretend that's not what Wal-Mart threatened, but it's clear that was the illegal message conveyed to the workers themselves, that voting for the union was futile, so why bother with the inevitable intimidation that would follow?

It's also just a bit bizarre that Prof. Wilson argues, in another post, that my wish that "Wal-Mart offered better wages and benefits to workers, is just not shared by that many people, including lots of Wal-Mart workers." The idea that Wal-Mart workers don't want better wages and benefits is not very credible. Everyone wants higher wages and health care for their kids. Whether they feel aggrieved enough to form a union or strike or take other action can be disputed, but given the extreme number of collective action lawsuits against Wal-Mart over its pay policies, arguing that Wal-Mart workers want their low pay hurts Prof. Wilson's credibility to argue his broader points.

It's an odd thing that Prof. Wilson argues that mandating higher wages for Wal-Mart workers shows that progressive ideas are "unpopular" since progressives prefer "to legislate their view of the world, hoping everyone else follows along," odd since it's precisely because of the popularity of regulating Wal-Mart in any community that such legislation could be passed. Right now, people want the convenience of Wal-Mart and they want higher wages for its workers; mandating a living wage for large retail workers is a way for the community to get both its goals.

This might not work if only one community passes such legislation, since Wal-Mart may choose to boycott the first few communities that do so, but if many communities and state governments pass such legislation, Wal-Mart can't boycott all of them. There's nothing magic about Wal-Mart; is is a strategic actor that will resist only as long as it's profitable to to evade such regulations, then it will concede and open its stores with higher wages and benefits for its workers.

Posted by Nathan at March 8, 2005 01:36 PM