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Hey – Here’s How To Beat Retaliation, Even ‘Without’ A Union

Published Monday, February 22, 2016

(SANTA FE, NEW MEXICO) - When you’re working without a Union, it can feel impossible to take on workplace problems, but Somos un Pueblo Unido, a New Mexico Worker Center, is honing a process to help even tiny groups of Workers win changes through small collective actions - while staving off retaliation.

Willing Co-Workers form a committee, agree on a plan, and commit to share the risks and Somos helps them tailor their plan to maximize the protection they’ll get from federal law and from community publicity.

Carlos Campos had worked at a Santa Fe restaurant for seven years when he formed a committee with two Co-Workers.  The others in their workplace of 29 were nervous about joining.  Some were single mothers who couldn’t take the risk.  In the past, when they’d brought up working conditions, the boss would tell them “the door’s wide open and you can leave,” says Campos. “We knew we had to organize ourselves.”  The group’s first public action was to hand their boss a letter, asking the restaurant to start paying for overtime, respect their lunch breaks and stop requiring them to attend a monthly meeting without pay.  The restaurant fired all three, but that wasn’t the end of their organizing – it was just the beginning.

So how did Campos and his Co-Workers get legal protection?  Under Section 7 of the National Labor Relations Act (NLRA), Workers in most industries - whether they’re Union Members or not - have the right to carry out “concerted activities for the purpose of Collective Bargaining or other mutual aid or protection.”

Concerted activity usually means two or more Employees are acting together to try to improve pay and working conditions, but recent decisions have applied the definition even to one worker acting on behalf of a group.  If workers face retaliation, the NLRB can order their employer to “restore what was unlawfully taken away.”

“We think the right to engage in protected concerted activity is one of the ‘best kept secrets’ of the National Labor Relations Act and more important than ever in these difficult economic times,” wrote NLRB Chairman Mark Gaston Pearce, a Buffalo native, in 2012.

With the help of Somos, the Workers did two things right away: they filed a NLRB complaint and they organized a loud demonstration in front of the restaurant - a story that was picked up by local media.  As a result in four months, Campos was back at work and the NLRB had ordered the employer to reinstate him and his Co-Workers, and to reimburse all lost wages.  The restaurant also started providing lunch breaks and ended the unpaid meetings and overtime.

“Fear will ‘always be there’ and ‘employers take advantage of this,’” says Campos. “But we have rights and we deserve respect.”

This group faced the worst retaliation a boss can dish out, but more often Somos is finding that employers, recognizing their legal position, don’t retaliate at all.  Testing the waters with action can be a swift way to boost Workers’ confidence and get results on the job.

Somos un Pueblo Unido - which is celebrating its 20th anniversary and has an impressive track record of legislative successes, didn’t start out with a focus on workplace organizing.  Through community mobilizing and lobbying it won a Living Wage in Sante Fe, stronger Wage Theft Protections and a state law granting licenses to Undocumented Workers. 

But despite winning new rights on paper, Somos members kept seeing them violated in practice. 

“We had ‘amazing’ members who were ‘incredibly skilled’ at creating strategies, talking to media and doing policy work, but at the end of the day were still ‘incredibly vulnerable’ in the workplace,” says Executive Director Marcela Diaz. “That contradiction was ‘too much to bear’ for our members.”

In 2008, when 14 women were fired at a Hilton Hotel - after demanding a meeting with their manager about harsh chemicals and the excessive number of rooms they were expected to clean - Somos helped them file complaints with the NLRB, the Occupational Safety and Health Administration, (OSHA) and the Equal Employment Opportunity Commission (EEOC).

Somos had supported many Workers to file individual OSHA and Wage Complaints in the past.

“We never saw a strong effort to get folks reinstated,” Diaz said. “Legally people ‘are protected’ against retaliation, but practically they are ‘not protected.’”

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