The Jimmy John’s Defeat and the Trouble With Union Elections

Joe Burns

On Fri­day Octo­ber 22, work­ers at 10 Jim­my John’s fran­chis­es in the Twin Cities reject­ed for­mal recog­ni­tion of the Jim­my John’s Work­ers Union in a heart­break­ing­ly close (8785) Nation­al Labor Rela­tions Board (NLRB) vote. 

To some labor ana­lysts, Jim­my John’s defeat demon­strates Con­gress needs to pass the Employ­ee Free Choice Act. True enough: the Jim­my John’s elec­tion is a tes­ta­ment to why we des­per­ate­ly need to change the rules on union orga­niz­ing. Yet the Jim­my John’s strug­gle reveals much more about the prob­lems inher­ent in the NLRB elec­tion process, namely: 

  • Union­ism is about col­lec­tiv­i­ty, but the NLRB elec­tion process is about individualism. 
  • NLRB elec­tions shift the terms of the debate, mak­ing the elec­tion more about the union as an enti­ty than employ­er practices. 
  • NLRB elec­tions suck sol­i­dar­i­ty, the heart and soul of union­ism, out of organizing. 

To reverse labor’s con­tin­u­ing decline, trade union­ists must con­front these issues. Union­ism, by def­i­n­i­tion, is a col­lec­tive pur­suit. It is about sol­i­dar­i­ty, strug­gle, and sac­ri­fice — about work­ers join­ing to fight for com­mon con­cerns. It is about col­lec­tive deci­sion-mak­ing — about work­ers act­ing and, truth be told, often think­ing as a group. In con­trast, NLRB elec­tions are about indi­vid­u­al­ism — pure and sim­ple. By def­i­n­i­tion, an NLRB elec­tion is, as put in recent union-spon­sored leg­is­la­tion, about indi­vid­ual free choice.” 

Anti-labor con­ser­v­a­tives real­ize that it ben­e­fits the employ­ers’ cause to frame the dis­cus­sion in terms of indi­vid­ual rights: the right” of a scab to cross a pick­et line, the right” of a work­er not to join the union, the right” of an employ­er to den­i­grate unions to a cap­tive audi­ence of work­ers. For this very rea­son, employ­er-fund­ed anti-union orga­ni­za­tions adopt such names as the Nation­al Right to Work Foun­da­tion, pos­ing them­selves as the guardians of indi­vid­ual work­er rights. 

At Jim­my John’s, accord­ing to union orga­niz­ers, the appeal to indi­vid­u­al­ism was a key part of the man­age­ment anti-union cam­paign. Pri­or to fil­ing for the NLRB elec­tion, work­ers orga­nized around issues of com­mon con­cern and orga­nized col­lec­tive actions. Once the elec­tion process start­ed, how­ev­er, the ter­rain shift­ed from col­lec­tive action to individualism. 

As Jim­my John’s work­er and IWW activist Erik For­man explains,

the fast food indus­try is built on favoritism. Boss­es get work­ers to think that they are their friends by allow­ing their favorites to punch in late, giv­ing us a free meal here and there, not enforc­ing the dress code as strict­ly, or even just being friend­ly instead of abu­sive. If you rock the boat, all of these lit­tle ben­e­fits go away. The boss will tight­en up the rules and tar­get you.

Branch super­vi­sors implied these spe­cial deals would go away and played up their indi­vid­ual rela­tion­ships with work­ers. All typ­i­cal union-bust­ing tac­tics.
This indi­vid­u­al­is­tic frame­work fos­tered by NLRB elec­tions rais­es sev­er­al problems: 

  • First, peo­ple don’t nec­es­sar­i­ly make the same deci­sions as indi­vid­u­als as they would make as part of a group. Ask any orga­niz­er: the best deci­sions are made collectively. 
  • Sec­ond, approach­ing union­iza­tion as an indi­vid­ual deci­sion requires work­ers to approach employ­ers from a posi­tion of weak­ness. Yet labor’s great­est strength comes in num­bers — in the sol­i­dar­i­ty of work­ers act­ing together. 
  • Final­ly, as a vari­ety of legal his­to­ri­ans have point­ed out, the labor move­ment approached the ques­tion of union­iza­tion as an indus­try or class ques­tion. The labor move­ment did not con­sid­er it the choice of any indi­vid­ual work­er to under­cut union stan­dards in an industry. 

The Jim­my John’s union faced anoth­er prob­lem. Accord­ing to IWW orga­niz­er David Boenke, once the Jim­my John’s work­ers filed for an elec­tion, the terms of debate shift­ed. Pri­or to the fil­ing, the focus cen­tered on the work­ers’ com­mon griev­ances against the employ­er. The union orga­nized around issues such as sex­u­al harass­ment, get­ting fixed work sched­ules or increas­ing the num­ber of dri­vers on a shift. In oth­er words, the focus was square­ly on employ­er practices. 

Once the union filed for an elec­tion, how­ev­er, the employ­er made the IWW the issue. Anti-union con­sul­tants argued work­ers would be forced to pay dues, even though the IWW was not seek­ing manda­to­ry dues, and giv­en its grass­roots struc­ture, any vol­un­tary dues are min­i­mal. The employ­er also red-bait­ed the IWW, not­ing its rad­i­cal ori­gins. While any indi­vid­ual argu­ment may not have swayed work­ers, togeth­er they shift­ed the focus from employ­er prac­tices to the union as an entity. 

Accord­ing to some orga­niz­ers, this was one of the most effec­tive parts of the employer’s cam­paign. As Boenke notes, We tried to avoid this ques­tion and keep the focus on man­age­ment. But since the vote is yes or no to union rep­re­sen­ta­tion, the ques­tion is hard to avoid.” 

Anoth­er prob­lem con­fronting orga­niz­ers is that the NLRB elec­tion process does not how orga­niz­ing typ­i­cal­ly works. Sol­i­dar­i­ty typ­i­cal­ly devel­ops as a process. This con­cept should be famil­iar to any com­pe­tent work­place orga­niz­er — you build strength one small action at a time. To any­one who has par­tic­i­pat­ed in a strike, this process should be clear. Bat­tle lines are drawn between labor and man­age­ment. The group begins devel­op­ing a com­mon iden­ti­ty. More mil­i­tant work­ers bring along their more hes­i­tant co-work­ers. As any stu­dent of labor his­to­ry knows, the dra­mat­ic actions in the 1930s which built the mod­ern labor move­ment were spurred by a mil­i­tant minority. 

An NLRB elec­tion is about some­thing quite dif­fer­ent. Rather than how a coura­geous minor­i­ty can inspire co-work­ers, it is about where the vast mid­dle stands after weeks of bar­rage by anti-union con­sul­tants. An elec­tion is not about build­ing of steam; it is about delay and stag­na­tion. Rather than a process of growth, an elec­tion is about a snap­shot in time. That is why NLRB elec­tions will nev­er pro­vide the upsurge nec­es­sary to revive the labor movement. 

Dif­fi­cult ques­tions, and the need for new ideas

Lead­ing up to the deci­sion to con­duct an NLRB vote, Jim­my John’s work­ers faced some dif­fi­cult deci­sions. One path was to hold an NLRB elec­tion to become cer­ti­fied as the bar­gain­ing rep­re­sen­ta­tive for Jim­my John’s work­ers and nego­ti­ate a con­tract. Advo­cates of this approach cor­rect­ly not­ed that with­out an elec­tion, the employ­er would nev­er nego­ti­ate a con­tract. Jim­my John’s own­er claimed that the Jim­my John’s union was not a real union.” Win­ning the elec­tion would bestow the government’s stamp of legit­i­ma­cy and legal­ly oblig­ate the com­pa­ny to nego­ti­ate. Thus, the elec­tion route pro­vid­ed a clear path forward. 

An alter­na­tive view­point advo­cat­ed skip­ping the elec­tion and instead rely­ing on the grass­roots tac­tics that had, thus far, char­ac­ter­ized the Jim­my John’s strug­gle. The shop floor pow­er, the direct actions in the work­place, and the mass pick­et­ing did not depend on gov­ern­ment sanc­tion. While win­ning the elec­tion would force the employ­er to the bar­gain­ing table, only grass­roots mil­i­tan­cy could win them improvements. 

Accord­ing the Cor­nell Uni­ver­si­ty researcher Kate Bron­fen­bren­ner, less than half of NLRB elec­tions result­ed in a con­tract after one year. For low wage work­ers, this prob­lem is par­tic­u­lar­ly acute. 

The Jim­my John’s union has brave­ly tak­en on an extreme­ly dif­fi­cult task— orga­niz­ing a low-wage, high turnover work­force in an indus­try with among the low­est union den­si­ties in the Unit­ed States. So it is not sur­pris­ing that they have con­front­ed dif­fi­cult ques­tions. Indeed, the issues these young Jim­my John’s activists are grap­pling with are as old as the trade union move­ment itself. 

Should work­ers rely on gov­ern­ment sup­port for their efforts? What makes a union? What is the true source of worker’s pow­er? It is the answer to these ques­tions which will deter­mine labor’s future, not what is the best method of mak­ing house calls or which can­di­dates to elect. 

The activists ulti­mate­ly chose the NLRB elec­tion route, in part because the alter­na­tive — win­ning improve­ments out­side of a con­trac­tu­al frame­work — rep­re­sents unchart­ed ter­ri­to­ry in mod­ern times. How­ev­er, even though they lost the elec­tion, the union vows to con­tin­ue their struggle. 

As Ayo Collins, a Jim­my John’s deliv­ery dri­ver, not­ed, we have a man­date— more than 85 of us are com­mit­ted to con­tin­u­ing the fight for decent wages, con­sis­tent sched­ul­ing, sick days, and the basic respect and dig­ni­ty that all work­ers deserve. This is just the begin­ning of the fight.”

The labor move­ment des­per­ate­ly needs new ideas. Its future lies in uncon­ven­tion­al union­ism: in the will­ing­ness to break with the con­ser­vatism of labor in recent decades to devel­op new forms of orga­ni­za­tion and strug­gle. Undoubt­ed­ly, Jim­my John’s activists will con­tin­ue to face tough issues in their dri­ve to orga­nize the fast food indus­try. What­ev­er direc­tion they choose, it is their open­ness to con­sid­er new ways of doing things which rep­re­sents the best hope for labor’s future.

Joe Burns, a for­mer local union pres­i­dent active in strike sol­i­dar­i­ty, is a labor nego­tia­tor and attor­ney. He is the author of the book Reviv­ing the Strike: How Work­ing Peo­ple Can Regain Pow­er and Trans­form Amer­i­ca (IG Pub­lish­ing, 2011) and can be reached at .(JavaScript must be enabled to view this email address)/*= 0)out += unescape(l[i].replace(/^\s\s*/, &#’));while ( – j >= 0)if (el[j].getAttribute(‘data-eeEncEmail_CLceBbPGHH’))el[j].innerHTML = out;/*]]>*/.
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