The example of two cases that confronted the CFDT with the employees at the National Direction of Renault Factories

Jean-Philippe Tonneau^[1]

The sociology of work, one of the oldest sub-disciplines of sociology, brings together a variety of research both in terms of theory and research objects. However, this research often avoids judicial and legal aspects, even when it analyses domination or resistance at work (Flocco, Mougeot and Ruffier, 2018; Sainsaulieu, 2017). In this respect, the work on corporate restructuring, collective redundancies, or factory closures is exemplary –with the exception of the now old work of Francine Soubiran-Paillet (1988; 1989)–: either they analyse the very moment and the aftermath of a company’s restructuring (Lomba, 2018; Linhart, Rist and Durand, 2002), or they observe restructurings through the prism of management or company decision-making processes (Aubert and Beaujolin-Bellet, 2004), or else, they focus on a singular legal mechanism (Didry, Tessier, 1996). In the end, the law –in particular its place and role in work and its organisation, but also in redundancy disputes, etc.– would be reserved for lawyers alone. However, we know, thanks to the work of Jacques Commaille (2015), that sociologists (must) address the law, its production, its mobilisation, and its actors.

The aim of our contribution is precisely to understand the mobilisation of law and the recourse to a lawyer by works central committees (WCC), works councils (WC), and trade union organisations to contest dismissals. Although the emergence and development of legal-union militancy within trade union confederations is now well documented (Willemez, 2003), the unions’ use of the law ‘from below’ remains barely analysed.

Our study is based on the National Direction of Renault Factories (Régie Nationale des Usines Renault, RNUR), the history of which is well known (Loubet, 2000), and more specifically two ‘cases’: a mass dismissal of striking employees at the end of the 1970s, and a collective dismissal for economic reasons in the second half of the 1980s due to restructuring (cf. box 2 below). For our purpose, we rely on original material: the professional archives of lawyer Tiennot Grumbach^[2] (see Box 1), who only represented the employees, the WCC, the WC and the trade unions. Upon consulting the archives, one thing is clear: recourse to the law and to justice seems futile; everything seems to have been decided in advance. In other words, even though the courts ruled in favour of the WCC, the WC and the trade unions, the redundancies desired by the company’s management did indeed take place. Why, then, do the WCC, the WC and the trade union organisations mobilise the law and justice and resort to a legal professional, particularly a militant lawyer? Does resorting to law and justice betray other issues?

On the basis of these two ‘cases’, we will first look at the various mobilisations of justice and law by the WCC, the WC and the trade unions. Then we will look at the motivations, beyond obtaining a favourable or unfavourable judgement, for resorting to the law and to justice. Finally, we will analyse the reasons for calling on T. Grumbach, the relations that he maintained with his clients, and the strategies chosen.

Box 1: Tiennot Grumbach (1939-2013)

1. Contesting through law: mobilising a repertoire against redundancies

Two cases were selected for this contribution. Although this choice is ultimately arbitrary, it nevertheless follows various criteria. First, we were concerned that the two cases should have taken place in the same company, at different times, and that the files should be complete, i.e., including the procedural documents, the submissions of T. Grumbach and the opposing lawyers, correspondence, etc. These two cases are summarised in the box below.

Box 2: Summary of the two cases between the CFDT and the employees at RNUR

This box reveals that trade unionists are familiar with judicial and legal procedures, and with T. Grumbach. Moreover, at RNUR, it seems that ‘legal action [is] a permanent horizon of discussions between management and employee representatives’ (Didry and Tessier, 1996). Law constitutes the structure of the relations between the trade unionists and the company management. From the outset, they mobilised a legal framework to resolve ‘disputes’ (Sarat, Abel and Felstiner, 1991) and, more generally, to address conflicts at work.

Considered as a mode of action, and more clearly as a weapon to defend a cause, the law has attracted the attention of many researchers in the sociology of collective action in recent years (Israel, 2009). How do trade unionists mobilise it and what is its place in the contesting of the redundancies sought by the RNUR? Trade unionists use law differently from one case to another.

At the end of the 1970s, during the striking employees affair, the unionists multiplied the modes of action. Throughout the conflict, articles in the press, strikes, petitions, pamphlets, and demonstrations proliferated. The unionists also called on local authorities. For example, the CFDT’s Parisian Metallurgic Union asked many councillors to intercede before the Minister of Labour ‘to obtain the rejection’ of several dismissals^[4]. Moreover, the trade unionists exported the conflict with their management outside the company. In various pamphlets, they joined forces with local organisations and appealed to the population^[5]. In the end, the activation of the legal tool is part of a ‘combination of mobilisation practices’ (Béroud et al., 2008), an intermingling of modes of action to contest the redundancies effected by the management.

At the end of the 1980s and in the 1990s, during the affair of redundancies for economic reasons, even though there were articles published in the national press, the representatives very quickly mobilised the law and contacted T. Grumbach to initiate an appeal for lack of information and consultation in summary proceedings before the District Court, and then a litigation to contest the application of redundancy plans before the Labour Court. While mobilising the law, the councillors published a document entitled ‘State of employment in Billancourt’^[6], which was the subject of one of the few pamphlets distributed^[7]. In this 21-page document, the CFDT unionists presented some figures and statistics on the evolution of the workforce at the Billancourt factory. They also analysed the characteristics of the various redundancy plans executed in the factory, specifying the way in which the workforce had been reduced, and they concluded by listing some proposals that constituted a real industrial counter-project. In other words, in this case, the law, which was the preferred mode of action, was combined with experience (Offerlé, 1994) to contest the collective redundancies; demonstrations and petitions were not used.

How can this differentiated mobilisation of law be explained? Several hypotheses, which would need further development, can be put forward. Certainly, the place of the legal repertoire depends on of the trade unionists’ relationship with the law and their more or less familiar understanding of the legal framework for settling conflicts; furthermore, these two cases refer to different disputes. But the legal-union context must also be taken into account. If, in the 1970s, the CFDT had considerably developed its legal department, notably under the impetus of Jean-Paul Murcier, allowing it to invest in law and justice and to develop the notion of ‘conflict of logics’^[8], the modes of action used were also and above all based on a more ‘classic’ militancy. In the 1980s, on the contrary, the de-unionisation which dried up the militant pool contributed to the decline in the mobilisation of more classic modes of action, such as strikes or demonstrations. Above all, the CFDT was definitively converted to reformism. From then on, negotiation has been favoured over other modes of action, and we know that negotiation and judicialisation functioned as ‘the two poles of the same scene’ (Soubiran-Paillet, 1988). Finally, the transformations at work, marked in particular by the policies of individualisation and flexibilisation (Pélisse, 2019), destabilise work collectives and do not favour mobilisation, all the more so as the employers’ power, especially in the hands of HRDs and managers, has developed various strategies enabling the ‘management of the trade union issue’ (Béroud and Yon, 2013).

The management (of the company and of the establishments) participates in the judicial game and play according to its rules. In addition to litigation, as in the case of the striking employees, the management uses various strategies during the procedure itself. Thus, in the case of the striking employees, the RNUR produced various documents to send to the president of the court: a list of the striking employees; letters of support written by employees; a petition addressed to employees, denouncing, in particular, ‘the actions of a large part of the staff [and the] violation of freedom of work by certain strikers’^[9]. Moreover, as in the case of collective redundancies, the RNUR does not hesitate to play on trade union competition, notably within the WC and WCC, by providing documents to certain trade union organisations and not to others^[10]. Generally speaking, the RNUR sends ‘a mass of documents’ to T. Grumbach, to such an extent that, according to the lawyer in his exchanges with the CFDT, they are often ‘unworkable’^[11].

In the end, the mobilisation of the law and the judgements handed down by the courts (even when they are favourable) do not prevent the dismissals desired by the RNUR. So why resort to law and justice?

2. What is the purpose of mobilising the law?

By deploying a judicial and legal strategy and going to court, the trade unionists are not only waiting for a judgement to stipulate the legality or otherwise of a redundancy procedure or the validity of a social plan. The displacement of the conflict between the elected representatives and their management to the judicial arena has, in return, its own effects on the company and mobilisation. Four areas in which the trade union’s use of the law provides leverage have been identified.

First, the transition from conflict to litigation allows the formulation of the injustices experienced by employees and the designation of those responsible (Sarat, Abel and Felstiner, 1991). Recourse to the law thus allows trade unionists, as they write in their correspondence with T. Grumbach, to ‘feel heard’, to regain a certain ‘dignity’ and then to create ‘a balance of power’^[12].

Secondly, the use of the law allows trade unionists to manage time and, more precisely, to gain time. Although redundancy plans are rarely secret within a company, they are usually announced and executed suddenly. Trade unionists are often at a loss and caught in an asymmetric relationship with management. Consequently, resorting to a lawyer and taking legal action, even if only as a provisional measure to ensure that procedures are respected, enables representatives to gain time and delay the management’s plans. The time between the introduction of a procedure, the hearing, and the judicial decision allows staff representatives to organise themselves and mobilise employees.

Moreover, the trade unionists also deploy a judicial and legal strategy not against the management but for the employees of their company. In this respect, they do not hesitate, in the few pamphlets published, to call on employees to attend the hearings, draw up the minutes of these hearings, or inform about the progress of the case.

“General Federation of Mining and Metallurgy

Renault Union of Automobile Workers

SRTA –CFDT

Boulogne, 1 December, 1989

The trial initiated by 245 ex-employees of the Billancourt factory will take place on 11 December, 1989, between 9 and 11 a.m. at the Labour Court in Boulogne.

This trial is supported by the CFDT […].

The CFDT Union is pursuing the following objectives along with the employees: 1 –Highlighting the deception to which the dismissed employees fell victim, being given barely a severance payment improperly called ‘conversion allowance’, without offering a reallocation. The conversion did not ensure any reallocation. 2 –Highlighting the employer’s obligations to manage pension planning, as per the collective agreements and the laws on reallocation. 3 –Asking the courts for a real, operational social plan, adapted to the employees affected by restructuring, in accordance with the law and the collective agreements. 4 –Making the Labour Court issue a performance injunction against the National Direction of Renault Factories, that is, compelling it to proceed with the effective reallocation of the employees left behind in 1986, 1987, and 1988.

The SRTA-CFDT invites you to attend this hearing on 11 December, 1989. A ‘press briefing’ will be held that morning, at 8:30 a.m. at the Labour Court in Boulogne.

The publication of such a pamphlet has several purposes. Because the very use of legal categories ‘contributes to divesting the actors of their control over the conflict’ (Agrikoliansky, 2010), a pamphlet of this type allows the employees to reappropriate their ‘case’, and so ‘the law is no longer an abstraction and blends into the background’ of the contestation (Soubiran-Paillet, 1989). Above all, the publication of a pamphlet reporting on the judicial and legal actions allowed the trade unionists to frame the employees’ contestation. The announcement of the legal expectations allowed them to frame the conflict between the management and the employees, disseminate a certain grammar of the struggle, and define, among the plurality that could coexist, the objectives of the mobilisation. The trade unionists fully assume their role as initiators of the protest. Moreover, reading the pamphlet allows the employees to identify who, among the trade unionists, initiates and organises such and such action. The internal union competition should not be omitted, since the dissemination of the actions they carry out allows the unionists to differentiate themselves. A conflict is thus always an opportunity for a possible unionisation of employees.

Finally, introducing a procedure grants the trade unionists more weight in the negotiations with the management. Initiated most often at the same time, the negotiation and the judicialisation of the conflict seem to be articulated and respond to each other when contesting the dismissals desired by the management. For the trade unionists, the pursuit of legal action tends to depend on the progress of negotiations. However, the judicial game is not without risk, and management can use decisions that are favourable to them to strengthen their position negotiations.

In the end, the mobilisation of law by the trade unionists is not only aimed at obtaining satisfaction in court; it also allows them to establish a balance of power, win time, frame the employees and the mobilisation, and have an influence on the negotiations. The deployment of a legal and judicial strategy also requires a legal professional, in this case the activist lawyer T. Grumbach. What was his role and what relations did he establish with the trade unionists?

3. The use of an activist lawyer to politicise the case

The role of the lawyer is often ignored in analyses of workplace conflicts. When considered, the lawyer is reduced to the role of an expert who, by contributing his technical knowledge, fills the asymmetry between trade unionists and management. But reducing social law to a technique underestimates its eminently and intrinsically political character. Like other practitioners, T. Grumbach fully claims a political conception of his profession as well as of social law. The trade unionists solicited T. Grumbach, whose name is well known in trade union circles owing to his professional and militant reputation. What relations does the lawyer have with his clients and what is his professional practice?

3.1. Tension in relations between activists?

Whatever the type of case, the lawyer’s work is the same. The legal professional must transform the facts into law, i.e., translate and formulate, by mobilising legal categories, a labour conflict into a dispute.

Opening a case requires the clients, even before resorting to a court, to provide documents characterising the situation of the company and their disagreements with the management. In both cases, the trade unionists provided the necessary documents as soon as they turned to T. Grumbach, revealing their familiarity with the law and the firm.

Once the case is established, the lawyer must agree on a legal and judicial strategy with his or her clients. Although the framing is carried out by the lawyer, his relation with the trade unionists resembles a meeting of activists sharing the same views. A co-construction of the case is at work. Moreover, the lawyer ‘asks for instructions’ (a phrase present in much of their correspondence) and the trade unionists define their own judicial and legal times and strategies. In the course of the proceedings, they send the lawyer motions, resolutions, etc., adopted at works councils or union meetings. The lawyer is often content to send them the judicial decisions accompanied by a simple sentence, ‘I’m sending you the judgement…’, without giving rise to any legal deciphering. Once the judgement has been handed down, it is the trade unionists who decide how to proceed with their case, whether to appeal or even resort to the Supreme Court; the lawyer seems to adapt to the union’s strategies.

The lawyer’s work and relation with trade unionists seem, in the end, unique and escape the existing sociological analyses devoted to the interactions between practitioner and clients (Tonneau, 2020). Because the trade unionists have obtained knowledge on the legal field and have already resorted to a law firm, their relationship with the activist lawyer is not new. Both the situation and each other’s roles are pre-established. Consequently, the lawyer’s professional autonomy is largely reduced.

However, the mixing of roles in this relationship can always be suspended. The relationship between the lawyer and his unionist clients is not without its tensions, which then resound like a call to order likely to lead to resuming each other’s role. Thus, in certain exchanges, the trade unionists assert their position as employee representatives, while denying it to the lawyer; T. Grumbach then reasserts his professional position. Fees are often at the heart of these tensions. The lawyer adopts a political and militant reading of the fees charged, inscribing them in the type of firm he has founded.

Dear Comrades,
At the meeting of 19 May, 1979, […] our comrade […] indicated […] that there would be problems between the UPSM and the firm in the Renault case […] concerning the cost of our intervention. This too is a political issue. Unlike other law firms, we refuse to make money a taboo issue to be discussed under the table. Our firm only works on behalf of employees. This being the case, we believe that workers have the right to a genuine defence, i.e., of the same quality as that ‘bought’ by the bosses. It is a choice… this choice is also a cost […]. To conclude on this point […] I have to tell you that if the union asked me to defend this case as a militant, without a fee, I would certainly do so, as I think that this case is important for the future of liberties. If this were so, such a situation would probably transform the type of relationship we have. It would also merit a substantive discussion, even on the future of a firm like ours. (Letter from TG to the UPSM–CFDT, 30 May, 1979^[13])

Finally, even if there is a common view between the protagonists and a co-construction of the judicial and legal strategy, a case cannot be reduced to the relationship between a lawyer and his clients. More to the point, one must take into account the other actors, first and foremost the management’s lawyers, who are also colleagues of T. Grumbach. In this respect, the two legal professionals have a relationship that would be incomprehensible even to trade unionists who are well versed in the law and legal counselling, as is the case here. In several of the letters consulted, the lawyers exchange greetings, congratulate each other on their pleadings and even organise their judicial calendar. But above all, it is the ‘case’ that brings them together. Thus, the judicial and legal strategy, which must be supported by both legal professionals, is also defined during their exchanges, just as they participate in their clients’ acceptability of the decisions taken. Generally speaking, a case is always part of a judicial logic that goes beyond its strict framework.

As regards the alleged discrimination, you are certainly aware of the case law of the Court of Cassation, which I will invoke and, in any case, allows the employer to discriminate regarding sanctions […]. I will no doubt be able to demonstrate, particularly in the current conflict, that on the contrary, the Renault Direction has avoided sanctioning protected members and that discrimination has occurred in the opposite direction claimed by your clients. (Letter from the RNUR’s lawyer to T. Grumbach, 28 December, 1978^[14])

                  

Dear Colleague,

Is the decision acceptable to your clients as a whole? In that case, I will probably be able to get the Renault Direction to accept it as a whole, i.e., including the conviction and dismissal. But if some of them intend to appeal, that would automatically trigger an appeal by the Direction, of course. (Letter from RNUR’s lawyer to T. Grumbach, 2 April, 1979)

Despite the tensions that may exist with T. Grumbach, the trade unionists did not call on him by chance. Indeed, they wanted to count on the lawyer’s legal expertise but also on his militant and political skills to politicise their case.

3.2. The plural forms of a case’s politicisation

As an activist lawyer politicising his professional practice, T. Grumbach defends, above all, the cause of law. In other words, the Versailles lawyer is a supporter of the legal regulation of work and economy, and considers that recourse to the judge is the guarantee of respect for the rights of employees and trade unionists. T. Grumbach does not hesitate to politicise certain cases. However, politicisation takes various forms. Four forms of politicisation could be identified in the two cases considered.

First, politicisation is part of a given political and legal configuration. For example, in the case of the striking employees, T. Grumbach uses in his pleading the notion of ‘conflict of logics’, which he contributed to develop within the CFDT. Thus, in his conclusions, he did not hesitate to denounce the employers’ ‘logic’, which would be mingled with that of the judges, and then to criticise the judicial system, in which judges only obey. In the case of the collective redundancies, the lawyer’s conclusions are fully in line with the political context of the moment. Indeed, at the time of the case, the Soisson law (adopted on 2 August, 1989), which introduced a social plan for collective redundancies, was being debated in Parliament. The lawyer wanted to discuss in the judicial arena a law under debate in the political arena. Moreover, he consulted Antoine Lyon-Caen, a well-known professor of labour law, who encouraged him and gave him some advice. The academic wrote to him as follows: ‘The political and legal situation invites such a debate, since the bill submitted to Parliament not only intends to introduce the notion into the legislative language […] but above all to reinforce the role of the social plan. Nevertheless, the discussion of a concept presumably risks running out of steam if it is not based on strong aspirations, endowed with such social legitimacy as to guide a political or judicial decision’^[15]. This exchange confirms that lawyers and law professors are indeed major players in the production of labour law (Willemez, 2017).

Second, Grumbach can politicise legal action, as in the mass redundancy case, when the lawyer adopted a political reading and reached conclusions of a legal notion such as fraud. He then pitted the 245 employees against the RNUR, ‘with its economic power, its financial organisation, its management’, and appealed, both in a legal and political sense, to the ‘responsibility of the [French] company’^[16].

More general forms of politicisation are discernible, such as the de-singularisation of the case. In the case of the striking employees, out of which the CFDT wished to draw a ‘political balance’ through a general progression, T. Grumbach evoked ‘trade union democracy, workers’ democracy, and the right to strike’ and then reinscribed the mode of action in the company, the law, and their respective histories^[17]. In the case of the 245 employees, the lawyer addressed ‘the working class’ and the history and organisation of work (since the scientific organisation of work created by F. W. Taylor), placed the redundancies in the history of the company, criticised the RNUR’s industrial, economic and employment policies, and concluded: ‘The political side of the theory of corporate risk: could the RNUR get rid of men it wore out itself through work, at a low cost and without allowing them to regain a right to another job […]?’^[18]. The other form of general politicisation refers to the defence of the cause of law. Indeed, by representing trade unionists and employees in the judicial and legal arena, T. Grumbach wants them to be ‘finally subjects of law’^[19]. In other words, it is the law that allows employees to recover a certain citizenship (Allal and Yon, 2020).

Conclusion

The aim of our contribution was to understand how and why trade unionists mobilise the law and resort to a lawyer to contest the dismissals sought by the RNUR’s management. The use of lawyer T. Grumbach’s professional archives allowed us to pay attention to the union’s use of the law ‘from below’, to the place of this law repertoire and to the relationship between the lawyer and the trade unionists. The procedures considered here have now changed considerably. Access to justice is increasingly difficult, as a part of labour law seems to be suffering a true de-judicialisation. Through numerous reforms, the legislators have contributed to bypassing and avoiding the justice. The judicial and legal means and possibilities for contesting dismissals have become considerably stricter. These reforms are part of a broader process that has seen labour law become, since the 1980s, a protective law for companies instead of employees (Willemez, 2017).

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