The NLRB Just Dealt a Major Blow to the Fight for $15. Now’s the Time to Take Stock of the Campaign.

Max Zahn March 28, 2018

Protesters with NYC Fight for $15 gather in front of a McDonalds to rally on February 13, 2017 in New York City. (Photo by Spencer Platt/Getty Images)

The report­ed ten­ta­tive set­tle­ment of a land­mark case against McDonald’s at the Nation­al Labor Rela­tions Board (NLRB) deals a blow to Fight for $15’s union ambi­tions, widen­ing the chasm between the campaign’s aston­ish­ing­ly suc­cess­ful wage demand and its fal­ter­ing union aspirations.

The set­tle­ment, nego­ti­at­ed by Trump-appoint­ed NLRB Gen­er­al Coun­sel Peter Robb, requires McDonald’s to pay dam­ages for retal­ia­to­ry mea­sures tak­en against work­ers who orga­nized with Fight for $15. How­ev­er, the agree­ment would pre­vent a rul­ing in the case, deal­ing a blow to labor. Unions were hop­ing that a rul­ing would estab­lish a prece­dent for hold­ing fast food com­pa­nies account­able as the direct employ­ers of mil­lions of work­ers at fran­chise restau­rants across the Unit­ed States. 

The set­tle­ment is pend­ing approval from NLRB Judge Lau­ren Espos­i­to. If the set­tle­ment holds up, the work­ers and their rep­re­sen­ta­tives can appeal it. 
In the event of a favor­able rul­ing, the ardu­ous path to union­iz­ing en masse at McDonald’s — and oth­er fast food chains — would have at least become legal­ly per­mis­si­ble. But now, fast food work­ers appear more like­ly to remain the employ­ees of their imme­di­ate fran­chise, not its par­ent company.

Since the incep­tion of Fight for $15, the demands of the cam­paign have dou­bled as a mantra for the labor move­ment: $15 and a union. Trans­la­tion: A liv­ing wage means less with­out the pro­tec­tion of a col­lec­tive­ly bar­gained con­tract, and vice ver­sa. But as Fight for $15 notched min­i­mum wage hikes in cities and states across the coun­try, the union strat­e­gy reced­ed, mir­ror­ing the decline of union mem­ber­ship nation­wide. The NLRB set­tle­ment deep­ens that trend.

But the Fight for $15 has adapt­ed by deploy­ing its wage tac­tic — local leg­isla­tive vic­to­ries enabled by high-pro­file strikes — to secure fea­tures of union con­tracts, like fair sched­ul­ing and even dues pay­ment. (Read more about that strat­e­gy here).

The NLRB set­tle­ment will like­ly accel­er­ate this shift toward work­er gains won at city coun­cils and state­hous­es, though the union strat­e­gy will con­tin­ue to serve as a pub­lic-rela­tions and orga­niz­ing tool.

I don’t want to write the last chap­ter yet,” Jan­ice Fine, a pro­fes­sor at the Rut­gers Uni­ver­si­ty School of Man­age­ment and Labor Rela­tions, told In These Times. I don’t think NLRB deci­sions, things being tied up in court, can defeat organizing.”

The set­tle­ment resolves a dis­pute between McDonald’s and the NLRB that stretch­es back to 2015, when the com­pa­ny alleged­ly com­mit­ted more than a dozen labor vio­la­tions against work­ers par­tic­i­pat­ing in the Fight for $15. Cru­cial to the case was the ques­tion of whether work­ers could hold McDonald’s liable, as a joint employ­er,” for actions tak­en by indi­vid­ual fran­chise own­ers. A tri­al began in 2016 and neared a deci­sion in Jan­u­ary, when an NLRB judge grant­ed a 60-day stay for set­tle­ment talks.

Soon after, a scan­dal rocked the NLRB, revers­ing agency pol­i­cy on the joint employ­er ques­tion at the heart of the case. NLRB Inspec­tor Gen­er­al David Berry deter­mined that a con­flict of inter­est should have pre­vent­ed board mem­ber William Emanuel from cast­ing the decid­ing vote in a cru­cial 3 – 2 rul­ing last Decem­ber, which tight­ened the joint-employ­er stan­dard. On Feb. 26, the NLRB vacat­ed the Decem­ber rul­ing, revert­ing agency pol­i­cy back to an Oba­ma-era judg­ment that made it eas­i­er to assign joint-employ­er sta­tus to a par­ent com­pa­ny like McDonald’s.

Not­ing the abrupt shift in agency pol­i­cy, Fight for $15 and oth­er labor advo­cates urged Robb, the NLRB gen­er­al coun­sel, to aban­don set­tle­ment talks and resume the McDonald’s tri­al. On March 7, a group of five lib­er­al sen­a­tors joined the cho­rus, among them Eliz­a­beth War­ren and Cory Book­er. Their advo­ca­cy fell on deaf ears.

The saga demon­strates how much a fast food union depends on hav­ing a Demo­c­rat in the White House. With­out a pro-labor NLRB to fight an extend­ed legal bat­tle, the fast food chains can fall back on prece­dent that for­bids a com­pa­ny-wide union and deflects cost­ly lia­bil­i­ty for labor vio­la­tions. On this point, Fight for $15’s union strat­e­gy can learn from its wage hike approach. As the leg­isla­tive efforts have eschewed Con­gress and sought recep­tive local and state leg­is­la­tures, so too the union dri­ve should wait for a Demo­c­ra­t­ic pres­i­dent to appoint a favor­able labor board, espe­cial­ly in light of the high pace of turnover in fast food jobs.

But that pre­scrip­tion oper­ates on the assump­tion that the sole desired out­come of the Fight for $15 union strat­e­gy is, in fact, a fast food union. Such a mon­u­men­tal labor vic­to­ry would prove a boon for the Ser­vice Employ­ees Inter­na­tion­al Union (SEIU) and the labor move­ment, of course. But regard­less of its suc­cess, the union strat­e­gy serves as a pub­lic-rela­tions and orga­niz­ing tool. Last August, a Gallup poll found 61 per­cent of U.S. adults approve of unions. That fig­ure is the high­est record­ed since 2003 and 9 points above the rate in 2012, when Fight for $15 began. The favor­able atti­tude toward unions helps the labor move­ment ensure that, as midterms approach, Demo­c­ra­t­ic can­di­dates take strong posi­tions in sup­port of orga­nized labor.

Per­haps that’s why the cam­paign does not plan to pause its union strat­e­gy, accord­ing to Mary Kay Hen­ry, pres­i­dent of the 2‑mil­lion-mem­ber SEIU that backs Fight for $15. On March 22, days after reports of a McDonald’s set­tle­ment sur­faced, Hen­ry reit­er­at­ed her com­mit­ment to the fast food union as part of a con­grat­u­la­to­ry tweet to work­ers who won a pay raise rec­om­men­da­tion from the Port Author­i­ty that con­trols New York and New Jer­sey air­ports. Every air­port work­er across the coun­try deserves the same and we won’t stop till fast food work­ers get their union too,” Hen­ry wrote.

Telling­ly, a gov­ern­ment-man­dat­ed wage vic­to­ry brought about Henry’s reit­er­a­tion of com­mit­ment to the union strat­e­gy. But air­ports are a low-wage work­place where SEIU has also suc­ceed­ed in tra­di­tion­al union orga­niz­ing, per­haps due in part to inroads facil­i­tat­ed by Fight for $15. In link­ing the suc­cess of air­port work­ers to Fight for $15, Hen­ry sug­gests the union orga­niz­ing ben­e­fits of the fast food cam­paign extend beyond the strug­gle to iden­ti­fy McDonald’s as a joint employer.

Make no mis­take, the NLRB set­tle­ment is a sig­nif­i­cant set­back for Fight for $15. But the cam­paign has tak­en its demands to cities and states across the coun­try, win­ning leg­is­lat­ed gains tra­di­tion­al­ly found in union con­tracts. Though McDonald’s is unlike­ly to sit down at the bar­gain­ing table any­time soon, local leg­is­la­tors and every­day Amer­i­cans are more will­ing than ever to stand up.

Max Zahn is a free­lance reporter in Brook­lyn, New York.
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