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Our Broken Labor Law

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The United States has not passed a comprehensive pro-labor bill since the Fair Labor Standards Act, a mere 82 years ago. And I’d say the chances of passing anything in the next decade is nearly zero. This leads to a disaster of ineffectual and corporate-captured labor law that makes organizing and winning a contract nearly impossible. And even when you have labor law, no one is enforcing it during Republican administrations. There’s plenty to chew on in the New York Times’ “future of work” issue this week, but let’s look at Emily Bazelon’s discussion of this problem first.

It’s against the law to fire workers for labor organizing. The Service Employees International Union, which backed the Fight for $15 and represents almost two million workers in health care and other fields, in 2014 took Caldwell’s case, along with the complaints of hundreds of other workers who thought they’d been penalized for participating in the Fight for $15, to the National Labor Relations Board for an investigation. The federal agency was created in 1935 as part of the National Labor Relations Act, the cornerstone of American labor law, which has a mandate to protect the rights of employees “to join together” to improve their wages and working conditions. In December 2014, the N.L.R.B. general counsel, an Obama appointee, grouped 60 of them for an initial trial against McDonald’s and its franchisees.

McDonald’s was the second-largest private-sector employer in the world as of 2015. Ninety-five percent of its American restaurants are operated by franchisees, a model that has allowed the company to distance itself from the 850,000 fast-food workers who wear the McDonald’s uniform. During the administrative law trial, which began in 2016, lawyers for McDonald’s argued, according to court filings, that their client bore no responsibility for Caldwell’s firing because he worked only for a local McDonald’s franchise called Jo-Dan.

The N.L.R.B. challenged McDonald’s’ premise, arguing that McDonald’s jointly employed Caldwell and helped undercut the Fight for $15. The N.L.R.B. presented evidence showing McDonald’s’ corporate employees helping franchisees, including Jo-Dan, fight off unionization. In emails and text messages, the company connected franchisees with a hotline for legal advice from the law firm Littler Mendelson, and circulated the names of pro-union workers. In Philadelphia, the regional director of employee relations for McDonald’s, Maggie Calabrese, wrote a memo about the firing of Caldwell and others, noting a call she had with the franchise operator, John Dawkins: “I shared with John the benefits of working with” an anti-union consultant that McDonald’s recommended, she wrote.

McDonald’s had another tactic at its disposal — delay. The company mounted objections to entering documents into the record and canceled hearing dates. The trial dragged on into 2017, and after Donald Trump’s inauguration, he appointed a new N.L.R.B. general counsel, Peter B. Robb, who has spent much of his career representing companies against unions. In January 2018, Robb unveiled a proposed settlement: About 20 workers, including Caldwell, would divide roughly $170,000 in back pay; McDonald’s would admit no wrongdoing; and Robb would reverse the initial position the N.L.R.B. had taken in bringing the case that McDonald’s should be treated as a joint employer of the workers at its franchises. This stance would make it nearly impossible for employees to band together to address problems in the workplace.

In July 2018, the judge at the trial, Lauren Esposito, rejected the settlement proposal, saying it was not reasonable “based on the nature and scope” of the case. Esposito concluded that McDonald’s was directly involved in suppressing union organizing because it had “formulated and implemented” the franchisees’ response to the Fight for $15. If the N.L.R.B. accepted Esposito’s findings, a union would be able to conduct a drive to organize McDonald’s workers across the country.

But the N.L.R.B., whose five members are nominated by the president to serve staggered five-year terms, had the power to overrule Esposito. With two Trump appointees in the majority, the board ordered the judge to approve the settlement by a vote of two to one. (A fourth board member didn’t participate in the decision; the fifth seat was vacant at the time.) One of the two N.L.R.B. members who overruled Esposito, William J. Emanuel, was a former partner at Littler Mendelson, the firm McDonald’s hired to give legal advice to franchisees, but declined to recuse himself. Trump’s chairman of the N.L.R.B., John F. Ring, whose former firm also advised McDonald’s on the Fight for $15, later issued an unprecedented report finding that each N.L.R.B. member could “insist on participating” in a case even if the agency’s own ethics officials said otherwise. In response to my questions about the case, McDonald’s sent a statement: “McDonald’s and its franchisees agreed to resolve the proceeding in a manner that provides 100 percent of the remedies that those employees were eligible to receive under the National Labor Relations Act.”

Bazelon talked to some of the leading experts in the nation on the labor movement and they tend to agree that worker militancy is the answer:

In the past couple of years, a new burst of organizing has succeeded by reviving an old weapon — the strike. In her new book, “A Collective Bargain,” the organizer Jane McAlevey describes the strategic preparation behind the Los Angeles teachers’ successful strike in early 2019. The teachers built support among parents. They prioritized “community demands”: reductions in class size, green spaces for schools and an immigrant-defense fund for undocumented families.

In McAlevey’s vision, educators and health care workers, “mostly women and women of color, different from the guys in the factories,” can build the organizing capacity and leverage to transform American politics. Could teachers and nurses achieve what steel and autoworkers did in the 1930s? “We didn’t get the N.L.R.A. without a massive crisis on the streets,” McAlevey says. “That comes first. Then you get to change the rules.”

McCartin, the Georgetown historian, also sees the “militant re-emergence of workers” as a precondition for turning around the labor movement’s losses. “Remember, the N.L.R.A. wasn’t even on the wish list of a president like Roosevelt,” he said. “He came through because he saw that he had to.”

Yeah, I guess. I mean, I don’t disagree. But workers were very militant in 1877 and 1894 and 1919 too and were just met with violent state repression. It’s by no means impossible that this will happen again. It does take worker militancy. But it aslo takes the political context that this nation enters into one of its rare forward-thinking periods and is willing to move forward with progressive legislation on a number of fronts. It briefly looked like the Obama years would be that way and then, well, nope, thanks to McConnell and the aggressive use of the filibuster. I don’t know where this leads and we have to keep up the fight, but it might be a long time before these horrible problems get fixed. And they don’t if we aren’t organizing people, that’s for sure.

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