A Workers Council at McDonald’s

Fast food workers and their campaign for workplace justice are the topics of worldwide discussion and debate. The New York Times and the Wall Street Journal are covering the campaign regularly, and all the relevant online outlets have been reporting on the workers’ efforts too. Slate is nearly breathless about the strikes and the New Yorker has a nine-page story detailing the lives of the campaign’s leaders. Globally, The Guardian, The Times of India, Le Monde, and Die Welt are paying close attention. And then there’s President Obama’s comments about the campaign, things we haven’t heard a President say since FDR:

“All across the country right now, there’s a national movement going on made up of fast-food workers organizing to lift wages, so they can provide for their families with pride and dignity . . . . You know what? If I were busting my butt in the service industry and wanted an honest day’s pay for an honest day’s work, I’d join a union.”

All this discussion is to the good, and it’s warranted by the issues raised by the campaign: jobs, wages, the future of the labor movement, equality. But, in the midst of all this discussion, one particular kind of dialogue is notable for its absence: fast food workers and fast food employers are not talking to each other.

It’s true that both sides are each doing a lot of talking. Through their protests and strikes, along with visits to shareholders meetings, workers have announced their demands. These actions have been impressive in their size, intensity, and the public reception they’ve received, but they don’t yet constitute dialogue.  The fast food chains, for their part, have been issuing statements to the press and to their shareholders. There are several messages coming from the firms. The first is that the workers aren’t actually “employees” of the chains, and so the chains have no responsibility for or control over how much the workers earn. A second message is that wages and benefits are already good enough, partly because fast food jobs are “starter” jobs meant for teenage workers. A third message is that if fast food restaurants have to pay $15/hour – what the workers are demanding – the result will be job loss rather than wage gains. But, again, a slew of press releases (whatever you make of its substantive truthfulness) doesn’t constitute dialogue.

The campaign has been going for two years now, and it’s a good moment for the two sides to ask themselves whether it’s time to start talking. Of course, in any organizing campaign, the question of when to sit down with the other side is a crucial and complicated one. Here, the decision will be driven in large part by the strength of the workers’ campaign – the wider and deeper the mobilization gets, the greater the chains’ incentive to talk will become. I don’t know enough about internal campaign or corporate dynamics to say that now is the time for the workers and the chains to begin such a dialogue. But, when the time does arrive for the two sides to talk, an intriguing way to structure that dialogue is suggested by another prominent development in contemporary U.S. labor relations: namely, the debate over works councils.

The approach I have in mind would involve each of the fast food chains creating a national workers council. The councils would consist of representatives elected by the chains’ workers nationwide. (Responsive to complaints that activists rather than workers are driving the campaign, only workers would be qualified to vote for council representatives.)   The chains would agree to meet regularly with the council and to discuss issues of import to the workers. The chains would also agree to share information relevant to these discussions – like the data necessary to a dialogue about wage levels, including the likely employment and price effects of wage increases. The specifics of what would be discussed and whether and how proposals could be implemented would be left to the parties at the table. The point is to create the table at which these topics could be productively discussed.

One of the several benefits of such an approach would be to give the workers themselves a forum for debating their goals and demands, and in a democratic fashion. For many fast food workers, $15 and a union are the goals. Indeed, about 1,500 fast food workers held a convention this summer in Chicago at which they decided, through democratic processes, to push for “a $15 hour wage floor” and the “freedom to stick together in a union.” That’s a good start. But there are still lots of questions for the workers to resolve: is $15 the right wage everywhere? would workers prefer paid sick leave and $12.50/hour? or how about paid parental leave? what about work scheduling issues, something that seems to be on a lot of workers’ minds? and what about the risk of job loss through mechanization? A democratically elected workers council could decide how to approach each of these questions, both internally and in dialogue with management.

Would such a workers council be consistent with §8(a)(2) of the National Labor Relations Act? Potentially, yes. For starters, if McDonald’s position on the question of joint employment prevails, then the workers who would populate the council are not McDonald’s employees – they are only the employees of the franchisees. As non-employees of McDonald’s (or the other chains), the workers council would not even trigger §8(a)(2) review. If the union view prevails, and the workers are ultimately deemed joint employees of the chains, then the council would be subject to §8(a)(2) review and the question would get trickier but not impossible. Several approaches would be available to the parties. One such possibility is to design the council so that it becomes integrated into the chains’ management structure in a way that would qualify it for the Crown Cork exception to §8(a)(2), which I’ve described before. Another possibility is to envision the council as a temporary mechanism designed to resolve the issues raised by the current campaign. Because only worker organizations that engage in a “pattern or practice” of making proposals to management “over time” are covered by §8(a)(2)’s prohibition – and those “limited to a single context or a single issue” are not – a council who’s life span was limited to addressing the Fight for Fifteen issues could escape §8(a)(2) review. Under this approach, the council might be replaced by traditional collective bargaining (should a union campaign succeed), or it could be dissolved when the parties’ decided it had served its purpose. A final approach the parties might take is to establish the committee and not worry about Board enforcement, either because they conclude it’s unlikely the Board would disestablish a committee of this character or because the sanctions would be worth bearing.

Legal questions aside, many are of the view that the kind of dialogue I’m proposing makes sense only when the two sides to the discussion have roughly equal bargaining power. That view, it seems to me, is correct. In the labor context, however, this view sometimes translates into the position that dialogue should only begin when workers are sufficiently organized to demand traditional union rights and insist upon collective bargaining. But that position, it seems to me, may be mistaken in the context of the fast food campaign. This campaign has built strength through national activism and by gathering the support of consumers, the media, and elected leaders.  The continued activism of workers nationwide would be critical to the workers councils’ viability and success. But, with such continued activism, the councils might well have the strength not only to articulate demands but to secure them.