Why are Harris v. Quinn and Fast Food the Biggest Labor Developments of 2014?

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

The results of our Reader Poll show Harris v. Quinn topping the list, followed immediately by the fast food campaign, as the biggest labor developments of 2014. We asked a few readers to offer their views on why these developments ranked the highest.  Below are reactions from Andy Stern (former President of SEIU and currently Senior Fellow at Columbia University), Charlotte Garden (Professor at Seattle University School of Law), Dave Jamieson (labor reporter for Huffington Post), David Rolf (President of SEIU 775 and co-founder of The Workers Lab), and Trevor Burrus (Cato Institute).  Thanks to all those who participated in the Poll.

Andy Stern:

The victory for Los Angeles home care workers, in a campaign named “Invisible No More,” was the largest union election in modern labor history. It started a wave that transformed hard-working independent contractors (in home care and then in child care) into an organized, collective voice for quality care and by offering a union pathway to good jobs.

Harris v. Quinn constitutes the Supreme Court’s undercutting of these workers’ strength, by prohibiting agency fee/fair share arrangements for home care and child care workers and by foreshadowing an extension of this union-eroding precedent into the entire public sector.

Charlotte Garden:

Three Lessons from the Fast Food Organizing Movement

First, thanks to Ben for inviting me to guest blog. I’m a big fan of this site and its associated Twitter feed. Since launching in August 2013, Ben, Jack Goldsmith and their talented group of contributors/students have made On Labor an indispensable resource for insights and analysis on labor law.

With organized labor seemingly under constant attack in legislatures and courts across the country, one of the most important labor issues of 2014 is the growing movement of millions of low-wage workers employed by America’s fast food restaurants. (Hat tip to Dylan Rubin for his ongoing series of updates.) In short, fast food employees in over 150 cities across America have participated in a series of protests, mostly demanding a $15 wage and union representation. Their efforts are creating real changes across the county, raising wages for millions of Americans, and offering an organizing blueprint for workers in other industries.

Below I outline three important aspects of this movement.

Finding New Allies

One big reason fast food workers are getting results is their savvy approach to coalition building. Fast food workers have rallied in support of home healthcare aides, comprehensive immigration reform, and engaged on racial justice issues in the Michael Brown and Eric Garner cases. By placing their demands in the context of larger social and economic struggles, the fast food workers movement has tapped into a wider frustration with a the status quo. Framing calls for improved wages and more voice at work in the broader context of income inequality, rising healthcare costs, and race and gender disparities doesn’t just make for a good sound bite on the evening news; it connects these workers to millions of others struggling to make ends meet.

Organizing in a Non-Union Workplace

Unlike most strikers, fast food protesters mostly lack formal union representation, though they are supported by unions like the SEIU. Historically, workers have gained wage concessions from employers by electing a union that then bargains for improved pay and benefits using a possible strike as leverage. But, as people like Michael Oswalt have noted, fast food workers are flipping the model. This may revitalize a practice not often seen since the golden era of the American labor movement: collective action in support of specific workplace demands without first having a union in the workplace. And already, fast food employers are taking notice. Last year a McDonald’s SEC filing noted risks posed by potential strikes, boycotts and the “increasing public focus on matters of income inequality.” This is important both for the concessions fast food workers have been able to win at individual stores, and because of its living demonstration of the principle that labor law protects non-union workers, too.

Raising Wages for All Workers

The fast food movement is inseparable from the successful political efforts to raise the minimum wage. This is perhaps the biggest impact of the fast food workers movement, as Catherine Fisk noted here at On Labor. As Catherine eloquently phrased the issue, “The fast food campaign has managed to put livable wages and work hours at the top of the news over and over again. And they have done so in a way that convinced voters across the nation to increase wages even in states in which Republicans won elections.”

Labor movements are successful when they deliver meaningful improvements in working conditions to those engaging in collective action. But these fast food protestors aren’t just engaging in self-help; their work is helping to raise wages for a much larger community of low-income workers.

Dave Jamieson:

What’s brought more attention to low-wage work in the U.S. in recent years than the fast food strikes? I can’t think of anything. It’s the sort of story that’s been discussed around the dinner table. That, in itself, is a big victory for SEIU’s imaginative campaign. But there have been other victories, too. I think it’s safe to say the sight of striking workers has helped spur the many minimum wage increases we’ve seen around the country recently, not to mention the executive orders the White House has undertaken on low-wage work. Two years into this campaign, the idea of a $15 minimum wage no longer seems preposterous — in fact, such a wage floor is already passing in some cities. The strikes are embarrassing fast food companies and emboldening fast food workers, and surely there are many more to come. The murky end game for this campaign only makes it more interesting.

David Rolf:

From an initial strike of 200 fast food workers in New York in November of 2012, one-day strikes and other direct actions by fast food workers have now reached 190 U.S. cities and have been joined by home care workers, airport workers, convenience store and retail workers.  SEIU has been proud to stand with these courageous workers and to join with community and religious partners to provide staffing and resources to their mobilizations.

These strikes have given voice to the crisis of low wages in our nation. In Seattle, they were the single most important force in galvanizing public opinion for a $15 minimum wage.  Seattle’s current Mayor and several of its City Council members joined fast food strikers on the picket lines last year, and publicly credited the strikers for forcing a public conversation about the growth of low-wage employment.

America is fast becoming a low-wage nation, with a decline in median wages over the past generation and even a decline in nominal wages for five straight years in our economic recovery.  Three quarters of the fastest-growing jobs in America are low-wage jobs, and seventeen of the fastest twenty growing jobs don’t require education beyond high school.  77% of low-wage earners are adults, 25% are over the age of 40 and 23% are moms.  By the end of the decade, some projections suggest that 48% of all employment will be in predominantly low-wage sectors, industries, and professions.

We can do better. Each strike by fast food workers reminds us of that.  And although channeling much of the energy and anger of the Occupy movement, the fast food strikes are different in that they have a single sharp focus (low wages), clearly articulated goals ($15 and a union), and a clear set of targets who can, when the workers achieve sufficient strength, meet their demands (fast food chains, other low-wage employers, and local governments).

With the functional impairment, if not outright death, of the institutional union movement in the U.S. private sector, workers need new tools to achieve economic justice.  Some of those may be newly-minted strategies and 21st century models for re-achieving the power, scale, and sustainability that unions once had (see www.theworkerslab.com); others may be old strategies such as consciousness-raising strikes and popular ballot initiatives.

Harris v. Quinn was cited by many on this blog as the most important development in labor in 2014.  I think HVQ is just another chapter in the long slow decline of the 20th century bargaining model.  It’s now so familiar a story it needs only single words or phrases to invoke its mileposts:  Taft-Hartley. Patco. Greyhound. Eastern. Dunlap Commission. Nafta. EFCA. Wisconsin. Michigan. Chattanooga. Harris. (Next up: Friedrich).

The real story is that despite all that, workers are still fighting back with whatever tools they have.

Trevor Burrus:

Harris v. Quinn refocused the Court’s attention on the first principles of unionization and, hopefully, created a baseline by which we can re-examine the extraordinary privileges the government grants to unions. By asking how far public-sector unionization can reach, and by making it clear that forced unionization is an aberration to the baseline of free association, Harris helped create an foundation for both revitalizing freedom of association and for refocusing unions around their core purpose, that is, helping out blue collar and less-skilled workers.

Public-sector unions have exploded despite the fact that, in most ways, public-sector workers need less help than private-sector workers. Public workers are, after all, mostly covered by civil service laws, which provide protections few private workers enjoy. Moreover, the growth in public-sector unions threatens to further compromise the popularity of the labor movement as average people endure strikes in necessary public services, such as transportation, and realize that generally well-paid and protected government workers are asking for more money.

For people who dislike unions, forced dues collection is often the most objectionable aspect. The privilege to collect agency fees is akin to taxation, and it is a power that generally only governments enjoy. After Harris v. Quinn, as well as 2012’s Knox v. SEIU, unions should begin looking for new options to grow rather than expanding further into the public sector. One option to explore is the possibility of minority unions, which isn’t as far-fetched as it might sound. Another option is to look for ways to repeal the duty of fair representation, which is the source of allowing the collection of mandatory agency fees. This would generally move unions toward being voluntary associations–just like every other group in society–and therefore it would be a victory for individual liberty, something I like very much. But it is also possible that voluntary unions could enjoy an unexpected surge in popularity as people no longer feel bullied into belonging and contributing to a union.





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