Why labor reform only comes from workers’ power

New York City firefighter Anita Daniel has been both a victim of sexual harassment and failed by the FDNY’s Equal Employment Opportunity Office. According to the report in the Sept. 30 issue of The Chief, the EEOO has failed to hold the perpetrators accountable.

 

Daniel’s experience illustrates why labor rights bodies are a poor substitute for organized workers acting in solidarity as she is now doing with the Vulcan Society inside their union, the Uniformed Firefighters Association. The leadership should publicly denounce racism and sexism and take immediate action to hold the perpetrators accountable for their anti-union behavior.

 

Despite the continued failures of labor rights bodies like the EEOO, New York, California and a few other liberal-leaning states continue to create them and our unions continue to rely on them.

 

This Labor Day California Governor Gavin Newsom signed AB 257, the Fast Food Accountability and Standards Recovery Act with the authority to raise the wages and improve working conditions for about 550,000 minimum wage fast food workers.  The council would surely benefit a very diverse low waged workforce. About 80 percent are workers of color, 60 percent are Latino, two-thirds are female and 77 percent are older than 18.

 

Fast food work is poorly paid, dangerous and insecure. AB 257 will attempt to change this by pursuing a strategy in which “labor standards boards could serve as a form of sectoral social bargaining,” according to an article by Ken Jacobs of the UC Berkeley Labor Center.

 

Workers will first need to petition the 10 member tripartite Fast Food Council to be established. The FFC would include employers, workers, "advocates" and two government representatives and union representatives who can set wages, alter working conditions and protect workers from discrimination and harassment. 

 

The FFC is, however, prevented from establishing paid leave or regulating scheduling, two priorities of workers, and is only required to meet at least once every 6 months. This is only the latest effort to use California state law as a form of what University of Michigan law professor Kate Andrias calls “social bargaining” to protect warehouse, garment, and domestic workers while extending collective bargaining rights to child care workers.

 

AB 257 is the outcome of the SEIU’s Fight for $15 campaign of McDonald’s workers beginning in 2012. After nearly a decade the campaign continues with little more than high profile protests and media events about the low pay and terrible conditions of fast food workers. When the campaign stalled, SEIU turned to a legislative solution.

 

The strategic shift is hardly new. There are recent efforts to use state legislatures, referendums and court rulings to improve the wages and working conditions of gig workers.  Some unions have even cut deals with the gig companies that neither recognize the union nor engage in collective bargaining. In 2016 the International Association of Machinists and Uber cut a deal to set up a company union called the Independent Drivers Guild in New York City not controlled by the drivers and paid by the company.

 

While using labor law and such tripartite bodies such as the California FFC can bring short term improvements for workers, such reforms actually weaken worker power.

 

These efforts rely on politicians to adhere to the original intent of the law and avoid corporations capturing control of the regulatory bodies to defang, corrupt and even abolish them. In New York, the wage board was suspended in 2015 in a deal with industry to raise the minimum wage to $15 an hour. The California Industrial Welfare Commission was defunded by the state legislature in 2004 as a result of industry pressure.

 

The day after AB 257 was signed into law the industry filed to place a referendum on the ballot to ask the voters to overturn the law. Legislative reform can also be overturned in such referendums by the voters misled by massive corporate spending. This is what happened with the passage of California Prop 22 in 2020, which overturned a state law recognizing gig workers as employees with the right to unionize.

 

If their referendum fails we can expect a federal lawsuit that could overturn the law for overstepping federal interstate commerce clause powers or the NLRA. A local collective bargaining law for gig drivers in Seattle was thrown out by the courts in 2015.

 

Regulatory bodies such as the FFC are top down paternalistic bodies. They make decisions without democratic involvement of the workers who do not get to vote on their recommendations.  Only four of the ten members will be fast food workers and union representatives will be a minority on the council making decisions for them.

 

These councils are based on flawed logic. Worker power is what leads to reforms, not the other way around. As CUNY John Jay College Law professor Catherine Kemp and co-author Marianne Garneau write in the online labor magazine Organizing Work, “people forget that laws are the result, not the cause, of pressure to redress and reform.”

 

Since the WWI era federal labor arbitration system, the labor movement has gotten the relationship between reform and worker power backwards. When workers are weak our unions seek a legislative solution with the mistaken thinking that it will strengthen workers.

 

These individualized solutions instead weaken workers by redirecting us away from  taking collective action. Our unions are weakened by tying us to the bureaucracy and a political party. These councils disempower workers whose only real lasting power comes by taking collective action at work, withdrawing their labor in strikes and disrupting business as usual.

 

We need to flip this thinking around. Reform is a response to powerfully organized workers who take disruptive action. While reforms temporarily tilt the balance of power in our favor, by restoring labor peace they also give the boss time to regroup and regain the advantage. Reform is the means, not the goal.

 

No state mandated council will ever substitute for organized workers acting in solidarity against racism and sexism in its ranks in defense of those like firefighter Anita Daniel.