With an endorsement from Democratic presidential candidate Bernie Sanders and the passage of new wage laws in California, New York and the District of Columbia, the “Fight for $15” minimum wage campaign has gained a lot of traction since its beginnings in a November 2012 strike by fast food workers in New York City.
Advanced with support from unions like SEIU and such politicians as Sanders and New York Mayor Bill de Blasio, the growing campaign for a nationwide $15 minimum wage has also sought and received the NLRB’s protection from unlawful employer responses.
Putting aside the question whether more than doubling the federal minimum wage would be a good choice for the labor market, the board’s protection of the wage debate represents an important recent victory for labor activism.
‘Show Me’ why I come to work
In Chipotle Services, LLC, 363 NLRB No. 37, 204 LRRM 1974 (2015), the NLRB considered charges regarding the fast food chain’s response to the Mid-South Organizing Committee’s “Show Me 15” campaign at a St. Louis, Mo., location.
One of the restaurant’s employees participated in three protests around St. Louis, missed work to go to two of the protests, and later missed work again to attend a union trip.
After the employee discussed the higher $11 hourly wage of a co-worker with fellow employees and two managers, a supervisor told him not to talk about wages in the workplace and warned of “parting ways” if it happened again.
Later the same month, union organizers visited the restaurant and spoke with employees. The same supervisor followed an organizer into the parking lot when he left to talk to a worker who came to pick up his pay stub. The supervisor told the worker that he didn’t need to talk to the organizer and said that the worker could make “plenty of money” with the employer, “up to $30,000 to $40,000.”
After organizers came back a second day to talk to the supervisor about his alleged threats to employees, the supervisor discharged the activist employee for failing to show up for an all-store meeting the prior Sunday morning.
The union filed unfair-labor-practice charges, and the board’s General Counsel issued a complaint alleging violations of Sections 8(a)(1) and (3) of the NLRA.
A union by any other name…
The board first found that the Mid-South Organizing Committee is a “labor organization” as defined by the NLRA. The employer had denied knowledge or belief on this point.
Among other things, the board reasoned that the committee’s aims are to unite fast-food workers in an effort to improve wages, that it meets with employers on behalf of employees, and that it registered with the U.S. Department of Labor by filing forms LM-1 and LM-2.
Unfair labor practices
Taking up the charges, the board found that the supervisor unlawfully interrogated employees about their wage discussions and unlawfully told employees that they could not talk about wages. The board found that the “parting ways” comment was an unlawful threat of discharge for engaging in activities protected by Section 7 of the NLRA, and it found that the supervisor’s comments to the worker in the parking lot were an unlawful promise of economic benefit intended to coerce the worker.
Maybe most importantly, the board found the discharge of the activist employee unlawful. It reasoned that he was warned not to discuss wages with co-workers, that he was discharged soon thereafter, and that other employees with similar work records who missed meetings weren’t fired.
Taking it to the bank
Though specific to events at one restaurant, the NLRB’s findings against the employer were significant.
The case reminded Chipotle and other fast food employers facing $15 wage campaigns that they were likely dealing with concerted activities protected by the NLRA and possibly subject to the board’s scrutiny.
It also showed both employers and unions that a hefty back-pay order and bad publicity could be their eventual reward for discharging an employee based on his or her minimum wage activism.
Finally, the case marked an important step in the legitimation of “Fight for $15” as an emblem of the grassroots economic anxieties that candidates such as Sanders have tapped this election cycle.
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