By:  Bradford L. Livingston

Earlier this week, a community organizing group called New York Communities for Change, with significant assistance from other community organizations and organized labor, announced a multi-million dollar campaign to organize employees in New York City fast food restaurants.  With sponsorship from the Service Employees International Union (SEIU), the campaign is expected to expand over time to other cities and ultimately across the country.  This week, in addition to publicizing its new campaign, the organizers led work stoppages, consumer hand-billing, and patrolling outside of different fast food outlets in the New York City area. 

The fast food industry is a difficult target for organized labor.  First, many individual locations are actually owned and operated by franchisees who set their own terms and conditions of employment.  Indeed, most franchisors have taken great pains to ensure that they are not the employers of their franchisees’ employees, and thus may have little control over their franchisees’ labor and employment decisions.  Second, many fast food restaurants experience relatively high turnover among the part-time employees who typically work there.  With fluctuating work schedules among a changing workforce, unions usually struggle to obtain enough authorization cards to guarantee a reasonable opportunity to win an NLRB election.  And the relatively small number of employees that are employed at a typical fast food restaurant has led to a risk-reward analysis for unions: they must expend significant effort to obtain dues from a small number of individuals.  Labor has now decided that the effort is worth it.

The organizing efforts in the fast food industry will likely be similar to approaches taken by organized labor in other low wage industries such as  janitors and hotel housekeepers – where in addition to strikes, leafleting, other local job actions, and unfair labor practice charges – unions use corporate campaign tactics to attack a well-known corporate parent whose logo adorns the various fast food outlets.  So whether these attacks focus on economics (corporate profits versus low employee wages), the safety and health of workers (dangerous working conditions), or product safety (food quality, food safety, or nutritional value), the object will be to force the franchisors (and ultimately their franchisees) to accede to labor’s demands. 

In a corporate campaign, unions often push for employer “neutrality,” where the employer agrees to be silent and not exercise its right guaranteed by Section 8(c) of the National Labor Relations Act to express its opinion about whether employees should organize.  Similarly, corporate campaigns often seek agreement on a card-check process, where the mere signing of union authorization cards is used to establish majority support for a union.  Because employees often sign authorization cards simply to get an organizer or co-worker off their backs (and not because they really want a union), unions can more easily obtain a majority and represent the workforce while avoiding a secret ballot NLRB election that might express the employees’ genuine desires.

As the new organizing campaign progresses, key issues will include: what is an appropriate bargaining unit (whether at a single restaurant or at multiple outlets in the same geographic area, whether by a single franchisor or possibly by multiple franchisees, and whether at a single or across different brands that the same franchisor operates); who is a supervisor and who is an employee eligible to organize under Section 2(3) of the NLRA (shift managers, team leaders, etc.); and what employees share a “community of interests” in a single bargaining unit at any restaurant (recent NLRB decisions have sparked an outcry over the proliferation of small bargaining units within a workforce, so we may expect issues concerning wait-staff, counter help, cooks, bus help and any other discrete functions).

Consumers have countless options when it comes to fast food dining, and competition among the restaurant brands has promoted special offers, “dollar menus,” and other efforts to keep prices down in an effort to increase traffic and sales.  To the extent that unions are successful in organizing employees and obtaining more wages and benefits for employees, the cost will likely either be absorbed by consumers or in a smaller number of employees working harder.

Because this campaign has just begun, we have yet to see what recipes organized labor has cooked up to achieve its goals, but with strikes, hand-billing and other disruptions outside these restaurants, we may soon be calling this not so fast food.