While Fight for 15 protests rumble across the country, chasing the primary races, the country’s top labor board has just delivered a preliminary victory on the path to $15 and a union for fast-food workers.
The case dates back to spring 2015 at a Burger King outlet in Missouri, where a small group of workers protested for labor justice and paid dearly for it. Since late 2012, the national campaign, supported by the Service Employees International Union, has been launching periodic work stoppages and coordinating civil disobedience actions, snowballing into a global movement for low-pay workers demanding a living wage and union rights. Though the protests have generally been tolerated by individual employers (while the fast-food industry has emphatically resisted policy measures to improve wages and working conditions), there have been some instances when workers were punished for their activism. When several workers, including a leading Kansas City organizer, encountered mistreatment and retaliation in response to their protests, the Fight for 15 waged a legal challenge, and after months of litigation, the National Labor Relations Board (NLRB) has validated the workers’ right to organize.
According to the NLRB complaint, when the strikers returned to work after their April 15 day of protest, the higher-ups at the franchise immediately made their displeasure clear by disciplining the strikers. Manager Kelly Sharts allegedly told the workers she had been advised to issue write-ups to the strikers, but ultimately, perhaps out of empathy, she changed their schedules instead, telling them, “I took you guys off the schedule. That’s not right to write you up, so don’t worry about it.”
Around the same time, Terrence Wise, a veteran Fight for 15 campaigner at the restaurant, ended up losing his job, apparently in response to his high-profile activism—which had for months involved organizing, protesting, and filing NLRB charges for labor violations. Following a change in management, workers had to apply to be rehired, and Wise was pointedly rejected.
According to the legal transcript, the manager, Reda Hayes, took Wise aside at work and explained “the bad news”:
That she hated to do this, that she knew he had a family to support, and she hated losing one of her best workers. Wise told Hayes that he knew that she was just doing what she was instructed to do. Hayes said that she and other managers had complained that they have problems too and maybe they should go to the NLRB, and Wise agreed.
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Hayes also acknowledged that upper management “did not give her a reason that Wise should not be kept.” Wise had in fact proved himself more than qualified for the job duties and had been known as a model employee, even winning an award for his service in 2014.
According to the NLRB General Counsel’s brief, other reasons given for not hiring Wise seemed dubious, including a habit of giving extra food to “homeless people who occasionally seek shelter in the restaurant.” Wise’s de facto firing was, the counsel argued, a direct response to his labor activism with the Fight for 15’s Worker Organizing Committee.
The legalese of the NLRB documents reveals the subtle pressures workers navigate as they organize a traditionally marginalized industry: the rank-and-file calculating the risks of “insubordination,” the top management seeking to deter and intimidate workers, and the mid-level supervisors forced to awkwardly enforce the boss’s orders against their coworkers.
The Burger King franchisee EYM contended that the repeated single-day strikes cumulatively qualified as “intermittent strikes” and were not formally protected activity under the National Labor Relations Act. It argued the actions had been “scheduled so as to ‘harass EYM and other fast-food employers into a state of chaos.’” Though several staffers were missing on the strike day, the judge concluded, “it is difficult for me to discern how a few minutes longer wait time for customers…or employees having to work harder amounts to harassment of the [company] into a state of chaos.”
In terms of basic democratic rights, the judge ruled that participation in an advocacy campaign to improve low-wage labor conditions deserved federal protection. Similarly, the judge concluded that since Wise “regularly spoke on behalf of the movement in the media, discussed the benefits of unionization with employees, filed charges with NLRB, and encouraged coworkers to sign petitions and participate in strikes and rallies,” his activism was “the epitome of protected union and concerted activity.”
According to University of California-Irvine law professor Catherine Fisk, who has been tracking the Fight for 15 movement:
The case is important in that it rejects the employer’s argument that the one-day strike is unprotected under the NLRA. The NLRA specifically protects the right to strike, and specifies no limit on when or for how long employees can strike.
Reached by email ahead of the latest Fight for 15 day of action, Wise reflected on the NLRB ruling that the law is on their side:
Me and my coworkers always knew we had the right to join together and speak out for $15 and union rights. We didn’t need a judge to tell us that, though we’re hopeful the decision will send a message to billion dollar companies like Burger King and McDonald’s that they need to respect our right to come together and stand up to improve our jobs and lives. No company is going to keep us from speaking out.
While employers might bristle at worker organizing, the strikes have only grown bolder since Wise got pushed off the job. The workers who rallied ahead of the primary elections in Houston already know their activity is protected—by the law, but more important, by one another.
Carlton Warren, who works minimum-wage jobs at Burger King and IHOP, said he doesn’t fear getting punished for protesting. Personally, he has not run into trouble with management after participating in several strike actions. Among coworkers, “some do fear the retaliation, but as they see me do it, it kind of took that weight off their shoulder.” He might hopefully inspire another fellow worker to join him next time, by showing that “he’d be able to come out there, ’cause I’m there with him.”
