New Orleans   I know Jay Youngdahl, as an old friend and comrade, dating back to his father, H-1B visa lawyer Chris Colavecchio, when he introduced us in the early 1970s. Our building on Main Street in Little Rock, and the home of KABF radio and ACORN for years, was once the old Youngdahl law offices. Jay after a typically winding road from the 60’s ended up as a labor and civil rights lawyer as well, based in New Mexico for years, who ended up sometimes thanklessly representing ACORN in some matters, just as his father had done. Jay is more an occasional labor lawyer now for a Laborers’ region, while also publishing and writing a column for the East Bay Express. You might even find him on our list for PI attorneys, since he served as a PI attorney for a while. All of which is a long way of saying that when I noticed that Jay had written a piece for In These Times “Working” bulletin it caught my eye, especially because there was a picture of Andy Stern and the title of the piece was “In the Fantasy Land of Labor Theorists: Andy Stern’s Latest Contribution.”

I know Andy Stern even better than Jay Youngdahl though, having worked with him for more than twenty years when Local 100 was part of SEIU and serving on SEIU International Board when he was president for eight years, and, if anything, would count him normally as an even better friend and comrade. I found myself reading Jay’s piece incredulously. Andy had teamed up with a conservative author to write a piece in the recent number of National Affairs. The essence of their argument, according to Jay, was to “reform” various labor laws by giving the federal government the ability to issue “waivers” to the states similar to what they are able to do for federal health programs and did to wheedle raw red states like Arkansas and others into participating in Obamacare.

Surely, Stern and Eli Lehrer’s argument were much more nuanced than Jay was painting. Surely, Jay was gilding the lily just a bit, given the hardcore Bay Area trepidation on all things Stern since the bitter trusteeship battle over old Local 250, the giant healthcare local in California. Jay makes the point that a transfer of these federal protections and powers, as argued by Stern, to states and local jurisdiction would exacerbate the blue-red state divide, along with a list of other weaknesses in their arguments. I figured I should reserve judgement until I read the original article and considered it carefully. Perhaps this was something run up the flag along the Beltway before the Trump truck crashed through the Washington wall. There must be more to all of this.

And, there was, but it wasn’t necessarily better.

Especially disturbing was the weight in their argument given to the success of state and local efforts to raise the minimum wage. Here Stern and Lehrer were confused about the difference between minimum standards and preemption, in fact arguing that Fair Labor Standards allowed “state preemption,” which is incorrect. The statute does what it says by establishing a minimum standard. Nothing prevents a state in such situations from raising standards, but in a national policy, no state can lower standards below the FLSA thresholds. Red or blue, they are also silent on the fact that such increases have largely been in areas where the majority of voters had the opportunity because of democratic reforms introduced by previous movements through citizen initiative and referendum which undercuts their pretended consensus that “all labor reform” has come at the state level, rather than mostly through popular demand. Much of their admittedly controversial proposals are cast as the ability to “experiment” as well, but there has been nothing stopping many jurisdictions from experimenting by offering procedures or protections for workers exempted from the NLRA or FLSA. California’s farmworker representation regime with its strengths and weaknesses is an example, as is Seattle’s current effort to create representation norms for on-demand or gig employees. The protections provided in law by states in India for example for many categories of informal workers are vastly superior to the silence of US law at every level, and even though nothing has stopped activity, it is certainly not because there is a need for a waiver to start it.

But, no need to pile on. Jay was not picking nits, and little more needs to be said, other than the one question that perplexes me: Why? I think we’re in no danger of seeing such waivers to federal labor protections allowed even in Trump time, so was this just about stirring the pot? Stern can’t really believe the arguments made in his name in this piece, so why would he allow himself to be associated with them? Inarguably, Andy Stern was one of the most dynamic and creative labor leaders of our generation, albeit with strengths and weaknesses, rights and wrongs, as we all have, but even having forsaken his voice as the head of the nation’s largest union, why would he allow himself to be placed in a position where any of his brothers and sisters would be allowed to wonder now, which side is he on?