The NLRB may not have the power or influence (or respect of Congress) it once had, but it is far from powerless. The General Counsel's office of the NLRB has made it clear that they will not shy away from big issues, as shown by the recent case against Boeing and the latest battle against McDonalds. There were fifteen (!) complaints issued against the company, concerning over thirty restaurants scattered across the country, alleging sixty one unfair labor practices and over one hundred and eighty alleged violations of the NLRA. The trial is scheduled to take place in courtrooms in New York, Chicago and LA, with adjournments between each phase. McDonalds has strenuously objected to the consolidation of all these cases (and many other things), but has been unsuccessful so far.
The first claim to be litigated will be the nationwide joint employer issue. This has been one of the Board's top priorities in recent years, and if successful, will affect every industry that utilizes franchise relationships, temporary agencies or contingent workforces. In the McDonald's case, the Board is seeking to hold the corporation responsible for alleged ULPs committed by the franchisees. This will dramatically increase their legal costs, their potential liability for the acts of supervisors and managers they've never met, and the risk of having their entire workforce organized by SEIU, UNITE HERE! or another enterprising union.
One challenge for the NLRB in this case is that they are not prosecuting it under a relaxed joint employer standard they hinted at in their request for amicus briefs in Browning-Ferris Industries - which has been pending since May 2014. They have stated that they have sufficient evidence to prove their case under the current standard. As stated in the various Complaints, their case consists of three elements:
- McDonalds and its franchisees are parties to a franchise agreement
- McDonalds possesses and/or exercises control over the labor relations policy of each franchisee
- McDonalds and the franchisees are joint employers.
Obviously, there is not a lot of detail about what evidence the NLRB expects to present, and/or how it reached its conclusion that McDonalds and the franchisees are joint employers. McDonalds' Motion for a Bill of Particulars (which requests additional details and explanation behind the charges) was denied, so we will have to wait for the trial to find out more.
Increasing the pressure on McDonalds are the OSHA charges filed in nineteen cities around the country, SEIU's Fight for Fifteen campaign which will include a 10,000 person rally on April 15 and the threat of various international unions filing charges against McDonalds for improper tax practices.
My goal is to keep this post updated with the latest development in this case on a regular basis.
If you have any questions, please do not hesitate to contact me at email@example.com. This post is a publication of Christensen Law, LLC. More details can be found at www.tor.org