The National Labor Relations Board has been busy this summer making bold decisions that could have far-reaching implications.
The NLRB’s most publicized action this summer occurred on July 29 when the Office of the General Counsel announced that it would treat fast-food giant McDonald’s as a “joint employer.” The decision of the General Counsel will have an immediate effect on a series of claims alleging that the company and its franchisees took negative employment actions against employees who participated in protected organizing activities. Many of these labor charges against McDonald’s stem from the fallout of the fast-food worker strikes over the past few years where employees have sought to increase their wages to $15/hr. According to the General Counsel, the Board has received 181 cases involving McDonalds since November 2012, of which at least 43 cases have merit (64 were still pending investigation at that time).
McDonald’s and other fast-food employers have previously escaped liability from the NLRB by claiming that their individual franchisees – and not the company – are responsible for setting the wages and terms and conditions of employment. The claimants in the cases pending against McDonald’s have persuaded the General Counsel that the corporation exerts significant control over the employment relationship, even providing franchisees with tools and standards for managing their workforce. Should the decision of the General Counsel stand, fast-food workers will find it easier to organize and collectively bargain for higher wages and better terms and conditions of employment, and McDonald’s and other franchisors will be subject to increased liability for violations of federal labor law. A final resolution of the issue, however, may be a long way off. The decision on whether McDonald’s is a joint employer will now be in front of administrative law judges, and can then be appealed to the full Board and potentially to the federal courts.
Less than a week after the General Counsel’s announcement on McDonald’s, the NLRB issued a press release stating that the Board had “unanimously ratified all administrative, personnel, and procurement matters taken by the Board from January 4, 2012 to August 5, 2013.” This decision of the Board partially responds to the Supreme Court’s ruling from earlier this summer in NLRB v. Noel Canning where the Court found the President Obama’s recess appointments to the Board were unconstitutional, thus potentially undermining the Board’s administrative actions and decisions during this time period. The Board’s decision seeks to validate the NLRB’s “appointment of various Regional Directors, Administrative Law Judges, and restructurings of regional and headquarters offices” that were made during this time. The Board’s press release, however, does not address the fate of the decisions issued from January 4, 2012 to August 5, 2013 that the NLRB may have to revisit.