The NLRB’s Big Mac Attack

Kollman & Saucier
Kollman & Saucier

The National Labor Relations Board recently heard two interlocutory appeals by McDonald’s that arise out of a sprawling case against it and a number of its franchisees. The General Counsel filed 61 unfair labor practice charges in 6 regions. The charges were brought against 31 parties (30 franchisees and the corporate franchisor) and allege 181 violations. The General Counsel did not allege that McDonald’s (the corporate franchisor) engaged in any unfair labor practice, but rather characterized McDonald’s as a joint employer with its franchisees. From all this, the Administrative Law Judge issued a comprehensive Case Management Order that kept all the actions in one consolidated proceeding and allowed the General Counsel to litigate the joint employer issue before proving any actual unfair labor practice. McDonald’s took issue with both these rulings. (The consolidation issue is up next on the blog.)

In McDonald’s USA, LLC, a Joint Employer, et al. and Fast Food Workers Committee and Service Employees International Union, CTW, CLC, et al., 363 NLRB No. 92; January 8, 2016, the Board rejected McDonald’s attack on the timing of the joint employer evidence; McDonald’s had taken particular issue with allowing evidence on joint employer liability before the General Counsel proved an unfair labor practice. Not convinced, the Board ruled that the Order “provides for an orderly presentation of evidence that helps to protect each Respondent’s confidentiality and due process rights, as well as controlling the efficiency and costs of litigation for those individual businesses.” The Board reasoned that preliminary joint employer evidence is necessary to determine whether McDonald’s is a proper party and also potentially probative of the unfair labor charges. Board Member Miscimarra wrote a lengthy dissent.

As one can surmise, this case is not about the various unfair labor practices, but rather McDonald’s status (or not) as a joint employer. Adding to the confusion, this determination may have to be analyzed under the old standard, as well as the new joint employer standard articulated last year in BFI Newby Island Recyclery (Browning-Ferris), 362 NLRB No. 186 (2015). Stay tuned.

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