Sen. Elizabeth Warren (D-Mass.) is leading a group of five senators who wrote to Peter Robb, general counsel of the National Labor Relations Board, requesting that he allow the trial in the McDonald's joint-employer case to proceed so that a judge may rule on the fast food giant’s liability.
The McDonald's case, which involves allegations that the company unlawfully harassed and fired workers organizing for higher wages, has been in trial before an administrative law judge for two years and could affect the collective bargaining rights of millions of franchise workers across the country.
The letter, also signed by Senators Kamala Harris (D-Calif.), Kirsten Gillibrand (D-N.Y.), Cory Booker (D-N.J.) and Sherrod Brown (D-Ohio), comes after the NLRB vacated its decision in Hy-Brand.
In February, the NLRB issued an Order vacating the Board's “decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017), in light of the determination by the Board’s Designated Agency Ethics Official that Member William J. Emanuel is, and should have been, disqualified from participating in this proceeding.”
“Because the Board's Decision and Order in Hy-Brand has been vacated, the overruling of the Board's decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015), set forth therein is of no force or effect,” the announcement added.
The decision comes after NLRB's inspector general questioned the validity and standing of the Hy-Brand decision based on Emanuel's former employment with Littler Mendelson, a law firm involved with Leadpoint, a company connected to the original Browning-Ferris case.
In a 3-2 decision on Dec. 14, the National Labor Relations Board overruled its 2015 decision related to Browning-Ferris Industries, which could make joint-employer rules less onerous and complex. For franchise operations, this could be a real shot in the arm.
The ruling covers every company that contracts out for services rendered by those who are not the company’s own employees. The headquarters of a fast food chain, for example, could be held liable for the unfair labor practices of an otherwise independent franchisee.
Under Hy-Brand, it became significantly less likely that the typical franchisor-franchisee relationship will result in being considered joint employers, as they would under the BFI standards.
Before it was vacated, this Hy-Brand decision had been the pretense for January settlement discussions with McDonald's on the basis that the Hy-Brand decision wiped out some of the workers' claims against the corporation.
In 2014, the NRLB fielded 13 complaints involving 78 charges against McDonald’s. The complaints alleged that the conduct by the “joint employers” violated the rights of employees.
The complaints could have far-reaching effects for McDonald’s, and others that rely on a franchise model, in that it opens the door to unionization and other organized worker demands for wage increases and improved working conditions.
At the time, the NLRB alleged that McDonald’s USA and McDonald’s franchisees engaged in “discriminatory discipline, reductions in hours, discharges, and other coercive conduct directed at employees in response to union and protected concerted activity, including threats, surveillance, interrogations, promises of benefit, and overbroad restrictions on communicating with union representatives or with other employees about unions and the employees’ terms and conditions of employment.”
In their letter, the senators noted that because the Hy-Brand decision no longer stands, a decision to enter settlement discussions is entirely unwarranted. "Now that the Board has vacated Hy-Brand and returned to the 2015 joint employer standard, it is imperative that you swiftly resume and finish the trial and allow the ALJ to issue a decision in this critically important case," they wrote.
The senators also asked NLRB General Counsel Peter Robb, a recent appointee by President Trump, a series of questions related to his communications with the White House and industry associations about the McDonald's case and about any other pending cases in which settlement discussions are based on the now-vacated Hy-Brand decision. It was Robb who engaged in "global settlement" discussions at McDonalds's request.
Robb was asked the following questions:
Do you intend to cease settlement efforts and resume the trial in McDonald's in light of the Board's Order vacating Hy-Brand? If not, why not?
If the McDonald's trial were to continue, approximately how many hearing days would it take to conclude?
Prior to your confirmation as General Counsel, did you discuss the McDonald's case with any person or entity not employed by the National Labor Relations Board, including employees o f the White House or industry associations? If so, please provide any such communications.
Please list all of the pending cases in which your office is considering or engaging in settlement efforts based in whole or in part on the now ineffective Hy-Brand decision.
‘It is imperative that you swiftly resume and finish the trial and allow the ALJ to issue a decision in this critically important case,” the senators wrote. “You expressed concern that, in the past, '’issues involving the Board have created uncertainty in the workplace’ and your belief that ‘it is incumbent upon the General Counsel to provide guidance...[that] promotes our mission of supporting industrial stability nationwide.’”
“You now have an opportunity to create certainty for all workers, unions, and employers by allowing an ALJ to thoughtfully consider a fully developed record involving a multifaceted fact pattern and apply the Board's controlling precedent articulated in Browning-Ferris,” they added. “Such a ruling would enable the stakeholder community to understand with certainty how governing Board law applies to a complex set of facts.”