On December 19, 2014, the National Labor Relations Board published a public notice stating that the NLRB General Counsel has issued 13 unfair labor practice complaints against McDonald’s USA, LLC, and McDonald’s franchisees alleging that McDonald’s and the franchisees are joint-employers, and as such, are jointly responsible for alleged violations of the National Labor Relations Act. What’s at stake in these cases is not only shared responsibility for these alleged violations of the Act, but possibly also shared responsibility in collective bargaining should those unions organize the franchisors’ workers.
In addition to the public notice, the Board has also created a separate webpage on its website with the header “Organizations of Interest” specifically addressing these complaints. The 13 complaints arise out of 291 charges filed since November 2012. Though the actual complaints have not yet been made public, the Board hinted that they involve claims that unlawful “statements and taking actions against” workers who participated “in nationwide fast food worker protests … during the past two years” including alleged “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.”
While the General Counsel’s actions are alarming, particularly for businesses that rely upon a franchise model, the issuance of these complaints comes as little surprise because, as we reported in July of this year, the General Counsel had previously announced the decision to take this action and pursue claims of joint-employer liability. What is somewhat surprising about the announcement is its timing because the Board has not yet issued its decision in Browning-Ferris, 32-RC-109684, where the Board invited interested parties to opine in amici briefs on the benefits and drawbacks of the current standard relied upon by the Board to determine if two employers are a joint-employer and to propose a new standard and factors the Board should consider in such cases. Similar to its recent repudiation of Register Guard, the Board may use Browning-Ferris to moot the thirty years of joint-employer case law that followed TLI, Inc. 271 NLRB 798 (1984).
While the General Counsel issued the complaints based on charges filed in 13 Regional Offices across the country, including, among others, Region 2 (Manhattan), Region 10 (Atlanta), Region 13 (Chicago) and Region 31 (Los Angeles), the Board has agreed to consolidate the hearings at six Regional Offices, with the first scheduled to commence, absent settlement, on March 30, 2015.