News & Insights

Who Needs the Employee Free Choice Act When You Have this Labor Board?
August 13, 2014
by Robert Conte


Mishawaka / South Bend, IN – Well, they are at it again. This time the NLRB’s general counsel, Richard Griffin, in an advice memorandum to the NLRB’s regional offices, authorizes the issuance of 43 complaints of unfair labor practices brought by McDonald’s workers. Why? Because in the opinion of the general counsel, McDonald’s USA, LLC is a “joint employer” alongside of its many franchisees.

The issue of “joint employer” presupposes two separate, legally district businesses as opposed to two separate businesses who are in fact one. Generally, joint employer relationships are found, despite an absence of common ownership, when one entity effectively and actively participates in the control of labor relations and working conditions of employees of the second entity. Under the National Labor Relations Act, this requires an analysis of whether they share the ability to directly and immediately control or to determine essential terms and conditions of employment, including matters such as hiring, firing, discipline, supervision and direction.

Despite this strict standard, the NLRB’s general counsel’s has used a narrower standard of “significant control” for joint employer determination with respect to McDonald’s, the general counsel’s memorandum does not carry the force of a full-board decision, which could have wide-reaching effects. In particular, impact of the general counsel’s actions could have implications for other franchise businesses outside of the fast food industry. Equally problematic is the possible undermining of those other franchise relationships, which unions see as a key to organizing fast-food employees, thereby placing the unionization goal within reach.

Further implications of this far reaching directive of the NLRB’s general counsel is the possible effect it could have on other agencies like the Equal Employment Opportunity Commission. OSHA and the Department of Labor which could take a similar position in its pursuit of discrimination safety, wage and hour cases against companies that are franchises.

This is just wrong!