NLRB Counsel Finds McDonalds to Be a Joint Employer

by Gary Robinson

[ Sept. 2014 ] – In late July the General Counsel for the National Labor Relations Board (NLRB) ruled that McDonalds was a joint employer along with its franchises for the purposes of labor relations.  The General Counsel’s ruling came on a series of unfair labor practice charges filed by the Service Employees International Union (SEIU).  Having McDonalds as a joint employer makes the company jointly liable for the employee relations actions of the franchisees.

The union charged that more than 100 McDonalds employees were discriminated against because of their pro-union activities.  Such discrimination by either unionized or non-unionized employers has been illegal under national labor law since 1934.   The General Counsels ruling was an important, although preliminary, victory for SEIU, and it allowed the cases of at least 43 McDonalds employees from throughout the nation to proceed to hearings before NLRB administrative law judges (ALJs).

The General Counsel’s decision is a long way from final.  If any of the ALJs rule in favor of the employees after a series of evidentiary hearings, McDonalds almost certainly will appeal those decisions to the full five members of the NLRB.  A decision by the full NLRB that is unfavorable to McDonalds can be appealed to the federal courts.  A final decision on the status of McDonalds as a joint employer by the courts could take several years.

The General Counsel said that McDonalds was a joint employer with its franchisees because it had “significant control” over the workforce. He gave specific examples of such control in his decision.  Right wing commentators are outraged by this ruling because it overturns more than thirty years of conservative anti-union decisions by the NLRB.  The significant control standard had been in effect in the 1950s, 1960s, and 1970s before it was overturned in 1982 by the NLRB after President Ronald Reagan appointed a Republican majority to the board.

Even with this favorable ruling, SEIU faces enormous obstacles in attempting to organize McDonalds employees into its union.  A traditional campaign of getting workers to sign union authorization cards and then filing for an NLRB supervised election would not work.  The logistics of signing up more than 250,000 McDonalds workers nationwide within a six months period would be impossible because of the thousands of work locations and the high employee turnover.  In addition, labor laws are far too weak and enforcement too slow to protect workers during a campaign.

Instead, SEIU’s is carrying out a sophisticated non-traditional campaign.  It is supporting individual McDonalds workers, fighting for minimum wage increases and legislative changes at state levels, and continuing to pressure McDonalds and other fast food giant chains as part of a long term effort to improve the lives of fast food workers.  At some point in the future SEIU is hoping to create a nation-wide movement that will allow it to organize large numbers of fast food workers into their union and thereby transform the American labor movement.