In September, the National Labor Relations Board tilted to a 3-2 GOP majority for the first time in ten years. Thus began a series of Obama-era policy reversals that previously strengthened worker protections.
By December, the NLRB overturned the Obama-era “Browning-Ferris” rule. The landmark rule had made it easier for employees to hold companies liable for labor violations committed by franchise owners or contractors. Before Browning-Ferris, a company needed to have direct and immediate control over their employees. Overturning the rule had implications for a 2014 case brought against McDonald’s, one of the biggest franchises in the country.
For three years, former Obama-appointed NLRB general counsel Robert Griffin built a case against McDonald’s, charging the corporation as a joint employer after 291 complaints against the Golden Arches were filed by workers suggesting they had experienced retaliation in the form of reductions in hours, interrogations, and disciplinary actions for participating in the 2012 Black Friday strike. The 2012 strikes eventually spread to over 150 cities and blossomed into the fight for a $15 minimum wage movement.
In 2014, Griffin found the charges against McDonald’s had merit and charged McDonald’s as a “joint employer,” effectively ruling that the company is equally responsible for the actions of its owner-operator franchisees who run the vast majority of its stores and set things like pricing and wages. McDonald’s only runs about 10 percent of its 14,000 U.S. restaurants.
Now, after over 150 days of testimony with only a few days of the trial remaining before the case is sent to a judge, the Trump-appointed NLRB General Counsel Peter Robb has asked the judge to pause the case against McDonald’s so that a settlement can be discussed.
The NLRB’s general counsel, in many ways, has more power over elections than the board itself, due to the general counsel’s power to decide which cases to advance. While Robb does not have the authority to dismiss the complaint entirely, he chose to settle without a joint employer decision from the judge, effectively letting McDonald’s off the hook.
But because McDonalds was originally charged in 2014, before Browning-Ferris, many labor experts argue that there still is a strong case against the corporation.
“If the general counsel decides to settle, this sends a message to workers that you cannot rely on the NLRB to protect you,” Patricia Smith, senior counsel at the National Employment Law Project, told ThinkProgress when the discussions surrounding a settlement were merely rumors.
“There was already a such a strong case against McDonalds under the old rule […] in 2014 the board felt there was strong evidence of a violation workers rights and McDonalds should held accountable for it.”
The McDonalds case is crucial, as it tackles the issue of how workers should be organized and protected in a capitalist society where workplaces are increasingly fissured by franchises, outsourcing, and contracts. This stratification of the labor field frequently results in lost wages, losses typically equivalent to losing three to four weeks of earnings. For a family living paycheck to paycheck, that means a month’s worth of rent or week’s worth of groceries gone.
Confirmed by the Senate in November, Robb has already began his job of doing Trump’s bidding, choosing to protect corporations over workers. As CNN Money reports, just last week, Robb withdrew a 2017 complaint charging manufacturing conglomerate Honeywell with illegally preventing 350 union members in New York and Indiana from doing their jobs and replacing them with temps for nearly 10 months. As a result of Robb’s decision to dismiss the complaint, the workers suffered loss of wages. The complaint was originally filed by an Obama era appointee.
UPDATE 6:45 PM
In response to the NLRB General Counsel’s decision to order a 60-day in the McDonald’s joint employer trail, McDonald’s worker and Fight for $15 leader Adriana Alvarez from Chicago, Illinois released the following statement:
“After more than three years of trial, it’s more obvious than ever that McDonald’s illegally harassed and fired workers for going on strike for $15 and union rights. Now, with only two days left of the trial, the lawyer Trump put in charge of our case wants to give McDonal’s a get-out-of jail-free card. The general counsel should let the judge rule on this case rather than folding to pressure from McDonald’s at the last minute.”