Bill Knight column for Thurs., Fri., or Sat., April 14, 15 or 16
Customers stopping by McDonald’s on Thursday may see demonstrators calling for $15 an hour pay and a union in what organizers say is another day of protests targeting the fast-food chain in dozens of U.S. cities. However, a judicial hearing that opened in New York a month ago could have far wider implications for the corporation and its employees who’d like a raise or at least a vote to unionize.
A March 10 National Labor Relations Board (NLRB) hearing before an administrative law judge in New York eventually could force McDonald’s to bargain with unions that its workers authorize to represent them, but it also could potentially change the whole notion of business franchises as a way to shelter or shield companies that actually control the wages, hours and working conditions from taking responsibility for its labor force.
If the NLRB rules that the fast-food company is a “joint employer,” the corporation would have to bargain with workers’ unions, and unions would gain an opportunity for organizing in the huge – and relatively low-wage – restaurant sector, which no longer employs teens, but adults of all ages struggling to get by.
The case comes two years after the NLRB said that McDonald’s could be held jointly responsible with franchisees accused of threatening, punishing or discharging workers who took part in some of the first strikes fighting for $15 an hour wages.
Based in Oak Brook, Ill., McDonald’s is appealing, claiming that franchises are independent and control their own operations. Workers’ advocates argue that McDonald’s closely watches and controls working conditions virtually by the minute at all McDonald’s locations, whether or not they’re franchises, from hiring to staffing.
The company says about 90 percent of its 14,000-plus U.S. outlets are run by franchisees. A big reason companies choose to franchise – or to outsource work to staffing agencies – is to shift workplace responsibilities elsewhere. But if a company is ruled to be a joint employer along with the smaller franchisee company, the parent company can become involved in labor relations that it otherwise escapes.
The roots of this wrangling go back to November 2012, when the nationwide “Fight for 15” campaign first organized many fast-food workers to rally, picket or strike. The Labor Board received 291 claims of Unfair Labor Practices for subsequent retaliation for “concerted activities,” which are protected under federal law, and the NLRB consolidated those accusations into 13 complaints against McDonald’s and some of its franchisees. The hearing is addressing those complaints specifically and the joint employer issue generally.
There’s recent precedent for a worker-friendly decision. In August, the labor board ruled 3-2 that a Browning-Ferris facility in California was a joint employer with a staffing agency that provided workers, noting that even indirect control over working conditions – or a company reserving the right to exert such control – established a joint-employer situation.
“It is not the goal of joint-employer law to guarantee the freedom of employers to insulate themselves from their legal responsibility to workers, while maintaining control of the workplace,” the NLRB wrote in the Browning-Ferris ruling.
The Labor Board said the previous definition – where direct control was required – "failed to keep pace with changes in the workplace and economic circumstances” such as a growing use of temporary workers, employed through outside agencies, who have few job protections traditional workers have.
Browning-Ferris appealed the August ruling to the U.S. Court of Appeals.
Although corporations have claimed that a joint employer decision would hurt business, worker advocates say that it would just mean fewer violations of labor law because parent companies and their franchises alike would have to monitor management. Further, if the Labor Board finds that McDonald's is a joint employer, union organizers say it's possible that the fast-food chain might consider recognition of workers’ organizations.
Additional NLRB hearings are ahead in Chicago and elsewhere for additional “Fight for 15” Unfair Labor Practice accusations.