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Democrats press NLRB’s GC to move McDonald’s trial forward on Browning-Ferris joint-employer standard

By Pamela Wolf, J.D.

With Senator Elizabeth Warren (D-Mass.) at the helm, five Democratic senators are pressing National Labor Relations Board General Counsel Peter Robb to let the trial of the McDonald’s joint-employer case go forward so that a judge will have the opportunity to rule on McDonald’s liability. The case sparked long-lasting controversy with hundreds of allegations that the company unlawfully harassed and fired workers organizing for higher wages. It has been litigated before an administrative law judge for two years and could affect the collective bargaining rights of millions of franchise workers across the country.

Hy-Brand no longer operative. Before it was vacated for Member William Emanuel’s improper participation, the Board’s December 14, 2017, decision in Hy-Brand Industrial Contractors, Ltd, which overruled the Browning-Ferris joint-employer standard, had been the rationale for Robb to enter January settlement discussions in the McDonald’s case, the senators noted. Robb had argued that the Hy-Brand ruling wiped out some of the workers’ claims against McDonald’s.

But the Board vacated Hy-Brand on February 26, 2018, following an NLRB inspector general’s report finding that Emanuel should not have participated in the decision due to his former law firm’s representation of one of the parties in Browning-Ferris. Hy-Brand amounted to a “do-over” for the Browning-Ferris parties, according to the report. As such, Emanuel had a conflict of interest that should have kept him away from the Hy-Brand case. As it stands today, the Browning-Ferris standard once again determines joint-employment cases before the Board.

Move forward on Browning-Ferris standard. In a March 7 letter to Robb, the senators noted that because the Hy-Brand decision no longer stands, Robb’s decision to enter settlement discussions is entirely unwarranted. “Now that the Board has vacated Hy-Brand and returned to the 2015 joint-employer standard, it is imperative that you swiftly resume and finish the trial and allow the ALJ to issue a decision in this critically important case,” wrote the Democratic lawmakers.

The senators have also posed to Robb a series of questions related to his communications with the White House and industry associations about the McDonald’s case, and about any other pending cases in which settlement discussions are based on the now-vacated Hy-Brand decision.

The letter was also signed by Senators Kamala Harris (D-Calif.), Kirsten Gillibrand (D-N.Y.), Cory Booker (D-N.J.) and Sherrod Brown (D-Ohio).