The NLRB finally opened their joint employer case with McDonald’s as their target. One of the first NLRB gambits was to shut down McDonald’s attempt to subpoena SEIU and its PR firm, BerlinRosen. McDonald’s had planned to defend itself by arguing it was allowed to protect its brand during the SEIU-sponsored 2012 fast food strikes that created the underlying ULPs in the case. While Board law generally allows franchisors to impose greater control over franchisees if they do so in the name of brand integrity, the board disingenuously (with board member Miscimarra dissenting) discounted the motives of SEIU in the action. The case is speculated to hit the Supreme Court, and could hinge on who fills that court’s vacancy. The Department of Labor has already been ramping up efforts to make joint employer an enforcement priority in FLSA and FMLA issues. Employer handbooks continue to become a tool in the hands of the NLRB to bend employers to its will. In two recent cases, an election won by the company by a three-to-one margin was overturned because, according to the board, the handbook contained “overbroad” rules (read the article for the details). In the Dish Network decision, the solicitation policy took another hit on the chin when the NLRB narrowed the definition further, shifting the discussion from “working areas” to “working time.” In case you were hoping that the Speciality Healthcare decision might fall to legal challenges, the Eighth Circuit appeals court recently upheld the ruling. Micro-units are not going away anytime soon. The NLRB has had a few stumbles of its own. An administrative law judge ruled that the board committed an unfair labor practice by not bargaining with its own union in relation to an office relocation. Although the relocation cannot be “undone,” the judge ordered the board back to the bargaining table for all other issues, and ordered the board to post a notice, signed by the board chairman and its general counsel, at all of its locations nationwide and online, stating that it will not unilaterally change working conditions of its employees without negotiating with the union. And last but not least, the NLRB apparently has a budget problem. In a recent operations memo distributed to all of the regional offices, austerity measures were recommended to cover for the budget shortfall. It appears the litigious-happy NLRB is suffering from self-inflicted wounds.
