March 07, 2018

Warren Leads Senators Urging NLRB to Allow McDonald's Joint-Employer Case to Advance

Senators Say Trial Should Proceed After NLRB Decision to Vacate Hy-Brand Case

Text of letter (PDF)

Washington, DC - United States Senator Elizabeth Warren (D-Mass.) led a group of five senators writing to Peter Robb, General Counsel of the National Labor Relations Board (NLRB), requesting that he allow the trial in the McDonald's joint-employer case to proceed so that a judge may rule on McDonald's liability. 

The McDonald's case, which involves hundreds of allegations that the company unlawfully harassed and fired workers organizing for higher wages, has been in trial before an administrative law judge for two years and could affect the collective bargaining rights of millions of franchise workers across the country.

The letter, which was also signed by Senators Kamala Harris (D-Calif.), Kirsten Gillibrand (D-N.Y.), Cory Booker (D-N.J.) and Sherrod Brown (D-Ohio), comes after the NLRB vacated its decision in Hy-Brand. Before it was vacated, this Hy-Brand decision had been the pretense for Mr. Robb to enter January settlement discussions in McDonald's, because he argued that the Hy-Brand decision wiped out some of the workers' claims against McDonalds.

Last week, the NLRB vacated its decision in Hy-Brand. The Hy-Brand decision, prior to being vacated, had reversed Browning-Ferris, an important 2015 decision ensuring that workers could bargain with employers that have indirect control over their wages and working conditions.  As a result, the Browning-Ferris standard once again determines joint-employment cases before the NLRB.

The Board's vote to vacate Hy-Brand came after Senators Warren and Patty Murray (D-Wash.) called on the NLRB to reconsider Hy-Brand after an Inspector General investigation determined that one of its members, William Emanuel, had a conflict of interest due to his former law firm's ties to the case and should have recused himself.

In their letter, the senators noted that because the Hy-Brand decision no longer stands, Mr. 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," the senators wrote.

The senators also asked Mr. 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.