Wyatt Employment Law Report


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McDonald’s Loses Another Round at the NLRB

By George J. Miller

McDonald'sWebsiteOn March 17th, the National Labor Relations Board (NLRB) issued another decision unfavorable to McDonald’s USA and certain McDonald’s franchisees. This was the Board’s fifth decision in this massive case, in which the unions and the Board’s General Counsel are trying to prove that McDonald’s and its franchisees are a joint employer of the franchisees’ employees, and McDonald’s is therefore responsible for any unfair labor practices of its franchisees. In the latest development, a two member majority of a three member NLRB panel agreed with an administrative law judge’s decision to severely limit the scope of documents which McDonald’s could subpoena from the unions and other non-party organizations which had assisted the unions in their efforts against McDonald’s.

The labor unions, which are the charging parties, are the Service Employees International Union (SEIU), Fast Food Workers Committee, Pennsylvania Workers Organizing Committee (a project of the Fast Food Workers Committee), Workers Organizing Committee of Chicago, Los Angeles Organizing Committee, and Western Workers Organizing Committee.

The non-party organizations which received McDonald’s subpoenas are: Mintz Group, LLC, and LR Hodges & Associates, Ltd., both private investigative firms hired by the SEIU’s law firm; Berlin Rosen, Ltd., a firm specializing in public affairs and strategic communications; and New York Communities for Change, Inc., a nonprofit advocacy organization which Continue reading


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NLRB’s Browning-Ferris Industries Decision to be Reviewed by Federal Court of Appeals

By George J. Miller

iStock_000008223650_FullIn the past two weeks there have been some important developments in the ongoing case against Browning-Ferris Industries of California (“BFI”).  Recall that in August 2015, the National Labor Relations Board issued a decision in a union election case filed by Teamsters Local 350 against BFI and its labor contractor, Lead Point Business Services.  The Teamsters sought to represent a unit of employees in certain job classifications at a BFI recycling facility in California who were all supplied by Lead Point.  The Teamsters’ election petition sought a decision that BFI and Lead Point jointly employed these employees, but the NLRB Regional Director rejected the Union’s position, finding that under NLRB precedent at that time, BFI and Lead Point were not a joint employer.  The Regional Director directed an election which was held on April 25, 2014.  However, the employees’ ballots were impounded while the Teamsters sought and obtained review of the Regional Director’s decision by the NLRB.

In its August 2015 decision on review, a three member majority of the five member Board overruled the Board precedent relied upon by the Regional Director and found that BFI and Lead Point were a joint employer of these employees.  Although Lead Point hired and paid the wages and benefits of the employees, the Board concluded that BFI jointly employed them because it had significant Continue reading


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NLRB Rejects McDonald’s Procedural Motions

By George J. Miller

Earlier this month, the National Labor Relations Board issued two decisions rejecting procedural motions filed by McDonald’s, USA in the pending unfair labor practice cases filed against it and certain McDonald’s franchisees.  As background, in December 2014 the NLRB’s General Counsel issued 13 complaints involving 78 unfair labor practice charges filed against McDonald’s and its franchisees in 13 NLRB regional offices across the country.  The complaints allege various kinds of unfair labor practices against employees seeking to organize unions at McDonald’s restaurants (e.g., discrimination, discharges, surveillance, interrogation, threats).  Significantly, as has been well publicized, in addition to the substantive unfair labor practice allegations, the General Counsel is alleging that McDonald’s and its franchisees are a single employer and that, therefore, McDonald’s is jointly liable for any unfair labor practices committed by its franchisees.

Complaints from six NLRB regions (New York, Philadelphia, Chicago, Indianapolis, San Francisco and Los Angeles) were consolidated for a trial that started in March 2015 in New York, then was scheduled to move to Chicago and finish in Los Angeles.  An NLRB Administrative Law Judge was assigned to preside over the case and hear the evidence.  In March 2015, over McDonald’s objection, the judge issued a pre-trial order ruling that Continue reading


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New Data Confirms Fears about NLRB “Ambush” Election Rule

By George J. Miller

When the National Labor Relations Board implemented its new union election rule in April of this year, the prediction was that the new procedure would shorten the time between the date of the filing of the election petition and the date of the election, something which labor unions and their supporters favored but which the business community opposed.  Those who opposed it referred to it as the “ambush” election rule.  Well, the prediction was correct.  In a recent newsletter, “Democracy at Work,” Region 9 of the NLRB reported that from October 2014 through April 2015, the median number of days between the filing of the petition and the date of the election was 41 days, while between May 2015 and early September 2015, after the new rule went into effect, the number had dropped to 24.5 days.  This is more than two full workweeks less for unions and employers to campaign, which gives unions an advantage, since they have been actively organizing employees—often without the employer’s knowledge–since well before the election petition is filed.  Experts who have studied union elections report that the outcome is usually determined by the one-third of employees who are undecided at the outset.  Twenty four days is not much time to educate employees about all of the issues in a campaign, some of which are common to all campaigns and some of which are specific to each campaign.  The reduced time available to campaign means that non-union employers will need to be more proactive in their efforts to remain non-union and not wait until a campaign gets started, when it could be too late.


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NLRB Adopts Broad Definition of Joint Employer

By Michelle D. Wyrick

The National Labor Relations Board’s (“NLRB’s”) revised joint-employer standard spells trouble for businesses that rely on temporary employees or contingent workers and businesses that use the franchisor-franchisee model. Citing the dramatic growth in contingent employment relationships, on August 21, 2015, in Browning-Ferris Industries of California, Inc., the NLRB abandoned its more limited joint-employer standard and adopted an expansive new standard designed to encourage collective bargaining. Under the NLRB’s old test, an entity could be found to be a joint employer only if it had the authority to control workers’ terms and conditions of employment and if it actually exercised direct and immediate control over the workers. Under the new test, an entity may be found to be a joint employer if it has the authority to control workers’ terms and conditions of employment, even if it never exercises that authority.

Applying its new test, the NLRB concluded that BFI Newby Island Recyclery (“BFI”) and Leadpoint Business Services (“Leadpoint”) were joint employers of the workers that Leadpoint supplied to BFI under a temporary labor services agreement. Under the temporary labor services agreement, Leadpoint recruited, interviewed, tested, and hired workers to perform work for BFI. In determining that BFI was a joint employer, the NLRB found it significant that Continue reading


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National Labor Relations Board Dismisses Northwestern University Football Players’ Petition to be Classified as Employees and Unionize

By R. Joseph Stennis, Jr.

On August 17, 2015, the National Labor Relations Board (“NLRB”) unanimously dismissed a petition by Northwestern University’s football team players to be categorized as “employee(s)” as that term is defined under the National Labor Relations Act (“NLRA”). The NLRB declined to assert jurisdiction over the matter and instead dismissed the representation petition that was successfully filed by the College Athletes Players Association (“CAPA”) last year in which Peter Sung Ohr, NLRB Regional Director of its Chicago Office, ruled that Northwestern football players are employees under the NLRA.

football picIn its decision, the NLRB concluded, among other things, that to assert jurisdiction in this matter would not “effectuate the policies of the Act.” Additionally, due to the structure of the NCAA Division I Football Subdivision (“FBS”) of being primarily comprised of public colleges and universities, the Board ruled jurisdiction “would not promote stability in labor relations…in this case.” By statute, the NLRB does not have jurisdiction over state-run colleges and/or universities, which constitutes 108 of the 125 FBS teams. Northwestern University is the only private school that is a member of the Big Ten Conference, limiting the NLRB’s ability to exercise jurisdiction over its competitors within the conference. The Board recognized that such a scenario was without precedent because Continue reading


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NLRB Rules That Filing a Class or Collective Action Is Protected, Concerted Activity

By Michelle D. Wyrick

Last week, the National Labor Relations Board (“NLRB”) decided in 200 East 81st Restaurant Corp. d/b/a Beyoglu that “the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Section 7” of the National Labor Relations Act (“NLRA”). The employee in the case, a waiter, testified that he mentioned filing a lawsuit against his employer to one co-worker, who declined to participate in the proposed lawsuit. When the waiter filed the lawsuit, he did not obtain prior authorization from any other employee. On the day the complaint was served on the employer, the employer removed the waiter’s name from the work schedule and asked him if he expected to work while he was filing a lawsuit. The waiter left the workplace and was never told he could return to work. The Administrative Law Judge found that the employer terminated the waiter’s employment in retaliation for filing the lawsuit, on behalf of himself and other similarly situated employees, alleging violations of the Fair Labor Standards Act (“FLSA”).

The dissent disagreed with the majority’s conclusion that an employee’s filing of a class or collective action automatically equates to protected, concerted activity. The dissent noted that not every non-NLRA class or collective claim “triggers an automatic overlay of NLRA rights and restrictions.” In the dissent’s view, the simple act of filing a class or collective action “does not instantly convert the Continue reading