McDonalds’ Sweetheart Deal with New NLRB Gets Fried

New Orleans   McDonalds’ strategy of stiff arming its workers, having its legal staff pursue frivolous delays to run out the clock on the Obama Administration, and do anything and everything to avoid taking any responsibility for its franchisees finally ran into a road block at the hands of the NLRB Administrative Law Judge.  The ALJ, Lauren Esposito, rejected a settlement by the new NLRB General Counsel, saying in her decision that it was not “a reasonable resolution based on the nature and scope of the violations alleged and the settlements’ limited remedial impact.”  For fast food workers and the rest of the service economy, this is huge, though it’s likely not over.  Nonetheless, the situation changed from “the fix is in” to a real shot at winning once again.

This story is the NLRB equivalent of the Trump “travel ban.”  Days before a long-awaited trial on a series of serious complaints of unfair labor practices against McDonalds that had been triggered by the work of the Fight for $15 Campaign, supported by the Service Employees International Union, a newly appointed NLRB General Counsel, who is the chief staffer for the board, asked for a delay to pursue a settlement with McDonalds.  A newly appointed NLRB General Counsel, who is the chief staffer for the board, asked for a delay to pursue a settlement with McDonalds.  The company had a million opportunities to settle for years but was clearly trying to run out the clock in hoping for a more favorable climate for its business, regardless of its law breaking, so in the same way that no one really believes the travel ban was not about Muslims, no one would ever believe this so-called proposed settlement was going to be a win for workers.

The real issue is of course the degree of control corporate McDonalds had over its franchisees.  The company claimed they were essentially “strangers in the night.”  The workers and anyone who has walked into a cookie-cutter McDonalds anywhere in the US and most of the world, knows they are indistinguishable, and that goes past the menu to the uniforms and work rules and kitchen procedures.  The Obama-era General Counsel who had issued the complaint held the whole corporation responsible for the action of any of its stores and its franchisees for their labor practices.  This recommendation went to the heart of the franchise model for McDonalds and all of its wannabes in that world.

A settlement is not supposed to be approved by the NLRB or the ALJs unless it gives substantial relief in an approximate way to what might have been won as compensation and correction in a trial on the merits of the complaint.  Usually, the company’s lawyers in a settlement negotiation will draft their wish list, but the fact that the charging party or union has to agree and that the NLRB is supposed to be the arbiter of fairness in the exchange, means the settlement is in the range of reasonableness.

Everyone would have bet the ALJ was under immense pressure here to cave on the standards but looking closely at the fact that the General Counsel was allowing corporate McDonalds to guarantee nothing, including that its franchisees would actually post the notice and live up to the terms in order to protect its franchisee fiction was clearly a bridge too far.  The ALJ then rejected the proposed settlement as inadequate.

Victory is still not assured for the workers, but with the judge’s actions, at least the fight became fairer for the workers again, In this day and time, that’s a victory in itself.

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Attacking Unions by Going after Members and Money Continues Everywhere

Union activists and supporters rally against the Supreme Court’s ruling in the Janus v. AFSCME case.
(Photo: Drew Angerer/Getty Images)

New Orleans       Back in the United States one of the first articles I had to read in detail on my return focused on the efforts of the right wing legal shops to sue big public employee unions in Washington, Minnesota, New Jersey, Pennsylvania, Ohio, and California for repayment of agency fees accepted from nonmembers for servicing and bargaining prior to the Supreme Court’s rejection of this forty-one years long standard in the Janus v. AFSCME case.  Local 1000 SEIU composed of almost 100,000 state employees was sued for $100 million alone.

Is this really about the money or just more intimidation as part of the war on the poor and working people?

The US Constitution is clear.  There can be no ex post facto laws, meaning that no one can be liable for behavior that was legal prior to the passage of a new law or court decision.  Federal courts in fact have continued to hold the line on this at the lower level of the courts.  Reimbursement legal challenges in Illinois and other states on the Harris decision that attacked fees being collected from home health care workers in many states have all failed and in most cases were thrown out of court for these reasons.  Some legal experts are worried that the legal strategy from conservatives is to get the case to the determinedly anti-union majority in the Supreme Court by hook-or-crook.  Some lawyers are warning that the collateral damage of opening this window into previous liability could snare a lot of big companies which might be the only thing that protects unions.  Realistically, this is all about trying to intimidate unions and force them to run up their legal bills to the money doesn’t benefit their members in other ways.

In Manchester, England, I talked at length to an organizer who was working as part of a  team with the national employees’ union to get turnout on a strike vote of over 50% of all eligible employees in the bargaining unit, as opposed to just winning a majority of those that vote.  This rule was deliberately imposed as an obstacle for the unions and to some degree it has worked, although after nine years of 1% raises, the organizers are hoping this is the year they send a message.

Interestingly, in Birmingham, England, Ravi Subramanian, the regional director for Unison in the West Midlands, raised this very issue as an anti-union measure that had actually made his union branches stronger.  Faced with the 50% barrier in almost all the votes since it’s imposition, the union has prevailed.  Surprising the crowd, Brother Ravi boasted that the government could raise the bar to 70, 80, even 90%, and he was convinced workers would smash every barrier, and it would build the union even stronger.

He’s not asking for it, mind you, but he’s ready for whatever they throw at the union.  Good advice for organizers and union leaders everywhere.

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