New Orleans The decision of the U.S. General Counsel of the National Labor Relations Board (NLRB) that McDonald’s acts as a “joint employer” in relation to its franchisees and therefore bears some responsibility for unfair labor practices by those franchisees is stirring extensive debate, all of which is good for workers, whatever the current outcome and final determinations in the future after endless litigation. Simply put, one of the many modern crises faced by workers has been the tenuous and often uncertain relationship to their employers making them more temporary, more contingent, and more precarious. Attaching a lifeline more firmly back to the original decisions makers, the ultimate paymasters, and the deepest pockets with the most to lose can’t do anything put help such workers and create some semblance of stability no matter how slight.
According to Times labor reporter, Steven Greenhouse:
Legal experts also predicted that Tuesday’s ruling would lay the foundation for an expansive decision by the labor board that would apply this broad “joint employer” standard to other industries and companies besides McDonald’s and fast-food chains. They anticipated that perhaps manufacturers, real estate management firms or cleaning companies that use temp agencies or subcontractors would also be declared joint employers. “It’s one of the most significant board actions in quite some time,” said Peter Kirsanow, who served on the N.L.R.B. under President George W. Bush. “If this approach is adopted and upheld, it’s going to be fairly significant. There will be a fairly serious domino effect on various industries. We’re going to look at the effect on contingent workers, temporary employees, those that are sent out by staffing agencies.”
If any of this hold true, even temporarily, during this period of glasnost while everything shakes out, informal and precarious workers at the bottom of the employment chain to the big boys could find less wage theft, slightly higher wages, and some minimal benefits often ignored. Just having them all run scared from top to bottom, creates opportunity. Furthermore, as the concept and protection of “bargaining unit” work has either eroded or been eviscerated in collective bargaining agreements by subcontracting outside of the protected workforce, the Browning-Ferris case brought by the Teamsters as they try to include subcontracted workers under the direction of the employer in the election and bargaining unit could be a huge protection for existing union workers and those under agreements.
Will any of this make union organizing easier? I’m still not so sure that’s the case. Even including subcontracted workers in an election is tricky, since most subcontractors are on 30-day cancellation contracts keeping them on tender hooks and therefore more vulnerable and susceptible to pressure by contract supervisors still outside the reach of unfair labor practices. Franchisees with more authority or franchisees with tighter links to the brand or corporation are still a thousand flowers blooming out there that are exceedingly difficult to pluck for organizers. Brother Craig Becker, former NLRB member and now general counsel for the AFL-CIO most optimistically says, “McDonald’s has a working-class clientele and it has to be concerned of how it’s perceived on how it treats its workers.” Boy, I wish that were true, but Walmart continues to serve as the most outstanding case in point, and workers with small paychecks are core customers for Walmart, McDonalds, and hundreds of other companies, because they have been forced to look the other way to stay within their pay.
So call this a potential win for workers and keep your fingers crossed that this is the way it breaks, rather than separating them even farther from a lifeline to the larger company, and keep on your knees praying that we get an actual break in making it easier to organize such workers sometime in our lives.