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.