The NLRB Refuses To Require Its General Counsel To Explain The Joint Employer Case Against McDonald's

The National Labor Relations Board continues the string of controversial moves in its unfair labor practice cases against McDonald's. In December 2014, the NLRB's General Counsel filed thirteen complaints naming the franchisor, McDonald's USA, as a joint employer for alleged unfair labor practices of various local franchisees. On August 14, 2015, the Board issued a decision affirming an Administrative Law Judge's decision denying McDonald's USA, LLC's motion for a bill of particulars.1 A bill of particulars would have required the General Counsel to specify the particular facts and law that support its theory of joint employer liability.

The Board concluded that "the allegations in the complaint are sufficient to put McDonald's on notice that the General Counsel is alleging joint employer status based on McDonald's control over the labor relations policies of its franchises."2 The Board's decision puts McDonald's in a difficult situation. The Board is unwilling to require the General Counsel to specify the facts and legal theory underlying its case. However, nowhere in the 150 pages of the thirteen complaints does the General Counsel elaborate on McDonald's USA's alleged control over its franchisees. Each allegation is specific to the franchisee's location and involves alleged actions by local management. The complaints provide only a conclusory statement that the franchisor "possessed and/or exercised control over the labor relations policies or practices" of its franchisee's employees, and "has been a joint employer" of the employees. The Board's decision makes it almost impossible for McDonald's to defend against these unprecedented allegations.

Members Miscimarra and Johnson agreed in a dissenting opinion that the denial of the bill of particulars creates an "acute due process problem."3 The dissent noted that the pleadings in this case fail to provide McDonald's with adequate notice of the basis for a violation. The dissent emphasizes that the Administrative Procedures Act requires parties to be provided notice of the "matters of fact and law asserted.4 Since the General Counsel has announced outside of this case that it intends to pursue a completely new and broader joint employer theory than existing case law, the complaint provides no notice of what joint employer standard the General Counsel is using. Accordingly, the dissent finds the complaint so vague that McDonald's cannot defend against the General Counsel's case.

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