The Trump Labor Board Just Made It Harder for Fast-Food Workers to Hold Corporate Bosses Accountable

Michael Arria

Fast food workers and activists demonstrate outside the McDonald's corporate campus on May 21, 2014 in Oak Brook, Illinois. (Photo by Scott Olson/Getty Images)

On Decem­ber 14, the Nation­al Labor Rela­tions Board (NLRB) over­turned a 2015 pol­i­cy that had made it eas­i­er for work­ers — par­tic­u­lar­ly fast-food work­ers — to union­ize and chal­lenge their employ­ers over unfair labor practices.

The Oba­ma-era stan­dard sprung from a 2013 case involv­ing work­ers attempt­ing to union­ize at a recy­cling plant in Mil­pi­tas, Calif. The recy­cling com­pa­ny, Brown­ing-Fer­ris Indus­tries, owned the build­ing but used a small staffing agency called Lead­point to pro­vide and man­age work­ers. The local Team­sters union was try­ing to orga­nize the employ­ees, but it didn’t want to mere­ly nego­ti­ate with Lead­point: It want­ed Brown­ing-Fer­ris to be con­sid­ered a joint employ­er and par­ty to any labor con­tract. A region­al direc­tor deter­mined that Lead­point was the sole employ­er, but the Team­sters request­ed a review, and the NLRB’s gen­er­al coun­sel sided with union in a 3 – 2 vote.

The vote was hailed by unions and labor advo­cates for mak­ing it more dif­fi­cult for cor­po­ra­tions to dis­tance them­selves from cer­tain legal vio­la­tions — and for strength­en­ing the bar­gain­ing pow­er of sub­con­tract­ed gig-econ­o­my workers.

The Brown­ing-Fer­ris deci­sion was also good news for fast-food work­ers and orga­ni­za­tions like Fight for $15. Most fast-food com­pa­nies use a fran­chis­ing mod­el, and Brown­ing-Fer­ris made it eas­i­er for work­ers to hold cor­po­ra­tions respon­si­ble for wage theft and union bust­ing at indi­vid­ual loca­tions. In 2014, the NLRB’s gen­er­al coun­sel had already ruled that the McDonald’s Cor­po­ra­tion could be con­sid­ered a joint employ­er in var­i­ous labor cas­es brought against the company’s fran­chis­es. But Brown­ing-Fer­ris pro­vid­ed an entire­ly new legal dimen­sion to the proceedings.

The Brown­ing-Fer­ris deci­sion was pre­dictably crit­i­cized by indus­try groups, which imme­di­ate­ly launched an all-out assault on the new rule. Inter­na­tion­al Fran­chise Asso­ci­a­tion lob­by­ist Matt Haller declared that the deci­sion was a knife-to-the throat issue,” pro-busi­ness orga­ni­za­tions pres­sured Con­gress to block its imple­men­ta­tion in their sub­se­quent spend­ing bill, and Brown­ing-Fer­ris Indus­tries chal­lenged the deci­sion in a fed­er­al appeals court.

Indus­try ner­vous­ness end­ed up being alle­vi­at­ed by the sur­pris­ing elec­tion of Don­ald Trump, who suc­cess­ful­ly tipped the NLRB back to a Repub­li­can major­i­ty in Sep­tem­ber — and has sought to over­turn the labor vic­to­ries which occurred under his pre­de­ces­sor. The Trump admin­is­tra­tion recent­ly end­ed Obama’s exten­sion of fed­er­al over­time pay, and it’s prepar­ing to erad­i­cate2011 rule which pro­tects the tips of wait staff. All of Trump’s NLRB appointees were con­nect­ed to anti-union poli­cies at their pre­vi­ous posi­tions, but the con­fir­ma­tion process was fast-tracked, and they eas­i­ly made it through GOP-con­trolled Sen­ate. In over­turn­ing the Brown­ing-Fer­ris prece­dent, the board claimed that the 2015 deci­sion was respon­si­ble for upend­ing decades of labor law prece­dent and prob­a­bly cen­turies of prece­dent in cor­po­rate law.”

In a state­ment, Nation­al Employ­ment Law Project exec­u­tive direc­tor Chris­tine Owens called the rever­sal just one more exam­ple of the Trump Admin­is­tra­tion favor­ing cor­po­ra­tions over work­ing people.”

In this econ­o­my, employ­ers are increas­ing­ly sub­con­tract­ing out vital parts of their busi­ness to oth­er con­trac­tors and/​or using tem­po­rary employ­ment agen­cies to fill vital posi­tions,” said Owens. The Brown­ing-Fer­ris deci­sion rec­og­nized that in these arrange­ments, com­pa­nies that con­tract out work may still retain con­trol over the con­di­tions and stan­dards that gov­ern the work and how the work­ers doing the jobs are treat­ed … the Trump NLRB has decid­ed to let them off the hook.”

While there is no evi­dence that Trump was direct­ly involved in the case, we do know that one his com­pa­nies was impact­ed by the 2015 deci­sion. In May 2016, cater­ing work­ers at the Trump Nation­al Doral golf resort in Flori­da won a $125,000 set­tle­ment after suing for unpaid wages. As a result of the joint-employ­er lia­bil­i­ty, the work­ers were able to hold Trump Mia­mi Resort Man­age­ment respon­si­ble, even though an out­side staffing agency had hired them.

It is like­ly that the Trump admin­is­tra­tion will soon work to over­turn a num­ber of addi­tion­al Oba­ma-era NLRB deci­sions. To the sur­prise of many, the board end­ed up adapt­ing to the com­plex­i­ties of a chang­ing econ­o­my under Oba­ma and force­ful­ly assert­ed the rights of work­ers in a num­ber of impor­tant votes. Recent NLRB deci­sions have giv­en grad­u­ate stu­dents the right to union­ize at pri­vate uni­ver­si­ties, increased the bar­gain­ing pow­er of work­ers at char­ter schools and made it eas­i­er for small­er groups of work­ers to union­ize at com­pa­nies. How­ev­er, the term of the NLRB’s Repub­li­can chair­man, Philip A. Misci­mar­ra, end­ed just days after the board’s vote. Trump will at least have to wait until the Sen­ate con­firms his next nom­i­nee and reestab­lish­es the Repub­li­can major­i­ty before he’s able to undo any of these changes.

Michael Arria is the U.S. cor­re­spon­dent for Mon­doweiss. Fol­low him on Twit­ter: @michaelarria.
Subscribe and Save 66%

Less than $1.67 an issue