August 18th, 2015
McDonald’s ‘Bill of Particulars’ Bid Denied by NLRB
Aug. 17 (BNA) — The National Labor Relations Board Aug. 14 denied McDonald’s USA LLC’s request for a “bill of particulars” on NLRB General Counsel Richard F. Griffin’s allegations that the fast food giant is a joint employer with its franchisees under federal labor law (McDonald’s USA LLC, 2015 BL 263149, 362 N.L.R.B. No. 168, 8/14/15).
NLRB Chairman Mark Gaston Pearce (D) and Members Kent Y. Hirozawa (D) and Lauren McFerran (D), citing NLRB rules and regulations, sustained a previous denial of the motion for a bill of particulars by NLRB Administrative Law Judge Lauren Esposito.
The board also dismissed an alternative motion filed by McDonald’s to entirely dismiss the complaint filed against it.
Dissenters Argue ‘Due Process Problem.’
The Republican members of the board, Harry I. Johnson and Philip A. Miscimarra, concurred in part and dissented in part, writing that the denial of McDonald’s motion “presents an acute due process problem.”
Griffin authorized unfair labor practice complaints alleging that McDonald’s was a joint employer with its franchisees in July 2014 (145 DLR A-1, 7/29/14). Griffin issued 13 complaints in December 2014 (244 DLR AA-1, 12/19/14) and another six last February (30 DLR A-5, 2/13/15).
Esposito, the ALJ, has postponed a hearing in the joint employer case until Oct. 5 (97 DLR A-16, 5/20/15), when she expects to hear opening statements.
In the case at hand, McDonald’s argued that “the General Counsel’s failure to plead factual allegations in support of joint employer liability has left McDonald’s without adequate notice of the charges against it sufficient to prepare its defenses for trial,” the board majority wrote.
No Requirement to ‘Plead Theory.’
But the Democratic board members disagreed, finding that Griffin’s complaints were “sufficient to put McDonald’s on notice” that he was alleging the corporation was liable as a joint employer.
A bill of particulars is only justified, the board majority wrote, when a complaint is “so vague that the party charged is unable to meet the General Counsel’s case.” In other words, the decision said, Griffin “is not required to plead his evidence of the theory of the case of the complaint.”
In their dissent, however, Johnson and Miscimarra said it is “no secret that the General Counsel here intends to pursue a more expansive theory of joint employer liability than the Board subscribes to under current law.”
But the language in Griffin’s complaint, they said, does not indicate what that theory might entail.
Dissent: McDonald’s Entitled to ‘Know Contours.’
“As a matter of due process, McDonald’s is entitled to know the contours of the General Counsel’s alternative joint employer theory and to receive a bill of particulars setting forth the facts the General Counsel intends to rely on to support his case under that theory,” Johnson and Miscimarra wrote.
The two Republican board members argued that Griffin’s allegations do not provide details of his “alternative theory,” despite the fact that “the alternative theory may be the sole basis for finding that [McDonald’s] violated the Act.”
“In this context, the phrase ‘joint employer’ is nothing more than the legal conclusion that the General Counsel hopes that the Board will reach, based on facts and legal principles that, under current law, would not establish a violation of the Act,” the dissenters wrote.
The board’s decision comes as it also is considering Browning-Ferris Industries of California Inc., No. 32-RC-109684, a representation case also dealing with whether the operator of a recycling plant and the staffing firm that provides its workers can be considered joint employers under the National Labor Relations Act.
Business Groups Weigh In
Although that case has yet to be decided, Griffin filed a brief arguing in favor of a broader joint-employer standard (127 DLR AA-1, 7/2/14). Many observers expect the Browning-Ferris case to be decided soon.
Meanwhile, in an Aug. 17 statement, Michael Layman, the executive director of the Coalition to Save Local Businesses, which includes the International Franchise Association and other employer groups, said the board’s decision indicated that “the McDonald’s joint employer trial will be conducted through an ambush of secret theories and so-called facts, only furthering the NLRB’s attempt to change the American small business landscape by regulatory fiat.”
“Small business owners are very concerned that their livelihoods are threatened by Mr. Griffin’s attempt to apply an unknown legal theory against McDonald’s,” Layman said. “Friday’s decision only heightens the importance of Congress acting to protect the millions of jobs and the livelihoods of hundreds of thousands of independent small businesses that are now at risk due to the radical and unprecedented actions of these unelected bureaucrats at the NLRB.”
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For More Information
Text of the decision is available at http://www.bloomberglaw.com/public/document/NLRB_Board_Decision_McDonalds_USA_LLC_a_Joint_Employer_et_al_362_