BY David Moberg

– The law is catching up with Ronald McDonald.

On Friday, the National Labor Relations Board issued 13 complaints involving 78 charges by workers that McDonald’s USA, LLC, and many of its franchisees broke the law by interfering with collective efforts to organize and improve working conditions.

The complaints will now go to trial before administrative law judges , who could, for the first time, find McDonald’s guilty of violating workers’ right to organize. Until now, McDonald’s has shielded itself from liability by claiming that it’s not an actual employer. Franchisors argue that although they provide the brand name, products, techniques and other operational necessities, they leave franchisees the discretion to operate as sole employer, responsible for all labor costs, risks and obligations.

What’s so significant about the NLRB’s complaints is that the board defines McDonald’s as a joint employer with its franchisees—and thus sharing responsibility.

That marks a huge victory for the Service Employees International Union (SEIU ), which for two years has funded and helped organize a campaign by fast-food and other retail workers to win $15 an hour and the right to unionize—a movement often known as the Fight for 15, though it has different names in different cities. SEIU helped workers file 291 charges that McDonald’s and franchisees retaliated against workers for participating in Fight for 15 strikes and protests. On Friday the board announced it had found merit in 86 charges that McDonald’s had discriminated against workers engaged in collective action by disciplining them, reducing their hours, discharging them unfairly, threatening them, placing them under surveillance and interrogating them. NLRB investigators resolved a few of the case this fall, filed complaints about 78 of the meritorious charges, and are still looking into 71 more.

It was long unclear whether the SEIU’s investment in Fight for 15 would allow it to formally unionize the sector, whose division into thousands of franchises made organizing a Herculean task. As the New York Times’ Steven Greenhouse wrote in July, when the NLRB general counsel first indicated that it was moving in the direction of declaring McDonald’s a joint employer, the definition “open[s] the door for the SEIU to try to unionize not just three or five McDonald’s at a time, but dozens and perhaps hundreds.”

In total, the joint employer definition could ease the way to unionization for more than 8 million workers in the franchise workforce.

Kendall Fells, organizing director of Fast Food Forward, the New York City branch of the Fight for 15 movement , says that the NLRB decision “underscores what most everyone recognizes as common sense: McDonald’s is the employer and responsible for what goes on at its restaurants. McDonald’s exerts such extreme control over franchises that to all extents, McDonald’s is the boss.” McDonald’s squeezes the franchisee so much that in order to make a modest profit and abide by corporate rules for employees, the franchisee must go to extreme lengths to hold down wages.

The result, says Fells, are wages so low that taxpayers effectively subsidize McDonald’s with at least $7 billion a year in public assistance for its workers. McDonald’s and franchise industry representatives have responded to Friday’s legal complaints by saying that the NLRB position on joint employers will destroy the industry. It’s likely McDonald’s will appeal the decision.

But Catherine Ruckelshaus, general counsel of the National Employment Law Project, a research and advocacy project on workers’ rights, says that the franchise relationship is no different from any other contract. “Like any contract, the franchisor needs to pay attention to whether the other party is abiding by the law, and it’s obviously important for the franchisor to feel the pressure that they’re responsible. This standard has been in place for decades, but except for minor cases, this is the first time it’s been applied in the franchising context.” If other companies must ensure that their contractual partners are abiding by the law, why can’t McDonald’s?

Catherine Fisk, professor of law at the University of California-Irvine School of Law, notes that there are limits to the impact of the NLRB determination that McDonald’s is a joint employer. The NLRB enforces the National Labor Relations Act, which primarily protects the rights of workers to organize and act collectively; its definitions do not apply to enforcement of wage and hour laws, occupational safety and health, state labor laws and other federal employment laws.

However, the right to collective action is the first and most basic labor right, which allows workers to take power into their own hands to hold employers accountable, and there are hopeful signs that the NLRB may further expand the definition of joint employer. In a case involving the waste disposal company Browning-Ferris Industries and a subcontractor , the NLRB is considering moving back to a broader, more inclusive definition of “joint employer” that prevailed until 1984 , when an NLRB with a majority made up of Ronald Reagan’s appointments significantly narrowed the definition . The earlier definition made a company a joint employer, for example, if it exercised or had potential to exercise indirect control of conditions of employment, or if “industrial realities” required it to be included for meaningful collective bargaining . The NLRB could go even further and open up the status of “joint employer” to be determined by something like “the totality of circumstances.”

This kind of expansion could affect millions more workers in other “fissured workplaces ,” a term coined by economist and now U.S. Department of Labor official David Weil to describe arrangements where big corporations like McDonald’s “have it all”—exercising control over wages and working conditions while evading responsibility. Other “fissured” relationships included the misclassification of workers as independent contractors and the use of subcontractors to manage workers.

For example, the day before the NLRB announced its actions against McDonald’s, the Warehouse Worker Resource Center announced that workers at the Port of Los Angeles and Long Beach had filed a class action law suit against California Cartage Company, two identified staffing agencies and any others involved for stealing millions of dollars from over 500 warehouse workers . Cal Cartage is the deep-pocketed firm that pretends not to be the employer of the workers in its warehouses, who are hired and managed by staffing agencies, just as it pretends that the roughly 1,000 port truck drivers who work exclusively for Cal Cartage are not employees but “independent contractors,” ineligible for many of the protections and benefits of employees (like workers’ compensation or Social Security). The suit maintains that Cal Cartage engages in many of the typical ways of shorting workers’ pay, such as requiring people to report for work even when they were not likely to be needed, requiring people to participate in training without pay, or automatically rounding down time of work to be paid .

Most seriously, the warehouse is located on city land, meaning employees must be paid rates set by the Los Angeles Living Wage Ordinance ($12.28 per hour without health benefits, or $11.03 per hour with health benefits equivalent to at least $1.25 per hour). Each worker is also entitled to 12 paid days off. Cal Cartage workers reportedly received none of these legally required pay and benefits. If the lawsuit had been brought against only the staffing agencies, however, it is less likely that these marginal companies would have been able to pay the back wages and disgorged profits, as the lawsuit now demands of all joint employers, including Cal Cartage.

One warehouse worker plaintiff in the suit explains to In These Times through a translator that he often faces a choice at the end of the month: Which bills do I pay? Do I skip bills and hope that costs will go down next month, or take out a high interest loan and bet that I will make enough to pay it off? Now, if he begins to receive the legally required living wage, plus compensation for the years of underpayment,, he hopes that he can simply pay his bills each month. It doesn’t seem like much to ask.

What else would he like at work? Respect, he said. That may take more time, and a union, and more. But the NLRB setting the precedent of “joint employer” in the case of McDonald’s and potentially broadening it with the case of Browning-Ferris could be important steps towards closing loopholes that employers have used to weaken and impoverish millions of workers.

Source: http://inthesetimes.com/working/entry/17484/how_the_nlrbs_mcdonalds_decision_could_heal_the_fissured_workplaceand_help

BY Kevin Solari

– On December 17, adjunct faculty at Temple University in Philadelphia completed their card count and applied to the Pennsylvania Labor Relations Board for union status. They are seeking to organize with the United Academics of Philadelphia (UAP), the American Federation of Teachers (AFT) local for adjunct faculty, and the Temple Association of University Officials, the AFT union for Temple’s full-time faculty.

The university employs approximately 1,100 adjunct instructors. The UAP required signatures from 60 percent of the faculty to apply for authorization.

Elizabeth Spencer, a creative writing instructor at Temple University, said in a statement that the win would benefit both teachers and students: “Being able to negotiate over meaningful job security and knowing whether I’ll be able to return to Temple next semester will improve the educational experience for my students.”

Teaching as an adjunct can be a chaotic experience. Instructors often work at multiple campuses, have classes added or cancelled at the last minute and are almost always uncertain whether or not they will even be teaching the following semester. In addition to the positions’ constant uncertainty, most adjuncts lack decent wages or benefits. Yet this workforce makes up a large percentage of faculty across the country and, at some institutions, is responsible for teaching as much as 60 percent of courses.

As a result, adjuncts in recent years have been working together in a concerted effort to organize. The AFT and the Service Employees International Union (SEIU) have been experimenting with a new strategy of organizing citywide, not just individual campuses. UAP, for instance, has not only members from Temple, but from the University of Pennsylvania, Bryn Mawr, Swarthmore, Community College of Philadelphia, and St. Joseph’s.

SEIU’s program, Adjunct Action, has succeeded in securing representation for adjuncts at schools in Washington D.C., Los Angeles and Boston. At Northeastern University in Boston, the instructors won against a university that hired the notorious union busting law firm of Jackson Lewis. And on December 16, the National Labor Relation Board issued a decision that would allow adjunct faculty at Pacific Lutheran University, in Tacoma, Washington, to join SEIU local 925. As difficult as public universities have been to organize, private schools have been even more resistant.

These successes are beginning to produce the kind of stability adjuncts are looking for. When Tufts University negotiated with its adjunct faculty this fall, the agreement gave adjunct faculty stable one-year contracts, and with more experience they can become eligible for two and three-year contracts. It also increased pay by 40 percent and revamps the evaluation process to focus on improvement, not punishment.

At Temple, Spencer looked forward to having that same stability. “By negotiating a fair contract with Temple, I know I’m working toward providing stability for my family.”

Source: http://inthesetimes.com/working/entry/17479/temples_adjunct_faculty_to_join_thousands_of_others_in_citywide_union

By Laura Clawson

– The Obama administration is outraging business lobby groups by doing something sort of novel and unexpected: aggressively enforcing labor law. The National Labor Relations Board is leading the way with a new rule modernizing and streamlining union representation elections, bringing them into the 21st century with electronic filing and cutting down on frivolous litigation and stall tactics. The labor board is also holding McDonald’s accountable for its own labor practices rather than allowing the fast food chain to continue shifting blame onto the franchise operators who are required to follow corporate rules. But it’s not just the NLRB:

Meanwhile, over at the Labor Department, the Wage and Hour Division’s collection of back pay has risen by more than a third under Obama, and man-hours dedicated to enforcement are up by half. A misclassification initiative was launched in response to a 2010 finding by Vice President Joe Biden’s Task Force on the Middle Class that 10 percent to 30 percent of all companies classified as independent contractors who met the legal definition of employees to avoid providing benefits and protections required under federal law. Wage and Hour is also now initiating significantly more of its investigations (as opposed to responding to worker complaints), and identifying violations at a much higher rate.

Much of the impetus for these changes has come from David Weil, a Boston University economist who — first as a consultant to Wage and Hour (initially hired under President George W. Bush) and, since May, Wage and Hour administrator — pressed the division to target enforcement efforts on industry sectors where wage theft is most common: restaurants, hotels, construction, janitorial services, agriculture, retail and manufacturing. Now businesses are bracing themselves for a proposed rule due early next year that is expected to at least partly reverse a long-term decline in the percentage of U.S. workers to whom employers must pay time-and-a-half when they work more than 40 hours a week.

It’s more than a little sad that this is what looks like major progress for workers, since what we’re talking about mostly consists of enforcing existing laws and ratcheting part of the way back to where things were in the 1970s. But that has been the sorry state of labor law in the United States. Even relatively modest actions like enforcing the law or preventing the worst employer abuses of the union representation election process have the potential to level the playing field just enough to give workers a fighting chance, and that’s the last thing groups like the Chamber of Commerce want to see.

Source – http://www.dailykos.com/story/2014/12/22/1353544/-Workers-get-a-boost-as-Obama-administration-brings-labor-law-into-the-21st-century

By Edward deSciora

– Believing he is inheriting a debt of $2 billion, incoming Governor Tom Wolf presented a frank but hopeful financial picture of the commonwealth.

In a game of political fingerpointing, Wolf blames the states budgetary deficit on the Corbett Administration’s reliance on non-recurring revenues. Tom Corbett and Co. used the same excuse when he entered office four years ago, implicating former Governor Ed Rendell.

“We have a structural deficit and that it’s a big one,” Wolf said. “We need to think about solutions on the spending side. We need to think about solutions on the revenue side.Just hoping for growth doesn’t seem to be enough.”

Wolf remained committed to his campaign promises of increasing education funding, while also levying taxes against Marcellus Shale extractors.

Remaining hopeful for his upcoming term, Wolf discussed an openness to innovative solutions to budgetary problems.

“If we recognize there’s a problem, we could do some things that could be really actually very exciting” the Governor-Elect asserted.

Source: http://www.politicspa.com/pa-gov-wolf-discusses-the-bleak-financial-state-of-pennsylvania/62526/

By Dave Jamieson

– In a major blow to big franchisers, the National Labor Relations Board issued several complaints against McDonald’s on Friday, naming the fast food giant a “joint employer” alongside its franchisees accused of violating labor law.

The fast food industry has been fearing just such a move by the board, since it shows federal regulators are willing to hold large corporations responsible for the labor violations inside franchised stores. Until now, it’s generally been the franchisees operating the restaurants who’ve been held responsible.

“The complaints allege that McDonald’s USA, LLC and certain franchisees violated the rights of employees working at McDonald’s restaurants at various locations around the country,” the board said in a statement.

The alleged violations by McDonald’s and its franchisees included “making statements and taking actions against [workers] for engaging in activities aimed at improving their wages and working conditions.”

The franchise industry has been blasting the board for months for considering issuing such complaints. In a statement issued Friday, McDonald’s said the board’s actions “improperly and dramatically strike at the heart of the franchise system.”

The complaints issued Friday grew out of the Fight for $15 movement that’s sprouted in the past two years, with fast food workers staging periodic strikes in cities throughout the country to fight for higher wages. The board’s move marks a major victory for the union-backed campaign, as workers have tried to hold major franchisers like McDonald’s responsible for the actions of their franchisees.

McDonald’s took a shot at the campaign on Friday, saying unions were carrying out an attack.

“These allegations are driven in large part by a two-year, union-financed campaign that has targeted the McDonald’s brand and impacted McDonald’s restaurants,” the company said. “McDonald’s has taken the appropriate measures, working properly with its independent franchisees, to defend itself against that attack on its business.”

A McDonald’s spokeswoman did not immediately respond to HuffPost’s request for further comment.

Of 291 charges filed against McDonald’s by workers since 2012, the board said it found merit in 86 of them. As is custom, the board’s general counsel tried to hash out a settlement between McDonald’s and the complainants over the last few months, but only achieved that in a small number of the cases. The remaining charges have been grouped into 13 different complaints that will now be heard before the labor board’s regional offices.

Michael Wasser, policy analyst at the worker group Jobs with Justice, said in an email that the complaints provide McDonald’s workers with an opportunity to hold their “real boss” accountable.

“We know that McDonald’s sets rigorous operating standards for its franchisees, from menus, to uniforms to employment practices,” Wasser said. “And we know that they monitor and enforce those standards at the corporate level. So when these practices appear to break the law, accountability should start at the top.”

Source: http://www.huffingtonpost.com/2014/12/19/mcondalds-nlrb_n_6355810.html?ir=Business